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In the Court of District Judge, Mathura
Present- Shri Rajeev Bharti (H.J.S.)
Civil Revision No. 02/2021
1. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255,
in Maujja Mathura Bazaar city and District Mathura, through Next
friend Ms. Ranjana Agnihotri D/o Late Rajendra Kant Agnihotri, aged
about 51 years, R/o. 512/695 Balda Road, Nishatganj, Near
Nishantganj Police Chowki, Lucknow, New Hyedrabad Uttar Pradesh-
2. Asthan Shrikrishna Janam Bhoomi, Katra Keshav Dev Khewat No. 255,
in Maujja Mathura Bazaar city and District Mathura, through Next
friend Ms. Ranjana Agnihotri D/o Late Rajendra Kant Agnihotri, aged
about 51 years, R/o. 512/695 Balda Road, Nishatganj, Near
Nishantganj Police Chowki, Lucknow, New Hyedrabad Uttar Pradesh-
3. Ms. Ranjan Agnihotri D/o Late Rajendra Kant Agnihotri, aged about 51
years, R/o. 512/695 Balda Road, Nishatganj, Near Nishantganj Police
Chowki, Lucknow, New Hyedrabad Uttar Pradesh-226007
4. Pravesh Kumar S/o Sri Rishi Pal Singh, aged about 44 years, R/o F-1/B,
Jagat Puri Parwana Road, Krishna Nagar, East Delhi , Delhi-110051
5. Rajesh Mani Tripathi S/o Sri Chandra Bhushan Mani Tripathi, aged
about 53 years, R/o Sainuwa, Sainua, Siddharthnagar, Uttar Pradesh
6. Karunesh Kumar Shukla S/o Sri Ram Narayan Shukla, aged about 29
years, R/o Village- Pakri Bhikhi, Post- Belhra, Pakri Bhikhi, District-
Basti U.P. 272182
7.Shivaji Singh S/o Late Ram Narayan Singh, aged about 60 years, R/o
45-A, Gahmar Kunj Colony Matiyari Chinhat, Lucknow. U.P.-226028
8.Tripurari Tiwari, S/o Shri Rajeshwar Tiwari , aged about 25 years, R/o
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
67/99, Ram Narayan Joshi Lane Lalkuan Lucknow, U.P.-226001
..Revisionists/Plaintiffs
1. U.P. Sunni Central Waqf Board, through Chairman, 3 - A Mall Avenue
Lucknow -226001
2. Committee of Management, Trust Alleged Shahi Masjid Idgah, Through
Secretary, Deeg Darwaza, District Mathura, Uttar Pradesh-281001
3. Shree Krishna Janambhoomi Trust, Mathura, through managing trustee,
near Deeg Gate Chouraha, Katra Keshavdev, Janam Bhumi Temple,
Mathura, Uttar Pradesh-281001
4. Shree Krishna Janm Sthan Sewa Sansthan, through Secretary, Katra
Keshav Dev, Deeg Gate, Mathura Bazaar city and District Mathura,
Uttar Pradesh-281001
-- Respondents/Defendants
Date of hearing Argument:05/05/2022
Date of Judgement: 19/05/2022
Ld. Counsel for Revisionist(s):
1.Shri Hari Shankar Jain
2.Shri Brijesh Kumar
3.Shri Vishnu Shankar Jain
4. Shri Gopal Khandelwal
5. Shri Pankaj Kumar Verma
Ld. Counsel for Respondent(s):
1. Shri G. P. Nigam
2.Mohd. Tanvir Ahmad
3.Shri Neeraj Sharma
4. Shri Mukesh Kumar Khandelwal
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
The revisionists filed a regular civil suit in the court of Civil Judge
Senior Division, Mathura which was registered as Misc. Case No. 176 of 2020
on the question of maintainability of the suit and dismissed the aforesaid case
by the impugned order dated 30/9/2020 passed by In-Charge Civil Judge,
Senior Division, Mathura. Being aggrieved with the impugned order, the
Revisionists /Plaintiffs preferred regular civil appeal 17 of 2020. The appeal
was admitted vide order dated 16.10.2020. The Respondent no. 2 filed
application no. 68-Ga, objecting to the maintainability of the appeal. The, then
District Judge, vide order dated 18.01.2021, allowed the application no. 68-Ga
and withdrew the order dated 16.10.2020 and further directed to register the
appeal as Revision. Thereafter, the same has been registered as Revision No. 2
of 2021.
1. Because the judgement passed by the Ld. Court below is erroneous and
against the facts and law applicable to the case.
2. Because the Ld. Court below has rejected the plaint under Order VII
Rule 11 of CPC on the ground that Plaintiffs, being the devotees/worshippers of
Lord Krishna, have no right to file the suit, whereas the Plaintiffs in the plaint
have asserted their right to religion guaranteed under Article 25 of the
Constitution of India.
3.Because the Plaintiffs No. 1 is deity, Bhagwan Shri Krishna Virajman
and Plaintiff No. 2 is deity as Asthan Shri Krishna Janmbhoomi through next
friend Plaintiff No. 3 Revisionist No. 3 herein and Plaintiffs No. 3 to 8 are
worshippers/devotees of Lord Shri Krishna.
4. Because in the suit, the following reliefs have been prayed for:-
"(a) Decree the suit in favour of Plaintiffs and against the Defendants,
cancelling the judgement and decree dated 20.07.1973 and Judgement and
decree dated 07.11.1974 and passed in Civil Suit No. 43 of 1967 by Ld. Civil
Judge, Mathura;
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
(b) Declare that the judgement and decree dated 20.07.1973 and the judgement
and decree dated 07.11.1974 and passed in Civil Suit No. 43 of 1967 by Ld.
Civil Judge, Mathura is not binding on the Plaintiffs;
(c) Decree the suit for declaration declaring that land measuring 13.37 acres of
Katra Keshav Dev shown by letters No. A,B,C,D and the site plan vest in the
deity Lord Shree Krishna Virajman;
(d) Decree the suit for mandatory injunction in favour of the Plaintiffs and
against the Defendants No. 1 and 2 directing them to remove the construction
raised by them encroaching upon the land shown by Letters No. E,B,G & F in
the site plan within the area of Katra Keshav Dev City Mathura and to handover
vacant possession to Shree Krishna Janmbhoomi Trust within the time provided
by the Hon'ble Court;
(e) Decree the suit for prohibitory injunction restraining Defendants No. 1 and
2, their workers, supporters, men, attorneys and every person acting under them
from entering into premises of 13.37 Acres land at Katra Keshav Dev, City and
District Mathura;
(f) The Hon'ble Court may pass any other decree for which Plaintiffs are found
entitled to or which may be necessary to be passed in the interest of justice;
(g) Award the costs of the suit."
5. Because the Revisionists have filed a suit for the removal of
encroachment raised by Defendant No. 2 on the land Katra Keshav Dev
belonging to the deity and Shri Krishna Janmbhoomi Trust registered on
09.03.1951. The trust is not functioning and it has taken no action to recover the
property belonging to the deity.
6. Because it is undisputed that Seth Jugal Kishore Birla on 08.02.1944
had purchased land of 13.37 acres situated in Katra Keshav Dev from the legal
heirs of Raja Patnimal through a registered sale deed in the name of Mahamana
Pt.Madan Mohan Malviya, Goswami Ganesh Dutt and Professor Bhikanlal
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Attrey.
7. Because Shri Jugal Kishore Birla created a public trust in the name of
Shri Krishna Janmbhoomi Trust on 21.02.1951 which was registered on
09.03.1951 and the entire property of 13.37 acres situated in Katra Keshav Dev
was dedicated to the deity and given to the trust.
8. Because a society, namely Shri Krishna Janmasthan Seva Sansthan,
established on 01.05.1958 had overpowered Shri Krishna Janmbhoomi Trust.
9. Because the society Shri Krishna Janmasthan Seva Sansthan filed Regular
Civil Suit No. 43 of 1967 in the Court of Civil Judge, Mathura with the cause
title 'Shri Krishna Janamasthan Sewasangh, Mathura, also known as Shri
Krishna Janmbhumi Trust, Mathura,' whereas society and trust are two different
entities.
10. Because the society entered into a compromise with Trust Masjid Idgah
on 12/17.10.1968 and the agreement was registered in the Office of Sub-
Registrar on 22.11.1968 and the society conceded valuable property of
Deity/Trust in favour of Trust Masjid Idgah, even though it was not the owner
and the property had already vested in Shri Krishna Janmbhoomi Trust and it
had no right to file the suit and to enter into compromise in respect of the land
belonging to the Trust.
11. Because the Plaintiffs have prayed that the fraudulent and collusive
decree dated 07.11.1974 passed in Civil Suit No. 43 of 1967 be cancelled and it
be declared that the same is not binding on the Plaintiffs.
12. Because the Plaintiffs have prayed for a declaration that the entire land
of 13.37 acres vests in the deity Lord Shrikrishna Virajman.
13. Because the Plaintiffs have prayed that the Defendants. No. 1 and 2 be
directed to remove the construction raised by them encroaching upon the land
shown by letters No. E,B,G, & F on the site plan within the area of Katra
Keshav Deo, city of Mathura and to handover vacant possession to the Shri
Krishna Janmbhoomi Trust.
14. Because the Plaintiffs have not prayed for the handing over
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
management of property to them but have prayed that encroachment be
removed and property be handed over to Shri Krishna Janambhoomi Trust.
15. Because the Plaintiffs have filed the suit for the welfare and benefit of
the deity and the devotees at large.
16. Because the Plaintiffs No. 3 to 8 are worshippers of Lord Shri Krishna,
they have the right to assert their right to religion guaranteed by Article 25 of
the Constitution to have darshan and perform puja at the actual birth place of
Lord Krishna, which is at present beneath the structure illegally raised by
Muslims.
17. Because the suit has been filed by the deity through next friend and the
deity has the right to be represented through next friend in case the Manager,
shebait, or persons in-charge of affairs are negligent in performance of their
duty or in case when their action is hostile to the interest of deity and devotees.
18. Because it is the right and duty of the worshippers to make every
endeavour to bring back the lost property of the deity and to take every step for
the safety and proper management of the temple and the deity’s property.
19. Because in this case, it is apparent on record that the decree passed in
Civil Suit No.43 of 1967 is based on a fraudulent compromise entered into
between Shri Krishna Janmsthan Sewa Sangh and Trust Masjid Idgah. As
mentioned above, Shri Krishna Janmasthan Seva Sangh had no right, power,
interest or authority in the property of the deity/trust and had no locus to file
the suit and enter into compromise against the interest of the deity. Therefore,
the devotees who came to know about the fraudulent act have every right to
file a suit.
20. Because the Ld. Court below in para 6 of the judgement has mentioned
that compromise had been entered into between Trust Masjid Idgah and Krishna
Janamasthan Trust whereas the Plaintiffs have clearly stated in the plaint that
the compromise was made between Shri Krishna Janmsthan Sewa Sangh and
Trust Masjid Idgah and Shri Krishna Janmasthan Trust was not party to the
compromise and it had not filed the suit. Therefore, the impugned judgement is
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
based upon a wrong assumption of facts and non application of mind.
21. Because the Ld. Court below has rejected the suit filed by the
Revisionists in limine on the ground that if a suit is registered, a large number
of worshippers may come to the court. A suit cannot be rejected on the ground
that several others may also approach the court.
22. Because the Ld. Court below has failed to take notice of the provisio of
Order 1 Rule 8 CPC, the Court in the appropriate case has power to treat any
suit as a representative suit when the interests of numerous persons are
involved.
23.Because the Revisionists have filed the suit also for exercising their
right to have Dharshan and Puja at the actual birth place of Lord Shree Krishna
in the exercise of their right to religion guaranteed by Article 25 of the
Constitution of India.
24.Because in view of the averments made in the plaint, triable issues arise
for adjudication in the case and the Ld. Court below failed to appreciate the
facts and pleas mentioned in the suit. The Ld. Court below is working in the
capacity of an In-charge Civil Judge, Senior Division. In-charge Civil Judge
can decide only urgent matters and it has no power to decide any case on
merits.
25.Because the Ld. Court below passed an order on 25.09.2020 that it will
hear the case on the maintainability of the suit as all the Plaintiffs are not
residents of Mathura. On this point the counsel for the Appellants demonstrated
that most of the trustees of Shri Krishna Janmabhoomi Trust and most of the
members of society Shri Krishna Janmasthan Sevasansthan were outsiders. The
attention of the court is also drawn towards Sections 16 and 20 of the CPC,
according to which suit can be filed where the property is situated and the
defendants reside.
26.Because the attention of the court below was drawn to the fact that the
Plaintffs’ right to religion, guaranteed under Article 25 of the Constitution of
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
India, is involved in the matter, as they have the right to have puja and darshan
of the actual birth place of Lord Krishna, which has been usurped by Trust
Masjid Idgah.
27.Because the attention of the Court was also drawn to the fact that in the
Ayoydhya case decided on 09.11.2019, the Hon'ble Apex Court has held that
the worshipper has the right to file the suit and in that case the next friend, a
resident of Allahabad, namely Shri Devkinandan Agarwal, had filed Suit No.
236 of 1989, renumbered as O.O.S. No. 5 of 1989 in the Hon'ble High Court.
In view of the facts and ratio of law stated herein above, the judgement passed
by the court below suffers from manifest error of law and the same is liable to
be set-aside.
Brief Facts of the plaint pleaded :
1.In para 4, it says that the deity has the right to protect its property and to
recover its lost property through shebait, and in the absence of shebait, through
next friend.
2.In para 33, Jugal Kishore Birla created a trust in the name of Shri
Krishna Janmabhoomi Trust on 21.02.1951 and the Trust Deed was registered
on 09.03.1951.
3. In para 35, The trust failed to perform its duty to secure, preserve, and
protect the trust property. The Trust has been defunct since 1958.
4.In para 36, On 01.05.1958 a society was formed in the name and style of
Shri Janmasthan Seva Sangh.
5.In para 37, The society was a different entity from the trust. The Society
had no power or jurisdiction to act on behalf of the Trust. The trust has no
authority or power to transfer, delegate or entrust any work to the Society to
perform.
6.In para 43, Shri Krishna Janmasthan Seva Sangh has no proprietary or
ownership rights in the property of Katra Keshav Dev, which stood vested in
the deity and the Trust. The Suit No. 43 of 1967 had not been filed by the Shri
Krishna Janmabhoomi Trust. The Trust was not a party to the compromise.
7.In para 72, In previous suits relating to land and property of Katra
Keshav Dev, the deity was not a party and no one has been appointed to protect
and save the interest of the deity. As such finding, if any, recorded in previous
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
suits affecting the interest of deity is not applicable in the present suit.
8.In para 79, The deity Plaintiffs no. 1 and 2 are minors, and since 1958,
the trust which was responsible to look after the interests of the deity has been
non-functional. Therefore, cause of action is accruing every day for the relief
prayed for in this suit.
9.It is further submitted that along with the documents in the Trial Court,
the judgement rendered in Case No. 74 - Misc. Case No. 234 of 1993
(Annexure No.6) passed by the Then District Judge vide order dated 06.05.1994
has been placed on record. The aforesaid judgement was affirmed by the
Hon'ble Allahabad High Court vide judgement dated 23.09.1997, reported in
1997 SC Online All Pg.690.
10.It has been held in Rule 4 that all the properties belonging to Shri
Krishna Janam Sthan Sewa Sangh, shall vest in the Shri Krishna Janam Bhumi
Trust. On the contrary, the trust became owner of all the properties belonging to
Sewa Sangh and it continued to be owner of its own property. From the bye-
laws of the Sewa Sangh, there is no doubt that the members of the Sewa Sangh
were appointed by the Trust. It is incorrect to say that Trust itself merged into
the Sewa Sangh and, therefore, lost its entity.
11.Per contra, Ld. Counsels for Respondents argued that the impugned
order is just and proper. The Ld. Lower Court was fully competent to pass the
impugned order. Ld. Lower court has not committed any error or material
irregularity or illegality. The impugned order requires no interference from this
Court. The Revision has no force and is liable to be dismissed .
12.As in Saleem Bhai & Ors. vs. State of Maharastra and Others.
(2003) 1 SCC 557 it has been held that the trial court can exercise the power
under Order VII Rule 11 CPC at any stage of the suit - before registering the
plaint or after issuing summons to the defendant at any time before the
conclusion of the trial. It is the duty of the Court to scrutinize the averments/
pleas in the plaint.
13.In Kanhiya lal ( Dead) By LRs. Vs. Rajnarain Sarin and others,
ALR 2000 (40) 130 (Allahabad) it has been held that frivolous and vexatious
suit can be thrown out- If the court is active and resorts to Order 10 for such
purpose -pleadings has to be understood in its proper perspective as a whole
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
14.Ld. Counsel for Respondents contended on Revisional jurisdiction, and
adduced Bishun Lal vs. Addl. District & Session Judge (LB) 2012 (30)
LCD 1941 Allahabad wherein it has been held that even an erroneous
decision cannot be corrected in the exercise of powers conferred upon this
Court under Section 115 of the C.P.C. The Revisional Court can not function as
an Appellate Court so as to travel beyond the scope of Section 115 of the Code
of Civil Procedure.
15.Heard Ld. Counsels for both the parties and perused the record.
16. A perusal of Section 115 CPC, which provides that:
Section 115 (1) A superior Court may revise an order passed in a case decided
in an original suit or other proceeding by a subordinate Court where no appeal
lies against the order and where the subordinate Court has,-
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under sub-section (1), when filed in the High
Court, shall contain a certificate on the first page of such application, below the
title of the case, to the effect that no revision in the case lies to the District
Court but lies only to the High Court either because of valuation or because the
order sought to be revised was passed by the District Court.
(3) The superior Court shall not, under this section, vary or reverse any
order made except when--
(i) the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or
cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before
the Court except where such suit or other proceeding is stayed by the superior
Court.
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
17.Thus it is clear from the above definition that under the Revision, facts
and evidences are not to be thoroughly analysed by the Revisional Court , only
the court has to give its opinion regarding the illegality, jurisdictional error and
irregularities passed by the Ld. Lower Court.
18.In the present matter, the only question before this Court is whether the
Ld. Trial Court should have admitted or registered the plaint of the revisionists/
plaintiffs, for this it is necessary to consider the following points:
19.The pivotal questions that arise for consideration in this Revision:
1- Whether the Revision is maintainable or not against the impugned order
dated 30-09-2020 ?
2- Whether a Worshipper as the next friend of deity can file suit for the
restoration and re-establishment of religious rights of the deity?
3-Whether the plaintiffs are entitled to maintain the suit challenging the
compromise judgement and decree dated 20.07.1973 and 07.11.1973 passed in
Civil Suit No. 43 of 1967 by Ld. Civil Judge, Mathura, on the ground of fraud,
misrepresentation, and collusion ?
4-Whether the provisions of The Places of Worships (Special Provisions)
Act 1991 will be applicable or not?
5- Whether the impugned order suffers from manifest error of law and the
court below has failed to exercise the jurisdiction vested in it by law?
20.Findings on Question No.1
1- Whether the Revision is maintainable or not against the impugned order
dated 30-09-2020 ?
20 (i).On behalf of Respondent no. 1 and 2, the maintainability of the
Revision had also been questioned. In support of their contention they relied on
Shamsher Singh vs. Rajinder Prashad & Ors, 1974 SCR (1) 322 it has been
held that where the plaint was rejected under Order 7 Rule 11 of the C.P.C.,
such an order amounts to a decree under Sec.2 (ii) and there is a right to appeal
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
open to the plaintiff.
20(ii). In M/s Hotel Shiv Shakti through Partner Sri Narain Tiwari and
others vs. U.P. Finance Corp. through Regional Manager and others, 2021
(145) ALR 376 it has been observed that the order impugned was passed under
Order VII Rule 11 C.P.C. The effect of the order was the rejection of the plaint
itself. Against the order impugned, appeal was maintainable as the plaint was
rejected in terms of section 2(2) C.P.C. -Revision dismissed.
20(iii). Further, objecting to the Revision memo and plaint by the
Respondent No. 1 & 2, it was stated that the Revision memo and Plaint
filed by the revisionists /plaintiffs are liable to be returned for violation of
Rule 28 of G.R.Civil, which is as follows-
20(iv).General Rule (Civil) 28 : Application containing argumentative
matters to be returned. --No application containing argumentative matter, e.g.
quotations and discussions of the effect of certain sections of Acts or of certain
rulings of the High Court, shall be placed on record. They shall be returned to
applicants without any order, except an endorsement that the application is
returned under this rule.
20(v).Ld. Counsels for Revisionists/ Plaintiffs have relied upon Sudershan
Chopra(Smt.)Vs.The New Okhla Industrial Development Authority,Noida
and others ALR2000(40)743 where in it has been held that General Rule
(Civil) 28 applies only to the applications and not to memorandum of
appeals.Thus submission made by Ld. Counsels for the respondent No. 1 & 2 is
misconceived and untenable in law.
20(vi).Revisionists/ Plaintiffs vehemently opposed the argument of
Respondents/ Defendants and argued that the present Revisionists had initially
filed Civil Appeal which was registered as C.A. No. 17 of 2020 by the then Ld.
District Judge vide an order dated 13.10.2020 as it was felt that suit had been
dismissed by the court below under Order 7 Rule 11 of the C.P.C. and a decree
would be prepared.
20(vii). It is relevant to point out that the suit filed by the Revisionists was
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
registered as Misc. Case No. 176 of 2020 by the Ld. Trial Court.
20(viii). The Revisionists submitted application No. 33-Ga before the Ld. Trial
Court (Civil Judge S.D.) on 05.10.2020 in Misc. Case No. 176 of 2020, praying
that a decree of order dated 30.09.2020 be prepared and a copy of the same be
supplied to the applicant. The Ld. Court below vide order dated 07.10.2020
passed the following order:-
20(ix)."The suit is dismissed as Misc. Case. No order has been passed under
Order 7 Rule 11 of the C.P.C. Hence, the application is rejected. The clerk is
directed to do the needful as per rule."
20(x).Thereafter Respondent No. 2 filed application No. 68-Ga before the
then Ld. District Judge in which the Court passed the order dated 18.01.2021
whereby the said appeal was directed to be registered as Revision.
20(xi).The Revisionist, in view of the legal position, agreed that the appeal
could be converted into the revision because the impugned order had been
passed in Misc. Case and therefore, the same would not come within the ambit
of Order 7 Rule 11 of the CPC and therefore, the appeal was not maintainable .
20(xii). The then Ld. District Judge, vide order dated 18.01.2021, held that the
impugned order had not been passed in any suit as the order was passed in a
Misc. Case and therefore, no decree had been drawn and further that appeal
could be filed only against the decree.
20(xiii). So far as the ruling cited on the question that an appeal lies against the
'decree', This court agrees with the above noted case laws cited by the Ld.
Counsel for the respondents/defendants that an appeal would lie if the decree
has been drawn by the Court. In the instant case, as evident from the impugned
order passed by Ld. Civil Judge, it is clear that no decree has been drawn, as
according to the Court itself, the order was passed in a Misc. Case and no
decree has been drawn. In these circumstances, Then Ld. District Judge vide
order dated 18.01.2021 held that revision would lie and was pleased to accept
the request of the revisionists to convert the appeal into revision. Therefore, in
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
view of the facts of the instant case, revision is maintainable.
20(xiv). Moreover as the Hon'ble Allahabad High Court in the case of Mudit
Verma vs. Cooperative Tribunal, 2006 (63) ALR 208 has observed that “ It is
settled law that no person should suffer for inaction or fault on the part of the
Court.”
20(xv). In Shaikh Salim Haji Abdul Khayumsab vs. Kumar & ors., 2006
(1) ARC 334 (SC) and Uday Shankar Triyar vs. Ram Kalewar Prasad
Singh, 2006 (1) ARC 1 (SC) (Three Judge Bench) Hon’ble Apex Court has
observed that “Non compliance with any procedural requirement relating to a
pleading, memorandum of appeal or application for substitution, or other relief
should not entail automatic dismissal or rejection unless the relevant statute or
rule so mandates— Procedural defects or irregularities, which are curable,
should not be allowed to defeat the substantive rights or to cause injustice.
Procedure, a hand-maiden to justice, should never be made a tool to deny
justice or perpetuate injustice, by any oppressive or punitive use. Procedural
law is not to be tyrant but a servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and not the mistress, a lubricant, not
a resistence in the administration of justice.
(a)The mortality of justice at the hands of law troubles a Judge’s con -
science and points an angry interrogation at the law reformer.
(b)The object is to expedite the hearing and not to scuttle the same.
(c)Justice delayed may amount to justice denied, but justice hurried
may amount to justice buried.”
It would also be appropriate to clarify here that, against the institu -
tion of appeal, Ld. Counsel for Respondent no.2 had adduced pa -
per no.68-Ga before the Appeallate Court with the prayer that re -
vision is maintainable against the impugned order passed by the
Trial Court. The Revisionist, in view of the legal position, agreed
that the Appeal could be converted into the Revision because the
impugned order has been passed in Misc. Case. After converting
the appeal into revision, neither the respondents challenged n or
made any objection against converting the appeal into revision,
before the competent authority/ Court. In view of the facts above
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
mentioned, the objection raised on behalf of the respondents
against the maintainability of Revision is not tenable.
This Court honours the case laws of the Hon’ble Supreme Court
and Hon’ble High Court filed by the respondents, but the above
case laws do not apply to the facts of the case.
21.Findings on Question No.2 :
2- Whether a worshipper as the next friend of the deity can file suit for
the restoration and re-establishment of religious rights of the deity?
21(i).Respondent No.1 & 2 also argued that the Revisionists/ Plaintiffs
have no right to sue as the Trial Court by the impugned order refused to
entertain the Suit. If the court is active and resorts to Order 10 for such purpose,
pleadings have to be understood in their proper perspective as a whole.
21(ii).As referred by the ld.Counsel of Respondents, Bloom Dekor Ltd. vs.
Subhash Himatlal Desai & Ors. (1994) 6 SCC 322 , wherein a Three Judge
Bench of Hon'ble Apex Court held "By "cause of action' it is meant every fact,
which, if traversed, it would be necessary for the plaintiff to prove in order to
support his right to a judgement of the Court, it is necessary for the plaintiff to
aver and prove in order to succeed in the suit.
21(iii).Ld. Counsel for the Revisionists/Plaintiffs relying upon the findings of
Hon'ble Apex Court in the famous Ayodhya case, M.Siddiq vs. Mahant
Suresh Das & Ors. 2020(1) SCC 1 (the paragraphs 443 to 458) wherein it
has been held that the worshipper has the right to file the suit.
21(iv).In the case of Bishwanth and Anr Vs. Sri Thakur Radha Ballabhji
and Ors. AIR 1967 SC 1044, the Hon'ble Apex Court has held that a suit can
be filed by a deity through the next friend/ worshipper for declaration of title
and possession and he can represent an idol when a shebait or manager of the
temple is acting adversely to the interest of the deity.
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
21(v).In the case of Vemareddi Ramanraghava Reddy and others Vs
Koduru Seshu Reddy and others AIR 1967 SC 436 , it has been held that a
worshipper of the Hindu Temple is entitled, in certain circumstances, to bring a
suit for declaration that the alienation of the temple properties by the de jure
Shebait is invalid and not binding on the temple. Reliance being paid on
Paragraphs 9 to 13 of the above judgement.
21(vi).In light of the law cited and discussed above, this court is of the view
that a worshipper as the next friend of the deity can file suit for the restoration
and re-establishment of religious rights of the deity.
22.Findings on Question No.3:
3. Whether the provisions of The Places of Worships (Special Provisions)
Act 1991 will be applicable or not?
22(i).Ld. Counsels for Respondents/defendants have argued that the present
suit is not maintainable as it is barred by The Places of Worship (Special
Provision) Act 1991.
22(ii).In the case ofCommittee of Management Surjo Bai Balika Inter
College Hathras Through Its Manager and another vs. Director of
Education , U.P. Lucknow and others 2007 (67) ALR 344 Allahabad it has
been held that the in practice and Procedure, Courts of law are meant for
imparting justice between the parties - One who comes to the Court, must come
with clean hands - A person whose case is based on falsehood, has no right to
approach the court- He can be summarily thrown out at any stage of the
litigation.
22(iii).Clearly the courts of law are meant for imparting justice between the
parties. One, who comes to the Court, must come with clean hands. A person,
whose case is based on a falsehood, has no right to approach the court. He can
be summarily thrown out at any stage of the litigation.
22(iv).The attention of the Court was drawn by the respondents to Section 56
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
& 57 of the Indian Evidence Act, which provides that:
Sec.56- Fact judicially noticeable need not be proved.- No fact of
which the Court will take judicial notice need to be proved.
Sec.57- Facts of which Court must take judicial notice.- The Court
shall take judicial notice of the following facts:- All laws in force in the
territory of India.
22(v).Ld. Counsels for Revisionists/Plaintiffs have argued that the relief
claimed in the suit is not barred by the above provisions. They further argued
that the provisions of the Places of Worship (Special Provisions) Act 1991 are
being misconstrued and it is being stated that this suit is not maintainable in
view of the provisions contained in section 4 of the said act. In paragraph 71 of
the plaint, it has been mentioned that the provisions of the Places of Worship
(Special Provisions) Act 1991 are not applicable in this case because of Section
4 (3)(b) of 1991 Act.
22(vi). It is relevant to mention Section 4 of the Places of Worship (Special
Provisions) Act 1991.
Sec.4- Declaration as to the religious character of certain places of
worship and bar of jurisdiction of courts, etc.
(1) It is hereby declared that the religious character of a place of worship
existing on the 15th day of August, 1947 shall continue to be the same as it
existed on that day.
(2) If, on the commencement of this Act, any suit, appeal or other
proceeding with respect to the conversion of the religious character of any place
of worship, existing on the 15th day of August, 1947, is pending before any
court, tribunal or other authority, the same shall abate, and no suit, appeal or
other proceeding with respect to any such matter shall lie on or after such
commencement in any court, tribunal or other authority.
Provided that if any suit, appeal or other proceeding, instituted or filed
on the ground that conversion has taken place in the religious character of any
such place after the 15th day of August, 1947, is pending on the commencement
of this Act, such suit, appeal or other proceeding shall be disposed of in
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
accordance with the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2) shall apply to,-
(a). any place of worship referred to in the said sub-sections which is an
ancient and historical monument or an archaeological site or remains covered
by the Ancient Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any matter
referred to in sub-section (2) finally decide, settled or disposed of by a
court, tribunal or other authority before the commencement of this Act;
(c) any dispute with respect to any such matter settled by the parties amongst
themselves before such commencement;
(d) any conversion of any such place effected before such commencement by
acquiescence;
(e) any conversion of any such place effected before such commencement
which is not liable to be challenged in any court, tribunal or other authority
being barred by limitation under any law for the time being in force.
22(vii).Hon'ble Supreme Court in the case of Most Rev. P.M.A. Metropolitan
and Others. Vs. Moran Mar Marthoma and Another 1995 Supp (4)
Supreme Court Cases 286 (Para 44) has held that suit for declaration will be
maintainable.
22(viii). With regard to the entire property of Katra Keshav Deo, whether Shri
Krishna Janma Bhoomi Seva Sangh had the power to enter into compromise
with Trust Masjid Eidgah is a matter of evidence which can be determined only
on the basis of the evidence adduced by both the parties during the trial.
22(ix). Hence, in light of the discussions made above and the legal tenets on the
mentioned question, this Court is of the considered view that the provisions of
The Places of Worship (Special Provisions) Act 1991 are not applicable by
virtue of section 4 (3)(b) of the Places of Worship (Special Provisions) Act
23.Findings on Question No.4 :
4- Whether the plaintiffs are entitled to maintain the suit challenging the
compromise Judgement and decree dated 20.07.1973 and 07.11.1973
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
passed in Civil Suit No. 43 of 1967 by Ld. Civil Judge, Mathura, on the
ground of fraud, misrepresentation and collusion ?
23(i).Ld. Counsel for Respondent No.2 argued that the pathology of litigative
addiction ruins the poor of this country and that the Bar has a role to cure this
deleterious tendency of parties to launch frivolous and vexatious cases.
Reference was made to the judgement T.Arivandandam vs. T.V . Styapal
1977 AIR (SC) 2421, in which Hon'ble Apex Court has observed that the
learned Munsif must remember that if on a meaningful- not formal- reading of
the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing
a clear right to sue, he should exercise his power under Order VII, Rule 11
C.P.C, and if clever drafting has created the illusion of a cause of action, nip it
in the bud at the first hearing by examining the party searchingly under Order X
C.P.C. An activist judge is the answer to irresponsible law suits. The trial courts
would insist imperatively on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest stage.
23(ii).Ld. Cousel for Respondent No.2 further argued that while scrutinising
the plaint averments, it is the bounden duty of the trial court to ascertain the
materials for the cause of action. The cause of action is a bundle of facts which,
taken with the law applicable to them, give the plaintiff the right to relief
against the defendant. Every fact which is necessary for the plaintiff to prove to
enable him to get a decree should be set out in clear terms. It is worthwhile to
find out the meaning of the words "cause of action". A cause of action must
include some act done by the defendant, since in the absence of such an act, no
cause of action can possibly accrue.
23(iii).Ld. Counsel for Respondent No. 1 has relied on case law
Relying on Para 5 of S.P. Chengalvaraya Naidu vs. Jagannath
1994(1) SCC 1 , the relevant part is extracted below :-
The principle of "finality of litigation" cannot be pressed to the extent of
such an absurdity that it becomes an engine of fraud in the hands of dishonest
litigants. The courts of law are meant for imparting justice between the parties.
One who comes to the court, must come with clean hands. We are constrained
to say that more often than not, the process of the court is being abused.
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Property-grabbers, tax-evaders, bank-loan-dodgers, and other unscrupulous
persons from all walks of life find the court-process a convenient lever to retain
the illegal gains indefinitely. We have no hesitation to say that a person, whose
case is based on a falsehood has no right to approach the court. He can be
summarily thrown out at any stage of the litigation.'
23(iv).Ld. Counsels for revisionists argued that commission of fraud on court
and the suppression of material facts are the core issues involved in these
matters. Fraud, as is well known, vitiates every solemn act. Fraud and justice
never dwell together. It is also well established that misrepresentation itself
amounts to fraud. Indeed, innocent misrepresentation may also give reason to
claim relief against fraud.
23(v).Ld. Counsels for the Revisionists also argued and filed photocopies of
the order passed by the court below along with an affidavit to demonstrate that
the suit was filed by a society who was not the owner and had no power to enter
into compromise with Trust Masjid Idgah. The parties to Civil Suit No. 43 of
1967, by playing fraud, obtained a decree on the basis of collusive and illegal
compromise. Therefore, there is a cause of action to file the suit, and devotees
have the right to file the suit. The attention of the Ld.Court below was drawn
towards the trust deed and the fact that property in question had vested in the
trust and society had no power to file the suit and to enter into compromise, and
therefore, the collusive decree is liable to be set aside.
23(vi).It is further submitted that along with the documents in the Ld. Trial
Court, the Judgement rendered in Case No. 74- Misc. Case No. 234 of 1993
passed by the Then District Judge vide order dated 06.05.1994 has been
placed on record. The aforesaid judgement was affirmed by the Hon'ble
Allahabad High Court vide order dated 23.09.1997 reported in 1997 SC
Online All pg. 690.
23(vii).The Hon'ble Supreme Court in catena of decisions has interpreted the
power of the court under Order VII Rule 11 of the C.P.C.
23(viii). Ld. Counsels for the revisionists/ plaintiffs have relied on Kuldeep
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Singh Pathania vs. Bikram Singh Jaryal 2017 (5) SCC 345 (paras 5 to 10)
and Shaukanthussain Mohammed Patel vs. Khatunben Mohammedbhai
Polara 2019 (10) SCC 226 (para 6) and Saleem Bhai & Ors. vs. State of
Maharashtra 2003(1) SCC 557 (para 9).
23(ix). It is further argued that in view of the averments made in the plaints,
trivial issues arise which are required to be adjudicated. It is further submitted
that there is a cause of action for filing the suit, and revisionists/plaintiffs have
the right to file the suit for cancellation of the decree based on fraudulant and
collusive agreements and by virtue of the provisions contained in section 44 of
the Indian Evidence Act.
23(x).I have gone through the case law of Chandro Devi And Others Vs.
Union of India and others (2017) 9 Supreme Court Cases 469 wherein it has
been held that fraud vitiates all actions taken consequent thereto and, as such,
judgement based on fraud is liable to be set aside.
23(xi).In Indian Bank vs. Satyam Fibres (India) Pvt. Ltd. 1996(5) SCC
550, it has been held that the Judiciary in India also possesses an inherent
power, especially under Section 151 CPC, to recall its judgement or order if it is
obtained by fraud on the court. In the case of fraud on a party to the suit or
proceedings, the court may direct the affected party to file a separate suit for
setting aside the decree obtained by fraud.
23(xii). As far as the limitation period for the institution of said suit is
concerned, it is pertinent to mention the principle laid down by the Hon’ble
Supreme Court in MD. Noorul Hoda vs. BB Rafunnisa 1996 (7) SCC 767
wherein it has been held that Article 59 of the Limitation Act - To cancel or
set aside an instrument or decree or for the rescission of the contract- 3 years,
when the facts entitling the Plaintiff to have the instrument or decree cancelled
or set aside or the contract rescinded first become known to him. On suit to set
aside or cancel an instrument, a contract or decree on the ground of fraud,
Article 59 is attracted.
23(xiii). Thus, from the discussions of the case laws propounded by the
Hon’ble
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Apex Court, it is clear that the judgement, decree, or order obtained by playing
fraud on a court, tribunal,or authority is nullity and non-est in the eye of law
and such judgement has to be treated as a nullity by every court.
23(xiv). As per plaint, the plaintiff's case is that the decree passed in Civil Suit
No. 43 of 1967 by the Ld. Civil Judge, Mathura is liable to be cancelled
because the same has been obtained by playing fraud and more so, Society Shri
Krishna Janmasthan Seva Sangh was not the owner of the property as the
property vested in the deity/Trust and therefore, said Society had no authority
under law to file the Suit and enter into compromise with Trust Masjid Idgah. In
substance, the relief prayed for is to cancel the decree on the ground that the
decree is obtained by playing fraud and so it is a nullity in law.
23(xv). It is noteworthy to mention that the determination of these facts are
possible only during the trial on the basis of the evidence adduced by both the
parties to the suit.
24.Findings on Question No.5 :
5- Whether the impugned order suffers from manifest error of law and the
Court below has failed to exercise the jurisdiction vested in it by law?
24 (i).Respondents 1 & 2 relied on T. Arivandandam Vs. T.V . Satyapal,
1977 AIR (SC) 2421 where it has been held that the Ld. Munsif must
remember that if on a meaningful - not formal - reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not disclosing a clear right
to sue, he should exercise his power under Order VII Rule 11 C.P.C. taking care
to see that the ground cause of action, nip it in the bud at the first hearing by
examining the party searchingly under Order 10 C.P.C.
24 (ii).In Sri Hanumandas Totala Vs. Hemant Vithal Kamat Civil Appeal
No. 4665/ 2021 Judgement Dated 9 August, 2021 , it has been held that the
trial court can exercise the power under Order 7 Rule 11 CPC at any stage of
the suit before registering the plaint or after issuing summons to the defendant
at any time before the conclusion of the trial.
24 (iii). It has also been argued that the Court, while exercising powers under
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Order 7 Rule 11 of the CPC, can not go into the allegations/pleadings raised by
the defendants; only the pleas raised in the suit alone can be taken into
consideration invoking the powers under Order 7 Rule 11 of the CPC.
24 (iv).On the other hand the Revisionists/Plaintiffs argued that in the plaint
every fact has been clearly mentioned and all those can be proved by leading
ocular and documentary evidence. The Ld. Court below was working in the
capacity of an In-charge Civil Judge, Senior Division. In-charge Civil Judge
can decide only urgent matters and it has no power to decide any case on
merits.
24 (v).As in Shaukathussain Mohammed Patel Vs. Khatunben
Mohmmedbhai Polara 2019 (10) SCC 226 it has been held that the entirety
of the averments in the plaint has to be taken into account.
24 (vi).In support of their argument, Revisionists relied on Mayar (H.K.) Ltd.
and Others Vs. Owners & Parties, Vessel M.V . Fortune Express and
Others. 2006(3) SCC 100 where it has been held that, the mere fact that in the
opinion of the judge, the plaintiff may not succeed cannot be a ground for
rejection of the plaint.
24 (vii). In Kamal and Others Vs. K.T. Eshwara Sa and others 2021 SCC
OnLine SC 565 it has been held that whether a plaint discloses a cause of
action or not is essentially a question of fact.
24 (viii). Ld. Counsel for revisionists/plaintiffs also submitted that under the
provisions of the CPC, plaintiff have the right to file documents on or before
the framing the issues or at any stage under the orders of the Court. There is a
provision under Order 26 Rule 10A of the CPC for making scientific
investigations. A court trying a civil suit at the time of deciding a suit can
visualise as to whether the plaintiffs had been able to prove their case or not,
but at the initial stage, no presumption can be drawn against the plaintiffs
regarding their capability to prove the case.
24 (ix). It is further submitted by Ld. Counsel for the Revisionists that The Ld.
Court below, in para 6 of the judgement has mentioned that a compromise has
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
been entered into between Trust Masjid Idgah and Shree Krishna Janamasthan
Trust, whereas the Plaintiffs have stated in the plaint that the compromise was
made between Shri Krishna Janmsthan Sewa Sangh and Trust Masjid Idgah and
Shri Krishna Janmasthan Trust, which was not party to the compromise and
had not filed the suit.
24 (x).Ld. Counsel for Revisionists/Plaintiffs argued that the court below failed
to appreciate the facts and pleas mentioned in the suit.
24 (xi).In light of the above contentions of Ld. Counsels, I perused Articles 25
and 26 of the Constitution and Order 7 Rule 11 of the CPC.
Article 25 : Right to Freedom of Religion :
Freedom of conscience and free profession, practice and propagation of
religion.- Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practise and propagate religion.
Article 26 : Freedom to manage religious affairs :-
Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right.
Order 7 Rule 11 of the CPC , prescribes the condition for rejecting the
plaint at the threshold in the following conditions.
(a) where it does not disclose a cause of actions;
(b) where the relief claimed is undervalued, and the plaintiff, on being required
by the Court to correct the valuation within a time to be fixed by the Court, fails
to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon
paper insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails to
do so;
(d) where the suit appears from the statement in the plaint to be barred by any
law;
(e) where it is not filed in duplicate;
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
(f) where the plaintiff fails to comply with the provisions of rule.
24 (xi). Provided that the time fixed by the court for correction of the valuation
or supplying of the requisite stamp papers shall not be extended unless the
court, for reasons to be recorded, is satisfied that the plaintiff was prevented by
any cause of an exceptional nature from correcting the valuation or supplying
the requisite stamp papers, as the case may be, within the time fixed by the
court and that refusal to extend such time would cause grave injustice to the
plaintiff.
24 (xii). In view of the proposition of law rendered by the Hon'ble Apex
Court in the above cited cases, it is clear that at the admission stage and in
exercising powers under Order VII Rule 11 of the CPC, Court can not
look into the merits of the case.
24 (xiii). The Hon'ble Supreme Court in Most Rev. P.M.A. Metropolitan &
Ors. vs. Moran Marthoma & Anr. 1995, Suppl (4) SCC 286. (Reliance paid
on paragraphs 28,29,33,36,38,43 and 44) has held that suit for declaration will
be maintainable.
24 (xiv). In Mayuram vs. CBI (2006) 5 SCC 752, the Hon’ble Supreme
Court has held that “To perpetuate an error is no heroism. To rectify it is the
compulsion of the judicial conscience”.
24 (xv). The Ld. Court below has erred in holding that plaintiffs have no 'Right
to sue' without going into the averments made in the plaint and the principles
laid down by the Hon’ble Apex Court in catena of decisions and also in the
famous Ayodhya case titled as M.Siddiq vs. Mahant Suresh Das & Ors.
2020(1) SCC 1 (reliance on paragraphs 443 to 458) . The Ld. Court below
has failed to take into consideration the scope of Section 9 of the CPC under
which the dispute relating to the right to religion is included. A suit can be filed
by the deity through the next friend/ worshipper for declaration of title and
possession, and he can represent an idol when a shebait or manager of the
temple is acting adversely to the interest of the deity.
24 (xvi). In Alka Gupta vs. Narendra Kumar Gupta, AIR 2011 S.C. 10
Civil Revision No. 02/2021
Bhagwan Shrikrishna Virajman etc. Vs.
U.P. Sunni Central Waqf Board etc.
Hon'ble Supreme Court has held that the civil suit is to be decided in
accordance with the law and provisions of the C.P.C. and not on the whims of
the Court.
24 (xvii). After going through the case laws adduced by both the parties, in the
opinion of this court, the plaint is to be read as a whole to find out, whether it
discloses a cause of action or not. In other words, the entirety of the averments
in the plaint has to be taken into account.
24 (xviii). In light of aforementioned discussion and in view of the facts and
proposition of law referred above, it is apparent that the impugned judgement is
based upon a wrong assumption of facts and non application of mind by the Ld.
Lower Court. This Court is of the view that The Ld. Lower Court has
committed illegality and manifest error in passing the impugned order.
24 (xix). Hence, the impugned order is liable to be set aside. Revision has
substance and is liable to be allowed.
Civil Revision No. 02/ 2021 is allowed.
The impugned order dated 30.9.2020 passed in Misc Case No. 176/
2020 is hereby set aside.
Ld. Trial court is directed to hear both the parties and to pass
appropriate order in light of the observation made by this Court in the instant
Revision.
Let record be sent to Ld. trial court for further proceedings/ disposal
according to law. Both the parties shall appear before Ld. trial court on
Date: 19.05.2022 (Rajeev Bharti)
District Judge,
Mathura.
Judgement signed, dated and its operative portion pronounced by me in
the open court today.
|
In a significant order, a Mathura court on Thursday ruled that the suit to remove the Mathura Shahi Idgah Masjid on the ground that it was built over Krishna Janmabhoomi land, is maintainable.
District Judge Rajeev Bharti overturned a civil court order dismissing the suit.
"Right to sue of the plaintiff will stand restored. Case will be restored at its original number," the Court ordered.
The order came in a revision plea filed by Hindu deities Bhagwan Shrikrishna Virajman and Asthan Shri Krishna Janmbhoomi, through next of friends Ranjana Agnihotri and others challenging the dismissal order.
The suit was moved to remove the Shahi Idgah Masjid on grounds that it was built over Krishna Janmabhoomi land.
The plaintiffs have, therefore, staked claimed to 13.37 acres of land on the ground that it was the birthplace of Lord Krishna.
A civil court had dismissed the suit on September 30, 2020 citing the bar on admitting the case under the Places of Worship (Special Provisions) Act, 1991.
However, this decision was appealed before the Mathura District Court.
The appellants asserted that as devotees of Lord Krishna, they have a right to move the suit in view of their fundamental religious rights under Article 25 of the Constitution of India.
The lower court had rejected the suit in limine on the ground that if suit is registered a large number of worshippers may come to the court. The appeal contended that a suit could not have been rejected on the ground that several others may also approach the court.
The court reserved its verdict in the appeal on May 5, 2022.
The appeal has been filed through Advocates Hari Shankar Jain, Vishnu Shankar Jain and Pankaj Kumar Verma.
#BREAKING [Krishna Janmabhoomi- Shahi Idgah Masjid case] Mathura District Court rules suit to remove Masjid is maintainablereport by @DebayonRoy #ShahiIdgah #Mathura https://t.co/nItmggJ4gf
|
ivil Appeal No. 4800 of 1989.
From the Judgment and Order dated 20.3.1987 of the Orissa High Court in Misc.
Appeal No. 453 of 1982.
Anil B. Divan and Vinoo Bhagat for the Appellant.
G.L. Sanghi and A.K. Panda for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Special leave granted.
In respect of a dispute relating to the work Lankagada Minor Irrigation Project (Balance Work) in Jagannathaprasad Block which 351 was entrusted to him, the appellant contractor, invoking clause 23 of the agreement and section 8 of the Arbitration Act requested the Chief Engineer, Rural Engineering Organi sation, Bhubaneswar, Orissa, to nominate an arbitrator.
It may be mentioned that before making this request for nomina tion of an arbitrator the appellant made a claim on 16.6.
1975 before the Executive Engineer, M.I. Division, Berham pur, Ganjam, claiming to be paid a sum of Rs.2,81,745.
He had also claimed interest on this at the rate of 18 per cent from the date of receiving of the claim book till payment.
The work entrusted to the appellant was to commence on 6.12.
1971 and to be completed within 18 months i.e. on or before 5.6.1973 and the total cost of the work was Rs.9.98,970.
One Shri D.C. Panda, Superintending Engineer, Central Range, was nominated as the sole arbitrator to decide the dispute and give the award.
This arbitrator having accepted the appoint ment entered on the reference and issued notices to both the parties directing them to file their claims.
The appellant filed a claim statement on 5.4.
1977 before the arbitrator.
In this claim statement he had made a detailed description of each of the items of the claim and the total of the 15 items claimed came to Rs. 3,87,796.
To this he added inter est at 18 per cent from the date which according to him each of the claims should have been settled making a total claim of interest to the tune of Rs.2,95,894.
He thus prayed for an award of Rs.6,83,690 and also prayed for further interest on Rs.3,87,796 from 6.4. 1977 till date of award and there after until payment at 18 per cent.
It may be mentioned that in this statement of claim made before the arbitrator some of the claims made before the Executive Engineer were omit ted, some were reduced whereas some new claims were intro duced and some other items of claim were enhanced.
The State of Orissa filed a written statement and the arbitration proceedings continued for some time but before the arbitra tor could make the award an application before the Subordi nate Judge, Bhubaneswar was filed under sections 8(2) and 12 of the Arbitration Act.
By an order dated 17.12.1979 the learned Subordinate Judge removed the arbitrator and ap pointed one Shri J. Pati, Chief Construction Engineer, Paradip Port as the sole arbitrator to decide the dispute between the parties.
However, since Shri J. Pati expressed his inability to arbitrate, by another order dated 16.4.1980 the court appointed Shri Banabasi Patnaik, Superintending Engineer, Sambalpur as the sole arbitrator in place of Shri J. Pati.
This arbitrator entered on the reference, got all the relevant records from the previous arbitrator continued the hearing on the 9th June and 9th July, 1980.
On the ground that the appellant has not included some of his claims "relating to this work" in the claim statement sub mitted to the previous arbitrator, he made a supplemental claim for a sum of 352 Rs.8,27,857 and prayed that in addition to the claim stated in the original claim statement a sum of Rs.8,27,857 be awarded in his favour with interest at 18 per cent per annum on Rs.8.27,857 from 14.10.
1973 till date of payment.
The State of Orissa not only disputed the claim made but also objected to the entertainment of an additional claim in their written statement dated August 13, 1981.
The arbitra tor, however, decided to entertain the supplemental claim and proceeded with the hearing of the dispute.
The supple ment claim consisted of 11 items.
As seen from the note papers, the arguments on supplemental claims 1 to 6 were heard on two different dates and the hearing was adjourned to 8.11.
On that day arguments in respect of rest of the supplemental claim items were heard and the hearing was closed.
On the same day the appellant contractor filed what he termed as one consolidated 'abstract ' of his two claim statements and the abstract showed a total claim of Rs.31,44,437 and he had further prayed in this that the total amount of Rs.31,44,437 may be allowed along with an interest at 18 per cent per annum on the said amount from 9.11.
198 1 till date of payment.
The arbitrator made an award on 7.12.
1981 allowing a lump sum of Rs.25,00,156 together with interest at 9 per cent after the expiry of 30 days from the date of making the award, till the date of payment or decree whichever is earlier.
The award was filed in court for making a decree and the Government filed an application to set aside the award on various grounds.
The trial court overruled the objections of the State and the award was made a decree of the court.
However, learned Judge disallowed the interest from the date of decree till reali sation.
On appeal by the State Government, the High Court came to the conclusion that award suffers from non applica tion of the mind amounting to legal misconduct.
In that view the award was set aside and the matter was remitted back to the Arbitration Tribunal constituted under section 41 A of the Arbitration Act as amended by Orissa Act 3 of 1983.
The contractor claimant has filed this appeal against this judgment of the High Court.
As is seen from the award though it refers to getting all the relevant record from the ex arbitrator there is no reference to the heating of the parties or consideration of the documents relating to the original claim made on 6.4. 1977.
In the order sheet it has been mentioned that both parties had agreed that they had nothing more to add except what had been already given in their respective claim and counter statement and what had been recorded in the deposi tions already made before the previous arbitrator.
The reference to depositions already made is incorrect as it is admitted by both the parties that no deposition was at all recorded before the previous arbitrator nor 353 there is any record of the previous arbitrator showing such oral evidence was recorded by him.
Neither of the parties adduced any oral evidence before the new arbitrator.
Though the arbitrator is not bound to disclose as to what interpre tation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him no matter whether he relies on them or discards them from consideration.
The arbitrator in his award ex facie does not mention that he has referred to or considered the documents placed before him in respect of the original claim.
The order sheet mentions about the hearing on different dates relating to the supplemental claim statement which was filed before him.
It is this argument in respect of the supplemen tal claim that has been mentioned in the award.
The other point to be noted.
is that the original claim together with the supplemental claim do not make total claim of Rs.31,44,437.
It is seen from the records that the arbi trator directed the claimant to submit a consolidated claim abstract which was submitted by him on 8.11.
1981 the date on which the hearing by the arbitrator was concluded.
There is clearly some discrepancy while consolidating both the claims.
In addition to the total of both the claims some other amounts, may be by way of extra interest or otherwise, have been included but the arbitrator seem to have not applied his mind.
Then again in the award it is stated that the total amount claimed by the claimantappellant inclusive of "damages, compensation and interest" is Rs.31,44,437.
Even the 'abstract ' filed before the arbitrator does not show any claim of "damages" or "compensation".
As may be seen from the facts set out above, before the appellant demanded the appointment of an arbitrator he had made a claim before the Executive Engineer for a sum of Rs.2.81,745.
This is an iternised claim.
This claim was made in the claim book kept by the Executive Engineer.
It may be that this claim did not cover the entire amount due.
We may point out that in the letter demanding the appointment of an arbitrator he had stated that during the execution of the work he had executed many extra items of work as per direc tions of the Department and also incurred heavy expenditure which were not covered in the agreement and that he had submitted "most of my claims in the claim book on 16.6.1965 but these have not yet been decided".
It may also be men tioned that in this letter itself he has stated that he has completed the work in all respects on 14.9.1973 and that though the final bill which should have been prepared within one month of the completion of the work has not yet been paid to him.
The claim made before the arbitrator originally as already stated was Rs.6,83,690 of which a sum 354 of Rs.3,87,796 represented the value of the work not paid and the remaining represented interest claimed.
The total agreed value of the work entrusted to the appellant was Rs.9,98,970.
In the counter affidavit filed by the State of Orissa in the special leave petition it is stated that a total of Rs.23,11,887 had been paid to the appellantcontrac tor by 20.11.
1976 which was with reference to the original work entrusted and the extra work done by the appellant.
Arejoinder was filed by the appellant to this counter affi davit but the fact of payment of Rs.23, 11,887 is admitted.
The supplemental claim itself was filed on 10.7.1980 and that amounted to Rs.8,27,857 over and above Rs.6,83,690 which he had claimed originally before the arbitrator.
Then again the 'abstract ' filed by him on 8.11.1981 showed a figure of Rs.31,44,437 as the claim.
We have already pointed out that the total of the claim made on 5.4.
1976 and the supplemental claim made on 10.7.
1980 itself will not make anyway that figure of Rs.31,44,437 and, therefore, some more claims have been included.
The foregoing facts do show that the award suffers from non application of the mind by the arbitrator.
This Court in State of Orissa vs Dandasi Sahu, ; to which one of us (Sabyasachi Mukharji, J.) was a party while noting that the amount award is quite high or that a large amount has been awarded does not by itself vitiate the award as such, observed that one has to judge whether the amount of the award was so disproportionately high to make it per se bad on the facts and circumstances of a particular case.
In this connection we have to keep in mind that we are concerned with a situation where the arbi trator need not give any reason and that even if he commits a mistake either in law or in fact in determining the matter referred to him, where such mistake does not appear on the face of the award, the same could not be assailed.
The arbitrator, in the case of a reference to him in pursuance of an arbitration agreement between the parties, being a person chosen by parties is constituted as the sole and final judge of all the questions and the parties bind them selves as a rule to accept the award as final and conclu sive.
The award could be interfered with only in limited circumstances as provided under sections 16 and 30 of the Arbitration Act.
In this situation we have to test the award with circumspection.
Even with all this limitations on the power of Court and probably because of these limitations, we have to hold that if the amount awarded was disproportion ately high having regard to the original claim made and the totality of the circumstances it would certainly be a case where the arbitrator could be said to have not applied his mind amounting to legal misconduct.
It may be seen that in this case in the 355 original claim made before the arbitrator the value of the work not paid was stated as Rs.3,87,796, The supplemental claim made before the arbitrator amounted to Rs.8,27,857.
Thus the total value of the work not paid, according to the appellant, was Rs. 12, 15,653.
As against this claim the arbitrator has awarded a lump sum of Rs.25,00,156.
It is true that the appellant has asked for payment of interest and including interest his claim was Rs.31,44,437.
In a recent judgment of this Court in State of Orissa vs Niranjan Swain, [1989] 4 SCC 269 it has been held that where a refer ence to arbitration was made prior to the commencement of the (which Act came into force on August 19, 198l) the arbitrator is not empowered to grant interest for the period upto the date of submission of the claim or the period during which the dispute was pending before the arbitrator.
It was further held that where the award granted a lump sum amount it shall deem to have included the inter est also if interest had been claimed before the arbitrator and the inclusion of such interest rendered that part of award invalid.
If we exclude the interest portion then there could be no doubt that award of Rs.25,00,156 suffers from the vice of giving disproportionately high amount.
The learned counsel for the appellant, however, contend ed that the invalid part relating to the grant of interest may be set aside and the award may be accepted so far as the claim for the value of the work done applying the formula adopted in State of Orissa vs Niranjan Swain, (supra).
The learned Judges who decided the case after holding that inclusion of the interest rendered the award invalid, pro ceeded to separate the invalid part from the rest stating that the total amount awarded is principal plus interest, the rate of interest and the period for which the interest was claimed before known, the principal could be determined easily, and on that basis the principal amount and the interest out of the total amount awarded was divided and the award was sustained relating to the principal.
We are unable to apply this principle in this case as the State had dis puted major part of the claim in their counter statements before the arbitrator and we have held that the award suf fers not merely on the ground that it included interest but also on the ground of non application of the mind.
We are also of the view that there was nothing wrong in the approach of the High Court and that this is not a fit case for interference under Article 136 of the Constitution.
We accordingly dismiss the appeal with costs.
P.S.S Appeal dismissed.
|
The appellant contractor claimed a sum of Rs.3,87,796 before the sole arbitrator on April 5, 1977 for the value of 15 items of works not paid.
To this he added interest to the tune of Rs.2, 95,894 at 18 per cent from the date which according to him each of the claims should have been set tled, making a total of Rs.6,83,690.
He also prayed for further interest at 18 per cent from April 6, 1977 till date of award and thereafter until payment.
The respondent State filed its written statement and the arbitration proceedings continued for some time.
But before the arbitrator could make an award, an application under sections 8(2) and 12 of the Arbitration Act was filed before Subordinate Judge who by his order removed the arbitrator and appointed another person as the sole arbitrator.
The new arbitrator entered on the reference, got all the records from the previous arbi trator and continued the hearing.
The appellant made a supplemental claim for a sum of Rs.8,27,857 and also prayed for interest on that amount at 18 per cent from October 14, 1973 till date of payment.
The respondent State objected to the entertainment of additional claim.
The arbitrator, however, proceeded with the hearing.
On November 8, 1981, the day the hearing was closed, the appellant contractor filed one consolidated 'abstract ' of his two claim state ments showing a total claim of Rs.31.44.437 and also prayed for interest at 18 per cent per annum from November 9, 1981 till the date of payment.
The arbitrator made an award on December 7, 1981 allow ing a lump sum of Rs.25,00,156 together with interest at 9 per cent after the expiry of 30 days from the date of making the award, till the date of payment or decree whichever was earlier.
The award was made a decree of the court.
The court, however, disallowed interest from the date of decree till realisation.
349 On appeal by the respondent State the High Court came to the conclusion that the award was vitiated by non applica tion of mind amounting to legal misconduct.
In that view, it set aside the award and remitted the matter back to the Arbitration Tribunal constituted under section 41A of the Arbi tration Act, as amended by Orissa Act 3 of 1983.
Dismissing the appeal, the Court, HELD: 1.1 Though the arbitrator is not bound to disclose as to what interpretation he has made and what inference he has derived from the documentary evidence, he is bound to refer in the award that he had considered all the documents placed before him, no matter whether he relies on them or discards them from consideration.
[353A] 1.2 In the instant case, the arbitrator in his award ex facie did not mention that he had referred to or consid ered the documents placed before him in respect of the original claim.
The order sheet mentions about the nearing on different dates relating to tile supplemental claim statement which was filed before him.
It was this argument in respect of the supplemental claim that has been mentioned in the award.
[353B] 2.1 The arbitrator in case of a reference to him in pursuance of an arbitration agreement between the parties, being a person chosen by parties is constituted as the sole and final judge of all the questions and the parties bind themselves as a rule to accept the award as final and con clusive.
Even in a case where the arbitrator does not give any reason or he commits a mistake either in law or in fact in determining the matter referred to him and such a mistake does not appear on the face of the award, the same cannot be assailed.
It could be interfered with only in limited cir cumstances as provided under sections 16 and 30 of the Act.
The court has, therefore, to test the award with circumspection.
1354F, E, G] 2. 2 All the same, if the amount awarded is dispropor tionately high having regard to the original claim made and the totality of the circumstances, it would certainly be a case where the arbitrator could be said to have not applied his mind amounting to legal misconduct.
[354G H] State of Orissa vs Dandasi Sahu, ; , referred to.
In the instant case, in the original claim made before the arbitrator the value of the work not paid was stated as Rs.3,87,796.
The supplemental claim made before the arbitrator amounted to 350 Rs.8,27,857.
Thus, the total value of work not paid, accord ing to the appellant, was Rs.12,15,653.
As against this claim, the arbitrator had awarded a lump sum of Rs.25,00,156.
No doubt, the appellant had asked for payment of interest and including interest his claim was Rs.31,44,437.
[354H; 355A] 2.3 Where a reference to arbitration was made prior to the commencement of the which came into force on August 19, 1981 the arbitrator is not empowered to grant interest for the period upto the date of submission of the claim or the period during which the dispute was pending before the arbitrator, and where the award granted a lump sum amount it shall deem to have included the interest also if interest had been claimed before the arbitrator and the inclusion of such interest would render that part of award invalid.
[355B C] In the instant case, if the interest portion is exclud ed, then it becomes evident that award of Rs.25.00,156 suffers from the vice of giving disproportionately high amount.
[355C D] 2.4 Since the award suffers not merely on the ground that it included interest but also on the ground of non application of the mind the question of setting aside only the invalid part relating to the grant of interest does not arise.
[355F G] State of Orissa vs Niranjan Swain, [1989] 4 SCC 269, distinguished.
|
The State of Maharashtra ...Appellant
vs.
Kuldeep Subhash Pawar
R/o. Bambawade, Tal.: Tasgaon
District Sangli ...Respondent
Mr. N. B. Patil – APP for the Appellant-State
Mr. Aashish Satpute – Appointed as amicus curiae for the
Respondent
1.Heard learned APP Shri Patil for the Appellant-State and
learned Advocate Shri Satpute appointed by way of Legal Aid to
represent the Respondent.
2.Respondent is acquitted by the Court of JMFC, Tasgaon
on 24/08/2011 in S.C.C. No. 274 of 2009. He was charged for being
responsible of the death of the bicycle driver and one bullock. The
Respondent is driver of Tata Sumo jeep bearing no.
MH-10-AG/3440. The incident took place on 01/11/2009 at an early
hour of the day i.e. 8.30 a.m. on a public road. The spot is situated
on a road going from Manerajuri to Kumtha village in the village
Seema 1/5
Uplavi Taluka – Tasgaon. The first informant was driving his bullock
cart. Whereas one Balaso Krushna Mane, resident of village Uplavi
was driving bicycle. The Tata sumo driver dashed to the bullock cart
and also to the bicycle. The intimation was given to Tasgaon Police
Station. Initially investigation was carried out by P .W . No. 5 -ASI
Mahavir Bapu Chougale. He found the negligence of the Respondent
– accused and that is why F .I.R. is registered on 01/11/2009 for the
offence punishable under Sections 279, 337, 338, 304-A of the
Indian Penal Code and under Section 134 of the Motor Vehicles Act.
3.During trial five witnesses were examined. P .W . No. 1-
Vasant Desai, who is owner of the bullock cart. Whereas P .W . No. 2-
Jotiram Patil was passerby and eye witness. P .W . No. 3- Subhash
Chavan is a Police Patil who visited the spot after getting information
about the accident. P .W . No. 4- Balasaheb Patil is spot panch and
Panch No. 5- Mahavir Chougule is investigating officer.
4.With the assistance of both the sides, I have gone
through the evidence. It is important to note that the P .W . No. 1 and
P .W . 2 while giving evidence had given exact opposite direction of the
bullock cart. That is to say whether the bullock cart was going from
Southern to Northern direction or Northern to Southern direction. As
per the P .W . No. 1, he was going from Northern to Southern
Seema 2/5
direction. Whereas as per P .W . No. 2, the bullock cart was going from
Southern to Northern direction.
5.During cross-examination of the P .W . No. 2, he has
admitted that he has not stated before the Police that he had seen
the incident from the distance of 50 feet. He was resident of the
same village which bullock cart owner P .W . No. 1 resides. Rather
than this version of the P .W . No. 2, we have to consider the version
given by the bullock cart driver P .W . No. 1.
6.The question does not ends there. It is important to
consider in what direction the Tata sumo driver was driving his jeep.
According to the P .W . No. 1 Tata sumo came from northern side and
it came from Sangli side. There is also confusion about location of
the Sangli. It is important to consider the situation at the spot. As per
the spot panchnama, the bullock cart was lying on a Southern side
and facing Eastern side. It is probable that this location is correct
because bullock cart driver says that he was going from Northern to
Southern side. About location of the bullock cart also P .W . No. 4 –
panch witness has said differently. According to him, the bullock cart
was found towards northern side of the road. It means just opposite
of road described in the spot panchnama. P .W . No. 2 had given
certain description of the direction. Village Sangli is towards
Seema 3/5
western side whereas Uplavi village wherein the bullock cart was
moving was on southern side. If the Tata sumo driver is coming from
Sangli side, it is on the Western side. Whereas P .W . No. 1 has said
that he was coming from the northern side.
7.With the assistance of both the sides, I am trying to
understand the direction as per documentary evidence and the oral
evidence. We have tried to understand it from various angles but we
could not arrived at a particular conclusion what are the directions.
8.It is really strange state of affairs, when such matters are
conducted neither Investigating Officer has prepared a map/rough
sketch, nor trial court has taken pains in recording directions
correctly in the evidence. If there is some confusion, the trial Court
could have clarified it from the witnesses by putting questions which
is permissible by law.
9.It has also come on record that there are tea stalls
situated around the spot and learned Advocate Shri Satpute tried to
submit that statements of such persons were not recorded. Police
Patil is not the eye witness to the incident as evidence is only
relevant to what he has seen after the incident. P .W . No. 2 has given
direction contrary to what has been given by P .W . No. 1. It is difficult
to believe him.
Seema 4/5
10.So we do not find any evidence to corroborate the
version given by the P .W . No. 1. No doubt he said that Tata sumo
came speedily. It has to be appreciated on the basis of other available
materials. Act of the driving is punishable only when it is rash and
negligence. Rashness implies the speed which is unwarranted.
Whereas act of the negligence involves not taking proper care and
attention while driving.
11.It is true that the consequence of the accident are the
death of the one bullock and the bicycle driver. For want of evidence,
the trial court could not come to the conclusion about rash and
negligent driving by the Respondent. Even this Court is unable to
come to that conclusion for the above reasons.
12.So this Court has no alternative but to confirm the
findings of the trial Court. Hence the finding cannot be interfered
with. Hence appeal is dismissed.
13.Office to pay necessary fees to the learned Advocate Shri
Satpute for the assistance given by him.
|
The Bombay High Court earlier this month observed that driving at high speed alone will not attract the offence of rash and negligent driving [State of Maharashtra v. Kuldeep Pawar]
Single-judge Justice SM Modak said that the offence of rash and negligent driving needs to satisfy two components - rashness and negligence.
Rash driving implies driving at high speed and the negligence component involves not taking proper care and attention while driving.
The act will be punishable only if the driving was both rash and negligent.
"Act of the driving is punishable only when it is rash and negligence (sic). Rashness implies the speed which is unwarranted. Whereas act of the negligence involves not taking proper care and attention while driving,” the Court observed.
The Court, therefore, upheld the acquittal of a man who was booked for causing the death of a cyclist and a bullock after the car he was driving had hit them.
The man was charged for offences under Sections 279 (rash and negligent driving), 337 (hurt due to rash and negligent act), 338 (grievous hurt due to rash and negligent act) and 304A (causing death by negligence) of the Indian Penal Code and Section 134 of the Motor Vehicles Act.
During the trial, five witnesses were examined, documentary evidence was produced. The prosecution case was that the car of the accused was being driven at a high speed.
The trial court, however, acquitted the accused in 2009 which was challenged by the State of Maharashtra before the Bombay High Court.
The High Court opined that speed alone cannot be a determinative factor to conclude that the driver was driving the vehicle in a rash and negligent manner.
“No doubt he said that Tata sumo came speedily. It has to be appreciated on the basis of other available materials,” the Court observed.
From the evidence submitted, the High Court also could not decipher the direction in which the car and the bullock cart were moving to determine how they crashed into each other.
“It is really strange state of affairs, when such matters are conducted neither Investigating Officer has prepared a map/rough sketch, nor trial court has taken pains in recording directions correctly in the evidence. If there is some confusion, the trial Court could have clarified it from the witnesses by putting questions which is permissible by law,” the Court observed.
It also said that there was no evidence to corroborate the statements of the bullock cart driver.
“It is true that the consequence of the accident are the death of the one bullock and the bicycle driver. For want of evidence, the trial court could not come to the conclusion about rash and negligent driving by the respondent. Even this Court is unable to come to that conclusion for the above reasons”, the Court held.
It, therefore, upheld the order of acquittal.
Additional public prosecutor NB Patil appeared for State. Advocate Ashish Satpute was appointed as amicus curiae for the accused.
|
Bombay Lawyers Association
a body registered under the
Societies Registration Act, 1860,
having its office at 4th Floor,
Onlooker Building,
Sir P.M. Road, Fort, Mumbai – 400001
Through its President Adv.Ahmad M. Abdi,
email : abdiandco@gmail.com
Tel No.9820073915 ….. Petitioner
Versus
1. Jagdeep Dhankar,
Vice President of India and
Ex-Officio Chairman of
Council of States, Office of
the Vice President of India,
Vice President Secretariate,
6, Maulana Azad Road,
New Delhi – 110011
2. Kiran Rijiju,
Law Minister, Government of India,
4th Floor, A-Wing, Shastri Bhawan,
New Delhi – 110001
3. Secretary General, Rajya Sabha,
Room No.29, Parliament House,
New Delhi – 110001
4. Union of India,
Through Cabinet Secretary,
Cabinet Secretariat, Rashtrapati Bhawan,
New Delhi - 110004
….. Respondents
Basavraj 1/7
Mr. Ahmad Abdi with Mehmood Abdi I/b. Eknath Dhokale and
Mohammad Abdi for the Petitioners
Mr. Anil C. Singh, Additional Solicitor General a/w. Mr. Aditya
Thakkar, Ms. Savita Ganoo, Mr. D. P. Singh, Ms. Smita Thakur, Mr.
Chaitnya Chavan and Mr. Pranav Thakur I/b. Mr. A. A. Ansari for the
Respondents
1.The present PIL is filed with the following reliefs:
“a.This Hon'ble Court may be please to declare that the
conduct of the Respondent No. 1 & 2 have disqualified
themselves for holding any constitutional posts of Vice
President and Minister of the Union Cabinet respectively by
expressing lack of faith in the Constitution of India and the law
established by their behaviour and utterances made in public.
b. This Hon'ble Court may be please to restrain the
Respondent No.1 from discharging his duty as Vice President
of India.
c.This Hon'ble Court may be please to restrain the
Respondent No.2 from discharging his duty as cabinet
Minister of Union of India.
2.The Petitioner claims to be a body registered under the
Societies Registration Act 1860 established by a group of Advocates
practicing at Bombay High Court with the primary purpose to
undertake activities to uphold rule of law, promote high values in
legal profession and to protect independence of judiciary.
Basavraj 2/7
3.Mr. Abdi, the learned Counsel for the Petitioner submits that
Respondent Nos.1 and 2 have disqualified themselves to hold the
constitutional post by showing lack of faith in the Constitution of
India by their conduct and utterances made in public and by
attacking its institutions including Hon’ble Supreme Court of India
and showing scant regard for the law laid down by the Hon’ble
Supreme Court. The conduct of Respondent Nos.1 and 2 appeared
to have shaken public faith in Hon’ble Supreme Court of India and
the Constitution. Respondent Nos.1 and 2 have affirmed oath that
they will bear true faith and allegiance to the Constitution of India.
However, their conduct has shown lack of faith in Constitution of
India. Respondent Nos.1 and 2 have launched frontal attack on the
institution of judiciary, particularly the Hon’ble Surpeme Court of
India in most derogatory language without any recourse which is
available under the constitutional scheme to change the status quo
as per the law laid down by the Hon’ble Supreme Court of India.
Respondent Nos.1 and 2 are attacking the collegium system as well
as basic structure in public platform. This kind of unbecoming
behaviour by Respondent Nos.1 and 2 who are holding
constitutional posts is lowering the majesty of the Hon’ble Supreme
Court of India in the eye of public at large. The learned Counsel
referred to various statements made by Respondent Nos.1 and 2.
Basavraj 3/7
4.The learned Counsel for the Petitioner submits that Article 51-
A of the Constitution of India lays down the fundamental duties. It
directs every citizen to abide by the Constitution and respect its
ideals and institutions, the National Flag and the National Anthem.
Respondent Nos.1 and 2 have failed to abide by their fundamental
duties and have not shown respect to the constitutional institution
i.e. Hon’ble Supreme Court of India. The learned Counsel submits
that Respondent Nos.1 and 2 are also guilty of committing contempt
of Court by lowering the authority of the Hon’ble Supreme Court. The
authorities who are responsible to take action against Respondent
Nos.1 and 2 have failed in their duty, as such, this Court, under
Article 226 of the Constitution of India may exercise its powers. The
learned Counsel relies upon the judgment of the Calcutta High Court
in the case of Babul Supriyo Vs. State of West bengal & Anr.1 and
submits that it has been held by the Calcutta High Court that it is
expected from a representative of the people that he must be
courteous in his behaviour, dignified in his manners and cautious on
the words spoken by him. The learned Counsel also relies upon the
judgment of the Supreme Court in the case of A.I.I.M.S. Students
Union Vs. A.I.I.M.S. & Ors .2 to submit that the fundamental duties,
though not enforceable by a writ of Court, yet provide valuable guide
1 dated on 14th October 2020
2 Appeal (Civil) No.7366 of 1996
Basavraj 4/7
and aid to interpretation of constitutional and legal issues.
5.Mr. Anil Singh, the learned Additional Solicitor General
submits that the present PIL is filed for publicity purpose. It is false
and frivolous. Respondent Nos.1 and 2 have complete faith in the
Constitution. The Petitioner has annexed the statement of
Respondent No.2 wherein it is said that the Central Government,
under the Prime Minister has never undermined the authority of the
judiciary and its independence will always remain untouched and
promoted. Respondent No.1 has also said that he has highest
respect for the judiciary and committed to the Constitution. The
Vice President cannot be removed by orders under Article 226 of the
Constitution. The learned ASG relies upon the judgment of the apex
court in the case of Dattaraj Nathuji Thaware Vs. State of
Maharasthra & Ors.3 and submits that the PILs are to be admitted
with great care. The PILs cannot be for redressal, publicity oriented
or political disputes.
6.We have considered the submissions.
7.Juridically, the expression “Public Interest Litigation” means a
legal action initiated in a Court of Law for the enforcement of public
interest. The PIL is a power given to the public by the Courts
Basavraj 5/7
through judicial activism. It is a litigation filed in the Court of law for
protection of public interest. The PIL can be used for redressal of a
genuine public wrong or public injury and it cannot be publicity-
oriented. The parameters of PIL have been indicated by the apex
court in catena of judgments.
8.In the present matter, the Petitioner claims to be established
by a group of Advocates practicing at Bombay High Court with the
primary object of undertaking activities to uphold rule of law,
promote high values in legal profession and to protect independence
of judiciary. The Petitioner seeks disqualification of Respondent
Nos.1 and 2 holding constitutional post on the ground that their
utterances have shaken the public faith in the Hon’ble Supreme
Court of India and the Constitution.
9.The credibility of the Hon’ble Supreme Court of India is sky-
high. It cannot be eroded or impinged by the statements of
individuals. The Constitution of India is supreme and sacrosanct.
Every citizen of India is bound by the Constitution and is expected to
abide by the constitutional values. The constitutional institutions
are to be respected by all, including constitutional authorities and
persons holding constitutional posts.
10.The statements made by Respondent Nos.1 and 2 are
Basavraj 6/7
annexed with the petition. The learned Additional Solicitor General
has referred to some of the statements made by Respondent Nos.1
and 2, wherein it has been said that the Government has never
undermined the authority of the judiciary and its independence will
always remain untouched and promoted and they respect the ideals
of the Constitution. Respondent No.1 has also made a statement that
he has highest respect for the judiciary and is committed to the
Constitution of India. The constitutional authorities cannot be
removed in the manner as suggested by the Petitioner. Fair criticism
of the judgment is permissible. It is no doubt, fundamental duty of
every citizen to abide by the Constitution. Majesty of law has to be
respected.
11.Considering the totality of the factual matrix, we do not find it
a fit case to invoke our writ jurisdiction under Article 226 of the
Constitution of India in entertaining the PIL.
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The Bombay High Court on Thursday dismissed a public interest litigation (PIL) petition seeking action against Vice President Jagdeep Dhankhar and Union Law Minister Kiren Rijiju for their alleged public statements against the Collegium, judiciary and the Supreme Court. [Bombay Lawyers Association vs Jagdeep Dhankhar and Ors.]
A division bench of Acting Chief Justice SV Gangapurwala and Justice Sandeep Marne stated that it will pass a detailed order shortly.
During the course of hearing, the High Court asked the petitioner's counsel Ahmed Abdi under which provision a Vice President can be disqualified by a court of law.
"There are steps (that can be) taken in Parliament," Abdi said.
"What provisions? What are the steps," the bench persisted.
"There has been violation of oath. Others may follow them. It is not that this is happening in darkness, it is happening in open sunlight," Abdi responded.
The bench was, however, not satisfied and rejected the plea.
The PIL by Bombay Lawyers Association, highlighted the several incidents where Dhankhar and Rijiju allegedly “attacked the Constitution with complete impunity”.
It termed the incidents as “frontal attack” launched on the judiciary in “most insulting and derogatory language” without using any recourse available under the Constitution.
It took exception to the conduct of the two executive officials, claiming the same lowered the prestige of the Supreme Court in public.
“The Vice President and the Law Minister are attacking the collegium system as well as the doctrine of basic structure openly in a public platform. This kind of unbecoming behaviour by respondents who are holding constitutional posts is lowering the majesty of the Supreme Court in the eyes of the public at large,” the petition emphasized.
The petition filed through Advocate Eknath Dhokale claimed that the two officers have disqualified themselves for holding any constitutional posts by expressing their lack of faith in the Constitution.
It, therefore, requested the Court to pass orders restraining Dhankhar from discharging his duties as Vice President, and Rijiju from discharging duties as cabinet minister for Central government.
Abdi submitted that while verbal debates are welcome, doing the same on public forums would affect confidence of public in the institutions.
"We are not against debate verbal, but whether it should be held in parliament or on streets. When it happens on streets, it is flooring the constitution and affecting the faith of citizen in constitution," Abdi submitted.
Constitutional functionaries have to be circumspect about their conduct, he underlined.
"Constitutional authorities have to mind their conduct, is this the way? This is affecting public at large and it will lead to gradual anarchy. Constitutional posts speaking like this," Abdi said.
Additional Solicitor General (ASG) Anil Singh, appearing for the Central government, submitted that the PIL was a frivolous one filed only for publicity.
"This is a grossly frivolous pil. This is gross waste of court’s time. This is only to gain publicity, because even before it was heard, it was reported widely in media," the ASG said.
He further said that the prayers raised in the petition cannot be allowed.
"See the prayer, and how can such prayer be granted by the court? Hence I am saying this PIL is frivilous and should not only be dismissed, but even cost should be imposed," the ASG said.
The removal of Vice President and minister can be only as per Constitutional provisions, he emphasised.
"There are provisions in Constitution which speak about the removal of Vice President and Cabinet Minister. This is not public interest litigation, this is publicity stunt. You cannot just file 2 pages PIL, without any research or data to back your petition," the ASG contended.
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Date of decision : 18th November , 2020
Through : Mr. Arun Batta, Ms. Neha Kumari
and Mr. Abdul Vahid, Advocates
along with appellant in person .
Versus
Through : Mr. Arvind K. Nigam, Senior
Advocate with Mr. Parminder
Singh, Advocate for R-1/SCBA .
Mr. Preet Pal Singh, Advocate for
1. This appeal has been filed by the plaintiff before the l earned
Single Judge and directed against the order dated 6th October, 2020
dismissing the application under Order XXXIX Rules 1 & 2 CPC
filed by him in his suit seeking declaration and injunction.
2. The facts as are relevant for the disposal of the appeal may be
stated. The respondent no.1/Supreme Court Bar Association
(SCBA ) is a Society duly registered under the Societies Registration
Act 1860, governed by its Regulations and Bye -laws. It has an
Executive Committee comprising of a President, Secretary,
Treasurer and other office -bearers and members who are all elected
by the lawyers who are practicing in the Supreme Court of India and
are its members. The appellant was elected to the post of Secretary
in the elections held in December , 2019.
3. It is the case of the appellant that the President Sh. Dushyant
Dave conducted the a ffairs of the respondent no.1/SCBA in a
manner that was found unsatisfactory by the members and 400 of
them wrote to the appellant as Secretary, on 19th March , 2020 asking
him to requisition a Special GBM. The appellant informed the
Executive Committee of the requisition on 21st March , 2020 on the
WhatsApp Group. He then took steps to call such an emergent GBM
on 6th May, 2020 based on the requisition of the 400 members.
However, on 8th May, 2020, the President convened a meeting of the
Executive Committee in which two Resolutions were passed against
the appellant suspending him from the post of Secretary of the
respondent no.1/SCBA and authorizing the Joint Secretary to
discharge the functions of the Secretary. Further a Committee of
three retired Judges wa s also constituted by the President to look into
all issues concerning the appellant.
4. These Resolutions were impugned by the appellant by filing
the suit seeking :
a) a declaration to the effect that the Resolution
dated 8th May, 2020 passed by the Executive Committee
of the respondent no.1/SBCA whereby he was suspended
was void ab initio and quash the same;
b) a permanent injunction restraining the
respondent no.1/SBCA and its employees etc from
interfering in his functioning an d performance of duties as
its Secretary;
c) a declaration that the three member s
Committee was illegally constituted;
d) directions for the full implementation of the
Resolution of the respondent no.2/BCI dated 10th May,
2020 by the respondent no.1/SBCA in letter and spirit.
By way of the application under Order XXXIX Rule s 1& 2
CPC, the appellant sought interim stay of the operation of the
Resolution dated 8th May, 2020.
5. After considering the submissions of all the parti es, the
learned Single Judge declined to grant such interim injunction
holding inter alia that as the appellant had not made out a prima facie
case, as he had relied on Rule 35 of the Supreme Court Bar
Association Rules, whereas the case fell under Rule 14.
Accordingly , the application was dismissed, leading to the filing of
the present appeal.
6. We have heard the appellant in person, Sh. Preet Pal Singh ,
Advocate for the respondent no.2/BCI and Sh. Arvind K. Nigam
Senior Advocate fo r the respondent no.1/SCBA. Though , all
submissions made before the l earned Single Judge were agitated
before us by both sides, since this is an appeal, the appellant was also
required to show how the conclusions drawn in the impugned orders
were incorrect. The appellant has not pointed out to the fallacies in
the impugned order.
7. It would be useful to reproduce Rule 14 and Rule 35 of the
SCBA Rules for ready reference hereinbelow:
PRESIDENT (1): The President of the Association
and in his absence the Vice-President shall preside at
all meetings of the Association and of the Executive
Committee or other committees. In the absence of the
President or the Vice -President the members present
shall elect one of them to preside over a meeting. (2)
If any ques tion arises with respect to any matter not
provided for in the rules or in the bye -laws made by
the Executive Committee, such question shall, subject
to the provisions of these rules, be decided by the
President whose decision shall be binding unless the
General Body of the members in a subsequent meeting
otherwise decides. ”
Regarding Members: (i ) On the receipt of a written
complaint from any person as to unprofessional or
improper conduct on the part of any Member, the
Secretary shall place it before the President, and if the
President of opinion that it merits consideration, the
Secretary shall call a meeting of the Committee as
expeditiously as possible.
(ii) The Committee or the Sub -Committee constituted
by it generally for the purpose of this rule or especially
for any particular case will hold an inquiry into the
complaint. If on considerat ion of its own findings or of
the Report of Sub -Committee, the Committee is
satisfied that there is a prima facie case against the
Member complained against it shall direct that the
Complaint together with the report of the Committee
or Sub -Committee be pl aced before a General
Meeting of the Association. Provided always that
where a prima facie case is made out against the
Member complained the Committee or Sub-
Committee shall give such Member reasonable
opportunity of being heard in person.
(iii) The Association may by a resolution passed at
such meeting expel or suspend for a specific period the
Member complained against, if in its opinion he is
guilty of dishonorable conduct. Such Resolution shall
be voted up by ballot and shall be consider ed to be
passed if supported by not less than 2/3rd of the
Members present and voting at such meeting.
Provided always that before such resolution is passed
the member concerned shall be given reasonable
opportunity of being heard in person before the ball ot
by the General Meeting.
(iv) A copy of resolution shall, if the General Meeting
so decides be forwarded to the Secretary of the All
India Bar Council or the Bar Council where such
Member may be enrolled. ”
8. It is the contention of the appellant that Rule 35 alone deals
with suspension of membership and recourse to Rule 14 by the
President was misplaced as only the General Body can suspend
membership and not just one office bearer. Since the President had
claimed immunity from suspension, having been elect ed to that post,
by the same logic the appellant could not be removed from the office
to which he had been elected. It was submitted by the appellant that
under Rule 22, the Secretary alone was empowered to call a Special
General Body Meeting and the Agend a No.1 questioning the
appellant ’s authority in this regard was itself faulty . Moreover, the
meeting of the Executive Committee was conducted by interested
persons as the complainants, Vice President and President (though
neither of them voted) had become prosecutor, witnesses and judge.
Thus, the entire proceedings were conducted against all principles
of natural justice and vitia ted by vindictiveness, particularly when
the appellant had adjourned the requisitioned meeting called by him
sine die . Ultimately, according to the appellant, the question was
whether his democratic rights could be taken away in such a manner.
9. The l earned counsel for the respondent no.2/BCI supported
the appellant and also contended that the BCI had the power to pass
a Resolution as it had on 10th May, 2 020 on the request of the
appellant, directing the respondent no.1/SBCA to convene a GBM
to resolve all issues. However, we are not concerned about the
powers of the respondent no.2/BCI to intervene in the internal
matters of a Bar Association as the inter im relief claimed by the
appellant in his application under Order XXXIX Rules 1&2 was
limited to a stay on the Resolution of the respondent no.1/SBCA
dated 8th May, 2020, and so do not intend to touch upon this
question.
10. Sh. Nigam Senior Counsel has submit ted that the conclusions
drawn by the l earned Single Judge in the impugned orders do not
call for any interference as the President under Rule 14 of the SCBA
Rules was the repository of all residuary powers and could take a
decision on any matter not provi ded under the Rules such as the
suspension of an elected member of the Executive Committee and
such powers had been exercised on previous occasions as well.
Hence the appeal be dismissed.
11. There is no gainsaying that the Rules and Regulations have
been fram ed by the respondent no.1/SBCA being a Society
registered under the Societies Registration Act , 1860 which are
binding on all members. Among other objectives and aims, Clause
3 of the Memorandum of Association lists the following too:
“(iii) To promote and protect the privileges,
interest and prestige of the Association and to promote
union and coope ration among the advocates practicing
in the court and other associations and advocates;”
12. The present litigation and the stated reasons for its initiation
seem to be completely contrary to these stated objectives of the
respondent no.1/SBCA of which the ap pellant was, until his
suspension, the elected Secretary. Before proceeding to hear the
appeal on merits, we did suggest that the matter be amicably
resolved but did not succeed and we record our disappointment.
Posts in the Executive Committee of the resp ondent no.1/SBCA are
filled by election. In other words, ordinary members repose faith in
their representatives elected to the various offices/posts and expect
them to discharge their duties in their best interests and their welfare.
Though being an office -bearer of a prestigious association such as
the respondent no.1/SBCA is in itself a privilege, the power that
attaches to it can be an equally powerful attraction for members to
contest an election. But that power o r position cannot be equated to
personal power and position as seems to be the norm across all Bar
Associations. Intolerance of dissenting opinions, coercive and
divisive action to hold on to power is becoming too commonplace
for comfort. The clear springs of the Bar alone can feed the river that
is the judiciary. Anything that sullies the source will defile in
entirety. We sincerely hope that all concerned rise to the challenge
and the slide arrested.
13. The vesting o f the residual powers in the President of the
respondent no.1/SBCA only reflects that when the Rules were
framed, the word of the President, being a Senior and well respected
person, was expected to be sufficient to resolve issues decisively
which were not provided for explicitly in the Rules . Regrettably , it
is not so anymore . This is however, not to reflect on anyone, least of
all the appellant before us, for whom we have high regard and whose
contribution to legal practice cannot be belittled.
14. Now, as reiterated by the Supreme Court in SCBA & Ors. vs.
B.D. Kaushik , (2011) 13 SCC 774 in matters of internal
management of an association, the courts normally do not interfere,
leaving it open to them to frame particular Rules and Bye-Laws
governing eligibility for membership and providing for limitations
and restrictions on the exercise of any right by its membe rs. Once a
person becomes a member, he cannot claim individual rights except
those given to him by the Rules and Bye-Laws. Action taken in
accordance with such Rules and Bye-Laws cannot form ground for
grievance.
15. In the present case, the plea taken by the appellant appears to
be two fold, viz. adoption of the wrong procedure under Rule 14
instead of under Rule 35, in accordance with which the Secretary
and not the President could convene the meeting; and violation of
principles of natural justice. A reading of Rule 35 shows that, as
rightly pointed out by Sh. Nigam Senior Counsel and as held by the
learned Single Judge, it relates to suspension of the primary
membership of the respondent no.1/SBCA. Here the appellan t has
been suspended from that post of Secretary but his primary
membership has not been suspended. The issue is covered by Rule
14 and not Rule 35. The appellant had fully participated in the
meeting held on 8th May, 2020 and was also able to make his points.
Thereafter by majority votes , the Resolution s were passed. Further,
the decision was not taken only by the seven members who sought
the urgent meeting. Also , the complaints of the appellant were also
heard and the President decided to constitute a Committee of three
retired judges to resolve matters. Precedents cited by the learned
Senior Counsel are sufficient to establish the powers of the President
to conve ne such meetings and suspend the Secretary.
16. In short, the l earned Single Judge rightly concluded that the
appellant has disclosed no prima facie case in his favour. The affairs
of the respondent no.1/SBCA cannot be allowed to be stalled only
because of dif ferences between the appellant and the rest of the
office bearers. Therefore , the balance of convenience tilts in favour
of the respondent no.1/SBCA. Considering the fact that the term of
the present office bearers including that of the Secretary is coming
to a close on 12th December 2020, no irreparable harm is found to be
a consequence of a refusal of the injunction sought.
17. The appeal is accordingly dismissed.
|
The Delhi High Court today dismissed Ashok Arora's appeal against order refusing to stay his removal from the post of Secretary, Supreme Court Bar Association (SCBA). (Ashok Arora vs SCBA)
A Division Bench of Justice Rajiv Sahai Endlaw and Asha Menon said,
The Court was dealing with Arora's appeal against the order passed by a Single Judge Bench of Justice Mukta Gupta in his suit against his ouster.
The Single Judge had opined that Arora had failed to make out any prima facie case in his favour for grant of injunction against his removal.
In its 10-page order, the Division Bench stated that Arora had not pointed out the fallacies in the impugned order.
Like the Single Judge, the Court stated that Arora's reliance on Rule 35 of SCBA Rules could not be sustained.
The Court further remarked that the present litigation and the stated reasons for its initiation seemed to be completely contrary to objectives of SBCA.
It said,
The Court nonetheless clarifed that it was not a reflection on anyone, least of all Arora.
Ruling that action taken in accordance with Rules and Bye-Laws of an association could not form ground for grievance, the Court concluded that the Single Judge Bench had formed the correct prima facie view.
"The affairs of the respondent no.1/SBCA cannot be allowed to be stalled only because of differences between the appellant and the rest of the office bearers. Therefore, the balance of convenience tilts in favour of the respondent no.1/SBCA.", the Court said.
Following Arora's call for an Emergent General Meeting to remove Senior Advocate Dushyant Dave from the post of SCBA President, the Executive Council of SCBA had suspended Arora from the position of the Secretary with immediate effect.
Before the Single Judge as well as the Division Bench, Arora argued that his ouster was void ab initio, as it was in violation of Rule 35 of the SCBA Rules.
As per Arora, the power to suspend or expel a member rested with the General House of SCBA and same had to be decided after an inquiry into a complaint of misconduct is carried out by a committee.
SCBA, on the other hand, had contended that Arora's reliance on Rule 35 was misplaced as it only dealt with the issue of removal of a member.
Arora appeared in person along with Advocates Arun Batta, Neha Kumari, Abdul Vahid.
Senior Advocate Arvind K. Nigam with Advocate Parminder Singh appeared for SCBA. Advocate Preet Pal Singh appeared for BCI.
Read the Order:
|
Writ Petition (PIL) No. 58 of 2020
Writ Petition (PIL) No. 97 of 2019
Writ Petition (PIL) No. 50 of 2020
Writ Petition (PIL) No. 51 of 2020
Writ Petition (PIL) No. 67 of 2020
Writ Petition (PIL) No. 70 of 2020
Writ Petition (PIL) No. 61 of 2021
Mr. Shiv Bhatt, the learned counsel for the petitioner in WPPIL
No. 58 of 2020 and WPPIL No. 77 of 2021.
Mr. Piyush Garg, the learned counsel for the petitioner in WPPL
No.51 of 2020.
Mr. Dushyant Mainali, the learned counsel for the petitioner in
WPPIL No. 50 of 2020.
Mr. Abhijay Negi, the learned counsel for the petitioner in WPPIL
No.97 of 2019.
Mr. S.N. Babulkar, the learned Advocate General assisted by Mr.
C.S. Rawat, the learned Chief Standing Counsel for the State of
Uttarakhand.
Mr. Rakesh Thapliyal, the learned Assistant Solicitor General for
the Union of India.
COMMON ORDER :(per Hon’ble The Chief Justice Sri Raghvendra Singh Chauhan)
On 23.06.2021, this Court was informed that
the Government had issued a Government Order dated
20.06.2021, wherein the Government thought it proper
to re-open the Char Dham Yatra in a phased manner.
According to the said G.O., in the first phase, the
residents belonging to the Chamoli district would be
permitted to visit the Badrinath temple; the residents
of Rudraprayag district would be permitted to visit the
Kedarnath temple; the residents of Uttarakhashi district
would be permitted to visit the temples of Gangotri and
Yamunotri. It was also proposed that in the second
phase, the residents of other ten districts of
Uttarakhand would be permitted to visit the Char
Dhams.
2. Considering the fact that the country was still
reeling under the impact of COVID-19 pandemic,
considering the pleas raised by the learned counsel for
the petitioners, in different PILs’ filed before this Court,
this Court had requested the State to review its
decision with regard to re-opening of the Char Dham
Yatra even in a phased manner. This Court had also
directed Mr. Om Prakash, the learned Chief Secretary,
and Dr. Ashish Chauhan, the learned Additional
Secretary, Culture and Religious Affairs Department, to
inform this Court with regard any decision taken by the
Cabinet on the said subject on the next date.
3. Consequently, Mr. Om Prakash, the learned
Chief Secretary, Mr. Dilip Jawalkar, the learned
Secretary, Tourism, Dr. Ashish Chauhan, the learned
Additional Secretary, Culture and Religious Affairs
Department, are present in the virtual court through
video conferencing.
4. Dr. Ashish Chauhan has submitted an
affidavit with regard to the decision taken by the
Cabinet on 25.06.2021, and with regard to the SOP
issued by the Government on 26.06.2021, and with
regard to other arrangements being made at the Char
Dham. The said affidavit shall be taken on record.
5. The issue before this Court is whether under
the present circumstances, and the circumstances
which are likely to occur in the near future, the Char
Dham Yatra should be re-opened or not? For, according
to the decision of the Cabinet dated 25.06.2021, the
Cabinet has decided to permit the opening of the Char
Dham Yatra from 01.07.2021, to the limited extent that
residents of the districts of Chamoli, Rudraprayag, and
Uttarakhand would be permitted to visit the temples
within their respective districts.
6. In order to understand the controversy
holistically, it is essential to consider the history of
COVID-19 pandemic, to see its development, to
consider the devastation it has caused, to examine the
emergence of new variants of the virus, the nature and
characteristics of these new variants, the scope and the
extent of the new variants, the consequences of these
variants on human health, and then to consider
whether the State of Uttarakhand is prepared to tackle
the possible emergence of the third wave of COVID-19
or not? For, the issue is not just limited to opening of
pilgrimage sites, but the issue is more importantly
about the human lives, about the people of the State,
and about the people of the nation. In fact, since the
world is a small planet, viruses tend to escape from one
country and affect the other nations. Therefore, the
issue before this Court is not a regional one, but a
global one. Therefore, this issue cannot be decided in a
myopic manner. It has to be determined with a catholic
vision.
7. In 1918, the Spanish Flu came to India in
three waves. After the Spanish Flu subsided and
disappeared from the world, mankind thought that it
was delivered and was saved from an apocalypse. From
1918 till December, 2019, we thought all of us were
safe and sound; we could lead our lives in a normal
manner. However, from December, 2019, the
International media informed the world that COVID-19
has struck Wuhan province in China. According to the
experts, the said virus was going to spread throughout
the world. Therefore, alarm bells were rung across the
five continents.
8. Even before we were ready to face the
pandemic, in March, 2020, considering the emergence
of COVID-19 pandemic, in the interest of the people at
large, the Central Government announced a national
lockdown. This was the first wave of COVID-19
pandemic to strike the country. The first wave was
caused by the Coronavirus, or by the Alpha variant. The
first wave peaked between August and September,
2020; it began its decline at the end of September,
2020. By December, 2020, we were assured that we
had beaten the COVID-19 pandemic. Slowly but surely,
the country started re-opening itself, State by State,
city by city.
9. However, the COVID-19 second wave caught
all of us unaware. For, new mutant namely, “the Delta
variant”, had emerged. While the first wave was caused
by variant, called ‘Alpha varient , by February and
March, 2021, the Delta variant had crept in. The second
wave had begun.
10. Needless to say, the second wave struck the
country like a tsunami . It not only killed about three
lakhs people in the country, but in its wake it has also
left devastated families, and orphaned children. It
reached its zenith in April and May, 2021. During that
period, neither the lifesaving medicines were available,
nor the oxygen tanks were available, nor sufficient
numbers of bed were available, nor sufficient numbers
of ambulances were available. The health care system
began to crumble. Consequently, people had to run
from pillar to post for seeking and begging only to be
saved from the second wave. It is common knowledge
that as people began to die, there were insufficient
spaces in our crematorium and burial grounds. People
could not perform a decent cremation, or decent burial
to our lost brethren. The satellite images of May, 2020,
and the International Media continued to show the
endless number of pyres which were burning, and the
pitiable condition of our people.
11. According to the experts, one of the great
contributory factors for the steep rise in the second
wave was the ill-decision to hold Kumbh Mela at
Haridwar between 01.04.2021 to 30.04.2021.
According to the media reports, about 57% of deaths in
Uttarakhand itself, which occurred in May, 2021, were
due to holding of the Kumbh Mela in April, 2021.The
pictures of Kumbh Mela not only embarrassed the
entire country, but also shocked the world community.
12. Suddenly our country was painted as a
renegade, and as an irresponsible member of
international community. Suddenly, flights coming from
India were stopped by other countries. Even today, we
are not free from the devastation caused by the second
wave, although fortunately the second wave is on the
decline.
13. The Scientists tell us that there is no way in
determining, or in forecasting as to how many waves
would continue to strike our shores. Already since April,
2021, Netherlands and France are facing the third wave
of COVID-19 pandemic. The United Kingdom has
already entered the third wave. Concerned with the
emergence of the third wave, on 25.06.2021, Australia
has declared a lockdown. Bangladesh has imposed a
lockdown today itself. Therefore, every country is trying
to protect itself from the possible assault of the third
wave.
14. According to Dr. Randeep Guleria, the
Director of the All India Institute of Medical Science,
New Delhi, the third wave of COVID-19 infection is
“inevitable”. According to him, due to the crowd in
public places, there shall be no escape from the third
wave. According to Professor K. Srinath Reddy, the
Director, Public Health Foundation of India (PHFI), India
will “definitely face the third wave of infection” .
According to Dr. S.K. Sarin, the Director of Institute of
Liver and Biliary Sciences, New Delhi, “variants can
breach the antibodies generated by the vaccine and the
vaccine currently being administered may not offer
sufficient protection against new mutant strains” .
Therefore, the scientific community, the experts, are
continuously warning our country to be aware of the
emergence of the third wave of COVID-19, which may
come knocking at any time. Although, the experts claim
that the third wave is likely to hit the country in the
second or third week of August, 2021, but there is no
such guarantee that it would not inflict the country
prior thereto.
15. In the recent months, a new variant of the
COVID-19 has been discovered, called the “ Delta plus
variant”. About a week back, on 23.06.2021, this Court
had noticed that the Central Government had
announced that the Delta plus variant has been
detected in Madhya Pradesh, Maharashtra and Kerala.
Therefore, the Central Government had directed the
State of Maharashtra to ensure containment zones in
two of its districts. Just in one week’s time, the delta
plus variant has been discovered in eleven states of the
country. Therefore, just in one week, the delta plus
variant has accelerated speedily from three states to
eleven states. This is a phenomenal increase of the
Delta Plus variant.
16. According to the experts, the delta plus
variant has four characteristics: firstly, it is immune to
the vaccine which have been administered to the
people at large. Therefore, even the vaccinated person
will not be protected from the delta plus variant .
Secondly, it directly and adversely affects the lungs. In
fact, according to many, the lungs tend to dissolve
within a period of three days. Thus, it not only leads to
respiratory problems, but also brings about a swift
death of the patient. The chances are that within three
days, the patient will be dead. Thirdly, in order to treat
the delta plus variant patient, and to stop the death of
the patient, a longer period of hospitalization is
necessary, than was necessary in the second wave
caused by the “ delta variant ”. Fourthly, the “ delta plus
variant” has a faster speed of transmission from one
person to another. Therefore, its spread is going to be
faster than the spread of “ delta variant ”, which took
about nine months to spread its wings. Hence, the
tentacles of “ delta plus variant ” will not only spread
faster, but would also spell the death of the patient at a
faster rate.
17. Keeping in mind the grim emergence of the
third wave, keeping in mind its rapid transmissible
speed, keeping in mind the strained health care system
available in the country, the Central Government is
repeatedly directing all the states to avoid the
gathering of crowds, and certain States have been
directed to re-establish containment zones. A few
states, in fact, have extended the lockdown period in
order to prevent the emergence of the third wave.
18. According to the newspaper report dated
27.06.2021, a woman, who had already undergone
complete vaccination in district Bikaner, in Rajasthan,
was discovered to be carrying the delta plus variant .
She was discovered to be asymptomatic. But as she
was discovered to be a carrier of delta plus variant , she
has been placed immediately under medical treatment
by the Government. This is a burning example that a
delta plus variant may breach the firewall of
inoculation, and adversely affect the human body.
19. The inoculation rate of Uttarakhand State is
certainly not a happy one. Out of population of 1.32
crores, by the end of May, 2021 only 35,36,840
persons have been inoculated. Out of these, while
21,72,760 have received the first doze, merely
6,82,040 have received both the dozes. Thus,
obviously, a majority of persons who have received the
vaccination are those who have received just the first
doze, and not the second one.
20. According to the experts, it will still take
eighteen months to vaccinate 70% of the population in
Uttarakhand. Thus, even if 100% population of
Uttarakhand were to be inoculated, even then there is
no guarantee that the people of Uttarakhand will be
protected from the invasion of delta plus variant .
21. Considering the data available from
Uttarkashi, Rudraprayag, and Chamoli districts, the
Uttarkashi district has a population of 3,76,298, out of
whom, so far, only 1,57,697 persons have been
inoculated. Out of this number, 1,17,529 have received
the first doze; merely 40,168 persons have received
both the dozes.
22. Similarly, in Rudraprayag district, having a
population of 2,76,205, only 1,18,975 have been
vaccinated. Out of these, while 1,01,081 persons have
received their first doze; merely 17,894 persons have
received both the dozes.
23. Likewise, district Chamoli has a population of
about 4,46,430 persons. Out of this population, only
1,65,141 persons have been inoculated. Out of this
figure, 1,33,256 persons have received the first doze;
merely 31,885 persons have received both the dozes.
Thus, obviously, even in these three specific districts,
where people will be permitted to visit the respective
shrines in their respective districts, not even 50% of
the population has been inoculated. In fact, the
majority of the population has been given only the first
doze. Thus, the majority of the people are still waiting
for the second doze to be administered. Hence, their
immunity system is not strong enough to fight with the
third wave of COVID-19 pandemic.
24. A bare perusal of the affidavit filed by Dr.
Ashish Chauhan, clearly reveals that by its decision
dated 25.06.2021, the Cabinet has decided to permit
the people living in Uttarkashi, Rudraprayag, and
Chamoli distrits to visit their respective shrines from
01.07.2021. Secondly, it has decided to review its
decision with regard to the second phase as mentioned
earlier, whereby the people of the entire State would be
permitted to visit the Char Dham from 11.07.2021.
Thirdly, considering the dangers which emanate from
the COVID-19 pandemic, the Cabinet has decided to
prohibit the “ Kawad Yatra” this year. The Kawad Yatra
is a pilgrimage undertaken by people who carry water
on their shoulders in order to pour the holy water on
the deity once they reach the temple. The Kawad Yatra
is a popular yatra in Uttarakhand which inspires
thousands of pilgrims to undertake their journey, on
foot, to reach the temples. But considering the crises
which can be brought about by the Kawad Yatra , the
Cabinet has decided to prohibit the same for this year.
25. Along with the affidavit, Dr. Ashish Chauhan
has also submitted the SOP dated 26.06.2021.
Although the SOP is a detailed one, but as admitted by
Mr. Om Prakash, the learned Chief Secretary, the SOP
is very similar to the SOPs that were issued by the
Government during the holding of the Kumbh Mela.
Therefore, even the SOP issued during the Kumbh Mela
was equally elaborate, equally detailed, and equally
reassuring that the precautions for containing COVID-
19 pandemic would be strictly followed by the pilgrims.
Repeatedly, before this Court assurances were given by
the learned Chief Secretary, by the learned Secretary,
Medical Health and Family Welfare, and by the learned
Mela Adhikari, that the SOPs shall be implemented in
“the strictest manner”. Yet, despite the best intentions
of the State Government, the Civil Administration of
Haridwar and Rishikesh had singularly failed to
implement the said SOPs. There are a large number of
images, readily available on the internet, which clearly
prove that a sizeable number of pilgrims neither wore
masks, nor maintained the social distance of six feet,
nor used the sanitizers, nor used the soaps to wash
their hands. In fact lakhs of people were permitted to
gather on the banks of the holy Ganges, and to take
their bath day in and day out, while the Kumbh Mela
lasted for a month. On the days of Shahi Snaan , the
crowd surged; the SOPs were observed more in breach,
than in adherence.
26. Even recently, on 20.06.2021, on the
occasion of Ganga Dusshera , a crowd of more than one
lakh was permitted to congregate at Har ki Pauri in
Haridwar, and to take the bath in the holy Ganges.
Even on the occasion of Ganga Dusshera , the crowd
failed to adhere to the SOP; the Civil Administration of
Haridwar equally failed to ensure that the SOP is
“strictly implemented”.
27. Recently, in Nainital district, the Government
has opened the gates of Neem Karoli Baba Temple
(Kainchi Dham). According to the local newspapers,
“thousands and lakhs of people” poured into the small
temple. Again the SOP was totally violated by the
pilgrims. Again the Civil Administration failed to carry
out its duties, and to ensure that the SOP would be
followed. In fact, no punitive action has been taken
against the violators. Therefore, we have three glaring
examples where the State Government has permitted
the people to congregate in a large number, and has
permitted them to flout the SOP, despite the repeated
assurances of the Government before this Court that
the SOP shall be followed and implemented “strictly”.
28. This is the fourth occasion that the State
Government is promising that the SOP dated
26.06.2021 would be implemented “strictly”. The SOP
Although the SOP lays down a large number of dos and
don’ts to be observed by the pilgrims, by the travel
tour operators, by the restaurants, and by the hotels,
but there is no indication as to who would ensure that
each and every condition prescribed by the SOP would
be followed in toto. For example, according to the SOP,
there shall be a ban on “gutka”, “pan” and “tobacco”.
However, there is no indication as to how, in a crowd of
300 to 600 persons, people would be prevented from
chewing “pan”, “gutka” or “tobacco”? Although, it is
claimed that the pilgrims will be asked to use the
sanitizers repeatedly, or to use the soaps repeatedly, it
is absolutely unclear as to who would ensure that the
pilgrims have, indeed, sanitized their hands?
29. The SOP further claims that there shall be
testing labs established at the Char Dham. But how
many such testing labs will be established? Or who
would carry out these tests, especially considering the
fact that there is a dearth of technical staff in the
State? And how soon the results of the tests would be
available? These issues are absolutely unclear.
Although the SOP claims that “those, who are working
at the accommodation provided to the pilgrims, would
be vaccinated”, it is unclear whether they would be
vaccinated with both the doses, or just with a single
dose? As mentioned hereinabove, more than 50% of
the residents of the three districts of Uttarkashi,
Chamoli and Rudraprayag are yet to be vaccinated by
the Government.
30. The SOP further claims that those affected by
COVID-19 will be kept in isolation wards. However, it is
unclear as to how many isolation wards have been
created in each of the specific Char Dhams?
Interestingly, according to the report submitted by the
District Magistrate of Gangotri and Yamunotri, although
it is claimed that a forty bedded additional COVID
Dedicated Unit would be established at CHC,
Chinyalisaur, it would not be established till
30.07.2021. Ironically, on the one hand, there is lack
of medical facilities throughout the State, as the health
care system in Uttarakhand is in deplorable condition,
ironically even sufficient facilities will not be created till
30.07.2021, yet the Cabinet has taken a decision to
permit the pilgrims to visit the shrines from
01.07.2021.
31. While dealing with the sufficiency of medical
infrastructure available in the State, on previous
occasion Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare, had frankly admitted, and
in the view of this Court rightly so, that although there
are eight ventilators available at Rudraprayag, the
district where the temple of Kedarnath exists, six of the
ventilators are dysfunctional. Although the District
Hospital at Rudraprayag does have six Oxygen
Concentrators, four are dysfunctional. Moreover, the
list of ambulances given in the affidavit filed by Dr.
Ashish Chauhan, clearly reveals that no ambulance is
being provided on the treks, which would be used by
the pilgrims. Even the Government Hospital at Tilwara
has a single ambulance; the Government Hospital at
Guptkashi has a single ambulance; one Hospital at
Phata has a single ambulance; the medical facility
available at Sonprayag also has a single ambulance;
similarly, at Gauri Kund, there is a single ambulance.
Further, at Tilwara Government Allopathic Hospital,
there are only two Oxygen Tanks, and two Oxygen
Concentrators. Again, at Phata there are only two
Oxygen Tanks, and two Oxygen Concentrators.
Similarly, at Sonprayag, there are two Oxygen Tanks
and two Oxygen Concentrators. Whether these Oxygen
Concentrators are functional, or not, is unclear?
Although, it is claimed that at Kedarnath there are
nineteen ambulances, it is unclear as to how many of
them are Advanced Life Saving Ambulances, and how
many are Basic Life Saving Ambulances? Thus, it is
clear that even the medical facilities that are being
provided to pilgrims are too little, and therefore may be
too late.
32. The affidavit is absolutely silent on two
essential issues. Firstly, whether the pilgrims would be
permitted to take bath in the holy Kunds (pools), which
are existing at Badrinath and Kedarnath, or not?
Secondly, considering the fact that the monsoon has
already struck, and the monsoon has already spread
throughout Uttarakhand, considering the fact that on
16.06.2013, Kedarnath had witnessed a disastrous
tragedy, where 5,748 persons lost their lives, the
affidavit is absolutely silent on the point as to what
arrangements are being made, have been made, or will
be made in case any natural calamity strikes any of the
four Char Dham shrines?
33. It is common knowledge that during the
monsoon period, the State witnesses unprecedented
landslides, and unpredictable cloudbursts. Already,
according to the media reports, roads leading to the
Char Dhams are in terrible shape. Therefore, it would
be equally difficult, if not impossible, to evacuate the
pilgrims, who may gather at the Char Dhams.
34. According to the SOP prepared by the State
Government, 600 persons per day would be permitted
to gather at the Badrinath shrine, 400 persons per day
would be permitted to gather at the Kedarnath shrine,
300 persons per day would be permitted to gather at
the Gangotri Dham, and 200 persons per day would be
permitted to gather at the Yamunotri Dham. These are
persons, who would be permitted to have “the
Darshan” inside the respective temples. There is no
indication as to how many people would be permitted
to gather in the respective towns of Badrinath,
Kedarnath, Gangotri and Yamunotri. Therefore, a
distinct possibility does exist that more people will
enter the towns than the limited number of persons
permitted to enter the shrines. Thus, a great possibility
does exist that a large number of people may be
stranded, or may even die, if a natural calamity like a
cloudburst, heavy rains, or landslides were to strike.
Despite the past experience of the Kedarnath tragedy,
which took place in the State on 16.06.2013, the SOP is
absolutely silent about the natural calamity, which may
strike without any prior indication, or notice.
35. A similar question, as the present one, was
also raised with regard to permitting the Rath Yatra at
Puri during the Rath Yatra Festival, which is annually
observed in Odhisha. Considering the fact that at the
relevant time, India was tackling the first wave of
COVID-19 pandemic, in the case of Odisha Vikash
Parishad v. Union of India & Ors. , [(2020) 7 SCC
264], the Hon’ble Supreme Court had directed the
State of Odhisha “ to ensure that all entry points into
the city of Puri, i.e., airports, railway stations, bus
stands, etc., shall be closed during the period of Rath
Yatra festival in order to prevent people from joining
the Rath Yatra ”. The Hon’ble Supreme Court had
further directed the State Government “ to impose a
curfew in the city of Puri on all the days, and during all
the time when Rath Yatra chariots are taken in
procession .” Moreover, the Hon’ble Supreme Court
directed that “ the State Government may also impose
curfew in the city of Puri on such other days, and
during such time as deemed necessary. ” The Hon’ble
Supreme Court clearly directed that, “ during the period
of curfew no one would be allowed to come out of their
houses or their places of residence, such as, hotels,
lodging houses, etc. ” Therefore, considering the health
issues involved, considering the impact of the COVID-
19 first wave, the Hon’ble Supreme Court ensured that
the local people would not join the Rath Yatra.
Interestingly, the people of the Puri city were prevented
from joining the Rath Yatra.
36. Moreover, Mr. Shiv Bhatt, the learned
counsel for the petitioner in Writ Petition (PIL) No. 58
of 2020, submits that the Hon’ble Supreme Court, in its
order passed in Suo Motu Writ Petition (Civil) No.3
of 2021 dated 30.04.2021, has urged the Central and
the State Governments “to consider imposing a ban on
mass gatherings and super spreader events” . Yet, the
decision of the Hon’ble Cabinet dated 25.06.2021 would
not only permit the people of Badrinath, Kedarnath,
Yamunotri and Gangotri to congregate at the shrines,
but would also permit the people of the respective
districts to gather at their respective temples. Thus, the
Cabinet decision contravenes the directions issued by
the Hon’ble Supreme Court.
37. Furthermore, the decision taken by the
Hon’ble Cabinet on 25.06.2021 is patently against the
warnings, which are being given by the experts
throughout the country, the warnings, which have been
quoted hereinabove. Moreover, the decision is also
against the directions of the Central Government which
has been directing the States to control and prevent
the spread of the third wave. Further, the decision is
also against the practice of extending the lockdown as
observed by the other States.
38. Undoubtedly, the State is the parens patriae .
Both according to Article 25 of The Universal
Declaration of Human Rights, and Article 12 of The
International Covenant on Economic, Social and
Cultural Rights, right to health is a fundamental right of
the people. Moreover, according to Article 21 of the
Constitution of India, it is the duty of the State to
protect the lives of the people. Moreover, Article 39(e)
of the Constitution of India imposes a duty upon the
State that the health of the people is not abused.
Article 39(f) of the Constitution of India further directs
the State to ensure that children develop in a healthy
manner. Article 47 of the Constitution of India directs
the State to raise the level of nutrition and standard of
living and to improve the public healthcare system.
Thus, an onerous duty has been cast upon the State to
protect the lives of the people through whatever means
available to the State.
39. However, the decision of the Cabinet will
unnecessarily expose the people to the dangers of the
third wave. Thus, the decision is against Article 21 of
the Constitution of India, against Articles 39(e) & 39(f)
and against Article 47 of the Constitution of India. It
also ignores India’s commitment to the International
Conventions.
40. In the Note submitted to the Cabinet, the
reasons given by this Court, for requesting the Cabinet
to reconsider its decision for opening the Char Dham
Yatra, were equally stated. However, the Cabinet has
not only ignored those reasons, but has also ignored
the warnings given by the scientific community, ignored
the directions issued by the Central Government, and
ignored the directions issued by the Hon’ble Supreme
Court, where the Hon’ble Supreme Court has been
directing the States to ensure that there is no gathering
of crowds. In the present circumstances, the decision
of the Cabinet is prima facie arbitrary and
unreasonable. Hence, it is prima facie violative of
Article 14 of the Constitution of India.
41. Considering the failure of the civil
administration in implementing the SOPs repeatedly
issued both by the Central Government and the State
Government, during the Kumbh Mela, during the Ganga
Dusshera and during the opening of the Neeb Karoli
Dham (Kainchi Dham), the Cabinet should have
realised that the SOPs are flouted by the people, and
the civil administration does not have the wherewithal
for implementing them in sensu stricto. Therefore,
while deciding the issue, the Cabinet seems to have
ignored a vital factor. Therefore, prima facie, the
Cabinet decision dated 25.06.2021 is arbitrary.
42. There is, thus, a strong prima facie case in
favour of the people, for not permitting the Char Dham
Yatra, even in a limited manner. For, the lives of the
people may be exposed to the danger of the Delta Plus
variant, and to the third wave of COVID-19. If the Char
Dhar Yatra were permitted, we would again be inviting
a catastrophe.
43. In case we were to consider the balance of
convenience, whether the balance of convenience tilts
in favour of the Char Dham Devasthanam Board, which
is consistently demanding that the Char Dham Yatra
should be opened, or it tilts in favour of the public at
large, whose lives may be jeopardised, and whose
families may be shattered forever, obviously the
balance of convenience is in favour of the people at
large. For, in case gathering of 600 or 400 persons per
day were to spread the Delta Plus variant, there are no
means and ways to stop the spread of this terrible
virus.
44. The Delta Plus variant may again claim the
lives of lakhs of people across this country. The loss of
a family member, and as pointed out by the Scientific
Community that the victims of the third wave would be
children, the loss of a child is painful not only to the
parents, but also to the nation at large. In case the
Delta Plus variant is permitted to play havoc with the
lives of our children, the nation is bound to lose a part
of its next generation. Such an apocalypse would
adversely affect the growth, and the progress of the
entire country. Hence, the Char Dhar Yatra will
invariably cause irreparable losses to the people and to
the country.
45. Therefore, all the three elements, namely the
existence of a strong prima facie case, the balance of
convenience, and the irreparable loss suffered by the
people at large, are in favour of the public. Hence, it
would be in the public interest and in the interest of
justice to stay the operation of the decision of the
Hon’ble Cabinet dated 25.06.2021, vis-à-vis the
opening of the Char Dham Yatra for the residents of
District Uttarkashi, Rudraprayag and Chamoli, for a
period of four weeks, and to direct the State
Government not to permit the pilgrims to reach the
Char Dham Temples during the period of four weeks.
Hence, ordered accordingly.
46. Technically, it may be argued that the
decision dated 25.06.2021 is not under challenge
before this Court. Thus, it cannot be stayed by this
Court. However, technicalities of law cannot come in
the way of protection of the people. The writ petitions
deal with the ways and means of containing the spread
of COVID-19 pandemic. The plea raised by the
petitioners is that the State is unprepared to tackle the
said pandemic. Therefore, over a period of time, this
Court has been monitoring the steps taken by the State
Government for containing the spread of COVID-19
pandemic. Hence, there has been supervision through a
continuous mandamus over the acts and omissions of
the State Government.
47. During the pendency of the present petitions,
initially, the Cabinet had taken a decision on
20.06.2021 to open up the Char Dham Yatra in a
phased manner. At the request of this Court, the
Cabinet has reviewed its decision. While it has not
taken any concrete decision with regard to the second
phase, it has reiterated its decision with regard to the
first phase. Thus, the decision dated 25.06.2021 is a
further step taken by the State Government. Therefore,
it is imperative that this Court must consider whether
the said act would aggravate or lessen the impact of
COVID-19 or not? Having concluded that the decision of
re-opening the Char Dham Yatra would lead to inviting
a calamity, it is in these circumstances that this Court
is compelled to stay the part of the Cabinet decision
dated 25.06.2021. The said stay is strictly in the
interest of public, and in the interest of justice.
48. This Court is well aware of the high religiosity
of the people. Keeping in mind the devotion of the
people, even on an earlier occasion, on 23.06.2021,
this Court had suggested that live streaming of all the
ceremonies carried out at the Char Dham Shrines
should be done.
49. Mr. Om Prakash, the learned Chief Secretary,
submits that the Government is in discussion with the
Priests of the Char Dham whether live streaming will be
permitted, or not? He further submits that a few
priests may oppose the live streaming from the
temples.
50. Mr. S.N. Babulkar, the learned Advocate
General for the State of Uttarakhand, submits that live
streaming may be prohibited by the Shastras .
Therefore, it will not be possible to have live streaming
of the ceremonies performed inside the Sanctum-
Sanctorum.
51. Since our ancestors were unaware of the
development of a technology that would permit live
streaming, the possibility of our Shastras prohibiting
live streaming of a religious ceremony is absolutely
impossible.
52. Moreover, the “darshans” of deity are to be
taken to as large an audience as possible. Therefore,
live streaming would permit the devout people to have
“darshan” of the deity in the comfort and safety of their
homes. Moreover, live streaming is already being done
by other temples across the country. The ceremonies
being performed in different temples in different parts
of the country are broadcast by various T.V. channels.
Therefore the argument that live streaming may be
prohibited by our shashtras is clearly unacceptable.
53. Secondly, needless to say, it is for the State
Government to decide whether the live streaming
should be carried out or not? The decision cannot be
left to the Char Dham Devasthanam Board, or to the
priests of an individual temple. For, it is the
constitutional duty of the State to protect its people
from a pandemic. Therefore, the decision cannot be left
either to the Board or to the Priests. Even if, there is an
objection from a minority of priests, the said objection
can easily be overruled by the State.
54. In catena of judgments, the Hon’ble Supreme
Court has clearly observed that the argument taken by
the State Government that it cannot control either a
large crowd, or the unruly mob, does not lie in the
mouth of the State Government. For, to argue the
same, the State Government admits its inability to
enforce the rule of law.
55. Therefore, the State Government cannot
plead that merely because a few priests may object to
the live streaming, it will succumb to their pressure.
What is of paramount importance is to save the lives of
the people. It is, indeed, trite to state that when there
is a conflict between the right of an individual, and the
right of a community, the latter will always take
precedent over the former.
56. Hence, in the interest of the people, this
Court directs the Government to ensure that the
ceremonies, the pujas and archanas , carried out within
the sanctum sanctorum of the Char Dham temples, are
live streamed for the benefit of the people at large. The
Government should make sure that the live streaming
is done throughout the country, so that the devotees
may not only witness the deity, but may also pray to
the same. The live streaming should be carried out as
expeditiously as possible, and preferable within seven
days of the receipt of the certified copy of this order.
57. Mr. Om Prakash, the learned Chief Secretary,
Mr. Dilip Jawalkar, the learned Secretary, Tourism, and
Dr. Ashish Chauhan, the learned Additional Secretary,
Culture and Religion Affairs Department, are directed to
inform this Court on the next date whether the live
streaming of the Char Dham has commenced or not?
58. Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare, is also directed to be
present before this Court on 07.07.2021.
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The Uttarakhand High Court on Monday ordered a stay on the State cabinet decision of 25 June to allow local pilgrims to participate in the Char Dham Yatra on 1 July (Sachdanand Dabral v. Union of India).
The order was passed by a Bench of Chief Justice RS Chauhan and Justice Alok Verma after taking into account the imminent threat due to a possible third wave of COVID-19 pandemic.
“As pointed out by the scientific community, the victims of the third wave will be children. The loss of a child is not painful only to parents but the nation at large. In case the Delta Plus variant is permitted to play havoc with the lives of our children, the nation is bound to lose part of its next generation. Such an apocalypse would adversely affect the growth of the country,” the Court noted.
After a detailed consideration of the facts and material on record, the High Court held that the balance of convenience in this matter lay with the people of the country at large
It emphasised that should the predictions regarding third wave turn out to be true, children of the country could be affected and the damage will be catastrophic.
It, therefore, stayed the State decision.
“It is in the interest of the public to stay the operation of cabinet decision dated June 25 and to direct the government not to permit pilgrims to reach Char Dham temples," the order said.
It also suggested live streaming of the ceremonies so that devotees can witness the same from their homes.
A report was sought from the State regarding the same.
During the hearing of the case on Monday, the Bench also took exception to the affidavit filed by the State stating that the same was plagued with vague and unclear data.
“The Government must be honest with the Court. It has purposely tried to mislead the Court with its data. The High Court cannot be taken lightly by the Government. You can be hauled up for perjury,” the Court said.
Chief Justice RS Chauhan noted that the Standard Operating Procedure (SOP) for the Kumbh Mela was very similar to the one submitted for the Char Dham Yatra pointing out the obvious concern of how the State had failed to implement the SOP for Kumbh.
“Yet it is common knowledge that despite the best intentions of the State Government the district authorities singularly failed to implement the SOP. A large segment of the pilgrims neither wore a mask nor maintained social distancing nor used sanitisers or soap to wash their hands. In fact, lakhs of people were permitted to gather at the banks of the Holy Ganges and bathe,” the Court noted.
The Bench further highlighted the lapses on the part of the Uttarakhand government during Ganga Darshan.
The Court observed that there were glaring examples of the State government’s inability to implement its own SOPs despite their repeated reassurance.
“Even recently, on the occasion of Ganga Darshan a crowd of more than 1 Lakh congregated together at Haridwar to take a holy bath in the Ganges. Even then the crowd failed to adhere to the SOP and the civil administration failed to strictly implement SOP. This is the fourth occasion that the State Government is promising that the SOP would be implemented strictly,” the Court said.
The High Court also revisited the devastation caused in the State of Uttarakhand after the Kumbh Mela, visuals from which caused embarrassment to the country and shocked the world community.
“Suddenly our country was painted as a renegade, and as an irresponsible member of international community. Suddenly, flights coming from India were stopped by other countries.”
The Court also questioned the State with respect to implementation of the 'dos and don'ts' laid down in the SOP.
As per the procedure, there is a ban imposed on gutka, pan and tambaku but no clarification was provided in the affidavit or the hearing regarding how people will be prevented from chewing paa, gutka or tambaku in such a large crowd.
Further, the Bench found the procedure for implementation of sanitisation and handwashing unclear.
On being questioned regarding maintenance of Covid-19 protocol, it was submitted that best efforts will be made to ensure that compliance .
However, the Chief Justice stated, “It is one thing to try and another to succeed. Can you assure us that if there is a death due to Covid-19 and the same is caused due to the Char Dham Yatra, you will compensate each such death with 4-5 Lakhs.”
It was observed that a similar question was raised regarding the Ratha Yatra in Orissa before the Supreme Court of India.
“At that time, tackling the first wave, the Hon’ble Supreme Court directed the State of Orissa to ensure that all entry points to the city of Puri should be closed during the time of the Ratha Yatra in order to prevent people from joining the Yatra. The Hon’ble Supreme Court had also ordered a curfew in the city of Puri.”
After a detailed consideration of the facts, the High Court held that the balance of convenience in this matter lay in favour of interest of public at large and stayed the government decision.
The Court also recommended a safer alternative to the devotees to witness the Yatra from the comfort of their homes.
“This Court is well aware of the high religiosity of our people. Therefore, on an earlier occasion this Court had suggested that keeping in mind, people’s devotion live-streaming of all ceremonies carried out at Char Dham should be done.”
Replying to the Advocate General's submission that live streaming of Char Dham is against the customs and prohibited by our Shastras, the Court stated that our ancestors were not aware of this technology and, therefore, the shastras could not have prohibited it.
Further, it was noted that this approach is being implemented by several other temples across the country.
“The government must ensure that live streaming is done throughout the length and breadth of the country.”
A report was sought regarding the same which has to be submitted before the Court by the next date of hearing.
The Bench also observed that since the Order of the State dated 25 June was not actually under challenge, it cannot be stayed.
However, the Court shirked technical hurdles with the intent to protect citizens.
"Technicalities of law cannot come in the way of protection of the people. The writ petitions deal with the ways and means of containing the spread of COVID-19 pandemic.. over a period of time, this Court has been monitoring the steps taken by the State Government for containing the spread of COVID-19 pandemic.”
The Court listed the matter for further consideration on July 7.
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Date of Decision:18.08.2021
Simranjeet Kaur and another
...Petitioners
Versus
State of Haryana and others
...Respondents
Present: Mr. Jarnail S. Saneta, Advocate
for the petitioners.
[The aforesaid presence is being recorded through video conferencing since the
proceedings are being conducted in virtual court.]
The petitioners have approached this Court by way o f the
present criminal writ petition under Article 226 of the Constitution of India
for issuance of directions to the official responde nts No. 2 to 4 to protect
their life and liberty from the hands of respondent s No. 5 to 7, who are
opposing their live-in relationship.
Brief facts of the case are that parents of petitio ner No.1-
Simranjeet Kaur got her married with respondent No. 7 on 29.07.2018
against her wishes and out of that wedlock, a child was born. Petitioner
No.1 was not happy with her marriage. It is allege d that respondent No.7
used to harass her mentally and physically, therefo re, she left her
matrimonial home. Presently, she is residing with petitioner No.2 in live-in
relationship. It is averred in the writ petition t hat respondents No.5 to 7
turned against alliance of the petitioners and thre atening them to eliminate.
The petitioners apprehend that the private responde nts would cause harm to
them, therefore, they submitted a representation da ted 13.08.2021 (P-3) to
the Superintendent of Police, Jind- respondent No. 2, whereupon no action
has been taken. Hence, the present writ petition.
Learned counsel for the petitioners has submitted t hat the
petitioners have filed a representation dated 13.08 .2021 (P-3) to respondent1 of 2
No.2 seeking protection to their life and liberty a t the instance of private
respondents No.5 to 7 but till date no action has b een taken thereon.
Having heard the learned counsel for the petitioner s, this Court
of the view that the present writ petition deserves to be dismissed for the
following more than one reasons.
From the perusal of case file, it would be revealed that
petitioner No.1 is already married with respondent No.7 and out of that
wedlock a child was born. After some time of the m arriage, petitioner No.1
fell in love with petitioner No.2 and now they are residing in live-in
relationship. During the course of hearing, learned counsel for the petitioner
could not convince this Court that petitioner No.1 has got the legal divorce
from respondent No.7. Thus, this Court feels no hes itation to say that
petitioner No.1 has entered into an unholy alliance with petitioner No.2.
Except for the bald allegations that private respon dents No. 5 to 7 are giving
threat to the petitioners, no supportive material h as been placed on record by
the petitioners. The representation submitted by t he petitioners to
respondent No.2 does not contain the allegations ag ainst private
respondents No.5 to 7 as averred in the writ petiti on, much less the manner
and mode of alleged threat extended to the petition ers. Furthermore, there is
no valid and convincing material in the writ petiti on for exercising the
extra-ordinary writ jurisdiction.
In view of the above, the present writ petition is dismissed.
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The Punjab & Haryana High Court refused to issue directions to the State to grant police protection to a couple in a live-in relationship since the woman was already married to another person.
Justice Sant Parkash said that the woman's alliance with the man was an unholy one.
“This Court feels no hesitation to say that petitioner No.1 has entered into an unholy alliance with petitioner No.2,” the Court recorded in its order.
The first petitioner was married to one of the respondents against her wishes and the two had a child out of that wedlock. Since she was unhappy with the marriage, she fell in love with petitioner No. 2.
She claimed that while she was residing in her matrimonial home, her husband used to harass her mentally and physically.
Therefore, she left and began residing with the second petitioner in a live-in relationship.
It was brought to the Court’s attention that the husband and his family members began threatening the couple to end their relationship and the petitioners feared harm at the hands of the respondents.
They, therefore, made a representation to the Superintendent of Police, Jind on August 13 but no action was taken prompting them to approach the High Court.
However, Justice Sant Parkash found that the petition deserved to be dismissed noting that since the first petitioner had not gotten legal divorce from her husband and the alliance between the two petitioners was, therefore, “unholy”.
Further, the Court observed that no material was placed on record by the petitioners to support the bald allegations against the respondents.
Therefore, the petition was dismissed.
The Petitioners were represented by advocate Jarnail S Saneta.
Just last week, the Rajasthan High Court had refused to extend police protection to a couple in a live-in relationship noting that since the woman was already married, granting protection to the couple may indirectly amount to giving the Court’s assent to such illicit relations.
Even the Allahabad High Court had recently turned a couple in a live-in relationship away because the woman was already married and the Court cannot, therefore, permit "illegality".
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The Patna High Court has introduced a new Studio Court system for hearings. The system would involve the Judges sitting in their chambers, and advocates arguing their cases from a Courtroom designated for hearing (a ‘studio courtroom’). The whole proceeding will take place over video conferencing.
The system seeks to resolve the infrastructural constrains of virtual hearings while also ensuring social distancing and the maintenance of safety norms during hearings.
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Where the advocate has cases listed in the studio hearing Court as well as in the virtual hearing court, the advocate is expected to inform the Court master of the virtual hearing Court to accommodate his case at another slot.
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Read the Standard Operating Procedure:
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Table of Contents
No. Particulars Page No(s).
1 Preface
2 Details of the writ petitioners
3 Factual Background 9-25
4 Counter affidavit of State of Gujarat
5 Submissions 47-87
6 Reply Arguments 87-101
7 Points for consideration 101-251
(A) Re: Point No.1: Whether the petition
filed by one of the victims in Writ
Petition (Crl.) No.491 of 2022 under
Article 32 of the Constitution is
maintainable?
(B) Re: Point No.2 : Whether the writ
petitions filed as Public Interest
Litigation (PIL) assailing the impugned
orders of remission dated 10.08.2022
are maintainable?
(i) Remission : Scope & Ambit 117-136
(C) Re: Point No.3: Whether the
Government of State of Gujarat was
competent to pass the impugned
orders of remission?
(D) Re: Point No.4 : Whether the impugned
order s of remission passed by the
respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in
accordance with law?
(i) Section 432(2) of the CrPC: Opinion
of the Presiding Judge of the
convicting court
(ii) Sentence in default of fine
(E) Summary of Conclusions
(F) Re: Point No.5: What Order?
8 Conclusion 251
Preface:
Plato , the Greek Philosopher in his treatise, The
Laws , underscores that punishment is to be inflicted, not for the
sake of vengeance, for what is done cannot be undone, but for the
sake of prevention and reformation (Thomas L. Pangle, The Laws
of Plato, Basic Book Publishers, 1980) . In his treatise, Plato
reasons that the lawgiver, as far as he can, ought to imitate the
doctor who does not apply his drug with a view to pain only, but
to do the patient good. This curative theory of punishment likens
penalty to medicine, administered fo r the good of the one who is
being chastised (Trevor J. Saunders, Plato's Penal Code:
Tradition, Controversy, and Reform in Greek Penology, Oxford
University Press, 1991) .
Thus, if a criminal is curable, he ought to be improved by
education and other suitable arts, and then set free again as a
better citizen and less of a burden to the state. This postulate lies
at the heart of the policy of remission. In addition, there are also
competing interests involved – the rights of the victim and the
victim’s family to justice vis-a-vis a convict’s claim to a second
chance by way of remission or reduction of his sentence for
reformation .
Over the years, t his Court initially attached greater weight
to the former and has expressed scepticism over the latter,
particularly if the offence in question is a heinous one. This
sentiment can be gathered from the following observations of
Fazal Ali J. in Maru Ram vs. Union of India, AIR 1980 SC 2147
“77. … It is true that there appears to be a modern trend
of giving punishment a colour of reformation so that stress
may be laid on the reformation of the criminal rather than
his confinement in jail which is an ideal objective. At the
same time, it cannot be gainsaid that such an
objective cannot be achieved without mustering the
necessary facilities, the requisite education and the
appropriate climate which must be created to foster a
sense of repentance and penitence in a criminal so that he
may undergo such a mental or psychological revolution
that he reali ses the consequences of playing with human
lives. In the world of today and particularly in our
country, this ideal is yet to be achieved and, in fact, with
all our efforts it will take us a long time to reach this
sacred goa l.
xxx xxx xxx
79. The question, therefore, is — should the country take
the risk of innocent lives being lost at the hands of
criminals committing heinous crimes in the holy hope or
wishful thinking that one day or the other, a criminal,
however dangerous or callous he may be, will reform
himself. Valmikis are not born everyday and to expect that
our present generation, with the prevailing social and
economic environment, would produce Valmikis day after
day is to hope for the impossible.”
A woman deserves respect howsoever high or low she may be
otherwise considered in society or to whatever faith she may follow
or any creed she may belong to . Can heinous crimes , inter alia ,
against women permit remission of the convicts by a reduction in
their sentence and by granting them liberty? These are the issues
which arise in these writ petitions.
With the aforesaid philosophical preface, we proceed to
consider these writ petitions , both on maintainability as well as
on merits purely from a legal perspective .
Details of the writ petitioners:
2. These writ petitions have been filed assailing the Orders
dated 10.08.2022, granting remission and early release of
respondent Nos.3 to 13 in Writ Petition (Crl.) No.491 of 2022 (which
petition shall be considered to be the lead petition) , who were all
convicted, having been found guilty of committing heinous crimes
during the large -scale riots in Gujarat on 28.02.2002 and a few days
thereafter which occurred in the aftermath of the burning of the
train incident in Godhra in the State of Gujarat on 27.02.2002.
2.1. The grotesque and diabolical crime in question was driven by
communal hatred and resulted in twelve convicts , amongst many
others, brutally gang -raping the petitioner in Writ Petition (Crl.)
No.491 of 2022, namely , Bilkis Yakub Rasool, who was pregnant at
that time. Further, the petitioner ’s mother was gang raped and
murdered, her cousin who had just delivered a baby was also gang
raped and murdered. Eight minors including the petitioner ’s
cousin’s two -day-old infant were also murdered. The petitioner ’s
three -year-old daughter was murdered by smashing her head on a
rock, her two minor brothers, two minor sisters, her phupha, phupi,
mama (uncle , aunt and uncle respectively) and three -cousins were
all murdered.
2.2. While eventually, the perpetrators of the crime , including the
police personnel were convicted and sentenced , the petitioner , who
was aged twenty -one years and pregnant at that time, having lost
all members of her family in the diabolical and brutal attacks , has
once again approached this Court seeking justice by challenging the
en-masse remission granted to respondent Nos.3 to 13. Bilkis Yakub
Rasool, being an unfortunate victim of the heinous crimes
hereinabove narrated, has filed the present writ petition under
Article 32 of the Constitution of India, seeking issuance of a writ,
order or direction quashing the Order s dated 10.08.2022 passed by
the State of Gujarat by which the convicts in Sessions Case No.634
of 2004, Mumbai ( respondent Nos.3 to 13 herein), whose convictions
were upheld by a Division Bench of the Bombay High Court and
thereafter by this Court, have been released prematurely.
2.3. Writ Petition (Crl.) No.352 of 2022 titled Dr. Meeran Chadha
Borwankar vs. State of Gujarat has been preferred by a former
woman police officer, a woman bureaucrat who ha d served in the
Indian Foreign Service and an academic, seeking , inter alia , the
setting aside of the remission Order s dated 10.08.2022. The
petitioner s by way of the writ petition have also sought a writ or
order in the nature of mandamus directing that the States must
endeavour to have a pluralistic composition in Jail Advisory
Committees, adequately representing the diverse nature of our
society.
2.4. Writ Petition (Crl.) No.319 of 2022 titled Subhashini Ali vs.
State of Gujarat being the first of the petitions filed in this batch
has been preferred under Article 32 by Subhashini Ali, a former
parliamentarian and presently the Vice -President of All India
Democratic Women’s Association; Revati Laul, an independent
journalist and Roop Rekha Verma, former Vice -Chancellor of
Lucknow Uni versity, challenging the Order s dated 10.08.2022.
2.5. Writ Petition (Crl.) No.326 of 2022 titled Mahua Moitra vs.
State of Gujarat has been preferred by Mahua Moitra, a Member
of Parliament from the Krish nanagar constituency in West Bengal,
seeking issuance of a writ, order, or direction, quashing the Order s
dated 10.08.2022. The petitioner in the said writ petition has also
sought the framing of guidelines and the equitable application of
existing guidelines by the State Government for the grant of
remission so as to channelise the exercise of discretion in granting
remission and to prevent the misuse of such discretion , if found
necessary upon an examination of the existing statutory framework.
2.6. Writ Petition (Crl.) No.403 of 2022 titled National
Federation of Indian Women (NFIW) vs. State of Gujarat has
been filed by the National Federation of Indian Women (NFIW) ,
which is a women centric organization that was established on
04.06.1954 for the purpose of securing women’s rights, seeking
appropriate directions in the form of a writ of mandamus to the
respondent to revoke the remission granted to respondent Nos.3 to
13 by the competent authority of the Government of Gujarat under
the remission policy dated 09.07.1992 and to re -arrest respondent
Nos.3 to 13 herein.
2.7. Writ Petition (Crl.) No.422 of 2022 titled Asma Shafique
Shaikh vs. State of Gujarat has been filed by Asma Shafique
Shaikh, a lawyer by profession and a social activist, seeking
issuance of a writ, order or direction, quashing the Order s dated
10.08.2022.
2.8. As Writ Petition (Crl.) No.491 of 2022 has been filed by one of
the victims, Bilkis Yakub Rasool , seeking quashing of the orders
dated 10.08.2022 , for the sake of convenience, the factual
background, details as well as the status of the parties shall be with
reference to Writ Petition (Crl.) No.491 of 2022 .
Factual Background:
3. The factual background in which these writ petition s have
been filed is that following the aforesaid unfortunate and grave
incident, a First Information Report (“FIR” for short) was registered
against unknown accused, on 04.03.2002. The Investigation Agency
filed a closure report stating that the accused could not be traced
and the said closure report was accepted by the Judicial Magistrate
vide Order dated 25.0 3.2003. The closure report was challenged by
the petitioner -victim - Bilkis Yakub Rasool , before this Court in Writ
Petition (Crl.) No.118 of 2003. This Court directed the reopening of
the case and transferred the investigation of the same to the Central
Bureau of Investigation (“CBI” for short).
3.1. The CBI commenced a fresh investigation and submitted a
chargesheet on 19.04.2004 against twenty persons accused of the
crime . Charges of gang rape, murder and rioting armed with deadly
weapons with a common intention were framed against twelve
persons, six police personnel and two doct ors
3.2. The petitioner -victim approached this Court by filing Transfer
Petition (Crl.) No.192 of 2004, seeking transfer of the trial from the
State of Gujarat to a neutral place. This Court in Transfer Petition
(Crl.) No.192 of 2004, by an Order dated 06.08.2004, in the peculiar
facts and circumstances of the case, considered it appropriate to
transfer Sessions Case No.161 of 2004 pending before the learned
Additional Sessions Judge, Dahod, Ahmedabad to the competent
Court in Mumbai for trial and disposal. Char ges were framed on
13.01.2005 amongst others against the eleven convicts for the
commission of offences under Sections 143, 147, 302, 376(2)(e) and
(g) of the Indian Penal Code, 1860 (hereinafter referred to as the
“IPC” for the sake of brevity).
3.3. The Special Judge, Greater Mumbai, vide Judgment dated
21.01.2008 in Sessions Case No.634 of 2004 convicted the eleven
accused and sentenced them to life imprisonment for the
commission of the offences of, inter alia , gang rape and murder of
the petitioner ’s mother ; gang rape and murder of her cousin
Shamim ; murder of twelve more victims including the three and a
half year old daughter of the petitioner, rioting, etc. and one police
personnel for deliberately recording the FIR incorrectly. However,
the Tria l Court acquitted the remaining five police personnel and
the two doctors, against whom there were serious charges.
Respondent Nos.3 to 13 herein were convicted for the offences
punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC
for the murder of fourteen people ; Section 376 (2)(e) & (g) for having
committed gang -rape on the petitioner -victim ; Section 376(2)(g) for
having committed gang rape on other women. The police officer ,
Somabhai Gori was convicted of the offence punishable under
Sections 217 and 218 of the IPC.
3.4. On 05.08.2013, a Division Bench of the High Court of
Bombay passed an Order in Criminal Writ Petition No.305 of 2013
titled Ramesh Rupabhai Chandana vs. State of Maharashtra ,
preferred by respondent No.13 herein, holding that where a trial has
been transferred from one State to another and such trial has been
concluded and the prisoner has been convicted, the prisoner should
be transferred to the prison of his State.
3.5. Against the judgment of the Trial Court dated 21.01.2008,
the persons convicted, as well as the State filed Criminal Appeals
before the Bombay High Court. While the convicts filed criminal
appeals assailing their conviction, the State filed criminal appeal
against acquittal of the police officials and the doct ors A bench
comprising Mrs. Mridula Bhatkar and Mrs. V. K. Tahilramani, JJ.
of the Bombay High Court upheld the conviction of the eleven
persons accused of the offence of rioting armed with deadly
weapons, gang -rape and murder by judgment dated 04.05.2017 in
Criminal Appeal Nos.1020 -1023 of 2009, 487 of 2010, 194 and 271
of 2011 titled Jaswantbhai Chaturbhai Nai vs. State of Gujarat .
The five police officials and the two doctors who were acquitted by
the Trial Court were also convicted by the High Court. The High
Court also observed that the investigation by the Gujarat police was
not proper and that the Gujarat police had taken the investigation
in the wrong direction from the beginning i.e., the day of registering
the FIR. That the investigation was not only unsatisfactory but it
also smacked of dishonest steps to shield the culprits. It was further
observed that the earlier investigation had played the role of a villain
in the case. The High Court while going through the evidence also
noted that “the truth and the falsehood are mixed up in such a
manner that at every stage of investigation the truth is hidden under
layers of intentional laxity, omissions, contradictions and falsehood
and the truth is required to be unearthed” .
3.6. All the persons convicted filed Special Leave Petitions against
the judgment of the High Court. This Court vide Order dated
10.07.2017 passed in SLP (Crl.) No s.4290/2017, 4705/2017 and
4716/2017 and by Order dated 20.11.2017 passed in SLP (Crl.)
No.7831/2017 dismissed the Special Leave Petitions preferred by
the convicts and upheld the findings rendered by the High Court, as
well as the sentence awarded.
3.7. It is noteworthy that the petitioner -victim approached this
Court by way of Criminal Appeal No s.727-733 of 2019 seeking just
and adequate compensation for her ordeals. This Court vide order
dated 23.04.2019 observed that the petitioner is a victim of riots
which occurred in the aftermath of the Godhra train burning. This
Court noted that the petitioner’s case ha d to be dealt with differently
as the loss she has suffered surpassed normal cases. That the
gruesome and horrific acts of violence had left an inde lible imprint
on the mind of the petitioner, which will continue to torment and
cripple her. This Court therefore directed the State Government to
pay Rs. 50,00,000/ - (Rupees Fifty Lakhs) to the petitioner within
two weeks noting that the petitioner ha d been coerced into living the
life of a nomad and an orphan and was barely sustaining herself on
the charity of NGOs, having lost her family members.
3.8. After undergoing 14 years 5 months and 6 days of his
sentence, respondent No.3 herein, namely, Radheshyam
Bhagwandas Shah , filed Criminal Application No.4573 of 2019
before the Gujarat High Court challenging the non -consideration of
his application for premature release under Section s 433 and 433A
of the Code of Criminal Procedure, 1973 (hereinafter, the “CrPC” for
the sake of brevity). The High Court after considering the
submissions observed that respondent No.3 herein had been tried
in the State of Maharashtra, hence, as per Section 432 (7), the
‘appropriate government’ for t he purpose of Sections 432 and 433
of the CrPC would be the State of Maharashtra. The High Court
placed reliance on the dictum of this Court in Union of India vs. V.
Sriharan , (2016) 7 SCC 1 (“V. Sriharan”) and by Order dated
17.07.2019 directed the petitioner therein (respondent No.3 herein)
to pursue his remedy within the State of Maharashtra.
3.9. Respondent No.3 then moved an application dated
01.08.2019 before the Secretary, Department of Home Affairs, State
of Maharashtra, seeking premature release under Sections 432 and
433A of the CrPC. Respondent No.3 specifically relied on the order
dated 17.07.2019 of the Gujarat High Court granting liberty to the
convict to approach the State of Maharashtra seeking premature
release.
3.10. As the case was investigated and prosecuted by the CBI, the
opinion of the said Agency was sought on the application for
premature release. The CBI submitted its report dated 14.08.2019
wherein it was recommended that respondent No.3 should serve his
sentence fully and no leniency should be given to him. The CBI
submitted that respondent No.3 had actively participated in the
heinous crime and t hat the offences committed by him and others
were serious in nature and thus, he should not be pardoned or the
sentence , suspended or remitted.
3.11. Further, on 03.01.2020, the Special CBI Court, Mumbai, also
gave a negative report and objected to the prayer for premature
release of respondent No.3 on the ground of seriousness of the
offence. It was observed that the offences committed by the accused
fell into category 5 (b) of the relevant State policy and were extremely
serious, thus, it would be improper to grant remission to respondent
3.12. Similarly, on 03.02.2020, the Superintendent of Police,
Dahod, in his report submitted to the Collector and District
Magistrate, Dahod, gave a negative opinion against the pre -mature
release of respondent No.3 on the ground that the victim and her
family members apprehended serious crimes against them if
respondent No.3 was released prematurely. The Office of the
Collector and District Magistrate, Dahod, on 19.02.2020 also opined
against the pre -mature release of respondent No.3 by relying on the
opinion da ted 03.02.2020 of the Superintendent of Police, Dahod.
3.13. Respondent No.3 again approached the High Court of
Gujarat by way of Criminal Miscellaneous Application No. 1 of 2019
in Criminal Application No.4573 of 2019 seeking remission under
Section 432 read with Section 433 of the CrPC. The High Court vide
Order dated 13.03.2020 rejected the application preferred by
respondent No.3 with a specific observation that the appropriate
government under Section 432(7)(b) to exercise the powers of
remission would be the State of Maharashtra and not the State of
Gujarat. It was further recorded in the said order that the counsel
for respondent No.3 had sought the permission of the Court to move
the High Court of Bombay for the same relief and therefore the
application was disposed of with liberty to the writ petitioner therein
in the aforesaid terms. It is pertinent to note that t his order still
holds the field as it has neither been challenged nor recalled or set
aside in accordance with law.
3.14. On 20.07.2021, a meeting of the Jail Advisory Committee of
the State of Gujarat took place which comprised of four social
workers; two members of the State Legislative Assembly; the
Superintendent of Police, Godhra; the District and Sessions Judge,
Godhra; the Secretary, Jail Advisory Committee and
Superintendent, Godhra Sub -Jail and the District Magistrate,
Godh ra (Chairman of the Jail Advisory Committee, Godhra Sub -
Jail).
3.15 The Sessions Judge, Godhra, being one of the ten members of
the Jail Advisory Committee, after going through the case papers
observed that the convict, respondent No.3 herein , had been
sentenced to undergo life imprisonment in a sensitive case and that
if he was released prematurely, it may create an adverse effect on
the society and there is a possibility of peace being disturbed. The
other Committee members recommended the grant of remission to
respondent No.3, on the ground that he had completed fifteen years
of imprisonment and that his conduct in prison had been good.
3.16. On 18.08.2021, the Additional Director General of Police,
Prisons and Correctional Administration, State of Gujarat, vide his
letter to the Additional Chief Secretary, Home Department , Gujarat,
after considering the opinion given by the Jail Advisory Committee,
concurred with the opinion given by the Superintendent of Police,
Dahod; CBI; the Special CBI Court, Mumbai and the District
Magistrate, Dahod and did not recommend the premature release of
the convict - respondent No.3.
3.17. In the interregnum, t he rest of the convicts, respondent Nos.4
to 13 had applied for remission on varying dates in the month of
February 2021 to the Superintendent, Godhra Sub -Jail. The opinion
of the CBI was sought in this regard, and a negative opinion was
given, so also by the Special Judge (CBI), Greater Mumbai . By a
common opinion dated 22.03.2021, Special Judge (CBI), Greater
Mumbai stated that since all the accused were tried and convicted
in Mumbai, i.e., the State of Maharashtra, the Government
Resolution issued by the Home Department, Government of
Maharashtra would be applicable to them. The Special Judge after
perusing the guidelines issued by the Government of Maharashtra
on 16.11.1978 and 11.05.1992 and the Government Resolution
dated 11.04.2008 (Policy dated 11.04.2008) , observed that the said
resolution dated 11.04.2008 would apply as it ha d superseded all
earlier orders and guidelines and would have been applicable in the
normal course to the convicts undergoing life imprisonment. The
Special Judge further noted that the case of the convicts mentioned
above would fall under categories 2(c), 2 (d) and 4(d) of the Policy
dated 11.04.2008, according to which the minimum period of
imprisonment to be undergone is 28 years (Category 2(d)) . However,
the Superintendent of Police, Dahod, gave a positive opinion with
respect to the premature release of respondent Nos.3 to 13. His
opinion was seconded by the Collector and District Magistrate,
Dahod.
3.18. In the afore said backdrop, when various steps were in
progress at various stages, stealthily a writ petition , being Writ
Petition (Crl.) No.135 of 2022 titled Radheshyam Bhagwandas
Shah vs. State of Gujarat , (2022) 8 SCC 552 (“Radheshyam
Bhagwandas Shah”) , was filed before this Court by respondent
No.3 herein, seeking a direction in the nature of mandamus to the
State of Gujarat to consider his application for pre -mature release
under its policy dated 09.07.1992, which was existing at the time of
commission of his crime and his conviction.
3.19 This Court noted that the policy on the date of conviction was
as per the resolution dated 09.07.1992 passed by the State of
Gujarat. Hence, respondent No.3 ( petitioner therein) would be
governed by the same. This Court placed reliance on the dictum in
State of Haryana v s. Jagdish , (2010 ) 4 SCC 216 (“Jagdish”) to
observe that the application for grant of pre -mature release will have
to be considered on the basis of the policy which stood as on the
date of conviction. The other pertinent findings of this Court in its
judgment and Order dated 1 3.05.2022, in Writ Petition (Crl.) No.135
of 2022 are culled out hereunder:
i. The argument advanced by the respondent s – State
of Gujarat therein that since the trial ha d been
concluded in the State of Maharashtra, the
'appropriate Government' as referred to under
Section 433 of the CrPC would be the State of
Maharashtra, was rejected by this Court holding
that the crime in the instant case was admittedly
committed in the State of Gujarat and ordinarily,
the trial would have been concluded in the same
State and in terms of Section 432(7) of the CrPC,
the appropriate Government in the ordinary course
would have been the State of Gujarat but in the
instant case, the case was transferred under
exceptional circumstances by this Court for the
limited purpose of trial and disposal to the State of
Maharashtra. However, after the conclusion of trial
and on conviction, the c ase stood transferred to the
State where the crime was committed and the State
of Gujarat remains the appropriate Government for
the purpose of Section 432(7) of the CrPC.
ii. This Court observed that once the crime was
committed in the State of Gujarat , after the trial
came to be concluded and judgment of conviction
came to be passed, all further proceedings would
have to be considered, including remission or pre -
mature release, as the case may be, in terms of the
policy which is applicable in the State of Gujarat
where the crime was committed and not the State
where the trial stood transferred and concluded for
exceptional reasons under the orders of this Court.
iii. This Court directed the State of Gujarat to consider
the application of the petitioner therein for pre -
mature release in terms of its policy dated
09.07.1992 which was applicable on the date of
conviction.
3.20. Pursuant to the judgment of this Court dated 13.05.2022, a
meeting of the Jail Advisory Committee of the State of Gujarat took
place on 26.05.2022 and all the members recommended grant of
remission to respondent Nos.3 to 13.
3.21. The Sessions Judge, Godhra, also considered the
applications of respondent Nos.3 to 13 and upon going through the
particulars provided by the Jail Superintendent, Sub -Jail, Godhra
noted that the said report recorded that the convicts had
demonstrated good behavior and conduct during the period of
incarceration and that no adverse incident had been recorded
against the convicts even when they were on furlough or on parole,
except against one convict , namely, Mitesh Chimanlal Bhatt. That
all convicts, by and large, surrendered themselves within the time
after enjoying parole/furlough and participated in rehabilitation
and corrective programmes. That the convicts still had substantial
years of life remaining. Accordingly, the Sessions Judge applied the
policy dated 09.07.1992 and gave an ‘affirmative’ opinion as regards
the premature release of respondent Nos.3 to 13.
3.22. The Additional Director General of Police, Prisons and
Correctional Administration, State of Gujarat, addressed a letter
dated 09.06.2022 to the Additional Chief Secretary, Home
Department, Government of Gujarat, regarding the premature
release of accused Kesarbhai Khimabhai Vahoniya. In the said
letter, the details of the opinion given by the concerned authorities
regarding the premature release of the said convict were also
discussed. It was stated in the letter that the Superintendent of
Police, D ahod, had given a positive opinion regarding premature
release from jail; the Superintendent of Police, Special Crime
Branch, Mumbai, however, had given a negative opinion about
premature release from jail; the District Magistrate, Dahod, had
given a positive opinion about the premature release from jail; the
Sessions Court, Mumbai, which pronounced the sentence had given
a negative opinion about premature release; however, the Jail
Advisory Committee of Gujarat had given a positive opinion about
the convi ct’s premature release and the Superintendent, Godhra
Sub-Jail had also given a positive opinion about the premature
release . Thus, the Additional Director General of Police, Prisons and
Correctional Administration, State of Gujarat gave a positive opinion
regarding the premature release of Kesarbhai Khimabhai Vahoniya
to the Additional Chief Secretary, Home Department, Government
of Gujarat. So also, as regards the other convicts, namely, Salesh
Chimanlal Bhatt, Pradip Ramanlal Modhhiya, Mitesh Chimanlal
Bhatt, Bipinchand Kanhaiyalal Joshi, Rajubhai Babulal Soni,
Bakabhai Khimabhai Vahoniya, Jaswantbhai Chaturbhai Nai
(Rawal) and Ramesh Rupabh ai Chandana.
3.23. On 28.06.2022, the Department of Home Affairs,
Government of Gujarat, addressed a letter to the Secretary, Ministry
of Home Affairs, Government of India, seeking sanction from the
Government of India on the proposal for the premature release of
the prisone rs, respondent Nos.3 to 13.
3.24. By letter dated 11.07.2022, the Ministry of Home Affairs,
Government of India conveyed its approval under Section 435 of the
CrPC for the premature release of all 11 convicts, respondent Nos.3
to 13.
3.25. Pursuant to the concurrence of the Central Government, the
State of Gujarat issued the impugned order s dated 10.08.2022.
3.26. In the above background, these writ petition s have been filed,
praying , inter-alia, for issuance of a writ, order, or direction,
quashing the Order s dated 10.08.2022.
Counter affidavit of State of Gujarat:
4. Under Secretary, Home Department, State of Gujarat (first
respondent) has filed his affidavit stating that he is acquainted with
the facts of the case as appearing from the official records of the
case. While denying every assertion, contention and statement
made by the petitioner in Writ Petition (Crl.) No.319 of 2022, which
was the first of the writ petitions filed before this Court, certain
preliminary submissions have been advanced at the outset.
4.1 It is contended that the public interest litigation (PIL) filed by
the petitioners (Subhashini Ali and others) is neither maintainable
in law nor tenable on facts. That a third party has no locus to
challenge the orders of remission passed by a competent authority
under the garb of a PIL. A PIL is not maintainable in a criminal
matter as the petitioners are in no way connected with the
proceedings with which the convicted persons have been granted
remission. Therefore, the writ petition may be dismis sed on that
ground alone. In support of this submission, reliance has been
placed on Rajiv Ranjan Singh ‘Lalan’ (VIII) v s. Union of India,
(2006) 6 SCC 613 (“Rajiv Ranjan”) ; Gulzar Ahmed Azmi v s.
Union of India, (2012) 10 SCC 73 1 (“Gulzar Ahmed”) ; Simranjit
Singh Mann v s. Union of India, (1992) 4 SCC 65 3 (“Simranjit
Singh”) ; and, Ashok Kumar Pandey v s. State of West Bengal,
(2004) 3 SCC 349 (“Ashok Kumar”) . It is submitted that a third
party /stranger either under the provisions of the CrPC or under any
other statute is precluded from question ing the correctness of grant
or refusal of ‘sanction for prosecution’ or the conviction and
sentence imposed by the Court after a regular trial. Similarly, a
third party stranger is precluded from questioning a remission
order passed by the State Government which is in accordance with
law. Therefore, dismissal of the petition at the threshold is sought.
4.2. It is next averred that the petitioners have not pleaded as to
how they have the locus to seek a writ of certiorari for quashing the
order s of remission passed by respondent no.1 with respect to the
eleven convicts sentenced by the Special Judge, Greater Mumbai in
Sessions Case No.634 of 2004. That the petitioners have not
pleaded as to how their fundamental rights have been abridged or
how they are aggrieved by the action of the State Government.
Theref ore, filing of the writ petition as Public In terest Litigation (in
short, ‘ PIL’) is an abuse of PIL jurisdiction and is motivated by
political intrigues and machinations. In this regard, reliance has
been placed on Tehseen Poonawalla v s. Union of India, (2018)
6 SCC 72 (“Tehseen”) ; and Ashok Kumar .
4.3. It is further submitted that the petitioners not being aggrieved
persons have invoked the jurisdiction of this Court under Article 32
of the Constitution for extraneous purposes . As the petitioners are
not the “persons aggrieved” , the writ petition is not maintainable .
On the scope and ambit of the expression “person aggrieved”,
reliance has been placed on State of Maharashtra v s. M.V.
Dabholkar , (1975) 2 SCC 702 (“M.V. Dabholkar ”); Jasbhai
Motibhai Desai v s. Roshan Kumar, Haji Bashir Ahmed, (1976)
1 SCC 671 (“Jasbhai Motibhai”) ; and Thammanna v s. K. Veera
Reddy, (1980) 4 SCC 62 (“Thammanna”) .
4.4. On merits, it is stated that one of the respondents/prisoners,
namely, Radheshyam Bhagwandas Shah had filed Writ Petition
(Crl.) No.135 of 2022 , inter alia , praying to consider his remission
application. This Court by its order dated 13.05.2022 held that the
policy which will be applicable for deciding the remission
application is the one which was in vogue at the time of conviction
i.e. Premature Release of Convicts Policy of 1992. Further, this
Court held that for the purposes of Section 432 of the CrPC , the
“appropriate Government” for considering the remission application
is the State in which the offence was committed and not the State
in which the trial was conducted and therefore, directed the State
of Gujarat to consider the application of the prisoner w ithin a period
of two months. Accordingly, the State of Gujarat considered the
application of the prisoners as per Section 432 read with Section
435 of the CrPC along with the Premature Release of Convicts Policy
of 1992. That, the State Government vide its Circular dated
09.07.1992 had issued a policy for early release of prisoners who
have completed fourteen years of imprisonment and who were
imposed punishment of life imprisonment. As per the aforesaid
Policy of 1992, the Inspector General of Jail is mandated to obtain
the opinion of the District Police Officer, District Magistrate, Jail
Superintendent and Advisory Board Committee fo r early release of
a convict. Thereafter, the Inspector General of Jail is mandated to
give his opinion with the copy of the nominal roll and copy of the
judgment and the recommendation of the Government. Further,
the Jail Advisory Board at the time of co nsideration of the
premature release application shall be guided by the Policy of 1992.
A copy of the policy has been annexed as Annexure R -2. It is further
submitted that the State Government considered the case of all the
eleven convicts as per the Policy of 1992. Further, t he remission in
these cases was not granted under the Circular governing grant of
remission to prisoners as part of celebration as ‘Azadi Ka Amrit
Mahotsav”.
4.5. The State Government in fact directed the Additional Director
General of Prison s, Ahmedabad to send the necessary proposal of
remission as per the direction of this Court before 31.05.2022 vide
letter dated 25.05.2022. A reminder was also sent on 08.06.2022.
Ten proposals were received on 09.06.2022 and one proposal was
received on 1 7.06.2022. The applications of the accused were
considered according to the remission policy dated 09.07.1992 in
accordance with the directions issued by this Court. As laid down
in the abovementioned policy, the Department rece ived the opinions
of the concerned District Police Officer, District Magistrate and
Chairman of Jail Advisory Board Committee. It is further stated that
the State Government has considered the opinions of the Inspector
General of Prisons, Gujarat State, Jail Superintendent, Jail
Advisory Committee, District Magistrate, Police Superintendent,
CBI, Special Crime Branch, Mumbai and S essions Court, Mumbai
(CBI). Therefore, the opinions of seven authorities were considered.
Further, having regard to the provisi ons of Section 435 of the CrPC,
sanction of the Government of India was also necessary. As the CBI
was a central investigating agency, the State Government obtained
the approval/suitable orders of the Government of India. The
prisoners/convicts had completed fourteen years of imprisonment
and the opinions of the concerned authorities were obtained as per
Policy dated 09.07.1992 . The same was submitted to the Ministry
of Home Affairs, Government of India vide letter dated 28.06.2022
and sought the approval/suitable orders of the Government of
India. The Government of India vide its letter dated 11.07.1992
conveyed its concurrence/approval. On considering all the
opinions, the State Government decided to relea se the eleven
convicts since they had completed fourteen years and above in jail
and their behaviour was found to be good.
4.6. Reliance has been placed on Jagdis h and V. Sriharan to
contend that if a policy which is beneficial to the convict exists at
the time of consideration of the application of premature release
then the convict cannot be deprived of such beneficial policy and
that judicial review of the order of remission is not permissible in
law. The Under Secretary has further proceeded to place the
following facts to contend that the impugned orders are in
accordance with law:
“29. I say that the relevant records pertaining to the
application for remission qua the prisoner, Kesharbhai
Khimabhai Vahoniya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional No objection to the
premature release of the
prisoner.
Administration,
Ahmedabad.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Kesharbhai Khimabhai Vahoniya is annexed herewith as
30. I say that the relevant records pertaining to the
application for remission qua the prisoner, Shaileshbhai
Chimanlal Bhatt, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Shaileshbhai Chimanlal Bhatt is annexed herewith as
Annexure -RG-4.
31. I say that the relevant records pertaining to the
application for remission qua the prisoner, Pradip Ramanlal
Modhiya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Pradip
Ramanlal Modhiya is annexed herewith as ANNEXURE RG -5.
32. I say that the relevant records pertaining to the
application for remission qua the prisoner, Mitesh Chimanlal
Bhatt, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 25.05.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 25.05.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director
General of Police, Prisons
& Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Mitesh
Chimanlal Bhatt is annexed herewith as ANNEXURE RG -6.
33. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bipinchandra
Kanaiyalal Joshi, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director
General of Police, Prisons
& Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Bipinchandra Kanaiyalal Joshi is annexed herewith as
34. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rajubhai Babulal
Soni, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 11.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home Department,
Govt. of Gujarat, from
the Addl. Director No objection to the
premature release of the
prisoner.
General of Police, Prisons
& Correctional
Administration,
Ahmedabad.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home Department,
Govt. of Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Rajubhai
Babulal Soni is annexed herewith as ANNEXURE RG -8.
35. I say that the relevant records pertaining to the
application for remission qua the prisoner, Bakabhai
Khimabhai Vahoniya, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay. Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat. No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat. No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022. The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India.
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner, Bakabhai
Khimabhai Vahoniya is annexed herewith as ANNEXURE R -
36. I say that the relevant records pertaining to the
application for remission qua the prisoner, Govindbhai
Akhambhai Nai (Raval), is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
15.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
37. Copy of the relevant records qua the prisoner,
Govindbhai Akhambhai Nai (Raval) is annexed herewith as
Annexure R -10.
38. I say that the relevant records pertaining to the
application for remission qua the prisoner, Jashvantbhai
Chaturbhai Nai (Raval), is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
15.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Jashvantbhai Chturbhai Nai (Raval) is annexed herewith as
Annexure R -11.
39. I say that the relevant records pertaining to the
application for remission qua the prisoner, Rameshbhai
Rupabhai Chandana, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
25.02.2021
2. Letter dated 10.03.2021
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 22.03.2021
from the Special Judge
Sessions Court, Gr.
Bombay Considering the Govt.
Resolution dated
11.04.2008, issued by the
State of Maharashtra,
prisoner should not be
released prematurely.
4. Letter dated 07.03.2022
from the Superintendent
of Police, Dahod,
Gujarat. No objection to the
premature release of the
prisoner.
5. Letter dated 07.03.2022
from the Collector & DM,
Dahod, Gujarat No objection to the
premature release of the
prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 26.05.2022 The committee has
unanimously given the
opinion in favour of the
premature release of the
prisoner.
8. Letter dated 09.06.2022
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad. No objection to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India Recommended premature
release of the prisoner.
from Home Department,
Govt. of Gujarat. Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India. Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Rameshbhai Rupabhai Chandana is annexed herewith as
Annexure R -12.
40. I say that the relevant records pertaining to the
application for remission qua the prisoner, Radheshyam
Bhagwandas Shah @ Lala Vakil, is as under:
No. Document Opinion of the concerned
Authority
1. Premature release
application dated
01.08.2019
2. Letter dated 14.08.2019
from the Superintendent
Mumbai. Prisoner should not be
released prematurely.
3. Letter dated 03.01.2020
from the Special Judge
Sessions Court, Gr.
Bombay Objected to the premature
release of the prisoner.
4. Letter dated 13.02.2020
from the Superintendent
of Police, Dahod,
Gujarat. Objected to the premature
release of the prisoner.
5. Letter dated 19.02.2020
from the Collector & DM,
Dahod, Gujarat Objected to the premature
release of the prisoner.
6. Opinion of the Jail
Superintendent, Godhra
Sub-Jail, Gujarat No objection to the
premature release of the
prisoner.
7. Opinion of the Jail
Advisory Committee,
dated 20.07.2021 9 out of 10 members of the
Committee has
recommended the
premature release of the
prisoner.
8. Letter dated 18.08.2021
to the Home
Department, Govt. of
Gujarat, from the Addl.
Director General of
Police, Prisons &
Correctional
Administration,
Ahmedabad.
Did not recommend to the
premature release of the
prisoner.
9. Letter dated 28.06.2022
to the Ministry of Home
Affairs, Govt. of India
from Home Department,
Govt. of Gujarat. Recommended premature
release of the prisoner.
Sought approval/ suitable
orders from the Govt. of
India
10. Letter dated 11.07.2022
to the Home
Department, Govt. of
Gujarat from the
Ministry of Home Affairs,
Govt. of India.
Approved the premature
release of the prisoner.
Copy of the relevant records qua the prisoner,
Radheshyam Bhgwandas Shah @ Lala Vakil is annexed
herewith as Annexure R -13.”
4.7 Therefore, it has been contended that PIL is not maintainable
as it is misconceived and devoid of any merit and as such is liable
to be dismissed.
5. Respondent No.2 has not filed any pleading in this matter.
Even though respondent Nos.3 to 13 have filed their counter
affidavits, we do not find it necessary to advert to the same as they
would be replicating the stand of the State of Gujarat.
Submissions:
6. We have heard learned counsel Ms. Shobha Gupta for the
petitioner in Writ Petition (Crl.) No.491 of 2022 ; learned ASG, Sri
S.V. Raju appearing on behalf of the State of Gujarat and Union of
India ; and learned senior counsel Mr. Sidharth Luthra and other
counsel for respondent Nos.3 to 13 and perused the material on
record.
6.1 We have also heard learned senior counsel and learned
counsel Ms. Indira Jaising , Ms. Vrinda Grover and Ms. Aparna Bhat,
for the petitioners in the public interest litigations.
6.2 We have perused the material on record as well as the judicial
dicta cited at the Bar.
7. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022, Ms. Shobha Gupta at the outset submitted that the
en-masse remission granted to respondent Nos.3 to 13 by Orders
dated 10.08.2022 has not only shattered the victim -petitioner and
her family but has also shocked the collective conscience of the
Indian society. That in the present case, the right of the victim and
the cry of the society at large ha ve been ignored by the State and
Central Government s while recommending the grant of remission to
all convict s in the case.
7.1. It was asserted that though the crime was committed in the
State of Gujarat, the investigation and trial were carried out in the
State of Maharashtra pursuant to the orders of this Court . Hence,
in view of the unambiguous language of Section 432(7)(b), only the
State of Maharashtra would be the appropriate government which
could have considered the applications filed by respondent Nos.3 to
13 seeking remission of their sentences . Learned counsel has placed
reliance on the following judgments to buttress h er argument ,
namely, State of M.P. vs. Ratan Singh, (1976) 3 SCC 470 (“Ratan
Singh”); Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616
(“M.T. Khan”); Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC
177 (“Hanumant Dass ”) and V. Sriharan .
7.2. According to learned counsel, once a competent Court in the
State of Maharashtra had tried and convicted the accused then that
State is the ‘ appropriate Government’ . Therefore, the Orders of
remission passed by the State of Gujarat in respect of respondent
Nos.3 to 13 is without jurisdiction and a nullity and thus, are liable
to be quashed.
7.3. As regards the applicability of the relevant remission policy,
learned counsel for the petitioner submitted that since the
‘appropriate government’ in the instant case is the State of
Maharashtra, the remission policy of the State of Maharashtra
would be applicable. Thus, the remission policy of the State of
Gujarat dated 09.07.1992 would be wholly inapplicable. It was
contended that the remission policy dated 09.07.1992 of the State
of Gujarat was not even in existence as on the date for consideration
of the remission applications as it was scrapped by way of a Circular
dated 08.05.2014 pursuant to the letter of the Central Government
circulated to all the States/UTs requiring the implementation of the
judgment of this Court in Sangeet vs. State of Haryana , (2013) 2
SCC 452 (“Sangeet”) , wherein this Court held that before actually
exercising the power of remission under Section 432 of the CrPC,
the appropriate government must obtain the opinion of the
Presiding Judge of the convicting or confirming court and that the
remission shall not be granted in a wholesale manner , such as , on
the occasion of Independence Day etc . That pursuant to the
cancellation of the policy dated 09.07.1992, the State of Gujarat
came up with a new remission policy dated 23.01.2014, and even
this policy would not entitle remission of the accused herein, for two
reasons : firstly, because the remission policy of the State of
Maharashtra would be applicable as it is the ‘appropriate
government’, and second ly, the 2014 policy of the State of Gujarat
bars the grant of remission to convicts of heinous crimes.
7.4. Relying on the opinion of the Special Judge, Sessions Court,
Greater Mumbai, it was submitted that the Special Judge had
rightly stated that the remission policy applicable in the present
case would be the Policy dated 11.04.2008 of the State of
Maharashtra in respect of which the Circular dated 13.06.2008 of
the State of Maharashtra was issued , wherein a convict of
communal crime, gang rape and murder would fall under the
categories 2(c), 2(d) and 4 ( e) of the Policy which prescribes that the
minimum peri od of imprisonment to be undergone by the convict
before remission can be considered would be twenty eight years.
Thus, respondent s-convicts were not entitled to be granted
remission as they had not completed the minimum period of
imprisonment as per the applicable remission policy.
7.5. It was further contended that the remission orders under
challenge failed to meet the criteria laid down by this Court in
Sangeet ; and Ram Chander vs. State of Chhattisgarh, (2022)
12 SCC 52 (“Ram Chander”) , wherein it ha s been stated that the
appropriate government must obtain the opinion of the Presiding
Judge of the convicting court before deciding the remission
application. That the State of Gujarat granted remission to all the
convicts by completely ignoring the negative opinions expressed by
two major stakeholders i.e., the Presiding Judge of the convicting
Court in Mumbai and the prosecuting agency (CBI).
7.6. Reliance was placed on the decisions of this Court in State
of Haryana vs. Mohinder Singh , (2000) 3 SCC 394 (“Mohinder
Singh”) ; Sangeet ; Ratan Singh , and Laxman Naskar vs. State
of West Bengal, (2000) 2 SCC 595 (“Laxman Naskar”) to
emphasize that a convict cannot claim remission as a matter of
right. The remission policies only give a right to the convict to be
considered and do not provide an indefeasible right to remission.
7.7. Further, reference was made to the dicta of this Court in
Mohinder Singh ; Epuru Sudhakar vs. State of A.P., (2006) 8
SCC 161 (“Epuru Sudhakar”) ; Maru Ram ; Sangeet; Ratan
Singh and Laxman Naskar to contend that the decision to grant
remission should be well informed, reasonable and fair and that the
power cannot be exercised arbitrarily.
7.8. Emphasizing the gravity of the offence s in this case and the
grotesque nature of the crime s committed by the accused, learned
counsel Ms. Shobha Gupta submitted that while considering the
application for remission , the appropriate government was required
to bear in mind the effect of its decision on the victim and the family
of the victims, the society as a whole and the precedent it would set
for the future. To buttress the said submission, she relied on Epuru
Sudhakar , Swamy Shraddhananda (2) vs. State of Karnatak a,
(2008) 13 SCC 767 , (“Shraddhananda ”), and Jagdish . Reliance
was also placed on the decision in Laxman Naskar wherein this
Court had discussed the factors to be considered before granting
remission.
7.9. It was urged that the prerogative power of remission is not
immune from judicial review, vide Epuru Sudhakar wherein it was
observed that judicial review of the order of remission is available
on the following grounds: (i) non-application of mind; ( ii) order is
mala fide; (iii) order has been passed on extraneous or wholly
irrelevant considerations; (iv) relevant materials kept out of
consideration; (v) order suffers from arbitrariness.
7.10. It was contended that in the present case, remission was
granted to all the convicts mechanically and without application of
mind to each of the cases a nd that the relevant factors were not
considered. That the State Government failed to consider the
relevant material and make an objective assessment while
considering the application s of the convicts for remission. The
nature and gravity of the crime, the impact of the remission order s
on the victim and her family, witnesses and society at large, were
not c onsidered. That m ere good behaviour in jail and completion of
fourteen years in jail are not the only pre-requisites while
considering the application for premature release of the convicts.
7.11. Attention was drawn to the fact that respondent No.3 herein
had approached the High Court of Gujarat by way of Crl. Application
No.4573 of 2019 seeking a direction to the State Government to
consider his application for remission. The High Court vide Order
dated 17.07.2019 dismissed the same in view of Section 432 of the
CrPC. Respondent No.3’s second application was also dismissed
vide Order dated 13.03.2020 passed by the Gujarat High Court.
That in fact, within fourteen days of the First Order dated
17.07.2019, respondent No.3 had approached the Government of
Maharashtra by way of an application dated 01.08.2019. Upon his
application, opinion was sought from the (i) Investigating Agency
(CBI) and the (ii) Presiding Officer of the convicting court (Special
Judge, Sessions Court, Greater Mumbai) , both of whom opined in
the negative and against remission being granted to the said
respondent . Further, the Superintendent of Police, Dahod, vide
letter dated 03.02.2020 gave a negative opinion by noting that the
victim and her relatives stated that respondent No.3 should not be
released. The District Magistrate, Dahod, also gave a negative
opinion vide letter dated 19.02.202 0, so also the Jail Advisory
Committee at its meeting held on 20.07.2021. That it was thereafter
that respondent No.3 approached this Court by filing Writ Petition
(Crl.) No.135 of 2022 and by Order dated 13.05.2022 this Court
directed the State of Gujarat to consider respondent No.3’s
application within a period of two months from the date of the order .
7.12. Further adverting to the sequence of events, it was stated that
in the meanwhile, the rest of the convicts had also applied
separately for remission in February 2021. The Presiding Officer
(Special Judge, Greater Mumbai) vide a common letter dated
22.03.2021 gave a negative opinion against the premature release
of the remaining ten convicts, respondent Nos.4 to 13 herein. That
thereafter, for one good year, their case was kept pending and only
after 07.03.2022 the new Superintendent of Police, Dahod, gave a
‘no objection’ for the premature release of all the convicts by
separate letters of the same date. The District Magistrate, Dahod,
also gave a positive opinion in favour of the premature release of all
the convicts. On 26.0 5.2022, a meeting of the Jail Advisory
Committee of Gujarat was held and this time, all the members of
the Committee gave a positive opinion. The Additional Director
General of Police, Prisons and Correctional Administration vide
letter dated 09.06.2022 this time gave a positive opinion and did not
raise any object ion for the release of the ten convicts.
7.13. That although the reference by the Jail Advisory Committee to
the State Government, was only qua respondent Nos.4 to 13, the
State Government erroneously recommended the name of
respondent No.3 also, to the Central Government for remission even
in the absence of any application pending before the State
Government .
7.14. Learned counsel for the petitioner next submitted that the
Presiding Judge’s reasoned negative opinion opposing the
premature release was disregarded and this was contrary to the
mandate of Section 432(2) of the CrPC. The remission Orders dated
10.08.2022 of respondent No.1 are in the teeth of the negative
opinion of the Presiding Judge, Special Judge (CBI), Sessions Court,
Greater Mumbai , dated 03.01.2020 and 22.03.2021, thereby,
defeating the purpose of Section 432(2) of the CrPC. Further, the
remission Order s dated 10.08.2022 are conspicuously silent about
the opinion of the Presiding Judge to be mandatorily obtained under
Section 432(2) of the CrPC. Not even a reference is made to the said
opinion. This amounts to an erasure of record by removing from
consideration a document that is statutorily mandated to be
considered and judicially held to be determinative. Reliance was
placed on Ram Chander to contend that the opinion of the
Presiding Judge of the court that convicted the offender will ‘have a
determinative effect’ on the exercise of executive discretion under
Section 432 of the CrPC. Further, reference was made to the
decision of this Court in V. Sriharan , wherein a Constitution Bench
of this Court held that the procedure stipulated in Section 432(2) of
the CrPC is mandatory and that the opinion of the Presiding Judge
of the Court which had tried the convict is critical and an essential
safeguard to check that the power of remission is not exercised
arbitrarily.
7.15. It was next contended that the premature release was
granted illegally as the imprisonment in default for the non -payment
of fine was not served. The Trial Court while sentencing the
respondent s-convicts had also imposed a fine of Rs. 2,000/ - on each
of them, for each of the fourteen counts of murder and three counts
of rape and in the event of default in payment of said fine, sentenced
them to suffer rigorous imprisonment for a further period of two
years each for each count. The total fine payable by the
respondents -convicts amounted to Rs.34,000/ - each and, in
default, they were liable to serve rigorous imprisonment for a period
of thirty -four years (two years each for each count) . The Trial Court
had further directed that the ‘substantive sentences’ shall run
concurrently and that the period of detention, if any, undergone by
the respondents -convicts during the investigation, enquiry, trial,
shall be set off against the terms of imprisonment, not being
imprisonment in default of payment of fine imposed on the accused.
That as per th e nominal roll of respondent Nos.3 to 13, none of them
had paid the fine sentenced by the Trial Court, making them liable
to serve the penalty of rigorous imprisonment for default in payment
of fine. But the respondent s have neither paid the fine of Rs.
34,000/ - to which each of them was sentenced, nor have they served
any sentence in default of the non -payment of fine. It was submitted
that the penalty of imprisonment ordered for default in payment of
fine stands on a completely different footing from the substantive
sentence of imprisonment to be undergone for an offence. While
under Section 432 of the CrPC, the Government has the power to
remit ‘punishment for offence’, the executive discretion does not
extend to waiving off the penalty of imprisonment for default in
payment of fine under Section 64 of the I PC. In this regard, reliance
was placed on Sharad Hiru Kolambe vs. State of Maharashtra ,
(2018) 18 SCC 718 (“Sharad Kolambe”) and Shantilal vs. State
of M.P. , (2007) 11 SCC 243 (“Shantilal”) .
7.16. It was asserted that respondent No.1 while granting
premature release failed to apply its mind and address the
determinative factors outlined by this Court in Laxman Naskar .
Thus, the order s of remission are vitiated by the vice of arbitrariness
for non -consideration of relevant facts and fact ors. According to
learned counsel for the petitioners , a bare perusal of the Order s
dated 10.08.2022 would make it clear that premature release was
granted mechanically and arbitrarily, without giving due
consideration to the factors enumerated in Laxman Naskar, qua
each of the respondent s-convicts. That the Order(s) dated
10.08.2022 are conspicuous in their silence on the behavior and the
following acts of misconduct of each of the respondents -convicts,
including the offences committed while on parole/furlough ,
namely ,:
i. Case Crime No.1121001200158/2020 was registered
against the respondent -convict, Mitesh Chimanlal
Bhatt, under Sections 354, 304 and 306 of the IPC,
committed on 19.06.2020 during parole/furlough ;
and
ii. Case Crime No.02/2015 was registered against the
respondent -convict, Rameshbhai Rupabhai Chadana
under the Prisons Act.
7.17. It was further submitted that it is trite that in cases where a
convict has been sentenced to more than one count of life
imprisonment, he can only be released if remission is duly granted
as per law for each count of life imprisonment. That it is a matter of
record that the respondent s-convicts were sentenced on fifteen
counts of life imprisonment. However, the Orders dated 10.08.2022
have not granted remission for each of the fifteen counts and is only
a generic and blanket order, making the release of the convicts
illegal and arbitrary.
7.18. That respondent No.3 approached this Court in Writ Petition
(Crl.) No.135 of 2022, without disclosing that he ha d already acted
on the judgment of the Gujarat High Court dated 17.07.2019 and
had submitted his application to the Home Department, State of
Maharashtra, and that his application had already been considered
by the authorities concerned, whereby , the major stakeholders had
written against the grant of remission to him. Further, when the
matter was listed before this Court, no notice was issued to the
petitioner – victim and neither was she heard by this Court in the
matter .
7.19. That the Orders dated 10.08.2022 have blatantly ignored the
grave and real apprehension regarding the safety and security of the
victims -survivors raised by public functionaries whose opinions are
required to be taken into account by respondent No.1 State before
granting premature release as per the 1992 policy. That this Court
in a catena of judgments , such as , Epuru Sudhakar and Rajan vs.
Home Secretary, Home Department of Tamil Nadu (2019) 14
SCC 114 (“Rajan”) has highlighted the importance of considerin g
the impact of premature release on the victims in particular and the
society in general . That even the Superintendent of Police, Dahod,
on 03.02.2020 had recommended against the release of
Radheyshyam Bhagwandas Shah as he had cited the possibility of
peace being disturbed. The Sessions Judge, Panchmahal at Godhra
also raised questions regarding the security of the victim – petitioner
herein .
7.20. Learned counsel next asserted that the en-masse and non -
speaking “sanction” of the Central Government dated 11.07.2022
under Section 435(1)(a) of the CrPC does not meet the statutory
requirement of “consultation”. The said sanction conveys its
approval for the premature release of eleven convicts sans any
reason as to why the case of each respondent -convict is deemed fit
for grant of remission. Thus, the approval was granted without
considering the relevant factors outlined in Laxman Naskar .
7.21. That non -application of mind is evident in the non -speaking
and stereotyped orders dated 10.08.2022 which are bereft of any
reason . The Orders are devoid of reasons or grounds as to why the
respondent s-convicts were found fit for the grant of remission. All of
the eleven orders are a verbatim replication of each other, having
only substituted the name and personal details of the respondent s-
convicts. Further, the recommendations of the Jail Advisory
Committee dated 26.05.2022 as regards remission of respondent
Nos.3 to 13 are untenable , being arbitrary and mechanical and
vitiated by non-application of mind. The said opinions are verbatim
and mechanical reproductions of each other that show no
independent consideration of facts of each case of the convicts .
7.22 With the aforesaid submissions, it was prayed that Writ
Petition (Crl.) No.491 of 2022 be allowed and a writ, order or
direction be issued quashing the Order s dated 10.08.2022 passed
by the State of Gujarat by which the convicts in Sessions Case No.
634 of 2004, Mumbai ( respondent No s.3 to 13 herein), were released
prematurely.
8. Learned senior counsel Ms. Indira Jaising appearing for the
petitioner in Writ Petition (Crl.) No.326 of 2022, at the outset
submitted that the petitioner is a Member of Parliament and is a
public personality and consequently possesses the locus to file this
petition as a bona fide person and citizen of India. That the
petitioner seeks to discharg e her fundamental duty under Article
51A(e) of the Constitution of India, seeking to promote harmony and
the spirit of brotherhood amongst the people of India, as well as to
denounce the derogation of the dignity of women. That the
petitioner seeks to uphold the rule of law and thus is not a mere
busybody.
8.1. The following submissions were made to contest the orders of
remission:
(i) that when the actions of the State cause some harm
to the general public, an action by a concerned
citizen would be maintainable and reliance was
placed on B.P Singhal vs. Union of India, (201 0)
6 SCC 331 (“B.P Singhal”) in this regard .
(ii) that the impugned decisions of remission is
characterized by arbitrariness and mala fides and
bear no consideration of relevant fact ors That the
power of the executive must be exercised in line with
constitutional ideals and must be for the benefit of
the public. In this regard, reliance is placed on
Maru Ram and S.P. Gupta vs . Union of India ,
(iii) that there exists no statutory right of appeal against
an order of remission. The only avenue available to
assail an order of remission is either under Article
32 or Article 226. Reliance was placed on Epuru
Sudhakar and Ram Chander. Further, the
jurisdiction of this Court is not ousted by the
existence of alternative legal remedies. Reliance was
placed on a Constitution Bench decision of this
Court in Kavalappara Kottarathil Kochuni vs.
States of Madras and Kerala, (1960) 3 SCR 887
(“Kochuni”) .
(iv) that the present proceedings pertain to
administrative law and not criminal law and as a
result, the principle of being a stranger to the
criminal proceeding does not apply to the case at
hand. Nevertheless, this Court has entertained
petitions filed by ‘strangers ’ in criminal matters in
the past, as in the case of K. Anbazhagan vs.
Superintendent of Police, (2004) 3 SCC 767 (“ K.
Anbazhagan”) .
(v) that such exercises of executive power may be
challenged on the basis of the grounds laid down in
Epuru Sudhakar and Maru Ram .
(vi) that an important question of law arises in the
present proceedings, namely , whether it is
appropriate to grant remission after a period of
fourteen years to convicts of heinous crimes. That a
further question arises , as to whether , the victims
of such crimes must be heard and due
consideration given to their vulnerability prior to the
grant of remission. That there needs to be a
consideration of how compliant such executive
actions and the associated policies are with
constitutional morality. Therefore, this Court may
quash the remission orders passed under Section
432 of the CrPC if they appear to be poorly
reasoned.
(vii) that there is a need to situate the crimes committed
in the larger context of sectarian and communal
violence that was ensuing in the 2002 riots in
Gujarat State . That the crimes were specifically
targeted at the victim on the basis of her religion
and gender. That these heinous crimes constitute
crimes against humanity. It was submitted that the
nature of the crime is important to consider while
deciding whether to grant remission. The
heinousness of the crimes committed by respondent
Nos.3 to 13, the comm unal motivation of the crime s
and the context in which those took place are
contended to have not been considered by the State
while granting remission. Reliance was placed on
Sanaboina Satyanarayana vs. Government of
Andhra Pradesh , (2003) 10 SCC 78 (“ Sanaboina
Satyanarayana”) , wherein a certain Government
Order issued by the State of Andhra Pradesh that
excluded from the scope of remission those
prisoners who had committed crimes against
women and were sentenced to life imprisonment
was upheld by this Court considering the nat ure of
the offences.
(viii) that the Executive is bound not merely by
provisions of the CrPC but also by the overarching
spirit of the Constitution that seeks to promote the
upliftment of women, children, and minorities and
to protect these groups from further vulnerability
and margi nalization. That the policies and actions
of the State must be guided by this vision.
(ix) that, in accordance with the aforementioned
constitutional principles, grant of remission to
those persons sentenced to life imprisonment and
accused of crimes under the Scheduled Castes and
Schedules Tribes (Prevention of Atrocities) Act, the
Explosive Su bstances Act and the Indian Arms Act,
as well as crimes against women under Sections
376 and 354 of the IPC must not be permissible.
Factors such as the opinion of the Presiding Judge,
public interest, potential for recidivism, impact on
the victims and on society and the nature of the
offence must be borne in mind by the State, as held
in Epuru Sudhakar, Sanaboina Satyanarayana
and Zahid Hussain vs. State of West Bengal,
2001 (3) SCC 750 (“Zahid Hussain”) . That the
non-consideration of these factors proves the mala
fide, arbitrary and unreason able manner in which
the impugned orders were passed.
(x) that the 1992 Policy of remission of the State of
Gujarat does not contain any substantive
guidelines pertaining to remission and merely deals
with procedural formalities. That the 2014 Policy is
thus the first instance at which categories of crimes
for wh ich remission may not be granted was
outlined. As such, it is the 2014 Policy that would
apply to the question of remission for respondent
Nos.3 to 13.
(xi) that the grant of remission to the respondent Nos.3
to 13 is in violation of India’s obligations under
international law, specifically instruments such as
the International Covenant on Civil and Political
Rights and the Convention on the Elimination of All
Forms of Discrimination Against Women. That rape
was use d as a tool of oppression by the perpetrators
and the victim in the instant case experienced
significant trauma as a consequence.
(xii) that the grant of remission in the instant case is in
violation of the obligation to prevent crimes against
humanity, which itself forms a part of the norm of
jus cogens. That there is a link between the
peremptory norm of jus cogens and fundamental
values , making the former non -derogable and a part
of domestic law even if not explicitly codified.
Reliance was placed on State of Punjab vs. Dalbir
Singh, (2012) 3 SCC 346 (“Dalbir Singh”) on this
aspect.
(xiii) that the acts of violence that were committed in
Gujarat in 2002 are crimes against humanity,
owing to their widespread nature and communal
motivations. That remission must not be granted to
perpetrators of crimes of such gravity.
8.2 With the above submission s learned senior counsel for the
petitioners sought quashing of the impugned orders.
9. Learned counsel Ms. Vrinda Grover for the petitioner in Writ
Petition (Crl.) No.352 of 2022, submitted that it was absolutely
necessary to consider the opinion of the Presiding Judge. Reliance
was placed on Ram Chander and V. Sriharan . Her further
submissions are recorded as under:
(i) that the Presiding Judge, namely the Special Judge
(CBI), Sessions Court, Mumbai gave negative
opinions dated 03.01.2020 and 22.03.2021 as to
grant of remission to respondent Nos.3 to 13. The
said opinion was well -reasoned and took into
account all of the relevant factors, but this was
completely disregarded by the respondent -State.
(ii) that a fine was imposed on each of the respondent -
convicts as a part of their sentence, amounting to
Rs. 34,000 /- per person. That they had defaulted in
paying these fines and thus would be required to
undergo rigorous imprisonment for a further period
of 34 years. The Trial Court had clarified that these
sentences were substantive in nature and would
run concurrently. In this context, reliance was
placed on Sharad Kolambe and Shantilal .
(iii) reiterating the submissions regarding the remission
orders being arbitrary by virtue of non -
consideration of relevant factors, it was urged that
the criteria outlined in the decision of this Court in
Laxman Naskar were not considered at all.
Reliance was further placed on the decision of this
Court in Mohinder Singh , wherein it was held that
the decision to grant remission must be reasonable,
well-informed and fair. That non -application of
mind and the mechanical nature of the remission
orders utterly belie these principles.
(iv) that reference has only been made to four
documents, namely (1) the order of this Court dated
13.05.2022, (2) the letter of the Additional Director
General of Police and Inspector General of Prisons,
State of Gujarat at Ahmedabad, (3) the Department
Circular dated 09.07.1992 and (4) the letter of the
Ministry of Home Affairs, Government of India in the
impugned orders of remission . It was contended
that the non -consideration of determinative factors
has rendered the remission orders mechanical and
arbitrary, with reliance placed on what is described
as the untenable and unlawful en-masse approval
of the Central Government.
(v) that one of the criteria that is required to be
considered which was highlighted in Laxman
Naskar is the possibility of reformation and
recidivism. That these factors have been given no
consideration as there is no mention of the
respondent -convicts’ behavior while in prison, as
well as offences committed while out on
parole/furlough. That a case has been registered
against one of the respondent -convicts under
Sections 304, 306 and 354 IPC while on parole .
That a range of punishments were imposed on the
respondent -convicts in prison hence, the possibility
of recidivism cannot be entirely ruled out.
(vi) that there is a real and grave apprehension of
danger to the victim if the respondent -convicts are
released into society. This has been reflected in the
recommendation of Superintendent of Police,
Dahod as well as the questions raised by the
Principal and Sessions Judge, Panchmahal at
Godhra in the Jail Advisory Committee meeting
dated 26.05.2022.
(vii) that remission must be granted for each particular
count of life imprisonment, as all of these are
superimposed over each other. Remission granted
qua one sentence does not automatically extend to
the others as well. That a generic, mechanical and
unreason ed blanket order of remission has been
passed by the respondent -State, as remission is not
stated to have been granted for all of the life
sentences of each respondent -convict.
(viii) that Section 435(1)(a) of the CrPC makes it
mandatory for the State Government to consult the
Central Government regarding the exercise of power
to grant remission. But the en-masse and non -
speaking nature of the sanction granted by the
Central Government, merely conveys approval of
the premature release of the respondent -convicts,
which do not meet the requirement of ‘consultation’.
Reliance was again placed on Laxman Naskar .
(ix) further, the opinion of the Sessions Judge,
Panchmahal, Godhra is of a casual and perfunctory
character, that doesn’t pay heed to the heinous
nature of the crimes committed.
(x) it was further submitted that the remission orders
having thus been established as unreasoned,
untenable and vitiated by arbitrariness and mala
fides, there is a need for judicial intervention in the
same.
10. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Ms. Aparna Bhat submitted t hat the aforesaid writ
petition has been filed purely in the interest of the general public
and out of concern for the impact on society if the respondent s-
convicts were released. That there is no political agenda behind the
filing of this writ petition by the petitioner , who is a member of a
national political party and an advocate for women’s rights.
11. Sri Mohammad Nizamuddin Pasha, learned counsel
appearing on behalf of the petitioner in Writ Petition (Crl.) No.403
of 2022 submitted that the cases which are at stages prior to
conviction. i.e., investigation and trial must be treated as being on
a different footing as guilt would not have been established and the
fair trial rights of the accused still subsisted. However, there is no
right to remission post -conviction as held in V. Sriharan . That it is
only upon conviction that the need for the accused to remain in
prison becomes a concern of the society. That all theories of
punishment, including those of retributivism and utilitarianism,
emphasize the impact on society as being of primary importance.
Reliance was placed on T.K. Gopal vs. State of Karnataka,
(2000) 6 SCC 168 (“T.K. Gopal”) , Narinder Singh vs. State of
Punjab, (2014) 6 SCC 466 (“Narinder Singh”) , Shailesh
Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 (“Shailesh
Jasvantbhai”) and Ahmed Hussain Vali Mohammed Saiyed vs.
State of Gujarat, (2009) 7 SCC 254 (“Mohammed Saiyed”) .
12. Sri. S.V. Raju, learned Additional Solicitor General of India,
appearing on behalf of the State of Gujarat and Union of India, at
the outset submitted that the writ petition s filed by persons other
than the victim are not maintainable. That the said persons are
strangers and have no locus -standi to challenge the remission
orders passed by the State of Gujarat. The said petitioners are in no
way connected with the proceedings which convicted the
respondent s herein nor the proceedings which culminated in the
grant of remission to the convicts. Reliance was placed on the
decisions of this Court in Rajiv Ranjan ; Gulzar Ahmed Azmi ;
Simranjit Singh and Ashok Kuma r to contend that no third
party/stranger’s interference in criminal matters is permissible in
law in the garb of filing a PIL.
12.1. Referring to Writ Petition (Crl.) No.319 of 2022, it was
contended that nowhere has the petitioner therein, namely ,
Subhasini Ali pleaded as to how her fundamental rights had been
abridged and as to how she was aggrieved by the action of the State
Government. That the petitioner therein was nothing but an
interloper and a busybody and not a ‘person aggrieved’ as per the
dicta of this Court in M. V. Dabholkar and Jasbhai Motibhai .
Thus, the PIL filed by such a person is nothing but an abuse of the
PIL jurisdiction of this Court and against the principles laid down
in Tehseen and Ashok Kumar . Therefore, l earned ASG sought for
dismissal of all the PILs challenging the impugned orders of
remission on the ground of maintainability.
12.2. It was next contended that there was no illegality in the
Order s granting remission to respondent Nos.3 to 13, dated
10.08.2022. That this Court in Writ Petition (Crl.) No.135 of 2022
vide judgment dated 13.05.2022 had held that the policy which
would be applicable for deciding the remission application was the
one which was in vogue at the time of conviction i.e., the premature
release policy of 1992 and that for the purposes of Section 432 of
the CrPC, the ‘appropriate government’ for considering the
remission application is that State in which the offence was
committed and not the State in which the trial was conducted and
therefore, had directed the State of Gujarat to consider the
application of respondent No.3, Radheshyam Bhagwandas Shah.
Accordingly, the respondent -State of Gujarat had considered the
application of the convict as per the procedure prescribed under
Section 432 of the CrPC read with Section 435 of the CrPC , along
with the Premature Release of Convicts Policy of 1992. The State
Government considered the cases of all eleven prisoners as per the
policy of 1992 and remission was granted on 10.08.2022.
12.3. That further, the Order (s) dated 10.08.2022 w ere passed
after duly considering the opinions expressed by Inspector General
of Prisons, Gujarat State; Jail Superintendent; Jail Advisory
Committee, District Magistrate; Superintendent of Police, CBI,
Special Crime Branch, Mumbai; and the Special Court, Mum bai
(CBI). That as per Section 435 of the CrPC, it is indispensable to
obtain the sanction of the Government of India in cases in which
the investigation of the offence was carried out by a central
investigation agency. In the present case, the investigation was
carried out by CBI, hence, the State Government obtained the
approval of Government of India.
12.4. It was next submitted that respondent Nos.3 to 13 had
completed more than fourteen years in custody , that their behaviour
had been good and the opinions of the concerned authorities had
been obtained as per the policy of 09.07.1992. The State
Government submitted the opinions of the concerned authorities to
the Ministry of Home Affairs, Government of India vide letter dated
28.06.2022 and sought the approval of the Government of India
which conveyed its concurrence/approval under Section 435 of the
CrPC for the premature release of eleven convicts vide letter dated
11.07.2022. Hence, after following the du e procedure, Orders were
issued on 10.08.2022 to release the convicts which would not call
for any interference by this Court .
12.5. Reliance was placed on the judgment of this Court in
Jagdish wherein it was held that if a policy which is beneficial to
the convict exists at the time of consideration of his application for
premature release, then the convict cannot be deprived of such a
beneficial policy. It was held in the said case that , “In case a liberal
policy prevails on the date of consideration of the case of a “lifer” for
premature release, he should be given the benefit thereof.” That
bearing in mind such considerations, the applications of respondent
Nos.3 to 13 for remission were considered and decided.
12.6. That the crime in the instant case was admittedly committed
in the State of Gujarat and ordinarily, the trial was to be concluded
in the same State and in terms of Section 432 (7) of the CrPC, the
appropriate government in the ordinary course would be the State
of Gujarat . However, the trial in the instant case was transferred
under exceptional circumstances by this Court to the neighboring
State of Maharashtra for the limited purpose of trial and disposal by
an order dated 06.08.2004 but after the conclusion of trial and the
prisoner s being convicted, the matter stood transferred to the State
where the crime was committed and thus, the State of Gujarat was
the appropriate government for the purpose of Section 432(7) of the
12.7 It was submitted that the Orders dated 10.08.2022 were
passed by the Government of Gujarat after following the due
procedure laid down in this regard and on an application of mind.
Therefore, the same do not call for any interference by this Court in
these petitions.
13. Learned Counsel for respondent No.3, Sri Rishi Malhotra at
the outset attacked the maintainability of the writ petition s on the
ground that in substance, the petitions seek to challenge the
judgment of this Court dated 13.05.2022 in Writ Petition (Crl.)
No.135 of 2022 ; that the same is impermissible and is in the teeth
of the judgment of a Constitution Bench of this Court in Rupa
Ashok Hurra vs. Ashok Hurra , (2002) 4 SCC 388 , (“Rupa Ashok
Hurra ”) wherein it has been held that a writ petition assailing the
judgment or order of this Court after the dismissal of the Review
Petition is not maintainable. Thus, the only remedy, if any, available
to the petitioner -victim herein against the dismissal of the Review
Petition, is to file a Curative Petition as propounded by this Court in
the case of Rupa Ashok Hurra .
13.1. Sri Rishi Malhotra further submitted that in this proceeding
this Court cannot sit over the judgment passed by another co -
ordinate bench . It was further submitted that this Court by its
judgment dated 13.05.2022 was right in categorically directing the
State of Gujarat to consider the application f or premature release of
respondent No.3 in terms of the policy dated 09.07.19 92 which was
applicable on the date of conviction. That after duly taking into
account the fact that respondent No.3 had undergone over fifteen
years of imprisonment and that no objections were received from
the Jail Superintendent, Godhra and that nine out of ten members
of the Jail Advisory Committee had recommended his premature
release . That coupled with the aforesaid facts the Home Department
of the State of Gujarat as well as the Union Government had
recommended and approved the premature release of respondent
No.3. This clearly demonstrates that the remission order was
correct. Further, it is nowhere mentioned in the 1992 policy that all
stakeholders must give a unanimous opinion for the release of the
convict. All it says is that the State Government should collate
various opinions from different quarters in order to arrive at a
decision.
13.2. As regards the contention of learned counsel for the
petitioner -victim to the effect that the Orders are illegal inasmuch
as th ose were passed without consulting the Presiding Judge of the
convicting court as required under Section 432(2) of the CrPC, it
was submitted that the said provision categorically stipulates that
the appropriate government ‘may require’ the Presiding Judge of the
Trial Court to give his opinion, hence obtaining such an opinion is
not mandatory; whereas, Section 435 of the CrPC uses the word
‘shall’ in respect to the State Government to act only after
consultation with the Central Government. The legislature is
conscious to use the words ‘may’ and ‘shall’ whenever it deems
appropriate and necessary and that the said procedure has been
followed in the instant case .
14. At the outset, learned senior counsel appearing for
respondent No.13, Sri Sidharth Luthra contended that a writ
petition does not lie against the final order of this Court, thus the
petitioner s could have only filed a Curative Petition. He further
submitted as follow:
i) In this regard reliance was placed on the decision of this Court
in Rupa Ashok Hurra , where in it was held that a writ petition
under Article 32 assailing a final judgment of this Court is not
maintainable. That since the Review Petition against the Order
dated 13.05.2022 has been dismissed by this Court, similar
contentions cannot be re -agitated in the guise of the present
writ petition . Reliance was also placed on the decision of this
Court in Naresh Shridhar Mirajkar vs. State of
Maharashtra , AIR 1967 SC 1 (“Naresh Shridhar
Mirajkar”) , where in it has been held that a writ shall not lie
against an order of a Constitutional Court. It was thus
submitted that the order dated 13.05.2022 has attained finality
and cannot be questioned by way of a writ petition under
Article 32. Furthermore, in view of the Rules framed by this
Court, Order XLVIII thereof lays down how an order of this
Court can be questioned by means of a Curative Petition and
thus, a natural corollary is that the same cannot be done
through a writ petition .
ii) As regards the issue of appropriate government and
appropriate policy, learned senior counsel Sri Luthra
submitted that the said issues stood settled in view of this
Court’s Order dated 13.05.2022. The judgments of this Court
in Rashidul Jafar vs. State of U.P., 2022 SCC OnLine SC
1201 (“Rashidul Jafar”) ; State of Haryana vs. Raj Kumar,
(2021) 9 SCC 292 (“Raj Kumar”) and Hitesh vs. State of
Gujarat ( Writ Petition (Crl.) No.467/2022) (“Hitesh ”) were
pressed into service wherein it ha d been held that the policy as
on the date of conviction would apply, and therefore, the 1992
Policy of the State of Gujarat will apply for the grant of
remission in the present case.
iii) Learned senior counsel thereafter raised the plea that in India,
a reformative/rehabilitative and penal sentencing policy is
followed and not one which is punitive in nature. The same was
reiterated when the Model Prison Act, 2023 was finalized which
aims at “reforming prison management and ensuring the
transformation of inmates into law -abiding citizens and their
rehabilitation in society.” Furthermore, in the case of Vinter vs.
The United Kingdom (Applications Nos.66069/09, 130/10
and 3896/10) , (2016) III ECHR 317 (“Vinter “) in the context
of rehabilitation and reformation it was held by the European
Court of Human Rights tha t, “Moreover, if such a person is
incarcerated without any prospect of release and without the
possibility of having his life sentence reviewed, there is the risk
that he can never atone for his offence: whatever the prisoner
does in prison, however exceptional his progress towards
rehabilitation, his punishment remains fixed and unreviewable.”
Learned senior counsel submitted that respondent No.13 had
exhibited unblemished behaviour in prison and there was no
criminality attached to his conduct in prison.
iv) Sri Luthra refuted the argument of the petitioner s that in the
light of the grievous nature of the offence, the convicts herein
do not deserve remission. At the stage of remission, the length
of sentence or the gravity of the original crime cannot be the
sole basis for refusing premature release as held in Satish vs.
State of UP , (2021) 14 SCC 580 (“Satish”) . Therefore, any
argumen t regarding the factual nature of the crime or the
impact it had on society are not relevant for consideration of
remission was the submission of Sri Luthra .
v) That it is open for the High Court as well as this Court to modify
the punishment by providing for a specific period of
incarceration without remission, considering the purported
heinous nature of the offence but neither the High Court nor
this Court chose to exercise the said power to incarcerate the
private respondents herein for a duration which was non -
remittable . This shows that the a foresaid argument advanced
by the petitioner is only a red herring.
vi) It was emphasized t hat an order of remission passed by an
authority merely affects the execution of the sentence, without
interfering with the sentence passed by the Court. Therefore,
since the matter has already attained finality, it is not possible
to question the validity of such an order on factual grounds
alone , such as , the nature of crime, impact on society and
society’s cry for justice.
vii) Learned senior counsel submitted that the mere fact that fine
had not been paid or that there was a default in payment of the
fine imposed does not impact the exercise of the power of
remission. The sentence is something which an offender must
undergo unless it is set aside or remitted in part or in whole
either in appeal, or in revision, or in other appropriate judicial
proceedings or ‘otherwise’, whereas, a term of imprisonment
ordere d in default of payment of fine stands on a different
footing vide Shantilal ; Abdul Gani vs. State of Madhya
Pradesh , (1950) SCC OnLine MP 119 (“Abdul Gani”) and
Shahejadkham Mahebubkham Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkham
Mahebubkham Pathan”) . Further, reliance was place d on
Sharad Kolambe , wherein it was observed by this Court that,
“If the term of imprisonment in default of payment of fine is a
penalty which a person incurs on account of non -payment of fine
and is not a sentence in strict sense, imposition of such default
sentence is completely different and qualitatively distinct fro m a
substantive sentence.”
15. Learned senior counsel appearing for respondent No.7 Mrs.
Sonia Mathur, while adopt ing the submissions of other senior
counsel further contended as under:
15.1. That as per Section 432 (7)(b) of the CrPC and the judicial
precedent set in Radheshyam Bhagwandas Shah , the
appropriate government would be the State of Gujarat. The said
judgment has attained finality as the Review Petition filed against
the said judgment was dismissed by this Court on 13.12.2022.
Thus, the said judgment must be followed for the sake of j udicial
propriety.
15.2. As to the nature of the requirement under Section 432 (2) of
the CrPC, i.e., whether mandatory or directory, it was submitted
that as observed by this Court in Ram Chander the opinion so
obtained is not to be mechanically followed and the government has
the discretion to seek an opinion afresh. That the said view would
demonstrate that the discretion vests with the concerned
government as to whether or not to seek and rely u pon the opinion
of the Presiding Judge of the Trial Court.
15.3. As regards the contentions of the learned counsel for the
petitioner -victim as to non -payment of fine, it was submitted that a
fine of Rs.6,000 /- was paid by respondent No.7 without any
objection on 27.09.2019 before the Sessions Court, Greater
Mumbai . However, without prejudice to the said payment, there is
no provision in the Prison Manual of Gujarat, which bars remission
from being granted if the fine is not paid. The grant of remission
cannot be restricted just because a convict is not financially capable
to bear the fine. The same would cause discrimination based on the
economic and financial capacity of a convict to pay fine, resulting
in the violation of Articles 14 and 21 of the Constitution.
15.4. We have heard learned counsel for the other respondents.
With the aforesaid submissions, it was prayed that these writ
petition s be dismissed.
Reply Arguments:
16. Ms. Shobha Gupta, learned counsel for the petitioner -victim
submitted in her rejoinder on the point that the writ petition was
maintainable under Article 32 of the Constitution as follows :
(i) that the order of grant of remission being an
administrative order, there was neither a statutory
nor substantive right of appeal available to the
aggrieved parties. The only remed y available w as to
file a writ petition under Article 226 of the
Constitution before the High Court of Gujarat, or to
file a writ petition before this Court under Article 32
of the Constitution.
(ii) that this Court has on multiple occasions entertained
writ petitions under Article 32 of the Constitution in
those cases where there existed a “gross violation of
fundamental rights”, or when an executive or
administrative decision “shocked the conscience of
the public, the nation or of this Court”. In this context,
reliance was placed on the judgments of this Court in
Epuru Sudhakar ; Satpal vs . State of Haryana ,
(2000) 5 SCC 170 (“Satpal”) and Mohammed Ishaq
vs. S. Kazam Pasha , (2009) 12 SCC 748
(“Mohammed Ishaq ”). It was submitted that a similar
issue of maintainability arose in Mohammed Ishaq ,
wherein this Court observed that the mere existence
of an alternative remedy in the form of Article 226 does
not preclude an aggrieved person from approaching
this Court directly under Article 32. The rule requiring
the exhaustion of alternative remedies was described
as being one of “convenience and discretion” as
opposed to being absolute or inflexible in nature.
(iii) that this Court ha d in the past entertained writ
petitions under Article 32 filed by convicts seeking
intervention in matters of premature release or the
issuance of appropriate directions. Reliance was
placed on the judgments in Ram Chander, Laxman
Naskar and Rajan.
(iv) that this Court had earlier entertained a writ petition
filed by none other than respondent No.3 himself and
no question was raised as to the maintainability of
that writ petition. All of the other private respondent s
are beneficiaries of the order dated 13.05.2022 passed
by this Court in the aforesaid writ petition . It is thus
incongruous to raise the objection of maintainability
only against the writ petition filed by the petitioner -
victim . That the petitioner -victim was totally unaware
of Writ Petition (Crl.) No.135 of 2022 filed by
respondent No.3 seeking premature release before
this Court. The petitioner learnt about the release, like
the general public did, from the news and social
media. That the petitioner had barely begun to recover
from the shock of respondent Nos.3 to 13 being
released when several PILs were filed, and this Court
was already seized of the matter. This left the
petitioner with no choice but to approach this Court.
(v) that the petitioner had also filed a Review Petition
seeking review of the order dated 13.05.2022, wherein
this Court held the State of Gujarat to be the
appropriate government to consider the grant of
remission, being the State in which the crime took
place. The said order was per incuriam and contrary
to the judgements of this Court. On this aspect,
reliance was again placed on V. Sriharan, Rattan
Singh, M. T. Khan and Hanumant Dass . Hence, the
petitioner was under the impression that the said
Review Petition and this writ petition would be
considered together by this Court. But the Review
Petition has been dismissed. Hence, this writ petition
has to be considered on its own merits.
(vi) that the challenge to the maintainability of this writ
petition is fallacious in the context of the specific
argument raised by respondent Nos.1 and 2, namely ,
that the direction given by this Court as on
13.05.2022 was a mandate that was merely being
adhered to in the remission order and therefore the
same would not be open to challenge. That this further
exemplifies non -application of mind and a hasty and
mechanical manner of granting remission by
misrepresenting about the order dated 13.05.2022.
(vii) It was submitted that the ‘right to justice’ was
recognized as an indispensable human and
fundamental right in Anita Kushwaha vs. Pushap
Sudan, (2016) 8 SCC 509 (“Anita Kushwaha”) , and
that this writ petition was maintainable on that basis
also.
In light of the aforementioned submissions, learned counsel
contended that the filing of a writ petition under Article 32 before
this Court is the most efficacious remedy available to the petitioner .
16.1. Reiterating her submissions regarding the non -consideration
of the negative opinions of the investigating agency, namely the CBI
as well as the Judge of the Special CBI Court, Mumbai, learned
counsel went on to refute the claim of the learned Additional
Solicitor -General that the relevant opinion would be that of the
Presiding Judge of the Godhra Court who was convinced of the
merits of grant of remission. That this contention of learned ASG
would contradict the plain language of Section 432(2) which
specif ies that the Presiding Judge should have been the one who
awarded or confirmed the sentence. Reliance was again placed on
the judgments of this Court in Sangeet, Ram Chander and V.
Sriharan. Learned counsel further contended that the submission
of the learned ASG that the use of the word ‘may’ in Section 432(2)
would imply that there is no necessary requirement to seek the
opinion of the Presiding Judge is erroneous in light of the dictum of
this Court in V. Sriharan .
16.2. It was next contended that a letter dated 17.11.2021 was filed
along with the application dated 10.08.202 2. The said letter by the
State of Gujarat addressed to the State of Maharashtra detailed that
the State of Gujarat possessed no powers of remission with respect
to respondent No.3 and that the appropriate government in this
respect would be the State of Maharashtra. Despite taking this view,
which is in accordance with the position of law laid down by this
Court in various cases, including V. Sriharan , no review petition
was filed by the State challenging the 13.05.2022 order.
16.3. It was next submitted that the learned Additional Solicitor -
General had placed on record the opinion of the CBI dated
09.07.2022 where in, after an apparent change of mind, grant of
remission to respondent Nos.3 to 13 was recommended. That
neither of the documents, namely , the letter of the State of Gujarat
and the changed opinion of the CBI find any mention in the counter -
affidavit filed by the State on 17.10.2022. It was further submitted
that these additional documents establish the rapid timeline of the
process adopted by the Central Government in affirming the orders
of remission, as the State Government’s communication was
received on 06.07.202 2, the opinion of the CBI was sought and
received on 09.07.202 2 and the Central Government expressed its
concurrence on 11.07.202 2.
16.4. It was further contended that respondent No.3 produced a
document dated 18.06.2022 during the course of his arguments,
stating that the same was the opinion of the Presiding Judge of the
Mumbai Special Court (CBI). However, the veracity of the said
document cannot be established as the State claimed to be not in
possession of and is entirely unaware of the s ame.
16.5. Learned counsel reiterated that the above facts reveal non -
application of mind and the mechanical manner in which the orders
of remission were passed in the instant case .
16.6. Learned counsel for the petitioners next submitted that on
30.08.2023, the fine amounts owed were deposited by respondent
Nos.3 to 13. That this is as an admission on their part of the non -
payment of fine. It was contended that they would ordinarily have
had to undergo a further period of six years of imprisonment. That
non-consideration of this fact further proves the non -application of
mind and a mechanical exercise of power by the State of Gujarat
and Union of India in granting remission.
16.7. Learned counsel went on to submit that in Writ Petition (Crl.)
No.135 of 2022 filed by respondent No.3, there was no mention of
material particulars , such as , the name of the petitioner -victim and
the nature of the crimes in question, i.e., gang rape and mass
murder in the petition . Also the fact t hat his application for grant
of remission before the State of Maharashtra had been negatively
opined by all the concerned authorities. That respondent No.3 did
not place on record the judgements and orders of the Trial Court,
High Court, and this Court that had upheld his conviction. That he
made “incorrect and misleading” statements with reference to the
order s of the Bombay High Court dated 05.08.2013 and Gujarat
High Court dated 17.07.2019 , namely , that the two courts had
given differing opin ions, and this fact played a role in this Court’s
decision -making while passing the order dated 13.05.2022.
Respondent No.3 made it seem like both High C ourts were sending
him to the other State and that there was a contradiction. However,
the aforesaid order of the Bombay High Court was dealing with the
transfer of convicts to another jail in their parent State and did not
discuss the issue of remission, which could not have arisen in the
year 2013.
16.8. It was reiterated that the investigating agency of the State of
Gujarat had filed a closure report stating that the accused persons
were not traceable. That the FIR contained erroneous recording of
facts merely to hinder the investigative process. That the case was
transferred by this Court to the State of Maharashtra as a
consequence of the tainted nature of investigation. That the only
reason the petitioner could get justice was because the investigation
was conducted by the CBI. That this demonstrates th e highly biased
and partisan treatment of the petitioner by the State of Gujarat.
That the State has been granting parole and furlough to the
respondent s in a liberal manner once they were transferred to the
Godhra Jail. That in light of the highly diabolical and gruesome
nature of the crime s, the treatment awarded to the respondent s by
the State indicates favouritism and leniency.
16.9. Learned counsel reiterated that the nature of the crimes
committed by the respondent Nos.3 to 13 were unusual and
egregious. That these crimes were very shocking to the society as a
whole and the treatment of the respondent s upon being granted
remission invoked a common sense of pain in the nation. That in
fact the Bombay High Court had described the brutal treatment of
the victims by the respondent Nos.3 to 13, which was reflected in
the condition of the dead bodies. These factors require that
respondent s Nos.3 to 13 be treated differently from other ordinary
criminal s.
17. Learned senior counsel, Ms. Indira Jaising, appearing for the
petitioner in Writ Petition (Crl.) No.326 of 2022 in her rejoinder at
the outset submitted that the State of Gujarat does not have a policy
of any kind for the release of prisoners under Section 43 2 of the
CrPC. That the 1992 Policy merely outlines the procedure to be
follow ed when releasing convicts on remission. That the State must
abide by the law laid down by this Court as well as the
constitutional mandate to protect the fundamental rights of women,
particularly when they are victims of sexual violence in relation to
ethnic conflict.
17.1 Further, it was contended t hat the State of Gujarat is not the
appropriate government and therefore the order of this Court dated
13.05.2022 is per incuriam by virtue of failing to follow the binding
precedent in V. Sriharan . That the impugning of the order of the
Gujarat High Court that held the State of Maharashtra to be the
appropriate Government in Writ Petition (Crl.) No.135 of 2022, filed
by respondent No.3, is completely contrary to the position of law
laid down in Naresh Shridhar Mirajkar , wherein it was held that
no writ petition alleging the violation of fundamental rights would
lie against the judgement or order of a court. That the respondent
No.3 committed fraud on this Court by misrepresenting the order
of the Bombay High Court dated 05.08.2013 in Writ Petition (Crl.)
No.135 of 2022. That the question of two High C ourts taking
“dramatically different views” did not arise as the issue of
appropriate Government was not in question before the Bombay
High Court at all. That this amounts to suppres sio veri, expression
falsi. That this Court in Union of India vs . Ramesh Gandhi ,
(2012) 1 SCC 476 (“Ramesh Gandhi”) , has held that any
judgement that is a consequence of misrepresentation of necessary
facts would constitute fraud and would be treated as a nullity. That
this error of the Court cannot lead to the deprivation of justice to
the victims. While the criminal justice system must strive to adopt
a reformative approach, proportionality of sentence must be treated
as an equally important ideal. Reliance was placed on the
judgements of this Court in Alister Anthony Pareira vs . State of
Maharashtra , (2012) 2 SCC 648 (“Alister Anthony Pareira”) ,
Ravji vs . State of Rajasthan , (1996) 2 SCC 175 (“Ravji”) and
Soman vs . State of Kerala , (2013) 11 SCC 382 (“Soman”) .
18. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition (Crl.) No.352 of 2022 reiterated the contentions as to the
centrality and non -optional nature of seeking the opinion of the
Presiding Judge under Section 432(2) of the CrPC, the non -serving
of the concurrent sentences for the non -payment of fine by the
respondent Nos.3 to 13 as well as the need to consider the nature
of the crime s and the impact on public welfare while considering
the grant of remission. Reliance was placed on the judgment of this
Court in Ram Chander, Sharad Kolambe, Devendra Kumar vs .
State of Uttaranchal , (2013) 9 SCC 363 (“Devendra Kumar”)
and Abdul Gani.
18.1. It was further submitted that the State of Gujarat has not
considered the possibility of recidivism and whether there was any
evidence of reformation of respondent Nos.3 to 13. That as per the
record, respondent Nos.3 to 13 have not demonstrated any sign of
reform and have not expressed any remorse for the crimes they have
committed. That their applications for remission do not contain
reference to feelings of remorse felt by them for their actions. The
non-payment o f fine is further indication of th e absence of remorse.
Also fresh cases have been registered against two of the
respondent s, and this serves as proof of their non -reformation.
18.2. It was also contended that reliance cannot be placed on
documents , such as , letter dated 09.07.2022 of the C.B.I, wherein
an affirmative opinion on remission was expressed as well as a letter
produced by respondent No.3 containing the affirmative opinion of
the Special Judge (C.B.I), Civil and Sessions Court , Mumbai as
these documents have not been listed among the documents relied
upon by the State of Gujarat while granting remission to the
respondent Nos.3 to 13.
19. Ms. Aparna Bhat, learned counsel for the petitioner in Writ
Petition (Crl.) No.319 of 2022 in her rejoinder submitted that the
remission granted by the State of Gujarat to respondent Nos.3 to
13 was violative of Article 14 of the Constitution of India. That
prison statistics from the year 2021 reveal that 66.7% of the
convicts in Gujarat are undergoing life imprisonment, at least a
fraction of whom have completed fourteen years of incarceration.
That no special case has been made out either by the State of
Gujarat or the Union of India as to why respondent Nos.3 to 13 are
singularly entitled to remission over all of the other convicts.
Reliance was placed on judgements in S. G. Jaisinghani vs . Union
of India , AIR 1967 SC 1427 (“S. G. Jaisinghani”) and E.P.
Royappa vs . State of T.N., (1974) 4 SCC 3 (“E.P. Royappa”) ,
where in this Court held that arbitrary and mala fide exercise of
power by the State would constitute a violation of Article 14 of the
Constitution. That discretionary and en-masse remission on festive
occasions was held to be impermissible in the case of Sangeet .
19.1. It was further submitted that there is no right to remission
that a convict can necessarily avail. That remission must be an
exercise of discretion judiciously by the concerned authorities.
Reliance was placed on the judgment s of this Court in Sangeet, V.
Sriharan, State of Haryana vs . Mahender Singh , (2007) 13 SCC
606 (“Mahender Singh”) ; Mohinder Singh, Maru Ram and Shri
Bhagwan vs . State of Rajasthan , (2001) 6 SCC 296 (“Shri
Bhagwan”) .
20. Mr. Mohammad Nizamuddin Pasha, learned counsel for the
petitioner in Writ Petition (Crl.) No.403 of 2022 reiterated the
contention that materials not relied upon by the State of Gujarat
while deciding on the question of remission for respondent Nos.3 to
13 cannot be used to justify the decision retrospectively. Reliance
was placed on the decision of this Court in OPTO Circuit India
Ltd. vs. Axis Bank, (2021) 6 SCC 707 (“OPTO Circuit”) . That
contrary to the submission of the learned ASG, the State has to
consider the gravity of the offence while deciding whether to grant
remission or not. That in cases, where the crimes are of a much less
serious nature, remission has not been granted owing to the
perceived seriousness of the offence s by the State but in these cases
of gruesome crime, remission has been simply granted . Further,
there is a need to consider the fact that the victim and the convicts
live in close proximity while granting remission , which fact has been
considered in other cases but not in the impugned remission
orders.
Points for consideration :
21. Having heard learned senior counsel and learned counsel for
the respective petitioners as well as learned ASG, learned senior
counsel and learned counsel for the respondents, the following
points would arise for our consideration: -
1) Whether the petition filed by one of the victims in Writ
Petition (Crl.) No.491 of 2022 under Article 32 of the
Constitution is maintainable?
2) Whether the writ petitions filed as Public Interest
Litigation (PIL) assailing the impugned orders of
remission dated 10.08.2022 are maintainable?
3) Whether the Government of the State of Gujarat was
competent to pass the impugned orders of remission?
4) Whether the impugned orders of remission passed by
the respondent -State of Gujarat in favour of
respondent Nos.3 to 13 are in accordance with law?
5) What Order?
The aforesaid points shall be considered in seriatim .
A detailed narration of facts and contentions would not call for
reiteration at this stage .
Re: Point No. 1: “Whether the petition filed by one of the
victims in Writ Petition (Crl.) No.491 of 2022 under
Article 32 of the Constitution is maintainable?”
22. Sri Rishi Malhotra, learned counsel for respondent No.3, while
placing reliance on the decisions of this Court, made a specific plea
regarding maintainability of Writ Petition (Crl.) No.491 of 2022 filed
by the victim by contending that the said petitioner had filed a
review petition challenging the order dated 13.05.2022 passed in
Writ Petition (Crl.) No.135 of 2022 and the same was dismissed.
Therefore, the only remedy open to the petitioner was to file a
curative petition in terms of the judgment of this C ourt in Rupa
Ashok Hurrah and not challenging the remission orders by filing a
fresh writ petition. We shall answer this con tention in detail while
considering point No.3 .
22.1. One of the contentions raised by learned Senior Counsel, Sri
S. Guru Krishna Kumar appearing for one of the private
respondents was that the petitioner in Writ Petition (Crl.) No.491 of
2022 , Bilkis Bano , ought to have challenged the orders of remission
before the Gujarat High Court by filing a petition under Article 226
of the Constitution rather than invoking Article 32 of the
Constitution before this Court. In this regard, it was submitted that
by strai ghtaway filing a petition under Article 32 of the Constitution
a right of approaching this Court by way of an appeal by an
aggrieved party has been lost. It was submitted that if victims file
petitions under Article 32 of the Constitution before this Court
challenging orders of remission, floodgate s would be opened and
persons such as the petitioner would straightaway file writ petition s
before this Court. That when an alternative remedy of filing a writ
petition under Article 226 of the Constitution is available which is
also a wider remedy than Article 32 of the Constitution, the petition
filed by the writ petitioner in Writ Petition (Crl.) No.491 of 2022
must be dismissed reserving liberty to her to approach the High
Court, if so advised.
Similar arguments were made by learned senior counsel Sri
Chidambaresh.
22.2. At the outset, we state that Article 32 of the Constitution is a
part of Part -III of the Constitution of India which deals with
Fundamental Rights. The right to file a petition under Article 32 of
the Constitution is also a Fundamental Right. In the instant case,
the petitioner - Bilkis Bano has filed her writ petition under Article
32 of the Constitution in order to enforce her Fundamental Rights
under Article 21 of the Constitution which speaks of right to life and
liberty and Article 14 which deals with right to equality and equal
protection of the laws. The object and purpose of Article 32 of the
Constitution which is also recognised to be the “soul of the
Constitution” and which is a Fundamental Right in itself is for the
enforcement of other Fundamental Rights in Part-III of the
Constitution. We think that the aforesaid constitutional remedy is
also to enforce the goals enshrined in the Preamble of the
Constitution, which speak of justice , liberty, equality and fraternity.
Bearing in mind the expa nded notion of access to justice which also
includes speedy remedy , we think that the petition filed by the
petitioner in Writ Petition (Crl.) No.491 of 2022 cannot be dismissed
on the ground of availability of an alternative remedy under Article
226 of the Constitution or on the ground of its maintainability
under Article 32 of the Constitution before this Court.
22.3. There is another strong er reason as to why the said petitioner
has approached this Court by filing a petition under Article 32 of
the Constitution rather than invoking Article 226 of the
Constitution before the High Court. That is because earlier, one of
the respondents, namely, r espondent No.3 Radheshyam
Bhagwandas Shah had preferred Writ Petition (Crl.) No.135 of 2022
invoking Article 32 of the Constitution before this Court by seeking
a direction to the State of Gujarat to consider his case for remission
under the Policy of 1992 . This Court issued a categorical direction
to that effect. In fact, the respondent -State has understood the said
direction as if it was a command or a direction to grant remission
within a period of two months. But, before this Court in the said
proceedings , one of the serious contentions raised by the State of
Gujarat was that it was not the appropriate Government to grant
remission which contention was negatived by the order dated
13.05.2022 . In fact, that is one of the grounds raised by the
petitioner v ictim to assail the orders of remission granted to
respondent Nos.3 to 13. That being so, the High Court of Gujarat
would not have been in a position to entertain the aforesaid
contention in view of the categorical direction issued by this Court
in Writ Petition (Crl.) No.491 of 2022 disposed on 13.05.2022. In
the teeth of the aforesaid order of this Court, the contention
regarding the State of Gujarat not being the competent State to
consider the validity of the orders of remission in a petition filed
under Article 226 of the Constitution, particularly, when the
question of competency wa s raised, could not have been dealt with
by the Gujarat High Court on the principle of judicia l propriety.
Therefore, for this reason also the petitioner in Writ Petition (Crl.)
No.135 of 2022 has, in our view, rightly approached this Court
challenging the orders of remission. The contentions of learned
Senior Counsel, Sri S. Guru Krishna Kumar and Sri Chidambaresh
are hence, rejected. Thus, we hold that Writ Petition (Crl.) No.491
of 2022 filed under Article 32 of the Constitution is clearly
maintainable.
Re: Point No.2 : “Whether the writ petitions filed as Public
Interest Litigation (PIL) assailing the impugned orders of
remission dated 10.08.2022 are maintainable?”
23. We now record the submissions made with regard to
maintainability of the Public Interest Litigation (PIL) assailing the
orders of remission in favour of respondent Nos.3 to 13 herein.
23.1. Learned ASG appearing for the State of Gujarat as well as
Union of India submitted that the writ petitions filed as public
interest litigations are not maintainable as the petitioners are
strangers to the impugned orders of remission and they are in no
way connected with the matter. In this context, reliance was placed
on certain decisions referred to above including Rajiv Ranjan,
Simranjit Singh , and, Ashok Kumar , to contend that there can
be no third party interference in criminal matters in the garb of
filing public interest litigations. It was also contended that the
petitioners who have filed the public interest litigation are
interlopers and busybodies and are not persons who are aggrieved.
In the aforesaid context, reliance was placed on M.V. Dabholkar
and Jasbhai Motibhai .
23.2. Shri Sidharth Luthra, learned senior counsel has also voiced
the arguments of the respondents by referring to certain decisions
of this Court while contending that the grant of remission is in the
exclusive domain of the State and although no convict can seek
remission as a matter of fundamental right has nevertheless the
right to be considered for remission. Tha t remission is a matter
between the convict and the State and, therefore, there can be no
third party inference in such a matter. The detai led submissions of
the learned counsel have already been adverted to above and,
therefore, it is unnecessary to reproduce the same once again.
23.3. Respondent No.3 has challenged the locus of the petitioner s
in Writ Petition (Crl.) No.319 of 2022 and connected writ petitions
and contended that the petitioner s therein are not related to the
said case and are third -party /strangers to the case. If petitions filed
by third - party strangers are entertained by this Court, then it
would unsettle the settled position of law and would open floodgates
for litigation. Learned counsel for respondent No.3 Sri Rishi
Malhotra placed reliance on the decision of this Court in Janata
Dal vs. H.S. Chowdhary, (1992) 4 SCC 305 (“Janata Dal”) which
was reiterated and followed in Simranjit Singh and in
Subramanian Swamy vs. Raju, (2013) 10 SCC 465
(“Subramanian Swamy ”) where it has consistently been held that
a third party, who is a total stranger to the prosecution has no 'locus
standi ' in criminal matters and has no right whatsoever to file a
petition under Article 32.
23.4. In Simranjit Singh , this Court was faced with the situation
where a conviction of some of the accused persons by this Court
under the Terrorist and Disruptive Activities (Prevention) Act,
(TADA Act ) was sought to be challenged under Article 32 of the
Constitution by the President of the Akali Dal (M), namely, Simranjit
Singh Mann which was dismissed. In paragraph 5 of the judgment
in Simranjit Singh , this Court categorically dealt with the said
issue and held that the petition under Article 32 of the Constitution
was not maintainable for the simple reason that the petitioner
therein did not seek to enforce any of his fundamental rights nor
did he com plain that any of his fundamental rights were being
violated. This Court was of the view that a total stranger in a
criminal case cannot be permitted to question the correctness of a
decision.
24. Per contra , learned senior counsel, Ms. Indira Jaising, has
made her submissions o n the issue of locus standi of the petitioner
in Writ Petition (Crl.) No.326 of 2022. According to her, even when
no specific legal injury is caused to a person or to a determinate
class or group of persons by an act or omission of the State or any
public authority but when an injury is caused to public interest, a
concerned citizen can maintain an action for vindicating the rule of
law and setting aside the unlawful action or enforcing the
performance of public duty. ( Vide B.P Singhal ).
24.1. She asserted that the writ petition raise s questions of great
public importance in that, in a democracy based on the rule of law,
no authority has any unfeterred and unreviewable discretion. All
powers vested in an authority, are intended to be used only for
public good. The exercise of executive power must be informed by
the finer canons of constitutionalism, vide Maru Ram. That the
impugned decision of granting remission to the convicts violates
rule of law, is arbitrary and not based on any relevant
consideration. Therefore, the writ petition filed by the petitioner in
public interest is maintainable. In this regard relian ce was p laced
on S.P. Gupta .
24.2. As regards respondents’ contention that by entertaining the
petition under Article 32 of the Constitution the convicts have been
denied the right of appeal, it was submitted that there exists no
statutory right of appeal against an order denying or permitt ing
remission. Such an order can only be challenged under Article 226
or Article 32 of the Constitution. Further, a Constitution Bench of
this Court in Kochuni observed that, “…the mere existence of an
adequate alternative remedy cannot per se be a good an d sufficient
ground for throwing out a petition under Article 32, if the existence
of a fundamental right and a breach, actual or threatened, of such
right is alleged and is prima facie established on the petition.”
24.3. As regards the respondents’ submission that a stranger to the
criminal proceedings under any circumstance cannot file a petition
under Article 32, it was contended that the instant proceedings are
not criminal in nature, they fall within the realm of admin istrative
law as they seek to challenge orders of remission which are
administrative decisions . Learned senior counsel brought to our
notice the fact that this Court had entertained a petition filed by a
DMK leader under Section 406 of the CrPC seeking the transfer of
a pending criminal trial against his political opponent, J.
Jayalalithaa, from the State of Tamil Nadu to the State of Karnataka
vide K. Anbazhagan .
25. Ms. Vrinda Grover, learned counsel for the petitioner in Writ
Petition (Crl.) No.352 of 2022, at the outset, submitted that the said
petition has been filed in the larger public interest by the petitioners
who have vast knowledge and practical expertise on issues of public
policy, governance and upholding the rule of law. Their petition
challenges not only the arbitrary and mala fide exercise of executive
prerogative under Section 432 of the CrPC, but also prays for a shift
in practices related to the grant of remission by bringing in more
accountability and transparency to the process of grant of
remission. Thus, the writ petition is maintainable as a Public
Interest Litigation.
25.1. Learned counsel contended that the petition does not
constitute an intervention into criminal proceedings but is rather a
challenge to arbitrary executive action, which is amenable to
judicial review. That it is settled law that the exercise of power under
Section 432 of the CrPC is an administrative act which neither
retracts from a judicial order nor does it wipe out the conviction of
the accused and is merely an executive prerogative exercised after
the judicial function in a criminal proceeding has come to an end
vide Epuru Sudhakar and Ashok Kumar.
25.2. It was further submitted that all the judgments cited by the
respondents -convicts as also the respondent -State to argue that the
petitioners have no locus standi in the matter refer to different
stages of criminal proceedings, viz. petitions related to
investigation, trial, sentencing or quashing of the FIR. However, the
present petition is a challenge to the arbitrary and mala fide
administrative action which has arisen after the criminal
proceedings have attained finality in the eye of law.
25.3. Learned counsel submitted that it is trite that the exercise of
executive discretion is subject to rule of law and fairness in State
action as embodied in Article 14 of the Constitution. The exercise of
such discretion under Section 432 of the CrPC which is arbitrary or
mala fide amounts to State action in violation of constitutional and
statutory obligations and is detrimental to public interest. Learned
counsel placed reliance on the decision of this Court in S. P. Gupta
to submit that this Court ha s in many cases held that in case of
public injury caused by an act or omission of the State which is
contrary to the rule of law, any member of the public acting bona
fide can maintain an action for redressal of a public wrong. In the
case at hand, the mala fide and arbitrary grant of premature release
to the respondents -convicts by State action is de hors constitutional
mandate and abets immunity for violence against women. ( Vide
Sheonandan Paswan vs. State of Bihar, (1987) 1 SCC 288
(“Sheonandan Paswan”) and Abdul Wahab K. vs. State of
Kerala, (2018) 18 SCC 448 (“Abdul Wahab”) .
25.4. Learned counsel next submitted that this Court in
Subramanian Swamy, while adjudicating on the locus of a public -
spirited intervenor in a case requiring interpretation of the Juvenile
Justice (Care and Protection of Children ) Act, 2015, held that the
intervenor had sought an interpretation of criminal law which
would have a wide implication beyond the scope of the parties in
that case and hence, allowed the same. Thus, when larger questions
of law are involved, which include interpretation of statutory
provisions for the purpose of grant of premature release/remission,
public -spirited persons who approach the Court in a bona fide
manner, ought not to be prevented from assisting the Court to
arrive at a just and fair outcome.
25.5. Learned counsel Ms. Grover further submitted that in cases
where offences have shocked the conscience of the society, spread
fear and alarm amongst citizens and have impugned on the secular
fabric of society, like in the instant case, this Court has allowed
interventions by members of the public seeking to bring to the
attention of the Court the inaction and apat hy on the part of the
State in discharging its duty within the criminal justice system. It
has been held in some cases that the technical rul e of locus cannot
shield the arbitrary and illegal exercise of executive discretion in
violation of constitutional and statutory principles, once the same
have been brought to the attention of this Court.
26. Learned counsel for the petitioner in Writ Petition (Crl.)
No.319 of 2022, Smt. Aparna Bhat submitted that the petitioner
has locus standi to approach this Court against the remission
orders dated 10.08.2022. It was submitted that upholding the
constitutional values and protection of all citizens is the
responsibility of the State and there is a legitimate expectation that
the State conducts all its actions in accordance with constitutional
values. That the aforesaid petition has been filed in public interest
as the premature release of respondent Nos.3 to 13 cannot be
permitted since the convicts pose a danger to society. Tha t the
petitioners in the connected matters fulfil the wide ambit of the
expression "person aggrieved” as envisaged under PIL jurisdiction
since they are challenging the release of convicts who have
committed heinous and grave offences against society.
26.1. On the issue of locus standi of the petitioners to approach this
Court, the learned counsel relied on para 6 of A.R Antulay vs.
Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (“A.R Antulay”) .
Further, it was submitted that in Sheonandan Paswan, this Court
relied on A. R. Antulay and held that if a citizen can set the
machinery of criminal law in motion, she is also entitled to oppose
the unwarranted withdrawal of prosecution in an offence against
society.
26.2. Learned counsel further placed reliance on the dictum of this
Court in Manohar Lal vs. Vinesh Anand, (2001) 5 SCC 407 ,
wherein it was held that the doctrine of locus standi is totally foreign
to criminal jurisprudence and that society cannot afford to have a
criminal escape his liability. Also, in Ratanlal vs. Prahlad Jat ,
(2017) 9 SCC 340, this Court held that a crime is not merely an
offence committed in relation to an individual but is also an offence
against society at large and it is the duty of the State to punish the
offender.
27. Although, we have recorded the detailed submissions made
on behalf of the respective parties, we do not think it is necessary
to answer the point regarding maintainability of the PILs in this case
inasmuch as one of the victims, namely, Bilkis Bano has also filed
a writ petition invoking Article 32 of the Constitution assailing the
orders of remission which we have held to be maintainable. The
consideration of that petition on its merits would suffice in the
instant case. Hence, we are of the view that the question of
maintainability of the PILs challenging the orders of remission in
the instant case would not call for an answer from us owing to the
aforesaid reason. As a result, we hold that consideration of the point
on the maintainability of the PILs has been rendered wholly
academic and not requiring an answer in this case. Therefore , the
question regarding maintainability of a PIL challenging orders of
remission is kept open to be considered in any other appropriate
case.
28. Before we consider point No.3 , we shall deal with the concept
of remission.
Remission : Scope & Ambit
29. Krishna Iyer, J. in Mohammad Giasuddin vs. State of A.P.,
(1997) 3 SCC 287 , quoted George Bernard Shaw the famous
satirist who said , “If you are to punish a man retributively, you must
injure him. If you are to reform him, you must improve him and, men
are not improved by injuries .” According to him, humanity today
views sentencing as a process of reshaping a person who has
deteriorated into criminality and the modern community has a
primary stake in the rehabilitation of the offender as a means of
social defence.
29.1. Further , quoting a British Buddhist -Christian Judge, it was
observed that in the context of karuna (compassion) and
punishment for karma (bad deeds) , ‘The two things are not
incompatible. While an accused is punished for what he has done, a
quality of what is sometimes called mercy, rather than an emotional
hate against the man for doing something harmful must be deserved.
This is what compassion is about.’
30. Learned senior counsel Sri Sidharth Luthra, drew our
attention to the principles covering grant of remission and
distinguished it from concepts, such as commutation, pardon, and
reprieve, with reference to a judgment of this Court in State (Govt.
of NCT of Delhi) vs. Prem Raj, (2003) 7 SCC 121 ( “Prem Raj ”).
Articles 72 and 161 deal with clemency powers of the President of
India and the Governor of a State, and also include the power to
grant pardons, reprieves, respites or remissions of punishment or
to sus pend, remit or commute the sentences in certain cases. The
power under Article 72 inter alia extends to all cases where the
punishment or sentence is for an offence against any law relating
to a matter to which the executive power of the Union extends and
in all cases where the sentence is a sentence of death. Article 161
states that the Governme nt of a State shall have the power to grant
pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person co nvicted of
any offence against any law relating to a matter to which the
executive power of the State extends. It was observed in the said
judgment that the powers under Articles 72 and 161 of the
Constitution of India are absolute and cannot be fettered by any
statutory provision , such as, Sections 432, 433 or 433 -A of the
CrPC or by any prison rule.
30.1. It was further observed that a pardon is an act of grace,
proceeding from the power entrusted with the execution of the law,
which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed. It affects
both the punishment prescribed for the offence and the guilt of the
offender. But pardon has to be distinguished from “amnesty” which
is defined as a “general pardon of political prisoners; an act of
oblivion”. An amnesty would result in the release of the convict but
does not affect disqualification incurred, if any. ‘Reprieve’ means a
stay of execution of a sentence, a postponement of a capital
sentence. Respite means awarding a lesser sentence instead of the
penalty prescribed in view of the fact that the accused has had no
previous conviction. It is something like a release on probation for
good conduct under Section 360 of the CrPC. On the other hand,
remission is reduction of a sentence without changing its character.
In the case of a remission , the guilt of the offender is not affected,
nor is the sentence of the court, except in the sense that the person
concerned does not suffer incarceration for the entire period of the
sentence, but is relieved from serving out a part of it. Commutation
is change of a sentence to a lighter sentence of a different kind .
Section 432 empowers the appropriate Government to suspend or
remit sentences.
30.2. Further, a remission of sentence does not mean acquittal and
an aggrieved party has every right to vindicate himself or herself.
In this context, reliance was placed on Sarat Chandra Rabha vs.
Khagendranath Nath, AIR 1961 SC 334 (“Sarat Chandra
Rabha”) , wherein a Constitution Bench of this Court while
distinguishing between a pardon and a remission observed that an
order of remission does not wipe out the offence; it also does not
wipe out the conviction. All that it does is to have an effect on the
execution of t he sentence; though ordinarily a convicted person
would have to serve out the full sentence imposed by a court, he
need not do so with respect to that part of the sentence which has
been ordered to be remitted. An order of remission thus, does not
in any w ay interfere with the order of the court; it affects only the
execution of the sentence passed by the court and frees the
convicted person from his liability to undergo the full term of
imprisonment inflicted by the court even though the order of
conviction and sentence passed by the court still stands as it is.
The power to grant remission is an executive power and cannot have
the effect which the order of an appellate or revisional court would
have of reducing the sentence passed by the trial court and
substituting in its place the reduced sentence adjudged by t he
appellate or revisional court. According to Weater's Constitutional
Law, to cut short a sentence by an act of clemency is an exercise of
executive power which abridges the enforcement of the judgment
but does not alter it qua the judgment.
30.3. Reliance was placed on Mahender Sing h, to urge that a right
to be considered for remission, keeping in view the constitutional
safeguards of a convict under Articles 20 and 21 of the Constitution
of India, must be held to be a legal one. Such a legal right emanates
from not only the Prisons A ct but also from the Rules framed
thereunder. Although no convict can be said to have any
constitutional right for obtaining remission in his sentence, the
policy decision itself must be held to have conferred a right to be
considered therefor. Whether by reason of a statutory rule or
otherwise if a policy decision has been laid down, the persons who
come within the purview thereof are entitled to be treated equally,
vide State of Mysore vs. H. Srinivasmurthy, (1976) 1 SCC 817
(“H. Srinivasmurthy”) .
30.4. In Mahender Singh , this Court was considering the
correctness of a judgment of the Punjab and Haryana High Court
in which a circular /letter issued by the State of Haryana laying
down criteria for premature release of the prisoners had been
declared to be unconstitutional. In the above context, this Court
considered the right of the convict to be considered for remission
and not on what should be the criteria when the matter was taken
up for grant thereof.
30.5. Satish was pressed into service to contend that the length of
the sentence or the gravity of the original crime cannot be the sole
basis for refusing premature release. Any assessment regarding a
predilection to commit crime upon release must be based on
anteced ents as well as conduct of the prisoner while in jail, and not
merely on his age or apprehensions of the victims and witnesses. It
was observed that although, a convict cannot claim remission as a
matter of right, once a law has been made by the appropriat e
legislature, it is not open for the executive authorities to
surreptitiously subvert its mandate. It was further observed that
where the authorities are found to have failed to discharge their
statutory obligations despite judicial directions, it would then not
be inappropriate for a constitutional court while exercising its
powers of judicial review to assume such task onto itself and direct
compliance through a writ of mandamus. Considering that the
petitioners therein had served nearly two decades of incarceration
and had thus suffered the consequences of their actions, a balance
between individual and societal welfare was struck by granting the
petitioners therein conditional pr emature release, subject to their
continuing good conduct. In the said case, a direction was issued
to the State Government to release the prisoner s therein on
probation in terms of Section 2 of the U.P. Prisoners Release on
Probation Act, 1938 within a period of two weeks. The respondent
State was reserved liberty with the overriding condition that the
said direction could be reversed or recalled in favour of any party or
as per the petitioner therein.
31. The following judgments of this Court are apposite to the
concept of remission :
(a) In Maru Ram , a Constitution Bench considered the validity
of Section 433 -A of the CrPC. Krishna Iyer, J. speaking for the
Bench observed, “Ordinarily, where a sentence is for a definite
term, the calculus of remissions may benefit the prisoner to
instant release at the point where the subtraction results in
zero”. However, “when it comes to life imprisonment, where the
sentence is indeterminate and of an uncertain duration, the
result of subtraction from an uncertain quantity is still an
uncertain quantity and release of the prisoner cannot follow except
on some fiction of quantification of a sentence of uncertain
duration.
(i) Referring to Gopal Vinayak Godse vs. State of
Maharashtra, (1961) 3 SCR 440 , it was observed that the
said judgment is an authority for the proposition that a
sentence of imprisonment for life is one of “imprisonment for
the whole of the remaining period of the convicted person’s
natural life”, unless the said sentence is committed or remitted
by an appropriate authority under the relevant provisions of
law.
(ii) In Gopal Vinayak Godse , a distinction was drawn between
remission, sentence and life sentence. Remission limited a
time, helps computation but does not ipso jure operate as
release of the prisoner. But, when the sentence awarded by the
Judge is for a fixed term, the effect of remission s may be to
scale down the term to be endured and reduce it to nil, while
leaving the fact um and quantum of sentence intact. However,
when the sentence is a life sentence, remissions , quantified in
time, cannot reach a point of zero. Since Section 433 -A deals
only with life sentences, remissions cannot entitle a prisoner to
release. It was further observed that remission, in the case of
life imprisonment, ripens into a reduction of sentence of the
entire balance only when a final release order is made. If
this is not done, the prisoner will continue in custody. The
reason is, that life sentence is nothing less than life long
imprisonment and remission vests no right to release when the
sentence is life imprisonment. Nor is any vested right to
remission cancelled by compulsory fourteen years jail life as a
life sentence is a sentence for whole life.
(iii) Interpreting Section 433 -A it was observed that there are three
components in it which is in the nature of saving clause.
Firstly, the CrPC generally governs matters covered by it.
Secondly, if a special or local law exists covering the same area,
the latter law will be saved and will prevail, such as short
sentencing measures and remission scheme s promulgated by
various States. The third component is, if there is a specific
provision to the contrary then, whether it would override the
special or local law. It was held that Section 433 -A picks out
of a mass of imprisonment cases a specific class of life
imprisonment cases and subjects it explicitly to a
particularized treatment. Therefore, Section 433 -A applies in
preference to any special or local law. This is because Section
5 of the CrPC expressly declares that specific provision, if any,
to the contrary will prevail over any special or local law.
Therefore, Section 433 -A would prevail and escape exclusion of
Section 5. The Constitution Bench concluded that Section 433 -
A is supreme over the remission rules and short -sentencing
statutes made by various States. Section 433 -A does not permit
parole or other related release within a span of fourteen years.
(iv) It was further observed that criminology must include
victimology as a major component of its concerns. When a
murder or other grievous offence is committed the victims or
other aggrieved persons must receive reparation and social
responsibility of the criminal to restore the l oss or he al the
injury which is part of the punitive exercise which means the
length of the prison term is no reparation to the crippled or
bereaved.
(v) Fazal Ali, J . in his concurring judgment in Maru Ram observed
that crime is rightly described as an act of war fare against the
community touching new depths of lawlessness. According to
him, the object of imposing deterrent sentence is three -fold.
While holding that the deterrent form of punishment may
not be a most suitable or ideal form of punishment yet, the fact
remains that the deterrent punishment prevents occurrence of
offence . He further observed that Section 433 -A is actually
asocial piece of legislation which by one stroke seeks to
prevent dangerous criminals from repeating offences and on
the other hand protects the society from harm and distress
caused to innocent persons. While opining that where section
433-A applies, no question of reduction of sentence arises at
all unless the President of India or the Governor of a State
choose to exercise their wide powers under Article 72 or Article
161 of the Constitution respectively which also have to be
exercised according to sound legal principles as , any reduction
or modification in the deterrent punishment would , far from
reforming the criminal , be counter -productive.
(b) Mohinder Singh is a case which arose under Section 432 on
remission of sentence in which the difference between the terms
`bail’, ` furlough’ and ` parole’ having different connotations were
discussed. It was observed that furloughs are variously known as
temporary leaves, home visits or temporary community release and
are usually granted when a convict is suddenly faced with a severe
family crisis such as death or grave illness in the immediate family
and often the convict/inmate is accompanied by an officer as part
of the terms of temporary release of special leave which is granted
to a prisoner facing a family crisis. Parole is a release of a prisoner
temporarily for a special purpose or completely before the expiry of
the sentence or on promise of good behaviour. Conditional release
from imprisonment is to entitle a convict to serve remainder of his
term outside the confines of an institution on his satisfactorily
complying all terms and conditions provided in the parole order.
(c) In Poonam Latha vs. M.L. Wadhwan, (1987) 3 SCC 347
(“Poonam Latha”) , it was observed that parole is a professional
release from confinement but it is deemed to be part of
imprisonment. Release on parole is a wing of reformative process
and is expected to provide opportunity to the prisoner to transform
himself into a useful citizen. Parole is thus, a grant of partial liberty
or lessening of restrictions to a convict prisoner but release on
parole does not change the status of the prisoner. When a priso ner
is undergoing sentence and confined in jail or is on parole or
furlough his position is not similar to a convict who is on bail. This
is because a convict on bail is not entitled to the benefit of the
remission system. In other words, a prisoner is not eligible for
remission of sentence during the period he is on bail or his sentence
is temporarily suspended. Therefore, such a prisoner who is on bail
is not entitled to get remission earned during the period he is on
bail.
32. Apart from the constitutional provisions, the re are also
provisions of the CrPC which deal with remission of convicts.
Sections 432, 433, 433A and 435 of the CrPC are relevant and read
as under:
“432. Power to suspend or remit sentences .— (1) When
any person has been sentenced to punishment for an
offence, the appropriate Government may, at any time,
without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment
to which he has been sentenced.
(2) Whenever an application is made to the appropriate
Government for the suspension or remission of a sentence,
the appropriate Government may require the presiding
Judge of the Court before or by which the conviction was
had or confirmed, to state his op inion as to whether the
application should be granted or refused, together with his
reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record of
the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been
suspended or remitted is, in the opinion of the appropriate
Government, not fulfilled, the appropriate Government
may cancel the suspension or remission, and thereupon
the person in whose favour the sentenc e has been
suspended or remitted may, if at large, be arrested by any
police officer, without warrant and remanded to undergo
the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or
remitted under this section may be one to be fulfilled by
the person in whose favour the sentence is suspended or
remitted, or one independent of his will.
(5) The appropriate Government may, by general rules
or special orders, give directions as to the suspension of
sentences and the conditions on which petitions should be
presented and dealt with:
Provided that in the case of any sentence (other than a
sentence of fine) passed on a male person above the age of
eighteen years, no such petition by the person sentenced
or by any other person on his behalf shall be entertained,
unless the person sentenc ed is in jail, and —
(a) where such petition is made by the person sentenced,
it is presented through the officer in charge of the jail;
or
(b) where such petition is made by any other person, it
contains a declaration that the person sentenced is
in jail.
(6) The provisions of the above sub -sections shall also
apply to any order passed by a Criminal Court under any
section of this Code or of any other law which restricts the
liberty of any person or imposes any liability upon him or
his property.
(7) In this section and in Section 433, the expression
“appropriate Government” means, —
(a) in cases where the sentence is for an offence against,
or the order referred to in sub -section (6) is passed
under, any law relating to a matter to which the
executive power of the Union extends, the Central
Government;
(b) in other cases, the Government of the State within
which the offender is sentenced or the said order is
passed.
433. Power to commute sentence .— The appropriate
Government may, without the consent of the person
sentenced, commute —
(a) a sentence of death, for any other punishment
provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment
for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person
might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or
commutation in certain cases. — Notwithstanding
anything contained in Section 432, where a sentence of
imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on
a person h as been commuted under Section 433 into one
of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of
imprisonment.
435. State Government to act after consultation with
Central Government in certain cases .— (1) The powers
conferred by Sections 432 and 433 upon the State
Government to remit or commute a sentence, in any case
where the sentence is for an offence —
(a) which was investigated by the Delhi Special Police
Establishment constituted under the Delhi Special
Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation
into an offence under any Central Act other than this
Code, or
(b) which involved the misappropriation or destruction
of, or damage to, any property belonging to the
Central Government, or
(c) which was committed by a person in the service of
the Central Government while acting or purporting
to act in the discharge of his official duty,
shall not be exercised by the State Government except
after consultation with the Central Government.
(2) No order of suspension, remission or commutation
of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some of
which relate to matters to which the executive power of the
Union extends, and who has bee n sentenced to separate
terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension,
remission or commutation, as the case may be, of such
sentences has also been made by the Central Government
in relation to t he offences committed by such person with
regard to matters to which the executive power of the
Union extends.”
32.1. Sub-section (1) of Section 432 is an enabling provision which
states that when any person has been sentenced to punishment for
an offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accepts, suspend the execution of his sentence or remit the whole
or any part of the punishmen t to which he has been sentenced. The
pertinent provision involved in this case is sub-section (2) which
deals with an application made to the appropriate Government for
the suspension or remission of a sentence and the appropriate
Government may require t he Presiding Judge of the Court before or
by which the conviction was had or confirmed, to state his opinion
as to , whether , the application should be granted or refused,
together with his reasons for such opinion and also to forward with
the statement of such opinion a certified copy of the record of the
trial or of such record thereof as exists. Sub -section (3) deals with
cancellation of the suspension or remission in the event of there
being any non -fulfilment of any condition imposed by the
appropriate Government whereupon the person in whose favour the
sentence has been suspended or remitted, may be arrested by the
police officer, without warrant and remanded to undergo the
unexpired portion of the sentence, if such a person is at large. Sub-
section (4) states that the condition on which a sentence is
suspended or remitted under this section may be one to be fulfilled
by the person in whose favour the sentence is suspended or
remitted, or one independent of his will. The appropriate
Government may, by general rules or special orders, give directions
as to the suspension of sentences and the conditions on which
petitions should be presented and dealt with vide sub-section (5) of
Section 432 of the CrPC . The proviso to sub -section (5) states that
in the case of any sentence (other than a sentence of fine) passed
on a male person above the age of eighteen years, no such pet ition
by the person sentenced or by any other person on his behalf shall
be entertained, unless the person sentenced is in jail, and it is
presented through the officer in -charge of the jail; or where such
petition is made by any other person, it contains a declaration that
the person sentenced is in jail. Sub-section (6) of Section 432 states
that the provisions of th is Section would apply to any order passed
by a Criminal Court under any section of the CrPC or of any other
law which restricts the liberty of any person or imposes any liability
upon him or his property.
32.2. The expression “appropriate Government” used in Section 432
as well as in Section 433, is defined in sub -section (7) of Section
432. It expresses that in cases where the sentence is for an offence
against, or the order referred to in sub -section (6) is passed under,
any law relating to a matter to which the executive power of the
Union extends, the Central Government; and in other cases, the
Govern ment of the State within which the offender is sentenced or
the said order is passed.
32.3. Section 433 -A is a restriction on the powers of remission or
commutation in certain cases. It begins with a non-obstante clause
and states that notwithstanding anything contained in Section 432,
where a sentence of imprisonment for life is imposed on conviction
of a person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a person
has been commuted under Section 433 into one of imprisonment
for life, such person shall not be released from prison unless he had
served at least fourteen years of imprisonment.
32.4. Section 434 states that the powers conferred by Sections 432
and 433 upon the State Government may in case of sentences of
death also be exercised by the Central Government concurrently.
32.5. The necessity for the State Government to act in consultation
with the Central Government in certain cases is mandated in
Section 435. The powers conferred by Sections 432 and 433 upon
the State Government to remit or commute a sentence, in any case
where the sentence is for an offence (a) which was investigated by
the Delhi Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946, or by any other agency
empowered to make investigation into an offence under any Cen tral
Act other than the CrPC, or (b) which involved the misappropriation
or destruction of, or damage to, any property belonging to the
Central Government, or (c) which was committed by a person in the
service of the Central Government while acting or purporting to act
in the discharge of his official duty, shall not be exercised by the
State Government except after consultation with the Central
Government. Sub -section (2) of Section 435 states that no order of
suspension, remission or commutation of senten ces passed by the
State Government in relation to a person, who has been convicted
of offences, some of which relate to matters to which the executive
power of the Union extends, and who has been sentenced to
separate terms of imprisonment which are to run concurrently,
shall have effect unless an order for the suspension, remission or
commutation, as the case may be, of such sentences has also been
made by the Central Government in relation to the offences
committed by such person with regard to matters to which the
executive power of the Union extends.
With the above backdrop of provisions , we move to consider
Point No.3.
Point No.3 : Whether the Government of State of Gujarat
was competent to pass the impugned orders of
remission?
33. The point for consideration revolves around the definition of
the expression “appropriate Government”. In other words, whether
the first respondent – State of Gujarat was competent to pass the
order s of remission in the case of respondent Nos.3 to 13 herein is
the question. The meaning and import of the expression
“appropriate Government” ha s to be discerned from the judgments
of this Court in the light of sub -section (7) of Section 432 of the
33.1. The contentions raised by the learned counsel for the
petitioner in Writ Petition (Crl.) No.491 of 2022 as well as the
arguments of learned ASG appearing for Union of India as well as
State of Gujarat on this aspect need not be reiterated.
33.2. The expression “appropriate Government” no doubt has been
defined in sub -section (7) of Section 432 to mean that in cases
where the sentence is for an offence against, or the order referred
to in sub -section (6) is passed under, any law relating to a matter
to which the executive power of the Union extends, the Central
Government; in other cases, the Government of t he State within
which the offender is sentenced or the said order is passed. The
expression “appropriate Government” also finds place in sub -
section (1) of Section 432 which, as already discussed above, states
that when any person has been sentenced to punishment for an
offence, the appropriate Government may, at any time, without
conditions or upon any condition which the person sentenced
accep ts, suspend the execution of his sentence or remit the whole
or any part of the punishment to which he has been sentenced.
33.3. Sub-section (1) of Section 432 of the CrPC deals with a power
vested with the appropriate Government which is an enabling
power. The discretion vested with the appropriate Government has
to be exercised judiciously in an appropriate case and not to abuse
the same. However, when an application is made to the appropriate
Government for the suspension or remission of a sentence such as
in the instant case by a convict, the appropriate Government may
seek the opinion of the Presiding Judge of the Court before or by
which the conviction was had or confirmed and on considering the
reasons for such opinion, may consider the application for
remission vide sub-section (2) of Section 432 of the CrPC.
33.4. On a combined reading of sub -sections (1) and (2) of Section
432, it is apparent that the conviction and sentence of the Court
which had tried the case assumes significance and the appropriate
Government may have to seek the opinion of the Presiding Judge of
the Court before which the conviction took place, before passing an
order of remission. This is particularly so when an application is
filed by or on behalf of a convict seeking remission. Therefore,
logically the expression appropriate Government in cl ause (b) of
sub-section (7) of Section 432 also states that the Government of
the State within which the offender is sentenced or the said order
is passed which is the appropriate Government. The aforesaid
consistency is significant inasmuch as the intent of the Parliament
is, it is only the Government of the State within which the offender
was sentenced which is competent to consider an application for
remission and pass an order remitting the sentence of a convict.
This clearly means that the place of occurrence of the incident or
place of imprisonment of the convict are not relevant consideration s
and the same ha ve been excluded from the definition of the
expression appropriate Government in clause (b) of sub -section (7)
of Section 432. If the intention of the Parliament was that
irrespective of the Court before which the trial and conviction had
taken place, the order of remission can be considered by the
Government within whose territorial jurisdiction the offence has
been committed or the offender is imprisoned, the same would have
been indicated by the definition. On the contrary, the definition of
appropriate Government is otherwise. The intention of the
Parliament is that the Government of the State within which the
offender was tried and sentenced, is the appropriate Government to
consider either under sub -section (1) of Section 432 of the CrPC or
on an application made by the convict for remission of the sentence
under sub -section (2) of Section 432 of the CrPC . This places
emphasis on the place of trial and sentence of the offender rather
than the place or location where the crime was committed. Such an
interpretation would also inc lude a situation , such as in the present
case, where not only the investigation but also the trial of
respondents No.3 to 13 herein was transferred from the State of
Gujarat to the State of Maharashtra and particularly to the Special
Court at Mumbai. Thus, the aforesaid definition also takes within
its scope and ambit a circumstance wherein the trial is transferred
by this Court for reasons to be recorded and which is in the interest
of justice from one State to another State.
33.5. There may be various reasons for transferring of a trial from
a competent Court within the territorial jurisdiction of one State to
a Court of equivalent jurisdiction in another State, as has been done
in the instant case . But what is certain is that the transfer of the
trial to a court in another State would be a relevant consideration
while considering as to which State has the competency to pass an
order of remission . Thus, t he definition of appropriate Government
in sub -section (7) of Section 432 clearly indicates that the
Government of the State within which the offender is sentenced, is
the appropriate Government to pass an order of remission.
33.6. In almost all cases, the court before which the offender was
sentenced is located within the territory of a State Government
wherein the offence occurred and, therefore, in such a case, there
can be no further doubt about the meaning of the expression
appropriate Government. But according to us, even in a case where
the trial has been transferred by this Court from a court of
competent jurisdiction of a State to a court in another State, it is
still the Government of the State within which the offender was
sentenced which is the appropriate Government which has the
jurisdiction as well as competency to pass an order of remission
under Section 432 of the CrPC. Therefore, i t is not the Government
of the State within whose territory the offence occurred or the
convict is imprisoned which can assume the power of remission .
33.7. In this regard, the following judgments of this Court may be
relied upon :
(a) In Ratan Singh , on discussing Section 401 of the erstwhile
CrPC (corresponding to Section 432 of the present CrPC) it was
observed that the test to determine the appropriate Government is
to locate the State where the accused was convicted and sentenced
and the Government of that State would be the appropriate
Government within the meaning of Section 401 of the CrPC . In the
said case, it was observed that the accused was convicted and
sentenced in the State of Madhya Pradesh and though he was
discharging his sentence in a jail in Amritsar in the State of Punjab,
the ap propriate Government under section 401 (1) of the erstwhile
CrPC to exercise the discretion for remission of the sentence was the
State of Madhya Pradesh. It was further observed that even under
the new Code i.e. CrPC, 1973 as per sub -section (7) of Section 432
thereof, the phrase appropriate Government had the same meaning
as the latter provision had been bodily lifted from Section 402(3) of
the erstwhile CrPC. On a review of the case law and the statutory
provisions of the CrPC the following propositions were culled out:
“9. …(1) that a sentence of imprisonment for life does
not automatically expire at the end of 20 years including
the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
Penal Code. A sentence of imprisonment for life means a
sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its discretion
to remit either the whole or a part o f the sentence under
Section 401 of the Code of Criminal Procedure;
(2) that the appropriate Government has the
undoubted discretion to remit or refuse to remit the
sentence and where it refuses to remit the sentence no writ
can be issued directing the State Government to release
the prisoner.
(3) that the appropriate Government which is
empowered to grant remission under Section 401 of the
Code of Criminal Procedure is the Government of the State
where the prisoner has been convicted and sentenced, that
is to say, the transferor State and not the t ransferee State
where the prisoner may have been transferred at his
instance under the Transfer of Prisoners Act; and
(4) that where the transferee State feels that the
accused has completed a period of 20 years it has merely
to forward the request of the prisoner to the concerned
State Government, that is to say, the Government of the
State where the prisoner was convicted and sentenced and
even if this request is rejected by the State Government the
order of the government cannot be interfered with by a
High Court in its writ jurisdiction.”
(b) The aforesaid decision was reiterated in Hanumant Dass. In
the said case, the incident had occurred in Dharmshala and when
the matter was pending before the Sessions Court, Dharmshala in
Himachal Pradesh at the instance of the complainant, on an
application moved before this Court, the case was transferred
from Himachal Pradesh to the Sessions Court at Gurdaspur in
Punjab.
(c) Insofar as clemency power of a Governor of a State under
Article 161 of the Constitution to grant remission to prisoners
convicted by courts outside the State but undergoing sentences in
jails in the State is concerned, this Court in M.T. Khan observed
that the appropriate government on whose advice the Governor has
to act while granting remission to such a prisoner was to be
decided on the basis of the aid and advice of the Council of
Ministers of the State which had convicted the accused and not the
State where the accused/convict is t ransferred to be lodged in the
jail. In this case it was held that since the judgment of conviction
had been passed in the States of Madhya Pradesh and
Maharashtra and the convict was lodged in the State of Andhra
Pradesh, the appropriate Governments were the States of Madhya
Pradesh and Maharashtra even under Article 161 of the
Constitution. Hence, the appeals filed by the Government of
Andhra Pradesh were allowed.
(d) V. Sriharan is a judgment of a Constitution Bench of this
Court wherein the Government of Tamil Nadu had proposed to
remit the sentence of life imprisonment to release seven convicts
who were convicted in the Rajiv Gandhi assassination case – State ,
through Superintendent of Police, CBI vs. Nalini, (1999) 5 SCC
253 (“Nalini”) . While discussing the phrase “appropriate
Government ”, it was observed that barring cases falling under
Section 432(7)(a), in all other cases where the offender is sentenced
or the sentence or order is passed within the territorial jurisdiction
of the State co ncerned, that State Government would be the
appropriate Government. Following the earlier decisions it was
observed that even if an offence is committed in State -A, but, the
trial takes place and the sentence is passed in State -B, it is the
latter State which shall be the appropriate Government.
33.8. In our view, on a plain reading of sub -section (7) of Section
432 of the CrPC and considering the judgment s of this Court, it is
the State of Maharashtra, which had the jurisdiction to consider
the application for remission vis-à-vis respondent Nos.3 to 13
herein as they were sentenced by the Special Court, Mumbai .
Hence the applications filed by respondent Nos. 4 to 13 seeking
remission had to be simply rejected by the State of Gujarat owing
to lack of jurisdiction to consider them. This is because
Government of Gujarat is not the appropriate Government within
the meaning of the aforesaid provision. The High Court of Gujarat
was therefore right in its order dated 17.07.2019.
33.9. When an authority does not have the jurisdiction to deal with
a matter or it is not within the powers of the authority i.e. the State
of Gujarat in the instant case, to be the appropriate Government
to pass orders of remission under Section 432 of the CrPC, the
orders of remission would have no l egs to stand. On the aspect of
jurisdiction and nullity of orders passed by an authority, the
decision of the House of Lords in Anisminic v s. Foreign
Compensation Commission, (1969) 2 WLR 163 : (1969) 1 All
ER 208 (“Anisminic”) , is of significance and the same can be cited
by way of analogy . The House of Lords in the said case held that
the Foreign Compensation Commission had committed an error
which was a jurisdictional error as its decision was based on a
matter which it had no right to take into account and so its decision
was a nullity and subject to judicial review. Although in
Anisminic , the scope and ambit of the concept of “jurisdictional
error” or “error of jurisdiction ” was very much extended , and of a
very broad connotation , in the instant case we are primarily dealing
with a narrow er concept i.e. when an authority , which is the
Government of State of Gujarat in the instant case , was lacking
jurisdiction to consider the applications for remission . Just as an
order passed by a Court without jurisdiction is a nullity, in the
same vein, an order passed or action taken by an authority lacking
in jurisdiction is a nullity and is non est in the eye of law.
33.10. On that short ground alone the orders of remission
have to be quashed. This aspect of competency of the Government
of State of Gujarat to pass the impugned orders of remission goes
to the root of the matter and the impugned orders of remission are
lacking in competency and hence a nullity. The writ petition filed
by the victim would have to succeed on this reasoning. But the
matter does not rest at that .
34. Learned ASG appearing for respondent Nos.1 and 2, has
placed strong reliance on the order of this Court dated 13.05.2022
to contend that in view of the directions issued by this Court in Writ
Petition No.135 of 2022, respondent No.1 – State of Gujarat had to
consider the applications for remissi on filed by respondents No.3 to
13 herein. Further, the consideration had to be made as per the
1992 Policy of Remission of the State of Gujarat. Hence, the
appropriate Government in the case of respondent Nos.3 to 13 was
the Government of Gujarat in terms of the order of this Court dated
13.05.2022. It was further contended that the offences had also
occurred within the State of Gujarat. Therefore, the first respondent
– State of Gujarat had no option but to consider the applications
filed by respondent Nos.3 to 13 herein and pass the orders dated
10.08.2022 granting remission to them.
35. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has countered the above submission contending
that one of the convicts -Radheshyam Bhagwandas Shah ,
respondent No.3 herein , had initially approached the High Court of
Gujarat by filing Criminal Application No.4573 of 2019 for a
direction to consider his application for remission by the State of
Gujarat. By order dated 17.07.2019 the High Court disposed of
Criminal Application No.4573 of 2019 by observing that he should
approach the appropriate Government being the State of
Maharashtra. His second such application before the Gujarat High
Court was also dismissed vide order dated 13.03.2020. That when
the said prisoner filed Writ Petition (Crl.) No.135 of 2022 before this
Court, he did not disclose the following facts:
(i) that within fourteen days of the order dated
17.07.2019, he had approached the Government of
Maharashtra vide application dated 01.08.2019 ;
(ii) that the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(iii) that t he Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
(iv) that the Superintendent of Police, Dahod , Gujarat
had given a negative recommendation vide his letter
dated 03.02.2020; and,
(v) that the District Magistrate, Dahod , Gujarat had
given a negative recommendation vide his letter
dated 19.02.2020.
35.1. Further, the writ petitioner also made a misleading statement
by referring to the order dated 05.08.2013 of the Bombay High
Court in juxtaposition to the order of the Gujarat High Court dated
17.07.2019 to contend that there was a divergent opinion between
the two High Courts, which aspect constrained him to file Writ
Petition (Crl.) No.135 of 2022 before this Court . That the order
dated 05.08.2013 passed by the Bombay High Court was dealing
with transfer of the convicts in Maharashtra jail to their parent
State (State of Gujarat) that too , in the year 2013, when the issue
of remission did not arise at all. But t he said writ petitioner
projected as if the two High Courts ha d contradicted themselves in
their orders and, therefore, he was constrained to file the writ
petition invoking the jurisdiction of this Court under Article 32 of
the Constitution.
35.2. It was contended that on account of the suppression of facts
as well as misleading this Court with erroneous facts, the order
dated 13.05.2022 is vitiated by fraud and is hence a nullity and the
same cannot be binding on the parties to the said order or to the
petitioner Bilkis Bano who, in any case , was not arrayed as a party
in the said writ petition.
36. It is necessary to highlight the salient aspects of the order
passed by this Court in the case of Radheshyam Bhagwandas
Shah dated 13.05.2022 in Writ Petition (Crl.) No.135 of 2022. That
was a petition filed by one of the convicts , respondent No.3 herein ,
seeking a direction to consider his application for premature release
under the policy dated 09.07. 1992 of the State of Gujarat which
was existing at the time of his conviction. The relevant pleadings in
the said writ petition are extracted as under:
“Question of Law:
A. Whether the policy dated 9.7.92, which was existing at
the time of the conviction will prevail for considering
the case of the petitioner for premature release?
B. Whether in view of ‘State of Haryana Vs. Jagdish,
(2010) 4 SCC 216’, a policy which is more liberal and
prevailing would be given preference as compared to
the policy which is sought to be made applicable at the
time of consideration of the cases of premature
release?
x x x
x x x
That at this juncture it would be pertinent to mention
herein that one of the co -accused Ramesh Rupabhai
had approached the Bombay High Court by way of Crl.
W.P. No.305/2013. In the said order, the Bombay
High Court clarified that the undertrials in this case
were lodged in Maharashtra Jail only because of the
fact that at that time the Trial was pending in the State
of Maharashtra (transferred from Gujarat to
Maharashtra by the Supreme Court). The High Court
further clarified that once the Trial has concluded and
the prisoner has been convicted, the appropriate
prison would be the State of Gujarat and acco rdingly,
the said prisoners were transferred to the State of
Gujarat from the State of Maharashtra ...
At this juncture, the petitioner had approached the
Gujarat High Court on the ground that despite he
having undergone more than actual sentence of 14
years, his case was not being considered by the
respondent/authorities for premature release. The
Gujarat High Court vide its order dated 17.7.19 with
great respect took a completely a diametrically opposite
view as that of Bombay High Court and erroneously
held that since the petitioner’s case was tried in the
State of Maharashtra, therefore, his case for premature
release has to be considered by the State of
Maharashtra and not by the State of Gujarat.
Hence the instant Writ Petition under Article 32 of the
Constitution issuing a writ of Mandamus or any other
similar direction to the State of Gujarat praying inter
alia that the case of the petitioner may be considered
as per the policy dated 9.7.92 (i.e. policy existing at the
time of conviction of the petitioner) in the light of
settled decision in “State of Haryana Vs. Jagdish,
x x x
In the light of the above -mentioned facts and
circumstances, the petitioner through this instant writ
petition prays before this Hon’ble Court as under:
A. Issue a writ, order or direction in the nature of
Mandamus to the Respondent/State of Gujarat to
consider the case of the petitioner for premature
release under the policy dated 9.7.92 i.e. the policy
which was existing at the time of conviction.
B. Or in the alternative, issue a writ, order or direction
in the nature of Mandamus to the
respondent/Union of India to consider the case of
the petitioner in light of “UOI Vs. V. Sriharan, (2016)
7 SCC 1. ” and
C. Pass any such further Order(s)/direction(s) as this
Hon’ble Court may deem fit and proper in the facts
and circumstances of the case.”
36.1. The aforesaid pleadings do not indicate that State of Gujarat
had no jurisdiction to consider his application for remission. Also,
there was no pleading that he had filed any application before the
Government of Gujarat. Thirdly, there is no mention that the policy
of 09.07.1992 had been cancelled. Moreover, the said policy was
not at all applicable as the writ petitioner was convicted in
Maharashtra State and therefore, Government of Gujarat was not
the appropriate Government.
36.2. On the above basis , this Court passed the order dated
13.05.2022 , the relevant portion of which reads as under:
“6. The present petitioner filed his petition for pre -mature
release under Sections 433 and 433A of the Code of
Criminal Procedure, 1973 (hereinafter being referred to as
the “CrPC”) stating that he had undergone more than 15
years 4 months of custody but his petition filed in the High
Court of Gujarat came to be dismissed taking note of
Section 432(7) CrPC and placing reliance on the judgment
of this Court in Union of India vs. V. Sriharan alias
Murugan and Others , (2016) 7 SCC 1 , on the premise
that since the trial has been concluded in the State of
Maharashtra, the application for pre -mature release has
to be filed in the State of Maharashtra and not in the State
of Gujarat, as prayed by the petitioner by judgment
impugned dated 17th July 2019.
xxx xxx xxx
10. Learned counsel for the respondents has placed
reliance on the judgment of this Court in Union of India
vs. V. Sridharan alias Murugan and Others (supra) and
submits that since the trial has been concluded in the
State of Maharashtra, taking assistance of Section 432(7)
CrPC, the expression ‘appropriate government as referred
to under Section 433 CrPC in the instant case , would be
the State of Maharashtra and accordingly no error has
been committed by the High Court in the order impugned.
11. In our considered view, the submission made by
learned counsel for the respondents is not sustainable for
the reason that the crime in the instant case was
admittedly committed in the State of Gujarat and
ordinarily, the trial was to be concluded in th e same State
and in terms of Section 432(7) CrPC, the appropriate
Government in the ordinary course would be the State of
Gujarat but the instant case was transferred in exceptional
circumstances by this Court for limited purpose for trial
and disposal to the neighbouring State (State of
Maharashtra) by an order dated 06th August, 2004 but
after the conclusion of trial and the prisoner being
convicted, stood transferred to the State where the crime
was committed remain the appropriate Government for the
purpose of Section 432(7) CrPC.
12. Indisputedly, in the instant case, the crime was
committed in the State of Gujarat which is the appropriate
Government competent to examine the application filed for
pre-mature release and that is the reason for which the
High Court of Bombay in Criminal Wr it Petition No.305 of
2013 filed at the instance of co -accused Ramesh Rupabhai
under its Order dated 5th August, 2013 declined his
request to consider the application for pre -mature release
and left the application to be examined according to the
policy applicable in the State of Gujarat by the concerned
authorities.
13. The judgment on which the learned counsel for the
respondents has placed reliance may not be of any
assistance for the reason that under Section 432(7) CrPC,
the appropriate Government can be either the Central or
the State Government but there cannot be a concurrent
jurisdiction of two State Governments under Section
14. In the instant case, once the crime was committed in
the State of Gujarat, after the trial been concluded and
judgment of conviction came to be passed, all further
proceedings have to be considered including remission or
pre-mature release, as the case may be, in terms of the
policy which is applicable in the State of Gujarat where the
crime was committed and not the State where the trial
stands transferred and concluded for exceptional reasons
under the orders of this Court.
15. Consequently, the petition is allowed. The judgment
impugned dated 17th July, 2019 is set aside.
16. The respondents are directed to consider the
application of the petitioner for pre -mature release in
terms of its policy dated 9th July, 1992 which is applicable
on the date of conviction and may be decided within a
period of two months. If any adverse order is passed, the
petitioner is at liberty to seek remedy available to him
under the law.”
36.3. The following aspects are noted by this Court in the order
dated 13.05.2022:
(i) that the crime was committed in the State of Gujarat
but this Court in Transfer Petition (Crl.) No.192 of
2004 had considered it appropriate to transfer
Sessions Case No.161 of 2004 pending before the
learned Additional Sessions Judge, Dahod,
Ahmedabad to the competent court in Mumbai for
trial and disposal by order dated 06.08.2004.
(ii) that t he trial court, Mumbai in Sessions Case No.634
of 2004, on completion of the trial held the said
respondent as well as the other accused guilty and
sentenced them to undergo rigorous imprisonment for
life by judgment and order dated 21. 01.2008.
(iii) that one of the co -accused Ramesh Rupabhai had
approached the Bombay High Court by filing Writ
Petition (Crl.) No.305 of 20 13 seeking premature
release but his application was dismissed by order
05.08.2013 on the premise that the crime was
committed in the state of Gujarat and his trial was
transferred to the competent court in Maharashtra
and once the trial had concluded and sentence has
been passed, the appropriate Government would be
the State of Gujarat and accordingly, the application
filed by the said co-accused for premature release was
to be examined as per the policy applicable in the
State of Gujarat.
(iv) that the judgment on which learned counsel for the
State of Gujarat had placed reliance ( V. Sriharan )
was not of any assistance for the reason that under
Section 432 (7) of the CrPC, the appropriate
Government can be either Central or State
Government but there cannot be a concurrent
jurisdiction of two State Governments under the said
provision.
(v) that once the crime was committed in the State of
Gujarat, after the trial has been concluded and the
judgment of conviction came to be passed, all further
proceedings had to be considered including remission
or pre -mature release, as the case may be, in t erms of
the policy which is applicable in the State of Gujarat
where the crime was committed and not the State
where the trial stood transferred and concluded for
exceptional reasons under the order of this Court.
(vi) Consequently, the writ petition was allowed . Further
even in the absence of there being any challenge , the
order dated 17.07.2019 passed by the Gujarat High
Court in a petition filed by the same petitioner
(respondent No.3) under Article 226 of the
Constitution was set aside by this Court in the writ
petition filed by him under Article 32 of the
Constitution.
(vii) Further, it was not brought to the notice of this Court
that the policy dated 09.07.1992 had been cancelled
and was no more effective. In the absence of the same,
direction was issued to the State of Gujarat to
consider the case of the petitioner therein f or pre -
mature release in terms of the said policy within a
period of two months.
36.4. Our inferences on the Order of this Court dated 13.05.2022
passed on the aforesaid writ petition are as under:
(i) that the convict who approached this Court, namely,
Radheshyam Bhagwandas Shah respondent No.3
herein had stated that he had undergone about 15
years 4 months of custody ;
(ii) that respondent No.3 herein had not stated that his
writ petition filed in the High Court of Gujarat had
been dismissed by taking note of Section 432 (7) of the
CrPC and on the basis of the decision in V. Sriharan
as the trial had been concluded in the State of
Maharashtra ;
(iii) that respondent No.3 had not stated that the
application for premature release had been filed by
him in the State of Maharashtra and not in the State
of Gujarat as directed by the judgment of the Gujarat
High Court dated 17.07.2019 ;
(iv) Respondent No.3 herein who had filed the writ petition
had not disclosed that he had acted upon the order
dated 17.07.2019 passed by the Gujarat High Court
inasmuch as –
(a) he had approached the Government of
Maharashtra vide application dated 01.08.2019;
(b) the CBI had given a negative recommendation
vide its letter dated 14.08.2019;
(c) the Special Judge (CBI), Mumbai had given a
negative recommendation vide his letter dated
(d) the Superintendent of Police, Dahod , Gujarat had
given a negative recommendation vide his letter
dated 03.02.2020; and,
(e) the District Magistrate, Dahod , Gujarat had given
a negative recommendation vide his letter dated
19.02.2020.
(v) that the respondent No.3 had not assailed the order
dated 17.07.2019 passed by the Gujarat High Court
as there is a bar in law to assail an order passed by
High Court under Article 226, under Article 32 of the
Constitution.
(vi) Interestingly, in the writ petition, the respondent State
of Gujarat placed reliance on the judgment in V.
Sriharan and contended that the trial had been
concluded in the State of Maharashtra and therefore
the expression appropriate government under section
432 of the CrPC would be the State of Maharashtra
and that no error had been committed by the High
Court in its order dated 17.07.2019 .
(vii) Strangely, this Court held that the aforesaid
submission on behalf of the State of Gujarat was not
sustainable as the crime had been committed in the
State of Gujarat and “ordinarily , the trial was to be
concluded in the same State and in terms of Section
432 (7) of the Code of Criminal Procedure, the
appropriate Government in the ordinary course would
be the State of Gujarat but the instant case, was
transfer red in exceptional circumstances by this Court
for limited purpose for trial and disposal to the
neighbouring State (State of Maharashtra) by an order
dated 06.08.2004 but after the conclusion of trial and
the prisoner being convicted, stood transferred to the
State where the crime was committed remain the
appropriate Government for the purpose of Section
432(7) Code of Criminal Procedure. ” This portion of the
order of this Court is contrary to the judgments of this
Court discussed above. This implies that the said
order is per se per incuriam .
(viii) This Court went on to hold that the High Court of
Bombay had declined to interfere in Criminal Writ
Petition No.305 of 2013 filed by the co -accused
Ramesh Rupabhai by its order dated 05.08.2013
without realising what the prayer in the said writ
petition was , which was filed in the year 2013 , as at
that point of time, the issue of remission had not
arisen at all . The Bombay High Court had declined to
entertain the Writ Petition filed by one of the convicts
by holding to consider his plea for transfer to a jail in
State of Gujarat .
(ix) Interestingly, no review petition was filed against the
order of this Court dated 13.05.2022 by the State of
Gujarat for seeking a review of the said order but the
victim – petitioner in Writ Petition (Crl.) No.491 of
2022 – had filed a review petition which has been
rejected by this Court .
(x) that although the respondent No.3 who approached
this Court as well as the State of Gujarat had termed
the order of the Gujarat High Court dated 17.07.2019
as “impugned Order”, the said order was not at all
impugned or assailed in the proceedings before this
Court. W hat was filed by the convict i.e., respondent
No.3 before this Court was a writ petition under
Article 32 of the Constitution seeking a direction to
the State of Gujarat to consider his remission
application ;
(xi) More significantly, while a reference has been made to
Criminal Writ Petition No.305 of 2013 filed by one of
the co -accused Ramesh Rupabhai in the year 2013
before the Bombay High Court seeking a direction for
transfer of the convicts from Maharashtra Jail to
Gujarat Jail , the reference to the Order of the Gujarat
High Court dated 17.07.2019 dismissing the writ
petition filed by respondent No.3 herein directing him
to approach the Maharashtra State for remission was
only in the context of the said order being
“diametrically opposite” to the view of the Bombay
High Court without explaining and by suppression of
the backgrounds under which the two writ petitions
were filed before the respective High Court .
(xii) In fact , there was no pleading or prayer for seeking
setting aside of the Gujarat High Court Order dated
17.07.2019 nor was there any challenge to the said
Order. That said Order had attained final ity as no
Special Leave Petition as against the said Order was
filed by the writ petitioner , Radheshyam Bhagwan das
Shah respondent No.3 herein before this Court ; rather
he had acted upon it . Curiously , in the writ petition
filed under Article 32 of the Constitution, the Order
dated 17 .07.2019 has been set aside even in the
absence of there being any prayer thereto nor any
discussion of the same .
(xiii) Further, contrary to Section 432 (7) and the
judgements of the Constitution Bench and other
benches of this Court, a writ of mandamus was issued
to the State of Gujarat to consider the prayer of the
writ petitioner for premature release in terms of its
policy dated 09.07. 1992. It was not brought to the
notice of this Court by any party that the said policy
had been cancelled and had been substituted by
another policy in the year 2014. What was the effect
of cancellation of the policy dated 09.07. 1992 was not
brought to the notice of this Court either by the writ
petitioner or by the State of Gujarat.
(xiv) In Sangeet & Another v s. State of Haryana , (2013)
2 SCC 452 , this Court speaking through Lokur, J.,
observed that a convict undergoing a sentence does
not have right to get a remission of sentence but he
certainly does have a right to have his case considered
for the grant of remission. The term of sentence
spann ing the life of the convict can be curtailed by the
appropriate Government for good and valid reasons in
exercise of its powers under Section 432 of the CrPC.
The said Section provides for some procedural and
substantive checks on the arbitrary exercise of this
power. While observing that there is no decision of
this Court detailing the procedure to be followed for
the exercise of power under Section 43 2 of the CrPC,
it was stated that sub -section (2) to sub -section (5) of
Section 432 of the CrPC lay down the basic procedure,
which is making of an application to the appropriate
Government for the suspension or remission of a
sentence, either by the convict or someone on his
behalf. Thus, the representation has to be made to
the appropriate Government in terms of the provisions
under Section 432 of the CrPC. It was further
observed that the exercise of power by the appropriate
Government under sub -section (1) of Section 432 of
the CrPC cannot be suo motu for the simple reason
that this sub -section is only an enabling provision. In
other words, the appropriate Government is enabled
to “override” a judicially pronounced sentence, subject
to fulfillment of certain conditions. Those conditions
are found either in the jail manual or in statutory
rules. Therefore, sub -section (1) of Section 432 of the
CrPC cannot be read to enable the appropriate
Government to “further override” the judicial
pronouncement over and above what is permitted by
the jail manual or the statutory rules. On such an
application being made, the appropriate Government
is require d to approach the Presiding Judge of the
Court before or by which the conviction wa s made or
confirmed to opine (with reasons) whether the
application should be granted or refused. Thereafter,
the appropriate Government may take a decision on
the remission application and pass orders granting
remission subject to some conditions, or refusing
remission. There has to be an application of mind to
the issue of grant of remission and the power of
remission cannot be exercised arbitrarily. It was
further observed that a convict undergoing life
imprisonment is expected to remain in custody till the
end of his life, subject to any remission granted by the
appropriate Government under Section 432 of the
CrPC which in turn is subject to the procedural
checks in that Section and the substantive check in
Section 433 -A of the CrPC.
Pursuant to the judgment in Sangeet , the
Government of India vide its communication dated
01.02.2013 made to all the Home Secretaries of the
States and Union Territories, stated that there is a
need to relook at the manner in which remissions of
sentence are made with reference to Section 432 read
with Section 433 -A of the CrPC and hence requested
that there should be scrupulous compliance of the
aforesaid provisions and not to grant remission in a
wholesale manner. Thereafter, on 08.05.2013, the
Home Department, Government of Gujarat issued a
Circular referring to the decision of this Court dated
20.11.2012 in Sangeet and in order to implement the
same and also taking note of the communication of
the Government of India dated 01.02.2013, the
Circular dated 09.07.1992 was cancelled in following
manner:
“… Therefore, the provisions of circular
No.JLK/3390/CM/16/part/2/J dated
09.07.1992 of the Home Department
hereinabove referred to in Srl. No.1, hereby
stand cancelled.”
Thereafter, on 23.01.2014, the State Government
constituted a Committee headed by the Additional
Chief Secretary (Home) for considering the policy and
guidelines to be followed for the purpose of remission
and pre -mature release of the prisoners. After careful
consideration, the State Government issued
guidelines/policy for consideration of cases of
remission and premature release of the prisoners. In
the said policy, it was categorically mentioned that
“the prisoners who are convicted for the crimes” as
mentioned in Annexure -I, shall not be considered for
remission. Annexure -I contained the classes of
prisoners who shall not be granted state remission as
well as for premature release. Clause IV (a) and (d)
read as follows:
(a) A prisoner or prisoners sentenced for group
murder of two or more persons.
x x x
(d) Prisoners convicted for murder with rape or gang
rape.
(xv) Realising that respondent Nos.3 to 13 would not be
released under the Remission Policy dated
23.01.2014, which had substituted the earlier
Policy dated 09.07.1992, which had been cancelled,
the writ petition was filed by respondent No.3
herein before this Court seeking a specific direction
to the State of Gujarat to consider his case as per
the Policy dated 09.07.1992 which had by then
been cancelled and substituted by another Policy
dated 23.01.2014.
(xvi) What is the effect of cancellation of the said policy
by the State of Gujarat in light of the judgement of
this Court in Sangeet and the communication of
Union of India issued to each of the states including
the State of Gujarat ? Does it mean that the said
policy of 09.07. 1992 had stood cancelled and
therefore got effaced and erased from the statute
book and substituted by a new policy of 2014 which
had to be considered. There was no pleading or
discussion to that effect.
36.5 Thus, by suppressing material aspects and by misleading this
Court, a direction was sought and issued to the respondent State
of Gujarat to consider the premature release or remission of the writ
petitioner , i.e., respondent No.3 on the basis of the policy dated
09.07.1992 .
37. More pertinently , respondent No.3 had suppressed the fact
that on the basis of the judgment of the Gujarat High Court in the
writ petition that he had filed, the convict had acted upon it and
had made an application to the State of Maharashtra for remission
on 01.08.2019 and the said application was being processed
inasmuch as the stakeholders had given their opinion on the
application , such as , the Presiding Judge of the court which had
convicted the accused ; the Director - CBI as well as the Director
General and Inspector General of Po lice, State of Maharashtra wh o
were all unanimous in their opinion inasmuch as they had all
negatived grant of remission to the convict – Radhe shyam Bhagwan
Das. Suppressing all this, the writ petition was filed by respondent
No.3 invoking Article 32 of the Constitution and the same was
allowed by also setting aside the Order of the Gujarat High Court
dated 17.07.2019 and thereby setting at naught the steps taken
pursuant to the said Order of the Gujarat High Court .
38. At this stage, we may point out that if respondent No.3 had
felt aggrieved by the order of the Gujarat High Court dated
17.07.2019, it was open to him to have challenged the said order
before this Court by filing a special leave petition, but he did not do
so. Rather, he complied with the order of the Gujarat High Court by
filing remission application dated 01.08.2019 before the
Government of Maharashtra where , not only the process for
consideration of the remission prayer was initiated, but opinions of
various authorities were also obtained. When the opinions were
found to be negative, respondent No.3 filed Writ Petition (Crl.)
No.135 of 2022 before this Court seeking a direct ion to the State of
Gujarat to consider his remission application suppressing the
above material facts. This he could not have done, thereby
misrepresenting and suppressing relevant facts, thus playing fraud
on th is Court.
39. We have no hesitation in holding that neither the order of the
Gujarat High Court dated 17.07.2019 could have been challenged
by respondent No.3 or for that matter by anybody else before this
Court in a writ proceeding under Article 32 of the Constitu tion of
India nor the said order of the High Court could have been set aside
in a proceeding under Article 32 thereof. This proposition of law has
been settled long ago by a nine -Judge bench decision of this Court
in Naresh Sh ridhar Mirajkar vs. State of M aharashtra, AIR
1967 SC 1 , which is binding on us.
39.1. When an oral order of the learned Judge passed in the original
suit of the Bombay High Court was challenged by the petition er
therein by way of a writ petition under Article 226 of the
Constitution of India before the Bombay High Court, the writ
petition was dismissed by a division bench of the Bombay High
Court on the ground that the impugned order was a judicial order
of the H igh Court and was not amenable to writ jurisdiction under
Article 226. Thereafter, the petitioner therein moved this Court
under Article 32 of the Constitution of India for enforcement of his
fundamental rights under Article 19(1)(a) and (g) of the Constitution
of India. This Court observed that the impugned order was passed
by the learned Judge in the course of trial of a suit before him after
hearing the parties. This Court took the view that the restraint order
was passed to prohibit publication of evidence in the media during
the progress of the trial and could not be construed as imposing a
permanent ban on the publication of the said evidence.
39.2. The question which fell for consideration before this Court
was whether a judicial order passed by the High Court prohibiting
the publication in newspapers of evidence given by a witness
pending the hearing of the suit, was amenable to be corrected by a
Writ of Certiorari of this Court under Article 32 of the Constitution
of India. In the above context, this Court first held that a judicial
verdict pronounced by a court in a matter brought before it for its
decision cannot be said to affect the fundamental rights of citizens
under Article 19(1) of the Constitution of India. Thereafter, this
Court proceeded to hold that if any judicial order was sought to be
attacked on the ground that it was inconsistent with Article 14 or
any other fundamental rights, the p roper remedy to challenge such
an order would be by way of an appeal or revision as may be
provided by law. It would not be open to the aggrieved person to
invoke the jurisdiction of this Court under Article 32 of the
Constitution and to contend that a Writ of Certiorari should be
issued to quash such an order. This Court observed that it would
be inappropriate to allow the petitioners to raise the question about
the jurisdiction of the High Court to pass the impugned o rder in a
proceeding under Article 32. Rejecting the argument of the
petitioners, this Court held that judicial orders passed by High
Courts in or in relation to proceedings pending before the High
Courts are not amenable to be corrected by this Court exer cising
jurisdiction under Article 32 of the Constitution of India. This being
the law of the land, it is binding on all the courts including benches
of lesser coram of this Court.
40. Before proceeding further, it may also be mentioned that it
was only respondent No.3 who had approached this Court by filing
a writ petition under Article 32 of the Constitution of India being
Writ Petition (Crl.) No.135 of 2022, seeking a direction to the State
of Gujarat to consider his pre -mature release. None of the other
convicts, i.e. respondent Nos.4 to 13 had approached this Court or
any High Court seeking such a relief. Therefore, in so far these
respondents are concerned, there was no directio n of this Court or
any court to the State of Gujarat to consider their pre -mature
release.
41. We are of the considered view that the writ proceedings before
this Court is pursuant to suppression and misleading of this Court
and a result of suppre ssio veri suggestio falsi . Hence, in our view,
the said order was obtained by fraud played on this Court and
hence , is a nullity and non est in law . In view of the aforesaid
discussion, we hold that consequently the order dated 13.05.2022
passed by this Court in Writ Petition (Crl.) No.135 of 2022 in the
case of Radheshyam Bhagwandas Shah is hit by fraud and is a
nullity and non est in the eye of law and therefore cannot be given
effect to and hence, all proceedings pursuant to the said order are
vitiated.
42. It is trite that fra ud vitiates everything. It is a settled
proposition of law that fraud avoids all judicial acts. In S.P.
Chengalvaraya Naidu v s. Jagannath (Dead) through LRs ,
(1994) 1 SCC 1 (“S.P. Chengalvaraya Naidu”) , it has been
observed that “ fraud avoids all judicial acts , ecclesiastical or
temporal.” Further, “ no judgment of a court, no order of a minister
would be allowed to stand if it has been obtained by fraud. Fraud
unravels everything” vide Lazarus Estates Ltd. vs. Beasley ,
(1956) 1 ALL ER 341 (“Lazarus Estates Ltd.”) .
43. It is well -settled that writ jurisdiction is discretionary in
nature and that the discretion must be exercised equitably for
promotion of good faith vide State of Maharashtra vs. Prabhu ,
(1994) 2 SCC 481 (“Prabhu”) . This Court has further emphasized
that fraud and collusion vitiate the most solemn precedent in any
civilized jurisprudence ; and that fraud and justice never dwell
together (fraus et jus nunquam cohabitant ). This maxim has never
lost its lustre over the centuries. Thus, any litigant who is guilty of
inhibition before the Court should not bear the fruit and benefit of
the court’s orders. This Court has also held that fraud is an act of
deliberation with a desire to secure something which is othe rwise
not due. Fraud is practiced with an intention to secure undue
advantage. Thus, an act of fraud on courts must be viewed
seriously.
43.1. Further, f raud can be established when a false representation
has been made (i ) knowingly, or (ii) without belief in its truth, or (iii),
recklessly, being careless about whether it be true or false . While
suppress ion of a material document would amount to a fraud on
the Court , suppression of material facts vital to the decision to be
rendered by a court of law is equally serious. Thus, once it is held
that there was a fraud in judicial proceedings all advantages gained
as a result of it h ave to be withdrawn . In such an eventuality,
doctrine of res judicata or doctrine of binding preceden t would not
be attracted since an order obtained by fraud is non est in the eye
of law.
43.2. In K.D. Sharma v s. Steel Authority of India Limited ,
(2008) 12 SCC 481 (“K.D. Sharma”) , this Court held that the
jurisdiction of the Supreme Court under Article 32 and of the High
Court under Article 226 of the Constitution is extraordinary,
equitable and discretionary and it is imperative that the petitioner
approaching the Writ Court must come with clean hands and put
forward all the facts before the Court without concealing or
suppressing anything and seek an appropriate relief. If there is no
candid dis closure of relevant and material facts or the petitioner is
guilty of misleading the Court, his petition may be dismissed at the
threshold without considering the merits of the claim. It was held
thus:
“38. The above principles have been accepted in our
legal system also. As per settled law, the party who
invokes the extraordinary jurisdiction of this Court
Under Article 32 or of a High Court Under Article 226 of
the Constitution is supposed to be truthfu l, frank and
open. He must disclose all material facts without any
reservation even if they are against him. He cannot be
allowed to play "hide and seek" or to "pick and choose"
the facts he likes to disclose and to suppress (keep back)
or not to disclose (conceal) other facts. The very basis of
the writ jurisdiction rests in disclosure of true and
complete (correct) facts. If material facts are suppressed
or distorted, the very functioning of writ courts and
exercise would become impossible. The Petitioner must
disclose all the facts having a bea ring on the relief
sought without any qualification. This is because "the
court knows law but not facts".
39. … Suppression or concealment of material facts is
not an advocacy. It is a jugglery, manipulation,
maneuvering or misrepresentation, which has no place
in equitable and prerogative jurisdiction. If the applicant
does not disclose all the material facts fairly and truly
but states them in a distorted manner and misleads the
court, the court has inherent power in or der to protect
itself and to prevent an abuse of its process to discharge
the Rule nisi and refuse to proceed further with the
examination of the case on merits. If the court does not
reject the petition on that ground, the court would be
failing in its duty. In fact, such an applicant requires to
be dealt with for contempt of court for abusing the
process of the court. ”
43.3. In K. Jayaram vs. Bangalore Development Authority,
2021 SCC OnLine SC 1194 (“K. Jayaram”) , a bench of this Court
headed by Sri Nazeer, J. noticed that the appellants therein had not
come to the Court with clean hands. The appellants in the said case
had not disclosed the filing of a suit and its dismissal and also the
dismissal of the appeal against the judgment of the Civil Court. This
Court stressed that the parties have to disclose the details of all
legal proceedings and litigations either past or present concerning
any part of the subject matter of dispute which is within their
knowledge in order to check multiplicity of proceedings pertaining
to the same subject -matter and more importantly to stop the
menace of soliciting inconsistent orders through different judicial
forums by suppressing material facts either by remaining silent or
by making misleading statements in the pleadings in order to
escape the liability of making a false statement. This Court observed
that since the appellants therein had not disclosed the filing of the
suit and its dismissal and also the dismissal of the appeal against
the judgment of the civil court, the appellants had to be non -suited
on the ground of suppression of material facts. They had not come
to the court with clean hands and they had also abused the process
of law, therefore, they were not entitled to the extraordinary,
equitable and discretionary relief.
43.4. A Division Bench of this Court comprising Justice B. R. Gavai
and Justice C.T. Ravikumar placing reliance on the dictum in S.P.
Chengalvaraya Naidu , held in Ram Kumar vs. State of Uttar
Pradesh, AIR 2022 SC 4705 , that a judgment or decree obtained
by fraud is to be treated as a nullity.
44. We wish to consider the case from another angle. The order of
this Court dated 13.05.2022 is also per incuriam for the reason that
it fails to follow the earlier binding judgments of this Court
including that of the Constitution Bench in V. Sriharan vis-à-vis
the appropriate Government which is vested with the power to
consider an application for remission as per sub -section (7) of
Section 432 of the CrPC and that of the nine Judge Bench decision
in Naresh Shridhar Mirajkar that an order of a High Court cannot
be set aside in a proceeding under Article 32 of the Constitution .
44.1. In State of U.P. vs. Synthetics and Chemicals Ltd., (1991)
4 SCC 139 (“Synthetics and Chemicals Ltd .”), a two Judge
Bench of this Court (speaking through Sahai J. who also wrote the
concurring judgment along with Thommen, J.) observed that the
expression per incuriam means per ignoratium . This principle is an
exception to the rule of stare decisis . The ‘quotable in law’ is avoided
and ignored if it is rendered, ‘ in ignoratium of a statute or other
binding authority’. It would result in a judgment or order which is
per incuriam . In the case of Synthetics and Chemicals Ltd ., the
High Court relied upon the observations in paragraph 86 of the
judgment of the Constitution Bench in Synthetics and Chemicals
Ltd., namely, “sales tax cannot be charged on industrial alcohol in
the present case, because under the Ethyl Alcohol (Price Control)
Orders, sales tax cannot be charged by the State on industrial
alcohol” and struck down the levy.
In Synthetics and Chemicals Ltd ., before the two-judge
bench, it was categorically argued by the learned Advocate General
appearing for the appellant State of Uttar Pradesh that the reference
to “sales tax” in the judgment of this Court in the earlier round of
the litigation was accidental and did not arise from the judgment.
This was because the levy of sales tax was not in question at any
stage of the arguments nor was the question considere d as it was
not in issue. The Court gave no reason whatever for abruptly stating
that “sales tax was not levi able by the State by reason of the Ethyl
Alcohol (Price Control) Orders.” In fact, the question which arose
for consideration in the earlier litigation was in regard to the validity
of “vend fee and other fees” charged by the States. The argument
was that such impost, to the extent that it fell on industrial alcohol,
encroached upon the legislative field reserved for Parliament in
respect of a controlled industry coming under Entry 52 of List I
(read with Entry 33 of List III). Vend fee or transport fee a nd similar
fees, unless supported by quid pro quo , this Court held, interfered
with the control exercised by the Central Government under the
Industries (Development and Regulation) Act, 1951 (for short “IDR
Act, 1951”) and the various orders made thereunder with respect to
prices, licences, permits, dis tribution, transport, disposal,
acquisition, possession, use, consumption, etc., of articles related
to a controlled industry, industrial alcohol being one of them. But
none of the observations in the judgment warranted the abrupt
conclusion, to which the court came, that the power to levy taxes
on sale or purchase of goods referable to Entry 54 of List II was
curtailed by the control exercised by the Central Government under
the IDR Act. The casual reference to sales tax in the concluding
portion of the judgment was accidental and per incuriam was the
submission.
While considering the said plea, this Court observed that “the
only question which had to be determined between the same parties
reported in (1990) 1 SCC 109 (Synthetics and Chemicals Ltd.
vs. State of U.P. ) was “whether intoxicating liquor in Entry 8 in List
II was confined to potable liquor or includes all liquors.” Answering
this question, this Court categorically held that intoxicating liquor
within the meaning of Entry 8 of List II was confined to potable
liquor and did not include industrial liquor. This Court did not deal
with the taxing power of the State under Entry 54 of List II which
deals with ‘taxes on the sale or purchase of goods other than
newspapers, subject to the provisions of Entry 92 -A of List I’. The
power of the State to levy taxes on sale or purchase of goods under
that entry was not the subject matter of discussion by this Court
although in paragraph 86 of the leading judgment of this Court,
there was a reference to sales tax.
Therefore, the only question that was considered by the seven -
judge bench of this Court was whether the State could levy “excise
duty” or “vend fee” or “transport fee” and the like by recourse to
Entry 51 or 8 in List II in respect of industrial alcohol. E ntry 52 List
II was not applicable to fee or charges in question. Entry 52 List II
refers to “Taxes on the entry of goods into a local area for
consumption, use or sale therein”. Further, the observation that
sales tax cannot be charged by the State on in dustrial alcohol was
an abrupt observation without a preceding discussion, and
inconsistent with the reasoning adopted by this Court in earlier
decisions from which no dissent was expressed on the point.
However, the aforesaid observation with reference to Entry 52 of
List II in connection with excise duty and sales tax when neither
falls under that entry, was held to be per incuriam .
This was because this Court by a detailed discussion in the
seven -judge bench decision had observed that the impugned
statutory provisions purportedly levying fees or enforcing
restrictions in respect of industrial alcohol were impermissible in
view of the control assumed by the Central Government in exercise
of its power under Section 18 -G of the IDR Act in respect of a
declared industry falling under Entry 52 of List I, read with Entry
33 of List III.
It was in the above background that this Court considered the
question whether or not the power of the State to levy tax on the
sale or purchase of goods falling under Entry 54 of List II would
comprehend industrial alcohol. This was because the taxing pow er
under Entry 54 of List II was subject to taxing power of the
Parliament under Entry 92 -A of List I. Therefore, it was observed
that the provisions in question by which sales tax could be levied
within the scope and ambit of Entry 54 List II was contrar y to what
had been stated (in paragraph 86) by the seven -judge bench
decision between the same parties. It was observed that the
aforesaid decision of this Court was not an authority for the
proposition canvassed by the assessee in challenging the provisi on.
This Court could not have intended to say that the Price Control
Orders made by the Central Government under the IDR Act
imposed a fetter on the legislative power of the State under Entry
54 of List II to levy taxes on the sale or purchase of goods. Th e
reference to sales tax in paragraph 86 of that judgment was merely
accidental or per incuriam and therefore, had no effect.
In the earlier litigation of Synthetics and Chemicals Ltd .,
the question was whether the State Legislature could levy vend fee
or excise duty on industrial alcohol. The seven -Judge Bench
answered in the negative as industrial alcohol being unfit for
human consumption, the State legislat ure was incompetent to levy
any duty of excise either under Entry 51 or Entry 8 of List II of the
Seventh Schedule. While doing so , the Bench recorded the above
conclusion. It was not preceded by any discussion. No reason or
rationale could be found in the judgment. Th erefore, it was held by
the two -Judge Bench that the same was per incuriam and was liable
to be ignored in a subsequent matter between the same parties. The
courts have taken recourse to this principle for relieving from
injustice being perpetrated by unjust precedents. It was observed
that uniformity and consistency are core of judicial discipline. But,
if a decision proceeds contrary to the law declared, it cannot be a
binding precedent. It was further observed that the seven -Judge
Bench in Synthetics and Chemicals Ltd . did not discuss the
matter and had observed that the State cannot levy sales tax on
industrial alcohol. In the subsequent matter which arose from the
High Court between the same parties, it was held by this Court that
the conclusion of law by the Constitution Bench that no sales or
purchase tax could be levied on industrial alcohol was per incuriam
and also covered by the rule of sub-silentio and therefore, was not a
binding authority or precedent.
Thus, although it is the ratio decidendi which is a precedent
and not the final order in the judgment , however, there are certain
exceptions to the rule of precedents which are expressed by the
doctrine s of per incurium and sub silentio . Incuria legally means
carelessness and per incurium may be equated with per ignorantium .
If a judgment is rendered in ignorantium of a statute or a binding
authority, it becomes a decision per incurium. Thus, a decision
rendered by ignorance of a previous binding decision of its own or
of a court of coordinate or higher jurisdiction or in ignorance of the
terms of a statu te or of a rule having the force of law is per incurium .
Such a per incurium decision would not have a precedential value.
If a decision has been rendered per in curium , it cannot be said that
it lays down good law, even if it has not been expressly overruled
vide Mukesh K . Tripathi vs. Senior Divisional Manager, LIC ,
(2004) 8 SCC 387 (para 23). Thus, a decision per incurium is not
binding.
44.2. Another exception to the rule of preceden ts is the rule of sub-
silentio . A decision is passed sub-silentio when the particular point
of law in a decision is not perceived by the court or not present to
its mind or is not consciously determined by the court and it does
not form part of the ratio deciden di it is not binding vide Amrit Das
vs. State of Bihar, (2000) 5 SCC 488 .
45. One of the contentions raised in the present case was that
since this Court in the order dated 13.05.2022 had directed that
the State of Gujarat was the appropriate Government, the same was
binding on the parties even though it may be contrary to the earli er
decisions of this Court. We cannot accept such a submission having
regard to what has been observed above in the case of Synthetics
and Chemicals Ltd . which was also with regard to the application
of the same doctrine between the very same parties inasmuch as
when a judgment has been delivered per incuriam or passed sub-
silentio , the same cannot bind either the parties to the judgment or
be a binding precedent for the future even between the same
parties . Therefore, for this reason also, the order dated 13.05.2022
would not bind the parties thereto and particularly, to the petitioner
in Writ Petition (Crl.) No.491 of 2022 who was in any case not a
party to the said writ proceeding.
46. Having regard to the above discussion and in light of the
provisions of the CrPC, the judgments of this Court and our own
understanding of the order dated 13.05.2022 passed by a
coordinate Bench of this Court in Writ Petition No.135 of 2022, we
hold as follows:
(i) that the Government of State of Gujarat (respondent
No.1 herein) had no jurisdiction to entertain the
applications for remission or pass the orders of
remission on 10.08.202 2 in favour of respondent No.3
to 13 herein as it was not the appropriate Government
within the meaning of sub -section (7) of Section 432
of the CrPC;
(ii) that th is Court’s order dated 13.05.2022 being
vitiated and obtained by fraud is therefore a nullity
and non est in law. A ll proceedings taken pursuant to
the said order also stand vitiated and are non est in
the eye of law.
47. Point No.3 is accordingly answered .
Point No.4 : Whether the impugned order of remission
passed by the respondent - State of Gujarat in favour
of respondent Nos.3 to 13 are in accordance with
law?
48. We have perused the original record which is the English
translation from Gujrati language.
48.1. Even according to the respondent State of Gujarat
Radheshyam Bhagwandas Shah has not made any application
seeking remission before the Superintendent, Godhra Sub -Jail or
the State of Gujarat on 01.08.2019.
48.2. All the other applications were made even prior to the order of
this Court made in Writ Petition (Crl.) No.135 of 2022 on
13.05.2022. Within next few days i.e. on 26.05.2022, the Jail
Advisory Committee gave its opinion recommending grant of
remission. T he recommendation of ADG and IG of Jails was
received in almost cases on 09.06.2022. In two cases, (i) the
recommendation of the ADG and IG was received on 18.08.2021
and 09.06.2021 [in the case of Govind Bhai Akham Bhai Nai
(Raval)] and (ii) on 18.0 8.2021 [in the case of Radheyshyam
Bhagwandas Shah ].
48.3. The communication of the State Government to the Central
Government was made on 28.06.2022; the second respondent
Union of India gave its concurrence on 11.07.2022; and, the order
of remission was made on 10.08.2022.
48.4. We extract one of the orders of remission dated 10.08.2022
in the case of respondent No.3 as under:
Order Number JLK/83202/2978/J
Secretariat House, Gandhinagar,
Dated: 10/08/2022 .
Reference:
(1) Order of the Hon’ble Supreme Court date:13/05/2022,
Writ Petition (Criminal) No.135/2022.
(2) The Additional Director General of Police and Inspector
General of Prisons, State of Gujarat, Ahmedabad/letter
dated:17/06/2022 No: - JUD/14 Year/2/4754/2022.
(3) Department Circular Date: 09/7/1992,
(4) Ministry of Home, The Government of India, Letter dated:
11/07/2022, No.15/05/2022/JC -II
Mr. Radheshyam Bhagwandas Shah, From Godhra
Sub Jail filed Writ Petition in the Hon’ble Supreme Court
as per reference No.1 and Hon’ble Supreme Court passed
order to take decision as per policy mentioned in reference
No.3 within two months regarding Pre -mature release
application of Mr. Shah. The premature release proposal
was prepared and sent by the Additional Director General
of Police and Inspector General of Prisons as per the letter
of reference No.2. The provision under Section 432 of CrPC
the State Government has power for pre -mature release,
however provision under Section 435(1)(A) of CrPC.
Indicates that any case investigated by any agency which
is established by Union Government Rules, in those cases
it is need to be consulted with Central Gover nment is
required. This case was investigated by CBI, therefore the
State Government of Gujarat in consultance with Central
Government letter dated 28/06/2022. Pursuant to which
the Ministry of Home Affairs of the Government of India
has given a positive o pinion regarding the release of the
prisoner from the letter reference (4), considering all the
details, the release of Mr. Radheshyam Bhagwandas Shah
was under consideration.
Provision under Criminal Procedure Code, 1973
Section 443(A), power given to State Government under
Section 432 of Criminal Procedure Code, 1973, the convict
prisoner Radheshyam Bhagwandas Shah’s life sentence
remitted under the following conditions and ta ken decision
by Government to release him from immediate effect.
(1) He shall to furnish surety of two gentlemen about after
releasing him, he will behave good up to two years and also
given undertaking he will not breach public peace and
harass parties and witnesses.
(2) After being released from prison if he commits cognizable
offense causing grievous hurt to anyone or property then
he may be re -arrested and shall serve the remaining of his
sentence.
(3) After released from jail he must give his attendance in
nearest police station, once in a month till one year.
The jail authority shall read and explain above
conditions to him and before releasing him, prior to his
release from prison, the jail authority must keep a written
record indicating that he has understood the said
conditions and that he agrees to these co nditions of release
from prison.
By order of the Governor of Gujarat and in his name.
(Mayursinh Vaghela)
Under Secretary
Home Department.”
48.5. Though we have extracted one of the remission orders, we
observe that having given our categorical finding on Point No. 3, it
may not be necessary to dilate on certain aspects of Point No.4 ,
though it is quite evident that the said order is a non-speaking one
reflecting complete non -application of mind. All orders dated
10.08.2022 are a stereotyped and cyclostyled orders.
48.6. Be that as it may , it would be useful to refer to the following
judgments in the context of passing an order of remission in terms
of Section 432 read with Section 435 of the CrPC.
(a) V. Sriharan is a judgment of this Court wherein the
Constitution Bench answered seven questions out of which the
following questions are relevant for the purposes of this case:
“xxx xxx xxx
8.3. (iii) Whether the power under Sections 432 and 433 of
the Criminal Procedure Code by the appropriate
Government would be available even after the
constitutional power under Articles 72 and 161 by the
President and the Governor is exercised as well as the
power exercised by this Court under Article 32?
8.4. (iv) Whether the State or the Central Government have
the primacy under Section 432(7) of the Criminal
Procedure Code?
8.5. (v) Whether there can be two appropriate
Governments under Section 432(7)?
8.6. (vi) Whether power under Section 432(1) can be
exercised suo motu without following the procedure
prescribed under Section 432(2)?
8.7. (vii) Whether the expression “consultation”
stipulated in Section 435(1) really means
“concurrence”?”
(i) This Court observed that the procedure to be followed under
Section 432(2) is mandatory and that suo moto power of
remission cannot be exercised under Section 432(1) and it can
only be initiated b y an application of the person convicted as
provided under Section 432(2) and the ultimate order of
suspension of sentence or remission should be guided by the
opinion to be rendered by the Presiding Officer of the Court
concerned. In this case the earlier judgement of this court in
Sangeet was approved.
(b) In Sangeet , it was observed that a convict undergoing a
sentence does not have a right to get remission of sentence,
however, he certainly does have a right to have his case
considered for the grant of remission as held in Mahender Singh
and Jagdish . It was further observed in the said case that there
does not seem to be any decision of this Court detailing the
procedure to be followed for the exercise of power under Section 432
of the CrPC which only lays down the basic procedure i.e. by making
an application to the appropriate Government for the suspension or
remission of a sentence, either by the convict or someone on his
behalf. It was observed that sub -section (1) of Section 432 of the
CrPC is only an enabling provision to override a judicially
pronounced sentence, subject to the fulfilment of certain
conditions. These conditions are found either in the Jail Manual or
in statutory rules. It was pertinently observed that when an
application for remission is made the appropriate Government may
take a decision on the remission application and pass orders
granting remission subject to certain conditions or , refuse
remission. But there has to be an application of mind on the
remission application so as to eliminate discretionary en-masse
release of convicts on “festive” occasions, since each release
requires a case by case scrutiny. It was observed that the power
of remission cannot be exercised arbitrarily and the decision to
grant remission has to be well informed, reasonable and fair to all
concerned. The statutory procedure under Section 432 of the CrPC
provides a check on the possible misuse of power of the appropriate
Government.
(i) It was further observed that there is a misconception that a
prisoner serving a life sentence has an indefeasible right to be
released on completion of fourteen years or twenty years of
imprisonment; however, in reality, the prisoner has no such
right. A convict undergoing life imprisonment is expected to
remain in custody till the end of his life, subject to any
remission granted by the appropriate Government under
Section 432 of the CrPC which, in turn, is subject to the
procedural checks in that section and the substantive check
in Section 433 -A of the CrPC. That the application of Section
432 of the CrPC to a convict is limited inasmuch as, a convict
serving a definite term of imprisonment is entitled to earn a
period of remission under a st atutory rule framed by the
appropriate Government or under the Jail Manual. The said
period is then offset against the term of punishment given to
him. Thus, upon completion of the requisite period of
incarceration, a prisoner’s release is automatic. However,
Section 432 of the CrPC will apply only when a convict is to be
given an “additional” period of remission for his release i.e.,
the period to what he has earned as per the Jail Manual
or the statutory rules. That in the case of convict undergoing
life imprisonment, the period of custody is indeterminate.
Remissions earned or awarded to such a life convict are only
notional and Section 432 of the CrPC reduces the period of
incarceration by an order passed by an appropriate
Government which cannot be reduced to less than fourteen
years as per Section 433 -A of the CrPC. Th is Court after a
detailed discussion came to the following conclusions on
the aspect of grant of remissions:
“77.5. The grant of remissions is statutory. However,
to prevent its arbitrary exercise, the legislature has
built in some procedural and substantive checks in
the statute. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432
Cr.P.C. in the case of a definite term of sentence. The
power under this section is available only for granting
“additional” remission, that is, for a period over and
above the remission granted or awarded to a convict
under the Jail Manual or other statutory rules. If the
term of sentence is indefinite (as in life imprisonment),
the power under Section 432 Cr.P.C. can certainly be
exercised but not on the basis that life imprisonment
is an arbitrary or notional figure of twenty years of
imprisonment.
77.7. Before actually exercising the power of
remission under Section 432 Cr.P.C. the appropriate
Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming
Court. Remissions can, therefore, be given only on a
case-by-case basis and not in a wholesale manner. ”
(c) Ram Chander was a case of a writ petition being filed before
this Court under Article 32 of Constitution seeking a direction to the
respondent -State therein to grant him premature release. This
Court speaking through Dr. D.Y. Chandrachud., J., (presently the
learned Chief Justice) considered the aspect of judicial review of
power of remission and referred to Mohinder Singh to observe that
the power of remission cannot be exercised arbitrarily and the
decision to grant remission should be informed, reasonable and fair.
In this context, reliance was placed on Laxman Naskar wherein
this Court, stipulated the factors that govern the grant of remission
namely:
i. Whether the offence is an individual act of crime
without affecting the society at large?
ii. Whether there is any chance of future recurrence
of committing crime ?
iii. Whether the convict has lost his potentiality in
committing crime?
iv. Whether there is any fruitful purpose of confining
this convict any more?
v. Socio -economic condition of the convict’s family.”
(i) That while grant of remission is the exclusive prerogative of the
executive, the Court cannot supplant its view. The Court can
direct the authorities to reconsider the representation of the
convict vide Rajan. Therefore, while there can be no direction
to release a prisoner forthwith or to remit the remaining
sentence, at best there can only be a direction issued to the
State to consider the representation made for remission
expeditiously on its own merits and in accordance with law. In
this case, reliance was placed on Halsbury’s Law of India
(Administrative Law) to observe that sufficiency of reasons, in a
particular case, depends on the facts of each case while
considering an application for remission. It was further
observed that mechanical or stereo typed reasons are not
adequate as also, a mere repetition of the statutory language in
the order will not make the order a reasoned one. In the
aforesaid case, the application for remission was directed to be
reconsidered with adequate reasoning and taking into
consideration all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar .
(d) Epuru Sudhakar is also a case where a writ petition was filed
under Section 32 of the Constitution challenging an order of
Government of Andhra Pradesh, whereby a convict (respondent No.2
therein) was granted remission of unexpired period of about seven
years’ imprisonment. The petition was filed by the son of the
murdered person s while the convict was on bail in the murder case
of petitioner No.1’s father therein. In the writ petition it was alleged,
inter alia, that the grant of remission was illegal as relevant
materials were not placed before the Governor and the impugned
order was made without application of mind and based on irrelevant
and extraneous materials and therefore, liable to be set aside. That
was a case where remission or grant of pardon was under Article
161 of the Constitution by the Governor of the State of Andhra
Pradesh. This Court, while considering the philosophy underlining
the power of pardon or the power of clemency observed that the said
power exercised by a department or functionary of th e Government
is in the context of its political morality. Reliance was placed on
Biddle , Warden vs. Perovich, 274 US 480 (1927) (“Biddle”) in
which case, Holmes, J of the United States Supreme Court had
observed on the rationale of pardon in the following words:
“…a pardon in our days is not a private act of grace
from an individual happening to possess power. It is
a part of the constitutional scheme. When granted, it
is the determination of the ultimate authority that the
public welfare will be better served by inflicting less
than what the judgment fixed…”
(i) It was observed that the prerogative of mercy exercised by a
State as a prerogative power of a Crown as in England (U.K.) or
of the President of India or Governor of a State in India is
reviewable as an administrative action in case there is an abuse
in the exercise of the prerogative power. That the prerogative
power to pardon or grant clemency or for that matter remission
of sentence being a discretionary power, it must be exercised
for the public good and the same can be examined by the Courts
just as any other discretionary power which is vested with the
executive. Therefore, judicial review of the exercise or non -
exercise of the power of pardon by the President or Governor is
available in law. That any exercise of public power, including
constitutional power , shall not be exercised arbitrarily or
mala fide vide Maru Ram . It was observed in the said case that,
considerations of religion, caste, colour or political loyalty are
totally irrelevant and fraught with discrimination. The function
of determining whether the act of a constitutional or statutory
functionary falls within the constitutional or legislative
conferment of power or is vitiated by self -denial or an erroneous
appreciation of the full amplitude of the power, is a matter for
the Court to decide vide Kehar Singh vs. Union of India,
(1989) 1 SCC 204 (“Kehar Singh”) .
(ii) In Epuru Sudhakar , two other aspects were also considered:
one relating to the desirability of indicating reasons in the order
granting pardon/remission and the other , relating to the power
to withdraw the order of granting pardon/remission, if
subsequently, materials are placed to show that certain
relevant materials were not considered or certain materials of
extensive value were kept out of consideration. It was observed
that the affected party need not be given the reasons but that
does not mean that there should not be legitimate or relevant
reasons for passing the order. It was also observed that in the
absence of any specific reference under Article s 72 or 161 of
Constitution with regard to withdrawal of an order of remission,
there is no bar for such power being exercised.
(iii) On a consideration of the facts of the said case, it was observed
that, irrelevant and extraneous materials had entered into the
decision -making process, thereby vitiating it. The order
granting remission impugned in the writ petitions was set aside
being unsustainable and directed to be reconsidered and the
writ petition was allowed to that extent. Kapadia, J., as the
learned Chief Justice then was, in his concurring opinion
observed that, exercise of executive clemency is a matter of
discretion and yet subject to certain standards. The discretion
has to be exercised or public considerations allowed . Therefore,
the principle of exclusive cognizance would not apply when the
decision impugned is in derogation of a constitutional
provision. It was further stated that granting of pardon has the
effect of eliminating conviction without addressing the
defendant’s guilt or innocence.
(iv) The exercise of the prerogative power is subject to judicial
review and rule of law which is the basis for evaluation of all
decisions. Rule of law cannot be compromised on the grounds
of political expediency as “ to go by such consideration would be
subversive of the fundamental principles of rule of law and it
would amount to setting a dangerous precedent.”
(e) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat,
(1997) 7 SCC 622, the basis on which the legality of an
administrative decision could be reviewed was stated. It could be
on whether, a decision making authority exceeding its powers
committed an error of law; committed a breach of rules of natural
justice; reached a decision which no reasonable tribunal would have
reached or abused its powers . In other words, the judicial review of
the order of the President or the Governor under Article 72 or Article
161 of the Constitution, as the case may, is available and such
orders can be impugned on the following ground s:
i. that the order has been passed without application
of mind;
ii. that the order is mala fide;
iii. that the order has been passed on extraneous or
wholly irrelevant considerations;
iv. that relevant materials have been kept out of
consideration;
v. that the order suffers from arbitrariness.
(f) Further , in Swamy Shraddananda , it was observed that
judicial notice has to be taken of the fact that remission, if allowed
to life convicts in a mechanical manner without any sociological or
psychiatric appraisal of the convict and without any proper
assessment as to the effect of early release of a particular convict on
the society. It was further observed that, the power of executive
clemency is not only for the benefit of the convict but what has to
be borne in mind is the effect of the decision on the family of the
victims, society as a whole and the precedent which it sets for the
future. Thus, the exercise of power depends upon the facts and
circumstances of each case and has to be judged from case to case.
Therefore, one cannot draw the guidelines for regulating exercise of
power. Further, the exercise or non -exercise of power of pardon or
remission is subject to judicial review and a pardon obtained by
fraud or granted by mistake or granted for improper reaso ns would
invite judicial review and the vindication of the rule of law being the
main object of judicial review, the mechanism for giving effect to that
justification varies. Thus, rule of law should be the overarching
conditional justification for judicial review.
(g) In Rajan , it was observed that where a person has been
convicted on several counts for different offences in relation to which
life imprisonment has been granted, the convict may succeed in
being release d prematurely only if the competent authority passes
an order of remission concerning all the life sentences awarded to
the convict on each count which is a matter to be considered by
the competent authority.
48.7. With regard to the remission policy applicable in a given case,
the following judgments are of relevance:
(a) In Jagdish, a three Judge Bench of this Court considered the
conflicting opinions expressed in State of Haryana vs. Balwan,
(1999) 7 SCC 355 (“Balwan”) on the one hand and Mahendar
Singh, and State of Haryana vs. Bhup Singh, (2009) 2 SCC 268
(“Bhup Singh”) on the other. The question considered by the three -
Judge bench was, whether, the policy which provides for remission
and sentence should be that which was existing on the date of the
conviction of the accused or should it be the policy that existed on
date of consideration of his case for premature release by the
appropriate authority. Noting that remission policy would be
changed from time to time and after referring to the various
decisions of this Court, including Gopal Vinayak Godse and
Ashok Kumar , this Court observed that, liberty is one of the most
precious and cherished possessions of a human being and he would
resist forcefully any attempt to diminish it. Similarly, rehabilitation
and social reconstruction of a life convict, as an objective of
punishment become a paramount importance in a welfare State.
The State has to achieve the goal of protecting the society from the
convict and also rehabilitate the offender. The remission policy
manifests a process of reshaping a person who, under certain
circumstances, has indulged in criminal activities and is required to
be rehabilitated. Thus, punishment should not be regarded as the
end but only a means to an end. Relevancy of circumstances to an
offence such as the state of mind of the convict when the offe nce
was committed, are factors to be taken note of. It was further
observed as under:
“46. At the time of considering the case of premature
release of a life convict, the authorities may require to
consider his case mainly taking into consideration whether
the offence was an individual act of crime without affecting
the society at large; whether there was any chance of
future recurrence of committing a crime; whether the
convict had lost his potentiality in committing the crime;
whether there was any fruitful purpose of confining the
convict any more; the socio -economic condition of the
convict’s family and other similar circumstances.”
(i) That the executive power of clemency gives an opportunity to
the convict to reintegrate into the society. However, the power
of clemency must be pressed into service only in appropriate
cases. Ultimately, it was held that the case for remission has
to be considered on the strength of the policy that was existing
on the date of conviction of the accused. It was further observed
that in case no liberal policy prevails on the date of
consideration of the case of a convict under life imprisonment
for premature release, he should be given the benefit thereof
subject of course to Section 433-A of the CrPC.
48.8. At this juncture, it is relevant to refer to the following
decisions of this Court, wherein orders of remission have been
quashed and set aside by this Court on various grounds:
(a) In Swaran Singh vs. State of Uttar Pradesh, (1998) 4 SCC
75, a three -Judge Bench of this Court considered the question as
to scope of judicial review of an order of a Governor under Article
161 of the Constitution of India. In the said case, a Member of the
Legislative Assembly of the State of Uttar Pradesh had been
convicted of the offence of murder and within a period of less than
two years , he was granted r emission from the remaining long period
of his life sentence. The son of the deceased moved the Allahabad
High Court challenging the aforesaid action of the Governor and the
same having been dismissed, the matter had been brought to this
Court. This Court noticed that the Governor exercised the power to
grant remission, without being appraised of material facts
concerning the prisoner , such as , his involvement in five other
criminal cases of serious nature, the rejection of his e arlier
clemency petition and the report of the jail authority that his
conduct inside the jail was far from satisfactory and that out of the
two years and five months he was supposed to have been in jail, he
was in fact out on parole during the substantial part thereof. The
Court further held that when the Governor was not in the know of
material facts, the Governor was deprived of the opportunity to
exercise the power to grant remission in a fair and just manner and
that the order granting remission fringe d on arbitrariness.
Therefore, the order of the Governor granting remission, was
quashed, with a direction to re -consider the petition of the prisoner
in light of the materials which the Governor had no occasion to
know earlier. As regards the question as to the power of judicial
review over an order passed by the Governor under Article 161 of
the Constitution, the following observations were made:
“10. A Constitution Bench of this Court has considered the
scope of judicial review of exercise of powers under Articles
72 and 161 of the Constitution of India in Kehar Singh v.
Union of India (1989) 1 SSC 204 . The bench after
observing that the Constitution of India is a constitutive
document which is fundamental to the governance of the
country under which people of India have provided a
constitutional polity consisting of certain primary organs,
institutions and functionaries to exercise the powers
provided in the Constitution, proceeded to add thus:
"All power belongs to the people and it is
entrusted by them to specified institutions and
functionaries with the intention of working out,
maintaining and operating a constitutional
order."
The Constitution Bench laid down that judicial review
of the Presidential order cannot be exercised on the merits
except within the strict limitations defined in Maru Ram
v. Union of India (1981 ) 1 SCC 107 . The limitations of
judicial review over exercise of powers under Articles 72
and 161 of the Constitution have been delineated in the
said decision by the constitution Bench. It has been
observed that “all public power, including constitutional
power, shall never be exercisable arbitrarily or mala fide,
and ordinarily guidelines for fair and equal execution are
guarantors of valid play of power. ” The bench stressed the
point that the power being of the greatest moment, cannot
be a law unto itself but it must be informed by the finer
canons of constitutionalism.
11. It was therefore, suggested by the bench to make rules
for its own guidance in the exercise of the pardon power
keeping a large residuary power to meet special situations
or sudden developments.
12. In view of the aforesaid settled legal position, we cannot
accept the rigid contention of the learned counsel for the
third respondent that this Court has no power to touch the
order passed by the Governor under Article 161 of the
constitution. If such power was exercised arbitrarily, mala
fide or in absolute disregard of the finer canons of the
constitutionalism, the by -product order cannot get the
approval of law and in such cases, the judicial hand must
be stretched to it. ”
(underlining by us)
(b) In Joginder Singh vs. State of Punjab, (2001) 8 SCC 306
the facts were that the respondents -convicts therein were convicted
for offences punishable under Sections 324, 325 and 326 read
with Section 34 of the IPC and had been awarded a sentence of one
year and six months which was challenged upto the High Court of
Punjab and Haryana and was confirmed. On the dismissal of the
Revision Petition by the High Court, the convicts surrendered before
the Superintendent of the concerned jail and on the same day were
released by the jail authorities on being granted the b enefit of
remission. It is of importance to note that during the period of trial
ending with confirmation of conviction in the Revision Petition by
the High Court, the convicts (earlier accused) were almost all at the
time out on bail except for a period of about 2 months and 25 days
when they were in jail, serving part of their sentence. The appellant
before this Court, who was the complainant, unsuccessfully
challenged the remission order before the High Court and thereafter
approached this Court by way of a Special Leave Petition. The
primary ground of challenge before this Court was that the periods
of remission permissible under successive notifications issued
between 13. 07.1988 and 29. 07.1998 (period between date of
conviction by the Chief Judicial Magistrate and the date on which
the conviction and sentence was upheld by the High Court) were
cumulatively allowed to the convicts. That is to say that the
maximum period of remission permis sible under each of the seven
notifications issued between the said dates was to be cumulatively
taken into account to grant a total remission of 17 and a half
months. It was contended before this Court that the said approach
was erroneous in construing successive policies of remission. It was
further contended that while applying the period of remission
granted by the Government under any remission notification, the
period during which an accused person was out on bail cannot be
taken into account.
(i) This Court while allowing the appeal of the appellant therein -
complainant held that the High Court fell in error in holding
that the convicts were entitled to the benefit of the period of
remission given by the various notifications cumulatively to be
counted against the period during which they were out on bail.
(c) In Satpal , the order of the Governor granting remission to
convicts therein, in the exercise of power conferred by Article 161 of
the Constitution of India read with Section 132 of the Code of
Criminal Procedure was assailed by the brother and widow of the
deceased. The primary ground raised before this Court was that the
power to grant remission was exercised without application of mind,
and that the said power was exercised by the Governor having
regard to extraneous considerations and even without the aid and
advice of the Government, namely, the concerned Minister. This
Court examined the said case having regard to the parameters of
judicial review in relation to an order granting remission by the
Governor. It was noted that the Governor had proceeded to grant
remission of sentence without any knowledge as to the period of
sentence already served by the convicts and if a t all they had
undergone any period of imprisonment. It was noted that an order
granting remission would be arbitrary and irrational if passed
without knowledge or consideration of material facts.
49. On a reading of the aforesaid judgments what emerges is that
the power to grant remission on an application filed by the convict
or on his behalf, is ultimately an exercise o f discretion by the
appropriate Government. It is trite that where there is exercise of
legal power coupled with discretion by administrative authorities,
the test is , whether , the authority concerned was acting within the
scope of its powers. This would not only mean that the concerned
authority and in the instant case, the appropriate Government had
not only the jurisdiction and authority vested to exercise its powers
but it exercised its powers in accordance with law i.e., not in an
arbitrary or perverse manner without regard to the actual facts or
unreasonably or which would lead to a conclusion in the mind of
the Court that there has been an improper exercise of discretion. If
there is improper exercise of discretion, it is an instance of an abuse
of discretion. There can be abuse of discretion when the
administrative order or exercise of discretio n smacks of mala fides
or when it is for any purpose based on irrelevant consideration by
ignoring relevant consideration or it is due to a colourable exercise
of power; it is unreasonable and there is absence of proportionality.
There could also be an abuse of discretion wher e there is failure to
apply discretion owing to mechanical exercise of power, non -
application of mind, acting under dictation or by seeking assistance
or advi ce or there is any usurpation of power.
49.1. It is not necessary to dilate upon each of the aforesaid aspects
of abuse of discretion in the instant case, as we have observed that
the consideration of the impugned orders o r manner of exercise of
powers is unnecessary, having regard to the answer given by us to
Point No.3.
50. However, it would be relevant to refer to one aspect of abuse
of discretion, namely, usurpation of power. Usurpation of power
arises when a particular discretion vested in a particular authority
is exercised by some other authority in whom such power does not
lie. In such a case, the question whether the authority which
exercised discretion was competent to do so arises.
50.1. Applying the said principle to the instant case, we note that
having regard to the definition of “appropriate Government” and the
answer given by us to Point No.3, the exercise of discretion and the
passing of the impugned orders of remission in the case o f
respondent Nos.3 to 13 herein was an instance of usurpation of
power. It may be that this Court by its order dated 13.05.2022
passed in Writ Petition No.135 of 2022 had directed the first
respondent State of Gujarat to consider the case of responde nt No.3
under the 1992 Policy of the State of Gujarat, by setting aside the
order of the High Court of Gujarat dated 17.07.2019. What is
interesting is that in the said writ petition, the State of Gujarat had
correctly submitted before this Court that the app ropriate
Government in the instant case was State of Maharashtra and not
the State of Gujarat. The said contention was in accordance with
the definition of appropriate Government under clause (b) of sub -
section (7) of Section 432 of the CrPC. However, the said contention
was rejected by this Court contrary to several judgments of this
Court including that of the Constitution Bench in V. Sriharan. But
the State of Gujarat failed to file a review petition seeking correction
of the order of this Court dated 13.05.2022 , (particularly when we
have now held that the said order is a nullity ). Complying with the
said order can also be said to be an instance of usurpation of power
when the provision, namely, clause (b) of sub -section (7) of Section
432 states otherwise.
50.2. We fail to understand as to , why, the State of Gujarat, first
respondent herein, did not file a review petition seeking correction
of the order dated 13.05.2022 passed by this Court in Writ Petition
No.135 of 2022 in the case of respondent No.3 herein. Had the
State of Gujarat filed an application seeking review of the said order
and impressed upon this Court that it was not the “appropriate
Government” but the State of Maharashtra was the “appropriate
Government”, ensuing litigation would n ot have arisen at all . On
the other hand, in th e absence of filing any review petition seeking
a correction of the order passed by this Court dated 13.05.2022,
the first respondent -State of Gujarat herein has usurped the power
of the State of Maharashtra and has passed the impugned orders of
remission on the basis of an order of this Court dated 13.05.2022
which , in our view , is a nullity in law.
50.3. In this regard it is necessary to dilate on the background to
this case and refer to the previous orders passed by this Court as
under: -
The first order is dated 16.12.2003, referring the matter to the
CBI for investigation; the second is an order of transfer of the trial
from the competent Court in Gujarat to the Special Court at
Mumbai and the third is an order passed by this Court granting
compensation to the petitioner in Writ Petition (Crl.) No.491 of
2022 . The relevant portions of the aforesaid orders read as under: -
W.P.(Crl.) No.118 of 2003, dated 16.12.2003 –
referring matter to the CBI for investigation;
“Considering the nature of the allegations made, Shri
Mukul Rohtagi learned Additional Solicitor General
appearing for the respondents accepts that further
investigation in this case may be done by the CBI, though
he does not concede that the Gujarat Police is incompetent
to investigate the matter. Hence, we direct the CBI to take
over further investigation of this case and report to this
Court from time to time.
Let a report be filed by the CBI within eight weeks.
List after report is filed.”
Transfer Petition (Crl.) No.192 of 2004, dated
06.08.2004 – transfer of the trial from the
competent Court in Gujarat to the Special
Court at Mumbai;
“We are of the view that on account of the nature and
the allegations of the case, session case No.161 of 2004
before the Additional Sessions Judge, Dahod now
transferred to Additional Sessions Judge of IVth Court of
the City Civil Sessions Court Ahmedabad (CBI Case
No.RCZ/S/2004, SCB Mumbai) title CBI vs. Jaswantbhai
Chaturbhai & Others be transferred to any competent
Court in Mumbai for trial and disposal. This order be
placed before the Chief Justice of Bombay High Court who
shall designate the competent Court as he may deem fit.
The transfer petition is accordingly allowed.
This order is based on the perceptions of the CBI as
recorded in its report and should not be taken as a
reflection on the competence or impartiality of the
judiciary in the State of Gujarat.
Having regard to the peculiar facts of this case the
State of Gujarat shall bear the expenditure of the defence
of the accused in accordance with the provisions of the
Section 304 of the Code of Criminal Procedure.
It is made clear that for the purpose of this case the
Central Government will appoint the public prosecutor.”
Criminal Appeal Nos.727 -733 of 2019, order
dated 23.04.2019 - compensation
“The appellant, Bilkis Yakub Rasool, is a victim of
riots which occurred in the aftermath of the Godhra
train burning incident in the State of Gujarat on
February 27, 2002. While eventually, the perpetrators of
the crime including the police personnel stan d
punished, the appellant, who was aged twenty -one years
and pregnant at that time, having lost all members of
her family in the diabolical and brutal attacks needs to
be adequately compensated. Additional facts which we
must note are that the appellant was repeatedly
gangraped and was a mute and helpless witness to her
three -and-a-half-year-old daughter being butchered to
death. This factual position is undisputed and
unchallenged in light of the findings of the trial court
upheld by the High Court and this Court.
The appellant, we are informed, is presently about
forty years of age and is without any home and lives with
her daughter who was born after the incident. She has
been coerced to live life of a nomad and as an orphan,
and is barely sustaining herself on th e charity of NGOs,
having lost company of her family members. The
gruesome and horrific acts of violence have left an
indelible imprint on her mind which will continue to
torment and cripple her.
We do not have to search and elaborate upon
principles of law to come to the conclusion that the
appellant deserves to be adequately compensated. It is
only the quantum of compensation that needs to be
worked out by the Court. Time and again this Court has
held that the compensation so awarded must be just and
fair, and the criteria objective. However, this case has to
be dealt with differently as the loss and suffering evident
from the facts stated above surpass normal cases.
Taking into account the totality of the facts of the case,
we are of the v iew that compensation of Rs.50,00,000/ -
(Rupees fifty lakh only) to be paid by the State
Government within two weeks from today, on proper
identification, would meet the ends of justice. Coupled
with the aforesaid relief, we deem it proper to further
direct the State Government to provide the appellant
with an employment under the State, if she wishes so
and is inclined, and also to offer her government
accommodation at a place of her choice, if she is willing
to live in such accommodation.
With the aforesaid direction, the appeals relating to
compensation are disposed of.”
The aforesaid orders clearly indicate why this Court had
transferred the investigation and trial to the CBI and to the State of
Maharashtra respectively .
50.4. Such being the case, it was the State of Maharashtra which
was the appropriate Government which had to consider the
appellant for remission vis-à-vis respondent Nos.3 to 13 herein.
Instead, being unsuccessful before the High Court of Gujarat,
respondent No. 3 surreptitiously filed the writ petition before this
Court seeking a direction to consider his case for remission without
disclosing the full and material facts before this Court . Relief was
granted by this Court by conferring jurisdiction on State of Gu jarat
which it did not possess as per Section 432 (7) of the CrPC , in the
guise of consideration for remission on the basis of the 09.07.1992
policy, which had also stood cancelled in the year 2013. Taking
advantage of this Court’s order dated 13.05.2022, all other convicts
also sought consideration of their case by the Government of
Gujarat for remission even in the absence of any such direction in
their cases by this Court. Thus, the State of Gujarat has acted on
the basis of the direction issued by this Court but contrary to the
letter and spirit of law. We have already said that the State of
Gujarat never sought for the review of the order of this Court dated
13.05.2022 by bringing to the notice of this Court that it was
contrary to Section 432 (7) and judgments of this Court.
50.5. Instead, the State of Gujarat has acted in tandem and was
complicit with what the petitioner -respondent No.3 herein had
sought before this Court. This is exactly what this Court had
apprehended at the previous stages of this case and had intervened
on three earlier occasions in the interest of truth and justice by
transferring the investigation of the case to the CBI and the trial to
the Special Court at Mumbai . But, in our view, when no
intervention was called for in the writ petition filed by one of the
convicts /respondent No. 3 herein , this Court was misled to issue
directions contrary to law and on the basis of supp ression and
misstatements made by respondent No.3 herein . We have held that
order of this Court dated 13.05.2022 to be a nullity and non est in
the eye of law. Consequently, exercise of discretion by the State of
Gujarat is nothing but an instance of usurpation of jurisdiction and
an instance of abuse of discretion. If really State of Gujarat had in
mind the provisions of law and the judgments of this Court, and
had adhered to the rule of law, it would have filed a review petition
before this Court by contending that it was not the appropriate
Government. By failing to do so, not only are the earlier orders of
this Court in the matter have been vindicated but more importantly,
rule of law has been breached in usurping power not vested in it
and thereby aiding respondent Nos.3 to 13. This is a classic case
where the order of this Court dated 13.05.2022 has been used for
violating the rule of law while passing orders of remission in favour
of respondent Nos.3 to13 in the absence of any jurisdiction by
respondents – State of Gujarat. Therefore, without going into the
manner in which the power of remission has been exercised, we
strike down the orders of remission on the ground of usurpation of
powers by the State of Gujarat not vested in it . The orders of
remission are hence quashed on this ground also .
Section 432(2) of the CrPC : Opinion of the Presiding Judge of
the convicting court:
51. Sub-section (2) of Section 432 of the CrPC states that when
an application is made to the appropriate Government, inter alia,
for remission of a sentence, the appropriate Government may
require the Presiding Judge of the Court before or by which the
conviction was had or confirmed, to state his opinion , as to,
whether, the application should be granted or refused , together with
his reasons for such opinion and also to forward with the statement
of such opinion a certified copy of the record of the trial or of such
record thereof as exists.
52. Learned ASG Sri S.V. Raju submitted that the expression
“appropriate Government may require the opinion of the Presiding
Judge of the Court ” indicates that this is not a mandatory
requirement, therefore, in the instant case the opinion of the
Presiding Judge of the Court by which respondent Nos.3 to 13 were
convicted, namely, the Special Judge, Mumbai, was unnecessary.
It was further submit ted that since the State of Gujarat was
considering the applications for remission filed by respondent Nos.3
to 13 , the opinion of local Sessions Judge at Dahod was obtained
as a member of the Jail Advisory Committee and there was a
positive opinion for grant of remission to respondent Nos.3 to 13
herein.
52.1. This contention was however refuted by the learned counsel
Ms. Shobha Gupta by reiterating her submission that the
expression “may require” in sub -section (2) of Section 432 of the
CrPC ought to be read as “shall require”. This is evident from the
dicta of this Court. In this regard, reliance was placed on certain
judgments of this Court which we shall advert to in the first
instance as under:
(i) In Sangeet, it was observed that before actually exercising
the power of remission under Section 432 of the CrPC, the
appropriate Government must obtain the opinion (with reasons) of
the Presiding Judge of the convicting or confirming Court.
Remissions can, therefore, be given only on a case -by-case basis
and not in a wholesale manner.
(ii) Further, in V. Sriharan, it was observed that the declaration
of law made by this Court in Sangeet referred to above, is correct
and further the procedure to be followed under Section 432(2) of
the CrPC is mandatory. The manner in which the opinion is to be
rendered by the Presiding Judge can always be regulated and
settled by the concerned High Court and the Supreme Court by
stipulating the required procedure to be followed as and when any
such app lication is forwarded by the appropriate Government.
Therefore, it was observed that the suo motu power of remission
cannot be exercised under Section 432(1) of the CrPC and it can
only be initiated based on an application of the person convicted
under Section 432(2) of the CrPC and the ultimate order of
remission should be guided by the opinion to be rendered by the
Presiding Officer of the Court concerned.
(iii) This Court , in Ram Chander , has specifically dealt with the
value of the opinion of the Presiding Judge with reference to
paragraph 61 of Sangeet and paragraphs 148 and 149 of V.
Sriharan referred to above and observed in paragraphs 25 and 26
as under:
“25. In Sriharan (supra) , the Court observed that the
opinion of the presiding judge shines a light on the nature
of the crime that has been committed, the record of the
convict, their background and other relevant fact ors.
Crucially, the Court observed that the opinion of the
presiding judge would enable the government to take the
‘right’ decision as to whether or not the sentence should
be remitted. Hence, it cannot be said that the opinion of
the presiding judge is only a relevant factor, which does
not have any determinative effect on the application for
remission. The purpose of the pro cedural safeguard under
Section 432 (2) of the CrPC would stand defeated if the
opinion of the presiding judge becomes just another facto r
that may be taken into consideration by the government
while deciding the application for remission. It is possible
then that the procedure under Section 432 (2) would
become a mere formality.
26. However, this is not to say that the appropriate
government should mechanically follow the opinion of the
presiding judge. If the opinion of the presiding judge does
not comply with the requirements of Section 432 (2) or if
the judge does not consider the relevant factors for grant
of remission that have been laid down in Laxman Naskar
v. Union of India (supra), the government may request
the presiding judge to consider the matter afresh. ”
(iv) In paragraph 27, it was further observed that the Presiding
Judge in the said case ha d not taken into account the factors which
have been laid down in Laxman Naskar and that the opinion was
a mechanical one bereft of reasons and therefore, inadequate and
not in accordance with law. Consequently, the petitioner’s
application for remission was directed to be considered afresh with
a direction to the Special Judge, Durg to provide an opinion on the
application afresh accompanied with adequate reasoning, taking
into account all the relevant factors that govern the grant of
remission as laid down in Laxman Naskar. A direction was issued
to State of Chhattisgarh in the said case to take a final deci sion on
the application for remission afresh within a month after receiving
the opinion of the Special Judge, Durg. Consequently, the petition
filed under Article 32 was allowed in the aforesaid terms.
52.2. Thus, the consistent view of this Court which emerges is that
the expression “may” has to be interpreted as “shall” and as a
mandatory requirement under sub -section (2) of Section 432 of the
CrPC. The said provision has sufficient guidelines as to how the
opinion must be provided by the Presiding Judge of the Court which
has convicted the accused inasmuch as –
(i) the opinion must state as to whether the application
for remission should be granted or refused and for
either of the said opinions, the reasons must be
stated ;
(ii) naturally, the reasons must have a bearing on the
facts and circumstances of the case ;
(iii) the reasons must be in tandem with the record of the
trial or of such record thereof as exists ;
(iv) the Presiding Judge of the Court before or by which
the conviction was had or confirmed, must also
forward along with the statement of such opinion
granting or refusing remission, a certified copy of the
record of the trial or of such record thereof as exists.
52.3. Having regard to the requirements which the Presiding Judge
must comply with while stating his opinion to the appropriate
Government on an application for remission of sentence made by a
convict, it cannot be held that the expression “may” in the said
provision is not mandatory nor can it be left to the whims and
fancies of the appropriate Government either to seek or not to seek
the opinion of the Presiding Judge or the Court before which the
conviction had taken place.
52.4. In the instant case, what is interesting is that when
respondent No.3 - Radheshyam Bhagwandas Shah filed his
application for remission before the State of Maharashtra pursuant
to the order of the Gujarat High Court dated 17.07.2019, the State
of Maharashtra sought the opinion of the Special Judge at Mumbai
who gave a negative opinion. This was one of the reasons for
respondent No.3 to file the Writ Petition (Crl.) No.135 of 2022 before
this Court. However, subsequently, when a direction was issued by
this Court to the first respondent State of Gujarat to consider the
application for remission, the opinion of the local Sessions Court at
Dahod was obtained and the opinion of the Special Judge, Mumbai
where the trial had taken place was ignored . The Sessions Court at
Dahod obviously had not complied with the mandatory
requirements noted above under sub -section (2) of Section 432 of
the CrPC inasmuch as the opinion was not forwarded along with
reasons ha ving regard to the record of the trial as no trial had taken
place before the Sessions Court, Dahod . Further, the Presiding
Judge of the Sessions Court, Dahod also did not forward any
certified copy of the record of the trial. Moreover, learned Sessions
Judge at Dahod was also a member of the Jail Advisory Committee.
52.5. We further observe that t he Presiding Judge of the Court
before which the conviction happens can never be a Member of the
Jail Advisory Committee, inasmuch he is an independent authority
who should give his opinion on the application seeking remission
which is a mandatory requirement as per the requirement s of sub -
section (2) of Section 432 . In the instant case, the opinion given by
the District & Sessions Judge at Dahod is vitiated for two reasons :
firstly , because he was not the Presiding Judge before which the
conviction of respondent Nos.3 to 13 took place; and, secondly , if
the Presiding Judge of the Court where the conviction occurred is
an independent authority which must be consulted by the
appropriate Government then he c ould not have been a Member of
the Jail Advisory Committee as in the instant case .
52.6. On perusal of the counter affidavit of the respondent -State of
Gujarat, it is noted that pursuant to the applications filed by
respondent Nos. 4 to 13 (respondent No.3 had filed his application
before State of Maharashtra on 01.08.2019) seeking pre -mature
release or remission , opinion of the Special Judge (CBI), City Civil &
Sessions Court, Gr eater Mumbai was taken by the State of Gujarat
and in respect of all the respondent Nos.3 to 1 3 the categorical
opinion was that having regard to the Government’s Resolution
dated 11.04.2008, issued by the State of Maharashtra, said
prisoners should not be release d pre-maturely. Had the State of
Maharashtra considered the applications of respondent Nos.3 to 13
for remission, this vital opinion of the Presiding Judge of the Court
which had convicted them would have carried weigh t in the mind of
the Government of the State of Maharashtra as well as the terms of
the Government’s Resolution dated 1 1.04.2008 which was the
applicable policy for remission . In fact, the first respondent, namely,
the Government of the State of Gujarat , which usurp ed the power
of the Government of the State of Maharashtra , simply brus hed
aside the opinion of the Special Judge (CBI), Greater Mumbai .
Instead the opinion of the Sessions Judge, Godhra , District
Panchmahal within whose jurisdiction the offences had occurred
and who was a member of the Jail Advisory Committee was
highlighted by Sri S.V. Raju, learned ASG appearing for the State of
Gujarat. Although this opinion is also a negative opinion, the same
is not in accordance with sub-section (2) of Section 432 of the CrPC
and, therefore, is of no consequence except when viewed from the
prism of being an opinion of one of the members of the Jail Advisory
Committee, Dahod Jail.
53. As we have held , in the first place, the first respondent State
of Gujarat was not at all the appropriate Government, therefore, the
proceedings of the Jail Advisory Committee of Dahod Jail, which
had recommended remission is itself vitiated and further, there is
no compliance of sub -section (2) of Section 432 of the CrPC in the
instant case in as much as the said opinion was not considered by
the appropriate Government . On that score also, the orders of
remission dated 10.08.2022 are vitiated.
Sentence in default of fine:
54. Learned counsel Mrs. Shobha Gupta contended that
respondent Nos.3 to 13 had not paid the fine and therefore, in the
absence of payment of fine, the default sentence ought to have been
undergone by the said respondents. This aspect of the matter has
been lost sight of or ignored while granting the orders of remission
and therefore, the orders of remission are vitiated on that score.
54.1. In response to the above arguments, learned senior counsel ,
Sri Sidharth Luthra , at the outset , submitted that although
application s for payment of fine have been filed and are pending
consideration before this Court , nevertheless respondent Nos.3 to
13 have now on their own tendered the fine and the same has been
accepted by the Special Court at Mumbai.
54.2. In this regard, following judgments were referred to at the bar:
(a) In Shantilal vs. State of Madhya Pradesh, (2007) 11 SCC
243 (“Shantilal”) , the contention was that the term of
imprisonment in default of payment of fine is not a sentence. It is
a penalty which a person incurs on account of non -payment of fine.
This sentence must be undergone by the offender unless it is set -
aside or remitted in part or in whole, either in appeal or in revision
or in other appropriate judicial proceedings or otherwise. However,
a term of imprisonment ordered in default of paymen t of fine stands
on a different footing. A person is required to undergo imprisonment
for default in payment of fine either because he is unable to pay the
amount of fine or refuses to pay such amount. He, therefore, can
always avoid to undergo imprisonme nt in default of payment of fine
by paying such amount. It is, therefore, not only the power, but the
duty of the Court to keep in view the nature of offence, and
circumstances under which it was committed, the position of the
offender and other relevant considerations before ordering the
offender to suffer imprisonment in default of payment of fine.
(i) The further question considered was, whether, a Court of law
can order a convict to remain in jail in default of payment of
fine. It was observed that even in the absence of a specific
provision in the law empowering a Court to order imprisonment
in default of payment of fine, such power is implicit and is
possessed by a Court administering criminal justice. In this
regard, reference was made to Sections 40 to 42 and Sections
63 to 70 IPC as well as Section 30 of the CrPC which deals with
a sentence of imp risonment in default of payment of fine and
Section 25 of the General Clauses Act, 1897 which deals with
recovery of fine. It was observed that even in the absence of a
provision to the contrary viz. that no order of imprisonment can
be passed in default of payment of fine, such power is explicit
and can always be exercised by a court having regard to Section
30 of the CrPC.
(b) In Sharad Hiru Kolambe vs. State of Maharashtra, (2018)
18 SCC 718 (“Sharad Hiru Kolambe”), the point for consideration
was regarding quantum of fine that was imposed by way of a default
sentence in case of non -payment of fine. It was contended that
though the substantive sentence stood remitted and the appellant
was directed to be released on c ompletion of fourteen years of actual
sentence, the appellant would still be inside till he completes
twenty -four years. This was because the trial court in th e said case
directed “all sentences shall run concurrently”, therefore, all default
sentences must also run concurrently inter se . It was contended
that the default sentences so directed was unconscionable and
excessive.
(i) This Court speaking through Lalit, J. (as the learned Chief
Justice then was) observed that if the term of imprisonment in
default of payment of fine is a penalty which a person incurs
on account of non -payment of fine and is not a sentence in a
strict sense, imposition of such default sentence is completely
different and qualitatively distinct from a substantive sentence.
Theoretically, if the default sentences awarded in respect of
imposition of fine in connection with two or more offences are
to be clubbed or directed to run concurrently, there would not
be any occasion for the persons so sentenced to deposit the fine
in respect of the second or further offences. It would effectively
mean imposition of one single or combined sentence of fine.
Such an exercise would render the very idea of imposition of
fine with a deterrent stipulation while awarding sentence in
default of payment of fine to be meaningless. If imposition of
fine and prescription of mandatory minimum is designed to
achieve a speci fic purpose, the very objective will get defeated
if the default sentences were directed to run concurrently.
Therefore, the contention regarding concurrent running of
default sentences was rejected. It was observed that there is
no power of the Court to order the default sentence s to run
concurrently but if a prisoner does not pay the fine or refuses
to pay the fine then he must undergo the default sentence s so
imposed.
(c) In Shahejadkhan Mahebubkhan Pathan vs. State of
Gujarat, (2013) 1 SCC 570 (“Shahejadkhan Mahebubkhan
Pathan”), this Court speaking through Sathasivam, J. (as the
learned Chief Justice then was) held that the term of imprisonment
in connection with a fine is not a sentence but a penalty which a
person incurs on account of non -payment of fine . But on the other
hand, if a sentence is imposed, an offender must undergo the same
unless it is modified or varied in part or whole in the judicial
proceedings or by way of remission. But the imprisonment order in
default of fine stands on different footing . When such a sentence
on default of payment of fine is imposed, the person is required to
undergo imprisonment either because he is unable to pay the fine
or refuses to do so. The only way he can avoid to undergo
imprisonment in default of payment of fi ne is by paying such
amount.
54.3. The aforesaid dicta would therefore clearly indicate that the
sentence of imprisonment awarded to a person for committing an
offence is distinct than the imprisonment ordered to be undergone
in default of payment of fine. The latter is not a substantive
sentence for commission of the offence but is in the nature of
penalty for default in payment of fine.
54.4. In the instant case, while considering the applications for
remission, the Jail Advisory Committee did not take into
consideration whether respondent Nos.3 to 13 convicts had
tendered the fine which was imposed by the Special Court and
affirmed by the High Court as well as by this Court . Therefore, this
is an instance of leaving out of a relevant consideration from the
gamut of facts which ought to have been considered by the Jail
Advisory Committee. Had the respondent State of Gujarat
considered the opinion from the Presiding Judge of the Court which
had convicted, respondent No s.3 to 13 herein, the aspect regarding
non-payment of fine would have surfaced. In the absence of non -
compliance with the direction to pay fine, there would be default
sentence which would be in the nature of penalty. The question
whether the default sentence or penalty had to be undergone by
these respondents, was a crucial consideration at the time of
recommending remission to the State Government by the Jail
Advisory Committee. This aspect of the matter has also not been
taken into consideration by the State Government while passing the
impugned orders of remission. Realising this , during the pendency
of these writ petitions, applications were filed seeking permission to
tender the fine amount. However, even before the said applications
could be considered and orders passed thereon, the respondents
convicts have paid the fine amount and have produced receipts in
that regard . This fact would not alter the consideration of the case
of respondent Nos.3 to 13 herein inasmuch the fact of payment of
fine ought to have been a point which had to be taken into
consideration prior to the passing of the orders of remission as there
could be no relaxation in the sentence with regard to payment of
fine. There can only be reduction in the substantive sentence to be
undergone by way of imprisonment for which the application
seeking remission is filed. Remission of sentence , which is for
reduction of the period of imprisonment , cannot however rela te to
the payment of fine at all. Since there was non-application of mind
in this regard , the impugned orders of remission are contrary to law
and are liable to be quashed on this count as well .
In view of the above, the other contentions based on
Wednesbury principles do not require consideration in the present
case and hence all contentions on the said aspect are left open .
55. We however would like to indicate the factors that must be
taken into account while entertaining an application for remission
under the provisions of the CrPC, which are however not exhaustive
of the test s which we have discussed above. They can be
adumbrated as under:
(a) The application for remission under Section 432 of the
CrPC could be only before the Government of the State
within whose territorial jurisdiction the applicant was
convicted (appropriate Government) and not before
any other Government within whose territorial
jurisdiction the applicant may have been transferred
on conviction or where the offence has occurred.
(b) A consideration for remission must be by way of an
application under Section 432 of the CrPC which has
to be made by the convict or on his behalf. In the first
instance whether there is compliance of Section 433A
of the CrPC must be noted inasmuch as a person
serving a life sentence cannot seek remission unless
fourteen years of imprisonment has been completed.
(c) The guidelines under Section 432(2) with regard to the
opinion to be sought from the Presiding Judge of the
Court which had convicted the applicant must be
complied with mandatorily. While doing so it is
necessary to follow the requirements of the said
Section which are highlighted by us, namely ,
(i) the opinion must state as to whether the
application for remission should be granted or
refused and for either of the said opinions, the
reasons must be stated;
(ii) the reasons must have a bearing on the facts and
circumstances of the case;
(iii) the opinion must have a nexus to the record of
the trial or of such record thereof as exists;
(iv) the Presiding Judge of the Court before or by
which the conviction was had or confirmed, must
also forward along with the statement of such
opinion granting or refusing remission, a certified
copy of the record of the trial or of such record
thereof as exists.
(d) The policy of remission applicable would therefore be
the Policy of the State which is the appropriate
Government and which has the jurisdiction to
consider that application. The policy of remission
applicable at the time of the conviction could apply
and only if for any reason, the said policy cannot be
made applicable a more benevolent policy, if in vogue,
could apply.
(e) While considering an application for remission, there
cannot be any abuse of discretion. In this regard, it is
necessary to bear in mind the following aspects as
mentioned in Laxman Naskar , namely, -
(i) Whether the offence is an individual act of crime
without affecting the society at large?
(ii) Whether there is any chance of future
recurrence of committing crime?
(iii) Whether the convict has lost his potentiality in
committing crime?
(iv) Whether there is any fruitful purpose of
confining this convict any more?
(v) Socio -economic condition of the convict’s family.
(f) There has also to be consultation in accordance with
Section 435 of the CrPC wherever the same is
necessitated.
(g) The Jail Advisory Committee which has to consider
the application for remission may n ot have the District
Judge as a Member inasmuch as the District Judge,
being a Judicial Officer may coincidently be the very
judge who may have to render an opinion
independently in terms of sub -section (2) of Section
432 of the CrPC.
(h) Reasons for grant or refusal of remission should be
clearly delineated in the order by passing a speaking
order.
(i) When an application for remission is granted under
the provisions of the Constitution, the following
among other tests may apply to consider its legality by
way of judicial review of the same.
(i) that the order has been passed without
application of mind;
(ii) that the order is mala fide;
(iii) that the order has been passed on extraneous or
wholly irrelevant considerations;
(iv) that relevant materials have been kept out of
consideration;
(v) that the order suffers from arbitrariness.
Summary of Conclusions:
56. On the basis of the aforesaid discussion, we arrive at the
following summary of conclusions:
a) We hold that the Writ Petition (Crl.) No.491 of 2022 filed under
Article 32 of the Constitution before this Court is maintainable
and that it was not mandatory for the petitioner therein to have
filed a writ petition under Article 226 of the Constitution before
the Gujarat High Court.
b) Since Writ Petition (Crl.) No.491 of 2022 has been filed by one
of the victims invoking Article 32 of the Constitution before this
Court which has been entertained by us , the question ,
whether , the writ petitions filed as public interest litigation
assailing the impugned orders of remission dated 10.08.2022
are maintainable , is kept open to be raised in any other
appropriate case .
c) In view of Section 432 (7) read with Section 432 (1) and (2) of
the CrPC, we hold that the Government of the State of Gujarat
had no jurisdiction to entertain the prayers seeking remission
of respondent Nos.3 to 13 herein as it was not the appropriate
Government within the meaning of the aforesaid provisions.
Hence, the orders of remission dated 10.08.2022 made in
favour of respondent Nos.3 to 13 herein are illegal, vitiat ed and
therefore , quashed.
d) While holding as above, we also hold that the judgment dated
13.05.2022 passed by this Court is a nullity and is non est in
law since the said order was sought by suppression of material
facts as well as by misrepresentation of facts (suppressio veri,
suggestio falsi ) and therefore , fraudulently obtained at the
hands of this Court.
i) Further, the petitioner in Writ Petition (Crl.) No.491 of
2022 not being a party to the said writ proceeding, the
same is not binding on her and she is entitled in law to
question the order s of remission dated 10.08.2022 from all
angles including the correctness of the order dated
13.05.2022.
ii) In addition to the above, the said order , being contrary to
the larger bench decisions of this Court , (holding that it is
the Government of the State within which the offender is
sentenced which is the appropriate Government which can
consider an application seeking remission of a sentence ) is
per incuriam and is not a binding precedent . Hence, the
impugned orders of remission dated 10.08.2022 are
quashed on the above grounds .
e) Without prejudice to the aforesaid conclusions, we further hold
that the impugned orders of remission dated 10.08.2022
passed by the respondent -State of Gujarat in favour of
respondent Nos.3 to 13 are not in accordance with law for the
following reasons:
i) That the Government of the State of Gujarat
had usurped the powers of the State of
Maharashtra which only could have considered
the applications seeking remission. Hence, the
doctrine of usurpation of powers applies in the
instant case.
ii) Consequently, the Policy dated 09.07.1992 of
the State of Gujarat was not applicable to the
case of respondent Nos.3 to 13 herein.
iii) That opinion of the Presiding Judge of the Court
before which the conviction of respondent Nos.3
to 13 was made in the instant case i.e. Special
Court, Mumbai (Maharashtra) was rendered
ineffective by the Government of the State of
Gujarat which in any case had no jurisdiction
to entertain the plea for remission of
respondent Nos.3 to 13 herein. T he opinion of
the Sessions Judge at Dahod was wholly
without jurisdiction as the same was in breach
of sub -section (2) of the Section 432 of the
iv) That while considering the application s seeking
remission, the Jail Advisory Committee , Dahod
and the other authorities had lost sight of the
fact that respondent Nos.3 to 13 herein had not
yet paid the fine ordered by the Special Court,
Mumbai which had been confirmed by the
Bombay High Court. Ignoring this relevant
consideration also vitiated exercise of discretion
in the instant case.
56.1. Having declared and held as such, we now move to point No.5 .
Point No.5 : What Order?
57. Respondent Nos.4 to 13, who had made application s to the
first respondent -State of Gujarat seeking remission of their
sentences, have been granted remission by the impugned orders
dated 10.08.2022 , while it is not known whether respondent No.3
had made any application to seek remission to the State of Gujarat
as the same is not adverted to in the counter affidavit . The
application seeking remission by respondent No.3 before the State
of Gujarat has not been brought on record as he had filed his
application before the State of Maharashtra. Respondent Nos. 3 to13
have been released pursuant to the orders of remission dated
10.08.2022 and set at liberty. We have now quashed the orders of
remission. Since 10.08.2022, respondent Nos.3 to 13 have been the
beneficiaries of the orders passed by an incompetent authority
inasmuch as the impugned orders are not passed by the
appropriate Government within the meaning of Section 432 of the
CrPC . So long as the said order s impugned were not set -aside, they
had carried the stamp of validity and hence till date the impugned
orders of remission were deemed to have been valid. Respondent
Nos.3 to 13 are out of jail. Since we have quash ed the orders of
remission, what follows ?
58. In our view, the most important constitutional value is
personal liberty which is a fundamental right enshrined in Article
21 of our Constitution . It is in fact an inalienable right of man and
which can be deprived of or taken away only in accordance with
law. That is the quintessence of Article 21 . But, this is a case where
respondent Nos.3 to 13 have been granted liberty and have been
released from imprisonment by virtue of the impugned orders of
remission dated 10.08.2022 which we have declared and quashed
as wholly without jurisdiction and non est . Having quashed the
order s of remission made in favour of respondent Nos.3 to 13,
should they be sent back to prison ? Whether respondent No.3 to 13
must have the benefit of their liberty despite obtaining the same
from an incompetent authority with the aid of an order of this Court
obtained fraudulently and therefore, the same being illegal and
carry a stamp of being a nullity and non est in the eye of law ? This
has been a delicate question for consideration before us.
59. Learned counsel for the petitioner in Writ Petition (Crl.)
No.491 of 2022 has vehemently contended that there being failure
of rule of law in the instant case , justice would be done by this Court
only when respondent Nos.3 to 13 are returned to the prison . They
can be granted remission only in accordance with law . On the other
hand, respective learned senior counsel and counsel for the
respondents Nos.3 to 13 who have appeared have pleaded that they
have been enjoying liberty since 10.08.2022 and i n spite of there
being an y error in the orders of remission, although the orders of
remission may be quashed , by exercising jurisdiction under Article
142 of the Constitution , these respondents may not be subjected to
imprisonment once again and they may remain out of jail as free
persons . In other words, their liberty may be protected .
60. We have given our anxious thought to the aforesaid divergent
contentions. The primary question that now arises for our
consideration is this: when is liberty of a person protected? Article
21 of the Constitution states that no person shall be deprived of his
liberty except in accordance with law. Conversely, w e think that a
person is entitled to protection of his liberty only in accordance with
law. When a person’s liberty cannot be violated in breach of a law,
can a person’s liberty be protected even in the face of a breach or
violation of law? In other words, s hould rule of law prevail over
personal liberty of a person or vice-versa ? Further , should this
Court weigh in favour of a person’s freedom and liberty even when
it has been established that the same was granted in violation of
law? Should the scales of justice tilt against rule of law ? In
upholding rule of law are we depriving respondent Nos.3 to 13 their
right to freedom and liberty? We wish to make it clear that only
when rule of law prevails will liberty and all other fundamental
rights would prevail under our Constitution including the right to
equality and equal protection of law as enshrined in Article 14
thereof. In other words, whether liberty of a person would have any
meaning at all under our Constitution in the absence of rule of law
or the same being ignored or turned a blind eye ? Can rule of law
surrender to liberty earned as a consequence of its breach ? Can
breach of rule of law be ignored in order to protect a person’s liberty
that he is not entitled to?
61. Before we proceed further, we wish to reiterate what this
Court has spoken on the concept of rule of law through its various
judgments .
62. Rule of law means wherever and whenever the State fails to
perform its duties, the Court would step in to ensure that the rule
of law prevails over the abuse of the process of law. Such abuse may
result from, inter alia , inaction or even arbitrary action of protecting
the true offenders or failure by different authorities in discharging
statutory or other obligations in consonance with the procedural
and penal statutes. Breach of the rule of law, amounts to negation
of equality under Article 14 of the Constitution.
63. More importantly, rule of law means, no one, howsoever high
or low, is above the law; it is the basic rule of governance and
democratic polity. It is only through the courts that rule of law
unfolds its contours and establishes its concept. The concept of rule
of law is closely intertwined with adjudication by courts of law and
also with the consequences of decisions taken by courts. Therefore,
the judiciary has to carry out its obligations effectively and true to
the spirit with which it is sacredly e ntrusted the task and always in
favour of rule of law. There can be no rule of law if there is no
equality before the law; and rule of law and equality before the law
would be empty words if their violation is not a matter of judicial
scrutiny or judicial review and relief and all these features would
lose their significance if the courts don’t step in to enforce the rule
of law. Thus, the judiciary is the guardian of t he rule of law and the
central pillar of a democratic State. Therefore, the judiciary has to
perform its duties and function effectively and remain true to the
spirit with which they are sacredly entrusted to it.
In our view, this Court must be a beacon in upholding rule of
law failing which it would give rise to an impression that this Court
is not serious about rule of law and, therefore, all Courts in the
country could apply it selectively and thereby lead to a situation
where the judiciary is unmindful of rule of law. This would result in
a dangerous state of affairs in our democracy and democratic polity.
64. Further, in a democracy where rule of law is its essence, it has
to be preserved and enforced particularly by courts of law.
Compassion and sympathy have no role to play where rule of law is
required to be enforced. If the rule of law has to be preserved as the
essence of democracy, it is the duty of th e courts to enforce the
same without fear or favour, affection or ill -will.
65. The manner of functioning of the court in accord with the rule
of law has to be dispassionate, objective and analytical. Thus,
everyone within the framework of the rule of law must accept the
system, render due obedience to orders made and in the event of
failure of compliance, the rod of justice must descend down to
punish. It is mainly through the power of judicial review conferred
on an independent institutional authority such as the High Court
or the Supreme Court that the rule of law is maintained and every
organ of the State is kept within the limits of the law. Thus, those
concerned with the rule of law must remain unmindful and
unruffled by the ripples caused by it. Rule of law does not mean
protection to a fortunate few. The very existence of the rule of law
and the fear of being brought to book operates as a deterrent to
those who have no scruples in killing others if it suits their ends. In
the words of Krishna Iyer, J., “the finest hour of the rule of law is
when law disciplines life and match es promise with performance”.
In ADM, Jabalpur vs. Shivakant Shukla , H.R. Khanna, J. in his
dissenting judgment said, “rule of law is the antithesis of
arbitrariness”.
66. In this context, it would also be useful to refer to the notion of
justice in the present case. It is said that justice should remain loyal
to the rule of law. In our view, justice cannot be done without
adherence to rule of law. This Court has observed “the concept of
“justice” encompasses not just the rights of the convict, but also of
the victims of crime as well as of the law abiding section of society
who look towards the courts as vital instruments f or preservation
of peace and the curtailment or containment of crime by punishing
those who transgress the law. If the convicts can circumvent the
consequences of their conviction, peace, tranquility and harmony
in society will be reduced to chimera.” (vide Surya Baksh Singh
vs. State of UP, (2014) 14 SCC 222 )
67. This Court has further observed that the principle of justice
is an inbuilt requirement of the justice delivery system and
indulgence and laxity on the part of the law courts would be an
unauthorized exercise of jurisdiction and thereby, put a premium
on illegal acts. Courts have to be mindful of not only the spelling of
the word “justice” but also the content of the concept. Courts have
to dispense justice and not justice being dispensed with. In fact, the
strength and authority of courts in India are because they are
involved in dispensing justice. It should be their life aim.
68. The faith of the people in the efficacy of law is the saviour and
succour for the sustenance of the rule of law. Justice is supreme
and justice ought to be beneficial for the society. Law courts exist
for the society and ought to rise to the occasion to do the needful in
the matter. Respect for law is one of the cardinal principles for an
effective operation of the Constitution, law and the popular
Government. The faith of the people is the source to in vigorate
justice intertwined with the efficacy of law. Therefore, it is the
primary duty and the highest responsibility of this Court to correct
arbitrary orders at the earliest and maintain the confidence of the
litigant public in the purity of the founta in of justice and thereby
respect rule of law.
69. In the same vein, we say that Article 142 of the Constitution
cannot be invoked by us in favour of respondent Nos.3 to 13 to allow
them to remain out of jail as that would be an instance of this
Court’s imprimatur to ignore rule of law and instead aid persons
who are beneficiaries of order s which in our view, are null and void
and therefore non est in the eye of law. Further, we cannot be
unmindful of the conduct of respondent Nos.3 to 13, particularly
respondent No.3 who has abused the process of law and t he court
in obtaining remission. In such a situation , arguments with an
emotional appeal though may sound attractive become hollow and
without substance when placed in juxtaposition with our reasoning
on the facts and circumstances of this case. Therefore, in complying
with the principles of rule of law which encompasses the principle
of equal protection of law as enshrined in Article 14 of the
Constitution , we hold that ‘deprivation of liberty’ vis-à-vis
respondent Nos.3 to 13 herein is justified in as much as the said
respondents have erroneously and contrary to law been set at
liberty. One cannot lose sight of the fact that the said respondents
were all in prison for a little over fourteen years (with liberal paroles
and furloughs gr anted to them from time to time). They had lost
their right to liberty once they were convicted and were imprisoned.
But, they were released pursuant to the impugned remission orders
which have been quashed by us. Consequently, the status quo ante
must be restored . We say so for another reason in the event
respondent Nos.3 to 13 are inclined to seek remission in accordance
with law , they have to be in prison as they cannot seek remission
when on bail or outside the jail. Therefore, for these reasons we hold
that the plea of ‘protection of the liberty’ of respondent Nos.3 to 13
cannot be accepted by us.
70. We wish to emphasize that in the instant case rule of law must
prevail. If ultimately rule of law is to prevail and the impugned
orders of remission are set -aside by us, then the natural
consequence s must follow. Therefore, respondent Nos.3 to 13 are
directed to report to the concerned jail authorities within two weeks
from today.
Conclusion:
71. Consequently, we pass the following orders:
a. Writ Petition (Crl.) No.491 of 2022 is allowed in the
aforesaid terms.
b. Other Writ Petition s stand disposed of.
c. Pending applications, if any, stand disposed of.
72. Before parting, we place on record our appreciation of all
learned senior counsel, learned ASG and learned counsel appearing
for the respective parties for their effective assistance in the matter.
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The Supreme Court on Monday quashed the Gujarat government's decision to allow premature release of convicts in the Bilkis Bano gangrape case [Bilkis Yakub Rasool v. Union of India and ors].[Bilkis Yakub Rasool v. Union of India and ors].
A bench of Justices BV Nagarathna and Ujjal Bhuyan held that the eleven convicts who were set free by the State, have to report back to the jail authorities within two weeks.
The convicts are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radheshyam Bhagwandas Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Court said that the Gujarat government was not empowered to pass the remission order since appropriate government entitled to pass orders of remission was the government of the State where the trial had taken place which in this case was Maharashtra and not Gujarat.
"On competence of Gujarat government to pass remission orders, it is apparent that appropriate government had to take permission of the court before passing remission orders. This means that place of occurrence or place of imprisonment of convicts are not relevant for remission. The definition of appropriate government is otherwise. The intention of the government is that the State under whom the convict was tried and sentenced was the appropriate government. This places emphasis on the place of trial and rather than where the crime took place," the Court said.
It is not the government of the State within whose territory the offence has occurred which can pass the remission and thus, the order of remission has to be quashed, the bench held.
The Court in its judgment also strongly came down upon one of the convicts, Radhyesham, for playing fraud upon the Court by suppressing material facts and getting a favourable order from the top court in May 2022 which eventually led to the release of all the eleven convicts.
The Court said that the May 2022 judgment was obtained by fraud and therefore, not good in law.
The Court also came down upon the Gujarat government for not filing a review plea against the May 2022 judgment and instead being complicit and acting in tandem with the convicts and usurping the Maharashtra government's jurisdiction to grant remission to convicts.
"It was the State of Maharashtra who could have only passed the remission orders respondent no 3 surreptitiously filed the plea before the Supreme Court. Taking advantage of May 13, 2022 order of this Court, other convicts also filed remission applications and the Gujarat government passed remission orders...Gujarat was complicit and acted in tandem with respondent no. 3 in this case. This Court was misled by suppressing facts. Use of power by Gujarat was only an usurpation of power by the State," the apex court ruled.
On the conundrum of sending the convicts back to the jail, the Court held that rule of law has to prevail over the liberty of the convicts.
"Rule of law does not mean protection to a fortunate few. In ADM Jabalpur, Justice Khanna had said rule of law is the antithesis to arbitrariness. We hold justice cannot be done without adherence to the rule of law," the Court opined.
If that is not the case then such orders of the court would be reduced to chimera. Courts have to dispense justice and not allow justice to be dispensed with, the bench underlined.
"We hold that deprivation of liberty to the respondents is justified. They have lost their right to liberty once they were convicted and imprisoned. if they want to seek remission in accordance with law then they have to be in jail. Rule law must prevail. Thus, all respondents are directed to report to jail authorities within two weeks," the bench ordered.
The judgment came in a batch of petitions challenging the remission granted to the convicts in the case.
The case concerns the early release of 11 convicts who had gang raped Bano and murdered her family members during the riots.
The convicts who were set free by the State are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Gujarat government had granted a remission of their sentence following a May 2022 judgment in which the top court held that an application of remission should be considered in line with the policy of the State where the crime was committed and not where the trial was held.
Pursuant to that judgment, the Gujarat government had applied its remission policy to release the convicts though the trial in the case had taken place in Maharashtra.
But the top court in its verdict today noted that the May 2022 judgment came in an Article 32 petition filed by one of the convicts (respondent no. 3) after his petition was dismissed by the Gujarat High Court which said that the Maharashtra government will have to consider the plea for remission.
He then filed a remission application in Maharashtra and presiding judge of trial and DGP Maharashtra had given their opinion on it.
Meanwhile, he moved the Supreme Court suppressing these facts and the Supreme Court passed a judgment in his favour opining that the Gujarat government was the appropriate government
"If respondent 3 was aggrieved by Gujarat High Court order of 2019 he could file an appeal here. But he did not do so. He moved Maharashtra for remission. When the opinion on remission there was negative, he moved the Supreme Court. Thus, he played fraud on this court. High Court order could not be set aside in an Article 32 plea," the Court underscored.
Since the May 2022 judgment was obtained by playing fraud upon the Court, it was held to be non est in law.
Gujarat Additional Chief Secretary (Home) Raj Kumar had reportedly said that the convicts were released due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.
The Gujarat government's decision was challenged by various petitioners including Bano before the top court.
Follow our coverage of the case here.
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Email: ishso@nic.in
Email: secylaw-dla@nic.in
Email: cs@karnataka.gov.in
This judgment, we desire to begin with what Sara
Slininger from Centralia, Illinois concluded her we ll
“The hijab’s history…is a complex one, influenced
by the intersection of religion and culture over ti me. While
some women no doubt veil themselves because of
pressure put on them by society, others do so by ch oice
for many reasons. The veil appears on the surface t o be a
simple thing. That simplicity is deceiving, as the hijab
represents the beliefs and practices of those who w ear it
or choose not to, and the understandings and
misunderstandings of those who observe it being wor n.
Its complexity lies behind the veil.”
Three of these cases namely W.P.No.2347/2022,
W.P.No.2146/2022 & W.P.No.2880/2022, were referred by
one of us (Krishna S Dixit J.) vide order dated 09. 02.2022 to
consider if a larger Bench could be constituted to hear them.
The Reference Order inter alia observed:
“All these matters essentially relate to proscriptio n
of hijab (headscarf) while prescribing the uniform for
students who profess Islamic faith…The recent
Government Order dated 05.02.2022 which arguably
facilitates enforcement of this rule is also put in challenge.
Whether wearing of hijab is a part of essential rel igious
practice in Islam, is the jugular vein of all these
matters...The said question along with other needs to be
answered in the light of constitutional guarantees
availing to the religious minorities. This Court af ter
hearing the matter for some time is of a considered
opinion that regard being had to enormous public
importance of the questions involved, the batch of these
cases may be heard by a Larger Bench, if Hon’ble th e
Chief Justice so decides in discretion…In the above
circumstances, the Registry is directed to place th e
papers immediately at the hands of Hon’ble the Chie f
Justice for consideration... ”
Accordingly, this Special Bench came to be constitu ted
the very same day vide Notification dated 09.02.202 2 to hear
these petitions, to which other companion cases too joined.
(i) In Writ Petition No. 2347/2022, filed by a
petitioner – girl student on 31.01.2022, the 1 st , 3 rd & 4th
respondents happen to be the State Government & its
officials, and the 2nd respondent happens to be the
Government Pre–University College for Girls, Udupi. The
prayer is for a direction to the respondents to per mit the
petitioner to wear hijab (head – scarf) in the class room, since
wearing it is a part of ‘essential religious practice’ of Islam.
(ii) In Writ Petition No. 2146/2022 filed by a
petitioner–girl student on 29.01.2022, the 1st , 3 rd & 4 th
respondents happen to be the State Government & its officials
and the 2nd respondent happens to be the Government Pre –
University College for Girls, Udupi. The prayer col umn has the
following script:
“1. Issue the WRIT OF MANDAMUS and order to
respondent no 1 and 2 to initiate enquiry against
the Respondent 5 college and Respondent no 6 i.e.
Principal for violating instruction enumerated unde r
Chapter 6 heading of “Important information” of
Guidelines of PU Department for academic year of
2021-22 same at ANNEXURE J for maintaining
uniform in the PU college.,
no 3 conduct enquiry against the Respondent no 6
to 14 for their Hostile approach towards the
petitioners students.,
Respondent no 15 and 16 under which authority
and law they interfering in the administration of
Respondent no 5 school and promoting their
political agenda. And,
4. DECLARE that the status quo referred in the
letter dated 25/01/2022 at ANNEXURE H is with
the consonance to the Department guidelines for the
academic year 2021-22 same at ANNEXURE J …”
(iii) In Writ Petition Nos.2880/2022, 3038/2022 &
4309/2022, petitioner – girl students seek to lay a challenge
to the Government Order dated 05.02.2022. This orde r
purportedly issued under section 133 read with sect ions 7(2)
& (5) of the Karnataka Education Act, 1983 (hereaft er ‘1983
Act’) provides that, the students should compulsori ly adhere
to the dress code/uniform as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre–University colleges that come within the
jurisdiction of the Department of the Pre–
University Education, as prescribed by the
College Development Committee or College
Supervision Committee; and
d. wherever no dress code is prescribed, such
attire that would accord with ‘ equality &
integrity ’ and would not disrupt the ‘ public
order ’.
(iv) In Writ Petition No.3424/2022 (GM-RES-PIL),
filed on 14.02.2022 (when hearing of other cases wa s
half way through), petitioner – Dr.Vinod Kulkarni
happens to be a consulting neuro – psychiatrist,
advocate & social activist. The 1 st and 2 nd respondents
happen to be the Central Government and the 3 rd
respondent happens to be the State Government. The
first prayer is for a direction to the respondents “ to
declare that all the students of various schools an d
colleges in Karnataka and in the country shall atte nd
their institutions by sporting the stipulated unifo rm” (sic ).
Second prayer reads “ To permit Female Muslim students
to sport Hijab provided they wear the stipulated sc hool
uniform also” (sic).
(v) In Writ Petition No.4338/2022 (GM-RES-
PIL), filed on 25.02.2022 (when hearing of other ca ses
was half way through), one Mr. Ghanasham Upadhyay
is the petitioner. The 1 st respondent is the Central
Government, 2 nd & 3 rd respondents happen to be the
State Government & its Principal Secretary, Departm ent
of Primary & Secondary Education; the 4 th & 5 th
respondents happen to be the Central Bureau of
Investigation and National Investigation Agency. Th e gist
of the lengthy and inarticulate prayers are that th e
Central Bureau of Investigation/National Investigat ion
Agency or such other investigating agency should ma ke
a thorough investigation in the nationwide agitatio n
after the issuance of the Government Order dated
05.02.2022 to ascertain the involvement of radical
organizations such as Popular Front of India, Stude nts
Islamic Organization of India, Campus Front of Indi a
and Jamaat -e-Islami ; to hold and declare that wearing of
hijab , burqa or such “ other costumes by male or female
Muslims and that sporting beard is not an integral part
of essential religious practice of Islam” and therefore,
prescription of dress code is permissible. There ar e other
incoherent and inapplicable prayers that do not mer it
mentioning here.
(vi) The State and its officials are represented by
the learned Advocate General. The respondent–Colleg es
and other respondents are represented by their
respective advocates. The State has filed the State ment
of Objections (this is adopted in all other matters ) on
10.02.2022; other respondents have filed their
Statements of Objections, as well. Some petitioners have
filed their Rejoinder to the Statement of Objection s. The
respondents resist the Writ Petitions making submis sion
in justification of the impugned order.
(i) Petitioner – students profess and practice Isla mic
faith. Wearing of hijab (head – scarf) is an ‘essential religious
practice’ in Islam, the same being a Quranic injunction vide
OF INDIA 2. Neither the State Government nor the Schools can
prescribe a dress code/uniform that does not permit the
students to wear hijab . The action of the respondent – schools
in insisting upon the removal of hijab in the educational
institutions is impermissible, as being violative o f the
fundamental right guaranteed under Article 25 of th e
1 (2016) SCC OnLine Ker 41117
2 (2006) SCC OnLine Mad 794
(ii) The impugned Government Order dated
05.02.2022 is structured with a wrong narrative tha t wearing
of hijab is not a part of ‘ essential religious practice’ of Islam
and therefore, prescribing or authorizing the presc ription of
dress code/uniform to the students consistent with the said
narrative, is violative of their fundamental right to freedom of
conscience and the right to practice their religiou s faith
constitutionally guaranteed under Article 25 vide BIJOE
(iii) One’s personal appearance or choice of dressi ng is
a protected zone within the ‘freedom of expression’ vide
INDIA 6; What one wears and how one dresses is a matter of
individual choice protected under ‘ privacy jurisprudence’ vide
Order and the action of the schools to the extent t hat they do
not permit the students to wear hijab in the institutions are
repugnant to these fundamental rights constitutiona lly
availing under Articles 19(1)(a) & 21.
(iv) The action of the State and the schools suffer s
from the violation of ‘doctrine of proportionality’ inasmuch as
in taking the extreme step of banning the hijab within the
campus, the possible alternatives that pass the ‘least
restrictive test’ have not been explored vide MODERN DENTAL
(v) The impugned Government Order suffers from
‘manifest arbitrariness’ in terms of SHAYARA BANO VS.
UNION OF INDIA 10 . The impugned Government Order suffers
from a gross non-application of mind and a misdirec tion in
law since it is founded on a wrong legal premise th at the Apex
Courts in Writ Petition(C) No. 35293/2018, FATHIMA
12 AIR 2003 Bom 75
SCHOOL 13 have held that the wearing of hijab is not a part of
essential religious practice of Islam when contrary is their
demonstrable ratio.
(vi) The impugned Government Order is the result of
acting under dictation and therefore, is vitiated o n this
ground of Administrative Law, going by the admissio n of
learned Advocate General that the draftsmen of this order has
gone too far and the draftsman exceeded the brief v ide
MANOHAR LAL vs. UGRASEN 15 . Even otherwise, the grounds
on which the said government order is structured be ing
unsustainable, it has to go and that supportive gro unds
cannot be supplied de hors the order vide MOHINDER SINGH
(vii) The Government is yet to take a final decisio n with
regard to prescription of uniform in the Pre-Univer sity
Colleges and a High Level Committee has to be const ituted for
that purpose. The Kendriya Vidyalayas under the control of
the Central Government too permit the wearing of hijab (head-
scarf). There is no reason why similar practise sho uld not be
permitted in other institutions.
(viii) The Karnataka Education Act, 1983 or the Rul es
promulgated thereunder do not authorize prescriptio n of any
dress code/uniform at all. Prescribing dress code i n a school
is a matter of ‘ police power’ which does not avail either to the
government or to the schools in the absence of stat utory
enablement. Rule 11 of Karnataka Educational Instit utions
(Classification, Regulation and Prescription of Cur ricula, etc)
Rules, 1995 (hereafter ‘1995 Curricula Rules’) to t he extent it
provides for prescription of uniform is incompetent and
therefore, nothing can be tapped from it.
(ix) The College Betterment (Development) Committee
constituted under Government Circular dated 31.1.20 14 is
only an extra-legal authority and therefore, its pr escription of
dress code/uniform for the students is without juri sdiction.
The prospectus issued by the Education Department p rohibits
prescription of any uniform. The composition & comp lexion of
College Betterment (Development) Committee under the
Government Circular dated 31.1.2014 inter alia compromising
of local Member of Legislative Assembly as its Pres ident and
his nominee as the Vice – President would unjustifi ably
politicize the educational environment and thereby, pollute
the tender minds. The Pre-University institutions a re expected
to be independent and safe spaces.
(x) The College Betterment (Development) Committee
which inter alia comprises of the local Member of Legislative
Assembly vide the Government Circular dated 31.1.20 14,
apart from being unauthorized, is violative of ‘doctrine of
separation of powers’ which is a basic feature of our
also infringes upon of the principle of accountabil ity vide
power to prescribe school uniforms.
(xi) The ground of ‘ public order ’ (sārvajanika
suvyavasthe ) on which the impugned Government Order is
founded is un-understandable; this expression is co nstrued
with reference to ‘ public disorder’ and therefore, the State
If wearing of hijab disrupts the public order, the State should
take action against those responsible for such disr uption and
not ban the wearing of hijab . Such a duty is cast on the State
in view of a positive duty vide GULAM ABBAS vs. STATE OF
OF WEST BENGAL 23 . In addition such a right cannot be
curtailed based on the actions of the disrupters, i .e., the
‘hecklers don’t get the veto’ vide TERMINIELLO vs. CHICAGO 24 ,
view is affirmed by the Apex Court in UNION OF INDIA vs.
K.M.SHANKARAPPA 27 . This duty is made more onerous
because of positive secularism contemplated by the
(xii) Proscribing hijab in the educational institutions
apart from offending women’s autonomy is violative of Article
14 inasmuch as the same amounts to ‘gender–based’
discrimination which Article 15 does not permit. It also
violates right to education since entry of students with hijab
to the institution is interdicted. The government a nd the
schools should promote plurality, not uniformity or
homogeneity but heterogeneity in all aspects of liv es as
opposed to conformity and homogeneity consistent wi th the
constitutional spirit of diversity and inclusivenes s vide
(xiii) The action of the State and the school autho rities is
in derogation of International Conventions that pro vide for
protective discrimination of women’s rights vide UNIVERSAL
RIGHTS OF CHILD (1989) . To provide for a holistic and
comparative view of the ‘principle of reasonable
accommodation’ as facets of ‘ substantive–equality’ under
petitioners referred to the following decisions of foreign
jurisdictions in addition to native ones: MEC FOR
(xiv) In W.P.No.2146/2022, the school teachers have
been acting in derogation of the Brochure of the Ed ucation
33 (2021) SCC OnLine SC 261
37 (2006) SCC OnLine Can SC 6
39 (2016) SCC OnLine Kenya 3023
Department which prohibits prescribing any kind of uniform
inasmuch as they are forcing the students to remove hijab
and therefore, disciplinary action should be taken against
them. The respondents – 15 & 16 have no legal autho rity to
be on the College Betterment (Development) Committee and
therefore, they are liable to be removed by issuing a Writ of
Quo Warranto .
Respondents i.e., State, institutions and teachers per
contra contend that:
(i) The fact matrix emerging from the petition
averments lacks the material particulars as to the wearing of
hijab being in practice at any point of time; no evident iary
material worth mentioning is loaded to the record o f the case,
even in respect of the scanty averments in the peti tion. Since
how long, the students have been wearing hijab invariably has
not been pleaded. At no point of time these student s did wear
any head scarf not only in the class room but also in the
institution. Even otherwise, whatever rights petit ioners claim
under Article 25 of the Constitution, are not absol ute. They
are susceptible to reasonable restriction and regul ation by
law. In any circumstance, the wearing hijab arguably as
being part of ‘essential religious practice’ in Islam cannot be
claimed by the students as a matter of right in all -girl-
institutions like the respondent PU College, Udupi.
(ii) Wearing hijab or head scarf is not a part of
‘essential religious practice’ of Islamic faith; the Holy Quran
does not contain any such injunctions; the Apex Co urt has
laid down the principles for determining what is an ‘essential
LAWYERS ASSOCIATION . Wearing hijab at the most may be a
46 2006 SCC OnLine Mad 794
‘cultural’ practice which has nothing to do with re ligion.
Culture and religion are different from each other.
(iii) The educational institutions of the kind bei ng
‘qualified public places ’, the students have to adhere to the
campus discipline and dress code as lawfully prescr ibed since
years i.e., as early as 2004. The parents have in t he
admission forms of their wards (minor students) hav e
signified their consent to such adherence. All the students
had been accordingly adhering to the same all throu gh. It is
only in the recent past; quite a few students have raked up
this issue after being brainwashed by some fundamen talist
Muslim organizations like Popular Front of India, C ampus
Front of India, Jamaat -e-Islami , and Students Islamic
Organization of India. An FIR is also registered. P olice papers
are furnished to the court in a sealed cover since investigation
is half way through. Otherwise, the students and pa rents of
the Muslim community do not have any issue at all.
Therefore, they cannot now turn around and contend or act to
the contrary.
(iv) The power to prescribe school uniform is inher ent
in the concept of school education itself. There is sufficient
indication of the same in the 1983 Act and the 1995 Curricula
Rules. It is wrong to argue that prescription of un iform is a
‘police power ’ and that unless the Statute gives the same;
there cannot be any prescription of dress code for the
students. The so called ‘ prospectus ’ allegedly issued by the
Education Department prohibiting prescription of
uniform/dress code in the schools does not have any
authenticity nor legal efficacy.
(v) The Government Order dated 05.02.2022 is
compliant with the scheme of the 1983 Act, which pr ovides
for ‘ cultivating a scientific and secular outlook throug h
education’ and this G.O. has been issued under Section 133
read with Sections 7(1)(i), 7(2)(g)(v) of the Act a nd Rule 11 of
the 1995 Curricula Rules; this order only authorize s the
prescription of dress code by the institutions on t heir own and
it as such, does not prescribe any. These Sections and the
Rule intend to give effect to constitutional secula rism and to
the ideals that animate Articles 39(f) & 51(A). The children
have to develop in a healthy manner and in conditio ns of
‘freedom and dignity’ ; the school has to promote the spirit of
harmony and common brotherhood transcending religious,
linguistic, regional or sectional diversities . The practices that
are derogatory to the dignity of women have to be r enounced.
All this would help nation building. This view is r eflected in
the decision of Apex Court in MOHD. AHMED KHAN vs. SHAH
(vi) The Government Order dated 5.02.2022 came to be
issued in the backdrop of social unrest and agitati ons within
the educational institutions and without engineered by
Popular Front of India, Students Islamic Organizati on of
India, Campus Front of India & Jamaat -e-Islami. The action of
the institutions in insisting adherence to uniforms is in the
interest of maintaining ‘peace & tranquility’ . The term ‘ public
order ’ ( sārvajanika suvyavasthe ) employed in the Government
Order has contextual meaning that keeps away from t he same
expression employed in Article 19(2) of the Constit ution.
(vii) The ‘ College Betterment (Development) Committees’
have been established vide Government Circular date d
31.01.2014 consistent with the object of 1983 Act a nd 1995
Curricula Rules. For about eight years or so, it ha s been in
place with not even a little finger being raised by anyone nor
is there any complaint against the composition or f unctioning
of these Committees. This Circular is not put in ch allenge in
any of the Writ Petitions. These autonomous Committ ees have
been given power to prescribe uniforms/dress code v ide SIR
Constitution does not prohibit elected representati ves of the
people being made a part of such committees.
(viii) The right to wear hijab if claimed under Article
19(1)(a), the provisions of Article 25 are not invo cable
inasmuch as the simultaneous claims made under thes e two
provisions are not only mutually exclusive but denu ding of
each other. In addition, be it the freedom of consc ience, be it
the right to practise religion, be it the right to expression or be
it the right to privacy, all they are not absolute rights and
therefore, are susceptible to reasonable restrictio n or
regulation by law, of course subject to the riders prescribed
(ix) Permitting the petitioner – students to wear hijab
(head – scarf) would offend the tenets of human dig nity
48 2018 SCC OnLine Ker 5267
49 2012 SCC OnLine Mad 2607
inasmuch as, the practice robs away the individual choice of
Muslim women; the so called religious practice if c laimed as a
matter of right, the claimant has to prima facie satisfy its
constitutional morality vide K.S PUTTAWAMY supra , INDIAN
the judicial approach to the very idea of essential religious
practice in Islamic faith since the decision in SHAYARA
BANO , supra, which the case of the petitioners overlook s. To
be an essential religious practice that merits prot ection under
Article 25, it has to be shown to be essential to t he religion
concerned, in the sense that if the practice is ren ounced, the
religion in question ceases to be the religion.
(x) Children studying in schools are placed under the
care and supervision of the authorities and teacher s of the
institution; therefore, they have ‘ parental and quasi – parental’
authority over the school children. This apart, sch ools are
‘qualified public places ’ and therefore exclusion of religious
symbols is justified in light of 1995 Curricula Re gulation that
are premised on the objective of secular education, uniformity
ASSCOIATION 54 . What is prescribed in Kendriya Vidyalayas
as school uniform is not relevant for the State to decide on the
question of school uniform/dress code in other inst itutions.
This apart there is absolutely no violation of righ t to
education in any sense.
(xi) Petitioner-students in Writ Petition No.2146 /2022
are absolutely not justified in seeking a disciplin ary enquiry
against some teachers of the respondent college and removal
of some others from their position by issuing a Wri t of Quo
Warranto . As already mentioned above, the so called
prospectus/instructions allegedly issued by the Edu cation
Department prohibiting the dress code in the colleg es cannot
be the basis for the issuance of coercive direction for
refraining the enforcement of dress code. The authe nticity and
efficacy of the prospectus/instructions are not est ablished.
In support of their contention and to provide for a
holistic and comparative view, the respondents have referred
to the following decisions of foreign jurisdictions , in addition
IV. All these cases broadly involving common questions of
law & facts are heard together on day to day basis with
the concurrence of the Bar. There were a few Public
Interest Litigations espousing or opposing the caus es
involved in these cases. However, we decline to gra nt
indulgence in them by separate orders. Similarly, w e
decline to entertain applications for impleadment a nd
intervention in these cases, although we have adver ted
to the written submissions/supplements filed by the
respective applicants.
Having heard the learned counsel appearing for
the parties and having perused the papers on record , we
55 Application No. 44774/98
56 C-804/18 and C-341/19 dated 15 th July 2021
59 Application No. 26625/02
have broadly framed the following questions for
consideration:
1. Whether wearing hijab /head -scarf is a part of
‘essential religious practice’ in Islamic Faith protected
under Article 25 of the Constitution?
2. Whether p rescription of school uniform is not legally
permissible, as being violative of petitioners
Fundamental Rights inter alia guaranteed under
Articles, 19(1)(a), (i.e., freedom of expression ) and 21,
(i.e., privacy ) of the Constitution ?
3. Whether the Government Order dated 05.02.2022
apart from being incompetent is issued without
application of mind and further is manifestly arbit rary
and therefore, violates Articles 14 & 15 of the
Constitution?
4. Whether any case is made ou t in W.P.No.2146/2022
for issuance of a direction for initiating discipli nary
enquiry against respondent Nos.6 to 14 and for
issuance of a Writ of Quo Warranto against
respondent Nos.15 & 16?
Since both the sides in their submissions emphasize d on
Secularism and freedom of conscience & right to rel igion, we
need to concisely treat them in a structured way. S uch a need
is amplified even for adjudging the validity of the Government
Order dated 05.02.2022, which according to the Stat e gives
effect to and operationalizes constitutional Secula rism.
(i) ‘ India, that is Bharat’ (Article 1), since centuries, has
been the sanctuary for several religions, faiths & cultures that
have prosperously co-existed, regardless of the ebb & flow of
political regimes. Chief Justice S.R. Das in IN RE: KERALA
EDUCATION BILL 60 made the following observation lauding
the greatness of our heritage:
“… Throughout the ages endless inundations of men of
diverse creeds, cultures and races - Aryans and non -
Aryans, Dravidians and Chinese, Scythians, Huns,
Pathans and Mughals - have come to this ancient lan d
from distant regions and climes. India has welcomed
them all. They have met and gathered, given and tak en
and got mingled, merged and lost in one body. India 's
tradition has thus been epitomised in the following noble
lines:
"None shall be turned away From the shore of this v ast
sea of humanity that is India" (Poems by Rabindrana th
Tagore)…”
In S.R.BOMMAI , supra at paragraph 25, the Hon’ble Supreme
Court of India observed: “ India can rightly be described as the
world’s most heterogeneous society. It is a country with a rich
heritage. Several races have converged in this sub -
continent. They brought with them their own culture s,
languages, religions and customs. These diversities threw up
their own problems but the early leadership showed wisdom
and sagacity in tackling them by preaching the phil osophy of
accommodation and tolerance…”
(ii) The 42 nd Amendment (1976) introduced the word
‘secular’ to the Preamble when our Constitution already had
such an animating character ab inceptio . Whatever be the
variants of its meaning, secularism has been a Basic Feature
of our polity vide KESAVANANDA , supra even before this
Amendment. The ethos of Indian secularism may not be
approximated to the idea of separation between Church and
State as envisaged under American Constitution post Firs t
Amendment (1791). Our Constitution does not enact K arl
Marx’s structural-functionalist view ‘ Religion is the opium of
masses ’ (1844). H.M.SEERVAI, an acclaimed jurist of yeste r
decades in his magnum opus ‘Constitutional Law of India,
Fourth Edition, Tripathi at page 1259 , writes: ‘India is a
secular but not an anti-religious State, for our Co nstitution
guarantees the freedom of conscience and religion. Articles 27
and 28 emphasize the secular nature of the State…’ Indian
secularism oscillates between s ārva dharma samabhāava and
dharma nirapekshata. The Apex Court in INDIRA NEHRU
GANDHI vs. RAJ NARAIN 61 explained the basic feature of
secularism to mean that the State shall have no religion of its
own and all persons shall be equally entitled to th e freedom of
conscience and the right freely to profess, practic e and
propagate religion. Since ages, India is a secular country. For
India, there is no official religion, inasmuch as i t is not a
theocratic State. The State does not extend patrona ge to any
particular religion and thus, it maintains neutrali ty in the
sense that it does not discriminate anyone on the b asis of
religious identities per se . Ours being a ‘positive secularism’
vide PRAVEEN BHAI THOGADIA supra , is not antithesis of
religious devoutness but comprises in religious tol erance. It is
pertinent to mention here that Article 51A(e) of ou r
Constitution imposes a Fundamental Duty on every ci tizen ‘ to
promote harmony and the spirit of common brotherhoo d
amongst all the people of India transcending religi ous, linguistic
and regional or sectional diversities; to renounce practices
derogatory to the dignity of women ’. It is relevant to mention
here itself that this constitutional duty to transc end the
sectional diversities of religion finds its utteran ce in section
7(2)(v) & (vi) of the 1983 Act which empowers the S tate
61 (1975) Supp. SCC 1
Government to prescribe the curricula that would am ongst
other inculcate the sense of this duty.
(i) Whichever be the society, ‘ you can never separate
social life from religious life ’ said Alladi Krishnaswami Aiyar
during debates on Fundamental Rights in the Advisor y
Committee (April 1947). The judicial pronouncements in
America and Australia coupled with freedom of relig ion
guaranteed in the Constitutions of several other co untries
have substantially shaped the making of inter alia Articles 25
& 26 of our Constitution. Article 25(1) & (2) read as under:
“25. Freedom of conscience and free profession, pra ctice
and propagation of religion
(1) Subject to public order, morality and health an d to the
other provisions of this Part, all persons are equa lly
entitled to freedom of conscience and the right fre ely to
profess, practise and propagate religion
(2) Nothing in this article shall affect the operat ion of any
existing law or prevent the State from making any l aw -
(a) regulating or restricting any economic, financi al,
political or other secular activity which may be as sociated
with religious practice;
(b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public ch aracter
to all classes and sections of Hindus.
Explanation I - The wearing and carrying of kirpans shall
be deemed to be included in the profession of the S ikh
religion.
Explanation II - In sub clause (b) of clause refere nce to
Hindus shall be construed as including a reference to
persons professing the Sikh, Jaina or Buddhist reli gion,
and the reference to Hindu religious institutions s hall be
construed accordingly.”
This Article guarantees that every person in India shall have
the freedom of conscience and also the right to pro fess
practise and propagate religion. It is relevant to mention that
unlike Article 29, this article does not mention ‘culture’ as
such, which arguably may share a common border with
religion. We shall be touching the cultural aspect of hijab,
later . We do not propose to discuss about this as such. Th e
introduction of word ‘conscience’ was at the instan ce of Dr.
B.R.Ambedkar, who in his wisdom could visualize per sons
who do not profess any religion or faith, like Chāa rvāakas,
atheists & agnostics. Professor UPENDRA BAXI in ‘ THE
page 149 says :
“…Under assemblage of human rights, individual huma n
beings may choose atheism or agnosticism, or they m ay make
choices to belong to fundamental faith communities.
Conscientious practices of freedom of conscience en able exit
through conversion from traditions of religion acqu ired initially
by the accident of birth or by the revision of choi ce of faith,
which may thus never be made irrevocably once for a ll …”
BIJOE EMMANUEL, supra operationalized the freedom of
conscience intricately mixed with a great measure o f right to
religion. An acclaimed jurist DR. DURGA DAS BASU in his
‘Commentary on the Constitution of India ’, 8 th Edition at page
3459 writes: “ It is next to be noted that the expression ‘freedom
of conscience’ stands in juxtaposition to the words “right freely
to profess, practise and propagate religion”. If th ese two parts
of Art. 25(1) are read together, it would appear, b y the
expression ‘freedom of conscience’ reference is mad e to the
mental process of belief or non-belief, while profe ssion, practice
and propagation refer to external action in pursuan ce of the
mental idea or concept of the person.. .It is also to be noted that
the freedom of conscience or belief is, by its natu re, absolute, it
would become subject to State regulation, in India as in the
U.S.A. as soon as it is externalized i.e., when suc h belief is
reflected into action which must necessarily affect other
people ...”
(ii) There is no definition of religion or conscien ce in
our constitution. What the American Supreme Court i n DAVIS
V. BEASON 62 observed assumes relevance: “... the term religion
has reference to one’s views of his relation to his Creator and to
the obligation they impose of reverence for His Bei ng and
character and of obedience to His will. It is often confounded
with cultus of form or worship of a particular sect , but is
distinguishable from the latter”. WILL DURANT , a great
American historian (1885-1981) in his Magnum Opus ‘ THE
HERITAGE’ at pages 68 & 69 writes:
‘The priest did not create religion, he merely used it, as a
statesman uses the impulses and customs of mankind;
religion arises not out of sacerdotal invention or
chicanery, but out of the persistent wonder, fear,
insecurity, hopefulness and loneliness of men…” The
priest did harm by tolerating superstition and
monopolizing certain forms of knowledge…Religion
supports morality by two means chiefly: myth and ta bu.
Myth creates the supernatural creed through which
celestial sanctions may be given to forms of conduc t
socially (or sacerdotally) desirable; heavenly hope s and
terrors inspire the individual to put up with restr aints
placed upon him by his masters and his group. Man i s
not naturally obedient, gentle, or chaste; and next to that
ancient compulsion which finally generates conscien ce,
nothing so quietly and continuously conduces to the se
uncongenial virtues as the fear of the gods…’ .
Aiyar J. quoted the following observations of Leath em C.J in
“It would be difficult, if not impossible, to devis e a
definition of religion which would satisfy the
adherents of all the many and various religions
which exist, or have existed, in the world. There a re
those who regard religion as consisting principally
in a system of beliefs or statement of doctrine. So
viewed religion may be either true or false. Others
are more inclined to regard religion as prescribing a
code of conduct. So viewed a religion may be good
or bad. There are others who pay greater attention
to religion as involving some prescribed form of
ritual or religious observance. Many religious
conflicts have been concerned with matters of ritua l
and observance…”
In SHIRUR MUTT supra, ‘religion’ has been given the widest
possible meaning. The English word ‘religion’ has d ifferent
shades and colours. It does not fully convey the In dian
concept of religion i.e., ‘dharma’ which has a very wide
meaning, one being ‘moral values or ethics’ on whic h the life
is naturally regulated. The Apex Court referring to the
aforesaid foreign decision observed:
“…We do not think that the above definition can be
regarded as either precise or adequate. Articles 25 and
26 of our Constitution are based for the most part
upon article 44(2) of the Constitution of Eire and we have
great doubt whether a definition of "religion" as g iven
above could have been in the minds of our Constitut ion-
makers when they framed the Constitution. Religion is
certainly a matter of faith with individuals or com munities
and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do
not believe in God or in any Intelligent First Caus e. A
religion undoubtedly has its basis in a system of b eliefs
or doctrines which are regarded by those who profes s
that religion as conducive to their spiritual well being, but
it would not be correct to say that religion is not hing else
but a doctrine of belief. A religion may not only l ay down
a code of ethical rules for its followers to accept , it might
prescribe rituals and observances, ceremonies and m odes
of worship which are regarded as integral parts of
religion, and these forms and observances might ext end
even to matters of food and dress…”
(iii) It is relevant to quote what BERTRAND RUSSELL
wrote: ‘ Religion is a complex phenomenon, having both an
individual and a social aspect …t hroughout history, increase of
civilization has been correlated with decrease of r eligiosity.’
The free exercise of religion under Article 25 is s ubject to
restrictions imposed by the State on the grounds of public
order, morality and health. Further it is made subo rdinate to
other provisions of Part III. Article 25(2)(a) rese rves the power
of State to regulate or restrict any economic, fina ncial,
political and other secular activities which may be associated
with religious practice. Article 25(2)(b) empowers the State to
legislate for social welfare and reform even though by so
doing, it might interfere with religious practice.
H.M.SEERVAI 65 at paragraph 11.35, page 1274, states: “ It has
been rightly held by Justice Venkatarama Aiyar for a very
strong Constitution Bench that Article 25(2) which provides for
social and economic reform is, on a plain reading, not limited to
individual rights. So, by an express provision, the freedom of
religion does not exclude social and economic refor m although
the scope of social reform, would require to be def ined.” This
apart, Article 25(1) deals with rights of individua ls whereas
Article 25(2) is much wider in its content and has reference to
communities. This Article, it is significant to not e, begins with
the expression ‘ Subject to… ’. Limitations imposed on religious
practices on the ground of public order, morality a nd health
having already been saved by the opening words of A rticle
25(1), the saving would cover beliefs and practices even
though considered essential or vital by those profe ssing the
religion. The text & context of this Article juxta posed with
other unmistakably show that the freedom guaranteed by this
provision in terms of sanctity, are placed on compa ratively a
lower pedestal by the Makers of our Constitution qua other
Fundamental Rights conferred in Part III. This broa d view
65 Constitutional Law of India: A Critical Commentary , 4 th Edition
draws support from a catena of decisions of the Ape x Court
The First Amendment to the US Constitution confers
freedoms in absolute terms and the freedoms granted are the
rule and restrictions on those freedoms are the exc eptions
evolved by their courts. However, the Makers of our
Constitution in their wisdom markedly differed from this view.
Article 25 of our Constitution begins with the rest riction and
further incorporates a specific provision i.e., cla use (2) that in
so many words saves the power of State to regulate or restrict
these freedoms. Mr.Justice Douglas of the US Suprem e Court
about the absence of a corresponding provision in t heir
Constitution, saying “ If we had a provision in our Constitution
for ‘reasonable’ regulation of the press such as In dia has
included in hers, there would be room for argument that
censorship in the interest of morality would be per missible ”. In
a similar context, what Chief Justice Hidayatullah, observed
evoking:
“…The American Constitution stated the guarantee in
absolute terms without any qualification. The Judge s try
to give full effect to the guarantee by every argum ent they
can validly use. But the strongest proponent of the
freedom (Justice Douglas) himself recognised in the
Kingsley case that there must be a vital difference in
approach... In spite of the absence of such a provi sion
Judges in America have tried to read the words
'reasonable restrictions' into the First Amendment and
thus to make the rights it grants subject to reason able
regulation …”
Succinctly put, in the United States and Australia, the
freedom of religion was declared in absolute terms and courts
had to evolve exceptions to that freedom, whereas i n India,
Articles 25 & 26 of the Constitution appreciably em body the
limits of that freedom.
ASSOCIATION, supra at paragraphs 209 & 210 about the
scope and content of freedom of religion is illumin ating:
“…Yet, the right to the freedom of religion is not absolute.
For the Constitution has expressly made it subject to
public order, morality and health on one hand and t o the
other provisions of Part III, on the other. The sub jection of
the individual right to the freedom of religion to the other
provisions of the Part is a nuanced departure from the
position occupied by the other rights to freedom
recognized in Articles 14, 15, 19 and 21. While
guaranteeing equality and the equal protection of l aws
in Article 14 and its emanation, in Article 15, whi ch
prohibits discrimination on grounds of religion, ra ce,
caste, sex or place of birth, the Constitution does not
condition these basic norms of equality to the othe r
provisions of Part III. Similar is the case with th e
freedoms guaranteed by Article 19(1) or the right t o life
under Article 21. The subjection of the individual right to
the freedom of religion under Article 25(1) to the other
provisions of Part III was not a matter without
substantive content. Evidently, in the constitution al order
of priorities, the individual right to the freedom of religion
was not intended to prevail over but was subject to the
overriding constitutional postulates of equality, l iberty
and personal freedoms recognised in the other provi sions
of Part III.
Clause (2) of Article 25 protects laws which existe d at the
adoption of the Constitution and the power of the s tate to
enact laws in future, dealing with two categories. The
first of those categories consists of laws regulati ng or
restricting economic, financial, political or other secular
activities which may be associated with religious
practices. Thus, in sub-clause (a) of Article 25 (2 ), the
Constitution has segregated matters of religious p ractice
from secular activities, including those of an econ omic,
financial or political nature. The expression “othe r secular
activity” which follows upon the expression “econom ic,
financial, political” indicates that matters of a s ecular
nature may be regulated or restricted by law. The f act
that these secular activities are associated with o r, in
other words, carried out in conjunction with religi ous
practice, would not put them beyond the pale of
legislative regulation. The second category consist s of
laws providing for (i) social welfare and reform; o r (ii)
throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. Th e
expression “social welfare and reform” is not confi ned to
matters only of the Hindu religion. However, in mat ters of
temple entry, the Constitution recognised the disab ilities
which Hindu religion had imposed over the centuries
which restricted the rights of access to dalits and to
various groups within Hindu society. The effect of clause
(2) of Article 25 is to protect the ability of the state to
enact laws, and to save existing laws on matters
governed by sub-clauses (a) and (b). Clause (2) of Article
25 is clarificatory of the regulatory power of the state over
matters of public order, morality and health which
already stand recognised in clause (1). Clause 1 ma kes
the right conferred subject to public order, morali ty and
health. Clause 2 does not circumscribe the ambit of the
‘subject to public order, morality or health’ stipu lation in
clause 1. What clause 2 indicates is that the autho rity of
the state to enact laws on the categories is not
trammelled by Article 25…”
(i) Since the question of hijab being a part of essential
religious practice is the bone of contention, it be comes
necessary to briefly state as to what is an essential religious
practice in Indian context and how it is to be ascertained. This
doctrine can plausibly be traced to the Chief Archi tect of our
Constitution, Dr. B.R.Ambedkar and to his famous st atement
in the Constituent Assembly during debates on the
Codification of Hindu Law: “ the religious conception in this
country are so vast that they cover every aspect of life from
birth to death…there is nothing extraordinary in sa ying that we
ought to strive hereafter to limit the definition o f religion in such
a manner that we shall not extend it beyond beliefs and such
rituals as may be connected with ceremonials which are
essentially religious…” [Constituent Assembly Debat es VII:
supra, it has been observed at paragraph 9 as under:
“The protection guaranteed under Articles 25 and 26 of the
Constitution is not confined to matters of doctrine or belief
but extends to acts done in pursuance of religion a nd,
therefore, contains a guarantee for rituals, observ ances,
ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an inte gral or
essential part of religion has to be determined wit h reference
to its doctrines, practices, tenets, historical bac kground, etc.
of the given religion… What is meant by “an essenti al part or
practices of a religion” is now the matter for eluc idation.
Essential part of a religion means the core beliefs upon
which a religion is founded. Essential practice mea ns those
practices that are fundamental to follow a religiou s belief. It
is upon the cornerstone of essential parts or pract ices that
the superstructure of a religion is built, without which a
religion will be no religion. Test to determine whe ther a part
or practice is essential to a religion is to find o ut whether the
nature of the religion will be changed without that part or
practice. If the taking away of that part or practi ce could
result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an
essential or integral part. There cannot be additio ns or
subtractions to such part because it is the very es sence of
that religion and alterations will change its funda mental
character. It is such permanent essential parts whi ch are
protected by the Constitution. Nobody can say that an
essential part or practice of one's religion has ch anged from
a particular date or by an event. Such alterable pa rts or
practices are definitely not the “core” of religion whereupon
the belief is based and religion is founded upon. T hey could
only be treated as mere embellishments to the non-e ssential
(sic essential) part or practices.”
the development of law relating to essential religi ous practice
and the extent of its constitutional patronage cons istent with
the long standing view. Ordinarily, a religious pra ctice in
order to be called an ‘ essential religious practice ’ should have
the following indicia: (i) Not every activity associated with the
religion is essential to such religion. Practice sh ould be
fundamental to religion and it should be from the t ime
immemorial. (ii) Foundation of the practice must pr ecede the
religion itself or should be co-founded at the orig in of the
religion. (iii) Such practice must form the corners tone of religion
itself. If that practice is not observed or followe d, it would result
in the change of religion itself and, (iv) Such pra ctice must be
binding nature of the religion itself and it must b e compelling .
That a practice claimed to be essential to the reli gion has
been carried on since time immemorial or is grounde d in
religious texts per se does not lend to it the constitutional
protection unless it passes the test of essentialit y as is
adjudged by the Courts in their role as the guardia ns of the
Constitution.
(i) March of law regarding essential religious prac tice: Law
is an organic social institution and not just a bla ck letter
section. In order to be ‘ living law of the people’ , it marches
with the ebb and flow of the times, either through legislative
action or judicial process. Constitution being the
Fundamental Law of the Land has to be purposively
construed to meet and cover changing conditions of social &
economic life that would have been unfamiliar to it s Framers.
Since SHAYARA BANO, there has been a paradigm shift in the
approach to the concept of essential religious prac tice, as
rightly pointed by the learned Advocate General. In INDIAN
further when the Apex Court added another dimension to the
concept of essential religious practice, by observi ng at
paragraphs 289 & 291 as under:
“For decades, this Court has witnessed claims resti ng on
the essentiality of a practice that militate agains t the
constitutional protection of dignity and individual freedom
under the Constitution. It is the duty of the court s to
ensure that what is protected is in conformity with
fundamental constitutional values and guarantees an d
accords with constitutional morality. While the
Constitution is solicitous in its protection of rel igious
freedom as well as denominational rights, it must b e
understood that dignity, liberty and equality const itute
the trinity which defines the faith of the Constitu tion.
Together, these three values combine to define a
constitutional order of priorities. Practices or be liefs which
detract from these foundational values cannot claim
legitimacy...
Our Constitution places the individual at the heart of the
discourse on rights. In a constitutional order
characterized by the Rule of Law, the constitutiona l
commitment to egalitarianism and the dignity of eve ry
individual enjoins upon the Court a duty to resolve the
inherent tensions between the constitutional guaran tee of
religious freedom afforded to religious denominatio ns and
constitutional guarantees of dignity and equality a fforded
to individuals. There are a multiplicity of interse cting
constitutional values and interests involved in
determining the essentiality of religious practices . In order
to achieve a balance between competing rights and
interests, the test of essentiality is infused with these
necessary limitations. ”
Thus, a person who seeks refuge under the umbrella of Article
25 of the Constitution has to demonstrate not only essential
religious practice but also its engagement with the
constitutional values that are illustratively menti oned at
paragraph 291 of the said decision. It’s a matter o f concurrent
requirement. It hardly needs to be stated, if essential religious
practice as a threshold requirement is not satisfied, the ca se
does not travel to the domain of those constitution al values.
1. The above having been said, now we need to
concisely discuss about the authentic sources of Is lamic law
inasmuch as Quran and Ahadith are cited by both the sides
in support of their argument & counter argument rel ating to
wearing of hijab . At this juncture, we cannot resist our feel to
reproduce Aiyat 242 of the Quran which says: "It is expected
that you will use your commonsense ". (Quoted by the Apex
Court in SHAH BANO, supra .
at sections 33, 34 & 35 lucidly states:
“33. Sources of Mahomedan Law: There are four
sources of Mahomedan law, namely, (1) the Koran; (2 )
Hadis, that is, precepts, actions and sayings of th e
Prophet Mahomed, not written down during his lifeti me,
but preserved by tradition and handed down by
authorized persons; (3) Ijmaa, that is, a concurren ce of
opinion of the companions of Mahomed and his discip les;
and (4) Qiyas, being analogical deductions derived from a
comparison of the first three sources when they did not
apply to the particular case.”
“34. Interpretation of the Koran: The Courts, in
administering Mahomedan law, should not, as a rule,
attempt to put their own construction on the Koran in
opposition to the express ruling of Mahomedan
commentators of great antiquity and high authority. ”
“35. Precepts of the Prophet: Neither the ancient texts
nor the preceipts of the Prophet Mahomed should be
taken literally so as to deduce from them new rules of
law, especially when such proposed rules do not con duce
to substantial justice… ”
(ii) FYZEE’S TREATISE: Referring to another Islamic
jurist of great repute Asaf A.A. Fyzee 69 , what the Apex Court
at paragraphs 7 & 54 in SHAYARA BANO , supra , observed
evokes interest:
68 Principles of Mahomedan law, 20 th Edition (2013)
69 Outlines of Muhammadan, Law 5 th Edition (2008)
“7. There are four sources for Islamic law- (i) Qur an (ii)
Hadith (iii) Ijma (iv) Qiyas. The learned author ha s rightly
said that the Holy Quran is the “first source of la w”.
According to the learned author, pre-eminence is to be
given to the Quran. That means, sources other than the
Holy Quran are only to supplement what is given in it
and to supply what is not provided for. In other wo rds,
there cannot be any Hadith, Ijma or Qiyas against w hat
is expressly stated in the Quran. Islam cannot be a nti-
Quran...
54. …Indeed, Islam divides all human action into fi ve
kinds, as has been stated by Hidayatullah, J. in hi s
Introduction to Mulla (supra). There it is stated:
“E. Degrees of obedience: Islam divides all actions into
five kinds which figure differently in the sight of God and
in respect of which His Commands are different. Thi s
plays an important part in the lives of Muslims.
(i) First degree: Fard. Whatever is commanded in th e
Koran, Hadis or ijmaa must be obeyed.Wajib. Perhaps a
little less compulsory than Fard but only slightly less
so.(ii) Second degree: Masnun, Mandub and Mustahab:
These are recommended actions.(iii) Third degree: J aiz or
Mubah: These are permissible actions as to which re ligion
is indifferent (iv) Fourth degree: Makruh: That whi ch is
reprobated as unworthy (v) Fifth degree: Haram: Tha t
which is forbidden.”
The Apex Court at paragraph 55 of SHAYARA BANO has
treated the structural hierarchy of binding nature of Islamic
norms starting from Quran and ending with Haram, wh ile
proscribing the obnoxious practice of triple talaq. The
argument of hijab being mandatory under Ahadith, if not
under Quran, shall be treated hereinafter, in the l ight of such
a structure.
(i) At the outset we make it clear that, in these c ases,
our inquiry concerns the nature and practice of wea ring of
hijab amongst Muslim women and therefore, references to the
Holy Quran and other sources of Islamic law shall b e confined
to the same. During the course of hearing, the vers ions of
different authors on this scripture were cited, viz ., Abdullah
Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab , Dr.
Mustafa Khattab, Muhammad Taqi-ud-Din al-Hilali,
Muhammad Muhsin Khan, Dr. Ghali. However, this Cour t
prefers to bank upon the ‘ The Holy Quran: Text, Translation
and Commentary’ by Abdullah Yusuf Ali, (published b y
Goodword Books; 2019 reprint), there being a broad unanimity
at the Bar as to its authenticity & reliability . The speculative
and generalizing mind of this author views the vers es of the
scriptures in their proper perspective. He provides the
unifying principles that underlie. His monumental w ork has a
systematic completeness and perfection of form. It is pertinent
to reproduce Abdullah Yusuf Ali’s ‘Preface to First Edition’ of
his book, which is as under:
“…In translating the Text I have aired no views of my
own, but followed the received commentators. Where they
differed among themselves, I have had to choose wha t
appeared to me to be the most reasonable opinion fr om all
points of view. Where it is a question merely of wo rds, I
have not considered the question important enough t o
discuss in the Notes, but where it is a question of
substance, I hope adequate explanations will be fou nd in
the notes. Where I have departed from the literal
translation in order to express the spirit of the o riginal
better in English, I have explained the literal mea ning in
the Notes… Let me explain the scope of the Notes. I have
made them as short as possible consistently with th e
object I have in view, viz., to give to the English reader,
scholar as well as general reader, a fairly complet e but
concise view of what I understand to be the meaning of
the Text…”
(ii) There is yet another reason as to why we place our
reliance on the commentary of Mr. Abdullah Yusuf Al i. The
Apex court itself in a catena of cases has treated the same as
the authoritative work. In SHAYARA BANO, we find the
following observations at paragraphs 17 & 18:
“17. Muslims believe that the Quran was revealed by God
to the Prophet Muhammad over a period of about 23
years, beginning from 22.12.609, when Muhammad was
40 years old. The revelation continued upto the yea r 632
– the year of his death. Shortly after Muhammad’s d eath,
the Quran was completed by his companions, who had
either written it down, or had memorized parts of i t.
These compilations had differences of perception.
Therefore, Caliph Usman - the third, in the line of caliphs
recorded a standard version of the Quran, now known as
Usman’s codex. This codex is generally treated, as the
original rendering of the Quran.
18. During the course of hearing, references to the Quran
were made from ‘The Holy Quran: Text Translation an d
Commentary’ by Abdullah Yusuf Ali, (published by Ki tab
Bhawan, New Delhi, 14th edition, 2016). Learned cou nsel
representing the rival parties commended, that the text
and translation in this book, being the most reliab le,
could safely be relied upon. The text and the infer ences
are therefore drawn from the above publication…The
Quran is divided into ‘suras’ (chapters). Each ‘sur a’
contains ‘verses’, which are arranged in sections.… ”
The above apart, none at the Bar has disputed the p rofound
scholarship of this writer or the authenticity of h is
commentary. We too find construction of and commen ts on
suras and verses of the scripture illuminative and immensely
appealing to reason & justice.
(i) Learned advocates appearing for the petitioners
vehemently argued that the Quran injuncts Muslim wo men to
wear hijab whilst in public gaze. In support, they heavily
banked upon certain suras from Abdullah Yusuf Ali’s book.
Before we reproduce the relevant suras and verses, we feel it
appropriate to quote what Prophet had appreciably s aid at
sūra (ii) verse 256 in Holy Quran: ‘Let there be no
compulsion in religion…’ What Mr. Abdullah Yusuf Ali in
footnote 300 to this verse, appreciably reasons out , is again
worth quoting: ‘ Compulsion is incompatible with religion
because religion depends upon faith and will, and t hese would
be meaningless if induced by force...’ With this at heart, we are
reproducing the following verses from the scripture , which
were pressed into service at the Bar.
Sūra xxiv (Nūr ):
The environmental and social influences which most
frequently wreck our spiritual ideals have to do wi th sex,
and especially with its misuse, whether in the form of
unregulated behavior, of false charges or scandals, or
breach of the refined conventions of personal or do mestic
privacy. Our complete conquest of all pitfalls in such
matters enables us to rise to the higher regions of Light
and of God-created Nature, about which a mystic doc trine
is suggested. This subject is continued in the nex t Sūra.
Privacy should be respected, and the utmost decorum
should be observed in dress and manners
(xxiv. 27 – 34, and C. 158)
Domestic manners and manners in public or collectiv e life
all contribute to the highest virtues, and are part of our
spiritual duties leading upto God”
(xxiv. 58 – 64, and C. 160) .
“And say to the believing women
That they should lower
Their gaze and guard ∗.
Their modesty; that they
Should not display their
Beauty and ornaments* except
What (must ordinarily) appear
Thereof; that they should
Draw their veils over
Their bosoms and not display
Their beauty except
To their husband, their fathers,
Their husbands’ father, their sons,
Their husbands’ sons,
Their brothers or their brothers’ sons,
Or their sisters’ sons,
∗ References to the footnote attached to these vers es shall be made in
subsequent paragraphs.
Or their women, or the slaves
Whom their right hands
Possess, or male servants
Free from physical needs,
Or small children who
Have no sense of the shame
Of sex; that they
Should strike their feet
In order to draw attention
To their hidden ornaments.
And O ye Believers!
Turn ye all together
Towards God, that ye
May attain Bliss. *” (xxiv. 31, C. – 158)
Sūra xxxiii (Ahzāb)
“Prophet! Tell
Thy wives and daughters,
And the believing women *,
That they should case
Their outer garments over *
Their persons (when abroad):
That is most convenient,
That they should be known *
(As such) and not molested.
And God is Oft – Forgiving, *
Most Merciful.” (xxxiii. 59, C. - 189)
Is hijab Islam-specific?
(ii) Hijab is a veil ordinarily worn by Muslim women, is true .
Its origin in the Arabic verb hajaba , has etymological
similarities with the verb “ to hide” . Hijab nearly translates to
partition, screen or curtain. There are numerous di mensions
of understanding the usage of the hijab : visual, spatial, ethical
and moral. This way, the hijab hides, marks the difference,
protects, and arguably affirms the religious identity of the
Muslim women. This word as such is not employed in Quran,
cannot be disputed, although commentators may have
employed it. Indian jurist Abdullah Yusuf Ali refer ring to sūra
(xxxiii), verse 59, at footnote 3765 in his book st ates: “Jilbāb,
plural Jalābib: an outer garment; a long gown cover ing the
whole body, or a cloak covering the neck as bosom.” . In the
footnote 3760 to Verse 53, he states: “ …In the wording, note
that for Muslim women generally, no screen or hijab
(Purdah) is mentioned, but only a veil to cover the bosom,
and modesty in dress. The screen was a special feat ure
of honor for the Prophet’s household, introduced ab out
five or six years before his death... ” Added, in footnote
3767 to verse 59 of the same sura, he opines: “ This rule was
not absolute: if for any reason it could not be obs erved,
‘God is Oft. Returning, Most Merciful.’…” Thus, there is
sufficient intrinsic material within the scripture itself to
support the view that wearing hijab has been only
recommendatory, if at all it is.
(iii) The Holy Quran does not mandate wearing of hijab
or headgear for Muslim women. Whatever is stated in the
above sūras , we say, is only directory, because of absence of
prescription of penalty or penance for not wearing hijab, the
linguistic structure of verses supports this view. This apparel
at the most is a means to gain access to public pla ces and not
a religious end in itself. It was a measure of wome n
enablement and not a figurative constraint. There i s a
laudable purpose which can be churned out from Yusu f Ali’s
footnotes 2984 , 2985 & 2987 to verses in Sūra xxiv (Nūr ) and
footnotes 3764 & 3765 to verses in Sūra xxxiii (Ahzāb ). They
are reproduced below:
Sūra xxiv (Nūr )
“2984. The need for modesty is the same in
both men and women. But on account of the
differentiation of the sexes in nature, temperament s
and social life, a greater amount of privacy is
required for women than for men, especially in the
matter of dress and uncovering of the bosom.”
“2985. Zinat means both natural beauty and
artificial ornaments. I think both are implied her e
but chiefly the former. The woman is asked ‘not to
make a display of her figure or appear in undress
except to the following classes of people: (1) her
husband, (2) her near relatives who would be living
in the same house, and with whom a certain
amount of negligé is permissible: (3) her women i.e .,
her maid-servants, who would be constantly in
attendance on her; some Commentators include all
believing women; it is not good form in a Muslim
household for women to meet other women, except
when they are properly dressed; (4) slaves, male
and female, as they would be in constant
attendance; but this item would now be blank, with
the abolition of slavery; (5) old or infirm men-
servants; and (6) infants or small children before
they get a sense of sex.
“2987. While all these details of the purity
and the good form of domestic life are being brough t
to our attention, we are clearly reminded that the
chief object we should hold in view is our spiritua l
welfare. All our brief life on this earth is a
probation, and we must make our individual,
domestic, and social life all contribute to our
holiness, so that we can get the real success and
bliss which is the aim of our spiritual endeavor.
Mystics understand the rules of decorum
themselves to typify spiritual truths. Our soul, li ke a
modest maiden, allows not her eyes to stray from
the One True God. And her beauty is not for vulgar
show but for God.”
Sū ra xxxiii (Ahzāb )
“3764. This is for all Muslim women, those of
the Prophet’s household, as well as the others. The
times were those of insecurity (see next verse) and
they were asked to cover themselves with outer
garments when walking abroad. It was never
contemplated that they should be confined to their
houses like prisoners.”
“3765. Jilbāb, plural Jalābib: an outer
garment; a long gown covering the whole body, or a
cloak covering the neck as bosom.”
(iv) The essential part of a religion is primarily to be
ascertained with reference to the doctrine of that religion itself ,
gains support from the following observations in INDIAN
“286. In determining the essentiality of a practice , it is
crucial to consider whether the practice is prescri bed to
be of an obligatory nature within that religion. If a
practice is optional, it has been held that it cann ot be said
to be ‘essential’ to a religion. A practice claimed to be
essential must be such that the nature of the relig ion
would be altered in the absence of that practice. I f there
is a fundamental change in the character of the rel igion,
only then can such a practice be claimed to be an
‘essential’ part of that religion.”
It is very pertinent to reproduce what the Islamic jurist Asaf
A.A. Fyzee, supra at pages 9-11 of his book states:
“…We have the Qur’an which is the very word of God.
Supplementary to it we have Hadith which are the
Traditions of the Prophet- the records of his actio ns and
his sayings- from which we must derive help and
inspiration in arriving at legal decisions. If ther e is
nothing either in the Qur’an or in the Hadith to an swer
the particular question which is before us, we have to
follow the dictates of secular reason in accordance with
certain definite principles. These principles const itute the
basis of sacred law or Shariat as the Muslim doctor s
understand it. And it is these fundamental juristic notions
which we must try to study and analyse before we
approach the study of the Islamic civil law as a wh ole, or
even that small part of it which in India is known as
Muslim law...”
(v) Petitioners pressed into service sūra (xxxiii ), verse
59, in support of their contention that wearing hijab is an
indispensable requirement of Islamic faith. This co ntention is
bit difficult to countenance. It is relevant to ref er to the
historical aspects of this particular verse as vivi dly explained
by Abdullah Yusuf Ali himself at footnote 3766:
“The object was not to restrict the liberty of wome n, but to
protect them from harm and molestation under the
conditions then existing in Medina. In the East and in the
West a distinctive public dress of some sort or ano ther
has always been a badge of honour or distinction, b oth
among men and women. This can be traced back to the
earliest civilizations. Assyrian Law in its palmist days
(say, 7 th century B.C.), enjoined the veiling of married
women and forbade the veiling of slaves and women o f ill
fame: see Cambridge Ancient History, III.107 ”
It needs to be stated that wearing hijab is not religion-specific,
as explained by Sara Slininger from Centralia, Illi nois in her
CULTURAL PRACTICE”. What she writes throws some light on
the socio-cultural practices of wearing hijab in the region,
during the relevant times:
“Islam was not the first culture to practice veilin g their
women. Veiling practices started long before the Is lamic
prophet Muhammad was born. Societies like the
Byzantines, Sassanids, and other cultures in Near a nd
Middle East practiced veiling. There is even some
evidence that indicates that two clans in southwest ern
Arabia practiced veiling in pre-Islamic times, the Banū
Ismā ʿīl and Banū Qa ḥṭān. Veiling was a sign of a
women’s social status within those societies. In
Mesopotamia, the veil was a sign of a woman’s high
status and respectability. Women wore the veil to
distinguish Slininger themselves from slaves and
unchaste women. In some ancient legal traditions, s uch
as in Assyrian law, unchaste or unclean women, such as
harlots and slaves, were prohibited from veiling
themselves. If they were caught illegally veiling, they
were liable to severe penalties. The practice of ve iling
spread throughout the ancient world the same way th at
many other ideas traveled from place to place durin g this
time: invasion.”
(vi) Regard being had to the kind of life condition s
then obtaining in the region concerned, wearing hijab was
recommended as a measure of social security for wom en and
to facilitate their safe access to public domain. A t the most
the practice of wearing this apparel may have somet hing to do
with culture but certainly not with religion. This gains
credence from Yusuf Ali’s Note 3764 to verse 59 whi ch runs
as under:
“…The times were those of insecurity (see next vers e) and
they were asked to cover themselves with outer garm ents
when walking abroad. It was never contemplated that
they should be confined to their houses like prison ers.”
History of mankind is replete with instances of abu se and
oppression of women. The region and the times from which
Islam originated were not an exception. The era bef ore the
introduction of Islam is known as Jahiliya-a time of barbarism
and ignorance. The Quran shows concern for the case s of
‘molestation of innocent women ’ and therefore, it
recommended wearing of this and other apparel as a measure
of social security. May be in the course of time, s ome
elements of religion permeated into this practice a s ordinarily
happens in any religion. However, that per se does not render
the practice predominantly religious and much less essential
to the Islamic faith. This becomes evident from Ali ’s footnote
3768 to verse 60 which concludes with the following profound
line “Alas! We must ask ourselves the question: ‘Are these
conditions present among us today? ’” Thus, it can be
reasonably assumed that the practice of wearing hijab had a
thick nexus to the socio-cultural conditions then prevalent in
the region. The veil was a safe means for the women to leave
the confines of their homes. Ali’s short but leadin g question is
premised on this analysis. What is not religiously made
obligatory therefore cannot be made a quintessentia l aspect of
the religion through public agitations or by the pa ssionate
arguments in courts.
(vii) Petitioners also relied upon verses 4758 & 47 59
(Chapter 12) from Dr.Muhammad Muhsin Khan’s ‘ The
Translation of the Meanings of Sahih Al-Bukhari, Ar abic-
English ’, Volume 6, Darussalam publication, Riyadh, Saudi
Arabia. This verse reads:
“4758. Narrated ‘Aishah’: May Allah bestow His Merc y
on the early emigrant women. When Allah revealed:
“…and to draw their veils all over their Juyubihinn a (i.e.,
their bodies, faces, necks and bosoms)…” (V.24:31) they
tore their Murut (woolen dresses or waist-binding c lothes
or aprons etc.) and covered their heads and faces w ith
those torn Muruts.
4759. Narrated Safiyya bint Shaiba: Aishah used to say:
“When (the Verse): ‘… and to draw their veils all o ver
their Juhubihinna (i.e., their bodies, faces, necks and
bosoms, etc.)…’ (V.24:31) was revealed, (the ladies ) cult
their waist-sheets from their margins and covered t heir
heads and faces with those cut pieces of cloth.”
Firstly, no material is placed by the petitioners t o show the
credentials of the translator namely Dr.Muhammad Mu hsin
Khan. The first page of volume 6 describes him as: “Formerly
Director, University Hospital, Islamic University, Al-Madina, Al-
Munawwara (Kingdom of Saudi Arabia). By this, credentials
required for a commentator cannot be assumed. He ha s held
a prominent position in the field of medicine, is b eside the
point. We found reference to this author in a decis ion of
Jammu & Kashmir High Court in LUBNA MEHRAJ VS.
MEHRAJ-UD-DIN KANTH 70 . Even here, no credentials are
discussed nor is anything stated about the authenti city and
reliability of his version of Ahadith. Secondly, th e text &
context of the verse do not show its obligatory nat ure. Our
attention is not drawn to any other verses in the t ranslation
from which we can otherwise infer its mandatory nat ure.
Whichever be the religion, whatever is stated in th e
scriptures, does not become per se mandatory in a wholesale
way. That is how the concept of essential religious practice, is
coined. If everything were to be essential to the r eligion
logically, this very concept would not have taken b irth. It is on
this premise the Apex Court in SHAYARA BANO, proscribed
the 1400 year old pernicious practice of triple talaq in Islam.
What is made recommendatory by the Holy Quran canno t be
metamorphosed into mandatory dicta by Ahadith which is
treated as supplementary to the scripture. A contra argument
offends the very logic of Islamic jurisprudence and normative
hierarchy of sources. This view gains support from paragraph
42 of SHAYARA BANO which in turn refers to Fyzee’s work.
Therefore, this contention too fails.
Strangely, in support of their version and counter version,
both the petitioners and the respondents drew our a ttention
to two decisions of the Kerala High Court, one deci sion of
Madras and Bombay each. Let us examine what these c ases
were and from which fact matrix, they emanated.
(i) In re AMNAH BINT BASHEER, supra: this judgment
was rendered by a learned Single Judge A.Muhamed
Mustaque J. of Hon’ble Kerala High Court on 26.4.20 16.
Petitioner, the students (minors) professing Islam had an
issue with the dress code prescribed for All India Pre-Medical
Entrance Test, 2016. This prescription by the Centr al Board
of Secondary Education was in the wake of large sca le
malpractices in the entrance test during the previo us years.
At paragraph 29, learned Judge observed:
“Thus, the analysis of the Quranic injunctions and t he
Hadiths would show that it is a farz to cover the h ead
and wear the long sleeved dress except face part an d
exposing the body otherwise is forbidden (haram). W hen
farz is violated by action opposite to farz that ac tion
becomes forbidden (haram). However, there is a
possibility of having different views or opinions f or the
believers of the Islam based on Ijithihad (independ ent
reasoning). This Court is not discarding such views . The
possibility of having different propositions is not a ground
to deny the freedom, if such propositions have some
foundation in the claim …”
Firstly, it was not a case of school uniform as par t of
Curricula as such. Students were taking All India Pre-
Medical Entrance Test, 2016 as a onetime affair and not on
daily basis, unlike in schools. No Rule or Regulati on having
force of law prescribing such a uniform was pressed into
service. Secondly, the measure of ensuring personal
examination of the candidates with the presence of one lady
member prior to they entering the examination hall was a
feasible alternative. This ‘reasonable exception’ c annot be
stretched too wide to swallow the rule itself. That feasibility
evaporates when one comes to regular adherence to s chool
uniform on daily basis. Thirdly, learned Judge hims elf in all
grace states: “ However, there is a possibility of having different
views or opinions for the believers of the Islam ba sed on
Ijithihad (independent reasoning). In formulating our view,
i.e., in variance with this learned Judge’s, we hav e heavily
drawn from the considered opinions of Abdullah Yusu f Ali’s
works that are recognized by the Apex Court as bein g
authoritative vide SHAYARA BANO and in other several
decisions . There is no reference to this learned authors’
commentary in the said judgment. Learned Judge refe rs to
other commentators whose credentials and authority are not
forthcoming. The fact that the Writ Appeal against the same
came to be negatived 71 by a Division Bench, does not make
much difference. Therefore, from this decision, bot h the sides
cannot derive much support for their mutually oppos ing
versions.
(ii) In re FATHIMA THASNEEM supra: the girl students
professing Islam had an issue with the dress code p rescribed
by the management of a school run by a religious mi nority
(Christians) who had protection under Articles 29 & 30 of the
71 (2016) SCC Online Ker 487
Constitution. This apart, learned Judge i.e., A.Muh amed
Mustaque J. was harmonizing the competing interests
protected by law i.e., community rights of the mino rity
educational institution and the individual right of a student.
He held that the former overrides the latter and ne gatived the
challenge, vide order dated 4.12.2018 with the foll owing
observation:
“10. In such view of the matter, I am of the conside red
view that the petitioners cannot seek imposition of their
individual right as against the larger right of the
institution. It is for the institution to decide wh ether the
petitioners can be permitted to attend the classes with the
headscarf and full sleeve shirt. It is purely withi n the
domain of the institution to decide on the same. Th e Court
cannot even direct the institution to consider such a
request. Therefore, the writ petition must fail. Ac cordingly,
the writ petition is dismissed. If the petitioners approach
the institution for Transfer Certificate, the schoo l authority
shall issue Transfer Certificate without making any
remarks. No doubt, if the petitioners are willing t o abide
by the school dress code, they shall be permitted t o
continue in the same school…”
This decision follows up to a particular point the reasoning in
the earlier decision (2016), aforementioned. Neithe r the
petitioners nor the respondent-State can bank upon this
decision, its fact matrix being miles away from tha t of these
petitions. This apart, what we observed about the e arlier
decision substantially holds water for this too.
(iii) In re FATHIMA HUSSAIN, supra: This decision by a
Division Bench of Bombay High Court discussed about
Muslim girl students’ right to wear hijab “…in exclusive girls
section cannot be said to in any manner acting inco nsistent
with the aforesaid verse 31 or violating any injunc tion provided
in Holy Quran. It is not an obligatory overt act enjoined by
Muslim religion that a girl studying in all girl se ction
must wear head-covering. The essence of Muslim religion or
Islam cannot be said to have been interfered with b y directing
petitioner not to wear head-scarf in the school .” These
observations should strike the death knell to Writ Petition
Nos.2146, 2347, 3038/2022 wherein the respondent co llege
happens to be all-girl-institution (not co-educatio n). The
Bench whilst rejecting the petition, at paragraph 8 observed:
“We therefore, do not find any merit in the contenti on of the
learned counsel for the petitioner that direction g iven by the
Principal to the petitioner on 28-11-2001 to not to wear head-
scarf or cover her head while attending school is v iolative of
Article 25 of Constitution of India.” We are at loss to know how
this decision is relevant for the adjudication of t hese petitions.
challenge in this case was to paragraph 1 of the Co de of
Conduct prescribing a dress code for the teachers. The
Division Bench of Madras High Court while dismissin g the
challenge at paragraph 16 observed as under:
“For the foregoing reasons and also in view of the
fact that the teachers are entrusted with not only
teaching subjects prescribed under the syllabus, bu t also
entrusted with the duty of inculcating discipline a mongst
the students, they should set high standards of dis cipline
and should be a role model for the students. We hav e
elaborately referred to the role of teachers in the earlier
portion of the order. Dress code, in our view, is o ne of the
modes to enforce discipline not only amongst the
students, but also amongst the teachers. Such impos ition
of dress code for following uniform discipline cann ot be
the subject matter of litigation that too, at the i nstance of
the teachers, who are vested with the responsibilit y of
inculcating discipline amongst the students. The Co urt
would be very slow to interfere in the matter of di scipline
imposed by the management of the school only on the
ground that it has no statutory background. That ap art,
we have held that the management of the respondent
school had the power to issue circulars in terms of clause
6 of Annexure VIII of the Regulations. In that view of the
matter also, we are unable to accept the contention of the
learned counsel for appellant in questioning the ci rcular
imposing penalty for not adhering to the dress code .”
This case has completely a different fact matrix. E ven the
State could not have banked upon this in structurin g the
impugned Govt. Order dated 5.2.2022. The challenge to the
dress code was by the teacher and not by the studen ts. The
freedom of conscience or right to religion under Ar ticle 25 was
not discussed. This decision is absolutely irreleva nt.
BULANDSHAHR 72 : This decision is cited by the petitioner in
W.P.No.4338/2022 (PIL) who supports the case of the State.
This decision related to a challenge to the prescri ption of
dress code for the lawyers. The Division Bench of A llahabad
High Court whilst rejecting the challenge, observed at
paragraph 20 as under:
“In our opinion the various rules prescribing the d ress of
an Advocate serve a very useful purpose. In the fir st
place, they distinguish an Advocate from a litigant or
other members of the public who may be jostling wit h him
in a Court room. They literally reinforce the
Shakespearian aphorism that the apparel oft proclai ms
the man. When a lawyer is in prescribed dress his
identity can never be mistaken. In the second place , a
uniform prescribed dress worn by the members of the Bar
induces a seriousness of purpose and a sense of dec orum
which are highly conducive to the dispensation of
justice...”
This decision is not much relevant although it give s some idea
as to the justification for prescribing uniform, be it in a
profession or in an educational institution. Beyond this, it is
of no utility to the adjudication of issues that ar e being
debated in these petitions.
72 1973 SCC OnLine All 333
(1) Some of the petitioners vehemently argued that,
regardless of right to religion, the girl students have the
freedom of conscience guaranteed under Article 25 i tself and
that they have been wearing hijab as a matter of conscience
and therefore, interdicting this overt act is offen sive to their
conscience and thus, is violative of their fundamen tal right. In
support, they heavily rely upon BIJOE EMMANUEL supra,
wherein at paragraph 25, it is observed as under:
“We are satisfied, in the present case, that the ex pulsion
of the three children from the school for the reaso n that
because of their conscientiously held religious fai th, they
do not join the singing of the national anthem in t he
morning assembly though they do stand up respectful ly
when the anthem is sung, is a violation of their
fundamental right to freedom of conscience and free ly to
profess, practice and propagate religion .” .
Conscience is by its very nature subjective. Whethe r the
petitioners had the conscience of the kind and how they
developed it are not averred in the petition with m aterial
particulars. Merely stating that wearing hijab is an overt act of
conscience and therefore, asking them to remove hijab would
offend conscience, would not be sufficient for trea ting it as a
ground for granting relief. Freedom of conscience a s already
mentioned above, is in distinction to right to reli gion as was
clarified by Dr. B.R.Ambedkar in the Constituent As sembly
Debates. There is scope for the argument that the f reedom of
conscience and the right to religion are mutually e xclusive.
Even by overt act, in furtherance of conscience, th e matter
does not fall into the domain of right to religion and thus, the
distinction is maintained. No material is placed be fore us for
evaluation and determination of pleaded conscience of the
petitioners. They have not averred anything as to h ow they
associate wearing hijab with their conscience, as an overt act.
There is no evidence that the petitioners chose to wear their
headscarf as a means of conveying any thought or be lief on
their part or as a means of symbolic expression. Pl eadings at
least for urging the ground of conscience are perfu nctory, to
say the least.
(i) Since the petitioners heavily banked upon BIJOE
EMMANUEL, in support of their contention as to freedom of
conscience, we need to examine what were the materi al facts
of the case and the propositions of law emanating t herefrom.
This exercise we have undertaken in the light of wh at Rupert
4th Edition – CLARENDON, at page 39 have said: “ the ratio
decidendi is best approached by a consideration of the
structure of a typical judgment…A Judge generally s ummarizes
the evidence, announcing his findings of fact and r eviews the
arguments that have been addressed to him by counse l for
each of the parties. If a point of law has been rai sed, he often
discusses a number of previous decisions…It is not everything
said by a Judge when giving judgment that constitut es a
precedent…This status is reserved for his pronounce ments on
the law…The dispute is solely concerned with the fa cts…It is
not always easy to distinguish law from fact and th e reasons
which led a Judge to come to a factual conclusion…” What
LORD HALSBURY said more than a century ago in the
celebrated case of QUINN vs. LEATHEM 73 ' is worth noting. He
had craftily articulated that a decision is an auth ority for the
proposition that is laid down in a given fact matri x, and not
for all that which logically follows from what has been so laid
down.
(ii) With the above in mind, let us examine the
material facts of BIJOE EMMANUEL : Three ‘law abiding
children’ being the faithful of Jehovah witnesses, did
respectfully stand up but refused to sing the Natio nal Anthem
in the school prayer. This refusal was founded on t he dicta of
their religion. They were expelled under the instru ctions of
Deputy Inspector of School. These instructions were proven to
have no force of law. They did not prevent the sing ing of
National Anthem nor did they cause any disturbance while
others were singing. Only these facts tailored the skirt, rest
being the frills. The decision turned out to be mor e on the
right to religion than freedom of conscience, altho ugh there is
some reference to the conscience. The court recogni zed the
negative of a fundamental right i.e., the freedom o f speech &
expression guaranteed under Article 19 as including right to
remain silent. What weighed with the court was the fact ‘ the
children were well behaved, they respectfully stood up when
the National Anthem was sung and would continue to do so
respectfully in the future ’ (paragraph 23). Besides, Court found
that their refusal to sing was not confined to Indi an National
Anthem but extended to the Songs of every other cou ntry.
(iii) True it is that the BIJOE EMMANUEL reproduces
the following observation of Davar J. made in JAMSHEDJI
“…If this is the belief of the community--and it is proved
undoubtedly to be the belief of the Zoroastrian
community--a secular judge is bound to accept that belief-
-it is not for him to sit in judgment on that belie f--he has
no right to interfere with the conscience of a dono r who
makes a gift in favour of what he believes to be in
advancement of his religion and for the welfare of his
community or of mankind…”
These observations essentially relate to ‘ the belief of the
Zoroastrian community ’. It very little related to the ‘ freedom of
conscience’ as envisaged under Article 25 of the Constitution
enacted about four decades thereafter. The expressi on
‘conscience of a donor’ is in the light of religious belief much
away from ‘ freedom of conscience’ . After all the meaning of a
word takes its colour with the companion words i.e. , noscitur
a sociis. After all, a word in a judgment cannot be construe d
as a word employed in a Statute. In the absence of
demonstrable conformity to the essentials of a deci sion, the
denomination emerging as a ratio would not be an
operationable entity in every case comprising neigh bourly fact
matrix. What is noticeable is that BIJOE EMMANUEL did not
demarcate the boundaries between ‘freedom of consci ence’
and ‘right to practise religion’ presumably because the overt
act of the students in respectfully standing up whi le National
Anthem was being sung transcended the realm of thei r
conscience and took their case to the domain of rel igious
belief. Thus, BIJOE EMMANUEL is not the best vehicle for
drawing a proposition essentially founded on freedo m of
conscience.
(i) In order to establish their case, claimants hav e to
plead and prove that wearing of hijab is a religious
requirement and it is a part of ‘essential religious practice’ in
Islam in the light of a catena of decision of the A pex Court
that ultimately ended with INDIAN YOUNG LAWYERS
ASSOCIATION. The same has already been summarized by us
above . All these belong to the domain of facts. In NARAYANA
DEEKSHITHULU, it is said: “… What are essential parts of
religion or religious belief or matters of religion and religious
practice is essentially a question of fact to be co nsidered in the
context in which the question has arisen and the ev idence-
factual or legislative or historic-presented in tha t context is
required to be considered and a decision reached …” The
claimants have to plead these facts and produce req uisite
material to prove the same. The respondents are mor e than
justified in contending that the Writ Petitions lac k the
essential averments and that the petitioners have n ot loaded
to the record the evidentiary material to prove the ir case. The
material before us is extremely meager and it is su rprising
that on a matter of this significance, petition ave rments
should be as vague as can be. We have no affidavit before us
sworn to by any Maulana explaining the implications of the
suras quoted by the petitioners’ side. Pleadings of the
petitioners are not much different from those in MOHD. HANIF
QUARESHI , supra which the Apex Court had critized. Since
how long all the petitioners have been wearing hijab is not
specifically pleaded. The plea with regard to weari ng of hijab
before they joined this institution is militantly a bsent. No
explanation is offered for giving an undertaking at the time of
admission to the course that they would abide by sc hool
ASSOCIATION , supra, has stated that matters that are
essential to religious faith or belief; have to be adjudged on
the evidence borne out by record. There is absolute ly no
material placed on record to prima facie show that wearing of
hijab is a part of an essential religious practice in Is lam and
that the petitioners have been wearing hijab from the
beginning. This apart, it can hardly be argued that hijab being
a matter of attire, can be justifiably treated as f undamental to
Islamic faith. It is not that if the alleged practi ce of wearing
hijab is not adhered to, those not wearing hijab become the
sinners, Islam loses its glory and it ceases to be a religion.
Petitioners have miserably failed to meet the thres hold
requirement of pleadings and proof as to wearing hijab is an
inviolable religious practice in Islam and much les s a part of
‘essential religious practice’ .
(i) We are confronted with the question whether the re
is power to prescribe dress code in educational ins titutions.
This is because of passionate submissions of the pe titioners
that there is absolutely no such power in the schem e of 1983
Act or the Rules promulgated thereunder. The idea o f In view of the above discussion, we are of the
considered opinion that wearing of hijab by
Muslim women does not form a part of essential
religious practice in Islamic faith.
schooling is incomplete without teachers, taught an d the
dress code. Collectively they make a singularity. N o
reasonable mind can imagine a school without unifor m. After
all, the concept of school uniform is not of a nasc ent origin. It
is not that, Moghuls or Britishers brought it here for the first
time. It has been there since the ancient gurukul days. Several
Indian scriptures mention samavastr/shubhravesh in
Samskrit, their English near equivalent being unifo rm.
278 makes copious reference to student uniforms. (T his work
is treated by the Apex Court as authoritative vide DEOKI
NANDAN vs. MURLIDHAR 75 ). In England, the first recorded
use of standardized uniform/dress code in instituti ons dates
to back to 1222 i.e., Magna Carta days. ‘ LAW, RELIGIOUS
Hunter-Henin; Mark Hill, a contributor to the book, at
what he pens is pertinent:
‘… The wearing of a prescribed uniform for school chil dren
of all ages is a near-universal feature of its educ ational
system, whether in state schools or in private (fee -paying)
schools. This is not a matter of primary or seconda ry
legislation or of local governmental regulation but rather
reflects a widespread and long-standing social prac tice. It
is exceptional for a school not to have a policy on uniform
for its pupils. The uniform (traditionally black or grey
trousers, jumpers and jackets in the coloured liver y of the
school and ties for boys serves to identify individ uals as
members of a specific institution and to encourage and
promote the corporate, collective ethos of the scho ol. More
subtly, by insisting upon identical clothing (often from a
designated manufacturer) it ensures that all school
children dress the same and appear equal: thus,
differences of social and economic background that would
be evident from the nature and extent of personal
wardrobes are eliminated. It is an effective leveli ng
feature-particularly in comprehensive secondary sch ools
whose catchment areas may include a range of school
children drawn from differing parental income brack ets
and social classes…’
68, edited by The Lawyers Cooperative Publishing Co mpany
states:
Ҥ249. In accord with the general principle that sc hool
authorities may make reasonable rules and regulatio ns
governing the conduct of pupils under their control , it may
be stated generally that school authorities may pre scribe
the kind of dress to be worn by students or make
reasonable regulations as to their personal
appearance…It has been held that so long as student s
are under the control of school authorities, they may be
required to wear a designated uniform, or may be
forbidden to use face powder or cosmetics, or to we ar
transparent hosiery low-necked dresses, or any styl e of
clothing tending toward immodesty in dress…
§251. Several cases have held that school regulati ons
proscribing certain hairstyles were valid, usually on the
basis that a legitimate school interest was served by such
a regulation. Thus, it has been held that a public high
school regulation which bars a student from attendi ng
classes because of the length or appearance of his hair is
not invalid as being unreasonable, and arbitrary as
having no reasonable connection with the successful
operation of the school, since a student’s unusual
hairstyle could result in the distraction of other pupils,
and could disrupt and impede the maintenance of a
proper classroom atmosphere or decorum… ”
(ii) The argument of petitioners that prescribing
school uniforms pertains to the domain of ‘ police power ’ and
therefore, unless the law in so many words confers such
power, there cannot be any prescription, is too far fetched. In
civilized societies, preachers of the education are treated next
to the parents. Pupils are under the supervisory co ntrol of the
teachers. The parents whilst admitting their wards to the
schools, in some measure share their authority with the
teachers. Thus, the authority which the teachers ex ercise over
the students is a shared ‘ parental power ’. The following
observations In T.M.A.PAI FOUNDATION, at paragraph 64,
lend credence to this view:
“An educational institution is established only for the
purpose of imparting education to the students. In such
an institution, it is necessary for all to maintain discipline
and abide by the rules and regulations that have be en
lawfully framed. The teachers are like foster- pare nts
who are required to look after, cultivate and guide the
students in their pursuit of education… ”
It is relevant to state that not even a single ruli ng of a court
nor a sporadic opinion of a jurist nor of an educat ionist was
cited in support of petitioners argument that presc ribing
school uniform partakes the character of ‘ police power’ .
Respondents are justified in tracing this power to the text &
context of sections 7(2) & 133 of the 1983 Act read with Rule
11 of 1995 Curricula Rules. We do not propose to re produce
these provisions that are as clear as gangetic wate rs. This
apart, the Preamble to the 1983 Act mentions inter alia of
“fostering the harmonious development of the mental and
physical faculties of students and cultivating a sc ientific and
secular outlook through education.” Section 7(2)(g)(v) provides
for promoting “ harmony and the spirit of common brotherhood
amongst all the people of India transcending religi ous, linguistic
and regional or sectional diversities to renounce p ractices
derogatory to the dignity of women.” The Apex Court in
MODERN DENTAL COLLEGE , supra, construed the term
‘education’ to include ‘curricula’ vide paragraph 1 23. The
word ‘curricula’ employed in section 7(2) of the Ac t needs to
be broadly construed to include the power to prescr ibe
uniform. Under the scheme of 1983 Act coupled with
international conventions to which India is a party , there is a
duty cast on the State to provide education at leas t up to
particular level and this duty coupled with power i ncludes the
power to prescribe school uniform.
AND DHIRAJLAL at page 98, parental and quasi parental
authority is discussed: “ The old view was that the authority of
a schoolmaster, while it existed, was the same as t hat of a
parent. A parent, when he places his child with a s choolmaster,
delegates to him all his own authority, so far as i t is necessary
for the welfare of the child. The modern view is th at the
schoolmaster has his own independent authority to a ct for the
welfare of the child. This authority is not limited to offences
committed by the pupil upon the premises of the sch ool, but
may extend to acts done by such pupil while on the way to and
from the school…” It is relevant to mention an old English case
in REX vs. NEWPORT (SALOP) 76 which these authors have
summarized as under:
“At a school for boys there was a rule prohibiting s moking
by pupils whether in the school or in public. A pup il after
returning home smoked a cigarette in a public stree t and
next day the schoolmaster administered to him five
strokes with a cane. It was held that the father of the boy
by sending him to the school authorized the schoolm aster
to administer reasonable punishment to the boy for
breach of a school rule, and that the punishment
administered was reasonable.”
Even in the absence of enabling provisions, we are of the view
that the power to prescribe uniform as of necessity inheres in
every school subject to all just exceptions.
(iv) The incidental question as to who should presc ribe
the school uniform also figures for our considerati on in the
light of petitioners’ contention that government ha s no power
in the scheme of 1983 Act. In T.M.A.PAI FOUNDATION, the
Apex Court observed at paragraph 55 as under:
“…There can be no doubt that in seeking affiliation or
recognition, the Board or the university or the aff iliating or
recognizing authority can lay down conditions consi stent
with the requirement to ensure the excellence of
education. It can, for instance, indicate the quali ty of the
teachers by prescribing the minimum qualifications that
they must possess, and the courses of study and
curricula. It can, for the same reasons, also stipu late the
existence of infrastructure sufficient for its grow th, as a
pre-requisite. But the essence of a private educati onal
institution is the autonomy that the institution mu st have
in its management and administration. There,
necessarily, has to be a difference in the administ ration
of private unaided institutions and the government- aided
institutions. Whereas in the latter case, the Gover nment
will have greater say in the administration, includ ing
admissions and fixing of fees, in the case of priva te
unaided institutions, maximum autonomy in the day-t o-
day administration has to be with the private unaid ed
institutions. Bureaucratic or governmental interfer ence in
the administration of such an institution will unde rmine
its independence... ”
Section 133(2) of the 1983 Act vests power in the g overnment
to give direction to any educational institution fo r carrying out
the purposes of the Act or to give effect to any of the
provisions of the Act or the Rules, and that the in stitution be
it governmental, State aided or privately managed, is bound
to obey the same. This section coupled with section 7(2)
clothes the government with power inter alia to prescribe or
caused to be prescribed school uniform. The governm ent vide
Circular dated 31.1.2014 accordingly has issued a d irection.
Significantly, this is not put in challenge and we are not called
upon to adjudge its validity, although some submiss ions were
made de hors the pleadings that to the extent the Circular
includes the local Member of the Legislative Assemb ly and his
nominee respectively as the President and Vice Pres ident of
the College Betterment (Development) Committee, it is
vulnerable for challenge. In furtherance thereof, i t has also
issued a Government Order dated 5.2.2022. We shall be
discussing more about the said Circular and the Ord er, a bit
later. Suffice it to say now that the contention as to absence
of power to prescribe dress code in schools is liab le to be
rejected.
15, 19(1)(a) & 21:
(i) There has been a overwhelming juridical opinion
in all advanced countries that in accord with the g eneral
principle, the school authorities may make reasonab le
regulations governing the conduct of pupils under t heir
control and that they may prescribe the kind of dre ss to be
worn by students or make reasonable regulations as to their
personal appearance, as well. In MILLER vs. GILLS 77 , a rule
that the students of an agricultural high school sh ould wear a
khaki uniform when in attendance at the class and w hilst
visiting public places within 5 miles of the school is not ultra
vires, unreasonable, and void. Similarly, in CHRISTMAS vs. EL
RENO BOARD OF EDUCATION 78 , a regulation prohibiting male
students who wore hair over their eyes, ears or col lars from
participating in a graduation diploma ceremony, whi ch had
no effect on the student’s actual graduation from h igh school,
so that no educational rights were denied, has been held
valid. It is also true that our Constitution protec ts the rights
of school children too against unreasonable regulat ions.
However, the prescription of dress code for the stu dents that
too within the four walls of the class room as dist inguished
from rest of the school premises does not offend
constitutionally protected category of rights, when they are
‘religion-neutral’ and ‘ universally applicable ’ to all the
students. This view gains support from Justice Scal ia’s
uniforms promote harmony & spirit of common brother hood
transcending religious or sectional diversities. Th is apart, it is
impossible to instill the scientific temperament wh ich our
Constitution prescribes as a fundamental duty vide Article
51A(h) into the young minds so long as any proposit ions such
as wearing of hijab or bhagwa are regarded as religiously
sacrosanct and therefore, not open to question. The y
inculcate secular values amongst the students in th eir
impressionable & formative years.
(ii) The school regulations prescribing dress code for
all the students as one homogenous class, serve
constitutional secularism. It is relevant to quote the
observations of Chief Justice Venkatachalaiah, in ISMAIL
“The concept of secularism is one facet of the righ t to
equality woven as the central golden thread in the fabric
depicting the pattern of the scheme in our Constitu tion…
In a pluralist, secular polity law is perhaps the g reatest
integrating force. Secularism is more than a passiv e…It is
a positive concept of equal treatment of all religi ons. What
is material is that it is a constitutional goal and a Basic
Feature of the Constitution.”
It is pertinent to mention that the preamble to the 1983 Act
appreciably states the statutory object being “ fostering the
harmonious development of the mental and physical f aculties
of students and cultivating a scientific and secula r outlook
through education.” This also accords with the Fundamental
Duty constitutionally prescribed under Article 51A( e) in the
same language, as already mentioned above. Petition ers’
argument that ‘ the goal of education is to promote plurality, not
promote uniformity or homogeneity, but heterogeneit y ’ and
therefore, prescription of student uniform offends the
constitutional spirit and ideal, is thoroughly misc onceived.
(iii) Petitioners argued that regardless of their f reedom
of conscience and right to religion, wearing of hijab does
possess cognitive elements of ‘ expression’ protected under
supra and it has also the substance of privacy/autonomy that
are guarded under Article 21 vide K.S.PUTTASWAMY, supra .
Learned advocates appearing for them vociferously s ubmit
that the Muslim students would adhere to the dress code with
hijab of a matching colour as may be prescribed and this
should be permitted by the school by virtue of ‘ reasonable
accommodation’ . If this proposal is not conceded to, then
prescription of any uniform would be violative of t heir rights
availing under these Articles, as not passing the ‘ least
restrictive test ’ and ‘ proportionality test ’, contended they. In
support, they press into service CHINTAMAN RAO and MD.
FARUK, supra . Let us examine this contention. The Apex
Court succinctly considered these tests in INTERNET &
the following observations:
"…While testing the validity of a law imposing a
restriction on the carrying on of a business or a
profession, the Court must, as formulated in Md.
Faruk, attempt an evaluation of (i) its direct and
immediate impact upon of the fundamental rights of
the citizens affected thereby (ii) the larger publi c
interest sought to be ensured in the light of the o bject
sought to be achieved (iii) the necessity to restri ct the
citizens’ freedom (iv) the inherent pernicious natu re of
the act prohibited or its capacity or tendency to b e
harmful to the general public and (v) the possibili ty of
achieving the same object by imposing a less drasti c
restraint... On the question of proportionality, th e
learned Counsel for the petitioners relies upon the
four-pronged test summed up in the opinion of the
majority in Modern Dental College and Research
Centre v. State of Madhya Pradesh. These four tests
are (i) that the measure is designated for a proper
purpose (ii) that the measures are rationally
connected to the fulfilment of the purpose (iii) th at
there are no alternative less invasive measures and
(iv) that there is a proper relation between the
importance of achieving the aim and the importance
of limiting the right…But even by our own standards ,
we are obliged to see if there were less intrusive
measures available and whether RBI has at least
considered these alternatives..."
(iv) All rights have to be viewed in the contextual
conditions which were framed under the Constitution and the
way in which they have evolved in due course. As al ready
mentioned above, the Fundamental Rights have relati ve
content and their efficacy levels depend upon the
circumstances in which they are sought to be exerci sed. To
evaluate the content and effect of restrictions and to adjudge
their reasonableness, the aforesaid tests become ha ndy.
However, the petitions we are treating do not invol ve the right
to freedom of speech & expression or right to priva cy, to such
an extent as to warrant the employment of these tes ts for
evaluation of argued restrictions, in the form of s chool dress
code. The complaint of the petitioners is against t he violation
of essentially ‘derivative rights’ of the kind. The ir grievances
do not go to the core of substantive rights as such but lie in
the penumbra thereof. So, by a sheer constitutional logic, the
protection that otherwise avails to the substantive rights as
such cannot be stretched too far even to cover the derivative
rights of this nature, regardless of the ‘ qualified public places ’
in which they are sought to be exercised. It hardly needs to be
stated that schools are ‘ qualified public places ’ that are
structured predominantly for imparting educational
instructions to the students. Such ‘ qualified spaces ’ by their
very nature repel the assertion of individual right s to the
detriment of their general discipline & decorum. Ev en the
substantive rights themselves metamorphise into a kind of
derivative rights in such places. These illustrate this: the
rights of an under – trial detenue qualitatively an d
quantitatively are inferior to those of a free citi zen. Similarly,
the rights of a serving convict are inferior to tho se of an under
– trial detenue. By no stretch of imagination, it c an be
gainfully argued that prescription of dress code of fends
students’ fundamental right to expression or their autonomy.
In matters like this, there is absolutely no scope for complaint
of manifest arbitrariness or discrimination inter alia under
Articles 14 & 15, when the dress code is equally ap plicable to
all the students, regardless of religion, language, gender or
the like. It is nobody’s case that the dress code i s sectarian.
(v) Petitioners’ contention that ‘ a class room should be
a place for recognition and reflection of diversity of society, a
mirror image of the society (socially & ethically)’ in its deeper
analysis is only a hollow rhetoric, ‘ unity in diversity ’ being the
oft quoted platitude since the days of IN RE KERALA
EDUCATION BILL, supra , wherein paragraph 51 reads: ‘…the
genius of India has been able to find unity in dive rsity by
assimilating the best of all creeds and cultures.’ The counsel
appearing for Respondent Nos.15 & 16 in W.P.No.2146 /2022,
is justified in pressing into service a House of Lo rds decision
supra wherein at paragraph 97, it is observed as under:
“But schools are different. Their task is to educate the
young from all the many and diverse families and
communities in this country in accordance with the
national curriculum. Their task is to help all of t heir pupils
achieve their full potential. This includes growing up to
play whatever part they choose in the society in wh ich
they are living. The school’s task is also to promo te the
ability of people of diverse races, religions and c ultures to
live together in harmony. Fostering a sense of comm unity
and cohesion within the school is an important part of
that. A uniform dress code can play its role in smo othing
over ethnic, religious and social divisions… ”
(vi) It hardly needs to be stated that our Constitu tion
is founded on the principle of ‘ limited government ’. “What is
the most important gift to the common person given by this
Constitution is ‘fundamental rights’ , which may be called
‘human rights’ as well .” It is also equally true that in this
country, the freedom of citizens has been broadenin g
precedent by precedent and the most remarkable feat ure of
this relentless expansion is by the magical wand of judicial
activism. Many new rights with which the Makers of our
Constitution were not familiar, have been shaped by the
constitutional courts. Though the basic human right s are
universal, their regulation as of necessity is also a
constitutional reality. The restriction and regulat ion of rights
be they fundamental or otherwise are a small price which
persons pay for being the members of a civilized co mmunity.
There has to be a sort of balancing of competing in terests i.e.,
the collective rights of the community at large and the
individual rights of its members. True it is that t he Apex
that dressing too is an ‘expression’ protected unde r Article
19(1)(a) and therefore, ordinarily, no restriction can be placed
on one’s personal appearance or choice of apparel. However, it
also specifically mentioned at paragraph 69 that th is right is
“subject to the restrictions contained in Article 19 (2) of the
Constitution. ” The said decision was structured keeping the
‘gender identity’ at its focal point, attire being associated with
such identity. Autonomy and privacy rights have als o
blossomed vide K.S.PUTTASWAMY, supra. We have no quarrel
with the petitioners’ essential proposition that wh at one
desires to wear is a facet of one’s autonomy and th at one’s
attire is one’s expression. But all that is subject to reasonable
regulation.
(vii) Nobody disputes that persons have a host of r ights
that are constitutionally guaranteed in varying deg rees and
they are subject to reasonable restrictions. What i s reasonable
is dictated by a host of qualitative & quantitative factors.
Ordinarily, a positive of the right includes its ne gative. Thus,
right to speech includes right to be silent vide BIJOE
EMMANUEL. However, the negative of a right is not invariably
coextensive with its positive aspect. Precedentiall y speaking,
the right to close down an industry is not coextens ive with its
positive facet i.e., the right to establish industr y under Article
the right to life does not include the right to die under Article
commit suicide being an offence under Section 309 o f Indian
Penal Code . It hardly needs to be stated the content & scope
of a right, in terms of its exercise are circumstan tially
dependent. Ordinarily, liberties of a person stand curtailed
inter alia by his position, placement and the like. The extent of
autonomy is enormous at home, since ordinarily resi dence of
a person is treated as his inviolable castle. Howev er, in
‘qualified public places ’ like schools, courts, war rooms,
defence camps, etc., the freedom of individuals as of
necessity, is curtailed consistent with their disci pline &
decorum and function & purpose. Since wearing hijab as a
facet of expression protected under Article 19(1)(a ) is being
debated, we may profitably advert to the ‘ free speech
jurisprudence ’ in other jurisdictions. The Apex Court in
observed:
"While examining the constitutionality of a law
which is alleged to contravene Article 19(1)(a) of the
Constitution, we cannot, no doubt, be solely guided
by the decisions of the Supreme Court of the United
States of America. But in order to understand the
basic principles of freedom of speech and expressio n
and the need for that freedom in a democratic
country, we may take them into consideration...".
(viii) In US, the Fourteenth Amendment is held to
protect the First Amendment rights of school childr en against
unreasonable rules or regulations vide BURNSIDE vs.
BYARS 84 . Therefore, a prohibition by the school officials, of a
particular expression of opinion is held unsustaina ble where
there is no showing that the exercise of the forbid den right
would materially interfere with the requirements of a school’
positive discipline. However, conduct by a student , in class or
out of it, which for any reason-whether it stems fr om time,
place, or type of behavior-materially disrupts clas s work or
involves substantial disorder or invasion of the ri ghts of
others, is not immunized by the constitutional guar anty of
wherein right to speech & expression is held to hea rt, if school
restrictions are sustainable on the ground of posit ive
discipline & decorum, there is no reason as to why it should
be otherwise in our land. An extreme argument that the
students should be free to choose their attire in t he school
individually, if countenanced, would only breed ind iscipline
that may eventually degenerate into chaos in the ca mpus and
84 363 F 2d 744 (5 th Cir. 1966)
later, in the society at large. This is not desirab le to say the
least. It is too farfetched to argue that the schoo l dress code
militates against the fundamental freedoms guarante ed under
Articles, 14, 15, 19, 21 & 25 of the Constitution a nd therefore,
the same should be outlawed by the stroke of a pen.
The counsel for the petitioners passionately submit ted
that the students should be permitted to wear hijab of
structure & colour that suit to the prescribed dres s code. In
support of this, they bank upon the ‘ principle of reasonable
accommodation ’. They drew our attention to the prevalent
practice of dress codes/uniforms in Kendriya Vidyalayas . We
are not impressed by this argument. Reasons are not far to
seek: firstly, such a proposal if accepted, the sch ool uniform
ceases to be uniform. There shall be two categories of girl
students viz., those who wear the uniform with hijab and
those who do it without. That would establish a sen se of
‘social-separateness’, which is not desirable. It also offends
the feel of uniformity which the dress-code is desi gned to
bring about amongst all the students regardless of their
religion & faiths. As already mentioned above, the statutory
scheme militates against sectarianism of every kind .
Therefore, the accommodation which the petitioners seek
cannot be said to be reasonable. The object of pre scribing
uniform will be defeated if there is non-uniformity in the
matter of uniforms. Youth is an impressionable peri od when
identity and opinion begin to crystallize. Young st udents are
able to readily grasp from their immediate environm ent,
differentiating lines of race, region, religion, la nguage, caste,
place of birth, etc. The aim of the regulation is t o create a
‘safe space’ where such divisive lines should have no place
and the ideals of egalitarianism should be readily apparent to
all students alike. Adherence to dress code is a ma ndatory for
students. Recently, a Division Bench of this Court disposed
off on 28.08.2019, Writ Petition No.13751 OF 2019 ( EDN-
on this premise. What the Kendriya Vidyalayas prescribe as
uniform/dress code is left to the policy of the Cen tral
Government. Ours being a kind of Federal Structure
(Professor K.C. Wheare), the Federal Units, namely the States
need not toe the line of Center.
(x) Petitioners’ heavy reliance on the South Africa n
supra, does not much come to their aid. Constitutional
schemes and socio-political ideologies vary from on e country
to another, regardless of textual similarities. A C onstitution of
a country being the Fundamental Law, is shaped by s everal
streams of forces such as history, religion, cultur e, way of life,
values and a host of such other factors. In a given fact matrix,
how a foreign jurisdiction treats the case cannot b e the sole
model readily availing for adoption in our system w hich
ordinarily treats foreign law & foreign judgments a s matters of
facts. Secondly, the said case involved a nose stud , which is
ocularly insignificantly, apparently being as small as can be.
By no stretch of imagination, that would not in any way affect
the uniformity which the dress code intends to brin g in the
class room. That was an inarticulate factor of the said
judgment. By and large, the first reason supra answers the
Malaysian court decision too 85 . Malaysia being a theistic
Nation has Islam as the State religion and the cour t in its
wisdom treated wearing hijab as being a part of religious
practice. We have a wealth of material with which a view in
respectful variance is formed. Those foreign decisi ons cited by
the other side of spectrum in opposing hijab argument, for the
same reasons do not come to much assistance. In sev eral
countries, wearing of burqa or hijab is prohibited, is of no
assistance to us. Noble thoughts coming from whiche ver
direction are most welcome. Foreign decisions also throw light
on the issues debated, cannot be disputed. However, courts
have to adjudge the causes brought before them esse ntially in
accordance with native law.
(i) The government vide Circular dated 31.1.2014
directed constitution of School Betterment Committe e inter
alia with the object of securing State Aid & its appropr iation
and enhancing the basic facilities & their optimum utilization.
This Committee in every Pre-University College shal l be
headed by the local Member of Legislative Assembly (MLA) as
its President and his nominee as the Vice President . The
Principal of the College shall be the Member Secret ary. Its In view of the above, we are of the considered opin ion
that the prescription of school uniform is only a
reasonable restriction constitutionally permissible which
the students cannot object to.
membership comprises of student representatives, pa rents,
one educationist, a Vice Principal/Senior Professor & a Senior
Lecturer. The requirement of reservation of SC/ST/W omen is
horizontally prescribed. It is submitted at the Bar that these
Committees have been functioning since about eight years or
so with no complaints whatsoever. Petitioners argue d for
Committee’s invalidation on the ground that the pre sence of
local Member of Legislative Assembly and his nomine e would
only infuse politics in the campus and therefore, n ot
desirable. He also submits that even otherwise, the College
Development Committee being extra-legal authority h as no
power to prescribe uniform.
(ii) We are not much inclined to undertake a deeper
discussion on the validity of constitution & functi oning of
School Betterment (Development) Committees since no ne of
the Writ Petitions seeks to lay challenge to Govern ment
Circular of January 2014. Merely because these Comm ittees
are headed by the local Member of Legislative Assem bly, we
cannot hastily jump to the conclusion that their fo rmation is
bad. It is also relevant to mention what the Apex C ourt said in
Professor Wade’s Administrative Law:
“…Apropos to this principle, Prof. Wade states: "th e
principle must be equally true even where the 'bran d' of
invalidity' is plainly visible; for their also the order can
effectively be resisted in law only by obtaining th e
decision of the Court (See: Administrative Law 6th Ed. p.
352). Prof. Wade sums up these principles: The trut h of
the matter is that the court will invalidate an ord er only if
'the right remedy is sought by the right person in the right
proceedings and circumstances. The order may be
hypothetically a nullity, but the Court may refuse to
quash it because of the plain- tiff's lack of stand ing,
because he does not deserve a discretionary remedy,
because he has waived his rights, or for some other legal
reason. In any such case the 'void' order remains e ffective
and is, in reality, valid. It follows that an order may be
void for one purpose and valid for another, and tha t it
may be void against one person but valid against
another." (Ibid p. 352) It will be clear from these
principles, the party aggrieved by the invalidity o f the
order has to approach the Court for relief of decla ration
that the order against him is inoperative and not b inding
upon him. He must approach the Court within the
prescribed period of limitation. If the statutory t ime limit
expires the Court cannot give the declaration sough t
It is nobody’s case that the Government Circular is void ab
initio and consequently, the School Betterment (Developmen t)
Committees are non est . They have been functioning since last
eight years and no complaint is raised about their
performance, nor is any material placed on record t hat
warrants consideration of the question of their val idity despite
absence of pleadings & prayers. It hardly needs to be stated
that schools & hospitals amongst other, are the ele ctoral
considerations and therefore, peoples’ representati ves do
show concern for the same, as a measure of their
performances. That being the position, induction of local
Members of Legislative Assembly in the Committees per se is
not a ground for voiding the subject Circular.
(iii) We have already held that the schools &
institutions have power to prescribe student unifor m. There is
no legal bar for the School Betterment (Development )
Committees to associate with the process of such
prescription. However, there may be some scope for the view
that it is not desirable to have elected representa tives of the
people in the school committees of the kind, one of the
obvious reasons being the possible infusion of ‘ party-politics ’
into the campus. This is not to cast aspersion on a nyone. We
are not unaware of the advantages of the schools as sociating
with the elected representatives. They may fetch fu nds and
such other things helping development of institutio ns. This
apart, no law or ruling is brought to our notice th at interdicts
their induction as the constituent members of such
committees.
(i) The validity of Government Order dated
05.02.2022 had been hotly debated in these petition s.
Petitioners argue that this order could not have be en issued
in purported exercise of power under sections 133 a nd 7(2) of
the 1983 Act read with Rule 11 of the 1995 Curricul a Rules.
The State and other contesting respondents contend to the
contrary, inter alia by invoking sections 142 & 143 of the
1983 Act, as well. This Order per se does not prescribe any
dress code and it only provides for prescription of uniform in
four different types of educational institutions. T he near
English version of the above as submitted by both t he sides is
already stated in the beginning part of the judgmen t.
However, the same is reiterated for the ease of ref erence:
Students should compulsorily adhere to the dress co de/uniform
as follows:
a. in government schools, as prescribed by the
government;
b. in private schools, as prescribed by the school
management;
c. in Pre–University colleges that come within the
jurisdiction of the Department of the Pre–Universit y
Education, as prescribed by the College Development
Committee or College Supervision Committee; and
d. wherever no dress code is prescribed, such attire that
would accord with ‘equality & integrity’ and would not
disrupt the ‘public order’.
(ii) Petitioners firstly argued that this Order suf fers
from material irregularity apparent on its face ina smuch as
the rulings cited therein do not lay down the ratio which the
government wrongly states that they do. This Order refers to
two decisions of the Kerala High Court and one deci sion of
Bombay and Madras High Courts each. We have already
discussed all these decisions supra at paragraph (X ) and
therefore, much need not be discussed here. Regardl ess of the
ratio of these decisions, if the Government Order i s otherwise
sustainable in law, which we believe it does, the c hallenge
thereto has to fail for more than one reason: The s ubject
matter of the Government Order is the prescription of school
uniform. Power to prescribe, we have already held, avails in
the scheme of 1983 Act and the Rules promulgated
thereunder. Section 133(2) of the Act which is broa dly worded
empowers the government to issue any directions to give effect
to the purposes of the Act or to any provision of t he Act or to
any Rule made thereunder. This is a wide conferment of
power which obviously includes the authority to pre scribe
school dress code. It is more so because Rule 11 of 1995
Curricula Rules itself provides for the prescriptio n of school
uniform and its modalities. The Government Order ca n be
construed as the one issued to give effect to this rule itself.
Such an order needs to be construed in the light of the said
rule and the 2014 Circular, since there exists a ki nship inter
se . Therefore, the question as to competence of the
government to issue order of the kind is answered i n the
affirmative.
(iii) Petitioners’ second contention relates to exe rcise of
statutory power by the government that culminated i nto
issuance of the impugned order. There is difference between
existence of power and the exercise of power; exist ence of
power per se does not justify its exercise. The public power
that is coupled with duty needs to be wielded for e ffectuating
the purpose of its conferment. Learned counsel appe aring for
the students argued that the Government Order has t o be
voided since the reasons on which it is structured are ex facie
bad and that new grounds cannot be imported to the body of
the Order for infusing validity thereto vide COMMISSIONER OF
articulated the Administrative Law principle that t he validity
of a statutory order has to be adjudged only on the reasons
stated in the order itself. We have no quarrel with this
principle which has been reiterated in MOHINDER SINGH
GILL, supra. However, we are not sure of its invocation in a
case wherein validity of the impugned order can oth erwise be
sustained on the basis of other intrinsic material. As we have
already mentioned, the Government Order is issued t o give
effect to the purposes of the 1983 Act and to Rule 11 of the
1995 Curricula Rules. That being the position the q uestion of
un-sustainability of some of the reasons on which t he said
Order is constructed, pales into insignificance.
(iv) Petitioners next argued that the Government O rder
cites ‘ sārvajanika suvyavasthe ’ i.e., ‘ public order’ as one of the
reasons for prescribing uniform to the exclusion of hijab;
disruption of public order is not by those who wear this
apparel but by those who oppose it; most of these opposers
wear bhagwa or such other cloth symbolic of religious
overtones. The government should take action agains t the
hooligans disrupting peace, instead of asking the M uslim girl
students to remove their hijab. In support of this contention,
they drew attention of the court to the concept of ‘hecklers
veto’ as discussed in K.M.SHANKARAPPA, supra . They further
argued that ours being a ‘ positive secularism ’, the State
should endeavor to create congenial atmosphere for the
exercise of citizens rights, by taking stern action against those
who obstruct vide PRAVEEN BHAI THOGADIA, supra. Again
we do not have any quarrel with the proposition of law.
However, we are not convinced that the same is invo cable for
invalidating the Government Order, which per se does not
prescribe any uniform but only provides for prescri ption in a
structured way, which we have already upheld in the light of
our specific finding that wearing hijab is not an essential
religious practice and school uniform to its exclusion can be
prescribed. It hardly needs to be stated that the u niform can
exclude any other apparel like bhagwa or blue shawl that may
have the visible religious overtones . The object of prescribing
uniform cannot be better stated than by quoting fro m
Department of Education:
‘A safe and disciplined learning environment is the first
requirement of a good school. Young people who are safe
and secure, who learn basic American values and the
essentials of good citizenship, are better students . In
response to growing levels of violence in our schoo ls,
many parents, teachers, and school officials have c ome to
see school uniforms as one positive and creative wa y to
reduce discipline problems and increase school safe ty.’
(v) We hasten to add that certain terms used in a
Government Order such as ‘ public order’, etc ., cannot be
construed as the ones employed in the Constitution or
Statutes. There is a sea of difference in the textu al structuring
of legislation and in promulgating a statutory orde r as the one
at hands. The draftsmen of the former are ascribed of due
diligence & seriousness in the employment of termin ology
which the government officers at times lack whilst textually
framing the statutory policies. Nowadays, courts do often
come across several Government Orders and Circulars which
have lavish terminologies, at times lending weight to the
challenge. The words used in Government Orders have to be
construed in the generality of their text and with common
sense and with a measure of grace to their linguist ic pitfalls.
The text & context of the Act under which such orde rs are
issued also figure in the mind. The impugned order could
have been well drafted, is true. ‘ There is scope for improvement
even in heaven ’ said Oscar Wilde. We cannot resist ourselves
from quoting what Justice Holmes had said in TOWNE vs.
EISNER 88 , “a word is not a crystal, transparent and
unchanged; it is the skin of a living thought and m ay vary
greatly in color and content according to the circu mstances and
the time in which it is used.” Thus, there is no much scope for
invoking the concept of ‘ law and order’ as discussed in ANITA
and GULAB ABBAS , supra , although the Government Order
gives a loose impression that there is some nexus b etween
wearing of hijab and the ‘ law & order ’ situation.
(vi) Petitioners had also produced some ‘ loose papers ’
without head and tail, which purported to be of a b rochure
issued by the Education Department to the effect th at there
was no requirement of any school uniform and that t he
prescription of one by any institution shall be ill egal. There is
nothing on record for authenticating this version. Those
producing the same have not stated as to who their author is
and what legal authority he possessed to issue the same.
Even otherwise, this purported brochure cannot stan d in the
face of Government Order dated 05.02.2022 whose val idity we
have already considered. Similarly, petitioners had banked
upon the so called research papers allegedly published by
‘Pew Research Centre ’ about r eligious clothing and personal
appearance . They contend that this paper is generated from
the research that studied various religious groups &
communities and that a finding has been recorded: ‘ Most
Hindu, Muslim and Sikh women cover their heads outs ide the
home ’ and therefore, the Government Order which militat es
against this social reality, is arbitrary. We are n ot inclined to
subscribe to this view. No credentials of the resea rchers are
stated nor the representative character of the stat istics
mentioned in the papers are demonstrated. The authe nticity
of the contents is apparently lacking.
(vii) Petitioners contended that the said Governmen t
Order has been hastily issued even when the contemp lated
High Powered Committee was yet to look into the iss ue as to
the desirability of prescription and modules of dre ss codes in
the educational institutions. The contents of Gover nment
Order give this impression, is true. However, that is too feeble
a ground for faltering a policy decision like this. At times,
regard being had to special conditions like social unrest and
public agitations, governments do take certain urge nt
decisions which may appear to be knee-jerk reactions.
However, these are matters of perceptions. May be, such
decisions are at times in variance with their earli er stand.
Even that cannot be faltered when they are dictated by
circumstances. After all, in matters of this kind, the doctrine
of ‘estoppel’ does not readily apply. Whether a particular
decision should be taken at a particular time, is a matter left
to the executive wisdom, and courts cannot run a race of
opinions with the Executive, more particularly when policy
content & considerations that shaped the decision a re not
judicially assessable. The doctrine of ‘separation of powers’
which figures in our constitution as a ‘ basic feature ’ expects
the organs of the State to show due deference to ea ch other’s
opinions. The last contention that the Government O rder is a
product of ‘ acting under dictation ’ and therefore, is bad in law
is bit difficult to countenance. Who acted under wh ose
dictation cannot be adjudged merely on the basis of some
concessional arguments submitted on behalf of the S tate
Government. Such a proposition cannot be readily in voked
inasmuch as invocation would affect the institution al dignity
& efficacy of the government. A strong case has to be made to
invoke such a ground, in terms of pleadings & proof .
In view of the above, we are of the considered opin ion
that the government has power to issue the impugned
Order dated 05.2.2022 and that no case is made out for
its invalidation.
(i) There have been several International Conventio ns
& Conferences in which India is a participant if no t a
are only a few to name. Under our Constitutional
Jurisprudence, owing to Article 51 which provides for
promotion of international peace & security, the In ternational
Conventions of the kind assume a significant role i n
construing the welfare legislations and the statute s which
have kinship to the subject matter of such Conventi ons. In a
sense, these instruments of International Law perme ate into
our domestic law. Throughout, there has been both l egislative
& judicial process to emancipate women from pernici ous
discrimination in all its forms and means. Women re gardless
of religion being equal, if not superior to men, ar e also joining
defence services on permanent commission basis vide Apex
Court decision in C.A.No.9367-9369/2011 between THE
decided on 17.2.2020. Be it business, industry, pro fession,
public & private employments, sports, arts and such other
walks of life, women are breaking the glass ceiling and faring
better than their counterparts.
(ii) It is relevant to quote what Dr. B.R.Ambedkar in
Chapter X, Part 1 titled ‘ Social Stagnation’ wrote:
“…A woman (Muslim) is allowed to see only her
son, brothers, father, uncles, and husband, or any other
near relation who may be admitted to a position of trust.
She cannot even go to the Mosque to pray, and must wear
burka (veil) whenever she has to go out. These burk a
woman walking in the streets is one of the most hid eous
sights one can witness in India…The Muslims have al l
the social evils of the Hindus and something more. That
something more is the compulsory system of purdah f or
Muslim women… Such seclusion cannot have its
deteriorating effect upon the physical constitution of
Muslim women… Being completely secluded from the
outer world, they engage their minds in petty famil y
quarrels with the result that they become narrow an d
restrictive in their outlook… They cannot take part in any
outdoor activity and are weighed down by a slavish
mentality and an inferiority complex…Purdah women i n
particular become helpless, timid…Considering the l arge
number of purdah women amongst Muslims in India, on e
can easily understand the vastness and seriousness of
the problem of purdah…As a consequence of the purda h
system, a segregation of Muslim women is brought ab out
What the Chief Architect of our Constitution observ ed more
than half a century ago about the purdah practice equally
applies to wearing of hijab there is a lot of scope for the
argument that insistence on wearing of purdah , veil, or
headgear in any community may hinder the process of
emancipation of woman in general and Muslim woman i n
particular. That militates against our constitution al spirit of
‘equal opportunity’ of ‘public participation ’ and ‘ positive
secularism ’. Prescription of school dress code to the exclusi on
of hijab, bhagwa, or any other apparel symbolic of religion can
be a step forward in the direction of emancipation and more
particularly, to the access to education. It hardly needs to be
stated that this does not rob off the autonomy of w omen or
their right to education inasmuch as they can wear any
apparel of their choice outside the classroom.
The petitioners in W.P. No.2146/2022, have sought f or a
Writ of Mandamus for initiating a disciplinary enqu iry on the
ground that the respondent Nos.6 to 14 i.e., Princi pal &
teachers of the respondent-college are violating th e
departmental guidelines which prohibit prescription of any
uniform and for their hostile approach. Strangely, petitioners
have also sought for a Writ of Quo Warranto against
respondent Nos. 15 & 16 for their alleged interfere nce in the
administration of 5 th respondent school and for promoting
political agenda. The petition is apparently ill-dr afted and
pleadings lack cogency and coherence that are requi red for
considering the serious prayers of this kind. We ha ve already
commented upon the Departmental Guidelines as havin g no
force of law. Therefore, the question of the said r espondents
violating the same even remotely does not arise. We have also
recorded a finding that the college can prescribe u niform to
the exclusion of hijab or bhagwa or such other religious
symbols, and therefore, the alleged act of the respondents i n
seeking adherence to the school discipline & dress code
cannot be faltered. Absolutely no case is made out for
granting the prayers or any other reliefs on the ba sis of these
pleadings. The law of Quo Warranto is no longer in a fluid
state in our country; the principles governing issu ance of this
writ having been well defined vide UNIVERSITY OF MY SORE
vs. C.D. GOVINDA RAO 89 . For seeking a Writ of this nature,
one has to demonstrate that the post or office whic h the
person concerned holds is a public post or a public office. In
our considered view, the respondent Nos.15 & 16 do not hold
any such position in the respondent-school. Their p lacement
in the College Betterment (Development) Committee d oes not
fill the public character required as a pre-conditi on for the
issuance of Writ of Quo Warranto .
From the submissions made on behalf of the
Respondent – Pre – University College at Udupi and the
material placed on record, we notice that all was w ell with the
dress code since 2004. We are also impressed that e ven
Muslims participate in the festivals that are celeb rated in the
‘ashta mutt sampradāya ’, (Udupi being the place where eight
Mutts are situated). We are dismayed as to how all of a
sudden that too in the middle of the academic term the issue
of hijab is generated and blown out of proportion by the
powers that be. The way, hijab imbroglio unfolded gives scope
for the argument that some ‘unseen hands’ are at work to In view of the above, we are of the considered opin ion
that no case is made out in W.P. No.2146/2022 for
issuance of a direction for initiating disciplinary
enquiry against respondent Nos. 6 to 14. The praye r for
issuance of Writ of Quo Warranto against respondent
Nos. 15 and 16 is rejected being not maintainable.
engineer social unrest and disharmony. Much is not
necessary to specify. We are not commenting on the ongoing
police investigation lest it should be affected. We have perused
and returned copies of the police papers that were furnished
to us in a sealed cover. We expect a speedy & effec tive
investigation into the matter and culprits being br ought to
book, brooking no delay.
(i) One Dr. Vinod Kulkarni has filed PIL in
W.P.No.3424/2022 seeking a Writ of Mandamus to the
Central Government and State Government inter alia ‘to
permit Female Muslim students to sport Hijab provid ed they
wear the stipulated school uniform also ’ ( sic ). The petition
cases. Petition is unsatisfactorily structured on t he basis of
some print & electronic media reports that are not made part
of the paper book. There is another PIL in GHANSHYAM
RES-PIL) inter alia seeking a Writ of Mandamus for
undertaking an investigation by the Central Bureau of
Investigation (CBI), National Investigating Agency (NIA) as to
the involvement of radical Islamic organizations su ch as
Popular Front of India, Students Islamic Organizati on of
India, Campus Front of India and Jamaat -e-Islami and their
funding by some foreign universities to Islamize In dia. There
are other incoherent prayers. This petitioner oppos es the case
of students who desire to wear hijab . Most of the contentions
taken up in these petitions are broadly treated in the
companion Writ Petitions. We are not inclined to en tertain
these two Writ Petitions filed in PIL jurisdiction, both on the
ground of their maintainability & merits. The secon d petition,
it needs to be stated, seeks to expand the paramete rs of the
essential lis involved in all these cases much beyond the
warranted frame of consideration. In W.P.No.3942/20 22 (GM-
STATE OF KARNATAKA decided on 25.02.2022, we have
already held that when the aggrieved parties are ef fectively
prosecuting their personal causes, others cannot in terfere by
invoking PIL jurisdiction. A battery of eminent law yers are
representing the parties on both the sides. Even ot herwise, no
exceptional case is made out for our indulgence.
In the above circumstances, all these petitions bei ng
devoid of merits, are liable to be and accordingly are
dismissed. In view of dismissal of these Writ Petit ions, all
pending applications pale into insignificance and a re
accordingly, disposed off.
Costs made easy.
In view of the above, we are of the considered opin ion
that both the above Writ Petitions filed as Public
Interest Litigations are liable to be rejected, abs olutely
no case having been made out for indulgence.
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The Karnataka High Court on Tuesday upheld a February 5 government order (GO) which effectively empowers colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus [Smt Resham v. State of Karnataka].
A three-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi held:
- Hijab is not a part of essential religious practices of Islam;
- Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);
- The government has the power to pass the GO; no case is made out for its invalidation.
The hearing before the Bench had lasted 11 days, before the verdict was reserved on February 25. On the very first day of the hearing, the Court had passed an interim order directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in colleges which have a prescribed uniform.
The petitioners - Muslim girl students from various colleges in Karnataka - had approached the High Court after they were denied permission to attend classes on account of wearing hijab. Among the grounds cited in the petition were that the freedom of conscience and the right to religion are both guaranteed by the Constitution, despite which the students were singled out arbitrarily for belonging to the Islamic faith.
Read Day 1 arguments here.
Read Day 2 arguments here.
Read Day 3 arguments here.
Read Day 4 arguments here.
Read Day 5 arguments here.
Read Day 6 arguments here.
Read Day 7 arguments here.
Read Day 8 arguments here.
Read Day 9 arguments here.
Read Day 10 arguments here.
Read Day 11 arguments here.
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Kishor s/o Pandurang Landkar,
aged about 27 yrs., Occ. Agriculture,
R/o. Mozri, Tal. Mangrulpir,
Dist. Washim.
1.State of Maharashtra,
through Police Station Officer,
Police Station Mangrulpir,
Dist. Washim.
2.Ganesh S/o. Shankar Bhagat,
Aged about 26 yrs, Occ. Business,
R/o. Pimpri Kharbi, Mangrulpir,
Dist. Washim.
Mr. S. S. Dhengale, Advocate for applicant.
Mr. N.R. Rode, APP for non-applicant No.1.
Mr. P . S. Wathore, Advocate for non-applicant No.2.
Heard finally by the consent of both learned counsel
appearing for the parties.
2.This is an application in terms of Section 482 of the Code of
Criminal Procedure seeking to quash First Information Report (‘FIR’)
registered with Mangrulpir Police Station, Dist. Washim vide Crime
No. 206/2023 for the offence punishable under Sections 295-A of the
Indian Penal Code, Section 3(1)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (‘SC and ST Act’) and
Section 67-A of the Information Technology Act, 2000.
3.It is informant’s case that on 23.03.2023 around 03.00 p.m.,
he has checked WhatsApp status of the applicant, whereby the applicant
posed a question to be searched on Google. It was added in status that
one would get shocking result on search. In pursuance of that the
informant did Google search on which noted the objectionable material
amounting to outraging the religious feeling of a Class therefore, the
report.
4.It is applicant’s case that neighter he intended nor
deliberately displayed said status to outrage the feeling of a Class.
According to the applicant, WhatApp status can only be seen by the
persons who have saved applicant’s mobile number and therefore, he
has no intention to harm feeling of particular group. Moreover, it is
submitted that neither the provisions of SC and ST Act nor the provision
of Section 67-A of the Information Technology Act would apply.
5.The State has resisted the application by filing reply-affidavit.
It has been stated that the applicant is habitual offender having criminal
antecedents. According to the State, on perusal of statements and
material collected by the Investigating Officer, prima facie case is made
out. The investigation is still in progress. FIR clearly makes out a case
for investigation, hence it is not a case for quashing.
6.We have examined the entire material on record. Noted the
contents of the Police Report as well as the result found by the
informant on making Google search as per WhatApp Status. Apparently,
the WhatApp status instigate others to do Google search and read what
applicant intends. WhatsApp status can be a picture or video of what
you are doing thinking or something you have seen. By status you share
is end-to-end in encrypted text, photo, video and updates that
disappears after 24 hours. The very purpose of WhatApp status is to
convey something to his contacts. It is nothing but a mode of
communication with known persons. One puts up the status in order to
get a reaction and most of them crave for support. Now a days, the
people are checking WhatApp status now and then. One should behave
with sense of responsibility while communicating something to others.
The applicant cannot shed his primacy responsibility by saying about its
limited circulation. There is no justification for the applicant to display
such kind of status. Contents of FIR prima facie, discloses applicant’s
deliberate and malicious intention to insult the feeling of a group.
7.It is settled law that inherent powers under Section 482 of the
Code though wide, have to be exercised sparingly, carefully and with
great caution and only when such exercise is justified by the test
specifically laid down in the section itself. There is no denial that the
applicant has kept the mobile WhatApp status as alleged in the FIR. The
investigation is in embryos stage and therefore, this is not a fit case to
invoke our inherent powers. In view of that, application carries no
merits, hence rejected.
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The Nagpur Bench of Bombay High Court recently rejected a plea to quash a criminal case registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act over an allegedly objectionable WhatsApp status. [Kishor Pandurang Landkar v. State of Maharashtra & Anr.]
The Court also highlighted that people should be responsible while putting up WhatsApp statuses, since it is a form of communication that is checked by others every now and then.
In this case, a division bench of Justices Vinay Joshi and Valmiki Sa Menezes found that there was no justification for the accused, Kishore Landkar, to display the allegedly objectionable WhatsApp status.
The Court rejected Landkar's contention that the WhatsApp status was only meant to be seen by his contacts and not intended to outrage the feelings of any class of persons.
"The very purpose of WhatsApp status is to convey something to his contacts. It is nothing but a mode of communication with known persons. One puts up the status in order to get a reaction and most of them crave for support. Now a days, the people are checking WhatApp status now and then. One should behave with sense of responsibility while communicating something to others. The applicant cannot shed his primacy responsibility by saying about its limited circulation. There is no justification for the applicant to display such kind of status" the Court reasoned, in its 4 page order.
Landkar had allegedly posed a question to be searched on Google on his WhatsApp status uploaded last March and added in the same status that the said search will lead to "shocking results."
The complainant claimed that when he did the Google search, material that would outrage the feelings of a religious class was shown, prompting him to file a first information report (FIR) against Landkar.
Landkar denied having kept the status with any intention to outrage the feelings of any class. He added that the status could only be seen by a select people who had his number, which proved his intention to not outrage the feelings of anyone.
The prosecution opposed the plea to quash the case and pointed out that the investigation was still in progress.
The Court found that the police report had, prima facie, disclosed a deliberate and malicious intent by the accused to insult the feelings of a group of citizens.
The Court further noted that the investigation was still in "embryo stage" and that Landkar had not denied that he had put up the allegedly objectionable WhatsApp status.
In view of this, the Court rejected Landkar's plea.
Advocate SS Dhengale appeared for Landkar. Additional public prosecutor NR Rode was for State. Advocates PS Wathore appeared for the complainant.
|
Dated: 16th May, 202 2
In pursuance of Rule 4 of Order II of the Supreme Court Rules, 2013, Hon'ble
the Chief Justice of India has directed that the Supreme Court w ill be closed for the
annual Summer Vacation from Monday, the 23rd May, 202 2 to Sunday, the 10th July,
2022 (both days inclusive) and will reopen on Monday, the 11th July, 202 2.
Under Rule 6 of Order II of the Supreme Court Rules, 2013, Hon'ble the Chief
Justice of India has nominated the following Division Benches to sit as Vacation
Benches during the Summer Vacation, 2022 :
Division Bench Name of the Hon'ble Judges
1. Hon'ble Dr. Justice D.Y . Chandrachud
And
Hon'ble Ms. Justice Bela M. Trivedi
2. Hon'ble Mr. Justice S. Abdul Nazeer
And
Hon'ble Mr. Justice Pamidig hantam Sri Narasimha
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice Ajay Rastogi
And
Hon'ble Mrs. Justice B.V. Nagarathna
2. Hon'ble Mr. Justice B.R. Gavai
And
Hon'ble Mr. Justice Pamidigh antam Sri Narasimha
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice M.R.Shah
And
Hon'ble Mr. Justice Aniruddha Bose
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice A.S . Bopanna
And
Hon'ble Mr. Justice Vikram Nath
2. Hon'ble Mr. Justice J.K. Maheshwari
And
Hon'ble Ms. Justice Hima Kohli
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice C.T. Ravikumar
And
Hon'ble Mr. Justice Sudhanshu Dhulia
Division Bench Name of the Hon'ble Judges
1. Hon'ble Mr. Justice Surya Kant
And
Hon'ble Mr. Justice J. B. Pardiwala
2. Hon'ble Mr. Justice Abhay S. Oka
And
Hon'ble Mr. Justice M.M. Sundresh
Division Bench Name of the Hon'ble Judges
1. Hon'ble Ms. Justice Indira Banerjee
And
Hon'ble Mr. Ju stice J. K. Maheshwari
2. Hon'ble Mr. Justice Dinesh Maheshwari
And
Hon'ble Mr. Justice Krishna Murari
During Summer Vacation the Registry will remain open from 10.00 A.M. to 5.00 P.M.
for all the Officers and staff members of the Registry except Group -C (non -clerical) staff in
whose case timings will be from 9.30 A.M. to 5.30 P.M on all the days except Saturdays
(other than the 9th July, 202 2), Sundays and holidays when it shall remain closed.
|
The Supreme Court of India on Monday notified vacation benches that will hear cases during the upcoming summer vacation of the top court from May 23 to July 10.
In exercise of the powers under Rule 6 of Order II of the Supreme Court Rules, the Chief Justice of India NV Ramana has nominated twelve Division Benches which will hear cases during the seven weeks of summer break.
Below are the details:
May 23 to May 29
1. Justices DY Chandrachud and Bela M Trivedi;
2. Justices S Abdul Nazeer and PS Narasimha.
May 30 to June 5
1. Justices Ajay Rastogi and BV Nagarathna;
2. Justices BR Gavai and PS Narasimha.
June 6 to June 12
1. Justice MR Shah and Aniruddha Bose.
June 13 to June 19
1. Justices AS Bopanna and Vikram Nath;
2. Justices JK Maheshwari and Hima Kohli.
June 20 to June 26
1. Justices CT Ravikumar and Sudhanshu Dhulia.
June 27 to July 3
1. Justices Surya Kant and JB Pardiwala,
2. Justices AS Oka and MM Sundresh.
July 4, 2022 TO July 10, 2022
1. Justices Indira Banerjee and JK Maheshwari;
2. Justices Dinesh Maheswari and Krishna Murari.
During the vacation, the Registry will remain open from 10.00 AM to 5.00 PM for all its officers and staff except the non-clerical Group-C members, for whom the timings will be 9.30 AM to 5.30 PM on all days except Saturdays.
|
ivil Appeal No. 917 of 1989 etc.
From the Judgment and Order dated 15.12.1988 of the Allahabad High Court in C.M.W.P. No. 10059 of 1987.
Yogeshwar Prasad, Satish Chandra, Mrs. section Dixit and Mukul Mudgal for the Appellants.
453 A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This is the third time the matter is coming before this Court and we hope that this is the last of a series of litigations between the parties.
We have been helpfully provided with a chronology of the events leading up to this appeal.
It is important that the chronology is made clear.
It is as follows: At Allahabad, there is a private college called "Kulb haskar Ashram Agriculture Intermediate College".
It is run by the "Kayastha Pathshala" which is a society registered under the Societies Registration Act.
Rajendra Prasad, the common respondent in the appeals, was a Chemistry lecturer in that College.
He was appointed on 15 July 1962 in the scale of Rs. 175 10 2 15.
On 20 June 1963, the management wrote to him stating that his services would not be required after 15 July ' 1963.
It was indeed a termination letter.
The respondent moved the Civil Court with suit No. 422/1963 for permanent injunction restraining the management from inter fering with his teaching work.
The management resisted the suit inter alia, contending that the respondent was appoint ed only for one year.
He was removed after the period of probation since his work was found to be unsatisfactory.
It was also contended that no injunction could be granted for enforcement of the contract of personal service and the suit was not maintainable.
On 20 May 1964, the Trial Court dis missed the suit as not maintainable.
It was also held that the suit had become infructuous since the management had withdrawn the impugned communication.
It seems that the management had withdrawn its earlier communication only to make another order.
On 28 August 1964, the respondent was placed under suspension and he again approached the Civil Court for relief.
He instituted suit No. 198 of 1964 in the Munsif Court seeking a declaration that the order of suspension was illegal.
The trial court dismissed the suit, but the appeal therefrom, F.A. No. 583/1965, was allowed by the First Additional Civil Judge, Allahabad decreeing the suit as prayed for.
That decision was affirmed by the High Court in Second Appeal No. 1111 of 1966.
The High Court rendered the judgment on 9 April 1968.
Before the disposal of the appeal by the High Court, the manage 454 ment made a fresh order suspending the respondent pending enquiry on certain allegations That order was issued on 30 December 1965/7 January 1966.
This order was also the sub ject matter of a suit.
The respondent filed Civil Suit No. 48 of 1966 in the Munsif Court at Allahabad challenging the competency of the managing committee to take action against him.
He also contended that the prior approval of District Inspector of Schools (DIOS) was not taken for placing him under suspension The Munsif Court accepted the suit and declared that the suspension order was illegal and void.
But the management successfully took up the matter of Civil Appeal No. 117 of 1969 before the Additional Civil Judge.
The appeal was allowed reversing the trial court decree and upholding the respondent 's suspension.
The respondent pre ferred second appeal to the High Court and it was numbered as S.A. No. 2038 of 1970.
We may stop here for a moment and refer to some other events.
During the pendency of the said second appeal in the High Court, the U.P. Secondary Education Laws (Amendment) Act, 1976, was brought into force with effect from 18 August 1976.
The provisions thereunder required the management of the college to take prior approval of DIDS for taking any action against teaching staff.
The respondent took advantage of those provisions and made an application for amendment of his plaint to incorporate additional paragraphs 13 A and 14(g).
In the additional paragraphs, he challenged the validity of the suspension order since management did not take prior permission of the DIOS.
It was alleged that the suspension order became invalid and inoperative on the expiry of 60 days from the date of service.
The State of Uttar Pradesh was not a party to the original suit.
For the first time, on 31 October 1980 the respondent made an application for impleading the State of U.P. and DIOS as supplemental respondents to the appeal.
Their impleading was perhaps necessitated in view of the liability of the State Government to pay salaries to teach ers under the U.P. High School and Intermediate College (Payment of Salaries of Teachers and Other employees) Act, 1971.
Section 10(1) of the Act provides that the State Government shall be liable to payment of salaries of teach ers and employees of every institution due in respect of any period after March 31, 1971.
The High Court did not consider it necessary to allow the said amendment of the plaint.
But the respondent suc ceeded in this Court.
By order dated 20 April 1980 the Court allowed his appeal and 455 directed the High Court to allow the amendment.
The second appeal No. 2038 of 1970 thus fell for consideration in the light of fresh points raised in the amplified plaint.
Next, as to proximity, there is one other related liti gation between the same parties.
It is now necessary to refer to it.
The respondent filed a suit for recovery of arrears of salary past, pendente lite and future.
It was claimed for the period between 21 February 1964 and 20 February 1967.
That suit was filed in 1968 and registered as Civil suit No. 53 of 1968.
On 31 July 1969, the trial court decreed the suit for Rs.7812.92 being the arrears of salary for the period of three years.
The management of the college appealed to the District Court in Civil Appeal No. 268 of 1969.
The respondent filed a cross objection to the extent of the relief denied to him.
The second appeal No. 2038 of 1970 was then pending in the High Court.
It seems that the parties moved the High Court for withdrawal of C.A. No. 268 of 1969 from the District Court for being disposed of along with the second appeal No. 2038 of 1970.
That request was allowed and the said appeal was withdrawn.
It was renumbered by the High Court as First Appeal No. 450 of 1982.
The High Court disposed of both the said appeals by common judgment dated 22 October 1982.
The second appeal No. 2038 of 1970 was dismissed confirming the finding of the Additional Civil Judge as to the validity of the suspension order.
The first appeal No. 450 of 1982 was allowed revers ing the decree of the trial court and dismissing the re spondent 's suit for arrears of salary.
His claim for pen dente lite salary also vanished along with that.
The respondent stopped into this Court for the second time.
Being aggrieved by the decision of the High Court, he appealed to this Court in C.A. No. 5891 of 1983.
The appeal was allowed by a brief order dated 25 September 1986 which has since been reported in AIR 1987 SC 1644.
For immediate reference we may set out the same hereunder: "The High Court in the judgment recorded the following findings: "The result is, as noticed above, that al though it cannot be said that the order dated 30 December 1965/7 January 1966 suspending the plaintiff from service of the defendant col lege was illegal or null and void inoperative against the 456 plaintiff from its inception, it did cease to be operative with effect from 17 October 1975 on the expiry of 60 days from the commencement of the U.P. Secondary Education Laws (Amend ment) Act, 1975.
Having recorded this finding, the High Court refused to exercise its discretion to grant a declaration that the order of suspension ceased to be operative with effect from 17 October 1975.
We think that the High Court was wrong in refusing to grant the declaration.
We, therefore, declare that the order of suspension ceased to be operative with effect from 17 October 1975.
The appeal against the judgment of the High Court in second appeal No. 2038 of 1970 is disposed of accordingly.
In the appeal against the judgment of the High Court in First Appeal No. 450 of 1982 we do not see how the appellant can be denied his salary for the period between 20 February 1964 to 15 January 1966, the date on which the effective order of suspension was communicated to him.
Instead of sending the case back to the trial court for determining the amount, we think that a decree may straight away be passed for a sum of Rs. 10,000 which will include salary for the period, interest up to date and costs." With due apologies for this lengthy introduction, we then come to the proceeding out of which the present appeals arise.
On 18 May 1986 the respondent moved the High Court under Article 226 of the Constitution seeking a writ of Mandamus against the State of U.P. and management of the college for his reinstatement in service with payment of entire arrears of salary.
He rested his case on the afore said decision.
This High Court accepted the writ petition and gave him all the reliefs asked for.
As to the validity of suspension order, the High Court remarked: "The order of suspension being illegal was correctly set aside by the Supreme Court after the enforcement of U.P. Secondary Education Laws (Amendment) Act, 1975 as none of the conditions mentioned in sub section (5) of Section 16 G of the Act were fulfilled as no charges were framed against the petitioner, nor any charge sheet was served on him . . .
The petitioner, there fore, 457 could not have been suspended and the order of suspension, in our view, was void ab initio.
Under law there was no provision to keep the petitioner under suspension for more than 21 years without enquiry being held and without any charge sheet being submitted.
The peti tioner has a legal right to continue in serv ice and we direct him to be reinstated forth with.
" As regards the arrears of salary, the High Court observed: "Once the order of suspension ceased to be operative and was ab initio void from its very inception, the petitioner shall be deemed to be in continuous service.
That application of the petitioner was sent to State of U.P. through the Education Secretary and also the District Inspector of Schools.
The District Inspector of Schools has already sent a letter dated 7.1. 1987 (Annx. 28) to the Manager, Kulbhaskar Ashram Agriculture Intermediate College, Allahabad about the payment of ar rears of salary to the petitioner.
But the Manager and the State of U.P. do not seem to be interested in making payment of arrears of salary to the petitioner.
We are accordingly of the opinion that the petitioner has made out a case for issuance of a writ of mandamus directing the State of U.P. and the District Inspector of Schools, Allahabad to make pay ment of arrears of salary to the petitioner in view of Section 10 and prior to that date the arrears of pay and other emoluments would be payable by the institution.
In case the insti tution fails to make payment the procedure under Section 11 of the Payment of Salaries Act may be adopted.
" Finally, the High Court issued the following directions: "In view of the premises aforesaid, the present petition succeeds and is allowed Respondents Nos. 1 and 2 the State of Uttar Pradesh and the District Inspector of Schools, Allahabad are directed to make payment of salary to the petitioner since 16.1.1966 till date, forthwith including D.A. and other emoluments admissible under law, of course, after deducting the amount, if any, paid to him as subsistence allowance during the period of his suspension.
We further add that the petitioner shall be reinstated forthwith and shall be paid his salary regularly in accord ance 458 with the provisions of Section 3 of the Pay ment of Salaries Act, 1971.
" Challenging the judgment of the High Court, the management as well as State Government by obtaining leave have now appealed.
This how the matter is coming before the Court for the third time.
The first question for consideration is whether the High Court was justified in directing reinstatement of the re spondent? There is a long established rule of Courts that service contract cannot be specifically enforced.
There are, however, three exceptions which have been adverted to in very many cases.
In Vaish Degree College vs Lakshmi Narain, at 71 after examining a large vs number of authorities like: S.R. Tiwari vs District Board, Agra and Anr., ; , 59: The Executive Committee of U.P. Warehousing Corpora,on Ltd vs Chandra Kiran Tyagi, , 265: Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; the Court rounded off the conclusion: "On consideration of the authorities mentioned above, it is, therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer.
This rule, however, is subject to three well recognised exceptions: (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the Statute.
This decision has been affirmed in Smt.
J. Tiwari vs Smt.
Jawala Devi Vidya Mandir and Ors., and reiterated in Deepak Kumar Biswas vs The Director of Public Instructions, and adverted to in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust and Ors.
vs V.R. Rudani and Ors., ; at 697.
These authorities say that a college owned by a private body, though recognised by or affiliated to a Statu tory University will not become a statutory body 459 since not enacted by or under a statute.
And the dismissed employee of such institution cannot get specific performance of service contract: The submission for the respondent, however, was that the present case stands on a different footing since there was no repudiation of the respondent 's contract of service.
The contract of service, according to him is still subsisting and it was, therefore, not inappropriate for the High Court to put the respondent back into service.
But counsel for the appellants added that the respondent himself has abandoned his post after he was suspended and there was therefore no need to terminate his service.
The declaration made by the respondent when he enrolled himself as an advocate in 1968 stating that he was not employed nor engaged in any business or profession was relied upon to support the submission.
It is said that the law required that the respondent at the time enrolment must have given particulars of his employment or of his business or trade it he had one.
He must have also produced a character certificate from the employer and proved as to how the employment came to an end.
Since he did not furnish any such particulars counsel urged that it was a clear case of abandonment of service and no specific order of termination was necessary.
Much could be said on both the contentions, but we refrain from expressing any opinion since this is not a proper case for reinstatement.
Indeed, the reinstatement would be an unwise move from any point of view.
In educa tional institutions, the Court cannot focus only on the individual forgetting all else.
The Court must have regard to varying circumstances in the academic atmosphere and radically changed position of the individual sought to be reinstated.
The Court must have regard to interests of students as well as the institution.
It is not unimportant to note that the respondent was out of teaching for over 25 years.
He seems to have taught Chemistry for one or two years in 1962 and 1963.
Thereafter, he did not teach Chemis try at any time in any College.
In 1964 65 he diverted his attention and sought admission in LL.B. Degree Course.
In 1968, he enrolled himself as an advocate and since then concentrated only in law courts.
In this gap of twenty five years he must have clearly lost touch with Chemistry as well as art of teaching.
It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge.
Reinstatement of such a person seems to be unjustified and uncalled for.
The next question for consideration is whether the respondent is entitled to damages or salary as ordered by the High Court and if so what should be the measure for determination? Counsel for the appel 460 lants urged that the respondent 's claim for salary was the subject matter of previous litigation which finally ended with a decree by this Court in C.A. No. 5891 of 1983 and it was a final settlement of all his claims.
It was also argued that in any event, the respondent is not entitled to damages or salary for more than three years.
Our attention was drawn to the decision in Tilok chand Motichand & Ors.
vs B. Munshi & Anr., In reply and in support of the High Court order, counsel for the respondent referred to us a number of decisions and in particular (i) Malmoona Khatun and Anr.
vs State of U.P. & Anr.
; , ; (ii) Managing Director, Uttar Pradesh Warehousing Corporation and Anr.
vs Vinay Narain Vajpayee, ; and (iii) Maharaja Sayajirao University of Baroda and Ors.
vs R.S. Thakur, AIR 1969 SC 2112.
We have read cases carefully, but it is not necessary to refer to them in detail when we have guidance from binding precedents in similar cases.
There is a triology of cases on the question, See: (i) The Vaish Degree College, (ii) Smt.
J. Tiwari and (iii) Deepak Kumar Biswas to which brief reference was made earlier.
in the first of the three cases, the institution concerned was a degree college managed by a registered co operative society.
The dismissed Principal of the College filed a suit for reinstatement, inter alia, contending that the management of the college though a society registered under the cooperative societies Act was a statutory body since affiliated to the Agra University (and subsequently to Meerut University).
It was contended that the Principal 's termination was in violation of statutory obligation of the society, and therefore, his reinstatement should be ordered.
But that contention was not accepted and the Court said (at 74 75): "That the plaintiff/respondent served the institution for a short period of two years only, i.e. from 1964 to 1966 and thereafter he was bereft of all his powers and did not work in the college for a single day.
(2) That if the declaration sought for or the injunction is granted to the plaintiff/re spondent the result would be that he would have to be paid his full salary with interest and provident fund for full nine years, i.e. from 1966 to 1975, even though he had not worked in the institution for a single day during this period.
461 (3) That consequent upon the declaration the appellant would have to pay a very huge amount running into a lakh of rupees or perhaps more as a result of which the appellant and the institution would perhaps be completely wiped out and this would undoubtedly work serious injustice to the appellant because it is likely to destroy its very existence.
(4) It is true that the plaintiff/re spondent is not at fault,but the stark reali ties, hard facts and extreme hardship of the case speak of themselves.
And said: "It appears but by virtue of the interlocutory orders passed by this Court, the appellant has already deposited Rs.9,000 before the High Court which was to be withdrawn by the re spondent after giving security, and a further sum of Rs.9,100 being the salary of 13 months has also been deposited by the appellant before the trial court under the orders of this Court.
It is also stated by Counsel for the appellant that the appellant has deposited Rs.3,000 more.
We feel that in the circum stances the respondent may be permitted to keep these amounts with him and he will not be required to refund the same to the appellant.
The amount of deposit in the High Court, if not withdrawn by the respondent may now be withdrawn by him without any security and if he has already withdrawn the amount he will be discharged from the security.
This will vindi cate the stand of the respondent and compen sate him for any hardship that may have been caused to him by the order terminating his services, and will also put a stamp of finali ty to any further litigation between the parties.
" The case of Smt.
J. Tiwari seems to be closer to the case before us.
There the appellant claimed arrears of salary for six years covered by the period of suspension from 1952 till 1958.
In January 1952 she filed a suit in the court of Munsif challenging her suspension which was later withdrawn by the High Court of Allahabad for trial by it self.
The High Court decreed the suit holding that the order of suspension was not made by a properly constituted Commit tee.
On 24 May 1958, her services were terminated by the management of the college with retrospective effect from the date of suspension.
On 28 August 1958, she filed a suit for a declaration that she continued in the service and 462 for setting aside the termination order.
She claimed a decree in a sum of Rs.37,657.40 by way of salary.
The trial court upheld her contention that the termination of service was bad and ineffective.
The trial Court, however, passed a decree in her favour in the sum of Rs. 15,250 as arrears of pay for a period of 3 years from August 1, 1955 to July 31, 1958.
Both the parties filed appeals before the High Court.
The Division Bench of the High Court partly allowed the appeal of the management and dismissed the appeal of Smt.
J. Tiwari.
The High Court took the view that though the dis missal was wrongful, she was entitled to a decree of damages only and not to a declaration that she still continued to be in the service of the management.
The High Court upheld the money decree passed by the trial court, but did so on the ground that the amount awarded by the trial court by way of arrears of salary could justifiably be granted to her by way of damages.
This Court while affirming the decree of the High Court has, however, said as follows (at p. 162): "The High Court has treated the claim for three years ' arrears of salary as being pay able to the appellant on account of damages.
But that is not a right approach to the prob lem.
The appellant is entitled to three years ' arrears of salary for the period of suspension ,since the order of suspension was without jurisdiction and until May 1958 no order of termination of her service was passed by the Society.
In addition to the arrears of three years ' salary, the appellant would be entitled to three months ' salary as provided for by clause 10 of the agreement.
We would like to add that even if the appel lant could be held to be entitled to a decla ration that she continued to be in the service of respondent 1, this is not a proper case in which such a declaration should be granted to her.
The appellant 's claim according to her counsel would amount to over Rs.2 lakhs.
The appellant has admitted in her evidence that she did not make any attempt to mitigate the damages by trying to obtain an alternative employment during the last 20 years.
The difficulty of obtaining employment is an argument which cannot be permitted to a person who, on her own showing, has made no effort to obtain any employment." Deepak Kumar Biswas case appears to be the closest to the present case.
There the appellant was a Lecturer in English in Lady Keane 463 Girls College, Shillong.
The college was governed by the statutes of the Meghalaya University and the Education Code framed by the State Government.
The college was also receiv ing financial aid from the Government.
His appointment was terminated for want of approval by the Director of Public Instruction.
The trial court decreed the suit for declara tion and permanent injunction.
The appellate Court set aside that decree and granted monetary compensation of one year salary as damages although his removal was found to be wrongful.
This Court sustained the removal but enhanced the compensation to three years ' salary following the pattern adopted in the aforesaid two cases.
What do we have here? In 1962 the respondent was ap pointed as a Chemistry lecturer in the scale of Rs. 175 10 215.
His performance was found to be unsatisfactory.
In August 1964, he was placed under suspension.
In January 1966, he was again suspended.
Thereafter, he brought suit after suit, appeal after appeal from the lowest court to the Apex Court.
He continued the litigation for about 25 years.
On 17 March 1976 the management had appointed Dr. Gopendra Kumar as Chemistry Lecturer and his appointment was approved by the DIOS.
On 28 October 1982 the management passed a resolution confirming his appointment w.e.f. 27 September 1975.
That was also approved by the DIOS.
Dr. Gopendra Kumar was not a party to any one of the earlier litigations nor to the present appeal.
The respondent knew very well that his service contract was with the private management.
In 1964 itself learned Munsif while dismissing the first suit No. 422/1963 has held that his contract of employment could not specifically be enforced.
He was then obliged to place his services on the market to mitigate the damages.
But he did nothing of the kind.
In 1968 he joined legal profession and he is still not out of it.
He has not disclosed his professional income.
In fairness he ought to have disclosed his income to the Court since it is in his personal knowledge.
Instead, he seems to have urged before the High Court that the professional income is not relevant for consideration.
The High Court while accepting the submission went a step further and observed: "that joining the legal fraternity can never be said to be employment and could not disentitle the respond ent to claim his arrears of salary.
" Legal profession may not be considered as an employment but the income from profession or avocation if not negligible, can not be ignored while determining damages or back wages for payment.
It must also be taken into consideration.
In S.M. Saiyad vs Baroda Municipal Corporation, Baroda, [1984] (Supp) SCC 378 the Court gave deduction of even a small income of Rs. 150 per month 464 earned by the worker turned advocate while awarding back wages upon reinstatement.
But we cannot accept the contention for the appellants that the sum of Rs. 10,000 decreed in favour of the respond ent in Civil Appeal No. 5891 of 1983 was a final settlement of all his claims.
There is no indication in the order of this Court to that effect.
In the light of all these facts and circumstances and the authorities to which we have called attention, it seems to us that it would be sufficient if the respondent is given salary for three years on account of damages.
In the result, the appeals are allowed and in reversal of the judgment of the High Court, we direct that the re spondent be paid three years salary.
The payment shall be treated as a final settlement of all his claims.
The payment shall be made by the management and not by Government.
In a case like this, the Government cannot be saddled with the liability to make payment.
There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent.
So far as statutory liability to pay salary to teachers is concerned, the Government has been paying salary to Dr. Gopendra who has since been appointed as Lecturer in the place of respondent.
Therefore, the Management alone should pay the amount ordered.
The payment shall be made within four weeks.
In the circumstances of the case, we make no order as to costs.
Y. Lal Appeals al lowed.
|
The respondent was appointed on 15.7.1962 as a Chemistry lecturer in Kulohaskar Ashram Agriculture Intermediate College run by the appellant society.
By a communication dated 20.6.1963, he was informed by the management that his services were no longer required after 15.7.1963.
He filed a civil suit for permanent injunction restraining the manage ment from proceeding with the proposed action.
But the management having withdrawn the letter, he withdrew the suit as having become infructuous.
However on 28.8.1964, the respondent was placed under suspension whereupon he again filed a civil suit for a declaration that the order of suspension was illegal.
The trial court dismissed the suit but the first appellate court allowed the appeal and decreed the suit as prayed for.
On appeal the High Court affirmed that decision, on 9.4.69.
During the pendency of the appeal before the High Court, the management appellant had passed a fresh order suspending the respondent pending enquiry on certain allegations.
The respondent again filed a civil suit to challenge the competency of the managing committee to take action against him.
In the said suit he also pleaded that the prior approval of the District Inspector of Schools having not been taken, the order placing him under suspen sion was bad.
The Munsiff Court accepted the suit and de clared the suspension order as illegal and void.
The first appellate court reversed that order and the respondent preferred second appeal to the High Court.
During the pendency of the respondent 's second appeal, U.P. Secondary Educational Laws (Amendment) Act, 1976 came into force from 18.8.76 which inter alia provided that prior approval of the District Inspector of School was necessary before any action could be taken against teaching staff of a college.
The respondent sought to amend the pleadings of second appeal in consonance with the Act but 451 the High Court declined but he succeeded on this question before this Court.
Contemporaneously with the litigation set out above, the respondent filed a suit for recovery of arrears of salary, past pendente lite and future.
It was claimed for the period between 21.2.1964 and 20.2.1967.
The trial court decreed the suit for Rs.7812/92 p. being the arrears of salary for the period of three years.
The management appealed to the Dis trict Court and the respondent filed cross objection.
As stated earlier, the second appeal preferred by the respond ent was pending in the High Court.
Hence the parties moved the High Court for withdrawing the appeal pending before the District Court for being disposed of alongwith the second appeal No. 2038/1970, which request was accepted and the said appeal came to be registered as First Appeal No. 460 of 1982.
The High Court disposed of both the appeals by a common judgment whereby the second appeal was dismissed and the finding as to the validity of the suspension order was confirmed.
However the First Appeal was allowed and the decree of the trial court was reversed and a suit for ar rears of salary filed by the respondent was dismissed.
The respondent appealed to this Court and his appeal was allowed and his claim to salary between 20.2.1964 to 15.1.1966 was settled at Rs. 10,000 and the court further held that the order of suspension ceased to be operative w.e.f. 17.10.1975.
Thereafter the respondent on May 18, 1986 moved the High Court under Article 227 of the Constitution for a writ of Mandamus against the State of U.P. and the management of the College for his reinstatement in service and for payment of entire arrears of salary.
The High Court accepted the writ petition and granted him the relief asked for.
Hence these appeals by the Management of the school and the State of U.P.
Allowing the appeals, this Court, HELD: Indeed, the reinstatement would be an unwise move from any point of view.
In educational institutions, the Court cannot focus only on the individual.
The Court must have regard to varying circumstances in the academic atmos phere and radically changed position of the individual sought to be reinstated.
The court must have regard to interests of students as well as the institution.
[459E] In the instant case, during the gap of twenty five years, the respondent must have clearly lost touch with Chemistry as well as the 452 art of teaching.
It must have been also deeply buried and disintegrated under the new acquisition of his legal knowl edge.
Reinstatement of such a person seems to be unjustified and uncalled for.
[459G] Legal profession may not be considered as an employment but the income from profession or avocation if not negligi ble, cannot be ignored while determining damages or back wages for payment.
[463G] In a case like this.
the Government cannot be saddled with the liability to make payment.
There is no relationship of master and servant between Government and respondent and such relationship existed only between the management and respondent.
So far as statutory liability to pay salary to teacher is concerned, the Government has been paying salary to Dr. Gopendra Kumar who has since been appointed as Lec turer in the place of the respondent.
Therefore, the manage ment alone should pay the amount ordered.
[464D E] Vaish Degree College vs Lakshmi Narain, ; G.R. Tiwari vs District Board, Agra and Anr., ; , 59; The Executive Committee of U.P. Warehousing Corpo ration Ltd. vs Chandra Kiran Tyagi, ; , 265; Bank of Baroda vs Jewan Lal Mehrotra, and Sirsi Municipality vs Kom Francis, ; ; Smt.
J. Tiwari vs Smt.
Jawala Devi Vidya Mandir & Ors., ; ; Deepak Kumar Biswas vs The Director of Public Instruc tions, ; Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvaran Jayanti Mahotsav Samarak Trust & Ors.
V.R. Rudani & Ors., ; at 697; TrilokChand Modichand & Ors.
vs H.B. Munshi & Anr., ; Maimoona Khatun & Anr.
vs State of U. P. & Anr.
, ; ; Managing Director U.P. Warehousing Corporation & Anr.
vs Vinay Narain Vajpayee, ; ; Maharaja Sayajirao University of Baroda & Ors.
vs R.S. Thakur, AIR 1968 SC 2112 and S.M. Saiyad vs Baroda Municipal Corpora tion, [1984] Supp.
SCC 378, referred to.
|
Versus
1.These petitions are filed challenging the
Constitutionality of Section 124 A of the Indian Penal Code 1860
(hereinafter IPC ) relating to the offence of Sedition.
2.Having heard learned Senior counsel appearing for the
parties and perusing the documents available on record, we may
observe that this matter was listed for the first time on
15.07.2021. Thereinafter, this Court, after hearing the
parties, issued notice on 27.04.2022. When this matter was next
taken up, learned Solicitor General of India prayed for
additional time of 2 to 3 days for filing of counter-affidavit.
Accordingly, time was granted till the end of the week for
filing counter-affidavit. Again, the matter was listed on
05.05.2022, wherein the Solicitor General again sought
additional time to file a counter affidavit. On that date, this
Court while granting the Solicitor General time to file counter
affidavit, directed the parties to file their written
submissions on the preliminary issue of the necessity of
reference to a larger bench prior to the next date of hearing.
3.Accordingly, on 07.05.2022, written submissions were
filed on behalf of Solicitor General of India.
4.On 09.05.2022, an affidavit was filed on behalf of Union
of India, averring as under:
“3. I state and submit that so far as Section 124A
is concerned, there are divergence of views
expressed in public domain by various jurists,
academicians, intellectuals and citizens in general.
While they agree about the need for statutory
provisions to deal with serious offences of
divisive nature affecting the very sovereignty and
integrity of the Country, acts leading to
destabilizing the government established by law by
means not authorised by law or prohibited by law.
Requiring a penal Provision for such purposes is
generally accepted by everyone in legitimate
State interest. However, concerns are raised about
its application and abuse for the purposes not
intended by law.
4. The Hon’ble Prime Minister of India has been
cognizant of various views expressed on the subject
and has also periodically, in various forums,
expressed his clear and unequivocal views in favour
of protection of civil liberties, respect for human
rights and giving meaning to the constitutionally
cherished freedoms by the people of the country. He
has repeatedly said that one of India’s strengths is
the diverse thought streams that beautifully
flourish in our country.
5. The Hon’ble PM believes that at a time when our
nation is marking ‘Azadi Ka Amrit Mahotsav’ (75
years since independence) we need to, as a nation,
work even harder to shed colonial baggage that has
passed its utility, which includes outdated colonial
laws and practices. In that spirit, the Government
of India has scrapped over 1500 outdated law since
2014-15. It has also ended over 25,000 compliance
burdens which were causing unnecessary hurdles to
people of our country. Various offences which were
causing mindless hindrances to people have been de-
criminalised. This is an ongoing process. These were
laws and compliances which reeked of a colonial mind
set and thus have no place in today’s India.
6. The Government of India, being fully cognizant of
various view being expressed on the subject of
sedition and also having considered the concern of
civil liberties and human rights, while committed to
maintain and protect the sovereignty and integrity
of this great nation, has decided to re-examine and
re-consider the provision of section 124A of the
Indian Penal Code which can only be done before the
Competent Forum.
7. In view of the aforesaid it is this respectfully
submitted that this Hon’ble Court may not invest
time in examining the validity of Section 124A once
again and be pleased to await the exercise of
reconsideration to be undertaken by the Government
of India before an appropriate forum where such
reconsideration is constitutionally.”
5.In view of the above, it is clear that the Union of India
agrees with the prima facie opinion expressed by this Court
that the rigors of Section 124A of IPC is not in tune with the
current social milieu, and was intended for a time when this
country was under the colonial regime. In light of the same,
the Union of India may reconsider the aforesaid provision of
law.
6.This Court is cognizant of security interests and
integrity of the State on one hand, and the civil liberties of
citizens on the other. There is a requirement to balance both
sets of considerations, which is a difficult exercise. The case
of the petitioners is that this provision of law dates back to
1898, and pre-dates the Constitution itself, and is being
misused. The Attorney General had also, on an earlier date of
hearing, given some instances of glaring misuse of this
provision, like in the case of recital of the Hanuman Chalisa.
7.Therefore, we expect that, till the re-examination of the
provision is complete, it will be appropriate not to continue
the usage of the aforesaid provision of law by the Governments.
8.In view of the clear stand taken by the Union of India ,
we deem it appropriate to pass the following order in the
interest of justice:
a.The interim stay granted in W.P.(Crl.)No.217/2021 along
with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021
shall continue to operate till further orders.
b.We hope and expect that the State and Central Governments
will restrain from registering any FIR, continuing any
investigation or taking any coercive measures by invoking
Section 124A of IPC while the aforesaid provision of law
is under consideration.
c.If any fresh case is registered under Section 124A of IPC,
the affected parties are at liberty to approach the
concerned Courts for appropriate relief. The Courts are
requested to examine the reliefs sought, taking into
account the present order passed as well as the clear
stand taken by the Union of India.
d.All pending trials, appeals and proceedings with respect
to the charge framed under Section 124A of IPC be kept in
abeyance. Adjudication with respect to other Sections, if
any, could proceed if the Courts are of the opinion that
no prejudice would be caused to the accused.
e.In addition to the above, the Union of India shall be at
liberty to issue the Directive as proposed and placed
before us, to the State Governments/Union Territories to
prevent any misuse of Section 124A of IPC.
f.The above directions may continue till further orders are
passed.
9.List these petitions in the third week of July, 2022.
Writ Petition (Civil) No.682/2021
Writ Petition(Civil) No.1181/2021
Writ Petition(Civil) No.1381/2021
Writ Petition (Criminal) No.307/2021
Writ Petition(Criminal) No.498/2021
Writ Petition(Criminal) No.106/2021
Date : 11-05-2022 These petitions were called on for hearing today.
For Petitioner(s) Mr. Shyam Divan, Sr. Adv.
Mr. Prashant Kumar, Adv.
Mr. Anubhav Kumar, Adv.
Mr. Amarjit Singh Bedi, AOR
Ms. Riya Seth, Adv.
Mr. Varun Chandiok, Adv.
Dr. Rajiv Dhavan, Sr.Adv.
Mr. Prashant Bhushan, AOR
Mr. Arun Shourie, In-person
Mr. Rahul Gupta, Adv.
Mr. Alice Raj, Adv.
Mr. Kapil Sibal, Sr. Adv.
Mr. Nizam Pasha, Adv.
Mr. Yuvraj Singh Rathore, Adv.
Mr. Agnish Aditya, Adv.
Ms. Swati Arya, Adv.
Ms. Aparajita Jamwal, Adv.
Mr. Gopal Sankaranarayanan, Sr. Adv.
Ms. Pooja Dhar, AOR
Mr. Chitranshul Singh, Adv.
Ms. Jhanvi Dubey, Adv.
Mr. Shrutanjaya Bharadwaj, Adv.
Ms. Ishita Chowdhury, Adv.
Ms. Shivani Vij, Adv.
Ms. Tanya Srivastava, Adv.
Ms. Aditi Gupta, Adv.
Mr. Pratul Pratap Singh, Adv.
Mr. Salman Khurshid, Sr. Adv.
Mr. Fuzail Ahmad Ayyubi, AOR
Mr. Tanveer Ahmad Khan, Adv.
Mr. Tauqeer Ahmad Khan, Adv.
Ms. Jyoti Singh, Adv.
Ms. Aadya Mishra, Adv.
Ms. Kanishka Prasad, Adv.
Mr. Ibad Mushtaq, Adv .
Ms. Aparna Bhat, AOR
Ms. Karishma Maria, Adv.
Mr. Satwik Parikh, Adv.
Ms. Vrinda Grover, Adv.
Mr. Soutik Banerjee, Adv.
Ms. Mannat Tipnis, Adv.
Mr. Aakarsh Kamra, AOR
Mr. Chandar Uday Singh, Sr. Adv.
Mr. Rahul Narayan, AOR
Ms. Vrinda Bhandari, Adv.
Mr. Abhinav Sekhri, Adv.
Mr. Apar Gupta, Adv.
Mr. Tanmay Singh, Adv.
Mr. Krishnesh Bapat, Adv.
Ms. Anandita Mishra, Adv.
Ms. Natasha Maheshwari, Adv.
Ms. Amala Dasarath, Adv.
Mr. Siddharth Seem, Adv.
Mr. Satya Mitra, AOR
For Respondent(s) Mr. Tushar Mehta, SG
Mr. N. Venkatraman, ASG
Mr. Suryaprakash V.Raju, ASG
Mr. Rajat Nair, Adv.
Mr. Kanu Agrawal, Adv.
Mr. Shantnu Sharma, Adv.
Ms. Deepaabali Datta, Adv.
Mr. Madhav Sinhal, Adv.
Ms. Suhasini Sen, Adv.
Mr. Balaji Srinivasan, Adv.
Mr. Siddhant Kohli, Adv.
Mr. K. Parameshwar, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Kaleeswaram Raj, Adv.
Mr. Mohammed Sadique T.A., AOR
Mr. Alim Anvar, Adv.
Mr. Thulasi K. Raj, Adv.
Mr. Nishe Rajen Shonker, AOR
Mr. P.V. Surendra Nath, Sr. Adv.
Mr. Subhash Chandran K.R., Adv.
Ms. Yogamaya M.G., Adv.
Ms. Resmitha R. Chandran, AOR
Mr. Arvind Datar, Sr. Adv.
Ms. Nisha Bhambhani, Adv.
Mr. Rahul Bhatia, AOR
Mr. Rahul Unnikrishnan, Adv.
Mr. Harshvardhan Kotla Adv.
Ms. Vishakha Gupta, Adv.
Mr. Rohan J. Alva, Adv.
Mr. Namit Saxena, AOR
Mr. Sharath Chandran, Adv.
Mr. Awnish Maithani, Adv.
Mr. Sudhanshu Chandra, Adv.
UPON hearing the counsel the Court made the following
For the reasons stated in the signed order , we deem it
appropriate to pass the following order in the interest of justice:
a.The interim stay granted in W.P.
(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021
vide order dated 31.05.2021 shall continue to operate
till further orders.
b.We hope and expect that the State and Central
Governments will restrain from registering any FIR,
continuing any investigation or taking any coercive
measures by invoking Section 124A of IPC while the
aforesaid provision of law is under consideration.
c.If any fresh case is registered under Section
124A of IPC, the affected parties are at liberty to
approach the concerned Courts for appropriate relief.
The Courts are requested to examine the reliefs
sought, taking into account the present order passed
as well as the clear stand taken by the Union of
India.
d.All pending trials, appeals and proceedings
with respect to the charge framed under Section 124A
of IPC be kept in abeyance. Adjudication with respect
to other Sections, if any, could proceed if the
Courts are of the opinion that no prejudice would be
caused to the accused.
e.In addition to the above, the Union of India
shall be at liberty to issue the Directive as
proposed and placed before us, to the State
Governments/Union Territories to prevent any misuse
of Section 124A of IPC.
f.The above directions may continue till further
orders are passed.
List these petitions in the third week of July, 2022.
|
In a landmark development, the Supreme Court of India on Tuesday asked the Central government and States to refrain from registering any cases for the offence of sedition under Section 124A of the Indian Penal Code [SG Vombatkere vs Union of India].
A bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli directed that proceedings under Section 124A be kept in abeyance till the government's exercise of reviewing Section 124A is complete.
The bench also asked governments not to continue investigation or take coercive steps in all pending proceedings under the provision till the government's exercise is complete.
"It is clear that Central government agrees that rigours of Section 124A is not in tune with the current situation and it was intended for the time when country was under colonial law. Thus, the Centre may reconsider it. It will be appropriate not to use this provision of law till further reexamination is over. We hope and expect Central government and States will refrain from registering any FIR, continuing investigation, or taking coercive steps under Section 124A IPC when it is being reconsidered by the Centre," the Court ordered.
Should such cases be registered, the parties are at liberty to approach court and court has to expeditiously dispose of the same, the bench added.
"It would be appropriate to put the provision in abeyance," the order further said.
The Court was hearing a batch of petitions challenging the validity of the law.
The matter will be heard again in the third week of July.
The Central government had earlier submitted an affidavit before the Court stating that it has decided to re-examine and reconsider Section 124A of the Indian Penal Code (IPC) which criminalises the offence of Sedition.
It had, therefore, asked the Court to defer the hearing till the government takes a call.
When the matter was heard on Tuesday, the Court had asked the Central government whether it can issue a direction to the States to keep in abeyance all pending sedition cases till the government's exercise of reviewing Section 124A is complete.
When the case was taken up for hearing on Wednesday, Solicitor General Tushar Mehta told the Court that the Central government will issue direction to the States to scrupulously follow the order passed in Vinod Dua's case.
As per the Vinod Dua judgment, cases under 124A be registered only when concerned Superintendent of Police give reasons in writing for the same and the same will be open to challenge in court, he said.
"Once there is cognisable offence and it is held valid by constitution bench then staying the effect may not be correct course of action. that is why responsible officer must take responsibility. his satisfaction would be subject to judicial review before magistrate," SG Mehta submitted.
He also said that when there is a bail plea under 124A, it may be decided expeditiously on merits.
"Passing any other would be staying a statutory provision which is upheld by constitution bench," Mehta maintained.
Senior Counsel Kapil Sibal, appearing for the petitioners, objected to the same.
"This is wholly unacceptable to us. Entrusting a superintendent of police with responsibility is useless. If Section 124A is held as unconstitutional, then its the end," Sibal said.
Justice Kant, however, made it clear that the Court is currently hearing only on the interim arrangement and not on the merits of the provision.
"Don't argue in the air. We are not hearing on merits. What is struck down? Are we doing it today," he demanded.
Sibal then said that Section 124A has to be stayed in the interim.
"We were confronted with this yesterday and we were only considering an arrangement for the interregnum," Justice Hima Kohli observed.
Senior Advocate Gopal Sankaranarayanan appearing for the petitioners submitted to the Court a set of guidelines to be followed while urging the court to keep the operation of Section 124A in abeyance.
The bench then took time to deliberate the issue before passing its interim order.
Read live updates from the hearing here.
|
criapl988.22+
1) Shaikh Sana Farheen Shahmir,
Age-24 years, Occu:Student,
2) Shahmir Shamshoddin Shaikh,
Age-46 years, Occu:Service,
3) Shaikh Khaja Begum Shaikh Shahmir,
Age-40 years, Occu:Household,
4) Shaikh Saziya Sadaf Shaikh Shahmir,
Age-19 years, Occu:Student,
All R/o-Aziz Colony, Naregaon,
Aurangabad, District-Aurangabad.
(Orig. accused Nos.1 to 4)
1) The State of Maharashtra,
Through Police Station Officer,
Kranti Chowk Police Station,
District-Aurangabad,
2) Deepak Ramdas Sonawane,
Age-26 years, Occu:Nil,
R/o-Flat No.223, Naik Nagar,
Deolai Parisar, Aurangabad,
Taluka and District-Aurangabad.
Mr. V.D. Sapkal, Senior Counsel i/b. Mr. Patel Khizer Advocate
for Appellants.
Mr. S.D. Ghayal, A.P.P. for Respondent No.1 – State.
Mr. S.B. Deshpande Advocate for Respondent No.2.
criapl988.22+
Deepak Ramdas Sonawane,
Age-26 years, Occu:Nil,
R/o-223, Naik Nagar,
Deolai Parisar, Aurangabad.
1) The State of Maharashtra,
Through City Chowk Police Station,
Aurangabad
2) Shaikh Sana Farheen Shahmir,
Age-24 years, Occu:Student,
3) Shahmir Shamshoddin Shaikh,
Age-46 years, Occu:Service,
4) Shaikh Khaja Begum Shaikh Shahmir,
Age-40 years, Occu:Household,
5) Shaikh Saziya Sadaf Shaikh Shahmir,
Age-19 years, Occu:Student,
All R/o-Aziz Colony, Naregaon,
Aurangabad, District-Aurangabad.
Mr. Swapnil B. Joshi Advocate for Appellant.
Mr. S.D. Ghayal, A.P.P. for Respondent No.1 – State.
Mr. V.D. Sapkal, Senior Counsel i/b. Mr. Patel Khizer Advocate
for Respondent Nos.2 to 5.
criapl988.22+
1.Admit.
2.The appellants in Criminal Appeal No.988 of 2022 are the
original accused Nos.1 to 4 in Crime No.299 of 2022 registered
with Kranti Chowk Police Station, District-Aurangabad, which is
lodged at the behest of respondent No.2 – original informant.
The appellants had filed application under Section 438 of the
Code of Criminal Procedure, bearing Anticipatory Bail Application
Nos.2353 of 2022 before the learned Special Judge under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act (for short “Atrocities Act”), Aurangabad. The said application
came to be rejected on 20th December 2022. Hence the
appellants have filed Criminal Appeal No.988 of 2022 under
Section 14-A(2) of the Atrocities Act.
3.In Criminal Appeal No.988 of 2022, heard Mr. V.D. Sapkal,
learned Senior Counsel instructed by Mr. Patel Khizer Advocate
for Appellants, Mr. S.D. Ghayal, learned APP for Respondent No.1
criapl988.22+
– State and Mr. S.B. Deshpande, learned Advocate for
Respondent No.2. In Criminal Appeal No.20 of 2023 heard
learned Advocate Mr. Swapnil B. Joshi for the Appellant and
learned APP as well as learned Senior Counsel appearing for
respective respondents.
4.It has been submitted by learned Senior Counsel Mr.
Sapkal instructed by Mr. Patel Khizer, learned Advocate for
Appellants in Criminal Appeal No.988 of 2022 that the learned
Special Judge wrongly held that taking into consideration the
seriousness, sensitivity, gravity and the offence, crucial stage of
investigation and as there is bar under Section 18 and 18-A of
the Atrocities Act, it will not be proper to release the accused on
pre-arrest bail and thereby refused to grant the anticipatory bail.
The learned Special Judge failed to consider that in the First
information Report (for short “FIR”) itself respondent No.2 has
come with the case that there was love affair between him and
accused No.1 and there was exchange of the amounts in lakhs of
rupees between them. According to the informant the offence
had taken place between 1st March 2018 to 20th August 2022, yet
he lodged the report with Kranti Chowk Police Station on 2nd
December 2022. There is total suppression of the earlier
complaint which he had filed with City Chowk Police Station and
criapl988.22+
when City Chowk Police Station refused to take cognizance, he
approached to Kranti Chowk Police Station. One more aspect
from the contents of the FIR which is required to be considered
is that there is total suppression of the offence lodged with
Chikalthana Police Station, Aurangabad bearing Crime No.363 of
2022 on 3rd September 2022 by accused No.1 against the
informant for the offence punishable under Sections 376(2)(n),
384, 354, 354-D, 506 read with Section 34 of the Indian Penal
Code. The documents regarding conversation on WhatsApp
between accused No.1 and the informant would show that there
was love affair between them. When there is a love affair, then
there is no scope for caste or community. It also appears that
the accused Nos.2 and 3, who are the parents of accused No.1,
had no objection for their relationship. But informant says that
they all were insisting that he should accept Islam, get himself
converted and then perform marriage with accused No.1. The
informant has stated that somewhere in March 2021 there was
forcible circumcision ( Khatana). It was impressed upon the
informant that after the circumcision he has become Muslim and
then by giving threats he was left home. But, still then the
informant says that he had paid lakhs of rupees to accused No.1
and total amount which he gives, which were given by him to
criapl988.22+
accused No.1 was amounting to Rs.11,00,000/-. It is the say of
the informant that thereafter also the accused persons asked
him to give amount of Rs.25,00,000/- which he refused to pay
and then offence under Section 354 of the Indian Penal Code
was filed by accused No.1 against him with MIDC, Cidco Police
Station on 29th September 2021. He says that even in the
premises of the District Court, Aurangabad he was threatened.
Informant further says that it was told by accused No.1 to him
that she got married in January 2022 but she wants to get
divorce and wants to marry him and therefore, he should give
her amount. So from February to August, 2022 the informant
had transferred amount of Rs.1,70,000/- in the account of
accused No.1. Again the informant says that accused No.1 was
threatening him and asking him to convert himself and was
making demand for the amount. On 21st March 2022 it is stated
that he was abused in the name of the caste. It is submitted that
all these contentions would show that as per the convenience,
the informant was changing his story. Rather on 21st March 2022
the informant had given affidavit stating that due to some
misunderstanding the offences were registered against each
other but now there is settlement and there is no dispute
pending against each other. The said document has been
criapl988.22+
notarized on 21st March 2022 before the Notary Public. Even a
colour of Love-Jihad was tried to be given to the entire story,
however the police are negativating that angle. News item to
that extent has also been published. The story that has been
given in the FIR is concocted. Now it appears that the
investigation is almost complete and only the act of filing of
charge-sheet is remained. The learned trial Judge had also
granted interim protection to the accused persons and all the
accused have cooperated with the investigation. The offences
under the Atrocities Act are prima facie not attracted taking into
consideration the admitted love relationship between the
informant and accused No.1. Reliance has been placed on the
decision in Mr. ABC vs. the State of Maharashtra and
another, 2021 All MR (Cri) 3664 , wherein almost on the
similar facts, where there were exchanges of WhatsApp
messages when it was found that there was love affair, it was
held that no offence under the Atrocities Act can be said to be
made out.
5.Learned Advocate Mr. Deshpande has made submissions
on behalf of the informant in Criminal Appeal No.998 of 2022.
criapl988.22+
6.The informant has also filed Criminal Appeal No.20 of 2023
under Section 14-A of the Atrocities Act to challenge the order of
extending interim protection by the learned Special Judge in the
said Bail Application No.2353 of 2022 by order dated 20th
December 2022 to original accused Nos.1 to 4. It has been
submitted by learned Advocate Mr.Joshi that though the learned
Special Judge rejected both the applications, yet relied on Dr.
Sameer Narayanrao Paltewar vs. the State of
Maharashtra, Criminal (APL) 393 of 2021, decided by the
learned Single Judge of this Court, Bench at Nagpur on 21st
August 2021. It has been submitted that when the application
itself was not maintainable under Section 438 of the Code of
Criminal Procedure in view of the bar under Section 18 and 18-A
of the Atrocities Act, the relief or directions under Section 438(4)
of the Code of Criminal Procedure could not have been extended.
It has been submitted that the decision in Prathvi Raj
Chauhan vs. Union of India and others, 2020 AIR (SC)
1036, has not been considered in proper context by the learned
Special Judge.
7.It has been further submitted on behalf of the informant
while supporting the reasons for rejecting the anticipatory bail
application, that the offence is serious. Though there was a love
criapl988.22+
affair between the informant and accused No.1, yet accused
No.1 as well as her family members i.e. her parents and sister
were insisting that the informant should convert himself to Islam
and for that purpose by asking him to come to Gulmandi,
Aurangabad in March 2021, informant was forcibly taken to
Naregaon, where he was confined in a room. Even accused No.2
urinated on him and entire scene has been video-graphed by
accused No.1. It was to force the informant to accept Islam.
Thereafter the informant was brought to City Chowk and taken
to nearby hospital. It was told to him that he has been brought
there for circumcision and if he speaks anything then he would
be defamed by making his video viral. It is then stated that the
informant was confined and then his circumcision has been done.
Everything has been done under pressure and by applying
physical force. Even huge amount has been extracted forcibly
from him which is amounting to extortion and then the informant
has been abused in the name of the caste. There are lodgments
of various complaints even by the informant against the accused
persons. In fact the informant was trying to lodge the report
even since prior to 2nd December 2022 and actually he had
tendered written complaints on 20th August 2022, 22nd August
2022, 2nd September 2022 etc. to the Police Commissioner,
criapl988.22+
Aurangabad, however, no action was taken. Reliance has been
placed on the affidavit on behalf of respondent No.2, which is
nothing but the reproduction of his FIR and other complaint
applications which he has filed.
8.It has been further submitted on behalf of the informant
that the accused persons have now taken help of local MLA and
as regards the incident dated 20th August 2022 is concerned, the
accused persons with the said MLA, his security guard and two
unknown persons had abused the informant in the name of his
caste, assaulted him at the gunpoint in front of the house of the
MLA and it is stated that the police persons, whose help was
taken by the informant immediately after the incident, in their
statements under Section 161 of the Code of Criminal Procedure
have disclosed the involvement of the MLA, yet he has not been
arrayed as an accused nor any action for his arrest has been
undertaken. Rather the informant has grievance against the
investigating agency. The investigation is still incomplete and
therefore, the decision taken by the learned Special Judge while
rejecting the anticipatory bail application is absolutely correct,
however, the protection that was granted to the accused persons
deserves to be set aside.
criapl988.22+
9.Per contra, the learned APP also supported the reasons
given by the learned Special Judge while rejecting the
application and submitted that the contents of the FIR as well as
the police papers would show that there is sufficient material to
attract the provisions under the Atrocities Act. Though the
accused persons had knowledge about the caste of the
informant, yet they abused him, they have assaulted him. There
is an attempt to convert the informant into Islam and for that
purpose his circumcision has been done. Informant was required
to undergo the medical examination and the medical opinion has
been given that the informant has undergone circumcision.
There are statements of the witnesses which would show that
there was force on the informant from the accused persons to
get himself converted. Therefore, taking into consideration the
seriousness of the offence as well as the fact that abuses were
given in the name of caste in a public view, the learned trial
Judge has correctly held that the application is barred under
Section 18 and 18-A of the Atrocities Act.
10.First of all we would like to consider Criminal Appeal
No.988 of 2022, which is filed by the original accused persons.
Perusal of the FIR lodged by respondent No.2 would clearly do
not show any specific role to accused No.4 who is the sister of
criapl988.22+
accused No.1. Furthermore, accused No.4 is only 19 years old
girl, whereas respondent No.2 is 26 years old. Why she would
give abuses on the name of the caste to respondent No.2 is a
question and also whatever allegations are stated to be against
her are in chorus with other accused. Therefore, clearly offences
under the Atrocities Act are prima facie not made out against
accused No.4.
11.As per the FIR itself the informant is admitting his love
affair with accused No.1. He has stated that they were
classmates since 2018 and after the initial friendship, love
developed between them. It is not the case of the informant that
he has never disclosed his caste to accused No.1. He was
acquainted with accused Nos.2 and 3 also, who are the parents
of accused Nos. 1 and 4. He himself says that when accused
No.1 was insisting that he should perform marriage with her and
it should be by acceptance of Islam by him, he had told the said
fact to accused Nos.2 and 3 and at that time they had given
understanding to accused No.1. That means he has posed, prima
facie a good relationship between him and accused Nos.2 and 3
at that point of time. When the initial relationship was good and
the caste or the religion was not the barrier for them, then the
question of raising the issue of caste or community or religion at
criapl988.22+
a later point of time will not arise. It appears that thereafter the
relationship was bitter. The informant says in his FIR that
demand about his conversion to Islam before the marriage was
made by accused No.1 prior to March 2021 but then he does not
say that he severed his relationship with accused No.1. He states
about his alleged abduction plus confinement and also
circumcision somewhere in March 2021. But, still the informant
had not lodged immediate FIR, but then he says that thereafter
also he had given money, online to accused No.1. Informant
states that he has transferred more than lakhs of rupees in the
account of accused No.1, still he had not severed the
relationship. Each time even after the offences were registered
by accused No.1 against him, he has not lodged any report. This
is what is surprising here.
12.The informant further states that around February 2022
accused No.1 met him, informed him that her marriage had
taken place but still she wants to get divorce from the husband
and for that purpose he should help her financially. This fact also
appears to have not prompted him to lodge a report. Thereafter
also informant has transferred amount in the account of accused
No.1 as per his own contentions and the ultimate event is said to
have been taken place on 12th August 2022. No doubt the
criapl988.22+
documents produced by the informant definitely shows that he
had tried to lodge report prior to 2nd December 2022 but it
appears that it was not recorded by the police. But he could have
definitely filed a private complaint with the appropriate Court but
he has not done that. Thus even the apparent look at FIR, which
is permissible in view of Prathvi Raj Chauhan vs. Union of
India and others , (supra), we can see that there is inordinate
delay in lodging the FIR. When there is inordinate delay, it
affects the story and may loose its importance. The fact will have
to be observed that when the base for the relationship was the
love affair, there was no barrier of caste or religion and
therefore, prima facie case under the Atrocities Act cannot be
said to be made out. Definitely the observations in Mr. ABC vs.
the State of Maharashtra and another, (supra) are helpful
here. The learned Special Judge erred in stating that the
application under Section 438 of the Code of Criminal Procedure
filed by the present appellants was barred under Section 18 and
18-A of the Atrocities Act.
13.Another aspect also ought to be taken into consideration
that on 3rd September 2022 accused No.1 had already filed FIR
against respondent No.2 – informant with Chikalthana Police
Station, for the offence punishable under Sections 376(2)(n),
criapl988.22+
384, 354, 354-D, 506 read with Section 34 of the Indian Penal
Code, which is against the informant herein as well as his family
members, wherein also present accused No.1 has alleged that
she has given amount of around Rs.96,000/- to informant,
online. Definitely it can be supported by a documentary
evidence. This shows that there were financial transactions
between the informant and accused No.1 and when such transfer
of amount is made online, there is less possibility of amount
being extracted, however, that depends upon the facts of the
case.
14.It appears that now the colour has been tried to be given
of Love-Jihad, but when love is accepted then there is less
possibility of the person being trapped just for converting him
into the other’s religion. The facts of the case i.e. contents of the
FIR would show that there were many opportunities to the
informant for severing his relationship with accused No.1 but he
has not taken that step. Merely because the boy and girl are
from different religion, it cannot have a religions angle. It can be
a case of pure love for each other.
15.It is to be noted that accused No.1 has filed other cases
also against the informant and out of which some are prior in
criapl988.22+
time. Though the informant appears to have praying for action to
be taken against accused persons since 20th October 2021 in
which he has made allegations about pressurizing him to convert
to Islam and when no action was taken by the Police
Commissioner, he has filed complaint before the Judicial
Magistrate First Class, Aurangabad. In the said compliant he had
not made allegations about abuses in the name of the caste
thereby making allegations that the offence under the Atrocities
Act is also involved. If that would have been so, then the private
complaint ought to have been lodged before the learned Special
Judge under the Atrocities Act. However, learned Judicial
Magistrate First Class (Court No.9), Aurangabad by order dated
31st December 2021, refused the prayer for sending the matter
for investigation under Section 156(3) of the Code of Criminal
Procedure and kept the matter for verification of the
complainant. No further document has been produced by the
informant that as to whether he has challenged the said order
about rejection of his application for sending the matter for
investigation under Section 156(3) of the Code of Criminal
Procedure.
16.Another fact to be noted is that though these matters were
goingon, still on 21st March 2022 it is stated that there was
criapl988.22+
settlement and affidavit has been sworn by the informant stating
that the dispute between him and accused No.1 had arisen due
to misunderstanding and now there is settlement between them.
No doubt the learned Advocate for the informant has his own
objections for the said document, but as on today at this prima
facie stage, the said document, which appears to be a notarized
document, can be considered. Therefore, taking into
consideration all these aspects, we are of the opinion that prima
facie offence under the Atrocities Act are not made out and
therefore, there was no bar under Section 18 or 18-A of the
Atrocities Act considering the application under Section 438 of
the Code of Criminal Procedure. Conclusion drawn by the learned
Special Judge in that respect is wrong.
17.It can be seen from the police papers that substantial part
of the investigation is over and the charge-sheet is about to be
filed. Under such circumstance the physical custody of the
appellants is not necessary for the purpose of investigation.
Three of the appellants are ladies and that is also one of the
point that is required to be considered. Another aspect to be
noted is that the appellants have attended the police station,
which was made part of the interim protection and it has not
criapl988.22+
been pointed out that they have misused the liberty that has
been granted.
18.One more fact that is required to be considered is that
initially it appears that the informant has approached the City
Chowk Police Station but his FIR was not taken but then for the
same set of facts and without disclosing his approach to the City
Chowk Police Station, he got the FIR lodged with Kranti Chowk
Police Station. This action on the part of the informant is also
considered and it is one of the circumstance which prompts us to
grant anticipatory bail to the appellants.
19.Much has been said about the medical evidence of the
informant about circumcision. The police papers show that there
is evidence of circumcision. However, the expert was unable to
say as to whether the said circumcision was natural or was due
to any surgical intervention. The expert was also unable to say
as to whether it was done by any medical professional or in a
traditional way of Islam by an unauthorized person. He was also
unable to say as to when it would have been done. Therefore, in
view of this kind of evidence, which is not supporting the
contents of the FIR even at this prima facie stage, the benefit of
the same will have to be given to the appellants – original
criapl988.22+
accused persons. The evidence collected i.e. statements of the
witnesses is that of mainly of the parents. Now, much has also
been said about the involvement of MLA at a later stage of
events. No doubt there is a statement of one police person
saying that he and his team had met the informant near the
house of said MLA but his statement does not go further. When
the involvement of the MLA is still under investigation, we would
like to refrain ourselves from making any observations in respect
of the same.
20.Independently, we are concluding that since no offence
under the Atrocities Act is transpiring at this prima facie stage,
there was no hurdle for the learned Special Judge to grant
anticipatory bail to the appellants. Criminal Appeal No.988 of
2022, therefore, deserves to be allowed by setting aside the said
impugned order passed by the learned Special Judge.
21.Now, turning towards the Appeal filed by respondent No.2
i.e. original informant, bearing Criminal Appeal No. 20 of 2023, it
is of academic importance now. Informant was challenging the
part of the impugned order i.e. interim protection granted earlier
to the appellants – applicants was extended for three days.
Reliance was placed on the decision in Dr. Sameer
criapl988.22+
Narayanrao Paltewar vs. the State of Maharashtra, (supra).
Perusal of the said decision would show that it was in respect of
the directions that can be given under Section 438(4) of the
(Maharashtra Amendment Act) Code of Criminal Procedure and it
was held that said section empowers the Sessions Court to
extend the interim protection operating in favour of the accused
for the maximum period of three working days. However, in this
case we agree to the legal principle submitted by learned
Advocate Mr. Joshi for the informant that once the Court comes
to the conclusion that there is bar under Section 18 or 18-A of
the Atrocities Act to the application for anticipatory bail i.e.
under Section 438 of the Code of Criminal Procedure, then
provisions of Section 438(4) of Code of Criminal Procedure will
not be applicable. However, the basic record does not show that
there was an application by the prosecution for directions to the
applicants – accused that the Court should direct them to remain
present on the final date. If there was no such application under
Section 438(4) of the Code of Criminal Procedure by the
prosecution, the directions given by this Court in Dr. Sameer
Narayanrao Paltewar vs. the State of Maharashtra, (supra)
will not be applicable. However, it is now to be seen that the said
interim protection was extended by the Special Court for three
criapl988.22+
days and then thereafter this Court by order dated 23rd
December 2022, granted interim protection to the appellants. It
can be seen that the appellants had approached this Court well
within time i.e. on 23rd December 2022. Therefore, now there is
no question of setting aside the said impugned part of the order
passed by the learned Special Judge. Accordingly, Criminal
Appeal No. 20 of 2023 deserves to be dismissed.
22.For the reasons stated above, we proceed to pass following
order:-
(I) Criminal Appeal No.988 of 2022 stands allowed.
(II)The order passed in Anticipatory Bail Application No.2353
of 2022 dated 20th December 2022 by the learned Special Judge
under the Scheduled Castes and Scheduled Tribes (Prevention of
the Atrocities) Act, Aurangabad stands set aside. The said
application stands allowed.
(III)Interim protection granted to the appellants in Criminal
Appeal No.988 of 2022 by this Court by order dated 23rd
December 2022 stands confirmed. It is clarified that in the event
of arrest of the appellants in Criminal Appeal No.988 of 2022 i.e.
appellant No. 1 - Shaikh Sana Farheen Shahmir, appellant No.2 -
Shahmir Shamshoddin Shaikh, appellant No.3 - Shaikh Khaja
criapl988.22+
Begum Shaikh Shahmir and appellant No.4 - Shaikh Saziya
Sadaf Shaikh Shahmir in connection with Crime No.299 of 2022
registered with Kranti Chowk Police Station, District-Aurangabad
for the offence punishable under Sections 386, 364, 298, 324,
504, 506 read with Section 34 of the Indian Penal Code and
Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, they be released
on bail on PR Bond of Rs.15,000/- each with one solvent surety
in the like amount each.
(IV)Appellant No.2 - Shahmir Shamshoddin Shaikh shall attend
Kranti Chowk Police Station on every Monday between 11.00
a.m. to 2.00 p.m. till filing of the charge-sheet and co-operate
with the investigation. As Appellant Nos.1, 3 and 4 are ladies, we
are asking appellant No.2 only to attend the police station.
(V) As regards appellant Nos.1, 3 and 4 in Criminal Appeal
No.988 of 2022 are concerned, if their presence is required, the
Investigating Officer may call them in day time only.
(VI)The appellants in Criminal Appeal No.988 of 2022 shall not
tamper with the evidence of the prosecution witnesses in any
manner. They shall not indulge in any criminal activity.
(VII)Criminal Appeal No.20 of 2023 stands dismissed.
criapl988.22+
.After the pronouncement of the order, learned Advocate for
respondent No.2 in Criminal Appeal No.988 of 2022 seeks stay
to the order. It will not be out of place to mention here that
though the learned Special Judge had rejected the application,
he had continued the interim protection for three days and
thereafter within three days this Court had granted interim
protection. Under such circumstance, when the liberty of the
appellants has been considered and it is held that prima facie the
offence under the Atrocities Act has not been made out, under
the said circumstance, there cannot be stay. The repercussion of
the stay, if granted, would be no protection to the appellants
thereby allowing the investigating agency to arrest the
appellants, which cannot be allowed when the Appeal has been
allowed on merits. Hence, the oral prayer stands rejected.
|
Merely because a girl and boy involved in a relationship belong to different religions, the case cannot be given a religious angle, the Bombay High Court recently said while dealing with a case involving "love jihad" claims [Shaikh Sana Farheen Shahmir v. State of Maharashtra].
A Division Bench of Justices Vibha Kankanwadi and Abhay Waghwase observed the same while granting anticipatory bail to a Muslim woman, her parents and her sister, who were booked for allegedly forcing a Hindu man to convert to Islam and marry the woman.
"It appears that now the colour has been tried to be given of love-jihad, but when love is accepted then there is less possibility of the person being trapped just for converting him into the other’s religion...Merely because the boy and girl are from different religion, it cannot have a religions (sic) angle. It can be a case of pure love for each other," the Bench observed in its judgment.
The Court was hearing an application filed by the woman and her family, who were denied anticipatory bail by a special court in Aurangabad.
The man accused the woman and her family of forcing him to convert to Islam. He even alleged that a forceful circumcision (Khatana) was also performed on him. Further, it was contended that the case had a "love jihad" angle, as he was forced to make some monetary transactions in favour of the woman's family. Another claim made was that he was abused in the name of his caste.
The Bench, however, noted that as per the first information report (FIR), the man himself admitted that he had a love affair with the woman.
As per the prosecution case, the man and the woman were in a relationship since March 2018. The man belonged to the Scheduled Caste community, but did not disclose the same to the woman.
Later, the woman began insisting that he convert to Islam and marry her, after which the man disclosed his caste identity to the woman's parents. They did not raise any objection to the same, and also convinced her daughter to accept it.
"That means he has posed, prima facie a good relationship between him and her parents at that point of time. When the initial relationship was good and the caste or the religion was not the barrier for them, then the question of raising the issue of caste or community or religion at a later point of time will not arise," the Court noted.
Subsequently, the relationship turned sour.
The Bench took note of the other allegations raised by the man in his complaint, such as his alleged abduction and forcible circumcision in March 2021, the demand to convert him to Islam, the woman's financial demands, the rape case filed against him etc.
The Court said that despite all such instances, the man did not sever his relations with the accused woman. It was also noted that the FIR was filed only in December 2022.
This, the Bench said, was surprising.
"We can see that there is an inordinate delay in lodging the FIR. When there is inordinate delay, it affects the story and may loose its importance. The fact will have to be observed that when the base for the relationship was the love affair, there was no barrier of caste or religion and therefore, prima facie case under the Atrocities Act cannot be said to be made out," the judgment stated.
Notably, the special court had premised its orders on the fact that charges under the stringent Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act were invoked against the woman and her family.
It noted that a settlement deed was also signed between the two to amicably settle the dispute. Though the man's advocate disputed the settlement, the Bench noted that the same was duly notarized and thus would be considered.
"We are of the opinion that prima facie offence under the Atrocities Act are not made out and therefore, there was no bar under Section 18 or 18-A of the Atrocities Act. Thus, the conclusion drawn by the Special Judge in that respect is wrong."
Moreover, the Court noted that the probe in the case was almost complete, and that the police was likely to file a chargesheet soon.
Thus, the physical custody of the applicants would not be necessary for the purpose of investigation, the Court added.
As far as the claim of the man that he was forcefully circumcised, the Bench noted that an expert was asked to comment on the same by the police.
"However, the expert was unable to say as to whether the circumcision was natural or was due to any surgical intervention. The expert was also unable to say as to whether it was done by any medical professional or in a traditional way of Islam by an unauthorized person. He was also unable to say as to when it would have been done," the judgment said.
In view of the above, the bench granted anticipatory bail to the woman and her family members.
Senior Advocate VD Sapkal along with Advocate Patel Khizer appeared for the applicants.
Additional Public Prosecutor SD Ghayal represented the State.
Advocates Swapnil Joshi and SB Deshpande represented the complainant.
|
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Sl.No. Description Page No.
1Background 27 - 28
2Prosecution Case 28 - 29
3Investigation 29 - 30
4Trial Court Proceedings 30 - 39
5Appeal Details 39 - 41
6Discussions & Findings 41 - 143
(i)Preliminary objection regarding the
maintainability of the State Appeals41 - 43
(ii)Discussion on merits 43 - 47
(iii)The Conspiracy 47 - 100
Analysis of the evidence 55 - 65
The meeting on 02.04.2012 65 - 68
Events between 02.04.2012 and 10.04.2012 68
The meeting on 10.04.2012 68 - 73
Events between 10.04.2012 and 20.04.2012 73 - 75
The meeting on 20.04.2012 75 - 77
Events between 20.04.2012 and 24.04.2012 77
The meetings on 24.04.2012 78 - 79
Events on 25.04.2012 79 - 83
Events on 26.04.2012 83 - 84
Events on 27.04.2012 84
Events between 28.04.2012 and 01.05.2012 84 - 85
Events on 02.05.2012 85 - 87
Events on 04.05.2012 87 - 91
Our Finding on Conspiracy 91 - 100
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(iv)The Incident 100 - 136
The First Information Report 102 - 107
Direct Evidence against A1 to A7 107 - 119
Circumstantial Evidence against A1 to A7 119 - 122
Witness testimony that implicates A1 to A7 122 - 126
Forensic/DNA Evidence against A6 126 - 129
Recovery of the Innova vehicle 130 - 132
Recovery of the Swords 132 - 133
Medical evidence connecting the swords with the
injury on the victim133 - 135
Forensic Evidence against A2 and A3 as regards
use of Explosives135 - 136
Our findings on the Incident 136
(v)Abetment and Harbouring 136 - 143
Crl.A.No.174/2014 filed by A18 Rafeek 137 - 139
Crl.A.No.176/2014 filed by A31 Pradeepan 140 - 142
Crl.A.Nos.403/2014 filed by the State &
Crl.A.(V).No.571/2015 filed by the Victim142 - 143
7Conclusion 143 - 145
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D r . A.K. Jayasankaran Nambiar, J.
Democracy thrives on the peaceful exchange of ideas, not the violent imposition
of beliefs. Political violence is the poison that corrodes the roots of democratic
principles.
-Amartya Sen
On the morning of 05.05.2012, the people of Kerala woke up to the
grim news of a gruesome political murder. T.P . Chandrasekharan, the leader
of the Revolutionary Marxist Party ( hereinafter referred to as 'RMP' for
brevity), had been hacked to death the night before by a group of assassins.
The wounds inflicted on him were so brutal and numerous that PW136
Dr.Sujith Sreenivas, the Assistant Professor and Assistant Police Surgeon at
the Forensic Medicine department of the Kozhikode Medical College, who
conducted the post-mortem examination, opined that it was indicative of the
aggressive and hostile nature of the assailants. The question that loomed
large, however, was, “Who would commit such a barbaric act and why?”
2. The prosecution would have us believe that the public opinion at
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the time was that it was the political rivalry between leaders of the
Communist Party of India (Marxist) (CPI (M)) and the victim that led to the
commission of the crime. T.P . Chandrasekharan, who was once an active
member and local leader of the CPI (M), fell out with the party and formed a
new party called the Revolutionary Marxist Party (RMP). The RMP posed a
big challenge to the election fortunes of the CPI (M), and this was evident
when, in the 2009 Lok Sabha Elections, the CPI (M) lost the Vadakara
Constituency, which had been its stronghold till then. Although it was the
Congress candidate who was returned from the Constituency that year, T.P .
Chandrasekharan's candidacy under the RMP banner was perceived as
instrumental in the CPI (M)'s loss. The rivalry between the parties and the
inter se attacks between members of the two parties only served to fuel the
animosity of the CPI(M) leaders towards the victim.
The prosecution case:
3. The case of the prosecution, in brief, is that, pursuant to a criminal
conspiracy hatched by accused No’s.8 to 14, with the assistance of accused
No’s.1,3,5,7,15 to 18, 20 to 25 and 27 to 30, at about 22.10 hours on
04.05.2012, accused No’s.1 to 7 came in an Innova Car bearing a false
registration number, driven by the accused no.1, and rammed the car into
the motorbike driven by T.P . Chandrasekharan. After causing the latter to be
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thrown onto the road, they hacked him to death on the public road at a place
called Vallikkad by striking him with swords. Accused No.3 also used a
country bomb to cause an explosion that would prevent witnesses from
approaching the scene of the crime. Accused No’s.1 to 7 then fled the scene
of the crime and were assisted by the other accused, who either harboured
them or destroyed valuable evidence that pointed to them.
The investigation:
4. PW4, the Sub-Inspector of Vatakara Police Station, suo motu,
registered Ext.P2 FIR on the night of 04.05.2012 itself. The local police
headed by the Dy.SP , Vatakara, initially conducted the investigation of the
crime that was numbered as Crime No.433/2012 of the Vatakara Police
Station. PW154, the Circle Inspector, completed the inquest proceedings on
the morning of 05.05.2012. PW136, Dr. Sujith Sreenivas, conducted autopsy
shortly thereafter. PW163 Circle Inspector inspected the scene of the
incident and prepared Ext.P20 scene mahazar. In the meanwhile, PW165
Dy.SP Vatakara received information that an Innova Car bearing
Registration No.KL-58D-8144 was found abandoned at Punathilmukku in
Chokli, and he promptly reached there along with PW1 Praseed and CW2
Ramachandran, who claimed to be eyewitnesses to the incident. They
identified the vehicle as the one used by the assailants, and after the
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forensic experts examined the vehicle, PW165 seized the vehicle and the
articles in it.
4.1. The investigation of the case was then transferred to the Crime
Branch, where the case was re-registered as CBCID Crime No.406/CR/HHW-
III/KKD/2012, and a Special Investigation Team was constituted. The first
arrest was on 15.05.2012 of A31 Pradeepan M. K @ Lambu, and based on
the information furnished by the said accused PW164 Dy.SP recovered five
swords (MO1 Series) from a well. Later, the accused who had allegedly
committed the murder, the conspirators and the persons who aided, abetted,
and harboured the main accused were all arrested. The investigation was
thereafter completed, and PW166 Dy.SP Crime Branch CID, HHW-III,
Kozhikode laid the final report before the Judicial First Class Magistrate
Court, Vatakara, against 76 accused, under Sections 143, 147, 148, 302
read with 149 IPC and Sections 465, 471, 118, 201, 212, 120B, 109 IPC and
also under Sections 3 and 5 of the Explosive Substances Act, 1908.
The Trial Court Proceedings:
5. The case was taken on file by the JFMC, Vatakara as C.P .111/12.
Out of the 76 accused in the case, accused 24 and 52 were absconding.
After completing the necessary formalities, the Magistrate committed the
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case against the remaining 74 accused to the Sessions Court, Kozhikode,
where the case was numbered as S.C.867/12. The case was then made over
to the Special Additional Sessions Court (Marad Cases), Kozhikode for trial.
5.1. After hearing the prosecution and the defence, the trial court
vide its order dated 19.12.2012 discharged accused nos.54 and 61 under
Section 227 Crl.P .C after finding that there was no sufficient ground for
proceeding against them. Charges were thereafter framed against the
remaining 72 accused under Sections 143, 147, 148, 302 read with 149 IPC
and Sections 465, 471, 118, 201, 212, 120B, 109 IPC and also under
Sections 3 and 5 of the Explosive Substances Act, 1908. All the accused
pleaded not guilty to the charges.
5.2. As the High Court had in certain Criminal Revision Petitions
stayed all further proceedings in the trial against accused nos.53, 58, 60, 62
to 69 and 71 to 74, and further, there was a direction from the High Court to
dispose the Sessions case before 31.07.2013, the trial court proceeded with
the trial against the remaining 57 accused.
5.3. The prosecution examined 166 witnesses as PW1 to PW166 and
marked Exts.P1 to P579, Exts.C1 to C18 and D1 to D31 on its side. MO1 to
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MO105 were identified. Accused no.9 C.H. Ashokan died during the period
of the trial. After closure of the prosecution evidence, 56 accused were
examined under Section 313 Cr.P .C. They denied all the incriminating
circumstances that appeared in the evidence and that they were put to
them. Some of them also filed statements in writing explaining the
incriminating circumstances against them. The trial court then acquitted
twenty accused persons viz. A15, A23, A26, A32, A34, A35, A38, A40, A43,
A44, A45, A46, A47, A51, A55, A56, A57, A59, A75 and A76 under Section
232 Cr.P .C. The remaining 36 accused who had faced trial were then called
upon to adduce evidence in their defence.
5.4. The defence examined ten witnesses as DW1 to DW10 and
marked Exts.D32 to D66 and Exts.P580 to P582 on its side. After hearing
the prosecution and the defence at length, the trial court found as follows:
1.A10 K.K Krishnan, A12 Geothi Babu and A14 P . Mohanan were
found not guilty of the offences punishable under Section 120B
IPC and under Section 302 read with Section 109 IPC and were
accordingly acquitted under Section 235 Cr.P .C.
2.A16 Shibu P .C., A17 Sreejith K., A22 Sanoop M.P ., A28 P .M.
Rameesh and A30 Raveendran M.K. were found not guilty of the
offences punishable under Section 302 read with 115 IPC and
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under Section 118 IPC and were accordingly acquitted under
Section 235 Cr.P .C.
3.A19 Aswanth C.K. was found not guilty of the offences punishable
under Section 465 and 118 IPC and under Section 302 read with
109 IPC and was accordingly acquitted under Section 235 Cr.P .C.
4.A20 K.P . Dilshad, A21 P .K. Muhammed Fasalu and A29 K.P . Dipin
were found not guilty of the offences punishable under Section
302 read with 109 IPC and 118 IPC and were accordingly
acquitted under Section 235 Cr.P .C.
5.A25 C.K. Rajikanth was found not guilty of the offence punishable
under Section 302 read with 109 IPC and was accordingly
acquitted under Section 235 Cr.P .C.
6.A27 Rajith C. was found not guilty of the offences punishable
under Section 302 read with 109 and 115 IPC and was accordingly
acquitted under Section 235 Cr.P .C.
7.A37 Shaju N.M. was found not guilty of the offences punishable
under Sections 201 and 212 IPC and was accordingly acquitted
under Section 235 Cr.P .C.
8.A36 Jijesh Kumar was found not guilty of the offence punishable
under Section 201 IPC and was accordingly acquitted under
Section 235 Cr.P .C.
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9.A33 Shanoj @ Kelan, A39 M. Abhinesh, A41 Saneesh M., A42 C.
Babu, A48 Sreejith K., A49 Sudheesh M., A50 P . Jigesh, and A70 K.
Dhananjayan were found not guilty of the offence punishable
under Section 212 IPC and were accordingly acquitted under
Section 235 Cr.P .C.
10.A1 Anoop was found guilty of the offences punishable under
Sections 143, 147 and 302 read with 149 IPC and he was
convicted there under. He was found not guilty of the offences
punishable under Sections 120B, 148, 465 and 471 IPC and he
was accordingly acquitted under Section 235 Cr.PC in respect of
those offences.
11.A2 Manoj @ Kirmani Manoj was found guilty of the offences
punishable under Sections 143, 147, 148 and 302 read with 149
IPC and under Section 5 of the Explosive Substances Act, 1908
and was accordingly convicted there under. He was found not
guilty of the offence punishable under Section 120B IPC and was
accordingly acquitted under Section 235 Cr.PC in respect of that
offence.
12.A3 Sunil Kumar @ Kodi Suni was found guilty of the offences
punishable under Sections 143, 147, 148 and 302 IPC and under
Section 3 of the Explosive Substances Act, 1908 and was
accordingly convicted there under. He was found not guilty of the
offences punishable under Section 120B and 201 IPC and was
accordingly acquitted under Section 235 Cr.PC in respect of those
offences.
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13.A4 T.K. Rajeesh, A5 Muhammed Shafi, A6 Sijith and A7 Shinoj
were found guilty of the offences punishable under Sections 143,
147, 148 and 302 IPC and were accordingly convicted there under.
They were found not guilty of the offence punishable under
Section 120B IPC and were accordingly acquitted under Section
235 Cr.PC in respect of that offence.
14.A8 K.C. Ramachandran, A11 Manojan and A13 Kunhanandan were
found guilty of the offence punishable under Section 120B read
with 302 IPC and they were accordingly convicted there under.
They were found not guilty of the offence punishable under
Section 302 read with 109 IPC and were accordingly acquitted
under Section 235 Cr.PC in respect of that offence. A8 K.C.
Ramachandran was found not guilty of the offence punishable
under Section 201 IPC and he was acquitted under Section 235 in
respect of that offence.
15.A18 Rafeek was found guilty of the offence punishable under
Section 302 read with 109 IPC and he was convicted there under.
He was found not guilty of the offences punishable under Sections
465, 471 and 118 IPC and he was accordingly acquitted under
Section 235 Cr.PC in respect of those offences.
16.A31 Pradeepan was found guilty of the offence punishable under
Section 201 IPC and he was convicted there under. He was found
not guilty of the offence punishable under Section 212 IPC and he
was accordingly acquitted under Section 235 Cr.PC in respect of
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that offence.
5.5. The trial court then heard the accused on sentence under Section
235(2) of the Cr.P .C. The Special Prosecutors and the defence counsel were
also heard in detail. The sentence awarded to each of the accused found
guilty of the offences charged against them is as follows:
1.A1 Anoop – Sentenced to imprisonment for life and to pay fine of
Rs.50,000/- and in default of payment of fine to undergo rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. He was also sentenced to
undergo rigorous imprisonment for a period of six months for
the offence punishable under Section 143 IPC and rigorous
imprisonment for a period of one year for the offence punishable
under Section 147 IPC.
2.A2 Manoj Kumar - Sentenced to imprisonment for life and to pay
fine of Rs.50,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of one year for the offence
punishable under Section 302 read with 149 IPC. He was also
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC. He was also sentenced to undergo rigorous imprisonment for
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 37 ::& 403/2014 & CRA(V).No.571/2015
a period of five years and to pay a fine of Rs.10,000/- and in
default of payment of fine to undergo rigorous imprisonment for a
period of six months for the offence punishable under Section 5 of
the Explosive Substances Act, 1908.
3.A3 Sunil Kumar - Sentenced to imprisonment for life and to pay
fine of Rs.50,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of one year for the offence
punishable under Section 302 read with 149 IPC. He was also
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC. He was also sentenced to undergo rigorous imprisonment for
a period of ten years and to pay a fine of Rs.20,000/- and in default
of payment of fine to undergo rigorous imprisonment for a period
of one year for the offence punishable under Section 3 of the
Explosive Substances Act, 1908.
4.A4 T.K. Rajeesh, A5 Muhammed Shafi, A6 Sijith and A7 Shinoj -
Sentenced to imprisonment for life and to pay fine of Rs.50,000/-
each and in default of payment of fine to undergo rigorous
imprisonment for a period of one year for the offence punishable
under Section 302 read with 149 IPC. They were also each
sentenced to undergo rigorous imprisonment for a period of six
months for the offence punishable under Section 143 IPC and
rigorous imprisonment for a period of one year for the offence
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 38 ::& 403/2014 & CRA(V).No.571/2015
punishable under Section 147 IPC and rigorous imprisonment for a
period of two years for the offence punishable under Section 148
IPC.
5.A8 K.C. Ramachandran, A11 Manojan and A13 Kunhanandan –
Sentenced to imprisonment for life and to pay fine of Rs.100,000/-
each and in default of payment of fine to undergo rigorous
imprisonment for a period of two years each for the offence
punishable under Section 120B read with Section 302 IPC.
6.A18 Rafeek – Sentenced to imprisonment for life and to pay a fine
of Rs.100,000/- and in default of payment of fine to undergo
rigorous imprisonment for a period of two years for the offence
punishable under Section 302 read with 109 IPC.
7.A31 Pradeepan – Sentenced to undergo rigorous imprisonment for
a period of three years and to pay a fine of Rs.20,000/- and in
default of payment of fine to undergo rigorous imprisonment for a
period of six months for the offence punishable under Section 201
IPC. The period of detention undergone by him from 16.05.2012 to
23.08.2012 was permitted to be set off against the substantive
sentence of imprisonment awarded to him.
8.The sentence of life imprisonment awarded to the accused was for
the whole of their remaining life subject to the remission granted
by the appropriate government under Section 432 Cr.P .C which
was in turn subject to the provisions of Section 433A Cr.P .C. From
out of the fine amount realised an amount of Rs.300,000/- was
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 39 ::& 403/2014 & CRA(V).No.571/2015
directed to be paid to PW5 Rema, the wife of the deceased and
Rs.200,000/- to CW13 Abhinand the son of the deceased as
compensation under Section 357 Cr.P .C. The charge against A9
C.H. Asokan, who was no more, was declared abated.
The appeals before us:
6. Appeals have been preferred by the persons convicted, the State,
and the deceased's wife. The details of the said appeals are as follows:
Appeal No. Party Name Relief Sought
Crl.A.172/2014 A8 K.C. Ramachandran v. State To set aside conviction and
sentence
Crl.A.174/2014 A18 P .V . Rafeek @
Vazhapappadachi Rafeek v. StateTo set aside conviction and
sentence
Crl.A.176/2014 A13 Padinjare Kunhikkattil
Kunhanandan v. StateTo set aside conviction and
sentence
Crl.A.177/2014 A1 Anoop v. State
A2 Manoj Kumar v. State
A3 Kodi Suni v. StateTo set aside conviction and
sentence
Crl.A.178/2014 A4 Rajeesh Thundikkandi @ T.K.
v. State
A5 K.K Mohammed Shafi v. State
A6 Sijith @ Annan Sijith v. State
A7 Shinoj v. StateTo set aside conviction and
sentence
Crl.A.179/2014 A31 Pradeepan M.K. @ Lambu v.
StateTo set aside conviction and
sentence
Crl.A.180/2014 A11 Manojan @ Trouser
Manojan v. StateTo set aside conviction and
sentence
Crl.A.339/2014 State v. A1 Anoop & Ors. Seeking death sentence to:
•A1 to A7 u/s 302 r/w
•A8, A11 & A13 u/s
302 r/w 120B IPC
•A18 u/s 302 r/w 109
and
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 40 ::& 403/2014 & CRA(V).No.571/2015
Maximum Punishment to:
•A2 and A3 u/s 5 & 3
of the Explosive
Substances Act
•A31 u/s 201 IPC
Crl.A.403/2014 State v. A10 KK Krishnan & 23
OthersSeeking Conviction of the
24 acquitted accused
(V).571/2015K.K.Rema v. State •Seeking conviction of
acquitted accused; and
•Enhanced punishment
for A31 u/s 120B r/w
302 IPC; and
Enhanced compensation
6.1. The appellants/convicted accused were represented by Senior
Counsel Sri.B.Raman Pillai and Sri.P .Vijayabhanu, duly assisted by
Adv.Sri.Gilbert George Correya, Adv.Sri.K.Viswan, Adv.Sri.K.M.Ramadas,
Adv.Sri.D.Arun Bose and the respondent State was represented by the
Special Public Prosecutor Sri.P .Kumarankutty and Assistant Special Public
Prosecutor Sri.Saphal.K., Adv.Sri.S.Rajeev appeared on behalf of
Smt.K.K.Rema, the widow of T.P . Chandrasekharan, and supported the
arguments of the learned Special Prosecutor. As the learned counsel on
either side took us through the entire evidence on record and re-iterated the
arguments made before the trial court before emphasising on new
perspectives at the time of hearing of these appeals, we feel it would be in
the interests of easy comprehension that we deal with their arguments in
the course of our discussion of the different issues and the evidence relating
thereto. As regards consideration of the precedents cited before us by the
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 41 ::& 403/2014 & CRA(V).No.571/2015
learned counsel, we might clarify that we have gone through all of them to
cull out and state the broad legal position that obtains on the various issues
that arise for consideration in these appeals. However, we have chosen to
avoid a specific reference in the footnotes to those precedents that merely
restate a legal point already dealt with.
Discussions and Findings
Preliminary objection regarding the maintainability of the State Appeals:
7. Before embarking upon a discussion of the merits of these appeals,
we may quickly deal with a preliminary objection raised by the
appellants/convicted accused as regards the maintainability of the State
appeals preferred against the orders of acquittal passed by the trial court. It
is contended, based on the order dated 08.02.2021 of a Division Bench of
this Court in Saji @ Dada Saji1 that an appeal against an order of acquittal
cannot be preferred before the High Court by the Public Prosecutor unless it
is first shown that there was a direction from the State Government to file
such an appeal. The said decision was one that interpreted the provisions of
Section 378 (1) of the Cr.P .C and literally so. However, a closer reading of
the Division Bench order reveals that it was one that was passed in
circumstances that were entirely different from what obtains in the instant
1 State of Kerala v. Saji @ Dada Saji & Ors – [2021 (2) KLJ 204]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 42 ::& 403/2014 & CRA(V).No.571/2015
appeals. Firstly, the objection as regards maintainability was raised at a time
when the appeals came up for admission before the court. Secondly, the
court found that while the Public Prosecutor who conducted the trial, as well
as the Investigating Officer in that case, had given opinions in favour of
filing an appeal from the order of acquittal, there was no specific order from
the State Government directing the filing of the appeal. Reliance was also
placed on the Rules of Business of the Government of Kerala to find that so
long as there was no order or instrument executed by or on behalf of the
Government in the name of the Governor, and signed by an
authorised/empowered Officer, the existence of the necessary direction from
the State Government could not be inferred.
8. As against the facts in the said case, we find from the records
before us that the State appeals against the acquittal of various accused
were admitted and numbered as early as 2014, and the present objection as
regards their maintainability is raised only at the time of hearing.
Considering a belated objection regarding maintainability becomes
problematic when the documents necessary to determine the merits of the
objection cannot be obtained by the court owing to the passage of time. Not
surprisingly, the Special Prosecutor now appearing before us was not able to
produce any Government Order pertaining to the period when the appeals
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 43 ::& 403/2014 & CRA(V).No.571/2015
were filed as he does not have access to the files that were maintained by
the earlier Prosecutor who had filed the appeals. However, we find from the
records that there is a specific Government Order authorising the present
Special Prosecutor to pursue all appeals arising from the judgment of the
trial court before this Court. This latter Government Order was passed in
2021 when the Special Prosecutor, who was originally appointed to
prosecute the matter before the trial court, had resigned during the
pendency of these appeals. In our view, the latter Government Order can be
seen as ratifying any earlier decision taken by the State Government to
prefer appeals against the orders of acquittal of the trial court and can
operate as the direction of the State Government for the purposes of Section
378 (1) of the Cr.P .C.
Discussion on Merits:
9. Moving now to the merits of these appeals, we find from a reading
of the charges framed against the various accused that the case of the
prosecution, broadly stated, is that there was a conspiracy hatched by
certain members of the CPI (M) to murder T.P . Chandrasekharan and that in
furtherance of the said conspiracy, certain assassins were hired to carry out
the crime and others instructed to destroy the evidence and shield the
perpetrators of the crime from the law enforcement agencies. In a matter of
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 44 ::& 403/2014 & CRA(V).No.571/2015
this magnitude, where on account of the sheer volume of oral and
documentary evidence that had to be traversed, the submissions of the
learned counsel on either side spanned a period of almost sixty days, we feel
it would be apposite to discuss the evidence in chronological sequence. Such
a discussion has the benefit of arranging and aligning our thought process to
the same sequence, as the prosecution alleges the events to have unfolded,
and also helps us understand the manner in which the investigating agency
pursued the investigation. The latter aspect gains importance when we find
that it is the case of the appellants/convicted accused before us that the
investigation of the case was in itself faulty and unfair to the accused and
that, therefore, the inadequacies thereof should operate in favour of the
accused.
9.1. As the case before us involves both direct and circumstantial
evidence, we might notice the principles that have to guide us in the analysis
of such evidence. As is well settled, it is a cardinal principle in our criminal
justice system that a person arraigned as an accused is presumed to be
innocent unless that presumption is rebutted by the prosecution by the
production of evidence as may show him to be guilty of the offence with
which he is charged. The burden of proving the guilt of the accused is on the
prosecution, and unless it relieves itself of that burden, the courts cannot
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 45 ::& 403/2014 & CRA(V).No.571/2015
record a finding of guilt against an accused. Even in cases where the Statute
raises a presumption regarding the guilt of an accused, the burden is on the
prosecution to prove the existence of facts which must be present before the
presumption can be drawn. It is only thereafter that the accused would be
called upon to rebut the presumption. Another principle in our criminal
justice system 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 favourable to the accused should be adopted. This
principle has special relevance in cases wherein the guilt of the accused is
sought to be established by circumstantial evidence. Accordingly, unless the
evidence adduced in the case is consistent only with the hypothesis of the
guilt of the accused and is inconsistent with that of his innocence, the court
should refrain from recording a finding of guilt of the accused. As a
corollary, if the court entertains a reasonable doubt regarding the guilt of
the accused, the benefit of that doubt must go to the accused. At the same
time, the court should not reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of conjectures .2 As was observed
by the Supreme Court in Shivaji Sahebrao Bobade3, “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
2 Kali Ram v. State of Himachal Pradesh – [(1973) 2 SCC 808]3 Shivaji Sahebrao Bobade v. State of Maharashtra – [(1973) 2 SCC 793]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 46 ::& 403/2014 & CRA(V).No.571/2015
be” is long and divides vague conjectures from sure conclusions”. Mere
suspicion, however strong or probable it may be, is no effective substitute
for the legal proof required to substantiate the charge of commission of a
crime and the graver the charge is, the greater the standard of proof
required.4
9.2. That said, we must also bear in mind that proof beyond
reasonable doubt is a guideline and not a fetish, and a guilty man cannot get
away with it because truth suffers some infirmity when projected through
human processes. The credibility of testimony, oral or circumstantial,
depends considerably on a judicial evaluation of the totality, not isolated
scrutiny. While it is necessary that proof beyond reasonable doubt should be
adduced in all criminal cases, it is not necessary that it should be perfect.5
9.3. Keeping the above aspects in mind, we choose to arrange the
following discussion under three heads, namely (i) The conspiracy, (ii) The
incident and (iii) The abetment and harbouring of the various accused.
Under each head, we proceed to deal with the gist of the prosecution case,
followed by the findings of the trial court, the arguments in appeal and our
specific findings. While entering our findings under each head, we have
4 Ashish Batham v. State of MP – [(2002) 7 SCC 317]5 Inder Singh & Another v. State (Delhi Administration) – [(1978) 4 SCC 161]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 47 ::& 403/2014 & CRA(V).No.571/2015
chosen not to elaborate too much on those issues on which we concur with
the reasoning and finding of the trial court. Even on issues where we felt,
based on our appreciation of the evidence, that an alternate view was
possible, we have taken into consideration the fact that the trial court had
the benefit of observing the demeanour of the witnesses before it and,
therefore, deferring to the views of the trial court, we have chosen not to
interfere with the finding of the trial court. It is only in those situations
where we felt that the trial court's finding was not legally sustainable based
on the evidence on record that we have chosen to differ therefrom.
The Conspiracy
10. The trial court has convicted only three persons - A8 K.C.
Ramachandran, A11 Manojan and A13 Kunhanandan for the offence
punishable under Section 120B read with 302 IPC. The said finding was
entered into after analysing the evidence on record that pointed to their
presence at A13’s house on a particular day. Although the prosecution had
alleged the involvement of other accused in the conspiracy and adduced
evidence to suggest that they had met at various locations to carry forward
the plan of murder, the trial court found that only the meeting involving the
above three accused stood proved and hence only three of them could be
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 48 ::& 403/2014 & CRA(V).No.571/2015
convicted for the offence punishable under Section 120B read with Section
302 IPC. For the reasons that are to follow, we find ourselves at variance
with the trial court as regards the manner in which the evidence is to be
appreciated while entering a finding of conspiracy, and, consequently, we do
not accept the findings of the trial court on this issue.
10.1. The gist of the offence of conspiracy lies not in doing the act or
effecting the purpose for which the conspiracy is formed, attempting to do
them, or inciting others to do them, but in forming the scheme or agreement
between the parties. The existence of an agreement is essential to a finding
of conspiracy. In fact the word “conspiracy” derives from the Latin words
“con” and “spirare” meaning “to breathe together”. Thus, for an
arrangement to constitute an agreement, the parties to it must share the
same design or purpose so it can be said that they truly breathe together6.
Mere knowledge, or even discussion, of the plan is not per se enough7.
10.2. Generally, a conspiracy is hatched in secrecy, and it may be
difficult to adduce direct evidence of the same. As was observed by the
Supreme Court on several occasions, in the case of offences that are
committed in secrecy, it will be extremely difficult for the prosecution to lead
6 Paul Jarvis & Michael Bisgrove, “ The Use and Abuse of Conspiracy ”, (2014) Crim.L.R., Issue 4, 2597 Russel on Crime (12th Edn, Vol.1, p.202)
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 49 ::& 403/2014 & CRA(V).No.571/2015
evidence to establish the guilt of the accused if the strict principle of
circumstantial evidence is insisted upon by the courts. A Judge does not
preside over a criminal trial merely to see that no innocent man is punished.
He also presides to see that a guilty man does not escape the clutches of the
law. The law does not, therefore, enjoin a duty on the prosecution to lead
evidence of such character, which is almost impossible to be led, or at any
rate, extremely difficult to be led. The duty on the prosecution is to lead
such evidence which it is capable of leading, having regard to the facts and
circumstances of the case.8
10.3. The prosecution will often rely on evidence of acts of various
parties to infer that they were done in reference to their common intention.
The prosecution will also more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence direct or
circumstantial, but the court must enquire whether the two persons are
independently pursuing the same end or they have come together in the
pursuit of the unlawful object. The former does not render them
conspirators, but the latter does. It is, however, essential that the offence of
conspiracy requires some kind of physical manifestation of agreement. The
express agreement, however, need not be proved. Nor is the actual meeting
8 Wazir Khan v. State of Uttarakhand – [(2023) 8 SCC 597]; Trimukh Maroti Kirkan v. State of Maharashtra – [(2006) 10 SCC 681]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 50 ::& 403/2014 & CRA(V).No.571/2015
of two persons necessary. Nor is it necessary to prove the actual words of
communication. The evidence as to transmission of thoughts sharing the
unlawful design may be sufficient.9 In other words, it will suffice if there is a
tacit understanding between conspirators as to what should be done so long
as the relative acts or conduct of the parties are conscientious and clear to
mark their concurrence as to what should be done.
10.4. It cannot also be forgotten that a criminal conspiracy is a
partnership in agreement, and there is in each conspiracy a joint or mutual
agency for the execution of a common object, which is an offence or an
actionable wrong. When two or more persons enter a conspiracy, any act
done by any one of them pursuant to the agreement is, in the contemplation
of the law, the act of each of them, and they are jointly responsible therefor.
This means that everything said, written or done by any of the conspirators
in the execution of or reference to their common intention is deemed to have
been said, done or written by each of them. This is so whether the
conspirators are enrolled in a chain where 'A' enrols 'B', 'B' enrols 'C' and so
on, or if the enrolment is of a wheel-and-hub nature where a single person at
the centre does the enrolling and all other members are unknown to each
other, though they know that there are other members. Persons may be
members of a single conspiracy even though each is ignorant of the identity
9 Mohd. Naushad v. State (NCT of Delhi) – [(2023) SCC Online SC 784]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 51 ::& 403/2014 & CRA(V).No.571/2015
of many others who may have diverse roles to play. It is not part of the crime
of conspiracy that all the conspirators need to agree to play the same or an
active role.10 This doctrine of agency, that is often referred to as “the
prosecutors darling”11 because it recognises an exception to the hearsay rule
and allows the prosecution to adduce as evidence against every
conspirator's acts or declarations made by one or more of their number in
furtherance of their common design, finds statutory recognition in India
under Section 10 of the Indian Evidence Act that reads:
“Where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference to
their common intention, after the time when such intention was first
entertained by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring as well for the purposes of proving
the existence of the conspiracy as for the purpose of proving the existence
of the conspiracy as for the purpose of showing that any such person was
a party to it.”
10.5. As per the above statutory provision (i) there has to be prima
facie evidence affording a reasonable ground for the court to believe that
two or more persons are members of a conspiracy (ii) if the said condition is
fulfilled, anything said, done or written by any one of them in reference to
their common intention will be evidence against the other (iii) anything said,
done or written by him should have been said, done or written by him after
10 State through Superintendent of Police CBI/SIT v. Nalini – [(1999) 5 SCC 253]11 The expression was first coined by S.A.Klein in “ Conspiracy – The Prosecutor’s Darling ”, (1957) 24 Brooklyn L.Rev.1
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 52 ::& 403/2014 & CRA(V).No.571/2015
the intention was formed by any one of them (iv) it would also be relevant
for the said purpose against another who entered the conspiracy whether it
was said, done or written before he entered the conspiracy or after he left it,
and (v) it can only be used against a co-conspirator and not in his favour.12
10.6. Broadly stated, the circumstances in a case, when taken
together at face value, should indicate the meeting of minds between the
conspirators for the intended object of committing an illegal act or an act
which is not illegal, by illegal means. A few bits here and there on which the
prosecution relies cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It has to be shown
that all means adopted, and illegal acts done were in furtherance of the
object of the conspiracy hatched. Further, the circumstances relied on for
the purposes of drawing an inference should be prior in point of time than
the actual commission of the offence in furtherance of the alleged
conspiracy.13
10.7. The principles governing the law of conspiracy in India have
been succinctly summarised in Nalini14 and Navjot Sandhu15 as follows:
12 Sardar Sardul Singh Caveeshar v. State of Maharashtra – [AIR 1965 SC 682]13 Esher Singh v. State of A.P. – [(2004) 11 SCC 585]14 State through Superintendent of Police CBI/SIT v. Nalini – [(1999) 5 SCC 253]15 State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru – [(2005) 11 SCC 600]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 53 ::& 403/2014 & CRA(V).No.571/2015
1.Under Section 120-A IPC offence of criminal conspiracy is committed
when two or more persons agree to do or cause to be done an illegal act
or legal act by illegal means. When it is a legal act by illegal means overt
act is necessary. Offence of criminal conspiracy is an exception to the
general law where intent alone does not constitute crime. It is intention to
commit crime and joining hands with persons having the same intention.
Not only the intention but there has to be agreement to carry out the
object of the intention, which is an offence. The question for consideration
in a case is did all the accused have the intention and did they agree that
the crime be committed. It would not be enough for the offence of
conspiracy when some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence be committed.
2.Acts subsequent to the achieving of the object of conspiracy may tend to
prove that a particular accused was party to the conspiracy. Once the
object of conspiracy has been achieved, any subsequent act, which may be
unlawful, would not make the accused a part of the conspiracy like giving
shelter to an absconder.
3.Conspiracy is hatched in private or in secrecy. It is rarely possible to
establish a conspiracy by direct evidence. Usually, both the existence of
the conspiracy and its objects have to be inferred from the circumstances
and the conduct of the accused.
4.Conspirators may for example, be enrolled in a chain – A enrolling B, B
enrolling C, and so on; and all will be members of a single conspiracy if
they so intend and agree, even though each member knows only the
person who enrolled him and the person whom he enrols. There may be a
kind of umbrella-spoke enrolment, where a single person at the centre
does the enrolling and all the other members are unknown to each other,
though they know that there are to be other members. These are theories
and in practice it may be difficult to tell which conspiracy in a particular
case falls into which category. It may however, even overlap. But then
there has to be present mutual interest. Persons may be members of
single conspiracy even though each is ignorant of the identity of many
others who may have diverse roles to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an
active role.
5.When two or more persons agree to commit a crime of conspiracy, then
regardless of making or considering any plans for its commission, and
despite the fact that no step is taken by any such person to carry out their
common purpose, a crime is committed by each and every one who joins
in the agreement. There has thus to be two conspirators and there may be
more than that. To prove the charge of conspiracy it is not necessary that
intended crime was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy.
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 54 ::& 403/2014 & CRA(V).No.571/2015
6.It is not necessary that all conspirators should agree to the common
purpose at the same time. They may join with other conspirators at any
time before the consummation of the intended objective, and all are
equally responsible. What part each conspirator is to play may not be
known to everyone or the fact as to when a conspirator joined the
conspiracy and when he left.
7.A charge of conspiracy may prejudice the accused because it forces them
into a joint trial and the court may consider the entire mass of evidence
against every accused. Prosecution has to produce evidence not only to
show that each of the accused has knowledge of the object of conspiracy
but also of the agreement. In the charge of conspiracy, the court has to
guard itself against the danger of unfairness to the accused. Introduction
of evidence against some may result in the conviction of all, which is to be
avoided. By means of evidence in conspiracy, which is otherwise
inadmissible in the trial of any other substantive offence prosecution tries
to implicate the accused not only in the conspiracy itself but also in the
substantive crime of the alleged conspirators. There is always difficulty in
tracing the precise contribution of each member of the conspiracy but
then there has to be cogent and convincing evidence against each one of
the accused charged with the offence of conspiracy. As observed by Judge
Learned Hand “this distinction is important today when many prosecutors
seek to sweep within the dragnet of conspiracy all those who have been
associated in any degree whatever with the main offenders”.
8.As stated above it is the unlawful agreement and not its accomplishment,
which is the gist or essence of the crime of conspiracy. Offence of criminal
conspiracy is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is the unlawful
agreement which is the gravamen of the crime of conspiracy. The unlawful
agreement which amounts to a conspiracy need not be formal or express,
but may be inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The agreement need
not be entered into by all the parties to it at the same time, but may be
reached by successive actions evidencing their joining of the conspiracy.
9.It has been said that a criminal conspiracy is a partnership in crime, and
that there is in each conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or more persons enter into a
conspiracy, any act done by any of them pursuant to the agreement is, in
contemplation of law, the act of each of them and they are jointly
responsible therefor. This means that everything said, written or done by
any of the conspirators in execution or furtherance of the common
purpose is deemed to have been said, done or written by each of them.
And this joint responsibility extends not only to what is done by any of the
conspirators pursuant to the original agreement but also to collateral acts
incidental to and growing out of the original purpose. A conspirator is not
responsible, however, for acts done by a co-conspirator after termination
of the conspiracy. The joinder of a conspiracy by a new member does not
create a new conspiracy nor does it change the status of the other
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 55 ::& 403/2014 & CRA(V).No.571/2015
conspirators, and the mere fact that conspirators individually or in groups
perform different tasks to a common end does not split up a conspiracy
into several different conspiracies.
10.A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who commits an overt act
with knowledge of the conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with other conspirators,
actually standing by while the others put the conspiracy into effect, is
guilty though he intends to take no active part in the crime.
11.The cumulative effect of the proved circumstances should be taken into
account in determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Of course, each one of
the circumstances should be proved beyond reasonable doubt.
12.In regard to the appreciation of evidence relating to the conspiracy, the
Court must take care to see that the acts or conduct of the parties must
be conscious and clear enough to infer their concurrence as to the
common design and its execution.
Analysis of the evidence.
11. In the instant case, the prosecution would contend that the
conspiracy that was hatched to murder T.P . Chandrasekharan cannot be
appreciated save in the backdrop of the series of events that unfolded in the
past pursuant to the souring of relations between the members of the CPI
(M) and those of the RMP . We gather from the evidence on record, especially
the testimony of PW5 Rema, the widow of T.P . Chandrasekharan, that T.P .
Chandrasekharan, who was an active member and local leader of the CPI
(M), had apparently left the CPI (M), along with a few other disgruntled
members of the party to form a new party called the 'Revolutionary Marxist
Party' (RMP). While the new political outfit presented a strong challenge to
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the CPI (M) in Onchiyam, Chorode, Azhiyoor and Eramala Panchayats, the
decision of the RMP to field T.P . Chandrasekharan as a candidate from the
Vatakara Lok Sabha constituency proved fatal for the CPI (M) candidate in
the election that followed for the latter lost to a Congress candidate. This
had infuriated the CPI (M) leadership, who felt that T.P . Chandrasekharan
was responsible for the split in the party. It is pointed out that even before
the said election, and in the run-up to it, there had been a scuffle between
the workers of the RMP party and those of the CPI (M), in which A14 P .
Mohanan, who was then the Chief election agent of the CPI (M) candidate,
had sustained injuries. A14 had then filed an FIR (Ext.P567) against some of
the RMP workers, although the said proceedings were later withdrawn.
Reference is also made to Exts.P424 report, Ext.P425 FIR and Ext.P426 final
report filed in 2012 in connection with a conspiracy hatched to take
Chandrasekharan’s life in 2009. The said conspiracy allegedly involved
persons arrayed as accused in the present case, such as A2 Manoj Kumar @
Kirmani Manoj, A4 Rajeesh Thundikandi @ TK, A6 Sijith @ Annan Sijith, A8
K.C. Ramachandran, A9 C.H. Ashokan, A10 K.K. Krishnan, A15 Ajesh P . @
Kajoor and A39 M. Abhineet. Exts.P570 and P568 FIRs are relied upon to
show that there were attacks on members of the RMP by members of the
CPI (M) in 2009 and 2010, respectively, and that the modus operandi for
those attacks bear close resemblance to the modus operandi adopted in the
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instant case. Further, an attack was mounted on an RMP worker, Balan, on
21.02.2012, as evident from Ext.P569 FIR and in the case registered
thereafter, A8 K.C. Ramachandran was cited as an accused and had
undergone incarceration for some time. When he was released from prison,
the CPI (M) organised a public meeting to glorify him for his actions and in
that meeting, A10 K.K. Krishnan made a fiery speech threatening to kill T.P .
Chandrasekharan if he persisted with his anti-CPI (M) campaign. In the
speech stands proved through the deposition of PW6 Achuthan and PW5
Rema, the wife of T.P . Chandrasekharan, who deposed about the statements
made to her by her late husband. PW6 also deposed that A8 K.C.
Ramachandran was also present at the venue where the speech was made
and was seen along with A10 K.K. Krishnan in the vicinity shortly thereafter.
Although the defence tried to discredit the testimony of PW6 by pointing out
that in the absence of any evidence to show that there was a microphone
through which the speech was delivered, he could not have heard the
speech, we find that the testimony of PW6 was that the speech was
delivered from a place very near to his shop and therefore he could hear the
speech even if there was no microphone. We don’t see any reason to doubt
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the correctness of this testimony of a person who deposed that he actually
heard the speech. Further, this testimony is corroborated by the evidence of
PW5 Rema, whose deposition that she heard about the said speech from her
husband is admissible in terms of Section 32 (1) of the Indian Evidence Act.
It may not be out of place at this juncture to also refer to her testimony that
her husband had told her about one week prior to his assassination that if
something were to happen to him at the instance of the CPI (M), that could
only happen with the knowledge of A8 K.C. Ramachandran, A9 C.H.
Ashokan, A10 K.K. Krishnan and A14 Mohanan Master. We might also refer
to Exts.P160-167 Police Intelligence Reports, marked through PW128 the
ASI, CBCID, HHW-III and proved through PW139 to PW141, who are all
Dy.SP’s SB, CID (Rural), Kozhikode. Viewed against the backdrop of the
above Intelligence Reports that suggested the existence of a threat to the
life of T.P . Chandrasekharan at the instance of members of the CPI (M) and
also recommended police protection to the life of T.P . Chandrasekharan, the
above speech of A10 K.K. Krishnan can, in our view, be seen as providing not
only the motive but also the necessary incitement for the series of steps then
taken by others in furtherance of the common design to murder T.P .
Chandrasekharan.
11.1. The furtherance of the conspiracy through separate meetings of
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the various conspirators on 2.4.2012, 10.4.2012, 20.4.2012, 24.4.2012 and
25.4.2012 respectively is sought to be proved through witnesses who
deposed to having seen the respective accused in the area where the
meetings are said to have taken place at or about the relevant time, as also
through an analysis of the Call Data Records (CDR) pertaining to the phones
stated to be used by the said accused, and the procurement and use by the
various accused of an Innova vehicle in connection with the commission of
the offences alleged against them.
11.2. It is the definite case of the prosecution that there were four
phones, referred to by the prosecution as Operation Phones (OP) 1, 2, 3 and
4, respectively, that were specifically procured by the accused for use in
connection with the conspiracy and the murder that followed. The details of
the said phones, together with the reference to them in the evidence
adduced on behalf of the prosecution are as shown in the table annexed as
Appendix I to this judgment.
11.3. An analysis is attempted by the prosecution of the details shown
in the CDR’s pertaining to the Operational Phones and the details in the
CDR’s pertaining to the phones normally used by the accused to suggest that
some of the accused actually used the Operational Phones for committing
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the crimes, and the analytical reasoning put forth by the prosecution, in its
attempt to connect the accused with the crime through the call data records
pertaining to the phones, is as follows:
a.The Operational Phones, although activated variously on
19.04.2012, 25.04.2012 and 01.05.2012 respectively, were not
used beyond 04.05.2012, the night of the murder.
b.Several calls were made between the Operational Phones, as well
as between the Operational Phones and the regular phones of the
accused, with heightened call activity during the time frames
associated with the events alleged against the accused in this case.
c.The tower locations of the phones in question coincided with the
tower locations specific to the places where the
conspiracies/murder took place and within the time frames during
which they are stated to have occurred.
d.The unusual nature of the calls stems from the fact that they were
made between persons who were not, under normal
circumstances, obliged to speak to each other at all or so
frequently since there was no necessity to do so while going about
their daily activities. In particular, the prosecution points to the
hierarchical structure that informs the administration of the
CPI(M) party with the Central Committee at the National level, the
State Committee at the State level, the District Committee, the
Area committee, the Local committee, and branches within each
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district in the State. It is argued that office bearers at the local
committee level do not normally discuss official matters with office
bearers higher up in the hierarchy outside their district, and if
there are a large number of calls between such persons, then the
presumption that the discussion pertained to the official matters
cannot be invoked.
e.That A8 K.C. Ramachandran was the mastermind behind
effectuating the conspiracy, and it is he who contacted the other
accused at various stages and roped them in as co-conspirators to
achieve the object of murdering T.P . Chandrasekharan.
11.4. The arguments of the prosecution have been seriously contested
by the learned counsel for the appellants/convicted accused, who point to
the dangers of relying on the CDR data, which, according to them, fail the
test of admissibility under the Indian Evidence Act. It is contended that the
trial court erred in placing reliance on the CDR data while entering the
findings against them regarding the commission of the various offences for
which they were convicted. It is their submission that the CDRs were not
properly proved since the Section 65B certification required to establish
their admissibility in evidence was not separately proved by marking the
certificate through its maker. The learned counsel places reliance on the
decisions in Anvar16 and Arjun Panditrao17 in support of his contention. Per
16 Anvar PV v. P.K Basheer & Ors – [(2014) 10 SCC 473]17 Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors – [(2020) 7 SCC 1]
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contra, the learned special prosecutor would refer to the deposition of the
various nodal officers of the mobile telephone operators concerned to
demonstrate that the CDRs were marked variously as ‘certified copy of the
CDR’ or separately as ‘CDR’ and ‘Certificate’ under Section 65B of the
Indian Evidence Act. It is his contention, therefore, that the requirements of
Section 65B of the Indian Evidence Act were duly complied with, and the
CDR and certificate were marked through the nodal officer who was also the
officer in charge of the computer in which the data was stored and therefore
the certifying authority under the Act. On a consideration of the rival
contentions, we are inclined to agree with the special prosecutor that the
CDR data was duly proved through the examination of the nodal officer
concerned. Merely because the CDR and its certification were contained in
one document that was marked as a ‘certified copy of the CDR’, it cannot be
said that the issuance of the certificate was not duly proved. The use of the
word ‘certified’ denotes that the document was certified in accordance with
the provision of a law that provided for its certification. That law in the
present context is Section 65B of the Indian Evidence Act. So long as the
certificate that formed part of the CDR as a single document contained the
certification required in terms of Section 65B of the Indian Evidence Act, in
the manner clarified in Anvar and Arjun Panditrao (supra) , and it was
marked through the nodal officer concerned who was its author, it had to be
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seen as properly proved.
11.5. We do find force, however, in the objections raised by the
learned counsel for the appellants/convicted accused that in respect of many
of the phones, their use by the accused has not been proved, and further, the
incriminating circumstance as regards the use of the phone by the various
accused was never put to the accused concerned during their examination
under Section 313 Cr.P .C. This is a serious omission on the part of the
prosecution and one that forces us to discard such evidence. The stated
object of examination of an accused under Section 313 Cr.P .C is to enable
the accused personally to explain any inculpatory material against him in the
evidence adduced by the prosecution. The attention of the accused has to be
drawn to such material, and he should be given an opportunity to explain
it.18 That said, it is not necessary to ask him to explain any inference that a
court may be asked to draw and be prepared to draw from the evidence on
record.19 The questions by the court must be fair and framed in such a way
that it would enable even an ignorant or illiterate accused to know what he
is to explain and what the circumstances against him are, for which an
explanation is needed. He should be questioned separately about each
material fact which is intended to be used against him.20 It follows,
18 Asraf Ali v. State of Assam – [(2008) 16 SCC 328]
19 R.K.Dalmia & Ors v. Delhi Administration – [AIR 1962 SC 1821]20 Hate Singh Bhagat Singh v. State of Madhya Bharat – [AIR 1953 SC 468]; Jai Prakash Tiwari v. State of Madhya Pradesh – [AIR 2022 SC 3601]; Raj Kumar v. State (NCT of Delhi) – [(2023) 5 SCR 754]
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therefore, that if the incriminating circumstances arising against the
accused in the evidence adduced by the prosecution are not put to the
accused, the evidence in that regard cannot be used against the said
accused.
11.6. When we exclude those phones that have not been proved as
used by any of the accused and apply the filter of Section 313 Cr.P .C
examination to the CDR data adduced as evidence against the various
accused, we find that only the CDR data in respect of the phones relatable to
the following accused can be accepted as admissible evidence.
Name of Accused Phone Number Service
ProviderCall Data
RecordsNodal Officer
Manoj Kumar @Kirmani Manoj (A2)9947212020 IdeaExt.P252PW151
T.K. Rajeesh (A4) 9544785375 IdeaExt.P248PW151
Muhammed Shafi (A5) 9562681111 IdeaExt.P244PW151
K.C.Ramachandran (A8) 94475439638547348707B.S.N.L.Ext.P310Ext.P311PW158
V . Manojan (A11) 9495260673 B.S.N.L.Ext.P317PW158
Geothi Babu (A12) 9447688670 B.S.N.L.Ext.P314PW158
Kunhanandan (A13) 9447642688 B.S.N.L.Ext.P304PW158
P . Mohanan (A14) 9495804804 B.S.N.L.Ext.P329PW158
P .V . Rafeek (A18) 9645193160 VodafoneExt.P295PW152
11.7. The CDR data pertaining to the above-mentioned phones,
covering the period shown therein, would reveal that several calls were
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made between the above accused between 05.04.2012 and 17.05.2012 as
seen from the table annexed as Appendix II to this judgment. While the
defence does not dispute the making of these calls, they would argue that
the calls had no nexus with the commission of any of the offences charged
against them.
The meeting on 02.04.2012:
12. It is the case of the prosecution that sometime between 3 and
3.30 pm on 02.04.2012, A8 K.C. Ramachandran, A9 C.H. Asokan, A10 K.K.
Krishnan and A14 P . Mohanan met at the flower shop owned by A30
Raveendran at Orkatteri and conspired to take the life of T.P .
Chandrasekharan. The principal witness cited by the prosecution to prove
this meeting is PW126 Suresh Babu, who worked as a milk plant operator at
a dairy co-operative in the area and who deposed that between 3 and 3.25
pm on 02.04.2012, while he was on his way to a neighbouring studio, along
with his friend, to get some prints of his daughter’s photograph, he saw A8,
A9, A10 and A14 who were active members of the CPI (M) enter the flower
shop of A30. Later, while he was returning from the studio, he heard the
conversation between the aforementioned accused, whereby they suggested
that T.P . Chandrasekharan must not be spared for his actions against the
interests of their party. In cross-examination, however, the defence has
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pointed to certain material inconsistencies with his previous statement
under Section 161 (3) of Cr.P .C., such as with regard to the time that he had
gone to the studio (in his previous statement, he had stated that he went to
the studio at 3.15 pm whereas, in his deposition before the court, he stated
the time to be 3 pm). The time assumes importance while appreciating the
evidence of PW126 because the defence has a case, relying on the
deposition of DW5, P .M. Bhaskaran, a professional photographer, that the
aforementioned accused were at a function in Onchiyam Martyr’s Square,
some distance away from the flower shop around the same time. DW5
Bhaskaran deposed that he had been hired to take photographs of the
function at the square and that he had reached the square by 2.30 pm on
02.04.2012, and he was there till 4 pm taking photographs of the event. He
has also deposed that he saw the aforementioned accused at the square
while taking the photographs, although he does not remember the exact
time the accused arrived at the square. Although the defence marked
certain photographs taken by DW5 at the square to show that the accused
were at the square during the time when PW126 deposed to having seen
them at the flower shop, it is the specific case of the prosecution that the
said photographs, and the time stamp shown on them, cannot be admitted in
evidence since the necessary certification in terms of Section 65B of the
Indian Evidence Act was not produced by the defence.
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12.1. The trial court, at paragraphs 408 to 430 of the impugned
judgment, found that there was no improbability in the evidence of PW126
Suresh Babu that at about 3 pm or 3.15 pm on 2.4.2012 he had gone to the
studio there to take prints of his daughter’s photograph and that the
variation of time in his testimony had no effect on the plea of alibi raised by
the accused (which the court found had not been established). It also
believed him to be a person who could identify the voice of A8 K.C.
Ramachandran and A14 P . Mohanan as he was a local leader of the CPI (M)
as were A8 and A14. It found that A8 and A14 had admitted in their
statements filed under Section 313 Cr.P .C that they had previous
acquaintance with PW126. His testimony that his duty time at the milk
society ended at 1400 hrs that day was also found acceptable. Despite that,
however, his testimony was found unreliable on account of the fact that he
was a partisan witness who had reasons to be inimical towards the leaders
of CPI (M) and also because the court found it highly improbable that the
conspirators would talk in a loud voice about a sensitive issue and that too in
a shop where anybody could have entered without notice.
12.2. We concur with the trial court's finding that it was highly
improbable that the conspirators would talk loudly about a sensitive issue
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and that it was unbelievable that PW126 would have overheard their
conversation. That apart, the oral evidence of DW5 P .M. Bhaskaran, the
professional photographer, also establishes the presence of A8 and A14 at
the Onchiyam Martyr’s Square during the relevant time. Axiomatically, the
alleged meeting of 02.04.2012 has to be seen as not proved.
Events between 02/04/2012 and 10/04/2012:
13. The prosecution relies on the CDR details of the phones allegedly
used by A1 Anoop, A8 K.C. Ramachandran, A9 C.H. Asokan, A10 K.K.
Krishnan, A11 Manojan and A12 Geothi Babu to show that there were a
series of phone calls between the said accused on the days between
02.04.2012 when the first meeting took place at the flower shop at Orkatteri
and 10.04.2012 when the next meeting took place at Sameera Quarters,
Chokli. However, for the reasons already stated above while discussing the
admissibility of CDR data, we can consider only the 11 calls made between
A8, A11 and A12 during the said period, the details of which are shown in
Appendix II.
The meeting on 10.04.2012:
14. The prosecution alleges that on 10.04.2012, between 4 and 5 pm,
A1 Anoop, A3 Kodi Suni, A8 K.C. Ramachandran, A11 Manojan and A12
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Geothi Babu met at a room in Sameera Quarters, Chokli with a view to carry
forward their plans to eliminate Chandrasekharan. One of the witnesses
relied on by the prosecution to prove the said meeting is PW86 Kattil
Pushparaj, a contract worker who supposedly went to Sameera Quarters to
find migrant labourers to employ them for some contract work. He deposed
that he had political affiliation with the RSS and that when he had gone to
the quarters on that day, he saw all the aforementioned accused, except A12
Geothi Babu, in a room on the first floor of the building. The prosecution
also relies on the CDR pertaining to the phones used by the said accused to
demonstrate that although many calls were made between the said accused
during the day on 10.04.2012, there were hardly any calls between them
from 4.10 pm to 5 pm on that day. The prosecution uses this evidence to
suggest that the aforesaid accused were, in fact, present in the room in
Sameera Quarters on the said date in connection with the conspiracy. The
defence argument is that PW86’s testimony has to be seen as that of a
partisan witness since he is an office bearer of the RSS, and he was an
accused in a murder case involving a CPI (M) worker. They also place
reliance on Ext.P357 mahazar to demonstrate that while PW86 had deposed
that he saw the various accused through a window to the room where they
were present, there was, in fact, no window to the said room. His
identification of A8 on 15.06.2012 at the office of the Dy.SP is also
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challenged by pointing out that A8 was in judicial custody that day. They also
highlight certain omissions and contradictions in the evidence of this
witness.
14.1. The other witness on whom reliance is placed by the
prosecution is PW162 Sajeendran Meethal, a coolie worker, who deposed to
having seen all the above accused at the balcony on the first floor of
Sameera Quarters at about 5 pm on 10.04.2012. He went on to identify the
said accused in court at the time of his examination. In cross-examination, it
was brought out by the defence that he is affiliated with the RSS and was
involved in a case for the attempted murder of a CPI (M) worker. It was also
brought out that in his previous statement, he had stated that it was because
he saw the other accused along with A3 Kodi Suni and A5 Mohammed Shafi
that his attention was drawn to their presence on the first floor of Sameera
Quarters, whereas in his deposition in court, he stated that he had seen the
other accused along with A3 Kodi Suni and that A5 Mohammed Shafi was
not there. Here too, the defence argument is that the witness has to be seen
as a partisan witness owing to his association with the RSS. It is also pointed
out that he was involved as an accused in a case of attempted murder of a
CPI (M) worker. They also highlighted certain omissions and contradictions
in the evidence of this witness, especially his erroneous identification of A5
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Mohammed Shafi and his statement that he did not know anything about
A12 Geothi Babu or his family members.
14.2. The trial court, at paragraphs 431 to 437 of the impugned
judgment, found the evidence of PW86 and PW162 unreliable because they
were partisan witnesses and were likely to falsely implicate CPI (M) workers
because of their political enmity with the latter. On an appreciation of the
evidence on record, however, we are inclined to take a different view. It is
trite that the credibility of a witness is not to be disbelieved solely because
his political affiliation is opposed to that of the accused. As noted above,
barring their political affiliation, there is no material contradiction or
omission pointed out by the defence in the testimonies of the said witnesses
in court. PW86 clearly deposed that he saw A1 Anoop, A3 Kodi Suni and A8
K.C. Ramachandran in a room on the first floor of Sameera Quarters, and
PW162 deposed that he saw A1 Anoop, A3 Kodi Suni, A8 K.C.
Ramachandran, A11 Manojan and A12 Geothi Babu at the balcony on the
first floor of the said building. It is true that in Ext.P357 mahazar, there is no
mention of a window to the building, but PW163, who prepared Ext.P357
mahazar, gave a valid explanation that the non-mentioning of the window
therein was a bona fide omission. Further, the misdescription of the name of
one of the accused as Shafi in the 161 statement of PW162 cannot be seen
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as vitiating the entire testimony of the said witness, especially when the
deposition as a whole inspires confidence in the court. When minor
discrepancies or variations are pointed out in the statements of witnesses,
the court has to see whether these discrepancies and variations are material
and affect the prosecution's case substantially. Every variation may not be
enough to adversely affect the case of the prosecution. Similarly, the court
should not draw any conclusion by picking up an isolated portion from the
testimony of a witness without adverting to the statement as a whole.21
14.3. We find nothing to doubt the evidence of PWs 86 and 162 that
they saw A1, A3, A8, A11, and A12 at Sameera Quarters between 4 pm and 5
pm on 10.04.2012. Their evidence in this regard is consistent and credible
and inspires confidence, more so when we find that there is corroborative
electronic evidence in the form of CDR data (Exts.P310, P311, P317 & P314)
that proves that A8, A11 and A12 were within the coverage of the Chokli
Telecommunication tower during the relevant time. While it is significant
that the said accused were not residents of Chokli, the call records indicate
that although there were several calls between A8, A11 and A12 on that day,
there were no calls between them from 4 pm to 5 pm on that day although
they were within the range of the Chokli tower. This would suggest that they
were all together within the range of the Chokli Telecommunication tower
21 Shyamal Ghosh v. State of West Bengal – [(2012) 7 SCC 646]
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during the said period. We are therefore of the definite view that the
prosecution version that A1 Anoop, A3 Kodi Suni, A8 K.C. Ramachandran,
A11 Manojan and A12 Geothi Babi met at Sameera Quarters between 4 pm
and 5 pm on 10.04.2012 stands proved.
Events between 10/04/2012 and 20/04/2012:
15. The prosecution relies on the CDR details of the phones belonging
to A1 Anoop, A5 Mohammed Shafi, A8 K.C. Ramachandran, A10 Krishnan,
A11 Manojan, A12 Geothi Babu, A13 Kunhanandan to demonstrate that on
11.04.2012 there were calls between A13 Kunhanandan and A1 Anoop and
A12 Geothi Babu and A13 Kunhanandan. Similarly, on 13.04.2012, there
were calls between A8 Ramachandran and A10 Krishnan, A12 Geothi Babu
and A13 Kunhanandan. On 14.04.2012, there were calls between A8
Ramachandran and A10 Krishnan. On 15.04.2012, there were calls between
A12 Geothi Babu and A13 Kunhanandan, A12 Geothi Babu and A11
Manojan. On 16.04.2012, there were calls between A12 Geothi Babu and
A13 Kunhanandan. On 17.04.2012, there were calls between A1 Anoop and
A11 Manojan as well as between A8 Ramachandran and A10 Krishnan. On
18.04.2012, there were calls between A12 Geothi Babu and A13
Kunjanandan, as well as between A1 Anoop and A11 Manojan and A1 Anoop
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and A5 Mohammed Shafi. On 19.04.2012, there were calls between A1
Anoop and A11 Manojan as well as between A12 Geothi Babu and A13
Kunhanandan. It is the case of the prosecution that while under normal
circumstances, calls between the accused who are members/leaders of the
CPI (M) can probably be explained as routine in nature; it is the proximity of
these calls with the calls made between party members such as A13
Kunhanandan and persons with known criminal background such as A1
Anoop, who is not a party member, that suggest that the calls between the
party members/leaders too were made in connection with the conspiracy in
the instant case.
15.1. In this context, we have to bear in mind that we have earlier
dealt with the admissibility of electronic evidence as against the various
accused and have found that only the CDR data pertaining to those phones
mentioned in Appendix II will count as admissible evidence. Taking into
account only those phones for the present purposes, we find that there were
21 calls between A8 K.C. Ramachandran, A11 Manojan, A12 Geothi Babu
and A13 Kunhanandan. While the defence points out that it could well be
that the calls made between the above accused were routine ones to discuss
party matters or personal matters, we have to appreciate this evidence in
the light of the totality of the evidence regarding the conspiracy. The
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relevance of the above phone calls can be appreciated only at the stage of
analysing the evidence for the purposes of Section 10 of the Indian Evidence
Act. For the present, all that can be stated as proved is the making of the
calls by the above accused.
The meeting on 20.04.2012:
16. It is the prosecution case that on the morning of 20.04.2012,
between 7.30 and 8 am, A8 Ramachandran, A11 Manojan and A13
Kunjhnandan met at the last mentioned person’s house at Parattu to discuss
the steps to be taken in furtherance of the conspiracy to murder T.P .
Chandrasekharan. Reliance is placed on the testimony of PW19 Babu E, a
carpenter, who deposed that while he was going to Thiruvangad temple to
conduct a Santhanagopala Puja in the name of his wife at about 7.45 am that
morning, he saw A8 Ramachandran and A11 Manojan going into A13
Kunhanandan’s house. His testimony has been believed by the trial court at
paragraphs 438-448 of the impugned judgment, although the defence sought
to discredit him by producing DW4 Manoharan, the Executive Officer of
Thiruvangad temple, to depose that there was no Puja under the name of
Santhanagopala Puja offered at the temple.
16.1. The learned counsel for the convicted accused would point out
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that the testimony of PW19 if believed, would only establish that A8 and A11
were proceeding to the house of A13 on a motorcycle and not that they had,
in fact, gone into the house. Further, nothing in the testimony pointed to the
presence of A13 in the house or their meeting with A13 therein. We find
ourselves unable to accept the submissions of the learned counsel. The trial
court, on the basis of the material considered by it, was justified in finding
that the testimony of PW19 effectively proved the presence of A8 and A11 at
the house of A13 and that A8, A11 and A13 had a meeting therein. We have
come across corroborative electronic evidence that places A8, A11 and A13
within the range of the Paratt telecommunication tower during the relevant
time. Further, A13, in his written statement under Section 313, categorically
states that A8 and A11 did not come to his house that morning and not that
he was not there that morning. Considering the above evidence, we feel that
the presence of A8 and A11 in the house of A13 and the meeting between
them can be safely inferred. As regards the submission of the learned
counsel for the defence based on the testimony of DW4, we find that in his
cross-examination, DW4 admitted that a person who pays for a Vazhipadu
(offering) can get the Santhanagopala mantra chanted by the Pujari.
16.2. We also note that a comparison of the CDR data (Exts.P304,
P314 & P317) pertaining to the admissible phones relating to the respective
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accused indicates that there were 4 calls between A12 Geothi Babu, A13
Kunhanandan and A11 Manojan on that day as indicated in Appendix II.
While on the electronic evidence pertaining to this day, we might also notice
that the prosecution had a case that while having the meeting at the house
of A13, the latter had made a call to A14 Mohanan Master using one of the
Operational Phones that A8 was using. The prosecution relied upon this
evidence to connect A14 with the conspiracy. The trial court, however,
rejected this evidence, and in our view, rightly so, since there was no
admissible evidence regarding the use of the Operational Phone by A8.
Events between 20.04.2012 and 24.04.2012:
17. The prosecution has adduced evidence in the form of CDR data to
show that there were calls between A1 Anoop, A2 Kirmani Manoj, A5
Mohammed Shafi, A8 Ramachandran, A10 Krishnan, A11 Manojan, A12
Geothi Babu and A13 Kunhanandan during the aforesaid period. After
excluding those calls that were made from phones whose use by the accused
has not been proved, we find that there were 12 calls made between A2, A5,
A8, A11, A12 and A13, as indicated in Appendix II. Further, as already
discussed above, the relevance of the above phone calls can be appreciated
only at the stage of analysing the evidence for the purposes of S.10 of the
Indian Evidence Act. For the present, all that can be stated as proved is the
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making of the calls by the above accused.
The meetings on 24.04.2012:
18. The prosecution alleges that A2 Kirmani Manoj, A3 Kodi Suni, A5
Mohammed Shafi, A7 Shinoj and A18 Rafeek met at the residence of A13
Kunjanandan in Parattu in connection with the conspiracy. It is their case
that A3, A5 and A7 had gone to the house of A13 in a Sumo vehicle that A18
drove. They rely on the oral testimony of PW20 Valsan, a fish vendor, who
lives close to the residence of A13 Kunhanandan and who deposed to seeing
the other accused there. His evidence does not, however, inspire confidence
because he wrongly identified A1 Anoop as one of the accused he saw on
that date when even the prosecution does not have such a case. There are
also material contradictions from his previous statement brought out by the
defence while cross-examining him. Further, the defence also adduced
evidence through DW1 Prasadan, a workshop owner who deposed that no
motorbike was brought to his workshop for repair as deposed by PW20
Valsan. PW20’s deposition was, in our view, rightly disbelieved by the trial
judge at paragraphs 449-452 of the impugned judgment.
18.1. A comparison of the CDR data (Exts.P252, P244, P310, P311,
P317, P314 & P304) of the respective accused, however, reveals that there
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were four calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A8 K.C.
Ramachandran, A11 Manojan, A12 Geothi Babu and A13 Kunhanandan. The
specific details of the calls made and their duration are as indicated in
Appendix II. Here again, the relevance of the above phone calls can be
appreciated only at the stage of analysing the evidence for the purposes of
Section 10 of the Indian Evidence Act. For the present, all that can be stated
as proved is the making of the calls by the above accused.
18.2. The prosecution also alleged that A8 Ramachandran and A1
Anoop were at Chokli at about 7.20 pm on 24.04.2012 for the purposes of A8
handing over an amount of Rs.10000/- to A1 in front of Sameera quarters. As
no evidence was adduced to prove the said fact, the trial court found this
allegation unsubstantiated in paragraph 453 of the impugned judgment. We
see no reason to interfere with the said finding of the trial court.
Events on 25.04.2012:
19. The prosecution alleges that at about 6.30 am on 25.04.2012, A8
Ramachandran met A1 Anoop at Pallikkunnu and handed over Rs.40,000/- to
him. To prove this, they rely on the testimony of PW48 Prakasan, who
deposed that he saw A8 Ramachandran handing over a package of currency
notes to A1 Anoop at Pallikkunnu junction and that Anoop had counted the
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same before leaving the place. He also deposed that he happened to be in
Pallikkunnu that day because of a call he had received at 6 am from one
Bhaskaran, who wanted to see his property at Karyad that he had put up for
sale. While the testimony of PW48 Prakasan, to the extent it states that he
saw A1 Anoop counting the money and that it was around Rs.40,000/- in
notes of Rs.500/- and Rs.1000/- denomination, does seem incredible, the
defence has also produced Ext.D28 CDR marked through PW158 to show
that there was no call made to PW48’s phone at 6 am on that day. It was for
this reason that the trial court disbelieved the evidence of PW48 and, in our
view, rightly so. This aspect of the prosecution case cannot be seen as
proved.
19.1. The prosecution also relies on the testimony of PW7 Naveendas,
a software employee, who is the owner of the Innova Vehicle bearing
Registration Number KL-58D-8144, and PW8 Harris, a person doing
business in ready-made garments, to prove that PW7 Naveendas had leased
out the Innova vehicle to A18 Rafeek through CW18 Rajeesh and that PW8
Harris had acted as the middleman in the transaction. The latter deposed to
seeing the handover of the vehicle by Rajeesh to A18 Rafeek and Rafeek
handing over a blank cheque as security to Rajeesh. The learned counsel for
the defence raised an argument that without the examination of CW18
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Rajeesh, the transaction regarding the Innova vehicle cannot be seen as
proved. We find, however, that the transaction stands proved through the
evidence of PW7 and PW8, and hence the mere non-examination of CW18
cannot be seen as fatal to the case of the prosecution. There is also evidence
to show that CW18 Rajeesh purchased the stamp paper in the name of A18
Rafeek and that PW8 Harris saw Rafeek handing over the same to Rajeesh.
Although the defence seeks to discredit the said witnesses by pointing to
inconsistencies in their version with that recorded in C9 and C11 remand
reports and by relying on the decisions in Raman Velu22and Ushaben23, we
are of the view that the purpose of a remand report is merely to safeguard
the accused against arbitrary detention and cannot be used for the purpose
of contradicting the oral testimony of a witness in court.
19.2. We might, in this context, refer to the general submission made
by the learned counsel for the defence that in many of the remand reports
filed in connection with the arrest of the various accused, the details of the
physical meetings that formed part of the allegation of conspiracy were not
specifically mentioned and it was mentioned for the first time only in the
final report. We don’t see any merit in the said submission. It is a well-
settled legal position that remand applications are to be filed by the
22 In Re: Raman Velu – [1972 KLT 922]23 Manubhai Ratilal Patel through Ushaben v. State of Gujarat & Others – [(2013) 1 SCC 314 ]
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investigating agency only to satisfy the court that there are justifiable
grounds to detain an accused already arrested in police or judicial custody.
The investigating agency is not required to state in such an application the
materials, if any, collected against an accused during the investigation.24
19.3. It is also significant that A18 Rafeek’s signature as appears on
the cheque tallies with his signature on the Section 313 statement recorded
by the court. Further, although the defence tries to establish with reference
to the cheque issue register maintained by the bank that the cheque in
question was actually obtained on 24.04.2012 and not on 25.04.2012, PW70
Rugmini, the Secretary-in-charge of the Kodiyeri Co-operative Bank has
deposed that someone had obtained a cheque leaf in relation to the account
standing in the name of A25 Rajikanth on 25.04.2012 and that the mention
of the date 24.04.2012 in the cheque issue register was a clerical mistake.
There was no cross-examination by A25 Rajikanth on this aspect. Similarly,
while the stamp vendor PW75 T. Raveendran clearly deposed that he sold
the stamp paper to A18 Rafeek, there was no cross-examination by A18 on
that aspect. Further, a perusal of the CDR data of the phone used by A18
Rafeek (Ext.P295) reveals that six calls were made between A18 and PW8
Harris on 24.04.2012 and seven calls between them on 25.04.2012. The
details of these calls are also mentioned in Appendix II.
24 State of Maharashtra v. Ramesh Taurani – [(1998) 1 SCC 41]
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19.4. The above evidence would, in our view, suffice to find that the
Innova car was entrusted to A18 Rafeek by PW7 through PW8. We,
therefore, concur with the finding of the trial court on the said aspect.
Events on 26.04.2012:
20. PW22 Pramod, a carpenter, deposed that he saw A4 Rajeesh and
A22 Sanoop in the Innova car near the party office at Nadapuram at around
4 pm on 26.04.2012. While A4 was arrested on 07.06.2012 and A22 was
arrested on 18.06.2012, PW22 Pramod’s statement to the police was only on
13.07.2012. Besides, the deposition of PW151, the nodal officer of Idea
Mobile, is to the effect that A4’s phone was not in any tower location in
Kozhikode district (whereunder Nadapuram is situated) on that day. It has
also come out through Ext.P297 CDR data pertaining to the phone used by
A22 Sanoop that he was in Karyad/Vellikulangara during the relevant time.
Probably on account of the said inconsistencies, the trial court did not
believe the deposition of PW22, and in our view, rightly so.
20.1. The CDR data analysis on the said date (Exts.P252, P244, P317,
P314, P304 & P329), however, reveals and proves that there were seven
calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A11 Manojan, A12
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Geothi Babu, A13 Kunhanandan and A14 Mohanan Master as detailed in
Appendix II.
Events on 27.04.2012:
21. PW16, a coolie worker, deposed that he saw A16, A17 and certain
others in an Innova car that was parked at Chombala fishing harbour at
around 9 am on 26.04.2012. He also identified A16, A17 and the car in
court. The charge against A16 and A17, however, was that they were in the
car along with A3 Kodi Suni, A4 Rajeesh, A5 Mohammed Shafi and A15.
PW16 did not identify the said persons. The CDR data of the phone used by
A4 Rajeesh, Ext.P248, showed that during the relevant time, he was at
Karyadupuram near Koothuparamba. Similarly, Ext.P244, the CDR data
pertaining to the phone used by A5 Mohammed Shafi showed that he was at
Pallur near Chokli at the relevant time. This testimony was, therefore,
rightly disbelieved by the trial court.
21.1. The CDR data analysis on the said date reveals a call between
A11 Manojan and A12 Geothi Babu on that day, as detailed in Appendix II.
Events between 28.04.2012 and 01.05.2012:
22. The CDR data analysis on the said dates reveals that there were
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three calls made between A11 Manojan, A12 Geothi Babu and A13
Kunhanandan as detailed in Appendix II.
Events on 02.05.2012:
23. The prosecution relies on two incidents that took place on
02.05.2012 at 7.30 pm in Orkatteri and 9.30 pm at Koroth Road,
respectively, to suggest the involvement of A2 Kirmani Manoj, A5
Mohammed Shafi, A8 Ramachandran, A27 Rajith, A28 Rameesh, A29 Dipin
and A30 Raveendran in the murder of T.P . Chandrasekharan. PW11 Shivji
EK, a mason, deposed to seeing A27 Rajith and A28 Rameesh coming on a
motorbike and talking to A8 Ramachandran at about 7.30 pm. After that,
they stood at the bus stand nearby, on the opposite side of which T.P .
Chandrasekharan was seen standing. PW11 deposed to seeing A30
Raveendran walk up to T.P . Chandrasekharan and hand over Ext.P3
invitation letter to him. After that, A27 and A28 allegedly left the place, and
A30 went to his flower shop nearby. Although PW11 deposed that he saw the
incident along with CW23 Sinish, the prosecution did not examine Sinish. At
any rate, the trial court found the testimony of PW11 to be believable to the
extent it proved that on the evening of 02.05.2012, A27 Ranjith found out
the identity of T.P . Chandrasekharan with the assistance of A30 Raveendran,
but that the said testimony was not sufficient to prove the charge against
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A27 that he used that knowledge or information for facilitating the murder
of T.P . Chandrasekharan. As rightly found by the trial court, there is no
evidence to find that A27 Rajith had pointed out T.P . Chandrasekharan to any
of the assailants.
23.1. Similarly, PW15 Rajeevan deposed to seeing A28 Rameesh, A29
Dipin, A2 Kirmani Manoj and A5 Mohammed Shafi at Koroth Road, about 4
km from the bus stand at Orkatteri, at about 9.30 pm. According to him, he
saw the aforementioned accused taking a gunny bag containing some
articles from some bushes nearby and putting it inside the Innova vehicle.
He went on to state the number of the vehicle and also identified the vehicle
in court. The defence merely pointed to contradictions in the testimony of
PW15 in that he had not stated the number of the vehicle or the fact that it
was a moonlit night in his previous statement to the police. The trial court
did not see the said contradictions as material and rightly went on to believe
the said testimony in paragraphs 297 and 298 of the impugned judgment.
However, the trial court found that merely because it was proved that A28
and A29 had contact with some members of the gang of assailants, it could
not be found that they were aware of the plot to murder T.P .
Chandrasekharan and that they concealed the existence of such plot. When
considered against the backdrop of the charges levelled against A28
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Rameesh and A29 Dipin, which did not include involvement in the
conspiracy to murder T.P . Chandrasekharan, the finding of the trial court
appears to us to be legally unassailable.
23.2. The CDR data analysis (Exts.P317 & P314) reveals that there
was a call between A11 Manojan and A12 Geothi Babu on 02.05.2012, and
another call between them on the next day, as detailed in Appendix II.
Events on 04.05.2012:
24. The prosecution relies on three incidents that happened at 1600
hrs, 2100 hrs and 2115 hrs on 04.05.2012 at Chokli taxi stand, Koroth Road
and Orkatteri Jeep stand respectively to prove the involvement of A1 Anoop,
A2 Kirmani Manoj, A3 Kodi Suni, A5 Mohammed Shafi, A6 Sijith, A7 Shinoj,
A20 Dilshad, A21 Fasalu and A31 Pradeepan M.K in the murder of T.P .
Chandrasekharan that took place at Orkatteri at 2213 hrs on the same day.
24.1. PW18 Santhosh deposed that at 1600 hrs, when he and some of
his friends had arrived at Chokli taxi stand, A1 Anoop, A3 Kodi Suni, A5
Mohammed Shafi, A7 Shinoj and A31 Pradeepan came there in an Innova
car and had an altercation with them. That he reported the matter to the
Panoor police station, where he filed a written complaint (Ext.P17), which
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was then forwarded to the Chokli police station for follow up action. He also
identified the vehicle as the same one as was seen in the court compound on
the date of giving his testimony. The defence, on the other hand, seeks to
discredit the witness by suggesting that he was an RSS supporter with
criminal antecedents and by relying on Ext.P208 register maintained at the
Chokli police station and pointing out that there are signs of a page having
been torn out of the said register for the purpose of inserting the details
recorded of the incident cited by PW18 Santhosh. It was also pointed out
that although the statement of PW18 was recorded on 11.05.2012, Ext.P17
complaint was recovered only on 19.07.2012 under cover of Ext.P539
seizure mahazar, along with Ext.P208 complaint register. Further, CW 250,
the ASI, Chokli, who was cited to prove the seizure; CW273, the attester to
the mahazar; and CW242, the Chokli SI, who enquired into Ext.P17
complaint, were not examined as a witness by the prosecution. We fail to see
how the mere fact of non-examination of the above witnesses can affect the
oral testimony of PW18 when PW149 Dominic, CI of Police, Panoor has
clearly spoken on the enquiry made into P17 complaint and the action taken
thereon.
24.2. The trial court found that merely because PW18 was an RSS
supporter and had criminal antecedents, his testimony did not have to be
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discarded (paras 301-303 of the impugned judgment). It relied on the said
evidence to hold as proved the fact that at about 1600 hrs on 04.05.2012, A3
Kodi Suni and A5 Mohammed Shafi were found in Chokli taxi stand in the
Innova car bearing registration number KL-58D-8144. We see no reason to
interfere with the above finding of the trial court. However, we find that the
trial court did not specifically find the presence of A31 Pradeepan to have
been proved through the acceptance of the evidence of PW18. While this
may have been on account of the trial court having discussed the evidence of
PW18 in the context of circumstantial evidence against A1 to A7, we are of
the view that the evidence of PW18 Santhosh that was believed by the trial
court, and that proved the presence of A31 along with A3 and A5 at Chokli
taxi stand, can also be examined in the context of Charge No.49 under
Section 201 IPC against A31 Pradeepan that is discussed later on.
24.3. PW17 Subodh, a small-time businessman, deposed that while he
was on his way to his house on his motorbike at about 2100 hrs on
04.05.2012, he saw A4 Rajeesh, A6 Sijith, A20 Dilshad and A21 Fasalu along
with some others standing near the Innova car KL-58D-8144 at Koroth road,
and loading something that looked like swords into the car. He deposed that
he could identify A20 and A21, whom he knew from before, and also
described the identifying features of A4 and A6. He also deposed to seeing a
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sticker with Arabic script on the Innova car that he later identified in court
and that the accused, on seeing him, got into the car and drove away.
Although the defence tries to cite omissions with his previous statement,
such as the mention of his friend Murugan’s name, the time of his travel,
and the number of people he saw near the Innova vehicle, we cannot get
ourselves to view the above as material omissions amounting to
contradictions that would warrant the discarding of his testimony. The trial
court, too, found his evidence to be worthy of acceptance at paras 299 and
300 of the impugned judgment.
24.4. PW35 E.Radhakrishnan who runs a book and stationery store at
Orkatteri, deposed seeing A2 Kirmani Manoj and A5 Mohammed Shafi get
out of the Innova car KL-58D-8144 and talk to each other near the Orkatteri
Jeep stand at 2115 hrs. He claimed to have seen them in the light provided
through a streetlamp. The defence countered his testimony through the
evidence of DW7 Pramod, an Assistant Engineer at KSEB through whom the
load shedding details in Orkatteri was marked as Ext.D59, to suggest that
there was a power cut in Orkatteri town between 9 and 9.30 pm that
evening. The defence also relied on the evidence of DW10 AK Pavithran, an
Assistant Engineer at KSEB, who corroborated the evidence of DW7 that
there was a power cut in Orkatteri during the relevant time. On account of
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the evidence adduced by the defence and based on the inconsistencies found
during cross-examination of the said witness, the trial court felt it unsafe to
rely on his testimony as regards seeing the Innova car and A2 and A5 on
04.05.2012 (paras 306-311 of the impugned judgment). We see no reason to
take a different view on this aspect.
24.5. The CDR data analysis on the said date reveals one call between
A11 and A12 at 2309 hrs that evening. It is also the prosecution's case that
the absence of any calls made from their own phones during the period after
2003 hrs is suggestive of the fact that after the said time, the accused were
using the Operational Phones (OP’s 1 to 4). There is, however, no evidence
to prove the latter aspect.
Our Finding on Conspiracy:
25. On going through the impugned judgment of the trial court, in the
light of the evidence discussed above, we find that the discussions on
conspiracy therein proceed on the assumption that the physical act of
murder will have no relevance to a finding of conspiracy. In fact, the
discussions in the impugned judgment have focused only on the five or six
physical meetings that were alleged to have taken place between the various
accused and the incidental phone calls between them during the said period
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to arrive at a finding of conspiracy. While doing so, the trial court
considered the evidence in that regard up to the date of the murder by
apparently assuming that the act of murder and the people involved directly
in the said act would have no relevance to a finding of conspiracy. This, in
our view, is where the trial court misdirected itself on this issue, for it is well
settled that all means adopted, and illegal acts done in furtherance of the
object of the conspiracy hatched can be used to prove the existence of the
conspiracy under Section 120B of the IPC. Section 10 of the Indian Evidence
Act clearly envisages a situation where if there is reasonable ground to
believe that two or more persons have conspired together to commit an
offence, and one of them actually commits that offence, the latter's act, if
proved, can be used for the purposes of proving both the existence of the
conspiracy as well as that he was a party to it. In Kehar Singh,25 for
instance, the fact that the accused and the person who shot dead the
deceased were together at a social gathering sometime before the shooting
and, having isolated themselves at the housetop, were seen talking and
avoided questions as to what they were talking about, was seen as sufficient
by the Supreme Court to create a reason to believe that they might be
conspiring about something. The accused was accordingly sentenced to
death along with those who actually caused death, though he was nowhere
there at the place of the shooting. Thus, we have to look at the sequence of
25 Kehar Singh v. State (Delhi Admn) – [(1988) 3 SCC 609]
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proven facts/circumstances commencing from those that led to the animosity
between the members of the CPI (M) and T.P . Chandrasekharan in 2009 and
culminating with his murder on the night of 4.5.2012 to determine whether
there was, in fact, a conspiracy to murder him that emerged at any stage.
25.1. An agreement to pursue an illegal object being the essence of
the offence of conspiracy, and the formation of an agreement between two or
more persons being a mental state that is difficult to establish through direct
evidence, we have to resort to circumstantial evidence duly analysed in the
manner prescribed under Section 10 of the Indian Evidence Act to infer the
existence of such an agreement. As is clear from the earlier discussion on
the mode of establishing conspiracy, the provisions of Section 10 of the
Indian Evidence Act mandate that (i) there has to be prima facie evidence
affording a reasonable ground for the court to believe that two or more
persons are members of a conspiracy (ii) if the said condition is fulfilled,
anything said, done or written by any one of them in reference to their
common intention will be evidence against the other (iii) anything said, done
or written by him should have been said, done or written by him after the
intention was formed by any one of them (iv) it would also be relevant for
the said purpose against another who entered the conspiracy whether it was
said, done or written before he entered the conspiracy or after he left it, and
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(v) it can only be used against a co-conspirator and not in his favour.
25.2. Keeping the above principles in mind, when we look at the
circumstances that have been proved beyond reasonable doubt in the instant
case, the picture that emerges is as follows:
There was an air of hostility between members of the CPI (M) and RMP
ever since T.P . Chandrasekharan broke away from the CPI (M) and floated
the new party viz. RMP .
That hostility took a turn for the worse when T.P . Chandrasekharan
contested as a candidate from the Vatakara constituency in the Lok
Sabha elections in 2009, and the CPI (M) candidate lost the election and
its long-held seat that year to a Congress candidate.
The hostility was taken note of by the police authorities in the state, who
had also circulated intelligence reports warning T.P . Chandrasekharan of
threats to his life and recommended the grant of police protection to his
person.
The threat perception was felt by T.P . Chandrasekharan, who told his wife
Rema (PW5) that if something untoward were to happen to him at the
instance of the CPI (M), it could happen only with the knowledge of A8
K.C. Ramachandran, A9 Ashokan, A10 Krishnan and A14 Mohanan
Master.
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A10 Krishnan had made a fiery and threatening public speech in
February 2012 warning T.P . Chandrasekharan of dire consequences if he
persisted with his anti-CPI (M) campaigns. A8 K.C. Ramachandran was
also present at the venue of the speech and was seen discussing
something with A10 Krishnan in the vicinity of the venue shortly
thereafter.
During the period between 02.04.2012 and 20.04.2012 there were 32
phone calls between A8 K.C. Ramachandran, A11 Manojan, A12 Geothi
Babu, and A13 Kunhanandan. They are all persons with active
membership in the CPI(M).
On 10.04.2012 A1 Anoop, A3 Kodi Suni, A8 KC Ramachandran, A11
Manojan and A12 Geothi Babu were seen holding discussions at Sameera
Quarters in Chokli. A1 and A3 not being persons with any known
association with the CPI (M) and being persons against whom we have
found reliable evidence (discussed later in this judgment) that connects
them with the murder of T.P . Chandrasekharan, their meeting with A8,
A11 and A12 points towards their involvement in the conspiracy to
murder as well.
On 20.04.2012 A8 K.C. Ramachandran and A11 Manojan met A13
Kunhanandan at his house in Paraattu.
During the period between 20.04.2012 and 24.04.2012 there were 16
calls between A2 Kirmani Manoj, A5 Mohammed Shafi, A8 K.C.
Ramachandran, A11 Manojan, A12 Geothi Babu and A13 Kunhanandan.
A2 and A5 not being persons with any known association with the CPI
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(M) and being persons against whom we have found reliable evidence
(discussed later in this judgment) that connects them with the murder of
T.P . Chandrasekharan, their phone calls to A8, A11, A12 or A13 point to
their involvement in the conspiracy to murder as well.
On 25.04.2012, the Innova car bearing Registration No.KL-58D-8144 was
entrusted to A18 Rafeek by its owner, PW7 Naveendas, through PW8
Harris.
Between 26.04.2012 and 01.05.2012 there were 11 calls between A2
Kirmani Manoj, A5 Mohammed Shafi, A11 Manojan, A12 Geothi Babu,
A13 Kunhanandan and A14 Mohanan Master. There were calls between
A11 and A12 on 02.05.2012 and 03.05.2012 as well.
A2 Kirmani Manoj and A5 Mohammed Shafi were seen along with A28
Rameesh and A29 Dipin at about 9.30 pm on 02.05.2012 at a place
situated about 4 km from the bus stand at Orkatteri. They were seen
taking a gunny bag containing some articles from the bushes nearby and
putting the same inside the Innova vehicle.
At about 1600 hrs on 04.05.2012, the day of the murder, A1 Anoop, A3
Kodi Suni, A5 Mohammed Shafi, A7 Shinoj and A31 Pradeepan were seen
along with the Innova vehicle at the Chokli taxi stand.
At about 2100 hrs on the same day (04.05.2012), A4 Rajeesh TK, A6
Sijith, A20 Dilshad and A21 Fasalu were seen at Koroth road loading
something that looked like swords into the Innova vehicle.
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At about 2213 hrs on the same day (04.05.2012), T.P . Chandrasekharan
was murdered by the gang of assailants comprising A1 to A7.
25.3. As already discussed, in order to enter a finding of conspiracy,
we are required to have a ‘birds eye view’ of the individual circumstances
that have been proved beyond reasonable doubt and look for a pattern
therein that would afford a reasonable ground for us to believe, not just that
there may have been a conspiracy, but that there must have been a
conspiracy. To attract the provisions of Section 10 of the Indian Evidence
Act, we have to look at the proved facts and circumstances to see whether
they offer prima facie evidence affording a reasonable ground for the court
to believe that A1 to A7, A8, A10, A11, A12 & A13 were members of the
conspiracy to murder T.P . Chandrasekharan. In doing so, we find that while
there is direct and circumstantial evidence to connect A1 to A7 with the act
of murder of T.P . Chandrasekharan, there is also evidence of interaction
between the said accused and A8, A11, A12 and A13, both through physical
meetings and telephone calls. Viewed in the context of the public speech of
A10, which was found to provide the motive for the murder even by the trial
court, we feel there are reasonable grounds for us to believe that all the said
accused were members of the conspiracy. Although there is evidence to
connect A6 also to the conspiracy, we find that the prosecution has not
raised a charge of conspiracy against A6. As regards A9 and A14, there are
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no facts and circumstances proved against them to sustain a finding of
conspiracy against them. Further, when we look to the above evidence to see
whether there is a tacit understanding between the conspirators as to what
should be done or whether the relative acts or conduct of the parties are
conscientious and clear to mark their concurrence as to what should be
done, we find that the individual acts of A1 to A5, A7, A8, A10, A11, A12 and
A13 having been done with reference to their common intention of
murdering T.P . Chandrasekharan, which intention was first formed through
the public speech of A10 Krishnan and the steps taken by A8 K.C.
Ramachandran to recruit the other accused immediately thereafter, all
things said, done or written by any one of them in reference to their common
intention will operate as evidence against the other. The cumulative
evidence against all the accused is, in our view, sufficient to find the accused
A1 to A7, A8, A10, A11, A12 and A13 guilty of the offence under Section
120B of the IPC.
25.4. Before parting with this issue, we might hasten to add that we
are conscious of the fact that a finding of guilt under Section 120B against
A1 to A5, A7, A10, and A12 will have to be sustained by applying the
principles that would come into play when an appellate court reverses a
finding of acquittal by the trial court. This is because all of the above
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accused were acquitted of the charge under Section 120B of the IPC by the
trial court. As already noticed above, our finding of guilt against the said
accused is based on evidence that was adduced before the trial court but not
considered by it , owing to the particular perspective that that court held
with regard to the manner in which the offence of conspiracy had to be
established. We find that the trial court virtually proceeded on the
assumption that the making of the instigating speech by A10 and the
commission of the act of murder by A1 to A7 would not fall within the scope
of the offence of conspiracy and that it was only the actual meetings
between the various accused and the phone calls between them that would
be relevant for a finding of conspiracy. The evidence on record clearly
establishes that A1 to A7, A10 and A12 were also members of the conspiracy
to murder T.P . Chandrasekharan, along with A8, A11 and A13. While
appreciating the prosecution evidence, the trial court ignored the evidence
of conspiracy available against A1 to A7. The trial court also failed to
appreciate in the correct legal perspective the material piece of evidence
relating to conspiracy available against A10 and A12, such as PW6’s
evidence regarding the public speech made by A10, the evidence of PW5
regarding the statement made to her by her late husband T.P .
Chandrasekharan, the physical meeting between A1, A3, A8, A11 and A12 at
Sameera quarters in Chokli on 10.04.2012 and the electronic evidence
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showing the several calls made between A12 and the remaining accused. A
finding of acquittal that is based on an erroneous appreciation or non-
appreciation of the evidence on record renders the finding of the trial court
perverse in the legal sense of the term and provides justification for the
appellate court to reverse that finding .26 We are of the definite view that the
finding of the trial court, as regards the complicity of the above accused in
the commission of an offence, under Section 120B of the IPC was not a
possible view in the light of the overwhelming evidence discussed above. It
is, therefore, that we reverse the finding of acquittal under Section 120B of
the IPC in respect of A1 to A5, A7, A10 and A12. The said accused are found
guilty of the offence under Section 120B of the IPC.
The Incident
26. The prosecution alleges that A1 Anoop drove the Innova vehicle
bearing Registration No.KL-58D-8144 (bearing fake Registration No.KL-18A-
5964) in which A2 Kirmani Manoj, A3 Kodi Suni, A4 Rajeesh, A5 Mohammed
Shafi, A6 Sijith and A7 Shinoj were travelling, and hit the Motor Cycle
bearing Registration No.KL-18A-6395 driven by T.P . Chandrasekharan at
about 10.13 pm on 04.05.2012 at the margin of the Kainatti-Orkatteri public
26 Sheo Swarup v. King Emperor – [AIR 1934 PC 227]; Nur Mohammed v. King Emperor – [AIR 1945 PC 151]; State of Uttar Pradesh v. Banne @ Baijnath & Ors – [(2009) 4 SCC 271]; Babu v. State of Kerala- [(2010) 9 SCC 189]
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road near the CWSA office building in Vallikkad town, and after T.P .
Chandrasekharan had fallen down, A3 to A7 repeatedly struck him with
swords and caused him grievous injuries to the head and other parts of his
body with the intention of causing his death. That A3 Kodi Suni also used a
country bomb kept by A2 Kirmani Manoj to cause an explosion that was
likely to endanger persons who had reached the scene of the incident. It is
not in dispute that T.P . Chandrasekharan succumbed to his injuries.
26.1. The evidence relied upon by the prosecution to connect the
various accused with the commission of the crime under Section 302 IPC
comprises of direct evidence - (i) ocular evidence of three witnesses and
circumstantial evidence - (ii) oral evidence of other witnesses (iii)
evidence regarding recovery of the vehicle and swords used in connection
with the crime (iv) medical evidence in the form of post mortem report and
wound certificates (v) scientific evidence in the form of forensic reports and
human hair and DNA analysis reports (vi) electronic evidence in the form of
CDR data. It is on the basis of the facts and circumstances proved through
the analysis of the above evidence that we have to determine whether taken
together, they point clearly and unambiguously to the guilt of the various
accused.
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The First Information Report:
27. The learned counsel for the appellants/convicted accused have
raised objections to the reliance placed by the trial court on the evidence
adduced under each of the aforementioned categories, and we propose to
deal with all those objections in the discussion that is to follow. Before that,
however, we may refer to the objection raised by the learned counsel to the
manner in which the FIR was registered in this case. They point to the
testimony of the investigating officers who were in charge of the
investigation at the various stages to contend that there was a delay in
lodging the FIR, as also in the matter of forwarding the same to the
Magistrate concerned. They also point to the details of the incident as
recorded in the FIR to argue that there is an inconsistency in the version of
the incident as recorded in the FIR and later in the final report. We certainly
appreciate the concern of the learned counsel in as much as the importance
of registering a First Information Report (FIR) in a criminal case cannot be
understated. It is an extremely vital and valuable piece of evidence for the
purposes of corroborating the oral evidence adduced at the trial. The object
of insisting upon prompt lodging of the report to the police in respect of the
commission of an offence is to obtain early information regarding the
circumstances under which the crime was committed, the names of the
actual culprits and the part played by them, as well as the names of
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eyewitnesses present at the scene of occurrence. Delay in lodging the FIR
quite often results in embellishment, which is a creature of afterthought. On
account of the delay, the report not only gets bereft of the advantage of
spontaneity but also there is the danger of the introduction of a coloured
version, exaggerated account or concocted story as a result of deliberation
and consultation. It is, therefore, essential that the delay, if any, in lodging
the FIR is satisfactorily explained.27 It is also necessary that the FIR is
forwarded to the magistrate concerned expeditiously for any delay
occasioned could give rise to an inference that the FIR was not lodged at the
time it is alleged to have been recorded .28
27.1. In the instant case, the FIR (Ext.P2) was registered by PW4
Manoj, the Sub-Inspector of Police, at 23.20 hrs on 04.05.2012 as Crime No.
433/12 of Vatakara Police Station, and it was forwarded to the Magistrate
concerned at 10.30 hrs on 05.05.2012. PW4 was the person who first
received information about the incident through a phone call from an
unknown person and he immediately rushed to the scene of the crime. He
has deposed that on reaching the crime scene, he lifted the victim from
under the fallen motorcycle and put him in the police jeep with the help of
two persons who he later identified as PW1 Praseeth and CW2
27 Thulia Kali v. State of TN – [(1972) 3 SCC 393]; Marudanal Augusti v. State of Kerala – [(1980) 4 SCC 425]28 Meharaj Singh v. State of UP & Ors – [(1994) 5 SCC 188]
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Ramachandran. The jeep was then driven to the general hospital at
Vadakara where PW137 Dr. C.K. Anandan, who was the doctor on duty
examined the body and certified that the body of the victim was brought
dead to the hospital, and opined that the body should be taken to the
Medical College Hospital, Kozhikode for postmortem examination. After
making the necessary arrangements for taking the body to Kozhikode, PW4
came back to the police station and registered the FIR.
27.2. The learned counsel for the appellants/convicted accused would
argue that there was a delay in registering the FIR since PW4 had obtained
information regarding the crime through the phone call, and he ought to
have proceeded to the scene of the crime only after registering the FIR.
They also contend that it was a serious omission on the part of PW4 to not
ascertain the identity of the persons who allegedly helped him carry the
victim to the police jeep. This is stated to be especially so because the
defence has a definite case that PW1 and CW2 were not there at the scene
of the crime when PW4 reached there. They also point to the fact that in
both Ext.P181 certificate and Ext.P182 intimation given by the doctor at
Vatakara (PW137) the name of the deceased person was shown as
‘unknown’, thereby suggesting that, contrary to his testimony in court, PW4
was not actually aware of the identity of the deceased at that time.
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27.3. The trial court has dealt with the issue at paragraphs 359 to
369 of the impugned judgment. It found by relying on the decisions in
Tapinder Singh29 and Damodar30 that there was no illegality or irregularity
occasioned by PW4 in not registering the FIR based on the information
received over the telephone from an unknown caller. We are in complete
agreement with the said finding of the trial court. Merely because PW4
received information regarding the incident without any details regarding
the perpetrators of the offence or the victim thereof, the information
received cannot be taken as the first information for the purposes of the
Cr.P .C. As observed by the Supreme Court in V .V . Panduranga Rao31 some
cryptic or anonymous oral message which in terms did not clearly specify a
cognizable offence cannot be treated as FIR. PW4 registered the FIR as
soon as he got back to the police station after ensuring that the formalities
in the hospital were over. There was, therefore, no delay in registering the
FIR in the instant case. We also find that the FIR was forwarded to the
Magistrate without any delay by 10.30 hrs the next morning. That apart, a
minor variation in the narration of the events in the FIR as regards whether
the assailants had hurled the bomb first before hacking the victim with the
swords or whether the bomb was hurled after the hacking of the victim to
29 Tapinder Singh v. State of Punjab – [AIR 1970 SC 1566]30 Damodar v. State of Rajasthan – [AIR 2003 SC 4414]31 State of Andhra Pradesh v. V .V. Panduranga Rao – [(2009) 15 SCC 211]
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scare away the people in the vicinity, cannot be a reason to doubt either the
ocular evidence given by an eye-witness in court or the authenticity of the
FIR itself. We have to bear in mind that PW4 was not an eyewitness to the
event, and his knowledge at the time of registering the FIR was purely based
on information that he had gathered from the scene of the crime. If, during
the course of the investigation and after recording eye-witness statements,
the final report recorded a different sequence of events, it cannot be seen as
improper or illegal.
27.4. PW4 Manoj deposed that two persons had helped him to get the
fallen motorcycle into an upright position and also to carry the body of T.P .
Chandrasekharan into the jeep in which he was taken to the hospital. He
also deposed that on the next day, when he went to the office of the Dy.S.P .
to give his statement, he identified PW1 and PW2, who were there at that
time, as the persons who had helped him the previous day. The said
evidence has not been contradicted in cross-examination. Since PW4 P .M.
Manoj is a Sub-Inspector of Police and a public servant, and his deposition is
with respect to his actions in the line of duty, and further, his presence at the
scene of the crime on the night of the murder is not disputed, we can safely
hold that PW1 K.K. Praseeth and CW2 Ramachandran were indeed present
at the crime scene when PW4 had reached there on hearing of the incident.
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We might, in this context, refer to the decision of the Supreme Court in
Sunil,32 where the court had the following observation to make about the
evidentiary value of the actions of police officers:
“We feel that it is an archaic notion that actions of the police officer should be
approached with initial distrust. We are aware that such a notion was lavishly
entertained during the British period and policemen also knew about it. Its
hangover persisted during post-independent years but it is time now to start
placing at least initial trust on the actions and the documents made by the
police. At any rate, the court cannot start with the presumption that the
police records are untrustworthy. As a proposition of law the presumption
should be the other way around. That official acts of the police have been
regularly performed is a wise principle of presumption and recognised even
by the legislature.”
Direct Evidence against A1 to A7:
28. The sheet anchor of the prosecution case is the ocular testimony
of three eye-witnesses to the incident, namely, PW1 K.K Praseeth, PW2 T.P .
Ramesan @ Dinesan and PW3 T.P . Maneesh Kumar, all of whose presence at
the scene of the crime was stated to be on account of their involvement in
decoration activities by the roadside in connection with an annual
programme, styled as a gramotsav, organised by the Brothers Club. To
establish the presence of the said eyewitnesses at the crime scene, the
prosecution relies on the testimony of PW10 Suraj Kumar, the then
Secretary of the Brothers Club, who deposed that while it was initially
decided to organise the gramotsav on 21.04.2012, the event was later
postponed to a date between 5th and 10th of May, 2012. He also deposed that
32 State, Govt. of NCT of Delhi v. Sunil – [(2001) 1 SCC 652]
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the club had obtained the necessary mike permission (Ext.P10) from the
police authorities to use the microphone for the programme on 05.05.2012.
The decisions taken at the different meetings of the club were sought to be
proved through the production of the minutes book of the club (Ext.P11 &
P11(a)). Although the defence would argue that the deposition of PW1 that
he had gone to the Vallikkad junction to tie a banner is an omission in his
previous statement, we find that the evidence on record proves that he was
engaged in decoration activities, which would take in the tying of a banner
as well, and therefore the failure to specifically mention that it was to tie the
banner that he went to the junction is not a material omission. Further, the
evidence of PW10 Suraj Kumar in this regard has not been shaken in cross-
examination. His oral testimony, coupled with Exts.P10, P11 and P11(a), are
sufficient to prove the fact that there was indeed a programme scheduled for
05.05.2012.
28.1. PW1 K.K. Praseeth, a coolie worker, deposed to seeing the
incident and later identified A1 Anoop and A2 Kirmani Manoj as the persons
who were seated in front of the Innova vehicle and the other accused viz. A3
to A7 as the persons who alighted from the vehicle to assault T.P .
Chandrasekharan on that fateful night. He further deposed to having helped
PW4 P .M. Manoj, the Sub-Inspector of Police who visited the crime scene
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shortly thereafter, to carry the body of T.P . Chandrasekharan into the police
jeep for transporting it to the hospital. He also deposed that he had
volunteered to identify the Innova vehicle if he was taken to the place where
the vehicle was discovered the next day and that he went along with CW2
Ramachandran and the Dy.SP and identified the vehicle. He went on to state
that on 15.05.2012, he went along with CW2 to the Dy.SP office and from
there to the place where the swords were recovered, and he identified the
swords (MO1 series), although he did not sign the seizure mahazar that was
drawn up in connection therewith. Although in his testimony, he stated that
the Innova vehicle he saw bore the Registration No.KL-18A-5964 and not KL-
58D-8144, which was the number on the vehicle at the time of its discovery
on 05.05.2012; it has come out through the evidence of PW13 K.P .Rafeek,
the registered owner of the Bajaj Tempo Trax vehicle bearing Registration
No.KL-18A-5964, that the said number used on the Innova vehicle at the
time of commission of the crime was a fake one.
28.2. The defence has attempted to shake the credibility of PW1
Praseeth’s testimony by pointing to contradictions/omissions from his
previous statement to the police as regards his having proceeded to the
Vallikkad junction for decorating the place in connection with the gramotsav
planned for the next day as also to the manner in which he identified A1
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Anoop who was driving the car and who, admittedly, did not get out of the
car during the entire episode. However, we do not find them to be material
contradictions/omissions since they vary only in minor and insignificant
details from the earlier statement given by the said witness. In particular,
the identification of A1 in the light that was available in the locality cannot
be seen as improbable given the available evidence regarding the sources of
light that evening. For instance, while the defence let in evidence through
DW6 N.K. Nanu, a construction worker, to prove that the rooms on the upper
floor of the CWSA building did not have electricity and that, therefore, PW1
Praseeth could not have seen the incident, DW6 admitted in cross-
examination that there was indeed an electricity connection to the rooms in
the ground floor of the building. That apart, there is evidence on record to
prove that there was sufficient natural and artificial light that would have
enabled the witnesses to identify the accused.
28.3. As regards PW1’s presence at the scene of the crime, we find
that apart from his testimony that speaks to the said fact, his presence at the
crime scene immediately after the incident is also proved through the
deposition of PW4 PM Manoj, the Sub-Inspector of Police who deposed that
it was PW1 and CW2 Ramachandran who helped him carry the body of T.P .
Chandrasekharan into the Jeep. It is also significant that on the very next
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day, when PW4 gave his statement to the Dy.SP at the latter’s office, he
identified PW1 and CW2 who were there at the time, as the persons who had
helped him the previous evening. That apart, the presence of PW1 was also
deposed to by PW125 Manoj Kumar, the police constable who was deputed
by PW4 to guard the crime scene that night. Although the defence would
point to a part of PW125’s deposition that the two persons he saw that night
at the crime scene were with him till the next morning, we do not think that
the said statement contradicts his statement regarding the presence of PW1
at the crime scene that night in any manner. As regards the identification of
A1 Anoop, apart from what was stated regarding his identification at the
time when the vehicle took the turn on the road, there is also evidence on
record that points to the possibility of PW1 having noticed A1 when he was
sitting in the vehicle while the other accused were assaulting the victim. We
do not find any material omission in this regard in his previous statement.
28.4. The main thrust of the defence, however, is with reference to
the CDR data (Ext.D24) pertaining to the phone that was in the name of PW1
Praseeth’s wife but which he admitted to having used, along with his wife,
during the relevant time. The said data suggests that on 05.05.2012, the
user of the phone travelled from Orkatteri to Kozhikode in the morning and
then returned to Orkatteri by the evening. It is the case of the defence that if
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 112 ::& 403/2014 & CRA(V).No.571/2015
the phone was being used by PW1, then it shows that he had not gone along
with CW2 Ramachandran and the Dy.SP to identify the vehicle or to give a
statement to the Dy.SP at Vatakara on that day. We are not, however,
impressed with the said argument. PW1 had clearly deposed that the phone
was in his wife’s name and that he also used it. The possibility of the phone
being used by his wife on 05.05.2012 cannot be overruled since there is
nothing in the evidence to suggest that the phone was used by PW1 on that
day. We find the evidence of PW1 Praseeth to be of sterling quality and
sufficient to prove the presence and actions of A1 to A7 in connection with
the murder of T.P . Chandrasekharan. We, therefore, concur with the finding
of the trial court on this aspect.
28.5. The other eyewitness cited by the prosecution is PW2 T.P .
Ramesan @ Dinesan, a mason, who deposed that he saw the incident and
identified A1 to A7, except A3 Kodi Suni, before the police on 22.06.2012
and 13.07.2012 respectively. The defence sought to discredit the witness by
showing his affiliation to the RMP through the testimony of DW8 Dolly and
DW9 Vasu and Exts.D61 and D64 marked through them that showed that he
had functioned as a booth polling agent of the RMP candidate at the local
panchayat election, as also his conduct in not reporting the incident to the
police or anyone else for almost five days after the incident. Further, while
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his explanation for the delay in reporting the matter to the police was that
he had gone to his uncle’s place on the next day after the incident, the CDR
data (Ext.D26) pertaining to the phone that was admittedly used by him
showed that he was present in the Vellikulangara area during the aforesaid
five days. The testimony of PW2 does not inspire confidence and hence
cannot be accepted. We, therefore, concur with the finding of the trial court
on this aspect.
28.6. The third eyewitness cited by the prosecution is PW3 T.P .
Maneesh Kumar, a gold appraiser at the Indian Bank. His testimony inspires
confidence inasmuch as it goes into particulars regarding the happenings of
that night, including details of comments that he had made on seeing the
Innova vehicle being driven on the wrong side of the road and regarding the
manner in which he, along with PW2 and CW2, was attempting to put up the
banner near the roadside. He deposes to having recognised A3 Kodi Suni
and A5 Mohammed Shafi, whom he knew from before, and also identified
the other four accused who were in the vehicle at the police station. His
explanation for not reporting the incident to the police immediately
thereafter was that he was afraid of doing so. In fact, he states that he had
stayed away from the area for three or four days. Although the defence
sought to discredit his testimony by pointing to inconsistencies in his version
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as regards his involvement as a witness against a CPI (M) worker in another
case (S.C.595/2012) as evidenced in Exts.D1 and D2 documents produced by
the defence, we are of the view that his testimony is believable especially
because he did not choose to hide the fact that he was an active worker of
the RMP and that he had attended the inquest of T.P . Chandrasekharan’s
body at Kozhikode on 5.5.2012, and the cremation at Orkatteri later that
evening.
28.7. As already noticed above, the trial court, at paragraphs 116-161
of the impugned judgment, found that while the evidence of PW1 K.K.
Praseeth can be believed, the evidence of PW2 T.P . Ramesan and PW3 T.P .
Maneesh Kumar cannot be believed. The evidence of PW2 was not believed
because he had stated that immediately after the incident, he had gone to
his uncle’s place at Karthikapally and had returned only on 09.05.2012.
However, the CDR data pertaining to the phone stated to have been used by
him showed the tower location as Vellikulangara. That apart, he was also
found to be a partisan and interested witness who had political enmity
towards the local leaders of CPI (M). The court disbelieved the evidence of
PW3 on finding that he was a red volunteer of RMP and, therefore, a
partisan witness and, further because he had not disclosed the fact of having
seen the incident either to the police or to other members of the RMP till
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09.05.2012 on which date he went to the office of the Dy.SP Vatakara and
gave his statement. The court also found that it was improbable that he had
had an occasion to see A1 Anoop on that night since he stated that the driver
of the vehicle never got out of it at all.
28.8. For the reasons already stated above, we concur with the trial
court's findings regarding the evidence of PW1 that was believed and the
evidence of PW2 that was disbelieved. However, we cannot accept the trial
court's finding that disbelieved the evidence of PW3 T.P . Maneesh Kumar.
The mere fact that his political affiliation was not aligned with that of the
accused is no reason to discredit his testimony. So also, his conduct after the
incident, of not disclosing to the police or to anybody else for four days that
he had witnessed the crime, cannot be said to be unnatural. This is more so
when he deposed that he was overcome with fear. As was observed by the
Supreme Court in Rana Partap:33
“Every person who witnesses a murder reacts in his own way. Some are
stunned, become speechless and stand rooted to the spot. Some become
hysteric and start wailing. Some start shouting for help. Others run away to
keep themselves as far removed from the spot as possible. Yet others rush to
the rescue of the victim, even going to the extent of counter-attacking the
assailants. Everyone reacts in his own special way. There is no set rule of
natural reaction. To discard the evidence of a witness on the ground that he
did not react in any particular manner is to appreciate evidence in a wholly
unrealistic and unimaginative way. ”
33 Rana Partap & Ors v. State of Haryana – [(1983) 3 SCC 327]
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28.9. In the instant case, the conduct of PW1 and PW3 have to be
appreciated in the backdrop of the above observation. PW1, it will be
recalled, went home immediately after helping PW4 carry the victim into the
jeep and did not speak about the incident to anyone else till the next day
when he volunteered, along with CW2, to help the police identify the Innova
vehicle that had been found abandoned at a nearby place. This cannot be
seen as an unusual conduct on the part of PW1 so as to cast any doubt on his
testimony. As for PW3, he has deposed that he did not disclose the
particulars of the incident to anyone for over four days because he was
afraid to do so. We find that his fear cannot be seen as unrealistic. He
resides in a neighbourhood where political rivalry often takes violent turns
and visits any police informant with dire and unimaginable consequences. If
he took some time to reflect on whether or not to inform the police of the
fact that he was an eyewitness to the incident, he cannot be faulted because
fear operates in myriad ways in the human mind. His detailed statement of
the events of that fateful night, as also his truthful disclosure of the fact that
he had attended the post-mortem examination of his slain leader the next
day, leads us to accept his eye-witness testimony as proved. We are also not
convinced that the delay in disclosing the particulars of the incident to the
police vitiated his testimony in any manner. It is trite that a delay in the
examination of a witness by the investigating agency cannot be a ground to
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condemn the witness and discredit his testimony. The court can rely on such
testimony if it is cogent and credible.34
28.10. The key to appreciating the evidence of PW1 and PW3 is to
look at it holistically and see whether it is accurate in most particulars so as
to inspire the confidence of the court in it. In this connection, it is significant
that both PW1 and PW3 had identified A1 to A7 who have no known political
affiliation and, therefore, were not persons against whom either PW1 or
PW3 could have had any animosity. That apart, PW1 had also identified A1
Anoop, A4 Rajeesh and A7 Shinoj at the TI parade conducted under the
supervision of the Magistrate. Both of them clearly and consistently deposed
about the manner in which each of the accused attacked the deceased, the
nature of the weapons used and the parts of the body of the deceased
whereupon the injuries were inflicted by the accused. They also identified
A1 to A7, as also the Innova car, in court. The testimony of PW1 and PW3 is
undoubtedly of sterling quality.
28.11. The quality of the evidence that would qualify as “sterling” has
been expatiated in Rai Sandeep35 as follows:
“The sterling witness should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court considering the version
34 Sidharth Vashisht @ Manu Sharma v. State (NCT of Delhi) – [AIR 2010 SC 2352]35 Rai Sandeep v. State (NCT of Delhi) – [(2012) 8 SCC 21]; followed in Naresh v. State of Haryana – [(2023) 10 SCC 134]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 118 ::& 403/2014 & CRA(V).No.571/2015
of such witness should be in a position to accept it for its face value without
any hesitation. To test the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the truthfulness of the
statement made by such a witness. What would be more relevant would be
the consistency of the statement right from the starting point till the end,
namely, at the time when the witness makes the initial statement and
ultimately before the court. It should be natural and consistent with the case
of the prosecution qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a position to
withstand the cross-examination of any length and how so ever strenuous it
may be and under no circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well as the sequence of it.
Such a version should have co-relation with each and every one of other
supporting material such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence and the expert opinion.
The said version should consistently match with the version of every other
witness. It can even be stated that it should be akin to the test applied in the
case of circumstantial evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of the offence alleged
against him. Only if the version of such a witness qualifies the above test as
well as all other such similar tests to be applied can it be held that such a
witness can be called a ‘sterling witness’ whose version can be accepted by
the court without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on the core
spectrum of the crime should remain intact while all other attendant
materials, namely, oral, documentary and material objects should match the
said version in material particulars in order to enable the court trying the
offence to rely on the core version to seive the other supporting materials for
holding the offender guilty of the charge alleged.”
28.12. The above test has been consistently followed by our courts in
identifying sterling witnesses in criminal trials. In our view, the testimony of
PW1 Praseeth and PW3 Maneesh Kumar satisfy the above test since their
version is consistent with the supporting material such as recoveries made
of the Innova vehicle, the swords and the findings in the DNA and forensic
analysis. Although it is a fact that PW3 gave his statement to the police only
four days after the incident, he has given a valid explanation for the delay
and, at any rate, his version was consistent with the version of PWI as
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regards the manner in which the offence was perpetrated. Further, merely
because his political affiliation was opposed to that of the accused, his
testimony could not be rejected as was done by the trial court. The court
ought to have appreciated that in a case of political murder, it was inevitable
that the witnesses who volunteered to give evidence would likely have
affiliation with the political party to which the victim belonged. At any rate,
the political affiliation of the witness alone could not have weighed with the
court while appreciating his evidence; it should have viewed the evidence
holistically to see whether it was truthful.
Circumstantial Evidence against A1 to A7:
29. In this section of the judgment, we choose to analyse the
circumstantial evidence against A1 to A7 alone. The circumstantial evidence
against the other accused in relation to the offences alleged against them,
such as aiding and abetting of the crime under Section 302 IPC, harbouring
of the main accused, destruction of the evidence so as to shield the main
accused, etc., is dealt with in the next part of this judgment.
29.1. The circumstantial evidence available against A1 to A7 to prove
their complicity in the offence under Section 302 IPC consists of their
sightings at various locations in connection with the conspiracy hatched to
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murder T.P . Chandrasekharan, the recovery of material objects based on the
statements of other accused and hair and blood samples obtained from some
of them that matched with like samples obtained from the vehicle used for
the crime. The trial court has dealt with this evidence at paragraphs 297 to
390 of the impugned judgment.
29.2. We might, at this stage, refer to the general arguments
advanced before us by the defence counsel while attempting to bring out
contradictions and omissions in the previous statements given by the various
witnesses before the investigating officers. A consideration of the same
requires us to examine the circumstances under which the statement of a
witness in court can be said to be contradictory to or an improvement upon
his earlier statement given to the investigative agency. It is trite that the
previous statement of a witness is not and cannot be treated as substantive
evidence except when falling within the provisions of Section 27 (1) of the
Evidence Act. It can be used only to contradict his deposition before the
court. As noticed in Pakala Narayana Swami36, the provisions of Section 161
Cr.PC strikes a happy via media between the requirement that statements
given to police officers should not be used in evidence and the requirement
that the accused should be able to contradict a witness in the manner
provided by Section 145 of the Evidence Act. Statements given under
36 Pakala Narayana Swami v. King Emperor – [AIR 1939 PC 47]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 121 ::& 403/2014 & CRA(V).No.571/2015
Section 161 cannot be used for corroboration of prosecution/defence/court
witnesses. Nor can it be used for contradicting a defence or court witness.
There is thus a general bar against the use of the statement subject to the
limited exception in the interest of the accused.
29.3. While prior to the amendment of the Cr.P .C and the insertion of
the Explanation to Section 162, the contradiction established had to be
between what the witness asserted in the witness box and what he stated
before the police officer and not what he said he had stated before a police
officer and what was reduced into writing by the officer, the Explanation
now makes it clear that omissions in the earlier statement can also be
treated as contradictions for the purposes of the Section. That said, it is only
if the statement of the witness on material particulars or vital points differs
from his testimony on oath before the court that it can be urged by the
defence that his testimony is at variance with his earlier statement made
before the IO and therefore cannot be believed because he is making the
statement for the first time at the time of the trial, and that it has to be
viewed as an afterthought. In other words, simply because there is a
variance between the statement made in court and what is stated or omitted
to be stated before the IO, the credibility of the witness cannot be
impeached. The contradiction or omission must be on material particulars or
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vital points, and they have to be proved by examining the IO who recorded
their statements under Section 161 Cr.P .C.37 Every omission cannot take the
place of a contradiction in law and, therefore, be the foundation for doubting
the case of the prosecution. Omissions of a trivial nature or of minor
particulars cannot be cited to discredit a witness.
29.4. Keeping the aforesaid principles in mind while appreciating the
evidence before us in these cases, we note that apart from the eyewitness
testimony of PW1 and PW3 that point to the involvement of A1 to A7 in the
crime committed on 04.05.2012, and which testimony we have found to be
credible, there is oral testimony of few others that implicate A1 to A7.
Witness testimony that implicates A1 to A7:
30. The evidence of PW15 Rajeevan suggests that he had seen A2
Manoj Kumar and A5 Mohammed Shafi by the side of the Innova vehicle KL-
58D-8144 near the Industrial Estate at Koroth Road at about 2100 hrs on
02.05.2012. While he did not know A2 and A5, he recognised A28 Rameesh
and A29 Dipin who were there along with them and who were putting a sack
bundle into the vehicle. PW15 identified A2 and A5 in court and also
deposed that he had seen their pictures on television news channels, and
37 State of Karnataka v. Bhaskar Kushali – [(2004) 7 SCC 487]; Shyamal Ghosh v. State of WB – [(2012) 7 SCC 646]; Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra – [(2010) 13 SCC 657]; Subhash v. State of Haryana – [(2011) 2 SCC 715]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 123 ::& 403/2014 & CRA(V).No.571/2015
that is how he came to know of their names. He also deposed to having read
in the newspapers about their arrest and about the seizure of the Innova
vehicle. As the investigation officer had recorded his statements on
12.05.2012 and thereafter on 24.06.2012, the trial court found his
deposition to be credible. The defence tries to discredit the witness by
pointing to contradictions/omissions in his previous statement as regards the
presence of moonlight on that day and the time at which he allegedly saw
the accused. We do not see much merit in the defence's contention since the
contradictions/omissions pointed out are trivial and not so material that they
can be relied upon to discredit the witness.
30.1. PW18 Santhosh has testified in court that on 04.05.2012 at
about 16.00 hrs, he had reached the taxi stand in Chokli along with his
friend Ramesan (CW35) in a jeep that was driven by him. They were
apparently going to Kaviyoor in connection with a marriage proposal that
had come for Ramesan. While they were waiting at the taxi stand for the
marriage broker to arrive, about seven persons alighted from an Innova
vehicle in front of their jeep and stood near the jeep. Of the said persons, A3
Kodi Suni, A5 Mohammed Shafi and A31 Pradeepan, who were known to him
for two to three years, came up to them and asked them why they were
there. Apparently, A5 Mohammed Shafi pulled his shirt and threw away his
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mobile phone. In the meanwhile, A3 Kodi Suni and others inspected the rear
portion of the jeep and after ascertaining whether they were from Poyiloor,
asked them to leave the place immediately. They then left the place in the
Innova vehicle KL-58D-8144. PW18 and CW35 thereafter went to the office
of the Circle Inspector of Police, Panoor and preferred Ext.P17 complaint.
Later, PW18 identified A3 Kodi Suni, A5 Mohammed Shafi and A1 Anoop in
court. A1 Anoop was apparently one of the persons who threatened them
that evening.
30.2. The defence argument against relying on this evidence is that
PW18 Santhosh has known affiliation with the RSS, and the general
animosity between the RSS and CPI (M) is well known in the locality. They
also place reliance on the fact that PW18 chose to lodge his complaint at the
office of the CI of Police at Panoor, rather than at the nearby police station at
Chokli, to allege that the lodging of the complaint was a fabricated piece of
evidence and in fact no such complaint was lodged. It was also pointed out
that although the statement of PW18 was recorded on 11.05.2012, Ext.P17
complaint was recovered only on 19.07.2012 under cover of Ext.P539
seizure mahazar, along with Ext.P208 complaint register. Further, CW250,
the ASI, Chokli, who was cited to prove the seizure; CW273, the attester to
the mahazar; and CW242, the Chokli SI, who enquired into Ext.P17
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 125 ::& 403/2014 & CRA(V).No.571/2015
complaint, were not examined as a witness by the prosecution. The trial
court, however, found that merely because PW18 was affiliated to the RSS,
his testimony did not have to be disbelieved. It also found that it was a fact
that he had given Ext.P17 complaint before the office of the CI of Police at
Panoor for the CI (PW149) deposed that he had forwarded Ext.P17
complaint to the Chokli police station and Ext.P208 petition register of
Chokli police station showed that the complaint had been entered in it. The
contention of the defence that the complaint had been fabricated
subsequently was rejected by the trial court.
30.3. We see no reason to differ from the view taken by the trial
court. Apart from the fact that the political affiliation of the witness did not
have to be a reason to disbelieve his testimony if it was otherwise credible
and worthy of acceptance, we fail to see how the mere fact of non-
examination of CW250, CW273 and CW242 can affect the oral testimony of
PW18 when PW149 Dominic, CI of Police, Panoor had clearly spoken on the
enquiry made into Ext.P17 complaint and the action taken thereon.
30.4. The evidence of PW17 Subodh, that was also found credible by
the trial court, is to the effect that on 04.05.2012, at about 2100 hrs, when
he was returning on his motorcycle from a shop near Mahe railway station,
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along with his friend Sreejith Kumar (CW37), he saw an Innova vehicle
parked near the old age home at Koroth Road and six or seven persons
standing around the car. He recognised Dilshad A20 and Fasalu A21 from
among them as he knew them from before. They were talking to the other
persons while three or four of them were taking what looked like swords
into the vehicle. Among the strangers he saw that night, one was a fat, bald
person, and another was a fat dark-complexioned person. He later identified
those persons in court as A4 T.K. Rajeesh and A6 Sijith. He also deposed to
seeing something written in Arabic language on the front and rear glasses of
the Innova vehicle which he later identified at the Edacherry police station
as also in court. Although the defence tries to discredit his testimony by
alleging that he was an RMP worker/follower and pointing to omissions in
his previous statement as regards the finer details of his trip to the shop
near Mahe railway station, we do not see the said omissions or his alleged
affiliation to the RMP as material that would lead us to disbelieve his
evidence.
Forensic/DNA Evidence against A6:
31. As one of the main accused persons implicated through PW17’s
testimony is A6 Sijith, we might, at this juncture, also deal with the
forensic/medical evidence available against him. After the Innova vehicle
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was discovered on 05.04.2012, experts from the forensic department
inspected the vehicle and collected hair and blood samples found
thereon/therein. The said samples were packed and handed over to the
Investigation Officer PW165 at 4 pm on the same day. It was received in the
court on 08.05.2012. Thereafter, the IO prepared the forwarding note on
14.05.2012, and the samples in court were sent along with the forwarding
note of the IO and other samples received by the court on 23.05.2012, under
cover of Ext.P466, to the Forensic Sciences Laboratory (FSL). The samples
were received at the FSL on 26.05.2012, and the ones intended for DNA
testing were sent to the DNA division on 20.07.2012. The test report dated
14.08.2012 is produced as Ext.P571. At p.28 of Ext.P571 test report, the
result of the DNA profiling of the sample of blood obtained from inside the
vehicle is stated, and it shows that it was a mixture of blood belonging to T.P .
Chandrasekharan and A6 Sijith.
31.1. It deserves to be mentioned that A6 Sijith was arrested on
22.05.2012 (Ext.P458 arrest memo; Ext.P459 Inspection memo), and his
blood and hair samples were taken on the same day by PW107 Dr. Shalina
Padman as evidenced by Ext.P112 wound certificate. It was then sent
directly to the FSL by the IO on 13.06.2012 (Ext.P487). However, the FSL
returned the sealed sample to the IO on the same date, pointing out that the
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parcel did not contain a forwarding note with instructions as regards the
nature of testing required. The IO, therefore, forwarded the sealed sample
along with a forwarding note to the court (Ext.P489) on the very next day,
i.e. 14.06.2012, after preparing Ext.P168 maha zar. The sample was
thereafter sent from court on 19.06.2012, and the testing was done at the
DNA department of the FSL, which resulted in Ext.P571 test report dated
14.08.2012. Although the defence tried to suggest that the irregularity
occasioned by the IO in sending the blood sample of A6 Sijith directly to the
FSL without routing it through the court vitiated the testing of the sample,
we are not impressed with the said argument. It is not in dispute that the
blood sample from the Innova vehicle, that contained mixed blood, was sent
to the court earlier in point of time (08.05.2012) and before the arrest of A6
Sijith on 22.05.2012. The testing of A6 Sijith’s blood against the said mixed
blood obtained from the Innova vehicle was much thereafter, and the test
result showed that the mixture of blood was that of the deceased T.P .
Chandrasekharan and A6 Sijith. Thus, any irregularity/delay occasioned in
sending A5’s blood sample to the FSL was inconsequential since ultimately
the sample matched with the sample of mixed blood found in the Innova
vehicle.
31.2. It is also relevant that PW107 Dr. Shalina Padman has given
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evidence that on 23.05.2012 at 14.15 hrs, she had examined A6 Sijith and
that, on examination, she found a healing wound on his right hand near the
base of the thumb. There were markings of four sutures and two of them had
been removed by the patient himself. She opined that the age of the wound
was more than five days. Similarly, PW105 Dr. Cyriac Job, before whom A6
Sijith was produced for examination, also noted the presence of a V-shaped
healing wound on his right hand at the base of the thumb. He also deposed
that A6 Sijith had told him that the injury was caused on May 4th by the
impact of the sword of another person while entering the vehicle. The trial
court found that this statement of A6 Sijith to the doctor virtually amounted
to an admission and not a confession hit by Section 26 of the Indian
Evidence Act. Reliance was placed on the decision of the Privy Council in
Narayana Swami38 and the decisions of the Supreme Court in Kanda
Padayachi39 and Ammini40 to hold so. We find no reason to interfere with the
trial court's findings. Further, as there are no vitiating circumstances to
doubt the doctor's evidence, we are of the view that this evidence
unambiguously points to the presence of A6 Sijith in the Innova vehicle at
the crime scene on 04.05.2012.
38 Pakala Narayana Swami v. King Emperor – [AIR 1939 PC 47]39 Kanda Padayachi v. State of Tamil Nadu – [AIR 1972 SC 66]40 Ammini & Ors. v. State of Kerala – [AIR 1998 SC 260]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 130 ::& 403/2014 & CRA(V).No.571/2015
Recovery of the Innova vehicle:
32. With specific reference to the Innova vehicle, we find that while
the prosecution case is that PW1 Praseeth and CW2 Ramachandran had
accompanied the IO PW165 Jossy Cherian to the place Punathilmukku where
the Innova vehicle was found abandoned on 05.05.2012 and had helped to
identify the vehicle as the one that was used for the crime the previous
night, the defence points to the non-mentioning of the fact that PW1 and
CW2 were eye-witnesses to the incident in Ext.P1 seizure mahazar drawn up
that day to suggest that PW1 and CW2 did not actually witness the incident
the previous day. We note, however, that PW1 and CW2 had signed the
seizure mahazar as witnesses, and hence their presence at the time of the
seizure of the vehicle cannot be doubted. Besides, merely because they were
not described in the seizure mahazar as eyewitnesses to the previous night’s
incident is no reason to disbelieve either the testimony of PW1 or the
testimony of PW165 or the drawing up of Ext.P1 seizure mahazar itself. It is
important to note that PW1 had deposed that at the time of the incident, the
Innova vehicle bore Registration No.KL-18A-5964 and yet when he identified
the vehicle the next day, it bore the Registration No. KL-58D-8144. He also
identified the vehicle before the court later. Ext.P573 FSL report also proves
that the adhesive substance found on the reverse side of the false number
plates recovered under cover of Ext.P63 mahazar, matched with the
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 131 ::& 403/2014 & CRA(V).No.571/2015
substance found on the real number plates of the Innova car at the time of
its seizure on 05.05.2012. Therefore, PW1’s identification of the Innova
vehicle as the one that he saw the previous night with a different
Registration number stands corroborated by the said piece of evidence. The
use of a fake number plate on the Innova vehicle also stands proved by this
evidence.
32.1. The use of the Innova vehicle for the commission of the crime is
proved yet again by Ext.P573 FSL report that shows that the paint flakes
recovered from the scene of the crime and from the front tyre of the
deceased T.P . Chandrasekharan’s motorcycle as per Ext.P20 mahazar,
matched with the paint flakes taken from the Innova vehicle after its
recovery and seizure. The damages to the Innova vehicle indicated by
PW103 Salim Vijaykumar, the Motor Vehicles Inspector attached to the RTO
Office Vatakara, in Ext.P104 certificate issued by him also point to the
involvement of the Innova vehicle in the incident of the previous night.
Further, as already noticed while analysing the evidence against A6 Sijith,
page 28 of Ext.P571 test report contains the result of the DNA profiling of
the sample of blood collected from inside the vehicle on 05.05.2012 and it
shows that it was a mixture of blood belonging to T.P . Chandrasekharan and
A6 Sijith. In our view, the above evidence would suffice to unambiguously
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 132 ::& 403/2014 & CRA(V).No.571/2015
prove that it was the Innova vehicle that was seized on 05.05.2012 that was
involved in the incident of the previous day.
32.2. Apart from the above, it is also significant that in Ext.P572 FSL
report, some of the hair samples collected from the Innova vehicle were
found to be similar to the hair samples taken from A6 and A18. Since there
was DNA evidence to connect A6 with the incident on 04.05.2012, the trial
court relied on the Ext.P572 report only to find A18 guilty of abetting the
commission of the offence under Section 302 IPC, as seen from paras 561 to
584 of the impugned judgment.
Recovery of the Swords:
33. The recovery of MO1 series swords was made on 15.05.2012
based on the disclosure statement of A31 Pradeepan. A31 was arrested by
PW164 Dy.SP Shoukathali and he deposed that A31 had stated that if he
were taken, he would show the place where the swords were first kept and
the well in which the swords were subsequently hidden. Accordingly, A31
was taken to a place near Vasudeva Service Centre in Chokli, and he pointed
to a well behind the Service Centre. With the help of PW33 Rajesh, the
swords were taken out of the well, and PW164 then seized the same under
the cover of Ext.P28 mahazar. PW34 Sasidharan Pillai, a Junior
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 133 ::& 403/2014 & CRA(V).No.571/2015
Superintendent in the Taluk Office, Thalassery, was a signatory to the
mahazar, and he identified his signature in Ext.P28 mahazar. Although the
defence would urge, as it did before the trial court, that Ext.P28 mahazar
was not attested to by any persons in the locality, we do not see any legal
infirmity in the manner in which the mahazar was drawn up. There is
nothing on record that would persuade us to disbelieve the testimony of
PW164, PW33 or PW34, and hence, the recovery of MO1 series swords
stands proved. In any event, as rightly found by the trial court by relying on
Sunil,41 when the recovery of an object is made pursuant to the information
given by the accused, there is no obligation on the investigating officer to
call independent witnesses from the locality to witness the recovery or to
attest the recovery mahazar. We also do not find any merit in the submission
of the defence that there was an inordinate delay in producing the seized
articles before the Magistrate. The evidence on record shows that the seized
swords were produced without any delay along with the Ext.P371 property
list before the JFMC, Vatakara, at 1.30 pm on 16.05.2012.
Medical evidence connecting the swords with the injury on the victim:
34. In Ext.P179 post-mortem report prepared by PW136 Dr. Sujith
Sreenivas, the cause of death is attributed to “multiple incised chop injuries
sustained to the head and face cutting the skull and brain, transecting the
41 State Govt. of NCT of Delhi v. Sunil – [2001 Cri.LJ 504]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 134 ::& 403/2014 & CRA(V).No.571/2015
frontal lobe”. In his deposition before the court, PW136 stated that he had
examined the MO1 series of swords at the FSL pursuant to the order of the
JFMC and that Injuries 1 to 7 and 10 to 14 noted in Ext.P179 certificate
could be caused by the sharp edge of MO1 series swords. He further
deposed that the Injuries noted as 8 and 9 in Ext.P179 certificate and the
linear contusion of Injury no.4 could be caused by the non-cutting blunt edge
of the blade of the said weapons. He further deposed that Injury No’s. 1 to 3,
5 to 7 resulting in Injury No.14 have led to the death of the victim; that
those injuries are likely to cause death in the ordinary course of nature.
Although the defence would point out that the possibility that some of the
injuries were caused by a stick or other blunt weapon renders the medical
opinion inconsistent with the ocular evidence of PW1 and PW3, we find
ourselves in agreement with the trial court when it found that in view of the
definite opinion of PW136 that those injuries could be caused by the non-
cutting blunt edge of the blade of MO1 series swords, the medical evidence
did not completely rule out the possibility of the injuries being inflicted in
the manner stated by PW1 and PW3. As rightly found by the trial court,
relying on Solanki Chimanbhai ,42 unless the medical evidence goes so far
that it completely rules out all possibilities whatsoever of the injuries taking
place in the manner alleged by eyewitnesses, the testimony of the eye-
witnesses cannot be discarded on the ground of alleged inconsistency with
42 Solanki Chimanbhai Ukabhai v. State of Gujarat – [AIR 1983 SC 484]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 135 ::& 403/2014 & CRA(V).No.571/2015
the medical evidence.
Forensic Evidence against A2 and A3 as regards use of Explosives:
35. PW1 and PW3 had deposed that when A2 got out of the Innova
vehicle at the time of the incident, he had a round object in his hand and
that before leaving the place, A3 got the round object from A2 and threw it
on the road, and it exploded. The remnants of the explosion were collected
and sealed by PW132 E.K. Rajan, Assistant Sub-Inspector of Police in charge
of the bomb squad, when he inspected the crime scene on 05.05.2012. He
deposed to having handed over the sealed package to PW165 Jossy Cherian,
the IO. PW142 Remya, the Scientific Assistant had also collected and sealed
samples of the remnants of the explosion and handed over the same to
PW165. The said samples collected by PW132 and PW142 were then sent to
the FSL for analysis, and in Ext.P553 report, the said samples were found to
contain Potassium Chlorate, Sulphur and Aluminium. These being explosive
substances under the Explosives Substances Act, 1908, and there having
been no explanation offered by A2 or A3 as regards the possession and use
by them of those substances for any lawful purpose, the trial court found
that the charge against the said accused under the Explosive Substances
Act, 1908 stood proved. In the appeals before us, nothing substantial has
been brought to our notice that would persuade us to take a different view
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 136 ::& 403/2014 & CRA(V).No.571/2015
from that taken by the trial court on this issue. We, therefore, concur with
the finding of the trial court on this issue.
Our findings on the Incident:
36. In the light of the discussions above under this section, we are of
the view that the eyewitness testimony of PW1 and PW3 stands corroborated
by the circumstantial evidence discussed above and affords the basis for
entering a finding of guilt under Section 302 of the IPC against A1 to A7.
Further, in view inter alia of our findings against A1 to A7 on the issue of
conspiracy and their guilt established thereunder, we find ourselves in
agreement with the finding of the trial court that the unlawful assembly of
A1 to A7, armed with deadly weapons, was with the common object of
committing the murder of T.P . Chandrasekharan and hence their guilt
variously under Sections 143, 147, 148 and 302 read with 149 of IPC as well
Sections 3 and 5 of the Explosive Substances Act, 1908, as charged against
them, stands established.
Abetment and Harbouring
37. In this section, we deal with the evidence available against those
accused, other than A1 to A7, against whom charges have been mounted
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 137 ::& 403/2014 & CRA(V).No.571/2015
alleging abetment to murder, harbouring of the main accused, concealing
the design to commit the offence, destruction of evidence and forgery. Only
two of the accused, viz. A18 Rafeek and A31 Pradeepan were convicted by
the trial court for the offences under Section 302 read with 109 of the IPC
and under Section 201 of the IPC, respectively. The said accused have
preferred appeals challenging their conviction and sentence
(Crl.A.Nos.174/2014 and 176/2014). As regards the other accused (A16,
A41, A42, A48, A49, A50 & A70) who were acquitted by the trial court under
Section 235 of the Cr.P .C, the State has preferred an appeal
(Crl.A.No.403/2014) challenging their acquittal. The widow of T.P .
Chandrasekharan has also preferred an appeal (Crl.A (V) 571/2015)
challenging their acquittal.
38. For the sake of convenience, we propose to deal with the appeals
preferred by A18 and A31 first.
Crl.A.No.174/2014 filed by A18 Rafeek:
39. The trial court found A18 guilty of the offence under Section 302
read with 109 of the IPC. It is the case of the learned counsel for the
appellant/convicted accused that since there was no evidence suggesting
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 138 ::& 403/2014 & CRA(V).No.571/2015
that A18 had any knowledge of the use of the vehicle in connection with the
murder of T.P . Chandrasekharan or the conspiracy behind it, the mere
existence of some evidence that showed that the Innova vehicle was
entrusted to him by PW8 could not, without anything more, have formed the
basis of the finding of guilt under Section 302 read with 109 of the IPC. The
trial court at paras 561 to 584 of the impugned judgment found that the
entrustment of the Innova vehicle by PW7 to A18, through PW8 stood proved
and further that in the absence of any explanation forthcoming from A18 as
to how the vehicle reached the hands of A1 Anoop, it had to be inferred that
A18 had given the vehicle to A1 with the knowledge that it was going to be
used for the murder of T.P . Chandrasekharan. The trial court also relied on
corroborative evidence in the form of CDR data that showed that there were
frequent calls between A18 and A1/A3 during the period prior to the murder
of T.P . Chandrasekharan to find A18 guilty of the offence under Section 302
read with 109 of the IPC.
39.1. The learned counsel for A18 would argue that in view of the use
of phones by A1 and A3 not being proved, the said corroborative evidence
could not be relied upon to sustain the finding of guilt against A18. While we
find some force in the said argument, inasmuch as we too have excluded the
CDR data pertaining to the phones used by A1/A3 by finding the said
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 139 ::& 403/2014 & CRA(V).No.571/2015
evidence to be inadmissible, we are nevertheless inclined to agree with the
finding of the trial court on a different line of reasoning. We are of the view
that the entrustment of the Innova vehicle to A18 having been proved and
A18 not having given any explanation as to how the vehicle entrusted to him
came into the possession of A1, the ingredients to support a finding of
conspiracy stood established against A18. However, in the absence of a
specific charge of conspiracy against him, he cannot be found guilty under
Section 120B of the IPC. That, however, does not prevent us from
considering the ingredients of conspiracy established against him for the
purposes of finding him guilty under Section 109 of the IPC since the offence
defined in Section 107 of the IPC is deemed committed if “a person engages
with one or more other person or persons in any conspiracy for the doing of
that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing”. We are, therefore, in
complete agreement with the finding of the trial court that holds A18 guilty
of the offence under Section 302 read with 109 of the IPC. However, we find
that the said evidence, without anything more, cannot be used to find that
A18 had voluntarily concealed the existence of a design to commit murder of
T.P . Chandrasekharan to establish a charge under Section 118 IPC. We also
find no reason to interfere with the finding of the trial court that acquits A18
for the offence under under Sections 465 and 471 of the IPC.
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 140 ::& 403/2014 & CRA(V).No.571/2015
Crl.A.No.176/2014 filed by A31 Pradeepan:
40. As regards A31 Pradeepan, the charges against him were
threefold (Charges 49,50 & 51) and pertained to the offences under Sections
201 and 212 of the IPC. The charge under Section 201 of the IPC was in
respect of his alleged action of hiding MO1 series swords in a well and in
respect of his alleged action of taking the injured A6 to a hospital in Chokli
and giving false information at the hospital as regards the cause of the
injury. The latter part of the said action was also the basis of the charge
under Section 212 of the IPC. The trial court found him guilty on one count
under Section 201 of the IPC in connection with the concealment of the
swords in the well. He was acquitted of the other two charges, under
Sections 201 and 212 of the IPC. With regard to the recovery of the swords,
the basis of the findings of the trial court that found the recovery to be
proved has already been discussed in an earlier part of this judgment while
dealing with the circumstantial evidence against A1 to A7 and hence we
refrain from re-iterating those findings here. We have also found that there
is clear evidence to prove that MO1 series swords were used for the
commission of the offence.
40.1. The trial court was of the view that apart from his knowledge of
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 141 ::& 403/2014 & CRA(V).No.571/2015
the place of concealment of the swords, which could be inferred from the
recovery in terms of Section 27 of the Indian Evidence Act, the entrustment
of the swords to him by anyone among A1 to A7, as also his act of
concealment of the swords with the intention of screening them from legal
punishment, could be inferred. Before us, the learned counsel for A31 would
argue that while his knowledge as regards the place of concealment of the
swords could be a matter of legal inference, the entrustment of the swords
to him by any of the accused and his possession and concealment of the
same could not have been inferred by the trial court based on the evidence
that it considered.
40.2. While there is some force in the argument of the learned
counsel as regards insufficiency of the evidence considered by the trial court
to support a finding of entrustment of the swords to him by any of the
accused and his possession and concealment of the same, we find that there
was other evidence in the form of the testimony of PW18 Santhosh, that was
believed by the trial court, and that proved the presence of A31 along with
A3 and A5 at Chokli taxi stand. In our view, this evidence can be relied upon
to justify the view taken by the trial court. The presence of A31, along with
the other accused (A1, A3, A5 & A7) and the Innova vehicle at about 4 pm on
the day of the incident (04.05.2012) is sufficient in our view to infer his
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 142 ::& 403/2014 & CRA(V).No.571/2015
knowledge about the use of the same swords for the commission of the
murder of T.P . Chandrasekharan, and his concealment of the same,
especially when there was clear evidence to show that he had knowledge of
the place of concealment of the said swords.
40.3. As regards the other charge under Section 201 of the IPC and
the charge under Section 212 of the IPC, we find that although there is some
evidence to show that A6 Sijith was treated at the CMC Hospital Chokli for
an injury that he had sustained in the incident, there is no evidence that
would show that it was A31 who took A6 to the hospital or gave misleading
information to the hospital. We, therefore, concur with the findings of the
trial court acquitting A31 of the said charges.
Crl.A.Nos.403/2014 filed by the State & Crl.A.(V). No.571/2015 filed by the
Victim:
41. As regards the other accused (A16, A17, A19, A20, A21, A22,
A70) whose acquittal by the trial court under Section 235 of the Cr.PC has
been impugned by the State and the victim before us; we find on an
application of the principles that would govern us while considering an
appeal against an acquittal, that there is nothing substantial brought to our
notice by the learned Special Prosecutor that would lead us to find that the
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 143 ::& 403/2014 & CRA(V).No.571/2015
views of the trial court were perverse in the legal sense of the term so as to
warrant any reversal of the same. As has already been noticed in an earlier
portion of this judgment, even in a situation where we have some doubt with
regard to the manner in which evidence was appreciated by the trial court
or we entertain an alternate view with regard to the guilt of the accused, we
have to see whether the trial court’s view was a possible view. This is more
so because we cannot ignore the fact that the trial court would have had the
benefit of observing the demeanour of the witnesses before it, which often
provides clues to the weight of their testimony.43 It is only when the finding
of the trial court is demonstrated to be ‘clearly wrong’, and not merely when
it is ‘not correct’, that we can interfere with the said finding. In the case of
the above accused, we do not find any such material as would persuade us to
take a different view from that of the trial court.
In Conclusion:
1.We confirm the judgment of the trial court and sustain the conviction
of A1 to A8, A11 and A13 (A1 – Anoop, A2 - Manoj @ Kirmani Manoj, A3 –
N.K.Sunil Kumar @ Kodi Suni, A4 – T.K.Rajeesh, A5 – K.K.Muhammed Shafi,
A6 – S.Sijith, A7 – K.Shinoj, A8 – K.C.Ramachandran, A11 – Manojan &
A13 - Kunhanandan) in respect of the charges proved against them. We note
that A13 expired during the pendency of these appeals, and his legal
representative was impleaded.
43 H.D.Sundara & Ors v. State of Karnataka – [(2023) 9 SCC 581]
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 144 ::& 403/2014 & CRA(V).No.571/2015
2.Additionally, we convict A1 to A5 and A7 under Section 120B of the
IPC as well.
3.We set aside the acquittal of A10 [K.K.Krishnan] and A12 [Geothi
Babu] and convict them under Section 120B read with 302 of the IPC.
4.We confirm the acquittal of the other accused.
We direct the Jail Superintendent, Kannur and Tavanur to produce A1
to A8 & A11 in person before this Court at 10.15 am on 26.02.2024 for
hearing A1 to A5 & A7 on the sentence to be imposed under Section 120B
IPC and all of them (A1 to A8 & A11) on the plea of enhancement of
sentence and compensation.
The Registry is directed to issue non-bailable warrants for the
immediate arrest and production of A10 and A12 before the trial court. On
such production, or in the event of A10 and A12 voluntarily surrendering
before the trial court, it shall commit them to prison with a direction to the
Superintendent of the prison to produce them before this Court at 10.15 am
on 26.02.2024 for hearing on sentence.
The Registry shall also call for the following reports in respect of A1
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 145 ::& 403/2014 & CRA(V).No.571/2015
to 8 & A11, for effectively considering the plea of enhancement of their
sentence.
1.Report from the Probation Officers concerned.
2.Report from the Jail Superintendent, Kannur in respect of
A1, A2, A4 to A8 & A11 and from the Jail Superintendent, Thrissur and
Tavanur in respect of A3 as regards the nature of the work done by
the accused while in jail.
3.A psychological and psychiatric evaluation report in respect
of A1 to A8 and A11 from the Government Medical
College/Government Hospital.
The reports shall reach this Court on or before 26.02.2024.
prp/
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 146 ::& 403/2014 & CRA(V).No.571/2015
SIM Card Service
ProviderCall Data
RecordsNodal Officer
OP(1)9747170471 IdeaExt.P226 PW151
OP(2)8606896163 IdeaExt.P232 PW151
OP(3)7736822709 TataExt.P85 PW99
OP(4)8606398416 IdeaExt.P229 PW151
Call From Call To TimeDuration in seconds
AccusedCDRAccusedCDR
05.04.2012
06.04.2012
07.04.2012
08.04.2012
10.04.2012
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 147 ::& 403/2014 & CRA(V).No.571/2015
11.04.2012
13.04.2012
15.04.2012
16.04.2012
18.04.2012
19.04.2012
20.04.2012
21.04.2012
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 148 ::& 403/2014 & CRA(V).No.571/2015
22.04.2012
23.04.2012
24.04.2012
25.04.2012
26.04.2012
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 149 ::& 403/2014 & CRA(V).No.571/2015
27.04.2012
29.04.2012
01.05.2012
02.05.2012
03.05.2012
05.05.2012
06.05.2012
08.05.2012
12.05.2012
Crl.A.Nos.172, 174, 176, 177, 178, 179, 180, 339 :: 150 ::& 403/2014 & CRA(V).No.571/2015
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The Kerala High Court on Monday upheld the conviction of 12 persons for the 2012 murder of TP Chandrasekharan, a former member of the Communist Party of India (Marxist) [CPI(M)] who founded the Revolutionary Marxist Party (RMP), a breakaway of CPI(M).
The Court besides rejecting the appeals filed by the convicts (one of whom passed away during the pendency of the appeal) also additionally convicted two more persons who had been acquitted by the trial court.
A division bench consisting of Justices AK Jayasankaran Nambiar and Kauser Edappagath passed the order and also issued non-bailable warrants against the two additionally convicted persons, KK Krishnan and Jyotibabu.
The High Court ruled that Krishnan and Jyotibabu are also guilty of the offences under Section 120B (criminal conspiracy) read with Section 302 (murder) of the Indian Penal Code.
"We confirm the judgment of the trial court and sustain the conviction of A1 to A8, A11 and A13 (A1 – Anoop, A2 - Manoj @ Kirmani Manoj, A3 – N.K.Sunil Kumar @ Kodi Suni, A4 – T.K.Rajeesh, A5 – K.K.Muhammed Shafi, A6 – S.Sijith, A7 – K.Shinoj, A8 – K.C.Ramachandran, A11 – Manojan & A13 - Kunhanandan) in respect of the charges proved against them. We note that A13 expired during the pendency of these appeals, and his legal representative was impleaded. Additionally, we convict A1 to A5 and A7 under Section 120B of the IPC as well. We set aside the acquittal of A10 [K.K.Krishnan] and A12 [Geothi Babu] and convict them under Section 120B read with 302 of the IPC. We confirm the acquittal of the other accused," the judgment stated.
While passing the judgment, the bench further quoted Amartya Sen to criticise political violence:
"Democracy thrives on the peaceful exchange of ideas, not the violent imposition of beliefs. Political violence is the poison that corrodes the roots of democratic principles."
The Court has ordered all the convicts to be produced before the Court on February 26 to hear them on the question of sentence.
Chandrasekharan was murdered near Onchiyam in Kozhikode district.
The prosecution’s case was that the assailants were hired by certain CPI(M) functionaries to eliminate Chandrasekharan who posed a challenge to the party's influence in the area.
A trial court convicted 12 of the 36 persons accused on May 4, 2012.
However, the trial court also acquitted several persons accused, including prominent CPI(M) activists like Kozhikode district secretariat member P Mohanan as well as area and local committee members KK Krishnan and Jyotibabu.
The 12 persons convicted were sentenced to life imprisonment by the special court.
The verdict was challenged by the convicted persons before the High Court.
The convicted individuals claimed innocence and alleged that false evidence was cited against them. They argued that the investigation against them was biased. One among the 12 convicts died during the pendency of the appeal.
The High Court also heard appeals by both the State government and KK Rema, the wife of the slain leader. The State and KK Rema challenged the punishment awarded to the convicts by the trial court as well as the decision to acquit some of the accused.
The State sought to enhance the life sentences of the convicts to the death penalty, arguing that the trial court had failed to recognize the severity of the meticulously planned murder.
Rema contested the acquittal of several CPI(M) leaders and others accused, asserting that they had orchestrated the murder using professional criminals and should have received maximum punishment along with compensation for the victim's death.
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Re: Transfer of Mr Justice Rajnish Bhatnagar, Judge, High Court of
Delhi.
On 10 August 2023, the Collegium proposed transfer of Mr. Justice Rajnish
Bhatnagar, Judge, High Court of Delhi, to the Rajasthan High Court, for
better administration of justice.
In terms of the Memorandum of Procedure, we have consulted Judges of the
Supreme Court who being conversant with the affairs of the High Court of
Delhi are in a position to offer views on the proposed transfer. We have also
consulted the Chief Justices of the High Court of Delhi and the Rajasthan
High Court.
Mr. Justice Rajnish Bhatnagar by a representation dated 16 August 2023 has
requested for his retention in Delhi.
We have considered the request made by Mr. Justice Rajnish Bhatnagar in
his representation. The Collegium does not find any merit in the request
made by him. The Collegium, therefore, resolves to reiterate its
recommendation dated 10 August 2023 to transfer Mr. Justice Rajnish
Bhatnagar to the Rajasthan High Court.
|
The Supreme Court Collegium on Wednesday recommended the transfer Delhi High Court judge Justice Rajnish Bhatnagar to the Rajasthan High Court.
In its resolution published on the website of the apex court, the Collegium said that Justice Bhatnagar requested for his retention in Delhi but the same was turned down.
"On 10 August 2023, the Collegium proposed transfer of Mr. Justice Rajnish Bhatnagar, Judge, High Court of Delhi, to the Rajasthan High Court, for better administration of justice....Mr. Justice Rajnish Bhatnagar by a representation dated 16 August 2023 has requested for his retention in Delhi. We have considered the request made by Mr. Justice Rajnish Bhatnagar in his representation. The Collegium does not find any merit in the request made by him," the resolution said.
The recommendation was made after consulting the Chief Justices of both the High Courts as well judges of the Supreme Court conversant with the affairs of the Delhi High Court.
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+ W.P.(C) 8654/2021 & CM APPL. 26788/2021 (stay)
% Reserved on: 27th September, 2021
Pronounced on: 12th October , 2021
Through : Mr. B.S. Bagga, Advocate
Versus
Through : Mr. Tushar Mehta, Solicitor General
of India with Chetan Sharma, Additional Solicitor
General, Mr. Amit Mahaj an, Central Government
Standing Counsel , Mr. Amit Gupta, Mr. Vinay
Yadav, Mr. Akshay Gadeock and Mr. Sahaj Garg,
Advocates for Respondent No.1 .
Mr. Mukul Rohatgi, Senior Advocate,
Mr. Maninder Singh, Senior Advocate with
Ms. Diksha Rai , Ms. Devanshi Singh , Mr. Ankit
Agarwal, Mr. Prabhas Bajaj and Ms. Pala k
Mahajan, Advocates for Respondent No.2.
Mr. Prashant Bhushan, Ms. Neha Rathi and
Mr. Jatin Bhardwaj, Advocates for Interven er.
1. Presen t public interest litigation has been preferred seeking the
following reliefs: -
“a. Issue an appropriate writ, order or direction for
quashing the impugned order, dated 27.07.202I,
issued by the Respondent No.1 appointing
Respondent No. 2 as the Commission er of Police,
Delhi;
b. Issue an appropriate writ, order or direction to
Respondent No.1 to produce the order /
communication of Appointments Committee of
Cabinet vide No. 6/30/202I -EO (SM -I) dated
27.07.202Iissued by it approving the inter -cadre
deputati on of Respondent No. 2 from Gujarat
cadre to AGMUT cadre and further to extend his
service period to 3 l.07.202I, i.e. one year beyond
his date of superannuation, and to set -aside the
said order.
c. Issue a writ of mandamus or any other appropriate
writ, order or direction to the Respondent No. I to
initiate fresh steps for appointing Commissioner of
Police, Delhi, strictly in accordance with the
directions issued by the Hon'ble Supreme Court of
India in Prakash Singh case viz., (2006) 8 SCC 1,
(2019) 4 SCC 13 and (2019) 4 SCC an officer of
high integrity belonging the AGMUT cadre.
d. Pass such other order as this Hon'ble Court may
deem fit and proper in the facts and circumstances
of the instant case. ”
2. We have heard learned counsel appearing on behalf of the Petitioner
at length. Petitioner is aggrieved by the impugned order dated 27.07.2021,
whereby Inter -Cadre deputation has been granted to Respondent No.2 –
Mr.Rakesh Asthana , from Gujarat Cadre to AGMUT Cadre as also
exten sion of his service , initiall y for a period of one year beyond the date of
his superannuation on 31.07.202 1 or until further orders, whichever is earlier
and his appointment as Commissioner of Police, Delhi . Challenge is also
laid to the order dated 27.07.2021 whereby approval was gra nted by
Appointments Committee of Cabinet for Inter -Cadre deputation of
Respondent No. 2 as well as extension of his service beyond the a ge of
superannuation.
3. Respondent No. 2 is a 1984 Batch officer of the Indian Police
Services („IPS ‟), Gujarat Cadre and his date of superannuation was
31.07.2021. Vide the impugned order dated 27.07.2021, Respondent No. 1
has granted Inter -Cadre deputation to Respondent No. 2 and extended his
services beyond the date of superannuation. Vide the same or der,
Respondent No. 2 has been appointed as Commissioner of Police, Delhi.
Assailing the said order, i t was contended by learned counsel appearing on
behalf of the Petitioner that the impugned order ( Annexure P -2 to the memo
of this petition) has been pass ed in total violation of provisions of Rule
56(d) of the Fundamental Rules and Supplementary Rules (hereinafter
referred to as „FR-56(d) ‟); All India Services (Death -cum-Retirement
Benefits) Rules, 1958 (hereinafter referred to as „Rules, 1958 ‟); All India
Services (Conditions of Service - Residuary Matters) Rules, 1960
(hereinafter referred to as „Rules, 1960 ‟), as well as in violation of Office
Memorandum dated 08.11.2004 , issued by Department of Personnel and
Training, Ministry of Personnel, Public Griev ances and Pensions,
Government of India, (hereinafter referred to as „DoPT‟ ).
4. It was further contended by learned counsel for the Petitioner that the
appointment of Respondent No.2 , is also in violation of the directions issued
by the Hon'ble Supreme Court in Prakash Singh’s C ase (I), (2006) 8 SCC
1, wherein it was directed that DGP of the State shall be selected by the
State Government from amongst the three senior most officers of the
Department who have been empanelled for promotion to that rank by Union
Public Service Commi ssion (hereinafter referred to as „UPSC‟ ), on the basis
of their length of service, very good record and range of experience for
heading the Police Force. Once selected for the job, the DGP should have a
minimum tenure of at least two years, irrespective o f his date of
superannuation. For this, r eliance was placed on paragraphs 26 and 31 of the
said judgment. It was further submitted that the Hon‟ble Supreme Court vide
order dated 03.07.2018 in W.P.(C) 310/1996, reported in Prakash Sing h’s
Case , (2019) 4 SC C 13, had issued directions that all the States shall send
their proposals in anticipation of the vacancies to the UPSC, well in time , at
least three months prior to the date of retirement of the incumbent , on the
post of D GP and also direct ed UPSC to prep are a panel as per the directions
issued in Prakash Singh’s Case (I) and intimate the same to the States .
5. Learned counsel further submitted that the Hon‟ble Supreme Court,
vide order dated 13.03.2019, reported in Prakash Singh’s Case (II), (2019)
4 SCC 1 , directed that the recommendation for appointment to the post of
DGP by UPSC and preparation of panel should be purely on the basis of
merit from officers who have a minimum residual tenure of six months i.e.
officers who have at least six months of servic e prior to the retirement.
Relying on the observations and directions of the Hon‟ble Supreme Court, it
was contended that the post of Commissioner of Police , Delhi is akin to the
post of DGP of the State and therefore directions in Prakash Singh’s Case
(I) and (II) of the Hon‟ble Supreme Court , are required to be followed by
the Central Government while making an appointment to the said post.
However, in contravention of the said directions, Respondent No.2 was
appointed without being empanelled by UPSC , besides the fact that he did
not have a residual tenure of six months of service , at the time of his
appointment as Commissioner of Police, since he was retir ing within four
days of the appointment. Additionally, Respondent No.2 has been appointed
for a peri od of only one year, beyond his date of superannuation, though the
Hon‟ble Supreme Court clearly directed that a minimum two year s‟ tenure
must be available to the appointee.
6. It was submitted by counsel for the Petitioner that the de cision s in
Prakash Si ngh’s Case (I) and (II) are applicable to both, the State
Governments as well as Union Territories and therefore the directions issued
with respect to appointment of DGP of a State wou ld equally apply to
appointment of a Commissioner of Police, Delhi, both with respect to the
procedure of appointment as well as the residual tenure. As the appointment
is in violation of the aforesaid directions in Prakash Singh’s Case (I) and
(II), the same deser ves to be quashed and set aside.
7. Next contention on behalf of the Petitioner was that the appointment
of Respondent No.2 is in violation of provisions of FR -56(d). The said Rule
stipulates that no Government Servant shall be granted extension in service
beyond the age of retirement of sixty years albeit under certain exceptional
circumstances enumerated therein or in respect of certain exceptional
categories specified in the Provisos , extension can be granted for the
maximum periods , specified in each of th e Provisos. The argument was that
as a normal rule, there can be no extension of service beyond the age of
sixty years and Respondent No.2 does not fall in any of the exceptions
provided under the Provisos to FR -56(d).
8. Learned counsel for the Petitioner also contended that Respondent
No.2 is not eligible for relaxa tion of Rule 16(1) of Rules 1958 and therefore
the extension of service of Respondent No.2 , for a period of one year
beyond the age of is superannuation or until further orders, whichever is
earlier, in alleged relaxation of the said Rule is bad in law , being violative of
the provisions of Rule 16(1) of Rules, 1958. It was argued that Rule 16(1) of
Rules 1958 clearly provides that a member of the service shall retire from
the service with effect from the afternoon of the last day of the month in
which he at tains the age of sixty years. Exceptions to the Rule, where
extension can be granted , have been specifically stipulated in the Provisos to
the said Rule and the case of Respondent No. 2 does not fall in the
exceptions provided under the Provisos . Thus no e xtension could be granted
to Respondent No. 2 beyond his age of superannuation . In any event , Rule
16(1) provides for a maximum period of extension of service, which is six
months , while the ser vices of Respondent No. 2 have been extended beyond
the permis sible period of six months .
9. Elaborating the argument, it was contended that Rules 1958 were
framed by the Central Government in exercise of powers conferred by
Section 3(1) of the All India Ser vices Act, 1951. The power of the Central
Government to relax the said Rules emanates from Rule 3 of Rules, 1960 .
Respondent No.1 has apparently relaxed the requirements of Rule 16(1) in
the present case , in exercise of power under Rule 3 of Rules, 1960 , which is
completely illegal and malafide . The power of relaxati on under Rule 3 of
Rules, 1960 can only be exercised by the Central Government when it is
satisfied that the operation of a Rule , regulating the conditions of service of
a person appointed to an All India Service causes „undue hardship ‟, in any
particular case and the relaxation may be granted to such extent and subject
to such exceptions and conditions , as may be , considered necessary for
dealing with the case , in a just and equitable manner. In the present case,
Respondent No.2 does not fall within the sp ecified categories mentioned
either under the Provisos to FR -56(d) or those under Rule 16(1) and once
Respondent No.2 is not the holder of any of the posts specified under the
Provisos, he was n ot entitled to extension , as the Central Government had no
power or jurisdiction to relax the Rules. In any case, no public interest ,
whatsoever , is sub -served by granting the said extension.
10. It was further contended by counsel for the Petitioner that in
appointing Respondent No.2, Respondent No.1 has also violated the
mandate and provisions of DoPT O.M. dated 08.11.2004. Para 2 (i) of the
said O.M. provides that Inter-Cadre deputation will be available to officers
only after completion of 9 years of servi ce in his/her cadre and before
reaching Super Time Scale in his / her home cadre . Respondent No.2, i t was
submitted , is a 1984 -Batch IPS Officer of Gujarat Cadre , who had reached
the Super Time Scale in his home Cadre in 2002 and therefore his Inter -
Cadre deputation from Gujarat Cadre to AGMUT Cadre , is in contraven tion
of the provisions of the O.M. dated 08.11.2004 and thus the impugned order
dated 27.07.2021 , issued by Respondent No.1, deserves to be quashed and
set aside.
11. We have heard Mr. Prashant Bhushan, learned counsel a ppearing on
behalf of the Interven er – Centre for Public Interest Litigation , who ha d
preferred an application being C.M. APPL. 29150/2021 , which was allowed
vide order dated 01.09.2021 , permitt ing the applicant to assist the Court in
adjudication of the p resent writ petition.
12. Mr. Prashant Bhushan, learned counsel assailed the impugned orders
of the Central Government and ACC, both dated 27.07.2021 , respectively on
multi farious grounds. It was argued that the directions of the Hon‟ble
Supreme Court in the case of Prakash Singh (I) and (II) as well as in the
order dated 03.07.2018 , have been flouted by Respondent No. 1, in as much
as, Respondent No.2 was not empanelled by UPSC , prior to his appoi ntment
as Commissioner of Police, Delhi. Secondly, the appoint ment is also
contrary to the specific directions in Prakash Singh’s Case (II) , whereby
the appointee should have a minimum residual tenure of six months i.e.
officer should have at least six mon ths of service prior to the retirement ,
while in the case of R espondent No.2, the appointment was made four days
prior to his superannuation.
13. Mr. Prashant Bhushan further contended that the extension of service
granted to Respondent No.2 is against the p rovisions of FR- 56(d) and Rule
3 of Rules, 1960 . Respondent N o.2 does not fall under any of the exceptions
to Rule 16(1) of Rules, 1958 or FR -56(d) and therefore was not entitled to
relaxation of the Rules under Rule 3 of Rules, 1960. The exercise of powe r
by the Central Government under Rule 3 of Rules, 1960 is the refore without
jurisdiction and illegal. Further contention of learned counsel was that
Respondent No.1 has clearly mis -interpreted and misread Rule 3, as is
evident from reading of para 46 of t he counter affidavit , filed by Respondent
No.1 . Rule 3 envisag es a situation of “undue hardship” to an officer and not
to the State Authorities and therefore the ground of “undue hardship” was
not available to Respondent No. 1 to relax the provisions of Ru le 16(1) of
Rules, 1958 and grant extension of service to Resp ondent No. 2 beyond the
date of his superannuation . Learned counsel placed reliance on the following
judgments: -
a) R.R. Verma v. Union of India , (1980) 3 SCC 402 ,
b) Syed Khalid Rizvi v. Union of In dia, (1993) Supp (3) SCC
c) Union of India v. D. R. Dhingra, (2000) 11 SCC OnLine Del
14. Mr. Bhushan has also assailed the appointment of Respondent No.2
on the ground that the action of Respondent No. 1 is in violation of the
Guidelines provided in DoPT O.M. dated 08.11.2004 , in as much as , having
reached the Super Time Scale in his home Cadre, way back in 2002,
Respondent No.2 was not eligible for Inter -Cadre deputation from Gujarat
Cadre to AGMUT Cadre .
15. Mr. T ushar Mehta, learned Solicitor General of India , appearing on
behalf of Respondent No.1 /Union of India submitted that Respondent No.1
has neither violated provisions of FR -56(d) nor Rule 16(1) of Rules, 1958 ,
as alleged by the Petitioner/Intervener and the power to relax the said Rules
has been correctly exercised by invoking Rule 3 of Rules, 1960 . The
allegation that Guidelines stipulated in DoPT O.M. dated 08.11.2004 have
been flouted is vehemen tly disputed and denied.
16. Learned Solicitor General strenuou sly contended that the plea of the
Petitioner/ Intervener that the appointment of Respondent No.2 is in violation
of the judgment and directions of the Hon‟ble Supreme Court rendered in
Prakash Si ngh’s Case (I) , is completely misconceived and devoid of meri ts.
Respondent No.1 has not violated any direction (s) of the Apex Court and in
fact, the Petitioner and the I ntervener are misreading and misinterpreting the
observations and directions. It was s ubmitted that the directions issued by
the Apex Court in Prak ash Singh’s Case ( I) and (II) are applicable in
respect of appointment of „DGP of a State‟/Chief of the Police
Administration of the entire State and ha ve no application for appointment
to the po st of Commissioner/Police Head of a Union Territor y, falling under
the AGMUT Cadre. Drawing the attention of the Court to para 31 of the
judgment in Prakash Singh’s Case (I) , it was argued that direction no.2
under the heading „Selection of Minimum Tenure of DGP‟ would not apply
to Police Commissioner of a Commissio nerate in general and Union
Territories under AGMUT Cadre , in particular . The direction that the
Director General of Police shall be selected by the State Government from
amongst the three senior most officers of the Department empanelled for
promotion to the said rank, by UPSC , was only in respect of a „State‟ and
not any Union Territory.
17. It was further contended that pursuant to the directions of the Hon‟ble
Supreme Court in Prakash Singh’s Cas e (I), UPSC framed Guidelines for
appointment of DGPs of Stat es, but no such Guidelines were framed for
appointment of Police Commissioner/Head of Police Force in U nion
Territorie s, appointed from the AGMUT Cadre. From 2006 onwards, the
Central Government, the State Gov ernments and UPSC have understood and
applied t he directions issued in Prakash Singh’s Case only for appointment
of DGP of State, which has a dedicated State Cadre and sufficient number of
officers available in Pay-Level 16 Pool , for constitution of a pane l, for
appointment of DGP, which is a Pay-Level 17 Rank and pertinently, these
Guidelines framed by the UPSC were also placed before the Hon‟ble
Supreme Court.
18. It was argued that since the year 2006 and prior to the appointment of
Respondent No.2, eight Po lice Commissioners have been appointed by the
Central Government in Delhi, following the same procedure as has been
followed in the instant case. There has never been any objection to the
erstwhile appointments either by UPSC or the intervener organization and
the selective objection to the appointment of Respondent No.2 herein raises
serious concerns on the bonafides of the Petitioner/ Intervener.
19. It was contended that in terms of the judgment in Prakash Singh’s
Case (I) , Head of Police Force in the Stat e i.e. DGP Rank Officer attains
Pay-Level 17 af ter selection, from the eligible DGP level Officers in Pay-
Level 16 and ADG level officers, available in the cadre with 30 years of
service and six months left for retirement. In the State Cadres, generally,
sufficient number of officers are available for preparing the panel for
appointment to the DGP level. However, the status of AGMUT Cadre is
different from other State Cadres. In case of AGMUT Cadre, there are
several segments and in all the segments respect ively, Head s of Police Force
are in different P ay-Levels. This is on account of the fact that in AGMUT
Cadre , there never exists a situation where sufficient number of Pay-Level
16 DG Rank Officers are available in one segment , with thirty years of
service and six months of residual service, for empane lment by UPSC, in
accordance with the directions in Prakash Singh’s Case (I) and (II) .
20. It was further contended that if the directions in Prakash Singh’s
Case (I) were to apply in case of UTs / AGMUT Cadre th en from one single
segment, a total of 3 Pay-Level 16 IPS Officers would be required for
empanelment by UPSC and the same shall be the requirement with respect
to all the segments . Such a vast pool of Pay-Level 16 IPS Officers , for each
segment is never av ailable in the AGMUT Cadre and this is the reas on why
in all the segments, the Head of Police Force is made from different levels,
as detailed in the tabular representation given in the counter affidavit.
Drawing the attention of the Court to the table in para 20 of the Counter
Affidavit, it was argued by Mr. Mehta that the highest level post s sanctioned
in different segments of AGMUT Cadre are at different Pay-Levels. It is
only in Delhi, which is the Capital of the Nation, that the highest sanctioned
post of Commissioner of Police, Delhi is in Pay-Level 17, while for all other
segments, the level of Police Head is below Pay-Level 17.
21. Learned Solicitor General articulated that for Delhi, which is the
Capital of the country, there is a requirement of a robu st Police Force of
International repute and thu s maximum number of sanctioned posts in ADG
Rank and above are created in AGMUT Cadre to cater to the peculiar
policing needs of the National Capital. Though Delhi has sufficient number
of ADG ( Pay-Level 15 IP S officers) , which can be included in the zone of
consideration , as per Prakash Singh ’s Case (I) , however, a panel of 3 IPS
officers , from DG P rank in Pay-Level 16, cannot be prepared from the pool
of officers available in G overnment of NCT of Delhi, as ev inced by the
Hon'ble Supreme Court in the conte xt of appointment of DGP of a State.
Learned Solicitor General further submitted that the highest sanctioned post
is Commissioner of Police , Delhi , which is in Pay-Level 17. In the available
pool, there is on ly one post of DG P (Pay-Level 16) in Delhi and remaining
are 10 sanctioned post s of ADG ( Pay-Level 15). Albeit , technically a Pay-
Level 15 officer can be considered for empanelment, however, the same
would be of no avail as in the presence of DGP Level of ficer in the segment ,
an officer of ADG level c annot head the Police Force in that segment. As a
matter of practice , not only in Delhi but in the entire country , a Pay-Level 15
IPS officer, though he may be technically competent to be part of the zone
of consideration, is not granted Pay-Level 17 direc tly from Pay-Level 15, as
this would have demoralising and deleterious effect not only on the officers
superseded but the entire Polic e Force and thus such a practice is
discouraged.
22. It was contended by lear ned Solicitor General that the case of
AGMUT Ca dre and Delhi Commissionerate is a sui generis case, so far as
the appointment of Commissioner of Police/ Head of Police Force is
concerned. Delhi being the Capital , has its own characteristic features ,
which d o not exist in any other Commissionerate. Being the Capital of the
country, any untoward incident occurring here, has far -reaching impact and
implication , not only throughout the country but across the International
borders. In a nutshell, the argument was that any statutory provision
deserves to be re ad in a manner that a leeway and discretion is left to the
Central Government for appointment of Police Commissioner , Delhi and
any straitjacket or paediatric approach would not be in National interest.
Reiter ating the argument, Mr. Mehta submitted that ke eping i n view the
peculiar structure of AGMUT Cadre, the directions issued in Prakash
Singh’s Case (I) and (II) for appointment of DGP of a State , cannot be
made applicable ipso facto for appointment of the He ad of Police Force in
relation to a Union Terri tory, particularly Government of NCT of Delhi and
in fact a bare reading of the judgment reflects that the directions were not
even intended to be implemented with respect to the Union Territories which
have a common AGMUT Cadre. No action can be invalidat ed on the ground
of non -performance of something, the performance of which is impossible.
23. Learned Solicitor General drew the attention of the Court to the
position prevailing in the various segments of the AGM UT Cadre , to make a
point that a pool of suffic ient number of officers is not available at the
appropriate level or rank and therefore it is not feasible to prepare a panel of
three officers . As an illustration, it was shown that in Puducherry, highest
sanctioned post is at IG level and as per UPSC Gui delines, IG level officers
and DIG level officers with 18 years of service are eligible for inclusion in
the zone of consideration for heading the Force. However, considering that
only o ne IGP and one DIG post have been sanctioned, it is not feasible to
prepare a panel of three officers. Moreover, in the presence of IGP level
officer in the segment, an officer of DIG level cannot head the Police Force
in that segment. It was highlighted t hat the aforesaid features distinguishing
the case of Union Territorie s and AGMUT Cadre from a State , were before
the Hon‟ble Supreme Court and also within the knowledge of UPSC and it is
for this reason that neither the Hon‟ble Supreme Court nor the UPSC , which
empanels the eligible IPS officers for appointment as DGPs of r espective
State(s) , as per its Guidelines of 2009, ha ve directed the Central Government
or the Delhi Police Force to follow the process of empanelment by UPSC , in
accordance with the dir ections in Prakash Singh’s Case (I) and (II) .
24. Learned Solicitor Gener al of India submitted that the appointment of
Commissioner of Police , Delhi has all along been made as per the procedure
prescribed under the Delhi Police Act, 1978 read with Transaction of
Business of GNCTD Rules, 1993. Section 6 of the Delhi Police Act, 1978
provides for appointment of Commissioner of Police and perusal of the
provisions of Section 6 clearly reveal s that the appointment is made by the
Administrator ( Hon‟ble Lieutenant G overnor ) in accordance with the
procedure laid down under the Transact ion of Business of GNCTD Rules,
1993. Under Rule 55(2) of the said Rules, subject to Instructions issued from
time to time , by the Central Government, the Hon‟ble Lieutenant Governor
is required to make a prior reference to the Central Government in the
Ministry of Home Affairs or the appropriate Ministry, with respect to
proposals for appointment of Chief Secretary and Commissioner of Police,
Secretary (Home) and Secretary (Lands). The s aid procedure has been
followed all along and eight Commissioners, pri or to the appointment of
Respondent No.2 herein, have been appointed by the Ministry of Home
Affairs, in accordance with th is procedure, following the mandate of Delhi
Police Act read wi th Transaction of Business of GNCTD Rules, 1993 .
25. In so far as Inter-Cadre deputation of Respondent No.2 is concerned,
learned Solicitor General submitted that the re is no illegality in the action of
Respondent No.1, as alleged, in as much as the Inter -Cadre deputation is in
accordance with the provisions of DoPT O.M No.130 17/16/2003 -AIS (I)
dated 28.06.2018 ( Annexure R/2 to the counter affidavit filed by
Respondent No.1) . The said O.M clearly stipulates that all cases of Inter -
Cadre deputation would be pr ocessed as per Guidelines stated therein and
wherever relaxation of an y of the provisions of the Guidelines are required,
the case shall be put up to a Committee comprising of Secretary, DoPT,
Establishment Officer & Additional Secretary and Additional Sec retary
(S&V) , as Member s. Home Secretary is to be co-opted as a Member in this
Committee, while considering cases of IPS officers , for relaxation of any
provision relating to Inter -Cadre deputation . In consonance with the said
O.M, the matter is first placed before the Committee for recommendation
relating to relaxation of t he conditions laid down in the O.M dated
08.11.20 04.
26. Elaborating the argument, learned Solicitor General contended that
the Office Memorandums are nothing but practice /executive directi ons,
issued by the Central Government to regulate the service conditio ns of its
employees and are to be interpreted keeping in view the past practice .
Exercis ing powers under Clause (a) of the DoPT OM dated 28.06.2018,
Central Government has been granting Inter-Cadre deputation to officers
who have attained Pay-Level 14, by following the procedure laid down
under Clause (b) of the O.M. dated 28.06.2018 and the relaxation power of
the Central Government has never been questioned in the past. To
substantiate the argument, names of four officers were pointed out to the
Court, as referred to in para 36 of the counter affidavit, in whose cases the
power of relaxation was exercised for granting Inter -Cadre deputation. In the
instant case, powers of relaxation have been invoked to relax Clause 2(i) of
the DoPT O.M. dated 08.11.2004 a nd the action does not suffer from any
illegality in the absence of lack of power of relaxation and nor can it be
contended that there is any procedural irregularity, while passing the
impugned order.
27. Reiterating the argument that Delhi being the Capital of the country ,
having a specific and special requirement , in view of the fact that it has
witnessed several untoward and extremely challenging incidents/law and
order problems/riots/ crimes , which have International implication s, it was
emphasized that there was a dire need and necessity of appointment of an
experienced officer , having diverse and multifarious experience of heading a
Police Force in any large State/Central Investigatin g Agency / Para-military
Security Forces etc. to head the Delhi Police Force. The Competent
Authority , accordingly , in its considered decision , thought it appropriate and
just, in public interest, to appoint Respondent No.2, who has vast experience
and kno wledge in the field, having headed a large Para -Military Force , so as
to effectively negotiate and handle the peculiar policing needs and the law
and order situation in the National Capital .
28. Learned Solicitor General next contended that both the Petition er and
the intervener are mis -reading and mis -interpreting FR -56(d) an d Rule 16(1)
of Rules, 1958, as though there is a complete bar in granting extension in
service beyond the age of superannuation and are overlooking Rule 3 of
Rules, 1960 , under which the Central Government has the power to relax
any Rule/Regulation , where the Central Government is satisfied that the
operation of any Rule , made or deemed to have been made under the All
India Services Act, 1951 or any Regulation made under any such Rule,
causes “undue hardship ” in any particular case. The „undue hardship‟
contemplated would include the hardship faced by the Central Government.
In case of a hardship faced by the Central Government/Cadre Controlling
Authority ( hereinafter referred to as „CCA ‟), in finding a suitable officer for
a specific post , with special re quirements , within a cadre , it can relax Rule
16(1) of the Rules, 1958 and grant extension of service to an officer , in
exercise of powers conferred under Rule 3 of Rules , 1960 and Secti on 21 of
the General Clauses Act , 1897 .
29. In the present case , during th e process of appointment of the
Commissioner of Police, Delhi, the CCA was faced with precarious
situation , where it was found that most of the appropriate level officers of
AGMUT Cadre , were not having sufficient experience of policing in a vast
law and o rder sensitive State/Central Investigating Agency/National
Security/ Para-Military Force , for appointment of Commissioner of Police ,
Delhi, which being the Capital of the country, was ex periencing a unique
situation in terms of the impact of local incidenc es of crime and the law and
order situation was adversely affecting the image of the Country.
Considering the complexities and the sensitivities involved and also
considering that no off icer of appropriate seniority with balanced experience
was available i n the AGMUT Cadre, it was felt that an officer belonging to a
large State Cadre, who had the exposure of complexities of governance and
knowledge of nuances of broad canvas policing , is given the charge of
Commissioner of Police , Delhi. Keeping th e public interest objective in
mind , the service tenure of Respondent No .2 was extended in exercise of the
powers vested in the CCA . In the absence of lack of power, exercise of said
power cannot be faulted , when the same is in accordance with law.
30. Learned Solic itor General articulated that power of the Government to
extend the tenure of service of an officer working under the Central
Government has been recently affirmed by the Hon'ble Supreme Court in
judgment dated 08.09.2021 , passed in Common Cause (A Registe red
Society) vs . Union of India & Ors., 2021 SCC OnLine 687 . Additionally,
Ministry of Home Affairs , being the CCA of IPS officers , in exercise of
powers conferred under Rule 3 of Rules, 1960, relaxed Rule 16(1) of Rules,
1958 and extended the service tenu re of the following officers: -
i. Shri Amulya Kumar Patnaik, IPS (AGMUT:1985)
ii. Shri Shivanand Jha, IPS (GJ:1983)
iii. Shri Sanjay Barve, IPS (MH:1987)
iv. Shri Kuladhar Shaikia, IPS (AM:1985)
v. Shri Mu nir Ahmad Khan, IPS (JK:1994)
vi. Shri Sulkhan Singh, IPS (UP:1980)
vii. Shri S uresh Arora, IPS (PB:1982)
ix. Shri K. Rajendra Kumar , IPS (JK:1984)
31. Learned Solicitor General also questioned the maintainability of the
present petition and argued that a public interest litigation is not tenable in
service mat ters. If any individual is personally aggrieved or affected by the
appointment of Respondent No.2 , as Commissioner of Police, Delhi, it is
always open to that individual to challenge the appointment of Respondent
No.2 , however, present Petitioner cannot ch allenge the same by filing a writ
petition in the nature of public interest litigation.
32. It was argued that the present petition is a verbatim reproduction of a
petition filed earlier b y the Intervener before the Hon‟ble Supreme Court
and is a gross abuse of process of law , which cannot be lightly brushed
aside. The fact that the petition is a „cut, copy, paste‟ of another petition not
only reflects non -application of mind of the Petitio ner but also creates
serious doubts on the bonafides of the Petitioner . In so far as the Intervener
is concerned, learned Solicitor General submits that the Intervener is not a
public spirited organisation but is a mere busy body, which selectively files
petitions for vested interests. There are serious concerns regarding th e
purpose and motive behind the present petition and the same should thus not
be entertained, though camouflaged as a public interest litigation.
33. It was also urged by Mr. Mehta that Central Government has the
power, jurisdiction and authority to grant Inter-Cadre deputation to officers
by virtue of provisions of DoPT O.M. dated 08.11.2004, as well as to grant
relaxation of the provisions of the said O.M., wherever required , under
Clause (a) of DoPT O.M. dated 28.06.2018 . Once the Central Government
has the powers of relaxation, this Court cannot substitute the decision of the
Government granting relaxation , in exercis e of powers of judicial review.
The decision to relax the provisions of DoPT O.M. dated 08.11.2004 and
grant Inter -Cadre deputation to Respon dent No. 2 , is a well -considered
decision based on special facts and circumstances obtaining in the AGMUT
Cadre and the subjective satisfaction has been arrived at on objective
considera tions. This Court cannot sit as a Court of appeal over the subjective
satisfaction arrived at by the Central Government for grant of Inter -Cadre
deputation to Respondent No.2 or for extension of his service beyond
superannuation as well as appointment as C ommissioner of Police , Delhi .
34. It was vehemently argued that the prese nt petition is an abuse of the
process of law and manifestly an outcome of some personal vendetta against
the incumbent Commissioner of Police entertained by the Petitioner as well
as th e Intervener and the petition deserves to be dismissed with exemplary
costs.
35. Learned Solicitor General placed reliance upon the following
judgments: -
a) Tehseen Poonawalla vs. Union of India, (2018) 6 SCC 72 ,
b) Citizens For Justice and Peace vs. State of Guja rat & Ors.
c) Central Electricity Supply Utility of O disha vs. Dhobei Sahoo
& Ors., (2014) 1 SCC 161 .
d) Arun Kumar Agrawal vs. Union of India & Ors., (2014) 2
e) Hari Bansh Lal vs. Shaodar Prasad Mahto & Ors., (2010) 9
f) Girjesh Shrivastava & Ors. vs. State of Madhya Pradesh &
Ors., (2010) 10 S CC 707 .
36. We have heard Mr. Mukul Rohatgi, learned Senior Counsel appearing
on behalf of Respondent No.2 – Mr. Rake sh Asthana, who has at the outset
contended that the writ petition is not a bonafide public interest litigation ,
but a flagrant abuse of the august Forum of this Court on account of a
personal vengeance or a hidden vendetta, either of the Petitioner or the
Intervener or someone, on whose behest attempts are being made to
jeopardise the career of Respondent No. 2. It was also argued that the
present petition is a proxy litigation on behalf of some undisclosed rival
interest . Learned Senior Counsel placed rel iance upon the decision of the
Hon‟ble Supreme Court in R.R. Verma v. Union of India, (2010) 3 SCC
402, more particularly paragraph 181 thereof , to contend that Court s must
ensure that there is no personal gain or private /oblique motive behind filing
a pet ition in the nature of public interest litigation.
37. Mr. Mukul Rohatgi placed reliance upon Annexure CA -1 appended to
the counter affidavit filed by Respondent No. 2 , which are copies of the
snapshots of the tweets posted by learned counsel for the Interven er,
between 22.10.2017 to 28.07.2021 , to buttress the point that not only is the
present petition an abuse of process of law but also that there has been a
sustained social media campaign against Respondent No. 2 in the past,
which corroborates the apprehe nsion of Respondent No. 2 that the challenge
to his appointment is a result of either some personal vendetta or
undisclosed rival interests. It was argued that there are two organizations,
namely, Common Cause and Centre for Public Interest Litigation, who are
professional public interest litigants and exist only for filing litigations. One
or two individuals run both the organisations and enjoy deep and pervasive
control over these organisations. Individuals running them in the recent past,
for some obliqu e and ostensible undisclosed reasons , have started a barrage
of selec tive actions against Respondent No.2 , either out of some personal
vendetta or at the behest of some other individuals. As a part of this selective
campaign against Respondent No.2, procee dings are being consistently filed
against him in Courts , by these tw o organisations and additionally outside
the Courts, people in control of the said organisations spearhead a malicious
campaign against Respondent No.2. This, it was argued, has been a regular
feature, since Respondent No.2 was appointed as Special Directo r in the
Central Bureau of Investigation. Mr. Rohatgi has drawn the attention of the
Court to the counter affidavit , filed on behalf of Respondent No.2, wherein
details of the petitions f iled against Respondent No. 2 , by the said
organisations , have been e numerated.
38. Objection was taken to the maintainability of the writ petition also on
the ground that no public interest litigation can be entertained in service
matters, as held by the Hon ‟ble Supreme Court in several judgements. It was
also pointed out tha t no individual who may have been an aspirant to the
post or personally aggrieved by the appointment, has approached the Court
against the appointment of Respondent No. 2.
39. Without prejud ice to the afore said arguments, Mr. Rohatgi learned
Senior Counsel, o n merits, adopted the arguments canvassed on behalf of
Respondent No. 1. It was reiterated that the judgements of the Hon‟ble
Supreme Court in Prakash Singh’s Case (I) and (II) are applic able for
appointment to the post of „ DGP of a State‟/Chief of Police Administration
of the entire State and have no application with respect to appointment of
Commissioners of a Commissionerate in General and Union Territories ,
falling under the AGMUT Cadr e, in particular .
40. It was further submitted that Rule 3 of Rules, 19 60 gives power to the
Central Government to relax the requirements of Rules made under the All
India Services Act, 1951 and the Regulations made under the said Rules,
where ver it is satis fied that the operation of any Rule or Regulation, as the
case may be , causes „undue hardship ‟ in any particular case. Exercising the
said power, provisions of Rule 16(1) of Rules, 1958 were relaxed by the
Central Government , as evident from the stand of l earned Solicitor General
that during the process of appointment of th e Commissioner of Police,
Delhi, the CCA was faced with a precarious situation where most of the
appropriate level officers of AGMUT Cadre were not having sufficient
experience of Policin g in a vast law and order sensitive State/Central
Investigating Agenc y/National Security/Para -military Force, to enable the
CCA to appoint the Commissioner of Police, Delhi, keeping in mind the
complexities and sensitivities involved in the National Capita l. Likewise, it
was contended that there is no illegality in the Inte r-Cadre deputation of
Respondent No. 2 or the extension of service beyond the date of
superannuation , as the same has been granted in exercise of powers of
relaxation by the Central Gover nment, invoking Rule 3 of Rules, 1960 and
there is no dispute on the existence of such powers. Hence, it was submitted
that the writ petition be dismissed and costs be imposed on the Petitioner.
41. We have heard the learned counsel app earing for the Petitioner as
well as counsel for the Intervener and l earned Solicitor General appearing on
behalf of Respondent No.1 as well as learned Senior Counsel appearing for
Respondent No.2, at length.
42. From the aforesaid narrative of facts and the c ontentions raised by the
respective parties , it emerges that Responde nt No.2 is an IPS officer of 1984
Batch of Gujarat Cadre , with a n experience of approximately 37 years in
different posts . Respondent No. 2 has been found suitable by Respondent
No.1 , to be appointed as Commissioner of Police, Delhi , vide order dated
27.07 .2021 ( Annexure P -2 to the memo of this writ petition) . By the same
order, Respondent No.2 was brought on Inter -Cadre deputation from Gujarat
Cadre to AGMUT Cadre and also granted extensi on of service initially for a
period of one year , beyond the date of his superannuation or until further
orders, whichever is earlier, in relaxation of Rule 16(1) of Rules, 1958 , in
public interest. It is this order which is assailed in the present petitio n, inter
alia, on the following grounds: -
i) Violation of Guidelines iss ued by the Hon‟ble Supreme Court
in Prakash Singh’s Case (I) and (II)
ii) Violation of mandate of provisions of FR-56(d).
iii) Central Government has no power under Rule 3 of Rules, 1960
to relax Rule 16(1) of Rules, 1958.
iv) Violation of provisions of DoPT O.M. date d 08.11.2004 ,
pertaining to Inter -Cadre deputation of officers belonging to the
All India Services.
43. Learned counsel appearing for the Petitioner as well as learned
counsel appearing for the intervener had emphasized and re -emphasized that
the appointment of Respondent No. 2 as Commissioner of Police, Delhi is in
violation of the principles culled out and the directions issued by the
Hon‟ble Supreme Court in Prakash Singh’s Case (I) and ( II), inasmuch as
Respondent No. 2 was not empanelled by the UPSC , prior to his
appointment and that Respondent No. 2 did not have a residual tenure of six
months prior to the date of retirement, on the date of his appointment as
Commissioner of Police . It was pointed out that Respondent No. 2 was to
superannuate on 31.07.20 21 and he was appointed as Commissioner of
Police, Delhi on 27.07.2021 i.e. only 4 days prior to his date of
superannuation.
44. In our view, the aforesaid contentions do not merit acceptanc e.
Reading of the directions issued by the Hon‟ble Supreme Court , in the
decisions rendered in Prakash Singh’s Case (I) ; order dated 03.07.2018 in
I.A. 25307/2018 in W.P.(C) 310/1996 in Prakash Singh’s Case (I) and the
directions in Prakash Singh’s Case (I I), make s it clear that the directions
given by the Hon‟ble Supreme C ourt and the principles culled out therein
were in effect applicable for appointment to the post of „DGP of a State‟ , to
be selected by the State Government, from amongst the three senior most
officers of the Department, who have been empanelled by UPSC fo r
promotion to the said rank . The judgement and the directions therein, have
no application for appointment of Commissioners/Police Heads of Union
Territories falling under the AGMUT Cadre . Respondent No.2 has been
appointed as Commissioner of Police, Delh i, which is a Union Territory ,
having a Legislative Assembly , in accordance with provisions of Article
239AA of the Constitution of India. The directions given by the Hon‟ble
Supreme Court in paragraph 31 of Prakash Singh’s Case (I) , make it
explicitly cle ar that the Hon‟ble Supreme Court was considering the
appointment of DGP of the State and not the Head of a Police Force for a
Union Territory and therefore there was no occasion to pass d irections
applicable to appointment of a Head of Police Force in a U nion Territory.
The peculiar set up of U nion Territor ies and the lack of pool of sufficient
officers in the appropriate Pay -Level , with requisite experience, in the
AGMUT cadre, as highlighted by learned Solicitor General and not disputed
by the Petitioner and the Intervener , lead to an inevitable conclusion that
application of the UPSC Guidelines , flowi ng from the directions of the
Hon‟ble Supreme Court , to U nion Territor ies will create an anomalous
situation , which would be completely unworkable . For ready reference ,
paragraph 31 is extracted hereinunder :-
“31. With the assistance of learned counsel for the parties, we
have perused the various reports. In discharge of our
constitutional duties and obligations having regard to the
aforenoted position, we i ssue the following directions to the
Central Government, State Governments and Union Territories
for compliance till framing of the appropriate legislations:
State Sec urity Commission
(1) The State Governments are directed to constitute a State
Security Co mmission in every State to ensure that the State
Government does not exercise unwarranted influence or
pressure on the State Police and for laying down the broad
polic y guidelines so that the State Police always acts according
to the laws of the land and t he Constitution of the country. This
watchdog body shall be headed by the Chief Minister or Home
Minister as Chairman and have the DGP of the State as its ex -
officio S ecretary. The other members of the Commission shall
be chosen in such a manner that it is able to function
independent of Government control. For this purpose, the State
may choose any of the models recommended by the National
Human Rights Commission, the Ribeiro Committee or the
Sorabjee Committee, which are as under:
NHRC Ribeiro Committee Sorabjee
Committee
1. Chief Minister/HM as
Chairman. 1. Minister i/c
Police as Chairman. 1. Minister i/c
Police (ex -officio
Chairperson).
2. Lok Ayukta or, in his abs ence,
a retired judge of High Court to
be nominated by the Chief
Justice or a Member of t he State
Human Rights Commission. 2. Leader of
Opposition. 2. Leader of
Opposition.
3. A sitting or retired judge
nominated by the Chief Justice
of the High Court. 3. Judge, sitting or
retired, nominated
by the Chief Justice
of the High Court. 3. Chief
Secretary.
4. Chief Secretary. 4. Chief Secretary. 4. DGP (ex -officio
Secretary).
5. Leader of Opposition in the
Lower House. 5. Three non -
political citizens of
proven merit and
integrity. 5. Five
independent
Members.
6. DGP as ex -officio Secretary. 6. DG Police as
Secretary.
The recommendations of this Commission shall be binding on
the State Government.
The functions of the State Security Commission would include
laying down the broad policies and giving directions for the
performance of the preventive tasks and service -oriented
functions of the police, evaluation of the performance of the
State Police and preparing a report thereon for being placed
before the State Legislature.
Selection and minimum tenure of DGP
(2) The Director General of Police of t he State shall be selected
by the State Government from amongst the three seniormost
officers of the Department who have been empanelled for
promotion to that rank by the Union Public Service
Commission on the basis of their length of service, very good
record and range of experience for heading the police force.
And, once he has been selected for the job, he should have a
minimum tenure of at least two years irrespecti ve of his date of
superannuation. The DGP may, however, be relieved of his
responsibiliti es by the State Government acting in consultation
with the State Security Commission consequent upon any
action taken against him under the All India Services
(Discipl ine and Appeal) Rules or following his conviction in a
court of law in a criminal offence or in a case of corruption, or
if he is otherwise incapacitated from discharging his duties.
Minimum tenure of IG of police and other officers
(3) Police officers on operational duties in the field like the
Inspector General of Police in -charge Zone, Depu ty Inspector
General of Police in -charge Range, Superintendent of Police
in-charge District and Station House Officer in -charge of a
Police Station shall also have a p rescribed minimum tenure of
two years unless it is found necessary to remove them
prematu rely following disciplinary proceedings against them or
their conviction in a criminal offence or in a case of corruption
or if the incumbent is otherwise incapacitate d from discharging
his responsibilities. This would be subject to promotion and
retiremen t of the officer.
Separation of investigation
(4) The investigating police shall be separated from the law and
order police to ensure speedier investigation, better ex pertise
and improved rapport with the people. It must, however, be
ensured that there is full coordination between the two wings.
The separation, to start with, may be effected in towns/urban
areas which have a population of ten lakhs or more, and
graduall y extended to smaller towns/urban areas also.
Police Establishment Board
(5) There shall be a Police Establishment Board in each State
which shall decide all transfers, postings, promotions and other
service related matters of officers of and below the ran k of
Deputy Superintendent of Police. The Establishment Board
shall be a departmental bod y comprising the Director General
of Police and four other senior officers of the Department. The
State Government may interfere with the decision of the Board
in exce ptional cases only after recording its reasons for doing
so. The Board shall also be auth orised to make appropriate
recommendations to the State Government regarding the
postings and transfers of officers of and above the rank of
Superintendent of Police, and the Government is expected to
give due weight to these recommendations and shall norm ally
accept it. It shall also function as a forum of appeal for
disposing of representations from officers of the rank of
Superintendent of Police and above regarding their
promotions/transfers/disciplinary proceedings or their being
subjected to illegal o r irregular orders and generally reviewing
the functioning of the police in the State.
Police Complaints Authority
(6) There shall be a Police Complaints Authority at the district
level to look into complaints against police officers of and up to
the rank of Deputy Superintendent of Police. Similarly, there
should be another Police Complaints Authority at the State
level to look into complaints against officers of the r ank of
Superintendent of Police and above. The district -level Authority
may be headed by a retired District Judge while the State -level
Authority may be headed by a retired Judge of the High
Court/Supreme Court. The head of the State -level Complaints
Autho rity shall be chosen by the State Government out of a
panel of names proposed by the Chie f Justice; the head of the
district -level Complaints Authority may also be chosen out of a
panel of names proposed by the Chief Justice or a Judge of the
High Court no minated by him. These Authorities may be
assisted by three to five members depending upon the volume of
complaints in different States/districts, and they shall be
selected by the State Government from a panel prepared by the
State Human Rights Commission/ Lok Ayukta/State Public
Service Commission. The panel may include members from
amongst re tired civil servants, police officers or officers from
any other department, or from the civil society. They would
work whole time for the Authority and would have to be
suitably remunerated for the services rendered by them. The
Authority may also need th e services of regular staff to conduct
field inquiries. For this purpose, they may utilise the services of
retired investigators from the CID, Intelligence, Vigilance or
any other organisation. The State -level Complaints Authority
would take cognizance of only allegations of serious
misconduct by the police personnel, which would include
incidents involving death, grievous hurt or rape in police
custody. The district -level Complaints Authority would, apart
from the above cases, may also inquire into allegat ions of
extortion, land/house grabbing or any incident involving
serious abuse of authority. The recommendations of the
Complaints Authority, both at the district and State -levels, for
any action, departmental or criminal, against a delinquent
police offic er shall be binding on the authority concerned.
National Security Commission
(7) The Central Government shall also set up a National
Security Commission at the Union l evel to prepare a panel for
being placed before the appropriate appointing authority, for
selection and placement of Chiefs of the Central Police
Organisations (CPOs), who should also be given a minimum
tenure of two years. The Commission would also review from
time to time measures to upgrade the effectiveness of these
forces, improve the ser vice conditions of its personnel, ensure
that there is proper coordination between them and that the
forces are generally utilised for the purposes they were raised
and make recommendations in that behalf. The National
Security Commission could be headed b y the Union Home
Minister and comprise heads of CPOs and a couple of security
experts as members with the Union Home Secretary as its
Secretary.
The aforesaid directio ns shall be complied with by the Central
Government, State Governments or Union Territori es, as the
case may be , on or before 31 -12-2006 so that the bodies
aforenoted become operational on the onset of the new year.
The Cabinet Secretary, Government of Ind ia and the Chief
Secretaries of State Governments/Union Territories are
directed to file affidavits of compliance by 3 -1-2007. ”
(emphasis supplied)
45. Perusal of the aforesaid observations and directions of the Hon‟ble
Supreme Court in Prakash Singh’s Case (I) indicates tha t direction No.2
under the heading “ Selection and Minimum Tenure of DGP ” are clearly
meant to apply for selection to the post of DGP of a State and accordingly
the procedure for selection can only be relevant and applied in that context
and can have no rel evance or application to the appointment of
Commissioner of Police, Delhi , as was sought to be urged by learned
counsels for the Petitioner and the Intervener. This is further fortified by a
holistic reading of the observations in sub -para (2) of para 31 o f the
judgement, wherein it was directed that the State Government shall s elect
the DGP from amongst the three seniormost officers of the Department,
empanelled for promotion by UPSC, based on their length of service, very
good record and range of experien ce for heading the Police Force. This
Court is unable to discern any obser vation of the Hon‟ble Supreme Court
which even remotely indicate s or suggests that the directions were issued in
the context of Police Heads of Union Territories , falling under the AGMUT
Cadre .
46. As per the directions given by the Hon‟ble Supreme Court in Prakash
Singh ’s Case (I), DGP rank officer, who after selection, attain s Pay-Level
17, is to be selected from the eligible DG level officers in Pay -Level 16 and
ADG level officers , available in the State Cadre, with 30 years of service
and 6 months residual service , prior to the date of their superannuation . We
have no reason or material on record to disbelieve or reject the stand of
Respondent No. 1 that in the State Cadres , sufficien t number of officers are
available to constitute a zone of consideration , for the purpose of preparing a
panel for appointment as DGP ( Pay-Level 17 ), which is not the case in the
AGMUT Cadre . Neither the Petitioner nor the Intervener have placed any
materi al enabling this Court to come to a contrary conclusion. Moreover, as
brought out on behalf of Respondent No. 1, status of AGMUT Cadre is
completely different from the other State Cadres. AGMUT Cadre comprises
of several segments and in each of these segme nts, Head of Police Forces
are in different Pay -Levels. This is on account of the fact that in AGMUT
Cadre, as explained by the learned Solicitor General, there can never be a
position where sufficient number of Pay-Level 16 - DG Rank officers would
be ava ilable in one segment , with 30 years of service and 6 months residuary
service, prior to their superannuation, for empanelment by UPSC, in
accordance with the directions in Prakash Singh’s Case (I) . The fact that
Heads of respective Police Forces are in di fferent Pay -Levels is reflected
from a tabular representation given by Res pondent No. 1 in the counter
affidavit , which is extracted hereunder , for ready reference: -
No. Name of
State/UT Total stationed strength
Leve of Police
1. Government
of NCT of
Delhi CP (level -17) 02 10
2. Arunachal
Pradesh DG(Level -16) 01 0
3. Mizoram DG(Level -16) 01 01
4. Goa DG(Level -15) 0 01 01
6. Chandigarh DG(Level -14) 0 0 01 01
7. A&NI DG(Level -15) 0 01 01
8. Lakshdweep SP(Sr. Scale) 0 0 0 0 01
9. Puducherry DG(Level -14) 0 0 01 01
* In addition 4 temporary posts at DGP (Level -16) level have been
created.
47. We also find merit in the contention of learned Solicitor General that
if the arguments canvassed by learn ed counsel s for the Petitione r and
Intervener , that the directions issued in Prakash Singh ’s Case (I) are to
apply in the case of Union Territories/AGMUT Cadre , are accepted, then
from one single segment, three Pay -Level 16 IPS Officers , would be
required for empanelment by UPSC and multiplying 3 with the number of
total segment s, a vast pool of eligible officers , would be needed to constitute
the zone of consideration . This would be a completely unworkable situation ,
inasmuch as a vast pool of Pay -Level 16 IPS Officers for each segment is
never available in the AGMUT Cadre. Acce pting the proposition placed by
the Petitioner , would result in a situation where perhaps only one officer will
fall in the zone of consideration and the empanelment would resultantl y be
only of one officer . There may also be a situation where not a single IPS
Officer in the required Pay -Level , with requisite experience and residual
service , would be available to constitute the zone of consideration. It is for
this reason that the UPS C framed Guidelines, as aforementioned, only with
respect to appointment o f DGPs in the States , in accordance and consonance
with the directions of the Hon‟ble Supreme Court and it bears repetition to
state that the Guidelines were placed before the Hon‟bl e Supreme Court.
48. In order to substantiate the point that it is not possibl e to follow the
regime provided for selection of a State DGP, in case of the Commissioner
of Police, Delhi, in particular and for the Union Territories having a
common AGMUT Cadre, i n general, Respondent No. 1 has, by way of
illustration, categorically ave rred in paragraph 26 of the counter affidavit
that in Arunachal Pradesh, only one post of DGP had been sanctioned and
there is no sanctioned post of ADGP. Thus, it is impossible to p repare a
panel of three officers for empanelment by the UPSC, for appointm ent of
DGP. Likewise, in Puducherry, highest sanctioned post is at IG level. As per
UPSC Guidelines, IG level officers and DIG level officers with 18 years of
service are eligible fo r inclusion in the zone of consideration for heading the
Force. However, c onsidering that only one IGP and one DIG post had been
sanctioned, a panel of three officers is unavailable. Additionally, in the
presence of an IGP level officer in the segment, an officer of DIG level
cannot head the Police Force in that segment. A simil ar situation exists in
Mizoram and in Goa, as brought out in the counter affidavit. None of these
facts/data have been disputed by the Petitioner/Intervener. On account of the
unavai lability of sufficient number of officers in the pool in respect of
variou s segments of AGMUT Cadre, we cannot but agree with Respondent
No. 1 that the State Cadres have to be treated differently from the AGMUT
Cadre , for the purpose of empanelment of the respective Heads of the Police
Force and there is thus merit in the conten tion that the directions of the
Hon‟ble Supreme Court in Prakash Singh’s Case (I) were intended to apply
only to the appointment of a State DGP . We also find merit in the contention
that in a given case, Pay -Level 15 IPS officers may be available and
techn ically eligible to be a part of the zone of consideration, but it would not
be a preferred or a desirable course of action to empanel the said officers ,
superseding a Pay -Level 16 officer fo r appointment as DGP , as this would
have a demoralising and delete rious effect on the entire Police Force and the
officers of the concerned segment, in particular.
49. We may also take note of the figures reflected in the aforementioned
table indicating the strength of Police Officers in different ranks i.e. DGP,
ADGP, IG, DIG and SP , in different segments of AGMUT Cadre, more
particularly with respect to the Union Territory of Delhi . The table indicates
that the highest sanctioned post is that of Commissioner of Police, Delhi,
which is in Pay -Level 17. The available pool does not have 3 IPS Officers in
the DGP rank i.e. Pay -Level 16. There are 10 sanctioned posts of ADGP
(Pay-Level 15) and while, even according to Respondent No. 1 , officers in
Pay-Level 15 are eligible for empanelment, however, in the presence of a
DGP level officer in the segment, an officer of ADGP level cannot head the
Police Force in that segment. It is the stand of Respondent No. 1 and in our
view, rightly so , that it would not be a desira ble or a preferred exercise to
supersede a senior officer in a hig her Pay -Level, with a higher rank, as this
would certainly have a demoralising effect on the officers in the given
segment and the Police Force in general. From the perspective of service
jurisprudence and good administration, it is no doubt a healthy prac tice to
ensure that senior officers are not superseded on account of mere
technicalities.
50. This Court also finds merit in the contention of Respondent No. 1 that
Delhi , being the Capital of I ndia, has its own characteristic s, peculiar
factors , complexities and sensitivities, which are far lesser in any other
Commissionerate. Any untoward incident in the National Capital or a law
and order situation will have far reaching consequences, impact ,
repercussions and implications not only in India but across the In ternational
borders . Thus, it is imperative that “free movement of joints” is given to
the Central Government for appointment of Commissioner of Police, Delhi ,
keeping in mind the complexiti es obtaining in the Capital . We are therefore
in complete agreemen t with learned Solicitor General that the directions
given in Prakash Singh’s Case (I) , are not applicable to the appointment of
Commissioner of Police, Delhi and on this ground the challeng e to the
impugned order fails.
51. Learned counsel for the Petitioner as well as learned counsel for the
Intervener had strenuously argued that judgment in Prakash Singh's Case
(I) is applicable to the Union Territories as well as the States and to buttress
the contention, heavy reliance was placed on the following portions of para
31 of the judgment: -
“31. With the assistance of learned counsel for the parties, we
have perused the various reports. In discharge of our
constitutional duties and obligations havi ng regard to the
aforenoted position, we issue the following direc tions to the
Central Government, State Governments and Union Territories
for compliance till framing of the appropriate legislations: ….
xxx xxx xxx
The aforesaid directions shall be complied with by the Central
Government, State Governments or Uni on Territories, as the
case may be, on or before 31 -12-2006 so that the bodies
aforenoted become operational on the onset of the new year.
The Cabinet Secretary, Government of India and the Chief
Secretaries of State Governments/Union Territories are
direc ted to file affidavits of compliance by 3 -1-2007. "
(emphasis supplied)
52. It is true that in the aforesaid paragraph of the judgment, there is
reference to the Union Territories, however, the contention cannot be
accepted as the Petitioner/Intervener are mis reading and misconstruing the
observations of the Hon‟ble Supreme Court in the paragraphs relied upon by
them. The contention overlooks the words „as the case may be‟ , used
carefully by the Hon‟ble Supreme Court, while directing compliance of its
direction s. The words are certainly not without a meaning or relevance . In
fact, interpretation of these words has been the subject matter of several
judgements and have been interpreted to mean and connote „whichever the
case may be‟ or „as the situation may be‟. Broadly understood, the
expression means , one out of the various alternatives would apply to one out
of the various situations and not otherwise . Although there is a long line of
judgments i nterpreting the said words, however, to avoid prolixity, we may
only refer to a few as under:
53. It has been held by the Hon‟ble Supreme Court in Subramaniam
Shanmugham v. M.L. Rajendran , (1987) 4 SCC 215 , as under: -
"3. Justice Morris in Bluston & Bramley L td. v. Leigh [(1950) 2
All ER 29, 35] explained that the phrase “as the case may be”
meant in the events that have happened. Our attention was also
drawn to the expression “as the case may be” as appearing in
the Words and Phrases, Permanent Edn. 4 page 59 6. The
meaning of the expression “as the case may be” is what the
expression says, i.e., as the situation may be, in other words in
case there are separate and distinct units then concept of need
will apply accordingly. Where, however, there is no such
separate and distinct unit, it has no significance. There is no
magic in that expression. The expression “as the case may be”
has been properly construed in the judgment mentioned
hereinbefore. "
(emphasis supplied)
54. It has been held by the Hon‟ble Supreme Cou rt in Shri Balaganesan
Metals v. M.N. Shanmugham Chetty , (1987) 2 SCC 707 , as under:
"21. The words “as the case may be” in sub -clause (c) have
been construed by the Division Bench of the Madras High
Court to mean that they restrict the landlord's right to secure
additional accommodation for residential purposes only in
respect of a residential building and in the case of additional
accommodation for business purpose only to a non -residential
building. We are of the view that in the context of sub -clause
(c), the words “as the case may be” would only mean
“whichever the c ase may be” i.e. either residential or non -
residential. "
(emphasis supplied)
55. It has been held by the Hon‟ble Supreme Court in Union of India v.
Ashok Kumar , (2005) 8 SCC 760 in paragraphs 1 2, 16, 17 and 18 as under: -
"12. The Division Bench by the impugne d judgment concurred
with the findings expressed by the learned Single Judge so far
as the first three points are concerned. So far as the fourth
point is concerned it was held that the Cent ral Government was
required to record satisfaction that it was ine xpedient and
impracticable to hold inquiry, and to form opinion relating to
the delinquent officer for retention in service. According to the
High Court the delinquent officer had been remov ed from the
service without following the provisions of Section 10 of the Act
and Rule 20 of the Rules. The High Court noticed that the two
authorities are authorised to act under Rule 20 of the Rules.
The procedure to be followed to terminate the services of an
officer is available under Section 10 of the Act by the Cen tral
Government on account of misconduct. The expression “as the
case may be” relates to the action to be taken by the Central
Government and the action to be taken by the Director General.
It was held that both the authorities did not have concurrent
jurisdiction; otherwise the expression “as the case may be”
would be rendered surplus and meaningless. Reference was
made to Section 19 of the Army Act, 1959 (in short “the Army
Act”) and Rule 1 4 of the Army Rules, 1954 (in short “the Army
Rules”). It was note d that the language was in pari materia,
except the words “as the case may be” with the corresponding
section and rule of the Act and the Rules respectively.
Therefore, it was held that use of the expression “as the case
may be” is significant and indicati ve of two different spheres of
activity for two different authorities. The Director General was
not the appointing authority of the delinquent officer and,
therefore, it was held that only t he Central Government could
have taken action and not the Director General. It was
incumbent upon the Central Government to record satisfaction
that it was inexpedient and impracticable to hold trial, before
the jurisdiction to take further action could be assumed.
xxx xxx xxx
16. The High Court is plainly in er ror in holding that it is only
the Central Government which is competent to act in terms of
sub-rule (2). The expression “as the case may be” is otherwise
rendered superfluous. Both the auth orities can act in terms of
sub-rule (2). The High Court overlooke d the salient factor that
any other interpretation would render reference to the Director
General meaningless.
17. A bare reading of Rule 20 makes the position clear that
both the Director General and the Central Government can act
in different situations and consideration by the Director
General is not ruled out. Sub -rule (3) makes the position clear
that the explanation is to be considered by the Director General
and only when it is direct ed by the Central Government, the
matter shall be submitted to the Central Government with the
officer's defence and the recommendations of the Director
General. When the Director General finds the explanation
unsatisfactory he recommends for action. There may be cases
where the Central Government directs the Director Ge neral to
submit the case. There can be a case where the Central
Government finds that the explanation is unsatisfactory. In that
case the Central Government may direct the case to be
submitt ed to it. At the first stage the consideration is by the
Director General. When he finds the explanation
unsatisfactory, he recommends action by the Central
Government. But even if he finds the explanation to be
satisfactory, yet the Central Government can direct the case to
be submitted to it. Recommendations in terms o f sub -rule (4)
are made by the Director General and the final order under
Rule 20(5) is passed by the Central Government. The
expression “as the case may be” is used in sub -rule (2) and
sub-rule (5). It obviously means either of the two. It is to be
furthe r noted that the order in terms of sub -rule (5) is passed by
the Central Government. But the enquiry can be either by the
Central Government or the Director General, as the case may
be. Ther e is another way of looking at sub -rule (2). Where
report of the o fficer's misconduct is made by the Director
General, the matter is to be placed before the Central
Government and in all other cases the consideration is by the
Director General.
18. The wo rds “as the case may be” mean “whichever the case
may be” or “as t he situation may be” . (See Shri Balaganesan
Metals v. M.N. Shanmugham Chetty [(1987) 2 SCC 707] .) The
expression means that one out of the various alternatives would
apply to one out of the various situations and not otherwise. "
(emphasis supplied)
56. It has been held by The Hon‟ble Supreme Court in Union of India v.
Alok Kumar , (2010) 5 SCC 349 in paragraph 30 as under: -
"30. The Rules require the disciplinary authority to form an
opinion th at the grounds for inquiry into the truth of
imputations of miscon duct or misbehaviour against the
railway servant exists. Further, that they have enquired into
the matter. Then, such inquiry may be conducted by the
disciplinary authority itself or it may appoint under the Rules
a Board of Inquiry or other authority to e nquire into the truth
thereof. Formation of such an opinion is a condition
precedent for the disciplinary authority, whether it intends to
conduct the inquiry under the Rules or under the Ac t as the
case may be. The expression “as the case may be” clearly
suggests that law which will control such departmental
enquiry would depend upon the class of officers/officials
whose misconduct or misbehaviour subject them to such
inquiry. If the employe e is covered under the Act, the
disciplinary authority shall have to appoint an enquiry
officer and proceed with the inquiry under the provisions of
the Act, whereas if he is covered under the Rules, the
procedure prescribed under the Rules will have to be
followed. "
(emphasis supplied)
57. It has been held by Andhra Prade sh High Court in Baddam
Prabhavathi v. Govt. of A.P. , 2001 SCC OnLine AP 989 in paragraph 53
as under: -
"53. The expression „as the case may be‟ assumes importance
for determination of the a forementioned questions in these writ
petitions. The phrase „as th e case may be‟ in Section 326(2) of
the Companies Act were interpreted by Justice Morris
in Bluston 7 Bramley, Ld. v. Leigh, 1950 KB 548. The phrase
„as the case may be‟ in Section 326 , sub -section (2) does not
mean “respectively”. It means “whichever is a ppropriate in
„the events which happen‟” . “And an order is made or a
resolution is “passed”, as the case may be” for the winding up
the company was interpreted as where there has been a noti ce
of a meeting, it should be followed by an order and in that way
where there has been a notice of meeting, it should be followed
by a resolution for voluntary winding -up. Their Lordships of
the Supreme Court interpreted the phrase “as the case may be”
occurring in Section 10(3)(c) of Tamil Nadu Buildings (Lease
and Ren t Control) Act in Shri Balaganesan Metals v. M.N.
Shanmugham Chetty, (1987) 2 SCC 707 : AIR 1987 SC 1668, to
the effect that in the context of sub -clause (c), the words “as the
case may be” would only mean “whichever the case may be
i.e., either residentia l or non -residential” . The same phrase fell
for consideration again in S. Shanmugham v. M.L. Rajendran,
(1987) 4 SCC 215 : AIR 1987 SC 2166, wherein the apex Court
explained the meaning of the expression “as the case may be”
to the effect that i.e., as the situation may be, in other words in
case there are separate and distinct units then concept of need
will apply accordingly . From the above, it is seen that the
words “as the case may be” sh ould mean “as the situation may
be” or “whichever the case may be” ."
(emphasis supplied)
58. It has been held by Kerala High Court in Sanim Shah v. State of
Kerala , 2007 SCC OnLine Ker 460 in paragraph 10 as under: -
"10. Expression “as the case may be” again came up for
consideration before the Apex Court in Union of India v. Ashok
Kumar, 2006 (1) KLT SN 30 (C. No. 41) SC. Apex Court while
considering the scope of R. 20(2) of Border Security Force
Rules, 1969 said that the words “as the case may be” means
“whichever the case may be” or “as the situation may be”. The
express ion means that one out of the various alternatives would
apply to one out of the various situations and not otherwise.
When we give meaning to the expression “as the case may be”
in R. 17(d) if a full member of a department is transferred to
another depart ment he would be ranked as junior most not
among probationers or approved probationers of the
transferred department, but as last among full members. In
other words an approved probationer w ho has sought for a
transfer will lose his seniority under R. 14 a nd be treated as
junior most among the approved probationers of the transferee
department so also the case of a probationer. R. 17(d) only says
that such persons has to forgo his seniority i n the list of
probationers, approved probationers or full members as the
case may be. "
(emphasis supplied)
59. A bare perusal of the directions of the Hon‟ble Supreme Court in
paragraph 31 would indicate that the directions given in various sub -paras
are to different Government functionaries and in a different context i.e. the
State Governments, the Central Government or the Union Territories and
this explains the use of words „as the case may be‟ in the final paragraph
directing compliance. It was rightly argued by the learned Solicitor General
that all the directions in p aragraph 31 of the judgement in Prakash Singh’s
Case (I) were not meant for the Central Government/Union Territories and
the Petitioner/Intervener cannot paint the directions in the entire p aragraph
with the same brush . Seen in the light of the above judge ments, interpreting
the words „as the case may be‟ , we are of the view that the directions in
paragraph 31 were not meant to automatically apply to the Union
Territories . It has been pointed out to us in detail that there is a marked
distinction between th e State Cadres and the AGMUT Cadre with different
segments, where the latter has deficiency of pool level officers for
empanelment of respective Heads of Police Force. Added to this are the
complexities of the National Capital and thus, in our view, Respon dent No.1
is right in arguing that procedure for appointment of State DGPs cannot be
ipso facto applied for appointment of Commissioner of Police, Delhi . For
the same reason, we uphold the contention of Respondent No. 1 that the
directions in Prakash Singh ’s Case (II) with respect to residual tenure of
six months shall not apply to the appointment of Commissioner of Police,
Delhi.
60. Pursuant to the directions issued by the Hon‟ble Supreme Court, in
the aforesaid decisions, UPSC issued Guidelines in consonanc e thereof, for
appointment of DGPs in the States . The said Guidelines have been appended
as Annexure R -1 to the counter affidavit , filed on behalf of Respondent
No.1 /Ministry of Home Affairs. The procedure detailed in the Guidelines
envisages constitution of an Empanelment Committee, comprising of the
Chairman and other members mentioned therein. The Guidelines prescribe
the method of selection for empanelment, includ ing the zone of
consideration, size of the panel, procedure for sending the proposals to th e
UPSC as well as the procedure to be followed by the Empanelment
Committee. We have carefully perused the Guidelines and are clearly of the
view that the procedure detailed therein concerns the appointment of DGP of
a State and do not concern themselves w ith appointment of Police
Commissioner/Head of the Police Force in the Union Territories, having a
common AGMUT Cadre. We also take note of the fact, as informed, th at the
Guidelines were placed before the Hon‟ble Supreme Court and also that
even thereafte r and till date , there has been no objection/challenge to them.
61. Learned Solicitor General had highlighted that ever since the year
2006 , the Guidelines framed by the UPSC and the directions in Prakash
Singh’s Case (I) and (II) have been understood to apply only for
appointment of a State DGP, by all stakeholders such as the Central
Government, State Governments and UPSC , because every State has a
dedicated State cadre and sufficient number of officers are available in Pay -
Level 16, from which a panel for ap pointment of DGP, which is in Pay -
Level 17, can be constituted. Moreover, it was a categorical stand of
Respondent No. 1 that with the said understanding, as many as 8 erstwhile
Police Commissioners in Delhi , have been appointed by the Central
Government since 2006, prior to the appointment of Respondent No.2,
following the same procedure as has been followed for appointment of
Respondent No.2 herein. There has never been any objection to the said
appointments following the statutory procedure prescribed un der the Delhi
Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993
either by UPSC or any other party. There is no denial to the said categorical
averment, either by the Petitioner or the Intervener, except for making a bald
argument that past practice cannot justify the alleged illegal appointment of
Respondent No. 2, with which we do not agree for the reasons hereinafter.
62. Appointment of Respo ndent No. 2 as Commissioner of Police, Delhi
has been made by following the statutory proce dure prescribed under the
Delhi Police Act, 1978 read with Transaction of Business of GNCTD
Rules, 1993 . No appointment to the said post, has been challenged in the
past by any stakeholder on the ground that the said Act or the Rules are
inapplicable to th e appointment or that the applicability of the procedure
prescribed therein is in violation of the directions of the Hon‟ble Supreme
Court in the case of Prakash Sin gh’s Case (I) and (II) .
63. It is a settled law that where a contemporaneous and practical
interpretation or practice has stood unchallenged for a considerable length of
time, it would be a useful guide for proper construction/interpretation of the
provisions of a Statute or Executive Instructions . Therefore , applying the
principle of contemporan ea exposit io, if a procedure has been followed by
the Central Government since 2006 , with the clear understanding as
aforesaid and appointments of as many as 8 Commissi oners of Police, Delhi
have been made following the statutory regime under the Delhi Police Act,
1978 read with Transaction of Business of GNCTD Rules, 1993 , which
has withstood the test of time, without any demur /objection /challenge in any
Court or Forum of law , the same gains weightage. We accordingly see no
reason to direct Respondent No. 1 t o deviate from the long practice and
procedure followed for appointment of Commissioner of Police, Delhi given
the reasons and complexities of the National Capital a nd the AGMUT Cadre
and in particular, when we find that the directions in Prakash Singh’s C ase
(I) and (II) are inapplicable to the appointment in question . In our view, the
justification and reasons given by Respondent No. 1 for appointing
Respondent No. 2 are plausible, calling for no interference in judicial
review. This is more so, on accoun t of the fact that the Petitioner/Intervener
have been unable to demonstrate that a different procedure, from the one
followed in appointing Respondent No. 2 , was fo llowed for appointment of
the erstwhile 8 Commissioners of Police, Delhi.
64. The principle of Contemporan ea Expositio has been explained by the
Hon'ble Supreme Court in several judgements and we may refer to a few, as
follows: -
(a) In Commissioner of Income -Tax, M.P. -II, Bhopal v. Anand Bahri
Steel and Wire Products, Raipur , 1980 SCC OnLine MP 148 , it was held
by the Hon‟ble Supreme Court, as under: -
“6. The precursor of section 80J of the present Act was section
15C of the 1922 Act. Section 15C also provided for exemption
from tax of newly established industrial undertakings on so
much of the profits o r gains as did not exceed six per cent per
annum “on the capital employed in the undertaking, computed
in accordance with such rules as may be made in this behalf by
the Central Board of Revenue.” In pursuance of this rule
making power, the Central Board o f Revenue made the Indian
Income -Tax (Computation of Capital of Industrial
Undertakings), Rules, 1949, which correspond to Rule 19 -A of
the 1962 Rules. Rule 3(3) of the 1949 Rules provided for
deduction of any borrowed money and debt due by the person
carrying on the business in computation of capital for pur poses
of section 15 -C. Rule 3(3) of the 1949 Rules was not challenged
and was in operation till the coming into force of the 1961 Act
and the making of the 1962 Rules. Rule 19 -A (3) follows the
same pat tern as Rule 3(3) of the 1949 Rules, except that the
amount of debentures and the amount of long term loans i.e.
loans providing for repayment during a period of not less than
seven years when taken from an approved source, are not
deducted in computation of capital for purposes of section 80J.
Rule 19 -A was later on amended and the exception made in
respect of debentures and long term loans was withdrawn. The
validit y of Rule 19 -A(3) in so far as it requires deduction of
borrowed moneys and debts due by th e assessee in computation
of capital for purposes of section 80 -J, was for the first time
challenged in 1977 in the Calcutta High Court in Century Enka
Ltd.'s case. The fact that such a rule existed right from 1949
when section 15C was introduced and was f ollowed by all
concerned till 1977, itself shows that the rule was in
accordance with the intention expressed by the legislature.
When Parliament enacted section 80J , it must have known as to
how section 15 -C of the 1922 Act was interpreted by the
Central Board of Revenue and applied by the Income -tax
Authorities. The fact that section 80 -J was enacted in similar
terms without showing any disapproval of the interpreta tion put
by the Central Board of Revenue that the amount of borrowings
and debts is to be d educted in computing the capital employed,
goes to show that Parliament approved of that interpretation.
This, in our opinion, is a very important factor to hold tha t Rule
19-A(3) which follows the same pattern as Rule 3(3) of the 1949
Rules, is valid and is in line with the intention of Parliament in
enacting section 80J. Where contemporaneous and practical
interpretation has stood unchallenged for a considerable
length of time, it is regarded as of great importance in
arriving at the proper construction o f a statute. Further such
an interpretation gains greater weight when the statute as
interpreted is re -enacted and is regarded presumptively the
correct interpretati on of the law. This rule is based upon the
theory that the legislature is acquainted with t he
contemporaneous interpretation of a statute, especially when
made by an administrative body or executive officers charged
with the duty of administering or enforc ing the law, and,
therefore, impliedly adopts the interpretation upon re -
enactment (See Sut herland Statutory Construction, 3rd
edition, pp. 520, 521, 523, 524). This important principle was
not considered by the Calcutta, Madras and Allahabad High
Courts i n holding that Rule 19 -A(3) in so far as it provides for
the deduction of borrowings and de bts incomputation of the
capital employed, goes beyond the rule making power
conferred by section 80 -J. Another equally important matter
which has not been noticed b y these High Courts is that the
word “capital” in the business world means the net worth of an
enterprise and thus necessarily excludes the borrowings. In
Batliboi's Advanced Accounting, 19th edition, p. 78, it is stated
that “capital is the excess of a tr ader's assets over his
liabilities.” Similarly, in Encyclopaedia Britannica
(Macropaedia), Vol. 3, p. 799, it is observed that “in the
business world the word capital usually refers to an item in the
balance sheet representing that part of the net worth of an
enterprise that has not been produced through the operation of
the enterprise”. It is, therefore, wrong to assume that the
expression “capital employed” is not open to construction that
if does not embrace moneys borrowed by the assessee and
invested i n the industrial undertaking. It may be that in some
context the expression “capital employ ed” may include the
borrowed moneys or borrowed capital; but we are clearly of
opinion that in the context of section 80 -J the expression does
not include borrowed m oneys and debts, as it is in this sense
that this expression has been understood right from 1949. It
also cannot be lost sight of that computation of capital
employed has to be “in the prescribed manner” as is expressly
provided in section 80 -J and, theref ore, the rules can prescribe
as to what should or should not be included in the computation .
The provision for deduction of borrowed moneys and debts in
Rule 19 -A(3) is not such which "
(emphasis supplied)
(b) The Hon'ble Supreme Court in Ajay Gandhi vs. B. Singh, (2004) 2
SCC 120 , in paragraph s 14 to 20 , held as follows :-
“14. The primal questio n, therefore, which arises for
consideration is as to whether the Central Government can be
said to have any power of transfer and posting of the members
of the Trib unal. It is true that ordinarily the power of transfer
vests in the employer. Such power, h owever, would be subject
to the statutory provisions operating in the field.
15. For the aforementioned purpose, the scheme of the Act
plays an important role. In t he instant case, having regard to
the provisions contained in sub -sections (1) and (5) of S ection
255 of the Act, we are of the opinion that the President has the
requisite power of transfer and posting of its members. For
construction of a statute, it is trite, the actual practice may be
taken into consideration.
16. In Corpus Juris Secundum , Vol. 82, p. 761, it is stated that
the controlling effect of this aid which is known as “executive
construction” would depend upon various factors such as the
length of time for which it is followed, the nature of rights and
property affected by it, the in justice resulting from its
departure and the approval that it has received in judicial
decisions or in legislation.
17. In Francis Bennion's Statutory Interpretation , 4th Edn.,
the law is stated in the following terms at p. 596:
“Section 231
231. The ba sic rule .—In the period immediately
following its enactment, the history of how an
enactment is understood forms part of the
contemporanea expositio , and may be held to throw
light on the legislative intention. The later history may,
under the doctrine tha t an ongoing Act is always
speaking, indicate how the enactment is regarded in the
light of developments from ime to time.
On a superficial view, it may be though that nothing
that happens after an Act is passed can affect the
legislative intenti on at the time it was passed. This
overlooks the two factors stated in this section.
Contemporanea expositio .—The concept of legislative
intention is a difficult one. Contemporary exposition
helps to show what people thought the Act meant in the
period immediately after it was passed. Official
statements on its meaning are particularly important
here, since every Act is supervised, and most were
originally promoted , by a government department which
may be assumed to know what the legislative intention
was.”
18. In R. v. Wandsworth London Borough Council, ex
p, Beckwith [(1996) 1 All ER 129 : (1996) 1 WLR 60
(HL)] the House of Lords has held that a departmental
circular is entitled to respect. It can only be ignored
when it is patently wrong. The said pr inciple has also
been followed in Indian Metals and Ferro Alloys Ltd. v.
CCE [1991 Supp (1) SCC 125 : AIR 1991 SC 1028]
(AIR at p. 1034 : SCC p. 135), Keshavji Ravji and Co. v.
1991 SC 1806] (AIR at p. 1817 : SCC p. 250), Raymond
Synthetics Ltd. v. Union of India [(1992) 2 SCC 255 :
AIR 1992 SC 847] (AIR at p. 859), P. Kasilingam v.
P.S.G. College of Technology [1995 Supp (2) SCC 348 :
(1995) 2 Scale 387] (Scale at p. 397 : SCC pp. 356-57)
and CCE v. Dhiren Ch emical Industries [(2002) 2 SCC
19. The Central Government, admittedly, never exercised its
purported power of transfer and posting in its capacity as an
employer or otherwise. From t he impugned order, furthermore,
it would appear that even therein the source of power had not
been traced from the provisions of the Income Tax Act but to
the delegation of financial powers which have no nexus
therewith. By reason of amendment to certain circular letters
also, the Central Government cannot confer upon i t such
statutory power of transfer and posting of the members of the
Appellate Tribunal.
20. Having regard to the fact that the Central Government had
acted sub sil entio and even allowed the President to delegate
his power to constitute Benches to various Senior Vice -
Presidents over a number of years is itself a pointer to the fact
that the Central Government was also of the opinion that the
power of transfer and pos ting is a part of the administrative
function of the President as an ancillary power of con stitution
of Benches. ”
(emphasis supplied)
(c) It has been held by the Hon'ble Supreme Court in Indian Metals and
Ferro Alloys Ltd. v. CCE , 1991 Supp (1) SCC 125 , as under: -
“14. However, even assuming that there could have been some
doubt as to the intenti on of the legislation in this regard, the
matter is placed beyond all doubt by the revenue's own
consistent interpretation of the item over the years. It has been
pointed out that prior to March 1, 1975, residuary Item 68 was
not in the schedule. If the re venue's contention that these poles
are not pipes and tubes is correct then they could not have been
brought to duty at all before March 1, 1975. But the fact is tha t
transmission poles have been brought to duty between 1962 to
1975, and that could only ha ve been under Item 26 -AA (for
there was no residuary item then). This is indeed proved by the
fact that this very assessee was thus assessed initially and also
by th e issue of notifications of exemption from time to time
which proceed on the footing that t hese poles were assessable
to duty under Item 26 -AA but were entitled to an exemption if
certain conditions were fulfilled. Indeed, the assessee also
applied for and obtained relief under one of those exemption
notifications since 1964.
15. It is contende d on behalf of the department that this earlier
view of the department may be wrong and that it is open to the
department to contend now that the poles really do not fall
under Item 26 -AA. In any event, it was submitted since the poles
were exempted from d uty under one notification or other, it was
not very material prior to March 1, 1975 to specifically clarify
whether the poles would fall under Item 26 -AA or not. Th is
argument proceeds on a misapprehension. The revenue is not
being precluded from putting forward the present contention on
grounds of estoppel. The practice of the department in
assessing the poles to duty (except in cases where they were
exempt as the c ondition in the exemption notifications were
fulfilled) and the issue of notifications from time to time (the
first of which was almost contemporaneous with the insertion
of Item 26 -AA) are being relied upon on the doctrine of
contemporaneo expositio to re move any possible ambiguity in
the understanding of the language of the relevant statutory
instrument: see K.P.Varghese v. TTO [(1981) 4 SCC 173 :
1981 SCC (Tax) 293 : (1982) 1 SCR 629] , State of Tamil
Nadu v. Mahi Traders [(1989) 1 SCC724 : 1989 SCC (Tax )
190 : (1989) 1 SCR 445] , CCE v. Andhra Sugar Ltd. [1989
Supp (1) SCC 144 : 1989 SCC (Tax ) 162] and Collector of
Central Excise v. Parle Exports P. Ltd. [(1989) 1 SCC 345 :
1989 SCC (Tax) 84] Applying the principle of these decisions,
that a contemporane ous exposition by the administrative
authorities is a very useful and relevant guide to the
interpretation of the expressions used in a statutory
instrument , we think the assessee's contention that its products
fall within the purview of Item 26 -AA should be upheld .”
(emphasis supplied)
(d) It has been held by the Hon'ble Supreme Court in S.B. Bhatt acharjee
v. S.D. Majumdar , (2007) 10 SCC 513 , in paragraph s 24 to 36 , as under: -
"24. The office memorandum, if read in the context of the Rules,
takes into consider ation the necessity of considering the case of
the eligible candidates during the year when vacancy arose.
The DPC is expected to meet each year. Only when it is not
possible to hold a meeting of the DPC within that year, the
illustration would be applicab le.
25. A vacancy must arise in a particular year. If it arose as in
the present case in 2 003-2004 following the illustration
contained in Clause (g) of Para 3.4, ACRs up to the year 31 -3-
2002 i.e. vacancy year/panel year 2001 -2002 are required to be
taken into consideration irrespective of the date of convening of
the DPC. Only then ACRs up to 31-3-2003 were required to be
taken into consideration if it sits after September of that year
even if the vacancy arose within the year 2001 -2002.
26. If the opin ion of the learned Single Judge is given effect to,
then 31 -3-2003 becomes 31 -3-2004. Indis putably, necessity was
felt for a further clarification. It was in the aforementioned
premise that a further clarification was issued by the State so as
to direct th at if the DPC sits after September of the year
concerned (in this case 2004), the ACRs up t o the year ending
31-3-2003 could be taken into consideration while considering
the vacancies which arose in 2003 -2004. The Division Bench of
the High Court, in our opinion, cannot, thus, be held to have
committed any error in this behalf.
27. It may be t hat in a given case, the court can with a view to
give effect to the intention of the legislature, may read the
statute in a manner compatible therewith, and which w ould
not be reduced to a nullity by the draftsman's unskillfulness
or ignorance of law. But , however, it is also necessary for us
to bear in mind that the illustration given by the executive
while construing an executive direction and office
memorandum by way of executive construction cannot be lost
sight of. It is in that sense the doctrine of contemporanea
expositio may have to be taken recourse to in appropriate
cases, although the same may not be relevant for construction
of a model statute passed by a legislature .
28. In G.P. Singh's Principles of Statutory Interpretation, 10th
Edn. at p. 3 19, it is stated:
“But a uniform and consistent departmental practice
arising out of construction placed upon an ambiguous
statute by the highest executive officers at or near the
time of its enactment and continuing for a long period of
time is an admissi ble aid to the proper construction of
the statute by the court and would not be disregarded
except for cogent reasons. The controlling effect of this
aid which is kn own as „executive construction‟ would
depend upon various factors such as the length of tim e
for which it is followed, the nature of rights and property
affected by it, the injustice resulting from its departure
and the approval that it has received in jud icial decisions
or in legislation.
Relying upon this principle, the Supreme Court
in Ajay Gandhi v. B. Singh [(2004) 2 SCC 120] having
regard to the fact that the President of the Income Tax
Appellate Tribunal had been from its inception in 1941
exercisin g the power of transfer of the members of the
Tribunal to the places where Benches of the T ribunal
were functioning, held construing Sections 251(1) and
255(5) of the Income Tax Act that the President under
these provisions has the requisite power of trans fer and
posting of its members. The Court observed: „For
construction of a statute, it is t rite, the actual practice
may be taken into consideration.‟
Contemporary official statements throwing light on
the construction of a statute and statutory instrumen ts
made under it have been used as contemporanea
expositio to interpret not only ancient bu t even recent
statutes both in England and India.”
29. Clarification was issued by the State of Mizoram not only in
the light of the express provisions contained in Para 3.8 of the
office memorandum but also in the light of a similar
clarification issued by the Central Government. The Division
Bench of the High Court has noticed that the clarificatory
memorandum was issued considering the Central Government
clarifica tory office memorandum as a model.
30. Reliance placed by Mr Ranjit Kumar, learned Senior
Counsel appearing on behalf of the appellant on a decision of
this Court in Shambhu Nath Mehra v. State of Ajmer [AIR 1956
SC 404 : 1956 Cri LJ 794] , in our opinion , is not apposite.
This Court therein was considering interpretation of the word
“especiall y” contained in Section 106 of the Evidence Act,
1872, which was an exception to Section 101 thereof vis -à-vis
Sections 112 and 113 of the Railways Act. It is in tha t context
this Court observed: (AIR p. 406, para 13)
“13. We recognise that an illustration does not exhaust
the full content of the section which it illustrates but
equally it can neither curtail nor expand its ambit; and if
knowledge of certain facts is as much available to the
prosecution, should it choose to exercise due diligence,
as to the accused, the facts cannot be said to be
„especially‟ within the knowledge of the accused.”
31. If the first part of the statement of law in Shambhu
Nath [AIR 1956 SC 404 : 1956 Cri LJ 794] in our opinion, is
applicable, the illustration in question does not curtail nor
extend the ambit. It merely clarifies what otherwise might have
been obvious. It introduces the rule by abundant caution
although it might not have b een necessary keeping in view the
purport and object which Rule 20 and Para 3.8 seeks to
achieve.
32. The clarification issued by the State is not in the teeth of the
illustration given in Clause (g) of Para 3.4 of the office
memorandum. The clarification having been issued, the same
should be taken into consideration by this Court irrespective of
the fact as to whether it was available to the Public Service
Commission on 16 -3-2004 when the DPC held its meeting
which, in our opinion, was not of much signif icance.
33. The clarification being explanatory and/or clarificatory, in
our opinion, will have a retrospective effect.
34. In S.S. Grewal v. State of Punjab [1993 Supp (3) SCC 234 :
1993 SCC (L&S) 1098 : (1993) 25 ATC 579] this Court stated
the law thus : (SCC pp. 240 -41, para 9)
“9. … In this context it may be stated that according to
the pri nciples of statutory construction a statute which is
explanatory or clarificatory of the earlier enactment is
usually held to be retrospective. (See Craies on Statut e
Law, 7th Edn., p. 58.) It must, therefore, be held that all
appointments against vacancie s reserved for Scheduled
Castes made after May 5, 1975 (after May 14, 1977
insofar as the service is concerned), have to be made in
accordance with the instructions as contained in the
letter dated May 5, 1975 as clarified by letter dated April
35. Yet again in CIT v. Podar Cement (P) Ltd. [(1997) 5 SCC
482] this Court referring to a large number of authorities
including that of G.P. Singh's Principles of S tatutory
Interpretation, observed: (SCC p. 506, para 51)
“51. … „… An amending Act may be p urely clarificatory
to clear a meaning of a provision of the principal Act
which was already implicit. A clarificatory amendment of
this nature will have retrospecti ve effect and, therefore, if
the principal Act was existing law when the Constitution
came into force, the amending Act also will be part of the
existing law.‟ ”
36. This Court in Allied Motors (P) Ltd. v. CIT [(1997) 3 SCC
472] observed: (SCC pp. 479 -80, para 13)
“13. Therefore, in the well -known words of Judge Learned
Hand, one cannot make a fortress out of the dictionary; and
should remember that statutes have some purpose and object to
accomplish whose sympathetic and imaginative discovery is the
surest guide to their meaning. In R.B. Jodha Mal
Kuthiala v. CIT [(1971) 3 SCC 369] this Court said that one
should apply the rule of reasonable interpretation. A proviso
which is inserted to remedy unintended consequences and to
make the provision workable, a proviso which supplies an
obvious omission in the section and is required to be read into
the section to give the section a reasonable interpretation,
requires to be treated as retrospective in operation so that a
reasonable interpretation can be given to the section as a
whole. ”
(See also Zile Singh v. State of Haryana [(2004) 8 SCC 1] .)
(emphasis supplied)"
(e) In N. Suresh Nathan v. Union of India , 1992 Supp (1) SCC 584 , the
Hon‟ble Supreme Court held as under: -
“4. In our opinion, this appeal has to be allowed. There is
sufficient material including the admission of respondents
diploma holder s that the practice followed in the department
for a long time was that in the case of diploma -holder Junior
Engineers who obtained the degree during service, the pe riod
of three years' service in the grade for eligibility for promotion
as degree -holders commenced from the date of obtaining the
degree and the earlier period of service as diploma -holders was
not counted for this purpose. This earlier practice was clear ly
admitted by the respondents diploma -holders in para 5 of their
application made to the T ribunal at page 115 of the paper
book. This also appears to be the view of the Union Public
Service Commission contained in their letter dated December
6, 1968 extra cted at pages 99 -100 of the paper book in the
counter affidavit of respondents 1 to 3. The real question,
therefore, is whether the construction made of this provision
in the rules on which the past practice extending over a long
period is based is untenab le to require upsetting it. If the past
practice is based on one of the possible constructi ons which
can be made of the rules then upsetting the same now would
not be appropriate. It is in this perspective that the question
raised has to be determined.
5. The Recruitment Rules for the post of Assistant Engineers in
the PWD (Annexure C) are at p ages 57 to 59 of the paper book.
Rule 7 lays down the qualifications for direct recruitment from
the two sources, namely, degree -holders and diploma -holders
with thr ee years' professional experience. In other words, a
degree is equated to diploma with thre e years' professional
experience. Rule 11 provides for recruitment by promotion from
the grade of Section Officers now called Junior Engineers.
There are two categor ies provided therein — one is of degree -
holder Junior Engineers with three years' service i n the grade
and the other is of diploma -holder Junior Engineers with six
years' service in the grade, the provision being for 50 per cent
from each category. This ma tches with Rule 7 wherein a degree
is equated with diploma with three years' professional
experience. In the first category meant for degree holders, it is
also provided that if degree -holders with three years' service in
the grade are not available in suf ficient number, then diploma -
holders with six years' service in the grade may be considered
in the category of degree -holders also for the 50 per cent
vacancies meant for them. The entire scheme, therefore, does
indicate that the period of three years' ser vice in the grade
required for degree -holders according to Rule 11 as the
qualification for promotion in that category must mean three
years' service in the grade as a degree -holder and, therefore,
that period of three years can commence only from the date of
obtaining the degree and not earlier. The service in the grade
as a diploma -holder prio r to obtaining the degree cannot be
counted as service in the grade with a degree for the purpose of
three years' service as a degree -holder. The only question
befor e us is of the construction of the provision and not of the
validity thereof and, therefore , we are only required to
construe the meaning of the provision. In our opinion, the
contention of the appellants degree holders that the rules must
be construed to mean that the three years' service in the grade
of a degree -holder for the purpose of Rule 11 is three years
from the date of obtaining the degree is quite tenable and
commends to us being in conformity with the past practice
followed consistently. It has also been so understood by all
concerned till the raising of the present controversy recent ly
by the respondents. The tribunal was, therefore, not justified
in taking the contrary view and unsettling the settled practice
in the department .”
(emphasis suppl ied)
65. Learned Solicitor General highlighted that Respondent No. 2 was
appointed as Commissio ner of Police , Delhi as per the procedure prescribed
under the Delhi Police Act, 19 78 read with Transaction of Business of
GNCTD Rules, 1993 . For ready reference, S ection 6 of the Delhi Police
Act, 1978 is reproduced hereunder: -
“6. Commissioner of Polic e.—For the direction and
supervision of the police force in Delhi, the
Administrator shall appoint a Commissioner of Police
who shall exercise and perform such powers and duties
and perform such functions as are specified by or under
this Act. ”
(emphasis supplied)
66. The procedure required to be followed for the said appointment by the
Hon‟ble Lieutenant Governor is laid down under the Transaction of
Business of GNCTD Rules, 1993 , relevant portion of which is reproduced
hereunder: -
“55(2) Subject to any instructions which may from time to time
be issued by the Central Government, the Lieutenant Governor
shall make a prior reference to the Central Governm ent in the
Ministry of Home Affairs or to the appropriate Ministry with a
copy to the Mini stry of Home Affairs in respect of the following
matters: -
(a) proposals affecting the relations of the Central
Government with any State Government, the Supreme Co urt of
India or any other High Court;
(b) proposals for the appointment of Chief Secreta ry and
Commissioner of Police , Secretary (Home) and Secretary
(Lands );
(c) important cases which affect or are likely to affect the peace
and tranquility of the Nati onal Capital Territory; and
(d) cases which affect or are likely to affect the interests of any
minority community, Scheduled Castes or the backward
classes.”
[Emphasis Supplied ]
67. There is no dispute that Delhi is a Union Territory having a
Legislative Assembly , in accordance with provisions of Article 239AA,
Part-VIII – Union Ter ritories , of the Constitution of India. As per the
decision rendered by the Hon'ble Supreme Court in Government of NCT of
Delhi vs. Union of India & Anr. , (2018 ) 8 SC C 501 , matters pertaining to
Public Order, Police and Land lie outside the ambit of the le gislative powers
of the Assembly and hence are outside the Executive functions of the
Government of NCT of Delhi . These are matters where the Hon‟bl e
Lieutenant Gover nor, Delhi would act in the exercise of his functions at his
discretion and to the extent to which there has been a delegation or
entrustment by the Hon‟ble President of India to him under Article 239 of
the Constitution of India . In the present case, a st atutory provision being
Section 6 of the Delhi Police Act, 1978, as aforementioned, empowe rs the
Hon‟ble Lieutenant Governor to make a proposal for appointment of
Commissioner of Police, Delhi and thus we find no illegality in the
appointment .
68. In view of t he aforesaid conspectus of judgements, expounding the
principle of contemporan ea expositio , we do not find any irregularity,
illegality or infirmity in the action of Respondent No.1 in appointing
Respondent No. 2, following the procedure followed for nearl y over a
decade.
69. The second contention raised by learned counsel for the Petitioner as
well as learned counsel for the Intervener was that there is violation of
provisions of the DoPT O.M. dated 08.11.2004 regarding the Inter -Cadre
deputation of Respondent No.2 made vide impugned order dated
27.07.2021. In order to examine the said contention, it would be relevant to
refer to the impugned order, which is reproduced hereunder :-
“F. No 14016/24/2007.uts -1
Government of India
Ministry of home affairs
North bl ock, New Delhi
Dated the 27th July, 2021
The approval of the Appointments committe e of the
Cabinet has been conveyed vide No. 6/30/2021 - ED(SM -1)
Dated 27.07.2021 for the Inter Cadre deputation of Shri Rakesh
Asthana, IPS (GJ:1984) from Gujarat ca dre to AGMUT Cadre
and extending his service initially for a period of one year
beyond the date of his superannuation on 31.07.2021 or until
further orders, whichever is earlier, in relaxation of Rules,
1958 as a special case in public interest.
2. In pur suance of the said approval, Shri Rakesh Asthana, IPS
(GJ:1984) is hereby appointed as Comm issioner of Police,
Delhi with effect from the date of taking over charge up to
31.07.2022 or until further orders, whichever is earlier.
Deputy Secretary (S)
Tele: 23094790 ”
(emphasis supplied )
70. The contention, succinctly put, was th at Respondent No. 2 was not
eligible for Inter -Cadre deputation, in terms of the provisions of DoPT O.M.
dated 08.11.2004 , as he had reached the Super Time Scale in 2002 and Inter -
Cadre deputation is permissible only before reaching the Super Time Scale
in the Home Cadre. Per contra , the stand of Respondent No. 1 was that by
virtue of a recent DoPT O.M. dated 28.06.2018, the provisions of the DoPT
O.M. dated 08.11.200 4 can be relaxed, as and when required, by a
Committee, constituted as per Clause (a) of th e DoPT O.M. dated
28.06.2018.
71. We have carefully perused the DoPT O.Ms. dated 08.11.2004 and
28.06.2018 respectively and examined the rival contentions. For ready
reference, DoPT O.M. dated 28.06.2018 is reproduced hereunder:
“No. 13017/16/2003 -AIS.I
Gover nment of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
North Block, New Delhi
Dated: 28th June, 2018
Office Mem orandum
Sub: Inter -Cadre deputation of All India Service Officers —
policy regarding.
The undersigned is directed to refer to this Department‟s
OM of even number dated 8.11.2004 on the subject mentioned
above and to convey that the Competent Authority has
approved the following: -
(a) all cases of inter -cadre deputation would be processed as
per existing guidelines and wherever relaxation of any of the
provisions of these guidelines are required, the case will be put
up to a Committee comprising of Secr etary (DoPT),
Establishment Officer & Additional Secretary and Additional
Secretary (S&V) a s Member.
(b) in order to have a uniform pattern for consideration of
such cases for all the three All India Service Officers, the
Committee, as mentioned at para ( a) above, should consider all
cases of inter -cadre deputation of all AIS officers (IPS and
IFoS included). Home Secretary is to be co -opted as a Member
in this Committee while considering cases of IPS officers and
Environment Secretary is to be co -opted as a Member while
considering the cases of Indian Forest Service officers. The
Committee shou ld consider all cases of inter cadre deputation
and give its recommendations on the need and justification of
inter -State deputation.
(c) Inter cadre deputation wil l be available to the officers
only after completion of nine years of service in his or her
cadre and before reaching pay at Level 14 of the Pay Matrix in
his or her home cadre.
2. The provisions of DOPT‟s O.M. No. 13017/16/2003 -AIS-
1 dated the 8th Novemb er 2004 regarding inter cadre
deputation of All India Service officers will stand modified to
the above extent .
3. The Ministry of Home Affairs and the Ministry of
Environment, Forests & Climate Change are requested to
consider all such requests for inter cadre deputation keeping in
view incorporation of the aforesaid provisions in the extant
policy and proposals shall thereafter continue to be processed
and submitted for consideration and orders of the Appointments
Committee of the Cabinet after obtaining approval of the
Minister -in-charge.
(Udai Bhan Singh)
Under Secretary to the Governme nt of India
Tel: 011 -23094142 ”
(emphasis supplied )
72. Reading of paragraph 2 of the aforesaid O .M. indicates that by way of
the said O.M., the earlier OM dated 08. 11.2014 has been partially modified.
Provisions of Clause (a) of O.M. dated 28.06.2018 grant power of relaxation
of any of the provisions of the Guidelines stipulated in O.M. dated
08.11.2004. It is stipulated that all cases of Inter -Cadre deputation would be
processed as per existing Guidelines and wherever relaxation of the
Guidelines are requ ired, the case will be put up to a Committee comprising
of the following :-
a) Secretary (DoPT),
b) Establishment Officer & Additional Secretary, and
c) Additional Secretar y (S&V), as Member
Additionally, Home Secretary shall be co-opted as a M ember
while conside ring case s of IPS officers.
73. Clause (b) of the aforesaid O.M. dated 28.06.2018 provides for
consideration of cases of officers of the All India Services for Inter -Cadre
deputation , by the Committee, in order to have a uniform pattern of
consideration. Claus e (c) provides that the Inter -Cadre deputation will be
available to officers after completion of 9 years of service in the Cadre and
before reaching Pay -Level 14 in the Home Cadre .
74. The argument of the Petitioner/Intervener overlooks the provisions of
Clause (a) by virtue of which relaxation can be granted to any of the
provisions of DoPT O.M. dated 08.11.2004 , with regard to Inter -Cadre
deputation. Thus, there is a power vested in the Central Government to grant
relaxation , which would include relaxation of the provisions of Clause (b) of
the DoPT O.M. dated 28.06.2018 and Clause 2(i) of DoPT O.M. dated
08.11.2004 . The relaxation power has been exercised in the prese nt case in
granting Inter -Cadre deputation to Respondent No. 2 and in the absence of
lack o f power and jurisdiction, this Court cannot find any illegality in the
impugned action . We may also note the categorical stand of Respondent
No.1, set out in para 36 of the counter affidavit, wherein it is stated, by way
of illustration, that four officers in the past, above Pay -Level 14, have been
granted Inter -Cadre deputation , exercising the power of relaxation. The
names of the officers as enumerated therein are a s follows:
No. Name of the Officer Date of Central
Government‟s Order
1. Sh. Thianghli ma Pachuau, IPS
[MT:87] 26th March, 2014
2. Sh. T. John Longkumar, IPS
[CG:1991] 21st June, 2018
3. Sh. Nitishwar Kumar, IAS [UP:1996] 5th September, 2020
4. Sh. Vivek Bhardwaj, IAS [WB:1990] 13th August, 2021
75. It ought to be kept in mind that Delhi , being the Capital of India , has a
unique , special and specific requirement . It has witnessed several untoward
incidences and extremely challenging law and order situa tions /riots/crimes ,
which have an international implication, which in the wisdom of the Cent ral
Government necessitated appointment of an experienced officer possessing
diverse and multifarious experience of heading a large Para -Military
Security Force apa rt from other factors . As brought out in the counter
affidavit by Respondent No. 1, the impu gned order was passed keeping in
background the aforesaid factors. The Executive , which is responsible for
the law and order situation in the National Capital , must have a reasonable
discretion to select an officer it finds more suitable , based upon the ca reer
graph of such an officer , unless there is anything adverse in the service
career of such an officer . Learned counsels appearing for the
Petitioner /Intervener have not been able to make out a case calling for
interference in the de cision of the Governm ent or even remotely
demonstrated that there is any blot in the service career of Respondent No.2 ,
making him unsuitable for the post in question . Once this Court finds that
the Central Government has the power, jurisdiction and authority to grant
relaxati on of any of the provisions of the Guidelines issued on 28.06.2018
for Inter -Cadre deputation of All India Service s officers and that the power
has been exercised for valid and just reasons , we see no reason to interfere in
the decision of granting Inter -Cadre deputation to Respondent No. 2 .
Needless to state that Office Memorandums are Guidelines , to effectively
regulate the service s of the employees and bring uniformity therein . In
changing conditions or peculiar circumstances, Government may require to
deviate from a certain condition and it is for this reason that prov isions for
relaxation of the Guidelines are in corporated in the Rules and Executive
Instructions . The present case is no different or solitary , where the power of
relaxation has been exerci sed by the Government , in public interest. The
contention is theref ore rejected and the prayer of the Petitioner to declar e the
Executive action , null and void cannot b e acceded to .
76. Much was argued out by learned counsel s for the Petitioner /Intervener
that Respondent No. 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958 ,
while granting extension of service to Respondent No. 2, beyond the age of
superannuation. Learned counsels relied on the provi sion of FR -56(d) which
prescribes that “no Government Serv ant shall be granted extension in
service beyond the age of retirement of 60 years” as well as Rule 16(1) of
Rules, 1958 and submitted that the Rules mandate a complete bar in
extension of service b eyond superannuation and the Central Government
does not h ave the power under Rule 3 of Rules, 1960 to relax either Rule
16(1) of Rules, 1958 or provisions of FR -56(d) .
77. The aforesaid contention raised by the counsel s for
Petitioner /Intervener is not accept ed by this Court . For ready reference, FR-
56(d) is reprodu ced hereunder: -
“Fundamental Rule
56(d) No Government servant shall be granted extension in
service beyond the age of retirement of sixty years: …”
78. For ready reference, Rule 16(1) of Rules, 1958 is reproduced
hereunder: -
“16. Superannuation gratuity or p ension. -
16(1) A member of the Service shall retire from the service with
effect from the afternoon of the last day of the month in
which he attains the age of sixty years :
Provided that a member of the Service whose date of
birth is the first day of a mon th shall retire from service
on the afternoon of the last day of the preceding month
on attaining the age of sixty years:
Provided further that a member of the Service dealing
with budget work or working as a full -time member of a
Committee which is to be wound up within a short period
may be given extension of service for a period not
exceeding three months in public interest, with the prior
approval of the Central Government.
Provided also that a Member of the Service holding the
post of Chief Secretary to a State Government may be
given extension of service for a period not exceeding six
months on the recommendations made by the concerned
State Government with full justification and in public
interest, with the prior approval of the Central
Government.
Provided also that a Member of the Service holding the
post of Chief Secretary to the Government of Jammu &
Kashmir may be given extension of service, under
exceptional circumstances, for a perio d beyond six
months but the total term as Chief Secretary no t
exceeding three years and up to the age of sixty -two
years, whichever is earlier, on the recommendations
made by the State Government of Jammu & Kashmir,
with full justification and in public in terest, with the prior
approval of the Central Government".
Provided also that a member of the Service who has
attained the age of fifty -eight years on or before the first
day of May, 1998 and is on extension in service, shall
retire from the service on t he expiry of his extended
period of service or on the expiry of any further
extension, granted by the Central Government in public
interest, and that no such extension in service shall be
granted beyond the age of sixty years. ”
(emphasis supplied)
79. Rule 3 o f Rules, 1960 is also reproduced hereunder , for ready
refere nce:-
“3. Power to relax rules and regulations in certain cases. -
Where the Central Government is satisfied that the operation
of-
(i) any rules made or deemed to have been made under the
All Indi a Services Act, 1951 (61 of 1951), or
(ii) any regulation m ade under any such rule, regulating the
conditions of service of persons appointed to an All India
Service causes undue hardship in any particular case, it
may, by order, dispense with or relax th e requirements of
that rule or regulations, as the case may be, to such
extent and subject to such exceptions and conditions as it
may consider necessary for dealing with the case in a
just and equitable manner. ”
(emphasis supplied)
80. Plain reading of the aforesaid Rule 3 shows that the Central
Government has the power to relax any Rule framed under the All India
Services Act, 1951 and any Regulation made under any such Rule, if it is
satisfied that the operation of any Rule/Regulation, causes undue hardship in
any particular case. The relaxation can be to such exten t and subject to such
exceptions and conditions as it may consider necessary for dealing with the
case, in a just and equitable manner.
81. Rule 3 is a n enabling provision, em power ing the Centr al Government
to relax the Rules framed under the All India Servic es Act, 1951, which
would include Rule 16(1) of Rules, 1958. There is no dispute between the
parties that the services of Respondent No. 2 are governed by Rule 16(1) of
Rules, 1958 and there fore as a corollary, the Central Government has the
power to relax the provisions of Rule 16(1) of Rules, 1958. It is the stated
case of Respondent No. 1, on affidavit, that power of relaxation has been
exercised by the Central Government and provisions of Rule 16(1) of Rules,
1958 have been relaxed to grant extension of service to Respondent No. 2 by
invoking Rule 3 of Rules, 1960 read with Section 21 of the General Clauses
Act, 1897 . It is further averred in the affidavit that during the process of
appoi ntment of Commissioner of Police, Delhi, the CCA was faced with
precarious situation where it found that most of the appropriate level officers
of AGMUT Cadre were not having the requisite experience for appointment
of Commissioner of Police, Delhi . Keepin g in mind the complexities and
sensitivities in the Capital of the Country and the fact that no officer with
appropriate seniority and requisite experience was available in the AGMUT
Cadre, the relaxation provision was invoked and extension of service was
granted to Respondent No. 2. We find that Rule 3 of Rules, 1960 certainly
empowers the Central Government to relax the provisions of Rule 16(1) of
Rules, 1958 , to give extension of service to Respondent No.2 . We also find
merit in the reasons furnished by Respondent No. 1 for grant of relaxation
and it is not open for th is Court , sitting in a judicial review , to substitute its
own decision and wisdom for that of the Central Government as it is really
the domain and prerogative of the Government to take a de cision for grant of
relaxation or otherwise , on the basis of its s ubjective satisfaction premised
on objective consideration s. We also find that this is not the first of its case
where powers of relaxation of Rule 16(1) of Rules, 1958 ha ve been
exercised b y the Central Government. In para 49 of the counter affidavit,
Respondent No. 1 has enumerated the names of 9 IPS officers, in whose
cases, the service tenure was extended, by invoking the powers under Rule 3
of Rules, 1960. For the same reasons, we reject the contention of the
Petitioner/Intervener that there is a viola tion of FR-56(d) . Provisions of FR -
56(d) are pari materia to the provisions of Rule 16(1) of Rules, 1958 . While
FR 56(d) deals with the extension of service of a Government Servant, in
gener al, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the
All India Services. Therefore, in the present case, as Respondent No. 2 is an
IPS officer and Member of the All India Services, the service conditions are
more aptly governed by Rules , 1958 and the provisions of Rule 3 of Rules,
1960, as extracted h ereinabove, would apply for relaxation of the provisions
of Rule 16(1) of Rules, 1958. In view thereof, it would be irrelevant to deal
with the issue of alleged violation of FR -56(d) once th e Central Government
has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960. Be that as it may,
once we are satisfied that the power of relaxation has been exercised under
Rule 3 of Rules, 1960 for a just cause and for extenuating circumstances ,
calling for exercise of the said power, we do not subscribe to the argumen t
that there is a violation of FR -56(d). Insofar as the argument of the
Petitioner/Intervener that post of Commissioner of Police, Delhi does not
find mention in the Provisos to FR -56(d) and Rule 16(1) of Rules, 1958 and
therefore his case does not fall in the exceptions, is concerned, suffice would
it be to state that if the said post was covered under the Provisos and
therefore the exceptions, the Provisos would have a self-operating effect . It
is only because the case of Respondent No. 2 does not fall in the Provisos ,
the power of relaxation of the provisions of the substantive Rule 16(1) of
Rules, 1958 has been exercised. We do not find any violation of Rule 16(1)
of Rules, 1958 and/or FR -56(d) and the contention is hereby rejected.
82. In view of the afores aid finding by us that the directions of the
Hon‟ble Supreme Court rendered in Prakash Singh’s Case (I) and (II) , do
not apply to the appointment of Commissioner of Police, Delhi, we also
reject the contention that the Central Government was required to send the
case to UPSC for empanelment or that Respondent No. 2 was required to
have a residuary service of six months, prior to his superannuation, at the
time of his appointment as Commission er of Police, Delhi. It bears repetition
to state that the directi ons of the Hon‟ble Supreme Court were only intended
to apply with respect to the appointments of the DGPs in the respective
States and thus there is no violation of the directions of the Hon ‟ble
Supreme Court. Both the aforesaid decisions have all along be en interpreted
and understood as being applicable to the States , for appointment of Police
Officers of the rank of DGP and above .
83. There can hardly be a dispute on the proposition of law sought to be
urged by learned Solicitor General and learned Senior Cou nsel for
Respondent No. 2 that public interest litigation cannot be entertained in a
service matter . The law on this aspect is no l onger res integra and we may
only refer to the observations of the Hon‟ble Supreme Court in Vishal
Ashok Thorat and Others vs . Rajesh Shrirambapu Fate and Others, 2019
SCC OnLine SC 886 , as follows: -
“18. In support of the appeal filed by the State of Maha rashtra,
learned senior counsel submits that respondent No. 1 had no
locus to file a writ petition, he having not participat ed. It is
submitted that provisos to Rule 3(iii) and Rule 3(iv) of Rules,
2016 do not at all lower minimum qualification prescribed by
Central Government vide notification dated 12.06.1989, but it
merely gives breathing period of two years (before completi on
of probation period) to selected candidates to gain experience
of one year and driving licence. It is submitted that direction in
paragraph 51 of the judgment cannot be complied as on date,
in view of fact that notification of the Central Government
dated 12.06.1989, is no longer in operation. Rules, 2016 do not
change the minimum qualification which is same as provided in
substanti ve provision of Rule 3 and proviso carves out only an
exception giving some time to acquire the qualification during
the pro bation period by which provision the zone of
consideration has been enlarged enabling the more meritorious
candidates to apply for t he post. The High Court committed
error in treating the writ petition filed by the respondent as
Public Interest Litigation whereas in the service matters no
Public Interest Litigation can be entertained .
xxx xxx xxx
38. Although, learned counsel fo r the parties have made
elaborate submissions on the validity of Rule 3(iii) proviso,
Rule 3(iv) proviso and Rule 4 but in t he facts of the present
case, where writ petitioner, i.e., respondent No. 1 was held by
the High Court not competent to challenge th e advertisement
Nos. 2 of 2017 and 48 of 2017, the High Court committed error
in proceeding to examine the validity of the R ules, 2016. The
challenge to Rules, 2016 in the background of the present case
ought not to have been allowed to be raised at the in stance of
the writ petitioner. The respondent No. 1, who did not
participate in the selection and the High Court had specifi cally
rejected the entitlement of the respondent No. 1 to challenge the
advertisement Nos. 2 of 2017 and 48 of 2017, as held in
para graph 48 of the judgment, permitting him to challenge the
validity of the Rules in reference to the same advertisements is
nothing but indirectly challenging something which could not
be challenged directly by the respondent No. 1. The High Court
in the fa cts of the present case, where respondent No. 1 was not
allowed to challenge the advertisements or the select list should
not have been allowed to challenge the Rules, 2016 in so far as
the selection in question was concerned. The writ petition filed
by re spondent No. 1 was not styled or framed as PIL. It is well
settled that with regard to service jurisprudence, PIL are not
entertained. In Ayaaubkhan Noorkhan Pathan v. State of
Maharashtra, (2013) 4 SCC 465, this Court has reiterated that
PIL should not be entertained in service matter. In paragraph
15 following has been laid down:
“13. Even as regards the filing of a Public In terest
Litigation, this Court has consistently held that such a
course of action is not permissible so far as service
matters are co ncerned. (Vide: Dr. Duryodhan Sahu v.
Jitendra Kumar Mishra, (1998) 7 SCC 273 : AIR 1999
SC 114; Dattaraj Natthuji Thaware v . State of
Maharashtra, (2005) 1 SCC 590 : AIR 2005 SC 540; and
Neetu v. State of Punjab, (2007) 10 SCC 614 : AIR 2007
(emphasis supplied)
84. Similarly, in Central Electricity Supply Utility of Odisha v. Dhobei
Sahoo , (2014) 1 SCC 161 , the Hon'b le Supreme Court observed as under: -
“14.1. In relation to a service matter a public interest litigation
is not maintainable except a s far as it relates to a writ of quo
warranto and in the case at hand, the High Court has failed to
understand the implicat ions of the writ of quo warranto and has
not only entertained the PIL in the garb of a writ of quo
warranto but further proceeded to direct recovery of the
amount paid to the Chairman of the Commission while
functioning as a CEO which is beyond the scope o f a PIL. ”
(emphasis supplied)
85. However, we may only add a caveat that the only exception to the
above proposition is a writ in the na ture of quo warranto . It is a well -settled
law that a writ of quo warranto lies for violation of statutory provisions. In
this regard, we may refer to the observations of the Hon‟ble Supreme Court
in Hari Bansh Lal vs. Sahodar Prasad Mahto and Ors., (2010) 9 SCC 655
2010 , as follows:
“20. From the discussion and analysis, the following principles
emerge: (a) Except for a wr it of quo warranto, PIL is not
maintainable in service matters. (b) For issuance of writ of quo
warranto, the High Court has to satisfy that the appointment is
contrary to the statutory rules. (c) Suitability or otherwise of a
candidate for appointment to a post in Government service is
the function of the appointing authority and not of the Court
unless t he appointment is contrary to sta tutory
provisions/rules.”
86. We may also refer to a passage of the judgment of Hon‟ble Supreme
Court in Rajesh Awasthi v. N and Lal Jaiswal and Ors. 2013 (1) SCC 501,
which is as follows :
“19. A writ of quo warranto will lie when the appointment is
made contr ary to the statutory provisions. This Court in Mor
Modern Coop. Transport Society Ltd. v. Govt. of Haryana
[(2002) 6 SCC 269] held that a writ of quo warranto can be
issued when appointment is contrary to the statutory provisions.
In B. Srinivasa Reddy [(2 006) 11 SCC 731 (2) : (2007) 1 SCC
(L&S) 548 (2)], this Court has reiterated the legal position that
the jurisdiction of the High Court to issue a writ of quo
warranto is limited to one which can only be issued if the
appointment is contrary to the statuto ry rules. The said position
has been reiterated by this Court in Hari Bansh Lal [(2010) 9
SCC 655 : (2010) 2 SCC (L&S) 7 71] wherein this Court has
held that for the issuance of writ of quo warranto, the High
Court has to satisfy itself that the appointment is contrary to the
statutory rules.”
87. This Court in S.N. Sahu v. Chairman, Rajya Sabha & Ors. being
W.P.(C) No. 11146/2 016, decided on 05.12.2016 held as follows :
“5. It is a settled law that a writ of quo warranto can be sought
only if there is found to be violation of a statutory provision.
This is so held by the Supreme Court in its various judgments
and two such judgm ents are in the cases of B. Srinivasa Reddy
Vs. Karnataka Urban Water Supply & Drainage Board
Employees' Assn. and Others, (2006) 11 SCC 731(2) and
Rajesh Awasthi Vs. Nand Lal Jaiswal & Others (2013) 1 SCC
501. The relevant paragraphs of the judgment of th e Supreme
Court in the case of B. Srinivasa Reddy (supra) are paras 49,
57 and 60 which hold that a writ of quo warranto can only be
filed if there is found to be violation of a statutory provision.
xxx xxx xxx
7. It is therefore clear that the pr esent writ petition seeking
reliefs in the nature of quo warranto is not maintainable
because there is no pleading in the writ petition a s to which
statutory provision is violated in the appointments of Shri
Ramacharyulu and Shri Mukul Pande. Prayer (a) th erefore is
misconceived and the writ petition is liable to be and is
accordingly dismissed so far as prayer (a) is concerned”.
88. We have e xamined the contentions of the Petitioner/Intervener with
regard to violation of Rule 16(1) of Rules, 1958 and FR 56(d) and given a
detailed finding that there is no violation of the said Rules , in view of the
power of relaxation exercised by the Central G overnment. Therefore, even
when examined on the anvil and touchstone of the parameters for issuing a
writ of quo warran to, we do not find any violation of the statutory Rules and
are thus not persuade d to issue a writ of quo warranto to quash the
appointme nt of Respondent No. 2 , as Commissioner of Police, Delhi , as
prayed for by the Petitioner/Intervener .
89. Before we part wi th the judgment , we may add a note of caution to
the Petitioner . Learned Solicitor Gen eral and Mr. Prashant Bhushan had
strenuously argued that the pleadings in the present petition are a „cut, c opy,
paste ‟ of the petition filed by the I ntervener before th e Hon ‟ble Supreme
Court and that such a practice must be discouraged and strictures be passed
against the Petitio ner. Learned counsel for the Petitioner had disputed and
denied the allegation and asserted that the pleadings in the petition are his
own crea tion. We do not wish to precipitate the issue any further but are
constrained to observe that such a practice is certainly unhealthy and
deserves to be deprecated and the Petitioner shall be well advised to refrain
from indulgin g in such an exercise , in future.
90. For all the aforesaid reasons, the writ petition is dismissed along with
the pending applications.
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The Delhi High Court on Tuesday dismissed the public interest litigation (PIL) petition challenging the appointment of Rakesh Asthana as Commissioner of Delhi Police (Sadre Alam v. Union of India).
The Bench of Chief Justice DN Patel and Justice Jyoti Singh pronounced the judgment after it had reserved the verdict on September 27.
Advocate BS Bagga had appeared for the petitioner, Sadre Alam whereas Advocate Prashant Bhushan appeared for an intervenor, NGO Centre for PIL (CPIL) in the matter.
Asthana's appointment by the Centre was argued to be in contravention of the Supreme Court's judgment in Prakash Singh v. Union of India. Inter alia, it was also contended that Asthana has been appointed for one year, when the judgment says it has to be for two years. As per the judgment, for being appointed as police chief, there has to be a residual tenure of six months, which was not followed in this case, the Court was told.
Solicitor General Tushar Mehta had led the arguments for the Central government. He contended that the Prakash Singh judgment applies only to Directors General of Police (DGPs) of states, and not the Police Commissioner of Delhi. Asthana was appointed to the post in the public interest since he had the experience required, he said, inter alia.
There was also controversy over whether the petitioner had "copied" his petition from a plea moved by CPIL before the Supreme Court since the contents of both pleas were found to be highly similar. In view of the same, Mehta argued that the plagiarised petition is an abuse of process of law and a manifest outcome of personal vendetta.
Senior Advocate Mukul Rohatgi had made arguments on behalf of Asthana. Rohatgi opposed Alam's petition on the ground that it was not genuine and only a proxy plea. He also alleged that social media campaigns were being conducted against Asthana by Advocate Bhushan and argued that the challenge was motivated.
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Tiger Trail Production LLC …Petitioner
Anandita Entertainment LLP and others …Respondents
Mr. Reshant Shah i/b. Lex Conseiller for Petitioner.
Ms. Drishti Khurana i/b. Zen Jurists for Respondent Nos.1 and 2.
Mr. Hiren Kamod a/w. Mr. Ravindra Suryawanshi, Ms. Tanvi Nandgaonkar,
Mr.Krunal Mehta and Mr. Archis Bhatt i/b. Bar & Brief Attorneys for Respondent
This is a petition filed under Section 9 of the Arbitration and
Conciliation Act, 1996, praying for interim measures pending resolution
of disputes between the parties through arbitration. The petition has been
listed today in the light of grave urgency projected on behalf of the
petitioner, primarily on the ground that release of a movie ‘Haddi’ on
OTT platform of respondent No.3 needs to be stayed. Considering the
fact that the release of the movie is slated to be on 07.09.2023, this
Court granted listing of the petition today for urgent hearing.
2.The learned counsel appearing for the petitioner invited attention
of this Court to an agreement dated 28.05.2021 executed between the
petitioner on the one hand and respondent No.2 on the other. He relied
upon another agreement dated 09.06.2021 executed between the
petitioner and respondent No.2. Thereafter, attention of this Court was
invited to certain documents to show as to the manner in which
substantial sums of money were transferred by the petitioner under the
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said agreements for various activities in furtherance of the object of the
said agreements i.e. to indulge in creative efforts for the purpose of
entertainment.
3.After relying upon the documents, it was claimed that such
finances were misused by respondent Nos.1 and 2 to produce the said
movie ‘Haddi’, which is to be released on 07.09.2023 on the OTT
platform of respondent No.3. It is submitted that since the finances
provided by the petitioner were misused in the aforesaid manner, until
the disputes raised by the petitioner are resolved, urgent interim reliefs
need to be granted, particularly ad-interim relief in terms of prayer
clause (a), which pertains to stay of release of the said movie on the
OTT platform of respondent No.3.
4.The respondents have appeared through counsel and they have
vehemently opposed the prayer made on behalf of the petitioner. It is
submitted that there is absolutely no connection between the agreements
at exhibits-A and B, upon which the petitioner relies and the production
and release of movie ‘Haddi’ on the OTT platform of respondent No.3.
It is submitted that the connection sought to be established on behalf of
the petitioner is far-fetched and therefore, no case is made out for grant
of ad-interim relief, as prayed.
5.This Court has considered the documents placed on record,
particularly exhibits-A and B i.e. the two agreements upon which the
learned counsel for the petitioner has placed much emphasis. This Court
has also perused the other documents, including documents which
indicate that certain amounts were indeed transferred by the petitioner to
third parties. But, at this stage there does not appear to be any cogent
material to establish any connection between transfer of such amounts
and production of the movie ‘Haddi’, which is to be released on
07.09.2023 on the OTT platform of respondent No.3. The petitioner
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claims that finances so made available were misused. Perusal of the
agreement at exhibit-A shows that a reference is made to a proposed
web series called ‘7th Sense’. But, the mention of the movie in question
i.e. ‘Haddi’ is conspicuous by its absence and therefore, this Court is
convinced that there is substance in the contention raised on behalf of
the respondents that no connection is established by the petitioner as
regards the agreements at exhibits-A and B, the amounts transferred to
third parties by the petitioner and the production and release of the said
movie ‘Haddi’. Hence, the prayer made for grant of interim reliefs is
rejected.
6.The respondents may file their reply affidavits within three weeks
from today.
7.Rejoinder, if any, be filed within two weeks thereafter.
8.List the application for further consideration on 16.10.2023.
3/3Minal Parab
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The Bombay High Court recently refused to stay the release of the Hindi film ‘Haddi’ on petitions filed by two production companies Tiger Trail and Oberoi Mega Entertainment LLP (owned by Bollywood actor Vivek Oberoi) against Haadi's producers.
Two orders were passed refusing to stay the film's release, slated for September 7.
Single-judge Justice Manish Pitale questioned how staying the release of a film could protect the rights of the two production companies.
“The Court fails to understand how the stay of the release of the said movie could, in any manner, protect the rights, if any, of the petitioners. The disputes sought to be raised by the petitioners and the grievance in that regard, at this stage, appear to be only against partners, which could be a matter of damages or compensation that the petitioners may claim against the said respondents, but they have failed to make out a case for staying release of the said movie” the Court said, in a September 4 order.
The Court also disapproved of parties approaching court at the eleventh hour to seek a stay on the release of the movie.
The matter will be heard next on October 16.
Both petitions were filed seeking interim relief while arbitration proceedings were ongoing.
Oberoi Mega Entertainment's plea raised a grievance that the film's rights had been wrongfully given to other entities.
It pointed out that a limited liability partnership agreement was earlier executed with Anandita Entertainment LLP to produce the film.
Oberoi then discovered that Zee Studios had engaged in an exchange of emails with Anandita Studios Private Limited in connection with the production and release of a film with the same script.
Oberoi claimed that Zee’s emails indicated that it was aware of a prior agreement with Anandita Entertainment.
Despite this knowledge, Zee went ahead with its deal with Anandita Entertainment and thereafter announced the movie in May 2022.
The said movie is set to release on September 7, 2023.
Oberoi sought for a stay on the film claiming Zee could not have surreptiously engaged with Anandita Studios.
The respondents, on the other hand, claimed that the disputes being raised by Oberoi pertained to their claims with Anandita Entertainment and that the release of the film could not be dragged into the dispute.
They also sought time to file a reply.
Tiger Trails, meanwhile, claimed Anandita Entertainment misused funds provided to it to produce the film.
It urged the Court to stay the film's release until this financial dispute is resolved.
The Court, however, found no connection between the transfer of money by Tiger Trails and the production of the film, which is slated to be released on the Zee OTT platform later this week.
Accordingly, the Court refused to grant any relief to the Tiger Trails as well, thereby paving the way for the release of the film as scheduled.
Advocates Hiren Kamod, Ravindra Suryawanshi, Tanvi Nandgaonkar, Krunal Mehta and Archis Bhatt briefed by Bar & Brief Attorneys appeared for Zee.
Advocate Reshant Shah briefed by Lex Conseiller appeared for Tiger Trails.
Advocates Anoshak Daver, Prerak Choudhary, Prakash Choudhary, Anisha Balse, Tushar Awasthi, Regina David, Trisha Ranka and Krisha Barot briefed by Prerak Choudhary appeared for Oberoi.
Advocates Drishti Khurana briefed by Zen Jurists appeared for Anandita Entertainment.
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Appellate Side
Present:
The Hon’ble Justice Joymalya Bagchi
And
The Hon’ble Justice Ajay Kumar Gupta
C.R.A. 561 of 2015
Jiten Barman
Versus
The State of West Bengal
For the appellant : Mr. Amitabha Karmakar, Adv.
For the State : Mr. Parthapratim Das, Adv.
Mrs. Manasi Roy, Adv.
Heard on : 21.12.2022
Judgment on : 11.01.2023
Ajay Kumar Gupta, J:
1. The instant appeal is directed against the judgment and order dated
15.06.2015 and 18.06.2015 passed by the Additional Sessions Judge, 3rd
Court, Tamluk in Sessions Trial No. 3(11)/2014 arising out of Sessions Case
No. 299 (June) of 2014 whereby convicting and sentencing the appellant to
suffer rigorous imprisonment for 10 years along with a fine of Rs. 30,000/-,
in default, to suffer simple imprisonment for six months for the offence
punishable under Section 326A/34 of the Indian Penal Code.
2. Brief facts of the prosecution case is that one Smt. Pampa Barman,
the mother and sister of the victims alleged that on 10.08.2013 at night after
having dinner her daughter, Sastika Barman and sister, Shampa Barman
had been sleeping in the father’s house. At about 2 a.m. at night her sister
and daughter started shouting loudly. After awakening parents of the
complainant immediately switched on the electric light and noticed the face,
breast of her sister and the belly, hand and leg of her daughter were burnt
extensively with blisters. It was suffocating in the whole room by the essence
of carbolic acid. Immediately her sister and daughter were removed to
hospital for their treatment. Both were admitted in Tamluk District hospital
in serious condition.
3. It was further alleged that Jiten Barman S/o- Dipak Barman of
Rajanagar Baharjola, P.S.- Tamluk and his friend Gajen Jana S/o- Naru
Jana of Kalapenya P.S.- Nandakumar, District- Purba Medinipur used to
tease her sister in various manner while going to school on the road. Jiten
Barman used to propose her for marriage. As her sister disagreed with his
proposal, Jiten Barman used to express if she does not marry him he would
make her condition so that no man of the world would marry her and also
expressed that human being would be frightened by seeing her face. As her
sister informed about the incident to her parents, they stopped her from
going to school or on the road and promptly arranged for the marriage of her
sister. Date was proposed for the visit of bride groom’s party from Haur on
11.08.2013 for betrothal. It was her strong belief that coming to know this
fact Jiten Barman and his friend Gajen Jana had spoiled the life of her sister
and daughter by throwing acid on their persons. She submitted a written
complaint to that effect in resulting Tamluk P.S. Case No. 338 of 2013 dated
11.08.2013 had been started under Section 450/326A/307 I.P.C. against
the appellant and his friend Gajen Jana.
4. The Officer-in-Charge, Tamluk P.S. initially entrusted the said case for
investigation to S.I. Swapan Chabri, who subsequently on his transfer
investigation was transferred to another police officer, Sri Maniklal Adak.
After completion of investigation, charge sheet was filed against the
appellant and Gajen Jana under Section 450/326A/307/34 of the I.P.C.
5. The case was committed to the Learned Court of Session after taking
cognizance by the Chief Judicial Magistrate as the case was a sessions
triable one. Subsequently, the case was transferred to the Learned
Additional Sessions Judge, 3rd Court, Tamluk for trial and disposal.
6. Charge was framed under Section 450/326A/307/34 of the I.P.C.
against the appellant and Gajen Jana, who were pleaded not guilty and
claimed to be tried. In order to prove the case, prosecution examined 12
witnesses and exhibited number of documents as Exhibits 1 to 14 and
material Exhibits I and II respectively.
7. Defence of the appellant was that he is innocence and false
implication. During questioning by the Court under Section 313 of the
Cr.P.C., the appellant made a simple denial, though incriminating materials
both oral and documentary were brought to his notice. No evidence adduced
from the side of defence.
8. After appreciation of the oral evidence and considering the documents
exhibited by the prosecution, the Trial Judge, by impugned judgment and
order, convicted and sentenced the appellant as mentioned above. By the
selfsame judgment, co-accused Gajen Jana was convicted and sentenced as
similar as appellant. However, he has not preferred appealed against his
conviction and sentence as revealed from the office report.
Arguments led by the parties:
9. Learned counsel appearing on behalf of the appellant submitted that
the trial Court did not appreciate the evidence of the prosecution that none
of the witnesses saw them at the place of incident or committing offence as
alleged. Victims only suspected that the appellant Jiten Barman and another
convict Gajen Jana committed the offence at the said night because they
were causing disturbance and teasing Sampa Barman on the way of her
school. The appellant Jiten Barman loved her and he wanted to marry her.
None of the witnesses explained how they had entered the house where the
incident had taken place. There is no whisper about the entry of the
appellant in the house of the victims at night. There is no eye witness as
such case is totally based on circumstantial evidence. It is further submitted
that witnesses failed to identify the appellant in Court. No T.I. Parade was
also held by the prosecution. Strong suspicion by the prosecution case is not
sufficient to hold the appellants guilty of the offences alleged. Prosecution
also failed to prove with reliable evidence the harassment and teasing of the
victim while going to school. Finally it is submitted the Trial Court had
convicted and sentenced the appellant on the basis of surmises and
conjectures only. Therefore, the order of conviction is required to be set
aside.
10. Per contra learned counsel appearing on behalf of the State submitted
there was a clear motive for throwing acid on the victims while they sleeping
at the residence. Appellant had threatened her prior to the incident if she
would not marry him, he would disfigure her in such manner that no man of
the world will marry her and every human being would be frightened to see
her face. Accordingly, they committed the offence when they came to know
that the parents of Sampa Barman had arranged her marriage and date was
fixed on 11.08.2013 for her engagement. Medical evidence showed victims’
suffered injuries by chemical substance like acid. Therefore, their conviction
is correct and requires no interference by this Court. As such appeal is liable
to be dismissed.
Appreciation of Evidence :
11. The proper appreciation of evidence is the heart and soul of criminal
jurisprudence and is necessary for a just and proper adjudication of the case
in hand. Now, let me start the scanning of evidences of P.Ws. in seriatim.
At the very outset, I would like to say on perusal of the entire evidence
it reveals P.W.s 1 (Complainant, Pampa Barman), 3 (Pramila Barman,
mother of victim Sampa Barman), 4 (Rabindra Nath Barman, father of victim
Sampa Barman), 5 (Madan Barman, father of another victim Swastika
Barman) and 6 (Swapan Barman uncle of victim Sampa Barman) were
declared hostile by the prosecution.
12. P.W. 2 the victim girl narrated the incident that on the said night she
was sleeping along with her niece Sastika (daughter of P.W. 1) on the floor of
a room. All on a sudden she woke up feeling burning sensation on her face
and two hands. Minor Sastika also sustained burn injuries on her belly and
legs. They cried out. At that time her mother switched on the light of their
room. Soon thereafter her father, mother and uncle rushed to the
Janubasan BPHC along with them for treatment and therefrom, both were
referred to Tamluk District Hospital. Minor Sastika was admitted in Tamluk
hospital for 12 days. She further deposed that she knew the appellant and
his friend. Prior to the date of incident, appellant and his friend were
causing disturbance and teasing them on the way to their school. Jiten
Barman expressed that he loved her and wanted to marry her. Accordingly,
she entertained belief that both were involving in the said incident.
13. P.W. 7, the another victim also deposed in her evidence that she was
sleeping in their house. At that time she sustained burn injury from acid in
the house of her maternal uncle. She also corroborated that her massi
namely Sampa Barman also sustained burn injuries from acid. She was
treated in the hospital and had sustained burn injury on her belly. But she
failed to identify the appellant and another convict in court. During cross
examination she admitted that she suspected that Jiten Barman and Gajen
Jana committed the offence in the said night because they were causing
disturbance and teasing her on the way to school although she admitted
that she never disclosed the fact of disturbance and teasing to her teacher
and other students of her school.
14. P.W.8, doctor attached to District Hospital Tamluk deposed that on
11.08.2013 she was posted as surgeon of Purba Medinipur District Hospital,
Tamluk. One Swastika Barman, 5 years and 4 months was examined by her
and she was admitted in the said hospital under her care. She was referred
from Janubasan BPHC. She was admitted at 3.43 a.m. (night). After
examination of the patient she found chemical burns on about 20 % of the
total body surface area. She was admitted in the hospital and was
discharged on 20.08.2013 at 12.15 p.m. in favourable condition. The injury
of the patient was from acid. On that day one Sampa Barman, aged about
18 years was also examined by her. She was admitted in the said hospital
under her care at 3.40 a.m. and she was referred from Janubasan BPHC.
After examination of said patient she found acid burns about 20 % of the
body surface on the face, chest, right axilla and right leg. She was referred
by her to eye surgeon for her eye problem. Sampa Barman was admitted in
the hospital on 11.08.2013 and she was discharged on 26.08.2013 at 11.00
a.m. in favourable condition. The injury of the patient was from acid. The
documents like BHT of aforesaid two patients were noted in six sheets in her
own handwriting. She knew the handwriting and signature of said doctor Dr.
R.N. Bhanja. BHT for two patients were exhibited & marked as Ext. 4 series
and signatures of the doctor were marked by Ext. 4/1 series.
15. P.W 9, Doctor deposed that he examined two patients namely Sampa
Barman and Swastika Barman. At the time of examination, Sampa Barman
was unconscious and she had injuries on the face, neck and chest by acid
injury. Her burn injury was about 28%. The injury was superficial in nature.
The patient brought with a history of carbolic acid burn thrown by someone
when the patient was sleeping at bed as per statement of patient party. As
per history, the time of occurrence was 1.45 a.m. on 11.08.2013. Time of
examination was at 2.15 a.m. on 11.08.2013. At the time of examination of
Swastika Barman she was semi-conscious and she had injuries of burn on
her abdomen about 18 %. The injury was superficial. The patient brought
with a history of acid burn over abdomen thrown by someone when the
patient was sleeping at bed as per statement given by patient party. As per
history, the time of occurrence was 1.45 a.m. on 11.08.2013. Time of
examination was at 2.15 a.m. on 11.08.2013. The injury reports of Swastika
Barman and Sampa Barman are marked by Ext. 5 and signature of the
doctor is marked by Ext. 5/1. The emergency ticket of Janubasan BPHC
with regard to Swastika Barman is marked as Ext. 6 and the signature of
the doctor is marked as Ext. 6/1. Emergency ticket of Janubasan BPHC
with regard to Sampa Barman is marked as Ext. 7 and the signature of the
doctor is marked as Ext. 7/1. Both patients were referred to Tamluk District
Hospital for better treatment.
16. The investigating officer examined as P.W. 12. He deposed that on
11.08.2013 he was posted at P.S. Tamluk as S.I. On that day, he was
entrusted by the then Officer-in-Charge Arun Kr. Khan to cause
investigation of Tamluk P.S. Case No. 338 dated 11.08.2013 under Section
450/326A/307 of the I.P.C. against the accused persons Jiten Barman and
Gajen Jana. He identified the handwriting and signature of the Officer-in-
Charge Arun Kr. Khan appearing in the formal FIR marked as Ext. 9 and
Ext. 9/1 respectively. He visited the place of occurrence and prepared the
rough sketch map and index. The said sketch map and index are marked by
Ext. 10 and 10/1 respectively. During the course of investigation, he
examined witnesses, namely, Pramila Barman, Rabindra Nath Barman,
Madan Barman, Swapan Barman, victim girl Sampa Barman, Dr. Basudeb
Das, Dr. Tridibesh Banerjee and Pamba Barman and recorded their
statements under Section 161 Cr.P.C. He also seized bottle of carbolic acid
of 100 ml with little acid, one mosquito net of parrot green colour, one pillow
with cover (Gerua colour) with smell of carbolic acid, one green coloured top
of Churidar and the lower part of one violet coloured churidar after preparing
seizure list marked as Ext. 11 and signature on the seizure list was marked
as Ext. 11/1. He also collected the injury report from Janubasan BPHC and
bed head ticket from Tamluk District Hospital. The said documents were
marked by Exhibits 4, 4/1, 5, 5/1, 6, 6/1, 7 and 7/1. He also collected call
details from the suspect’s mobile phones. The call details report containing
18 pages marked as Ext. 12. He also recorded the statement of the father
under Section 164 of the Cr.P.C. In the mean time, he was transferred on
20.12.2013 and for that, incomplete C.D. was handed over to the Officer-in-
Charge for further investigation. The said incomplete investigation was
handed over by the Officer-in-Charge, Tamluk P.S. to the 2nd investigating
officer (P.W. 11) for further investigation.
17. P.W. 11 deposed after receiving the C.D, at first, he had gone through
the written complaint , FIR , papers and documents those were available and
collected by erstwhile investigating officer namely S.I. Swapan Chabri. In
course of investigation, he arrested one accused namely Gajen Jana from
Kaktia on 14.05.2014 and thereafter he was forwarded before the learned
C.J.M., Tamluk. Another accused Jiten Barman surrendered before the
learned C.J.M. on 26.05.2014. After completion of investigation he
submitted charge sheet under Section 450/326A/307/34 of the I.P.C.
against both the accused persons namely, Jiten Barman and Gajen Jana
after consultation with the superior officer.
18. From the perusal of the evidence of hostile witnesses i.e. P.W. 1 this
Court finds she deposed that the incident occurred at about 1 a.m. (night) in
her father’s house at Kaktiya. She was informed about the incident by her
mother over phone. Thereafter, at about 2 a.m. (night) she went to her
father’s house at Kaktiya i.e. place of occurrence. P.W. 1 was told by her
mother after hearing a screaming sound she found that Sampa i.e. her sister
and Sastika, her daughter who were sleeping on the floor of the room had
sustained injuries on their face and belly respectively. She further stated she
lodged a written complaint against the appellant and Gajen Jana. Though
she admitted in her examination that she knew Gajen Jana and Jiten
Barman prior to the date of the incident, she could not identify the
appellant. She identified her signature appearing in the seizure list as a
witness.
19. P.W. 3 Pramila Barman deposed that victims were sleeping in her
house. That night her husband, her daughter Sampa Barman, her grand-
daughter Sastika Barman were sleeping with her in the same room. She
disclosed that she and her husband were sleeping on a Khat (cot). Her
daughter Sampa and grand-daughter Sastika were sleeping on the floor of
the room. At about 2 a.m., her daughter Sampa raised a hue and cry. She
was crying as she had sustained acid injuries on her face and body. Her
grand-daughter Sastika also sustained acid burn injury on her belly. Soon
thereafter, Sastika and Sampa were taken to Nonakuri BPHC. The doctors of
said BPHC referred them to the District Hospital, Tamluk. Both were in
hospital for 20 days. She failed to identify the appellant and the other
convict Gajen Jana in Court. She deposed she was never interrogated by the
police over the incident.
20. P.Ws. 4, 5 and 6 also deposed in similar lines as P.W. 3 and
were unable to identify the appellant and Gajen Jana.
21. Upon careful perusal of the evidence and judgment delivered by the
trial Court, I find the trial Court had relied on the version of witnesses
mainly victims as well as doctors who were examined as P.Ws. 2, 7, 8 and 9.
Most of the witnesses had turned hostile.
Even the family members of victims who were present at the place of
occurrence did not support the case of the prosecution.
Prosecution case is required to be proved by leading cogent, reliable
and credible evidence. From the entire evidence, none of the witnesses could
identify the appellant and co-accused as the miscreants. So, this case is not
based on direct evidence. Let me see whether the prosecution case may be
sustained to on circumstantial evidence.
It is well settled that in a case resting on circumstantial evidence, the
circumstances put forward must be satisfactorily proved and those
circumstances should be consistent only with the hypothesis of the guilt of
the accused.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya
Pradesh1, it was observed that:
"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 s to show that within all human probability the
act must have been done by the accused."
In a later decision in Sharad Birdhichand Sarda v. State of
Maharashtra2, while dealing with circumstantial evidence, it has been held
that onus is on the prosecution to prove that the chain is complete and the
infirmity or 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:
“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;
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;
the circumstances should be of a conclusive nature
and tendency;
they should exclude every possible hypothesis
except the one to be proved; and
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.”
These aspects were also highlighted in State of Rajasthan v. Raja
Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr.
In Padla Veera Reddy V. State of A.P.3, 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 for 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 then 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 the instant case, only two circumstances have been proved by the
prosecution.
Firstly, Victims suffered acid burn injuries. This is corroborated by
medical documents and evidence of Doctors who treated them; and
Secondly , Jiten Barman and his friend Shri Gajen Jana used to tease
victim Sampa Barman in various manner while going to school on the road.
Jiten Barman had proposed Sampa Barman for marriage. As she did not
accept his proposal, Jiten Barman used to tell her she did not marry him he
would make her so ugly so that no man of the world would marry her and
also said that every human being would be frightened by her face.
No other evidence is brought on record. None of the witnesses deposed
they had seen the appellants at the place of occurrence. Even there are
contradictory versions about the actual place of occurrence. P.W. 2 stated
they were sleeping on the floor of the room whereas P.W. 9, doctor stated
they were sleeping on the bed as per statement given by patient party.
Prosecution had declared P.Ws. 1, 3, 4, 5 and 6 as hostile witnesses. Hostile
witnesses while supporting substantial portions of the prosecution case
failed to identify the appellant in dock.
Victim girls could not state who threw acid on their persons at night in
their house, while sleeping. None of the family members, who were very
much present in the house, neighbours or persons of the surrounding
locality have seen the appellant together or committing offence on the date of
the fateful night.
I am fully convinced with the arguments of the learned Advocate
though the victims suffered acid burn injuries but who is actual culprit is
not brought on record by the prosecution. The victim P.W. 7 failed to identify
the appellant. During cross examination she admitted that she suspected
that Jiten Barman and Gajen Jana committed the offence in the said night
because they were causing disturbance and teasing her on the way to school
although she admitted that she never disclosed the fact of disturbance and
teasing to her teacher and other students of her school.
Another victim girl examined as P.W. 2 deposed prior to the date of
incident, appellant and his friend were causing disturbance and teasing
them on the way to their school. Jiten Barman expressed that he loved her
and wanted to marry her. Accordingly, she has formed belief that both were
involving in the said incident. Both victims had not seen the appellant or
his friend at the place of incident or in and around of their house or
throwing acid on them. How appellant and his friend entered the room at
night where the victims were sleeping and how they threw acid on them is
not clear from the prosecution witnesses. Their suspicion or belief do not
constitute proof.
On the basis of suspicious circumstances, appellant cannot be held
guilty. Suspicion, howsoever high, cannot take the place of proof of guilt.
Accordingly, appellant is entitled to the benefit of doubt and ought to be
acquitted.
Therefore, I find that prosecution failed to bring home the charges
against the appellant beyond the reasonable doubts either by direct or
circumstantial evidence.
22. The impugned judgment and order of conviction and sentence is, thus,
set aside.
23. The appellant is acquitted of the offence levelled against him.
24. Another convict, Gajen Jana, did not file appeal against the same self-
judgment. However, he stands on the same footing with the appellant.
Hence, in the interest of justice, he ought to be extended the same relief and
acquitted of the charge levelled against him in view of the law declared in
Sahadevan & Anr. Vs. State of Tamil Nadu4 and Md. Sajjad Vs. State of
West Bengal5 as such he is also acquitted of the offence in view of the
aforesaid judgments.
25. Accordingly, the appeal is allowed.
26. Appellant as well as co-convict Gajen Jana shall be set at liberty
forthwith if they are not wanted in any other case, upon execution of a bond
to the satisfaction of the Trial Court which shall remain in force for a period
of six months in terms of Section 437A of the Code of Criminal Procedure.
27. Lower Court records along with a copy of judgment be sent down at
once to the Learned Trial Court for necessary action.
28. Photostat certified copy of this judgment, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I Agree.
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Suspicion, howsoever high, cannot take the place of proof of guilt, observed the Calcutta High Court recently while acquitting two persons convicted by the trial court in an acid attack case [Jiten Barman v. The State of West Bengal].
A Bench of Justices Joymalya Bagchi and Ajay Kumar Gupta made the observation while overturning a 2015 trial court conviction in the case against two men.
"On the basis of suspicious circumstances, appellant cannot be held guilty. Suspicion, howsoever high, cannot take the place of proof of guilt. Accordingly, appellant is entitled to the benefit of doubt and ought to be acquitted," the Court said.
The case dated back to 2013, when two girls aged about 18 years and 5 years old, who were the sister and daughter of the informant respectively, were attacked with acid in their house at night.
Two men alleged to have had teased the informant's sister earlier were accused of the crime. As per the informant, her sister had turned down a marriage proposal from one of the accused. In retaliation, the accused allegedly threatened that he would make the girl's condition such that no one else would marry her and that human beings would be frightened by seeing her face, the informant had alleged.
On account of this, her parents had stopped the informant's sister from going to school or on the road, and arranged for her marriage, the Court was further told. The informant claimed that the accused had thrown acid on her sister and daughter on coming to know of her sister's betrothal.
The trial court's conviction in the matter was challenged by one of the accused before the High Court, who pleaded innocence in the case and contended that he had been falsely implicated. The appellant argued that none of the witnesses could explain how the accused could have entered the house at night when the incident took place. There were no eyewitnesses and the trial court had based its conviction on conjectures and surmises alone, the appellant submitted.
The High Court noted that while the trial court had relied on the version of various witnesses to the case, most of the witnesses had turned hostile.
"Even the family members of victims who were present at the place of occurrence did not support the case of the prosecution," the High Court found.
Since the case rested on circumstantial evidence, the circumstances put forth should be consistent only with the hypothesis of the guilt of the accused, the Court observed. However, in this case, the High Court found that contradictory versions of the incident, as well as hostile witnesses, marred the prosecution's case.
"I am fully convinced with the arguments of the learned Advocate though the victims suffered acid burn injuries but who is actual culprit is not brought on record by the prosecution," the Court concluded.
The Court further pointed out that the suspicions of the prosecution in the matter is not sufficient to incriminate the accused.
"How appellant and his friend entered the room at night where the victims were sleeping and how they threw acid on them is not clear from the prosecution witnesses. Their suspicion or belief do not constitute proof," the Court said.
Therefore, the High Court acquitted the appellant. The benefit of this acquittal was also extended by the Court to the co-accused who had not challenged the trial court order.
"... he stands on the same footing with the appellant. Hence, in the interest of justice, he ought to be extended the same relief and acquitted of the charge levelled against him in view of the law declared in Sahadevan & Anr. Vs. State of Tamil Nadu and Md. Sajjad Vs. State of West Bengal." the Court observed.
Advocate Amitabha Karmakar appeared for the appellant. The State was represented by Advocates Parthapratim Das and Manasi Roy.
|
1. Leave granted.
2. Vide order1 passed by the High Court2 in Criminal Petition
No. 2585 of 2019 filed by the appellant -State, an order dated 18.01.2018
passed by the Trial Court3 was upheld. Vide the aforesaid order an
1 Dated 27.01.2022.
2 High Court of Karnataka at Bengaluru .
3 XLVIII Additional City Civil and Sessions Judge (Special Court for Trial of CBI Cases) City Civil Court, Bangalore .
application s4 filed by the prosecution under Section 311 of the Cr.P.C.5,
seeking recall of M. Krishna (PW -189) and permit the prosecution to
produce the report and the certificate under Section 65B of the Act6 was
rejected.
3. Genesis of the trial is that in a serial bomb blast s which took
place in Bangalore on 25.07.2008 , one woman lost her life whereas
several persons were injured. Several FIRs were registered at
Madivala7, Koramangala8, Byatarayanapura9, Kengeri10,
Ashokanagar11, Sampangirama12 and Adugodi13 Police Stations for the
offence punishable under Section s 120B, 121, 121A, 123, 153A, 302, 307,
326, 337, 435, 506 & 201 of the IPC14 and Sections 3 to 6 of the Explosive
Substance s Act, 1908 , Sections 3 and 4 of the Prevention of Destruction
and Loss of Property Act, 1981 , Sections 3 and 4 of the Prevention of
Damage to Public Property Act, 1984 and Sections 10 and 13 of the
Unlawful Activities (Prevention) Act, 1967 . During the course of
4 S.C. Nos. 1480/2010 & 1481/2010.
5 The Code of Criminal Procedure, 1973.
6 The Indian Evidence Act, 1872
7 Criminal Case No. 483/2008.
8 Criminal Case No. 297/2008.
9 Criminal Case No. 314/2008.
10 Criminal Case No. 117/2008.
11 Criminal Case No. 260/2008 and 261/2008.
12 Criminal Case No. 92/2008.
13 Criminal Case No. 217/2008.
14 The Indian Penal Code, 1860.
investigation certain electronic devices such as one Laptop, one
external Hard D isc, 3 Pen Drive s, 5 floppies, 13 CDs, 6 SIM cards, 3
mobile phones, one memory card and 2 digital cameras etc. were
seized at the instance of accused no.3 i.e., Sarafaraz Nawaz@ Seju
@Hakeem . The original electronic devices were submitted before the
Trial Court along with the additional chargesheet dated 09.06.2010.
The Trial Court vide order dated 07.04.2017 ordered that the CFSL
Report dated 29.11.2010 with reference to the electronic devices was
inadmissible in evidence in the absence of a certificate under Section
65-B of the Act . Though, according to the prosecution, the original
devices being already on record (as a primary evidence), there was no
requirement of a certificate under Section 65 -B of the Act. Still, as a
matter of abundant caution, a certificate under Section 65 -B of the Act
was obtained and when M. Krishna (PW -189) was further examined in
chief on 27.04.2017, a certificate under Section 65 -B of the Act was
sought to be produced. Objection was raised by the counsel for the
accused. Vide order dated 20.06.2017, the Trial Court opined that the
certificate issued under Section 65 -B of the Act produced on 27.04.2017
was not admissible in evidence. Thereafter an application was filed in
the court to allow the prosecution to recall M. Krishna (PW -189) and to
produce the certificate under Section 65 -B of the Act in evidence. The
application was rejected by the Trial Court holding the same to be
delayed. The order of the Trial Court was upheld by the High Court. It
is the aforesaid order which is under challenge before this Court.
4. Mr. Aman Panwar, Additional Advocate General, appearing
for the appellant -State, in his brief argument submitted that in the case
in hand, which shocked the whole country as such , serial bomb blast s
in Bangalore w ere master minded by the accused. The courts below
should have considered the application in that light . What was sought
to be produced by the prosecution was not something , which was
created later on . Rather it was merely a certificate under Section 65B of
the Act. The primary evidence in the form of electronic devices was
already on record along with the report from CFSL. It is only because
the accused raised an objection to the production of that report and not
to take any chances, the prosecution filed an application under Section
311 Cr.P.C. to resummon M. Krishna (PW -189) and produce the
certificate under Section 65 -B of the Act in evidence. There was no
delay as immediately after the court rejected the report dated
29.11.2010 of CFSL on 07.04.2017, an application was filed on
16.12.2 017 seeking to produce the certificate under Section 65B of the
Act dated 27.04.2017. The learned courts below should have
appreciated the fact that by denying the prosecution opportunity to
produce the certificate under Section 65 -B of the Act , great injustice
would be caused to the appellant . In support of the arguments that a
certificate under Section 65 -B of the Act can be furnished /produced at
any stage of proceedings, reliance was placed on the judgment s of this
Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and Arjun
Panditrao Khotkar v. Kailash Kushanr ao Gorantyal, (2020) 7 SCC
5. In response, Mr. Balaji Srinivasan, learned counsel
appearing for the respondents, submitted that there was no error in the
orders passed by the courts below. The prosecution cannot be allowed
to fill up the lacuna in the evidence by filing an application under
Section 311 of the Cr.P.C. The certificate was sought to be produced
after a delay of six years. Hence, the same was rightly not permitted to
be produce d on record. Great prejudice shall be caused to the
responden ts now if the same is permitted . The respondents will be
deprived of their right of fair trial. The appeal deserves to be
dismissed.
6. We have heard learned counsel for the parties and perused
the relevant referred record.
7. The facts of the case have been briefly noticed in the
preceding paragraphs. Serial bomb blast s took place in Bangalore on
25.07.2008 which shocked not only the Bangalore city or the State but
the entire country, as in such terror attacks it is only the innocents who
suffer . The investigation had to be scientific. At the instance of the
accused no.3 , electronic devices such as one Laptop, one external Hard
Disc, 3 Pen Drives, 5 floppies, 13 CDs, 6 SIM cards, 3 mobile phones,
one memory card and 2 digital cameras etc. were recovered and
seized. These were sent for examination to the CFSL, Hyderabad.
Report was received on 29.11.2010. The same was submitted before
the Trial Court on 16.10.2012 and sought to be proved at the time of
recording of statement , M. Krishna, Assistant Government Examiner,
Computer Forensic Division, CFSL, appeared as PW -189. The accused
vide application dated 06.03.2017 objected to taking the report dated
29.11.2010 in evidence in the absence of a certificate under Section 65 -
B of the Act. Immediately, thereafter a certificate dated 27.04.2017 was
got issued under Section 65 -B of the Act and an application was filed
under Section 311 of the Cr.P.C. seeking to recall M. Krishna ( PW-189)
and to produce the aforesaid certificate in evidence. The trial was still
pending. Learned Trial Court without appreciating the legal position
in this regard had dismissed the application. The order was upheld by
the High Court. It was primarily for the reason of delay in producing
the certificate under Section 65B of the Act.
8. This Court in Anwar ’s case (supra) has opined that a
certificate under Section 65B of the Act is not required if electronic
record is used as a primary evidence. Relevant paragraph thereof is
quoted herein below:
“24. The situation would have been different
had the appellant adduced primary evidence, by making
available in evidence, the CDs used for announcement
and songs. Had those CDs used for objectionable songs
or announcements been duly got seized through the
polic e or Election Commission and had the same been
used as primary evidence, the High Court could have
played the same in court to see whether the allegations
were true. That is not the situation in this case. The
speeches, songs and announcements were recorded
using other instruments and by feeding them into a
computer, CDs were made therefrom which were
produced in court, without due certification. Those CDs
cannot be admitted in evidence since the mandatory
requirements of Section 65 -B of the Evidence Act are not
satisfied. It is clarified that notwithstanding what we
have stated herein in the preceding paragraphs on the
secondary evidence of electronic record with
reference to Sections 59, 65 -A and 65 -B of the Evidence
Act, if an electronic record as such is used as primary
evidence under Section 62 of the Evidence Act, the
same is admissible in evidence, without compliance
with the conditions in Section 65 -B of the Evidence
Act. ” (Emphasis added)
9. The aforesaid issue was subsequently considered by this
Court in Arjun Panditrao Khotkar ’s case (supra). It was opined that
there is a difference between the original information contained in a
computer itself and the copies made therefrom. The former is primary
evidence and the latter is secondary one. The certificate under Section
65-B of the Act is unnecessary when the original document (i.e.,
primary evidence) itself is produced. Relevant paragraph ‘33’ thereof
is extracted below:
“33. The non obstante clause in sub -section (1)
makes it clear that when it comes to information contained
in an electronic record, admissibility and proof thereof
must follow the drill of Section 65 -B, which is a special
provision in this behalf — Sections 62 to 65 being
irrelevant for this purpose. However, Section 65 -B(1)
clearly differentiates between the “original”
document — which would be the original “electronic
record” contained in the “computer” in which the
original information is first stored — and the
computer output containing such inform ation, which
then may be treated as evidence of the contents of the
“original” document. All this necessarily shows that
Section 65 -B differentiates between the original
information contained in the “computer” itself and
copies made therefrom — the former being primary
evidence, and the latter being secondary evidence.”
(Emphasis added)
10. In State of Karnataka v. M.R. Hiremath, 2019(7) SCC 515 ,
this Court after referring to the earlier judgment in Anwar ’a case
(supra) held that the non-production of the Certificate under Section
65B of the Act is a curable defect. Relevant paragraph ‘16’ thereof is
extracted below:
“16. The same view has been reiterated by a two -
Judge Bench of this Court in Union of India v. Ravindra V.
Desai , (2018) 16 SCC 273. The Court emphasised that
non-production of a certificate under Section 65 -B on
an earlier occasion is a curable defect . The Court
relied upon the earlier decision in Sonu v. State of
Haryana , (2017) 8 SCC 570 in which it was held:
‘32. … The crucial test, as affirmed by this Court,
is whether the defect could have been cured at the
stage of marking the document. Applying this test to
the present case, if an objection was taken to the CDRs
being marked without a certificate, the court could
have given the prosecution an opportunity to rectify
the deficiency .’
(Emphasis added)
11. Coming to the issue as to the stage of production of the
certificate under Section 65 -B of the Act is concerned, this Court in
Arjun Panditrao Khotkar ’s case (supra) held that the certificate under
65-B of the Act can be produced at any stage if the trial is not over .
Relevant paragraphs are extracted below:
“56. Therefore, in terms of general procedure,
the prosecution is obligated to supply all documents
upon which reliance may be placed to an accused before
commencement of the trial. Thus, the exercise of power
by the courts in criminal trials in permitting evid ence to
be filed at a later stage should not result in serious or
irreversible prejudice to the accused. A balancing
exercise in respect of the rights of parties has to be
carried out by the court, in examining any application by
the prosecution under Sections 91 or 311 CrPC or Section
165 of the Evidence Act. Depending on the facts of each
case, and the court exercising discretion after seeing
that the accused is not prejudiced by want of a fair
trial, the court may in appropriate cases allow the
prosecution to produce such certificate at a later
point in time. If it is the accused who desires to
produce the requisite certificate as part of his
defence, this again will depend upon the justice of
the case — discretion to be exercise d by the court in
accordance with law.
59. Subject to the caveat laid down in paras 52
and 56 above, the law laid down by these two High
Courts has our concurrence. So long as the hearing in
a trial is not yet over, the requisite certificate can be
directed to be produced by the learned Judge at any
stage, so that information contained in electronic
record form can then be admitted and relied upon in
evidence. ”
(Emphasis added)
12. The courts below had gone on a wrong premise to opine that
there was delay of six years in producing the certificate whereas there
was none. The matter was still pending when the application to
resummon M. Krishna (PW -189) and produce the certificate under
Section 65 -B of the Act was filed under Section 311 of the Cr.P.C.
13. It was only vide order dated 07.04.2017 that the report
prepared on the basis of electronic devices was refused to be taken on
record by the Trial Court. The original electronic devices had already
been produced in evidence and marked as MOs. It was during the
examination in chief of M. Krishna (PW -189) that the report of CFSL
dated 29.11.2010 was sought to be exhibited. However, the Trial Court
vide order dated 07.04.2017 declined to take the same on record in the
absence of a certificate under Section 65B of the Act. When the
aforesaid witness was further examined in chief on 27.04.2017, the
report under Section 65B was produced to which objection was raised
by the counsel of the defence and vide order dated 20.06.2017 the Trial
Court declined to take the certificate, issued under Section 65B of the
Act, on record. It was thereafter that an application was filed under
Section 311 of the Cr.P.C. for recalling M. Krishna (PW -189) and
produc e the certificate under Section 65 -B of the Act on record. The
same was rejected by the Trial Court vide order dated 18.01.2018.
14. From the aforesaid facts, it cannot be inferred that there was
delay of six years in producing the certificate. In fact, report received
from CFSL, Hyderabad on the basis of the contents of electronic devices
dated 29.11.2010 was already placed before the Trial Court on
16.10.2012. In fact, the stand of the prosecution was that when the
original electronic devices were already produced and marked MOs,
there was no need to produce the certificate under Section 65 -B of the
Act. Still, as a matter of abundant caution, the same was produced that
too immediately after objection was raised by the accused against the
production of CFSL report pre pared on the basis of the electronic
devices seized.
15. Fair trial in a criminal case does not mean that it should be
fair to one of the parties. Rather, the object is that no guilty should go
scot-free and no innocent should be punished. A certificate under
Section 65 -B of the Act , which is sought to be produced by the
prosecution is not an evidence which has been created now. It is
meeting the requirement of law to prove a report on record. By
permitting the pro secution to produce the certificate under Section 65B
of the Act at this stage will not res ult in any irreversibl e prejudice to the
accused. The a ccused will have full opportunity to rebut the evidence
led by the prosecution. This is the purpose for which Section 311 of the
Cr.P.C. is there . The object of the Code is to arrive at truth. However,
the power under Section 311 of the Cr.P.C. can be exercised to
subserve the cause of justice and public interest. In the case in hand,
this exercise of power is required to uphold the truth, as no prejudice
as such is going to be caused to the accused.
16. For the aforesaid reasons, t he appeal is allowed . The orders
passed by the courts below are set aside. Resultantly, application filed
by the prosecution under Section 3 11 of the Cr.P.C. is allowed. The
Trial Court shall proceed with the matter further.
|
The Supreme Court recently reiterated that a certificate verifying the authenticity of electronic evidence under Section 65B of the Indian Evidence Act can be produced at any stage of the trial regardless of any delay in doing so. [State of Karnataka vs T Naseer and ors]
A bench of Justices Vikram Nath and Rajesh Bindal added that a fair criminal trial does not mean the process is fair only to one side.
"A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution," the Court explained.
The observations came while setting aside a 2018 Karnataka High Court order that had not allowed the prosecution in the 2008 Bengaluru blasts to produce the said certificate on the ground of delay.
The 2008 Bengaluru blasts had left one person dead and 20 others injured.
In 2018, the Karnataka High Court upheld the trial court's refusal to accept a Section 65B certificate submitted by the prosecution in relation to certain electronic evidence in the case.
The electronic evidence recovered during the probe had been sent the Central Forensic Sciences Laboratory (CFSL) in Hyderabad, which in turn prepared its report on the same in 2010.
In 2017, the trial court refused to accept the CFSL report since Section 65B certificate was not submitted along with it.
At the time, the prosecution argued that such a certificate was not necessary as the original electronic devices had been produced as primary evidence.
However, the matter reached the High Court after the trial court refused to allow the production of the Section 65B certificate on grounds of delay.
After the High Court affirmed the trial court order, the State government moved a plea before the Supreme Court for relief.
The top court relied on its earlier decision in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal to reiterate that such a certificate can be produced at any stage of the trial.
The bench found that the High Court's approach was erroneous and also noted that the defence had also objected to the lack of a certificate after a delay, only in 2017.
"It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012," the Supreme Court further observed.
The Karnataka government's appeal was, thus, allowed, and the prosecution was allowed to produce the Section 65B certificate. The trial court was directed to proceed with the trial accordingly.
"Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished", the Supreme Court added.
Additional Advocate General Aman Panwar appeared for the Karnataka government. Advocate Balaji Srinivasan appeared for accused.
|
W.P.(C). No. 28288 of 2021
W.P.(C). No. 28288 of 2021
Dated this the 10th day of February, 2022
This writ petition is filed by an advocate with a prayer to
issue a writ in the nature of mandamus directing the respondents
to remove the Malayalam movie "Churuli" from the 'Over The
Top Platform' (for short 'OTT Platform') as expeditiously as
possible. The second prayer is to issue such other writ, order,
and direction directing the respondents as this Hon'ble Court
deems fit in the interest of justice.
“Pleadings of the parties”
2.The petitioner is an advocate by profession and is
having an office at Ayyanthole, Thrissur. 'Churuli' is a
Malayalam language movie directed and co-produced by
W.P.(C). No. 28288 of 2021
renowned director Lijo Jose Pellisseri and written by S.Harish.
The movie was released on the OTT Platform in SonyLIV on
19.11.2021. According to the petitioner, even though the movie
'Churuli' is capable of invoking a sense of curiosity and mystery
in the minds of the audience, there is an overdose of foul
language used in the movie. It is pleaded that the movie
contains obscene and filthy languages which are opposed to
public morality and tranquility. According to the petitioner,
every character in the movie uses at least a single offensive
word in every dialogue they deliver. The filthy languages are
used lavishly and without any curtain. It is the case of the
petitioner that the words and language used in the film are not
one that can be used publicly and openly. It is the case of the
petitioner that, a person of common parlance will not use such
languages even privately at home. According to the petitioner,
the filmmaker had used such language deliberately with the
intention to get more attention to the movie. Apart from using
W.P.(C). No. 28288 of 2021
filthy words, the petitioner submitted that there are a lot of
usages which is totally against the morality of ladies and
objectionable to all ladies' common conduct. The words used in
the movie outrages the modesty of ladies and children and a
person who is watching this movie will feel irritated and
disgusted, the petitioner submits. It is pleaded that since a
movie which is supposed to be a form of art, it influences
common people of the society and it is common among people
to imitate the dialogues of the Malayalam movies and if this
similar situation happens with the movie ‘Churuli’, it will affect
the public morality and tranquility. It is contended that the
censor board has violated the rules and regulations by giving
permission to release this movie. According to the petitioner,
releasing a movie of this kind on a public platform will attract
the offences under the Indian Penal Code. According to the
petitioner, during the pandemic season, the children and the
teenagers are staying at home as their schools are shut down and
W.P.(C). No. 28288 of 2021
they are more prone to this OTT platform and this uncensored
content. The parents seem it very difficult to monitor the
children all the time, especially teenagers, who cannot be kept
away from the phone or any other like gadgets as these devices
are necessary for schools and colleges works. According to the
petitioner, in January 2019 eight video streaming platforms had
signed a self-regulatory code that stated a set of guiding
principles for the contents which can be displayed online. There
were five terms and conditions which had to be mandatorily
followed and the same is extracted in the grounds of the writ
petition and the same is extracted hereunder also:
a) No such content shall be added on these platforms
which would cause any disrespect to the national
emblem or national flag.
b) Display of content which can hurt religious
sentiments could not be streamed.
c) Visuals promoting child pornography to be strictly
W.P.(C). No. 28288 of 2021
prohibited.
d) Content which is banned by the law or order of the
country could not be streamed.
e) Terrorism of any kind cannot be promoted.
It is the case of the petitioner that there is violation of the above
terms and conditions also. Hence, this writ petition.
3.The 1st respondent in this writ petition is the Central
Board of Film Certification (for short 'CBFC') and a statement is
filed by the Assistant Solicitor General of India on behalf of the
1st respondent. In the statement, it is stated that an application of
the Malayalam feature film titled "Churuli" was received in the
regional office, Central Board of Film Certification,
Thiruvananthapuram on 23.10.2021 along with all other
documents. After scrutiny of the application, the film was
screened on 29.10.2021 before the Examining Committee with
Regional Officer, CBFC, Thiruvananthapuram as Examining
W.P.(C). No. 28288 of 2021
Officer, and four advisory committee members, which included
a total of three women including the Examining Officer. It is
stated that on examination, the Examining Committee
unanimously recommended Adult Certificate ('A') to the film
subject to certain excisions and modifications. This was
conveyed to the applicant at the time of the hearing, which was
held on the same day after screening. It is submitted that the
producer of the film submitted the excisions and modifications
suggested by the CBFC at 12.11.2021 and after verification by
the CBFC on 18.11.2021 the film was given 'Adult Certificate'
with No.DIL/3/6/2021-THI on 18.11.2021. It is specifically
stated in the writ petition that the Malayalam feature film
'Churuli' which is being exhibited through OTT platform by the
SonyLIV is not the certified version of the film. It is submitted
that the Regional Officer, CBFC, Thiruvananthapuram, by an
official statement dated 22.11.2021 had informed the general
public that the Malayalam feature film 'Churuli' which is being
W.P.(C). No. 28288 of 2021
exhibited through OTT platform SonyLiv is not the certified
version of the film. It is also stated that the Central Board of
Film Certification has no role with regard to the films in the
OTT platform. It is submitted that the contents on the internet
cannot be governed by the Cinematograph Act, 1952.
4.The 2nd respondent filed a counter affidavit in the writ
petition. The 2nd respondent submitted that the Cinematograph
Act, 1952 has no application in the OTT Platform. The
exhibition of content on the OTT platform, which is the subject
matter of the present petition, is governed by a separate set of
regulations, i.e., the Information Technology Act, 2000 r/w
Information Technology (Intermediary Guidelines and Digital
Media Ethics Code), Rules 2021 (for short 'the Rules, 2021').
According to the 2nd respondent, the Rules 2021 impose
reasonable restrictions on the exercise of their right of freedom
of speech and expression. It is submitted that the transmission
W.P.(C). No. 28288 of 2021
or streaming of films through the medium of the internet will not
come within the purview of clause (c) of Section 2 of the
Cinematograph Act, 1952. The OTT platforms are not public
platforms like TV channels or cinema theaters, where content is
broadcast simultaneously to all viewers. According to the 2nd
respondent, the contents displayed on the 2nd respondent's OTT
platform are classified in accordance with the provisions of the
Rules, 2021, depending on the nature and theme of the movie.
Any person intending to watch a film or a serial on the OTT
platform as a subscriber has to first take a subscription for which
the person has to be above 18 years of age. Part III of the Rules,
2021 sets about the code of ethics and procedure and safeguards
in relation to digital media and applies, inter alia, to publishers
of online curated content. The 2nd respondent submits that they
will fall within the definition of “publisher of online curated
content” in Rule 2(1)(u) of the Rules, 2021. According to the 2nd
respondent, the film Churuli is classified, which is restricted to
W.P.(C). No. 28288 of 2021
viewing by Adults and hence, given 'A rating. This rating,
according to the 2nd respondent has been given, on the basis of
the language used and violence depicted in the film. A true copy
of the screenshot depicting the said rating and classification is
produced as Ext.R2(a) along with the counter. It is also
contended by the 2nd respondent that the present petition is
premature as the petitioner has failed to exercise the alternative
remedy prescribed by the IT Rules. According to the 2nd
respondent, any person, who is aggrieved by the contents being
made available on the respondent's platform has the right to
approach the grievance cell and the platform has the obligation
to provide a grievance redressal officer. The details of the
grievance redressal officer appointed by the second respondent
are also mentioned in the counter affidavit. According to the 2nd
respondent, while the use of language in the film is strong, the
respondent has adhered to the guidance provided in the
Appendix to the IT Rules. With this guidance in mind, it is
W.P.(C). No. 28288 of 2021
submitted that the highest level of classification that can be
given to the used strong language is 'A' rating which means that
the contents are restricted to be viewed by adults only. Hence, it
is contended that the 2nd respondent has discharged the
obligation imposed as per Rules, 2021. According to the 2nd
respondent, the language used in the film is in the context of the
movie's underlying theme and storyline. It is stated that all the
dialogues in the movie are contextual and used in a particular
context of the storyline. It is the specific case of the 2nd
respondent that the 2nd respondent has not violated any of the
provisions of Rules, 2021, and the petitioner is not entitled to
any reliefs in this writ petition.
5. A statement is filed on behalf of the additional 7th
respondent as directed by this Court on 07.01.2022 in which the
report submitted by the Special Team constituted by the State
Police Chief, Kerala, as per the directions of this Court is also
W.P.(C). No. 28288 of 2021
produced as Ext.R7(b).
The Interim Order and the consequential actions from the
respondents.
6.When the above writ petition came up for admission,
this Court admitted the writ petition and issued notice to the
respondents. Thereafter, when the matter came up for
consideration on 07.01.2022, this Court passed the following
order:
“Churuli” is a Malayalam movie directed by the 3rd
respondent and co-produced by the 4th respondent.
The 4th respondent is also acting in this film.
Respondents 5 and 6 are the other actors. The prayer
in this writ petition is to remove the film from the
Over The Top (OTT) platform.
2. The story of this film is like this:
"Churuli" is an imaginary village of the filmmaker
situated in a forest area. The inmates of "Churuli"
W.P.(C). No. 28288 of 2021
have no connection with the outside world and all of
them are absconded criminals. The language used by
the inmates are colloquial containing obscene and
filthy language. Two cops reached Churuli to
apprehend a born criminal. The cops reached Churuli
in disguise and tried to mingle with the villagers to
find out the criminal they are searching. Cops also
used the same obscene and filthy language to find out
the wanted criminal. At last they apprehend the
criminal. This is the sum and substance of the
admitted story of the film "Churuli".
3. According to the petitioner, the language used by
the characters in this film are obscene and filthy and
hence, opposed to public order, decency and
morality. It is also contended that the releasing of
these types of movies in OTT platform will attract
criminal offences and is also a violation of statutory
provisions of law in this field.
4. A cinema is a creation of a film maker. Artistic
freedom generally means a freedom to imagine,
create and distribute cultural expressions. Article
W.P.(C). No. 28288 of 2021
19(1)(a) of the Constitution of India envisages a
fundamental right to freedom of speech and
expression to all citizens, but of course with an
exception mentioned in Article 19(2) of the
Constitution. Article 19(2) of the Constitution of
India is extracted hereunder:
“Nothing in sub clause (a) of clause (1)
shall affect the operation of any
existing law, or prevent the State from
making any law, in so far as such law
imposes reasonable restrictions on the
exercise of the right conferred by the
said sub clause in the interests of the
sovereignty and integrity of India, the
security of the State, friendly relations
with foreign States, public order,
decency or morality or in relation to
contempt of court, defamation or
incitement to an offence.”
5. The film “Churuli” is exhibiting in OTT platform.
Those who want to watch it, they can pay and watch
W.P.(C). No. 28288 of 2021
it. There is no compelled viewing of this movie. The
OTT platform cannot be treated as captive audience
who are forced to watch the movie.
6. According to film makers, the inmates of
“Churuli” are using a colloquial language which
contains filthy and obscene language. This Court,
invoking the powers under Article 226 of the
Constitution of India, cannot dictate the film maker
to use only Valluvanadan slang Malayalam or
Kannur slang Malayalam or Trivandrum slang
Malayalam by the characters in the movie. This
Court can only verify whether the exhibition of
“Churuli” film violates any existing law enacted to
ensure public order, decency or morality. While
deciding the same, the artistic freedom of a film
maker should be in mind. Before deciding this issue,
it will be beneficial to get the opinion of State Police
Department. Therefore the following interim orders
are passed:
1. The State Police Chief, Government of Kerala, is
suo motu impleaded as additional 7th respondent.
W.P.(C). No. 28288 of 2021
Registry will carry out necessary amendment in the
cause title. The Government Pleader takes notice for
the additional 7th respondent.
2. The State Police Chief will constitute a team to
watch the movie “Churuli” which is available in
OTT platform. The team should be constituted within
three days from the date of receipt of this order.
3. The team should watch the film and verify
whether there is any statutory violation or any
criminal offence is made out. The team, after
watching the film, will prepare a report, and the 7th
respondent, based on the same, will file a statement
within two weeks from the date of constituting the
team mentioned above. The report of the team also
should be produced before this Court. The
respondents are free to file counter affidavit in the
meanwhile. Issue a copy of this order to the
Government Pleader today itself.
Post along with the counter affidavit/statement, if
any, on 31.01.2022.”
W.P.(C). No. 28288 of 2021
7. Based on the above direction, the State Police Chief
constituted a special team headed by the Additional Director
General of Police, in which four other officers are also included.
The team after watching the movie submitted a report which is
produced as Annexure.R7(b). The relevant portion of the report
is extracted hereunder:
“The Committee conducted sittings and Committee
members watched the movie on the OTT Platform on
SONYLIV . The Committee reports as follows:
1) The plot of the movie "Churuli" is life of a group
of Fugitives from Law residing in deep forests which
is highly inaccessible to the outside world. The
inmates of film "Churuli" has little connection with
outside world. The Inmates of the imaginary world
are rough and tough in character who are braving the
odds of nature and are in constant dread of
apprehension by Law. Their living conditions are
meagre and life is an everyday struggle for existence
for them. They face danger from wild life and other
W.P.(C). No. 28288 of 2021
perils of forest life. It is a daily struggle for existence
for the characters in the movie. The centre of action
in the movie is an Illegal Arrack brewing centre deep
inside the forest.
2) The characters in the movie due to their living
conditions and circumstances are forced to speak in
rough and tough language replete with expletives and
cuss words in their day to day interactions.
3) For the plot and circumstance of the Movie,
"Churuli" to be believable to the audience the
characters in the movie has to speak in such a
language which reflects their circumstances and
living conditions. In order to make the Movie
believable and for the audience to fully appreciate
the life and culture of the characters such language is
unavoidable. The language spoken by the characters
In the movie is intrinsic to the roles played. Persons
living in such living conditions cannot be expected to
speak in a decent language used by people residing in
a normal area.
4) Cinema is a work of art and film maker is an
W.P.(C). No. 28288 of 2021
Artist. Article (19) of the Constitution bestows
Artistic Freedom to the Artists. Law cannot direct an
Artist to use his artistic talents in a particular manner
or direct the characters to use a particular language in
a particular manner. Artists have full artistic freedom
provided that the existing Laws of the Country are
not violated.
5) Given the above, the question to be answered is
whether the film "Churuli" violates any Statutory
Offence or any Criminal Offence.
a) Section 294 of IPC is the Penal Section
dealing with "Obscenity". Section 294 clearly
says an act become punishable under
"Obscenity" only if it is committed in a
PUBLIC PLACE. Subsequent Interpretations
of the Hon'ble Supreme Court (Pawan Kumar
V State of Haryana (1996) 4 SCC 17: 1997
SCC (Crl) 583) also affirms this fact.
6) The movie "Churuli" is shown on the OTT
Platform. OTT is not a Public Place. A Place
becomes Public when a person Irrespective of
W.P.(C). No. 28288 of 2021
age/gender or Socio-economic status has free entry
and exit without any barrier or restrictions. Going by
this definition OTT (Over The Top) Platform is not a
Public Place. OTT cannot be accessed by anyone.
Entry to an OTT Platform is not free. To have an
access to an OTT Platform, a person
a) has to possess a Smart Device (Smart TV ,
Smart Phone with internet access).
b) The particular App has to be downloaded.
c) Monthly subscriptions has to be paid in
advance to download the Application.
Hence, offence under Section 294 IPC
is not made out in the film "Churuli".
7) The alleged presence of obscene matter In the
language used by the characters of the film 'Churuli'
is outweighed by the preponderance of artistic value
and social purpose of the said film. It will be relevant
to quote from the following passage in the judgment
of the Hon'ble Supreme Court in a case where the
Apex Court has upheld the freedom of Speech and
W.P.(C). No. 28288 of 2021
Expression under Article 19(1) through
cinematograph and refused the restrictions on the
exhibition of the film on grounds of obscenity. The
Quote is as follows:
"We find that the judgment under appeal does not
take due note of the theme of the film and the fact
that it condemns rape and the degradation of and
violence upon women by showing their effect upon a
village child, transforming her to a cruel dacoit
obsessed with wreaking vengeance upon a society
that has caused her so much psychological and
physical hurt, and that the scenes of nudity and rape
and the use of expletives, so far as the Tribunal had
permitted them, were in aid of the theme and
intended not to arouse prurient or lascivious thoughts
but revulsion against the perpetrators and pity for the
victim"
(Bobby Art International Vs Om Pal Singh Hoon
[MANU/SC/0466/1996] popularly known as the
Bandit Queen Case ).
8) Through the above judgment it is clear that the
W.P.(C). No. 28288 of 2021
Hon'ble Supreme Court has ruled that a film cannot
be restricted simply because the content is obscene,
indecent or immoral. The abusive language or nudity
in the movie has to further the cause regarding the
depiction of the reality of the story of the Movie
concerned.
10) The film "Churuli" released in Over the Top
(OTT) platform, through SonyLIV , a social media
intermediary, complies with the Guidelines specified
under Rules 3 and 4 of the Information Technology
(Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021, issued by the Central
Government under the Information Technology
Act, 2000.
11) SonyLIV is displaying the Content Classification
of the film "Churull" as "A" (18+) (restricted to
adults) in accordance with the Code of Ethics of the
above mentioned Rules. As per the Rules, cited
above content may be classified on the basis of of.-i)
Themes and messages; ii) Violence; iii) Nudity; iv)
Sex; v) Language; vi) Drug and substance abuse; and
W.P.(C). No. 28288 of 2021
(vii) Horror. As regards display of classification,
"Churuli displays prominently the warning - Strong
Language, Violence, Threat Visuals is prominently
displayed as directed in Central Rules. This content
classification Rules are seen complied with by
SonyLIV , with respect to movie "Churuli".
12) Section 67 of the IT Act 2000 provides
punishment for publishing or transmitting or
transmitting obscene material in electronic form. The
said provision is not attracted in the case as its
content is already certified as 'A' (Restricted to
Adults) under the Central Government Rules. The
Petitioner in the Writ Petition is free to invoke the
Grievance Redressal Mechanism under Part III of the
said Rules if he/she is dissatisfied with the 'A'
(restricted to adults) certification of the film.
This Grievance Redressal Mechanism is enumerated
in detail in Part III of the Rules.
13) The movie "Churuli" does not contain any
dialogue or action or suggestion instigating Violence
against State or any matter adversely affecting
W.P.(C). No. 28288 of 2021
Sovereignty, Integrity of the State, Friendly relations
with other Nations or any matter provoking or
promoting hatred among communities/religions or
affecting Communal harmony.
In view of the above discussion, the Committee has
come to the conclusion that the film "Churuli" has
not made any statutory violation or any criminal
offences. It is in full compliance with Rules and
Laws in this regard. The depiction of characters in
the movie, their language, dialogues etc falls under
the freedom of artistic expression which is the
exclusive realm of the creative freedom of artists,
and Police has no objections to the Movie, its
characters or their language used in the Movie.”
Analysis of the facts and resolution
8.Heard Advocate C A Anoop for the petitioner, ASGI
for the 1st respondent, Senior Counsel Grashious Kuriakose
instructed by Shaji Thomas For the 2nd respondent, Advocate
Sangeetha Lakshmana for the 5th respondent, and the
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Government Pleader for the 7th respondent.
9.The main grievance of the petitioner is that 'Churuli',
which is a Malayalam feature film contains obscene and filthy
language which opposes public morality and tranquility. In the
pleading in the writ petition also, it is only stated that the film
contains obscene and filthy languages, which opposes public
morality and tranquility. According to the petitioner, a person of
common parlance will not use such languages even privately at
home. It is also stated that the release of a movie of this kind on
a public platform will attract the offences under the Indian Penal
Code. According to the petitioner, if this movie is allowed to
watch by children and teenagers, there is a chance to imitate the
language in the film by them. Except stating that the film
contains obscene and filthy languages, there are no other
averments in the writ petition regarding the rules based on
which the OTT platform is functioning and whether there is any
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mechanism to check about the allegations raised in the writ
petition. Simply stating in the writ petition that a movie contains
an overdose of foul, filthy, and obscene language, this Court
cannot direct the authority to remove the movie from the OTT
platform. Moreover, the prayer in the writ petition is to issue a
writ of mandamus directing the respondents to remove the
movie ‘Churuli’ from the OTT platform. The prayer is so vague.
The 1st respondent is the Central Board of Film Certification.
Admittedly, the 1st respondent has no role in uploading films to
OTT platform. Respondent No.3 is the director of the film.
Respondents 4 to 6 are actors in the film. It is also stated that the
fourth respondent is a Co-producer. The petitioner prays to issue
directions to the Central Board of Film Certification and to the
Director and other artists of the film to remove the film from the
OTT platform. There is indeed a prayer to issue direction to the
2nd respondent also. The relevant provision which is applicable
to OTT platform movies is also not mentioned in the writ
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petition. It is only mentioned that the exhibition of the movie
amount to the commission of criminal offences under the Indian
Penal Code. When a writ petition is filed with a serious
allegation that a feature film violates certain provisions of the
Indian Penal Code, at least the prayers in the writ petition should
be clear and specific. An actor or the director or the producer of
a film cannot remove the movie from the OTT platform.
Therefore, according to me, the writ petition lacks sufficient
pleadings and the prayers in the writ petition itself are vague.
10.As far as the exhibition of films in the OTT platform
is concerned, the Ministry of Electronics and Information
Technology framed the Rules, 2021 in the exercise of the
powers conferred by Section 87 of the Information Technology
Act, 2000. It was framed in supersession of the Information
Technology (Intermediary Guidelines) Rules, 2011. Part II of
the Rules 2021 deals with due diligence by intermediaries and
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the grievance redressal mechanism. Part III of the Rules, 2021
deals with the Code of Ethics and Procedure and Safeguards in
relation to digital media. This part applies to the publishers of
the news and current affairs content and publishers of online
curated content. The publisher is defined in Rule 2 (s) of Rules,
2021, which says that publisher means a publisher of news and
current affairs content or the publisher of online curated content.
Online curated content is defined in Rule 2(q) as any curated
catalogue of audio visual-content, other than news and current
affairs content, which is owned by, licensed to, or contracted to
be transmitted by a publisher of online curated content and made
available on demand, including but not limited through
subscription, over the internet or computer network, and
includes films, audio visual programmes, documentaries,
television programmes, serials, podcasts and other such
contents. Rule 9 of Part III of Rules, 2021 says about the
observance and adherence of the code. Rule 9(3) says that for
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ensuring observance and adherence to the code of ethics by
publishers operating in the territory of India and for addressing
the grievance made in relation to publisher under Part III, there
shall be a three tire structure as Level I-self regulation by
publishers, Level II-self regulation by self-regulating bodies of
the publishers and Level III- oversight mechanism by the
Central Government. Chapter I in Part III deals with the
grievance redressal mechanism. Chapter II deals with self-
regulating mechanism – Level I. Chapter III deals with self-
regulating mechanism – Level II. Chapter IV deals with the
oversight mechanism – Level III.
11.Therefore, it is clear from the Rules, 2021 that if the
petitioner has got any grievance against the movie Churulim
there is a grievance redressal mechanism as per Rules, 2021.
Admittedly, the petitioner has not availed of such alternative
remedies. Therefore, prima facie, according to me, the writ
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petition is not maintainable, because the petitioner has not
availed the alternative remedy, that is available as per Rules,
12.Moreover, I considered the grievance raised by the
petitioner in the writ petition. According to the petitioner, the
Churuli movie contains an overdose of foul, obscene, and filthy
languages which are opposed to public morality and tranquility.
Article 19 (1) (a) of the Constitution of India envisages a
fundamental right to freedom of speech and expression. The
only restriction for the freedom of speech and expression is
mentioned in Article 19(2) of the Constitution. As per Article 19
(2) nothing in sub-clause (a) of Clause (1) shall affect the
operation of any existing law or prevent the State from making
any law in so far as such law imposes reasonable restrictions on
the exercises of the right conferred by the said sub-clause in the
interest of the sovereignty and integrity of India, the security of
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the State, friendly relations with foreign State, public order,
decency or morality or in relation to contempt of court,
defamation or incitement to an offence. The only point to be
decided is whether there is anything to restrict the freedom
available to a film maker as per Article 19(1) of the Constitution
of India.
13.A film is a creation of an artist. Artistic freedom
generally means a freedom to imagine, create and distribute
cultural expressions. Article 19(1)(a) of the Constitution of India
envisages a fundamental right to freedom of speech and
expression to all citizens, but of course with an exception
mentioned in Article 19(2) of the Constitution. It is a settled
position that artistic freedom is covered by Article 19(1) (a) of
the Constitution. The writer and the director of a film are the
masters of that film. Whether the exhibition of “Churuli” film
violates any existing law enacted to ensure public order, decency
W.P.(C). No. 28288 of 2021
or morality is the question to be decided. This Court while
considering this writ petition decided to get the opinion of the
State Police Department regarding the alleged violation of the
law enacted to ensure public order, decency, and morality. A
special team constituted by the State Police Chief, (which
include three women members) after watching the movie
reported before this Court that there is absolutely no statutory
violation of any law and it is also stated in the report, which is
produced as Annexure R2(b) that no criminal offence is made
out as alleged in the writ petition. Therefore, even according to
the State Police Department, there is no violation of any existing
statutory rule in the film, and no criminal offence is made out in
exhibiting the above film in the OTT platform.
14.A film is to be assessed after watching the film in
full. Without watching a movie in full, it is not proper to
comment based on some isolated dialogues in the film. Whether
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those dialogues are necessary for the facts and circumstances of
the story in the movie is a matter to be decided by the filmmaker
and this Court also can look into the same to find out whether
the filmmaker exceeds his right of freedom of speech and
expression. In State of Bihar v. Smt.Shailabala Devi [AIR
1952 SC 329], a constitutional bench of the Apex Court
considered the contents of a pamphlet to find out the
objectionable matters in it. The apex court observed that the
writing in the pamphlet has to be considered as a whole. The
court observed that, in a fair, free, and liberal spirit, not dwelling
too much upon isolated passages or a strong word here and
there, an endeavour should be made to gather the general effect
which the whole composition would have on the mind of the
public. K.A. Abbas v. Union of India and another [AIR 1971
SC 481], the Apex Court observed that treatment of motion
pictures must be different from that of other forms of art and
expression. The Apex Court observed that motion pictures can
W.P.(C). No. 28288 of 2021
stir up emotions more deeply than any other product of art. Its
effect particularly on children and adolescents is very great since
their immaturity makes them more willingly suspend their
disbelief than mature men and women. Therefore, the Apex
Court observed that the classification of films into two
categories of 'U' films and 'A' films is a reasonable
classification. Moreover, in K.Abbas case ( supra), the Apex
Court considered artistic freedom in detail. It will be better to
extract paragraphs 50, 51 and 52 of the above judgment:
“50. But what appears to us to be the real
flaw in the scheme of the directions is a total
absence of any direction which would tend to
preserve art and promote it. The artistic
appeal or presentation of an episode robs it
of its vulgarity and harm and this appears to
be completely forgotten. Artistic as well as
inartistic presentations are treated alike and
also what may be socially good and useful
and what may not. In Ranjit D. Udeshis case,
(1965) 1 SCR 65 = (AIR 1965 SC 88# l), this
Court laid down certain principles on which
the obscenity of a book was to be considered
with a view to deciding whether the book
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should be allowed to circulate or withdrawn.
Those principles apply mutatis mutandis to
films and also other areas besides obscenity.
The Khosla Committee also adopted them
and recommended them for the guidance of
the film censors. We may reproduce them
here as summarized by the Khosla
Committee:
"The Supreme Court laid down the following
principles which must be carefully studied
and applied by our censors when they have
to deal with a film said to be objectionable
on the ground of indecency or immorality:
(1) Treating with sex and nudity in art
and literature cannot be regarded as evidence
of obscenity without something more.
(2) Comparison of one book with
another to find the extent of permissible
action is not necessary.
(3) The delicate task of deciding what
is artistic and what is obscene has to be
performed by Courts and in the last resort, by
the Supreme Court and so, oral evidence of
men of literature or others on the question of
obscenity is not relevant.
(4) An overall view of the obscene
matter in the setting of the whole work
would of course be necessary but the
obscene matter must be considered by itself
and separately to find out whether it is so
gross and its obscenity is so decided that it is
likely to deprave or corrupt those whose
minds are open to influence of this sort and
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into whose hands the book is likely to fall.
(5) The interests of contemporary
society and particularly the influence of the
book etc., on it must not be overlooked.
(6) Where obscenity and art are mixed,
art must be so preponderating as to throw
obscenity into shadow or render the
obscenity so trivial and insignificant that it
can have no effect and can be overlooked.
(7) Treating with sex in a manner
offensive to public decency or morality
which are the words of our Fundamental
Law judged by our national standards and
considered likely to pander to lascivious
prurient or sexually precocious minds must
determine the result.
(8) When there is propagation of ideas,
opinions and information's or public interest
or profits, the interests of society may tilt the
scales in favour of free speech and
expression. Thus books on medical science
with intimate illustrations and, photographs
though in a sense immodest, are not to be
considered obscene, but the same
illustrations and photographs collected in a
book from without the medical text would
certainly be considered to be obscene.
(9) Obscenity without a preponderating
social purpose or profit cannot have the
constitutional protection of free speech or
expression. Obscenity is treating with sex in
a manner appealing to the carnal side of
human nature or having that tendency. Such
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a treating with sex is offensive to modesty
and decency.
(10) Knowledge is not a part of the
guilty act. The offenders knowledge of the
obscenity of the book is not required under
the law and it is a case of strict liability".
Application of these principles does not seek
to whittle down the fundamental right of free
speech and expression beyond the limits
permissible under our Constitution for
however high or cherished that right it does
not go to pervert or harm society and the line
has to be drawn somewhere As was observed
in the same case:
"...... The test which we evolve must
obviously be of a general character but it
must admit of a just application from case to
case by indicating a line of demarcation not
necessarily sharp but sufficiently distinct to
distinguish between that which is obscene
and that which is not".-------"
A similar line has to be drawn in the case of
every topic in films considered unsuitable for
public exhibition or specially to children.
51. We may now illustrate our meaning how
even the items mentioned in the directions
may figure in films subject either to their
artistic merit or their social value over-
weighing their offending character. The task
of the censor is extremely delicate and his
duties cannot be the subject of an exhaustive
W.P.(C). No. 28288 of 2021
set of commands established by prior
ratiocination. But direction is necessary to
him so that he does not sweep within the
terms of the directions vast areas of thought,
speech and expression of artistic quality and
social purpose and interest. Our standards
must be so framed that we are not reduced to
a level where the protection of the least
capable and the most depraved amongst us
determines what the morally healthy cannot
view or read. The standards that we set for
our censors must make a substantial
allowance in favour of freedom thus leaving
a vast area for creative art to interpret life
and society with some of its foibles along
with what is good. We must not look upon
such human relationships as banned in toto
and for ever from human thought and must
give scope for talent to put them before
society. The requirements of art and literature
include within themselves a comprehensive
view of social life and not only in its ideal
form and the line is to be drawn where the
average man or moral man begins to feel
embarrassed or disgusted at a naked
portrayal of life without the redeeming touch
of art or genius or social value. If the
depraved begins to see in these things more
than what an average person would in much
the same way, as it is wrongly said, a
Frenchman sees a womans legs in
everything, it cannot be helped. In our
scheme of things ideas having redeeming
W.P.(C). No. 28288 of 2021
social or artistic value must also have
importance and protection for their growth.
Sex and obscenity are not always
synonymous and it is wrong to classify sex
as essentially obscene or even indecent or
immoral. It should be our concern, however,
to prevent the use of sex designed to play a
commercial role by making its own appeal.
This draws in the censors scissors. Thus
audiences in India can be expected to view
with equanimity the story of Qedipus son of
Latius who committed patricide and incest
`with his mother. When the seer Tiresias
exposed him, his sister Jocasta committed
suicide by hanging herself and Oedipus put
out his own eyes. No one after viewing these
episodes would think that patricide or incest
with ones own mother is permissible or
suicide in such circumstances or tearing out
ones own eyes is a natural consequence. And
yet if one goes by the letter of the directions
the film cannot be shown. Similarly scenes
depicting leprosy as a theme in a story or in a
documentary are not necessarily outside the
protection. If that were so Veerier Elwyns
Phulmat of the Hills or the same episode in
Henrysons Testament of Cressaid (from
where Verrier Elwyn borrowed the idea!
would never see the light of the day. Again
carnage and bloodshed may have historical
value - and the depiction of such scenes as
the sack of Delhi by Nardirshah may be
permissible, it handled delicately and as part
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of an artistic portrayal of the confrontation
with Mohammad Shah Rangila. If Nadir
Shah made golgothas of skulls, must we
leave them out of the story because people
must be made to view a historical theme
without true history? Rape in all its
nakedness may be objectionable but V oltaires
Candide would be meaningless without
Cunegondes episode with the soldier and the
story of Lucrece could never be depicted on
the screen.
52. Therefore it is not the elements of rape
leprosy, sexual immorality which should
attract the censors scissors but how the
theme is handled by, the producer. It must
however, be remembered that the
cinematograph is a powerful medium and its
appeal is different. The horrors of war as
depicted in the famous etchings of Goya do
not horrify one so much as the same scenes
rendered in colour and with sound and
movement would do. We may view a
documentary on the erotic tableaux from our
ancient temples with equanimity or read the
Kamasutra but a documentary from them as
a practical sexual guide would be abhorrent.”
(Underlines supplied)
15.In Ranjit D Udeshi v. State of Maharashtra [AIR
1965 SC 881] , the Apex Court considered artistic freedom in
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connection to a book 'Lady Chatterley's Lover'. It will be better
to extract paragraphs 23 and 29 of the above judgment.
23. It now remains to consider the book
Lady Chatterley's Lover. The story is simple.
A baronet, wounded in the war is paralysed
from the waist downwards. He married
Constance (Lady Chatterley) a little before
he joined up and they had a very brief
honeymoon. Sensing the sexual frustration
of his wife and their failure to have an heir
he leaves his wife free to associate with
other men. She first experiences with one
Michaelis and later with a game-keeper
Mellors in charge of the grounds. The first
over was selfish sexually, the other was
something of an artist. He explains to
Constance the entire mystery of eroticism
and they put it into practice. These are over a
dozen descriptions of their sexual
intimacies. The game-keeper’s speech and
vocabulary were not genteel. He knew no
Latin (which could be used to appease the
censors) and the human 'pudenda' and other
erogenous parts are freely discussed by him
and also named by the author in the
descriptions. The sexual congress each time
is described with great candidness and in
prose as tense as it is intense and of which
Lawrence was always a consummate master.
The rest of the story is a mundane one.
There is some criticism of the modern
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machine civilization and its enervating
effects and the production of sexually
inefficient men and women and this,
according to Lawrence, is the cause of
maladjustment of sexes and their
unhappiness.
29.We have dealt with the question at
some length because this is the first case
before this Court invoking the constitutional
guarantee against the operation of the law
regarding obscenity and the book is one
from an author of repute and the centre of
many controversies. The book is probably an
unfolding of his philosophy of life and of the
urges of the Unconscious but these are
unfolded in his other books also and have
been fully set out in his Psychoanalysis and
the- Unconscious and finally in the Fantasia
of the Unconscious. There is no loss to
society if there was a message in the book.
The divagations with sex are not a legitimate
embroidery but they are the only attractions
to the common man. When everything said
in its favour we find that in treating with sex
the impugned portions viewed separately
and also in the setting of the whole book
pass the permissible limits judged of from
our community standards and as there is no
social gain to us which can be said to
preponderate, we must hold the book to
satisfy the test we have indicated above.
(Underlines supplied)
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16.In Raj Kapoo r and others v . State ( Delhi
Administration) and others [AIR 1980 SC 258] , the Apex
Court observed that social scientists and spiritual scientists will
broadly agree that man lives not alone by mystic squints, ascetic
chants, and austere abnegation but by luscious love of Beauty,
sensuous joy of companionship and moderate non-denial of
normal demands of the flush. It will be better to extract
paragraphs 15 to 17 of the above judgment.
“15.I am not persuaded that once a
certificate under the Cinematograph Act is
issued the Penal Code, pro tanto, will hang
limp. The Court will examine the film and
judge whether its public display, in the given
time and clime, so breaches public morals or
depraves basic decency as to offend the
penal provisions. Statutory expressions are
not petrified by time but must be up-dated
by changing ethos even as popular ethics are
not absolutes but abide and evolve as
community consciousness enlivens and
escalates. Surely, the satwa of society must
rise progressively if mankind is to move
towards its timeless destiny and this can be
guaranteed only if the ultimate value-vision
is rooted in the unchanging basics, Truth-
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Goodness-Beauty, Satyam, Shivam,
Sundaram. The relation between Reality and
Relativity must haunt the court's evaluation
of obscenity, expressed in society's
pervasive humanity, not law's penal
prescriptions. Social scientists and spiritual
scientists will broadly agree that man lives
not alone by mystic, squints, ascetic chants
and austere abnegation but by luscious love
of Beauty, sensuous joy of companionship
and moderate non-denial of normal demands
of the flesh. Extremes and excesses
boomerang although some crazy artists and
film directors do practise Oscar Wilde's
observation: "Moderation is a fatal thing.
Nothing succeeds like excess".
16.All these add up to one conclusion that
finality and infallibility are beyond courts
which must interpret and administer the law
with pragmatic realism, rater than romantic
idealism or recluse extremism.
17.After all, Cohen's words, in Reason
and Law, are good counsel: "The law is not
a homeless, wandering ghost. It is a phase of
human life located in time and space."
(1) M.R. Cohen. Reason and Law 4(1950).”
17.In Samaresh Bose and another v. Amal Mitra and
W.P.(C). No. 28288 of 2021
another [AIR 1986 SC 967] , the Apex Court was considering
obscenity in books. It will be better to extract paragraph 34 of
the above judgment:
“34) We have read with great care. It is to be
remembered that Sarodiya Desh is a very
popular journal and is read by a large number
of Bengalies of both sexes and almost of all
ages all over India. This book is read by
teenagers, young boys, adolescents, grown-
up youngmen and elderly people. We are not
satisfied on reading the book that it could be
considered to be obscene. Reference to
kissing, description of the body and the
figures of the female characters in the book
and suggestions of acts of sex by themselves
may not have the effect of depraving,
debasing and encouraging the readers of any
age to lasciviousness and the novel on these
counts, may not be considered to be obscene.
It is true that slang and various
unconventional words have been used in the
book. Though there is no description of any
overt act of sex, there can be no doubt that
there are suggestions of sex acts and that a
great deal of emphasis on the aspect of sex in
the lives of persons in various spheres of
society and amongst various classes of
people, is to be found in the novel. Because
of the language used, the episodes in relation
to sex life narrated in the novel, appear
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vulgar and may create a feeling of disgust
and revulsion. The mere fact that the various
affairs and episodes with emphasis on sex
have been narrated in slang and vulgar
language may shock a reader who may feel
disgusted by the book does not resolve the
question of obscenity. It has to be
remembered that the author has chosen to
use such kind of words and language in
expressing the feelings, thoughts and actions
of Sukhen as men like Sukhen could indulge
in to make the whole thing realistic. It
appears that the vulgar and slang language
used have greatly influenced the decision of
the Chief Presidency Magistrate and also of
the learned Judge of the High Court. The
observations made by them and recorded
earlier go to indicate that in their thinking
there has been kind of confusion between
vulgarity and obscenity. A vulgar writing is
not necessarily obscene. Vulgarity arouses
a feeling of disgust and revulsion and also
boredom but does mot have the effect of
depraving, debasing and corrupting the
morals of any reader of the novel, whereas
obscenity has the tendency to deprave and
corrupt those whose minds are open to
such immoral influences. We may observe
that characters like Sukhen, Shikha, the
father and the brothers of Sukhen, the
business executives and others portrayed in
the book are not just figments of the author's
imagination. Such characters are often to be
W.P.(C). No. 28288 of 2021
seen in real life in the society. The author
who is a powerful writer has used his skill in
focusing the attention of the readers on such
characters in society and to describe the
situation more eloquently he has used
unconventional and slang words so that in
the light of the author's understanding, the
appropriate emphasis is there on the
problems. If we place ourselves in the
position of the author and judge the novel
from his point of view, we find that the
author intends to expose various evils and
ills pervading the society and to pose with
particular emphasis the problems which ail
and afflict the society in various spheres. He
has used his own technique, skill and choice
of words which may in his opinion, serve
properly the purpose of the novel. If we
place ourselves in the position of readers,
who are likely to read this book, and we must
not forget that in this class of readers there
will probably be readers of both sexes and of
all ages between teenagers and the aged, we
feel that the readers as a class will read the
book with a sense of shock, and disgust and
we do not think that any reader on reading
this book would become depraved, debased
and encouraged to lasciviousness. It is quite
possible that they come across such
characters and such situations in life and
have faced them or may have to face them in
life. On a very anxious consideration and
after carefully applying our judicial mind in
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making an objective assessment of the novel
we do not think that it can be said with
any assurance that the novel is obscene
merely because slang and unconventional
words have been used in the book in which
there have been emphasis on sex and
description of female bodies and there are
the narrations of feelings, thoughts and
actions in vulgar language. Some portions
of the book may appear to be vulgar and
readers of cultured and refined taste may feel
shocked and disgusted. Equally in some
portions, the words used and description
given may not appear to be in proper taste. In
some places there may have been an
exhibition of bad taste leaving it to the
readers of experience and maturity to draw
the necessary inference but certainly not
sufficient to bring home to the adolescents
any suggestion which is depraving or
lascivious. We have to bear in mind that the
author has written this novel which came to
be published in the Sarodiya Desh for all
classes of readers and it cannot be right to
insist that the standard should always be for
the writer to see that the adolescent may not
be brought into contact with sex. If a
reference to sex by itself in any novel is
considered to be obscene and not fit to be
read by adolescents, adolescents will not be
in a position to read any novel and will have
to read books which are purely religious. We
are, therefore, of the opinion that the Courts
W.P.(C). No. 28288 of 2021
below went wrong in considering this novel
to be obscene. We may observe that as on our
own appreciation of the novel, we are
inclined to take a view different from the
view taken by the Courts below, we have
taken the benefit of also considering the
evidence given in this case by two eminent
personalities in the literary field for proper
appreciation and assessment by us. It has
already been held by this Court in two earlier
decisions which we have already noted that
the question whether a particular book is
obscene or not, does not altogether depend
on oral evidence because it is duty of the
Court to ascertain whether the book offends
the provisions of S. 292 I.P.C. but it may be
necessary if it is at all required, to rely to a
certain extent on the evidence and views of
leading litterateurs on that aspect particularly
when the book is in a language with which
the court is not conversant. It is indeed a
matter of satisfaction for us that the views
expressed in course of their evidence by the
two eminent persons in the literary field are
in accord with the views taken by us.”
(Underlines and emphasis supplied).
18. The Apex Court observed that vulgar writing is not
necessarily obscene. Vulgarity arouses a feeling of disgust and
revulsion and also boredom but does not have the effect of
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depraving, debasing and corrupting the morals of any reader of a
novel.
19.In Odyssey Communications Pvt. Ltd. v.
Lokvidayan Sanghatana and others [AIR 1988 SC 1642] , the
Apex Court considered the exhibition of a serial 'Honi AnHoni',
and observed like this:
“7.It was not the case of the
petitioners in the Writ Petition that the
exhibition of serial 'Honi-Anhoni' was in
contravention of any specific law or
direction issued by the Government. They
had not alleged that the Doordarshan had
shown any undue favour to the appellant and
the sponsoring institutions resulting in any
financial loss to the public exchequer. The
objection to the exhibition of the film had,
however, been raised by them on the basis
that it was likely to spread false or blind
beliefs amongst the members of the public.
They had not asserted any right conferred on
them by any statute or acquired by them
under a contract which entitled them to
secure an order of temporary injunction
against which this appeal is filed. The
appellant had denied that the exhibition of
the serial was likely to affect prejudicially
the well-being of the people. The Union of
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India and the Doordarshan have pleaded that
the serial was being telecast after following
the prescribed procedure and taking
necessary precaution. In such a situation, the
High Court should not have immediately
proceeded to pass the interim order of
injunction. It was no doubt true that the 12th
episode was to be telecast on 14th April,
1988 and the 13th episode was to be telecast
on 21st April, 1988. If the petitioners in the
writ petition had felt, as they had alleged in
the course of the petition, that all the
episodes in the serial were offensive they
could have approached the High Court as
early as possible within the first two or three
weeks after the commencement of the
exhibition of the serial. But they waited till
the exhibition of the 11th episode of the
serial was over and filed the petition only in
the second week of April, 1988. They had
not produced any material apart from their
own statements to show that the exhibition
of the serial was prima facie prejudicial to
the community. The High Court overlooked
that the issue of an order of interim
injunction in this case would infringe a
fundamental right of the producer of the
serial. In the absence of any prima facie
evidence of grave prejudice that was likely
to be caused to the public generally by the
exhibition of the serial it was not just and
proper to issue an order of temporary
injunction. We are not satisfied that the
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exhibition of the serial in question was likely
to endanger public morality. In the
circumstances of the case the balance of
convenience lay in favour of the rejection of
the prayer for interim injunction. What we
have stated here is sufficient to dispose of
this appeal. The other questions of law
which may arise in a case of this nature will
have to be dealt with in an appropriate case.
We express no opinion on those questions in
this case. We are, however, of the opinion
that the High Court was in error in the
present case in issuing the interim order of
injunction against which this appeal is filed.
We, therefore, allow this appeal and set aside
the interim order of injunction passed by the
High Court on the 13th of April, 1988. There
is, however, no order as to costs.”
20.In Bobby Art International v. Om Pal Singh Hoon
and others [AIR 1996 SC 1846], the Apex Court considered a
film named 'Bandit queen'. The case was filed to quash the
certificate of the exhibition of the said film and restrain its
vision in India. The Apex Court after considering almost all the
judgments, till then, observed that the artistic expressions and
creative freedom are not to be unduly curbed, the film must be
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judged in its entirety from a point of view of its overall impact.
It must also be judged in the light of the period depicted and the
contemporary standards of the people to whom it relates. But it
must not deprive the morality of the audience. It will be
beneficial to extract paragraph 20 to 27 of the above judgment.
“20. The Guidelines aforementioned
have been carefully drawn. They required the
authorities concerned with film certification
to be responsive to the values and standards
of society and take note of social change.
They are required to ensure that "artistic
expression and creative freedom are not
unduly curbed." The film must be "judged in
its entirety from the point of view of its over-
all impact". It must also be judged in the
light of the period depicted and the
contemporary standards of the people to
whom it relates, but it must not deprave the
morality of the audience. Clause 2 requires
that human sensibilities are not offered by
vulgarity, obscenity or depravity, that scenes
degrading or denigrating women are not
presented and scenes of sexual violence
against women are avoided, but if such
scenes are germane to the theme, they be
reduced to a minimum and not particularised.
21. The guidelines are broad standards.
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They cannot be read as one would read a
statute. Within the breadth of the their
parameters the certification authorities have
discretion. The specific sub-clauses of
Clause (2) of the guidelines cannot
overweigh the sweep of clauses 1 and 3 and,
indeed, of sub clause (xi) of Clause (2).
Where the theme is of social relevance, it
must be allowed to prevail. Such a theme
does not offend human sensibilities nor extol
the degradation or denigration of women. It
is to this end that sub-clause (ix) of Clause 2
permits scenes of sexual violence against
women, reduced to a minimum and without
details, if relevant to the theme. What that
minimum and lack of details should be is left
to the good sense of the certification
authorities, to be determined in the light of
the relevance of the social theme of the film.
22. 'Bandit Queen' is the story of a
village child exposed from an early age to
the brutality and lust of man. Married off of a
man old enough to be her father she is beaten
and raped. The village boys make advances
which she repulses; but the village panchayat
finds her guilty of the enticement of a village
boy because he is of high caste and she has
to leave the village. She is arrested and, in
the police station, filthily abused. Those
stand bail for her do so to satisfy their lust.
She is kidnapped and raped. During an act of
brutality the rapist is shot dead and she finds
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an ally in her rescuer. With his assistance she
beats up her husband, violently. Her rescuer
is shot dead by one whose advance she has
spurned. She is gang-raped by the rescuer's
assailant and his accomplice and they
humiliate her in the sight of the village; a
hundred man stand in a circle around the
village well and watch the humiliation, her
being stripped naked and walked around the
circle and then made to draw water. And not
one of the villagers helps her. She burns with
anger, shame and the urge for vengeance.
She gets it, and kills many Thakurs too.
23. It is not a pretty story. There are no
syrupy songs or pirouetting round trees. It is
the serious and sad story of a woman turning:
a village born female child becoming a
dreaded dacoit. An innocent who turns into a
vicious criminal because lust and brutality
have affected her psyche so. The film levels
an accusing finger at members of society
who had tormented Phoolan Devi and driven
her to become a dreaded dacoit filled with
the desire to revenge.
24. It is in this light that the individual
scenes have to be viewed.
First, the scene where she is humiliated,
stripped naked, paraded, made to draw water
from the well, within the circle of a hundred
men. The exposure of her breasts and
genitals to those men is intended by those
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who strip her to demean her. The effect of so
doing upon her could hardly have been better
conveyed than by explicitly showing the
scene. The object of doing so was not to
titillate the cinemagoer's lust but to arouse in
him sympathy for the victim and disgust for
the perpetrators. The revulsion that the
Tribunal referred to was not at Phoolan
Devi's nudity but at the sadism and
heartlessness of those who had stripped her
naked to rob her of every shred of dignity.
Nakedness does not always arouse the baser
instinct. The reference by the Tribunal to the
film 'Schindler's List was apt. There is a
scene in it of rows of naked men and women,
shown frontally, being led into the gas
chambers of a Naxi concentration camp. Not
only are they about to die but they have been
stripped in their last moments of the basic
dignity of human beings. Tears are a likely
reaction; pity, horror and a fellow feeling of
shame are certain, except in the pervert who
might be aroused. We do not censor to
protect the pervert or to assuage the
susceptibilities of the over-sensitive. 'Bandit
Queen' tells a powerful human story and to
that story the scene of Phoolen Devi's
enforced naked parade is central. It helps to
explain why Phoolen Devi became what she
did: her rage and vendetta against the society
that had heaped indignities upon her.
24A. The rape scene also helps to
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explain why Phoolen Devi became what she
did. Rape is crude and its crudity is what the
rapist's bouncing bare posterior is meant to
illustrate. Rape and sex are not being
glorified in the film. Quite the contrary. It
shows what a terrible, and terrifying, effect
rape and lust can have upon the victim. It
focuses on the trauma and emotional turmoil
of the victim to evoke sympathy for her and
disgust for the rapist.
25. Too much need not, we think, be
made of a few swear words the like of
which can be heard every day in every
city, town and village street. No adult
would be tempted to use them because
they are used in this film.
26. In sum, we should recognise the
message of a serious film and apply this test
to the individual scenes thereof : do they
advance the message ? If they do they
should be left alone, with only the caution of
an 'A' certificate. Adult Indian citizens as a
whole may be relied upon to comprehend
intelligently the message and react to it, not
to the possible titillation of some particular
scene.
27. A film that illustrates the
consequences of a social evil necessarily
must show that social evil. The guidelines
must be interpreted in that light. No film
that extols the social evil or encourages it is
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permissible, but a film that carries the
message that the social evil is evil cannot be
made impermissible on the ground that it
depicts the social evil. At the same time, the
depiction must be just sufficient for the
purpose of the film. The drawing of the line
is best left to the sensibilities of the expert
Tribunal. The Tribunal is a multi-member
body. It is comprised of persons who gauge
public reactions to films and, except in cases
of stark breach of guidelines should be
permitted to go about its task.”
[Underline and emphasis supplied]
21.In the light of the above decisions of the apex court,
it is clear that a film is to be assessed based on its entirety.
Whether the dialogues of a film correlate to the story in the film
is the point to be decided. The film is to be considered as a
whole in a fair, free and liberal spirit without dwelling too much
upon isolated dialogues or strong words used in the film here
and there. The film is a creation of an artist. The filmmaker is
trying to depict a story and the only point to be looked into is
whether the dialogues in the film are within the four corners of
the story and whether the dialogues in the movie are relevant in
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the facts and circumstances of that story. If this Court starts to
interfere with the exhibition of films, saying that some dialogues
in a movie are obscene or some dialogues are foul language,
there will be no end to it. A film is an exhibition of a story by
the filmmaker. He is entitled to use his artistic freedom. There
is no compulsion to view this film by each and every citizen of
this country. Moreover, the film in question was uploaded to
OTT platforms. In OTT platform, the view is restricted to the
subscribers of the 2nd respondent. The only Rule that gives some
guidelines in the OTT platform movies is Rule 2021. The
authorities have no case that there is any violation of the
provisions of Rule 2021 in this case. In such circumstances, this
Court can not direct the 2nd respondent to remove the movie
from the OTT platform. The Apex Court in K.A. Abbas's case
(supra) observed that it is not the elements of rape, leprosy,
sexual immorality which should attract the censor's scissors, but
how the theme is handled by the producer. The Apex Court
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observed that the task of the censor is extremely delicate and his
duty cannot be subject to an exhaustive set of commands
established by the prior ratiocination. But the direction is
necessary to him so that he does not sweep within the terms of
the directions vast areas of thought, speech, and expressions of
artistic quality and social purpose and interest. In Ranjit's case
(supra), the Apex Court considered the book 'Lady Chatterley's
Lover'. The story is narrated in paragraph 23 of th at judgment.
A baronet, wounded in the war is paralysed from the waist
downwards. He married Constance (Lady Chatterley) a little
before he joined up and they had a very brief honeymoon.
Sensing the sexual frustration of his wife and their failure to
have an heir he leaves his wife free to associate with other men.
She first experiences with one Michaelis and later with a game-
keeper Mellors in charge of the grounds. The first lover was
selfish sexually, the other was something of an artist. He
explains to Constance the entire mystery of eroticism and they
W.P.(C). No. 28288 of 2021
put it into practice. These are over a dozen descriptions of their
sexual intimacies. The game-keeper's speech and vocabulary
were not genteel. He knows no Latin and the human 'pudenda'
and other erogenous parts are freely discussed by him and also
named by the author in the descriptions. The sexual congress
each time is described with great candidness and in prose as
tense as it is intense and of which Lawrence was always a
consummate master. The rest of the story is a mundane one. The
Apex Court after narrating the story as stated above observed
that '...we find that in treating with sex the impugned portions
viewed separately and also in the setting of the whole book pass
the permissible limits judged of from our community standards
and as there is no social gain to us which can be said to
preponderate, we must hold the book to satisfy the test we have
indicated above'. Similarly in Raj Kpoor's case (supra) also,
the Apex Court observed that, social scientists and spiritual
scientists will broadly agree that man lives not alone by mystic,
W.P.(C). No. 28288 of 2021
squints, ascetic chants, and austere abnegation but by luscious
love of Beauty, sensuous joy of companionship and moderate
non-denial of normal demands of the flesh. The Apex Court
quoted Cohen's words, in Reason and Law, are good counsel:
"The law is not a homeless, wandering ghost. It is a phase of
human life located in time and space." In Samaresh Bose's case
(supra), the Apex Court observed that the responsibility to
decide the question of obscenity rest essentially on the Court.
The Apex Court was considering a novel named 'Prajapati'
which according to the aggrieved party in that case, contains
obscene matters. The Apex Court after considering the contents
of the book observed that the book is read by teenagers, young
boys, adolescents, grown-up young men, and elderly people.
After going through the book, the Apex Court observed that 'we
are not satisfied on reading the book that it could be considered
to be obscene. The Apex Court observed that reference to
kissing, description of the body and the figures of the female
W.P.(C). No. 28288 of 2021
characters in the book, and suggestions of acts of sex by
themselves may not have the effect of depraving, debasing, and
encouraging the readers of any age to lasciviousness and the
novel on these counts, may not be considered to be obscene.
The Apex Court also observed that 'it is true that slang and
various unconventional words have been used in the book. But
though there is no description of any over act of sex, there can
be no doubt that there are suggestions of sex acts and that a great
deal of emphasis on the aspect of sex in the lives of persons in
various spheres of society and amongst various classes of people
is to be found in the novel.’ But the Apex Court observed that
because of the language used, the episodes in relation to sex life
narrated in the novel, appear vulgar and may create a feeling of
disgust and revulsion. But the Apex Court again observed that
the mere fact that the various affairs and episodes with emphasis
on sex have been narrated in slang and vulgar language may
shock a reader who may feel disgusted by the book does not
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resolve the question of obscenity. The Apex Court held that a
vulgar writing is not necessarily obscene. Vulgarity arouses a
feeling of disgust and revulsion and also boredom but does not
have the effect of depraving, debasing and corrupting the morals
of any reader of the novel, whereas obscenity the tendency to
deprave and corrupt those whose minds are open to such
immoral observe that characters.
22.In Boby Art International's case (supra), the Apex
Court was considering a film “Bandit Queen” and the prayer to
restrain its exhibition in India. After narrating the story in the
film in detail, the Apex Court observed that artistic expression
and creative freedom should not be unduly curbed. The Apex
Court observed that the film must be judged in its entirety from
the point of view of its overall impact. "Bandit Queen" is a story
of a village child exposed from an early age to the brutality and
lust of man. She married a man old enough to be her father. She
was beaten and raped. The village boys make advances which
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she repulses: but the village panchayat finds her guilty of the
enticement of a village boy because he is of high caste and she
has to leave the village. She was arrested and, in the police
station, filthily abused. She was kidnapped and raped. During
an act of brutality, the rapist is shot dead and she finds an ally in
her rescuer. With his assistance, she beats up her husband
violently. Her rescuer is shot dead by one whose advance she
has spurned. She is gang raped by the rescuer’s assailant and his
accomplice and they humiliate her in the sight of the village. A
hundred men stand in a circle around the village well and watch
the humiliation, her being stripped naked and walked around the
circle and then made to draw water. No one of the villagers
helped her. She burns with anger, shame, and the urge for
vengeance. She gets it, and kills many Thakurs too. This is the
crux of the story of “Bandit Queen” narrated in the judgment.
After narrating the story, the Apex Court observed that ‘too
much need not, we think, be made of a few swear words the like
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of which can be heard every day in every city, town and village
street. No adult would be tempted to use them because they are
used in the film.’ The Apex Court said that, we should recognise
the message of a serious film and apply this test to the individual
scenes thereof.
23.In the light of the above principle, this Court has to
consider the film "Churuli". As narrated in the report submitted
by the Special Team constituted by the additional 7th respondent,
which includes three women members, the plot of the movie
"Churuli" is the life of a group of Fugitives from law residing in
deep forests which is highly inaccessible to the outside world.
The inmates of the imaginary world are rough and tough in the
character who are braving the odds of nature and are in constant
dread of apprehension by law. Their living conditions are
meagre and life is an everyday struggle for existence. They face
danger from wildlife and other perils of forest life. The Special
Team observed that it is a daily struggle for existence for the
W.P.(C). No. 28288 of 2021
characters in the movie. The centre of action in the movie is an
illegal Arrack brewing centre deep inside the forest. The
characters in the movie due to their living conditions and
circumstances are forced to speak in rough and tough language
with expletives and cuss words in their day to day interactions.
The filmmaker used a language, which, according to his artistic
view, is used by the people in “Churuli”. In order to make the
movie believable and for the audience to fully appreciate the life
and culture of the character, the filmmakers use such languages.
The persons living in such conditions cannot be expected to
speak in a decent language used by people residing in a normal
area. Nobody can dictate a filmmaker to use only decent
language in his film and it is his artistic discretion to choose the
language but of course with reasonable restriction mentioned in
Article 19(2) of the constitution. The additional 7th respondent
clearly stated in his statement that there is no statutory violation
of any rules and no criminal offence is made out in exhibiting
W.P.(C). No. 28288 of 2021
the movie “Churuli”. In such circumstances, this Court cannot
direct any of the respondents to remove the movie “Churuli”
from OTT platform. Moreover, there is no proper pleading in
the writ petition. The prayers in the writ petition are vague. A
reading of the writ petition itself will show that the intention of
the petitioner is only publicity. Even the relevant rule which is
applicable in an OTT platform movie is not referred to in the
writ petition. Simply making an observation that the movie
contains foul language or obscene language, this Court cannot
direct to remove the movie from OTT platform. I have a strong
doubt that the petitioner herself has not seen the movie in full
with patience before filing this writ petition. Therefore,
according to me, no relief can be granted in this writ petition.
24.Before parting with this case, I am constrained to
make certain observations. Social media is now popular among
the citizens. Anybody can make any comments on social media
because freedom of speech and expression is a fundamental
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right. But people are making comments on social media without
properly understanding the facts. I am sure that most of the
people who are making comments against this film namely
"Churuli" have not seen the movie in full. Probably they may be
relying on certain video clips received on Whatsapp, Facebook,
Twitter, etc. to make comments. There is indeed freedom of
speech and expression to every citizen as per Article 19 (1)(a) of
the Constitution of India. But the above types of critics will be
doing an injustice to a filmmaker by making comment about a
film and make it an unpopular one without watching his movie
in full. I can understand a criticism about a movie after watching
the movie in full. But, without watching the movie, making
comments alleging that it is a bad film, will hurt the filmmakers
and artists. They are also human beings. The ir work may be a
good artistic creation or sometimes it may not be a good work.
But before making comments against it or in favour of it , it is
the duty of the citizens to watch their creation. I am told that
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now there is a phrase in social media about a new language
called “Churuli language”. I am sure that the people who created
this "Churuli language" have not seen the film "churuli” with
patience and with the understanding that it is a creation of an
artist. The artists are also part of our society. They create their
work spending days and months. Making wrong comments on
social media about an artistic creation, e ven without watching
the creation is to be deprecated . It is the duty of the 7th
respondent and his subordinates to protect the artistic freedom of
a filmmaker by initiating appropriate proceedings including
criminal cases, if any criminal offence is made out in such
situation. The 7th respondent will give strict directions to his
subordinates to take appropriate action in accordance to law, if
such complaints are received.
25.Another trend is about interpreting orders of a court
of law. When this Court passed an order on 07.01.2022 which is
extracted in paragraph- 6 of this judgment, the same was
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published in almost all print and visual media correctly. But I
am told that the social media interpreted the said order in such a
way that this Court directed the Police to find out whether there
is foul language in “Churuli” film! If this is correct, it is clear
that the same is even without reading the order passed by this
Court. This Court only observed that, before deciding this issue
it will be beneficial to get the opinion of the State Police
Department about the pleadings in the writ petition regarding the
alleged statutory violation of law s enacted to ensure public
order, decency or morality. This court also directed to find out
whether there is any criminal offence made as alleged in the writ
petition. This Court never directed the Police to find out whether
foul or obscene language is used in "Churuli" film. Th e contents
is correctly published in print and visual media. But I am told
that social media started to create a story that High Court
directed the Police to find out whether there is foul language in
"Churuli" film. This is how social media forum is misused by a
W.P.(C). No. 28288 of 2021
section of society. I am not blaming the entire community who
are using social media and most of them are using the social
media forum in a useful manner. But a minority is misusing the
same.
26.Similarly when a Court delivers a judgment in a case,
even before the judgment reaches the public, the criticism starts.
It is surprising to see that, few lawyers are making comments
about judgments of court of law even without reading the
judgments. Some of the lawyers will start to comment about a
judgment delivered by a court at 10.15 am or at 11 am
immediately after the judgment is pronounced. The Bench and
Bar are two sides of a coin. The lawyers should be the
mouthpiece of the judiciary. A fair criticism about a judgment is
always acceptable. But the criticism can be started only after
reading the judgment. Such a culture is to be developed for
which the lawyer community has got pivotal role. It is now a
trend for a minority of the lawyers' community to make
W.P.(C). No. 28288 of 2021
comments about a judgment even without reading the
judgments. If media people ask a lawyer at 11.05 am about a
judgment delivered at 11 am, the lawyer will say that ‘I have not
read the judgment, but from the available news I can make
certain comments’. How can a lawyer make such comments
without reading the judgment? He can simply say that I will
read the judgment and will come back for making comments if
necessary. If such a stand is taken, no media people will say that
he should make comments even without reading the judgment.
The lawyers should show the path to the society about the
manner in which a judgment of a court is to be dealt with and
how a judgment is to be criticized if it deserves such criticism.
They can read the judgment and criticize the judgment if they
want and of course not the judges who wrote the judgment. If
the lawyers take a stand that they will make comments about a
judgment of a court of law only after reading the judgment, that
will go a long way because society will accept the stand of
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lawyers because they are respectable people in the society. If the
lawyers started to comment about a judgment without reading a
judgment, nobody can blame the poor citizens who make
comments about judgment and judges on social media. I make it
clear that such immature comments are not made by all the
lawyers. But it is being done only by a handful of lawyers. At
least hereafter, the lawyers should take an oath that they will
make comments in print media, visual media, and social media
about a judgment of a court of law only after reading the
judgment. As I said earlier, the Bench and bar are two sides of a
coin. The lawyers should be the mouthpiece of the judiciary.
They should protect the interest of the judiciary. The judges may
come and go. But Judiciary should stand. The lawyers are part
and parcel of the judiciary. Anyway I leave it to the conscience
of all lawyers.
27.In the light of the facts narrated in the earlier
paragraphs, no relief can be granted to the petitioner in this case.
W.P.(C). No. 28288 of 2021
The petitioner is a lawyer. The petitioner is coming before this
Court with a writ petition without proper pleadings and even
without a proper prayer. The prayer in the writ petition itself is
vague. The statutory provisions applicable in this situation are
not dealt with in this writ petition. It is a case to be dismissed
with cost. But, taking a lenient view, I refrain myself.
Therefore the writ petition is dismissed.
das/DM/jv
W.P.(C). No. 28288 of 2021
|
While dismissing a plea against the Malayalam movie Churuli for its alleged use of foul language, the Kerala High Court on Thursday observed that lawyers ought to read judgements before they criticise the same on mainstream or social media [Peggy Fen v Central Board of Film Certification & Ors.]
Justice PV Kunhikrishnan said that lawyers should be an example for the rest of the citizens on how to criticise judgments if such criticism is warranted.
"Lawyers should show the path to the society about the manner in which a judgment of a court is to be dealt with and how a judgment is to be criticized if it deserves such criticism. They can read the judgment and criticize the judgment if they want and of course not the judges who wrote the judgment. ...If the lawyers started to comment about a judgment without reading a judgment, nobody can blame the poor citizens who make comments about judgment and judges on social media," the Court said in its order.
The Judge noted that most of the criticism against the movie seemed to come from persons who had not watched the movie in its entirety, when he made the allegory to lawyers criticising judgments of the Court without reading the same in its entirety.
"Similarly when a Court delivers a judgment in a case, even before the judgment reaches the public, the criticism starts. It is surprising to see that, few lawyers are making comments about judgments of court of law even without reading the judgments. Some of the lawyers will start to comment about a judgment delivered by a court at 10.15 am or at 11 am immediately after the judgment is pronounced," the single-Judge said.
The Court made its clear that its comments are not towards the Bar as a whole but rather towards a small section of lawyers, and that all members of the Bar must faithfully fulfill their role as mouthpieces of the judiciary.
"At least hereafter, the lawyers should take an oath that they will make comments in print media, visual media, and social media about a judgment of a court of law only after reading the judgment. As I said earlier, the Bench and bar are two sides of a coin. The lawyers should be the mouthpiece of the judiciary. They should protect the interest of the judiciary. The judges may come and go. But Judiciary should stand. The lawyers are part and parcel of the judiciary. Anyway I leave it to the conscience of all lawyers," the order noted.
The behavior of social media denizens was also highlighted by the Court in its judgement. Citizens criticising a movie or any work of art have a duty to do their due diligence and watch the same before exercising their right to freedom of speech and expression under Article 19(1)(a) of the Constitution, the Court said.
"Artists are also part of our society. They create their work spending days and months. Making wrong comments on social media about an artistic creation, even without watching the creation is to be deprecated," the Court noted as it observed that a new phrase "Churuli Language" was used widely on social media.
The plea before the Court had sought the removal of Malayalam movie Churuli, directed by Lijo Jose Pellissery, from the OTT platform SonyLiv for its alleged excessive use of foul language.
The Court had previously remarked that it cannot interfere with the artistic freedom of a film-maker unless there is any violation of laws. It had said that it would be beneficial if a team of police officers from the State Police watches the movie to ascertain if there are any such violations.
However, the same was misinterpreted by many on social media, the Court noted.
"This Court never directed the Police to find out whether foul or obscene language is used in "Churuli" film. The contents is correctly published in print and visual media. But I am told that social media started to create a story that High Court directed the Police to find out whether there is foul language in "Churuli" film. This is how social media forum is misused by a section of society," the Court said.
The State Police team had found no violations of any existing statutes, and no criminal offence.
The Court found that the pleadings in the writ petition were vague, and that as per the Information Technology (Intermediary Guidelines) Rules, 2021, the petitioner had an effective alternative remedy of grievance redressal.
Therefore, it dismissed the petition.
|
Reportable
Criminal Appeal Nos 590-591 of 2021
@ SLP (Crl) Nos. 4998 -4999 of 20 21
Somesh Chaurasia .... Appellant
Versus
State of M.P. & Anr. .... Respondents
Dr Dhananjaya Y Chandrachud, J
1 This appeal arises from an order by a Division Bench of the High Court of
Madhya Pradesh dated 23 July 2019. The High Court declined to entertain two
applications – IA 6837 of 2019 filed by the State
of Madhya Pradesh and IA 5781 of 2019 f iled by the appellant - seeking a
revocation of the suspension of sentence and bail granted to the second
respondent .
2 The second respondent has been convicted of an offence punishable under
Section 302 of the Indian Penal Code (“IPC ”) and sentenced to suffer imprisonment
for life. By an order dated 3 February 2016, the High Court directed that the
sentence shall , during t he pendency of the appeal , remain suspended under the
provisions of Section 389 (1) of the Code of Criminal Procedure 1973 (“ CrPC ”).
3 Two applications were moved before the Division Bench of the High Court (IA
6837 of 2019 and IA 5781 of 2019) for cancellation of bail and revocation of the
order dated 3 February 2016 suspending the sentence of the second respondent.
These applications for bail were filed by the appellant and by the State of Madhya
Pradesh. The appellant sought cancellation of bail on the ground that after the
sentence was suspended, FIR No 143 of 2019 was registered against the second
respondent at Police Station Hata , District , Damoh, in which he is implicated in the
murder of the appellant’s father. The State of Madhya Pradesh sought cancellation
of bail on the ground that :
(i) The second respondent has two other convictions against him on a charge
of murder;
(ii) The second respondent has been convicted of another crime for offences
punishable under Section 399 and 402 of the IPC and Section 25 (1)
(1B)(a) of the Arms Act; and
(iii) An FIR has been registered at the behest of the appellant alleging that the
second respondent is involved in the murder of his father during the period
when he was on bail .
4 The application for cancellation of bail which was moved by the State of
Madhya Pradesh sets out the criminal antecedents of the second respondent .
Paragraph 8 reads as follows:
“8. At this stage, it would be relevant to detail the three
convictions suffered by the appellant. The same are detailed
hereunder:
(a) It is submitted that in the first crime, the appellant
committed the murder of the deceased Rajendra Pathak on 13.10.1998 who was going on his scooter and was confronted
by the appellant and co- accused Chandu Thakur who were
coming on a motorcycle from the opposite direction. At the
relevant point of time the appellant Govind Singh fired
through Katta on the deceased Rajendra Pathak which hit the
deceased on his chest. After receiving the said shot the
deceased ran to save his life and on noticing the same co-accused Chandu Thakur fired a shot which hit the deceased
on his back. The deceased Rajendra Pathak succumbed to
the said injuries. Based on the said incident, session trial was
instituted and appellant was convicted for the murder of
Rajendra Pathak and sentenced to life imprisonment by
judgment dated 30.09.2008. It is thereafter Cr.A
No.2353/2008 was filed by the appellant before this Hon’ble Court. It is a lso relevant to mention herein that the similarity of
the present case with a case relating to deceased Rajendra Pathak is that the deceased in the present case Pappu
@Ramakant Pathak and Kailash Pathak were all belonging to
the same family.
(b) It is sub mitted that in the second crime, the appellant
along with others committed the murder of Munna Vishwakarma. Based on the said incident, Sessions Trial No.
113/2005 was instituted and the appellant was convicted for
the murder of Munna vide Judgment dated 27.10.2015. It is
thereafter, Criminal Appeal No. 3108/2015 was filed by the appellant before this Hon’ble Court.
(c) To put it differently, it can thus be seen that the appellant
committed two crimes punishable under Section 302 IPC on
the same date i.e. 11.5.2004 viz. the present case in which
Ramakant Pathak and Kailash Pathak were killed and Munna Vishwakarma in respect to which Criminal Appeal No.
3108/2015 is pending.
(d) It would also be relevant to mention herein that the
appellant committed another crime for offences punishable
under Section 399 and 402 of the Indian Penal Code and Section 25 (1) (1B)(a) of the Arms Act. In the said case too,
the appellant was convicted and thereafter filed a Criminal
Appeal No. 1984 /2011, in which case also his sentence was
suspended. It is thus clear that the appellant has been a
serious threat to the society and that has been continuously
committing criminal offences.”
Paragraph 10 contains a reference to the FIR lodged on 15 March 2019 at the
behest of the appellant alleging that the second respondent has committed the
murder of his father:
“10 It is also relevant to mention herein that after grant of bail in the said criminal appeals, the appellant has again
committed murder of one Devendra Chaurasiva on 15.03.2019 and an F.I.R. to that respect has been registered against the appellant on 15.03.2019 itself for offences
punishable U/s 294. 323, 324, 307, 147, 148, 149, 506 of
I.P.C. Pertinently, since the deceased died after registration
of F.I.R., offence U/s 302 has been added in the present
crime. Copy of the F .I.R dated 15.03.2019 bearing crime No.
143/2019 is filed herewith as ANNEXURE -R/1.”
5 By its order dated 23 July 2019, the High Court declined to entertain the
application for revocation of the suspension of sentence/ grant of bail. The grounds
which weighed with the High Court appear in the following extract :
“…we are of the considered opinion that I.A.No.6837/2019 &
I.A.No.5781/2019 can be disposed of as per the statement
made at bar by Shri Aj ay Gupta, Additional Advocate General
for the State that the State Government is further investigating
the issue on an application filed on behalf of appellant Govind
Singh inter alia stating that he has been falsely implicated. We,
therefore, direct that the investigation may be completed as far
as possible within three months but not later than 90 days. On
completion of the investigation, if the appellant is found
involved in commission of the crime, he be immediately taken
into custody and the procedure as prescribed be followed. It is
also observed that neither appellant Govind Singh shall
threaten nor influence the witnesses and the complainant
side.”
6 After notice was issued in these proceedings on 18 November 2020, counsel
for the State of Madhya Pradesh was granted an adjournment on 11 January 2021
to file a counter affidavit. In the meantime, on 12 February 2021 , counse l for the
appellant apprised this Court of the fact that on 8 January 2021, the Additional
Session s Judge (“ASJ”) at Aurangabad, issued summons to the second respondent
under Section 319 of the CrPC in the course of the sessions trial arising out of the
charge sheet filed in FIR 143 of 2019. The Court was apprised that though a warrant
of arrest has been issued against the s econd respondent , he was resisting arrest.
The order of the ASJ summoning the second respondent to stand trial has been
placed on the record.
7 Subsequently, when the proceedings were listed before this Court on 12
March 2021, the Court took note of an order dated 8 January 2021 passed by the
ASJ, Hata District , Damoh in Sessions Trial No 30 of 2019 ( Addl. No. 143 of 2019) .
8 The order dated 8 January 2021 passed by the ASJ specifically refers to the
criminal record of the second respondent, and is extracted below :
“Details of criminal records of accused Govind Singh are
accordingly: -
PS-Damoh Dehat
S.No. Crime Case No. Under Sections
1. 150/93 147, 148, 149, 302, 34 of
IPC.
2. 173/94 393, 365, 34 of IPC.
3. 169/04 395, 396, 397, of IPC.
4. 170/04 147, 148, 149, 302, 324 of
IPC, and under section 3/5
and under section 25/27
Arms Act.
5. 414/06 399, 402 of IPC, and under
section 25/27 Arms Act.
6. 68/07 364, 34 of IPC.
7. 390/07 384 of IPC.
8. S.No. 01/10 Under section 3(2) of the
MP Protection Act, 1980.
9. S.No. 02/19 Under section 3(2) of the
MP Protection Act, 1980.
10. S.No. 08/19 Under section 110 Jaa.fau.
11. S.No. 160/19 Under section 107, 116 (3)
Jaa.fau.
12. 203/95 396, 386, 365 of IPC.
13. 241/96 384, 34 of IPC.
14. 44/99 384 of IPC.
15. 168/2000 341, 294, 506B, 34 of IPC.
16. 80/04 307, 34 of IPC.
17. 171/04 394 of IPC.
18. S.No. 01/13 Under section 6 of the MP
Protection Act, 1980.
19. S.No. 01/19 Under section 3(2) of the
MP Protection Act, 1980.
20. S.No. 07/19 Under section 110 jaa faa.
21. S.No. 159/19 Under section 107, 116(3)
jaa faa.
PS-Patharia,
Damoh
22. 56/92 294, 323, 34 of IPC, under
section 3(1 -10) SC ST Act.
23. 93/92 436, 34 of IPC, under section
24. 31/10 147, 341, 307, 506 of IPC.
25. 157/93 295, 397 of IPC.
26. 169/90 294, 506, 427 of IPC.
PS-Kotwali Damoh
27. 578/98 307, 302, 34, 120 of IPC and
Arms Act.
28. 214/16 147, 452, 294, 506, 34 of
IPC.”
The ASJ provided reasons in his order for taking steps in pursuance of the
provisions of Section 319 of CrPC to arraign the second respondent as an accused.
9 Thereafter, in his order dated 8 February 2021, the ASJ noted that though he
was taking action in compliance with the directions of this Court for ensur ing service
on the second respondent, the process of the court was being obstructed. The ASJ
expressed a serious apprehension that the accused and the Superintendent of
Police (“SP”), Damoh had colluded with the subordinates of the lat ter “to frame
serious charges” against the judge. T he accused, the trial judge noted, is a “ highly
influential political person” and though false allegations had been made against the
judge for transfer of the case, the application for transfer had been dismissed by the
District Judge. The relevant extract from the order dated 8 February 2021 reads as
follows:
“The action in this case is being taken in compliance with the
directions given by Hon. Supreme Court expeditiously. But
accused persons are highly influential political persons and have raised false allegations against me and made
application for transfer of case before Hon. District Judge
which was found false and Hon. District Judge had dismissed the application with cost and being contemptuous. But like
accused persons, now Police Superintendent Damoh had connived with his subordinates and made false and fabricated pressure on me. From the above such acts it is clear and I am
confident that accused persons with Police Superintendent
Damoh had colluded with his subordinates to frame serious
charges against me in future or any unpleasant incident can
be done with me.”
10 Adverting to these developments, this Court took serious note of the a nguish
expressed by the ASJ on 8 February 2021 and noted in its order dated 12 March
2021 that :
“8. The order of the learned Additional Sessions Judge dated
8 February 2021 indicates that he is being pressurized by the
Superintendent of Police, Damoh, who, together with his
subordinates, is attempting to pressurize the judicial officer.
The judicial officer has expressed the apprehension that the
accused who are “highly influential politi cal persons” have
raised false allegations against him and applied for transfer of the pending case which was dismissed by the District Judge after it was found to be false. The learned Additional Sessions
Judge has apprehended that he may be subjected to an
“unpleasant incident” in the future.”
11 The order of this Court dated 12 March 2021 took note of the fact that :
(i) Despite the registration of an FIR on 15 March 2019 where the appellant
had alleged that the second respondent was complicit in the murder of his
father no steps were being taken by the investigating authorities to arrest
him;
(ii) In this backdrop, it was the ASJ who was constrained to issue summons to
the second respondent under Section 319 of the CrPC to face trial;
(iii) Despite the issuance of warrants against him , the second respondent
continued to abscond; and
(iv) It had been stated during the course of the proceedings that the spouse of
the second respondent is an MLA and “all possible steps are, therefore,
being adopted to shield the second respondent from the coercive arm of
the law”.
Taking note of the apprehension express ed by the ASJ that he was being targeted,
this Court observed:
“10. We take serious note of the manner in which the
Additional Sessions Judge, Hata who is in charge of the
criminal case has been harassed by the law enforcement machinery in Damoh. We have no reason to disbelieve a
judicial officer who has made an impas sioned plea that he
was being pressurized as a result of his orders under
Section 319 of the CrPC. The State which had moved the
High Court for cancellation of the bail which was granted to
the second respondent as an incident of the suspension of sentence on 3 February 2016, has failed to apprehend the
second respondent who continues to evade arrest. A
warrant of arrest was issued against the second
respondent. Mr Saurabh Mishra, Additional Advocate General appearing for the State, states that a proclamati on
has been issued against the second respondent under Section 82 of the CrPC on 4 March 2021 with an award of
Rs 10,000. Yet the second respondent continues to evade
arrest. The rule of law must be preserved. ”
12 In this back drop, the Director General of Police (“DGP ”) of Madhya Pradesh
was directed “to immediately ensure the arrest of the second respondent and report
compliance by filing a personal affidavit in this Court”. The DGP was also directed to
enquire into the allegations levelled by the second respondent against the SP by the
ASJ in his order dated 8 February 2021.
13 Notice was issued to the SP, Damoh.
14 In pursuance of the order dated 12 March 2021, the DGP filed an affidavit
stating that despite efforts to secure the presence of the second responden t, the
police were unable to apprehend and arrest him. T he affidavit provided the following
details:
(i) After the ASJ by his order dated 8 January 2021, arraigned the second
respondent as an accused, an arrest warrant was issued against him. Steps
were taken by the Damoh Police to arrest the second respondent from 8
January 2021. H owever , the second respondent was absconding and evading
arrest. As a result, an award of Rs. 10,000 was announced for giving
information on the whereabouts of the accused;
(ii) The DGP directed the formation of a “special team” under the Additional
Superintendent of Police (“ASP”), Damoh, to arrest the second respondent to
comply with this Court’s order dated 12 March 2021. The Special Task Force,
Bhopal (“STF ”) was also tasked to apprehend the accused. The affidavit
details the steps taken by Damoh police and the STF;
(iii) Provision of security was made for the ASJ Hata; and
(iv) An e nquiry into the allegations levelled by the ASJ against the SP in his order
dated 8 February 2021 was entrusted to the A dditional Director General of
Police (“ADGP ”), STF, Police headquarters, Bhopal .
15 Finding the explanation provided by the DGP for the failure of the police to
arrest the second respondent to be unacceptable, this Court in its order dated 26
March 2021 observed:
“2 We find the affidavit of the Director General of Police to
be completely unacceptable. It defies reason as to how an
accused who is the spouse of a sitting Member of the
Legislative Assembly has not been arrested despite be ing
arraigned in pursuance of the provisions of Section 319 of
the Code of Criminal Procedure 1973 to face trial for an offence under Section 302 of the Indian Penal Code 1860.
An effort is being made to shield the accused from the due
process of criminal law. The Court was informed that
earlier, the accused was even given security by the police
though it is stated by Counsel for the State that it is now
withdrawn.”
16 Accordingly, the DGP was directed to ensure that the previous order of this
Court dated 12 March 2021 is complied with , failing which this Court would be
constrained to take coercive steps in accordance with law. A t that stage, this Court
was also apprised by counsel for the appellant that though the second respondent
had been summoned under Section 319 of the CrPC to face trial for an offence
punishable under Section 302, he continued to abscond. On the other hand, security
had been provided to him by the State of Madhya Pradesh. Accordingly, a further
affidavit was directed to be filed by t he DGP stating:
(i) The date on which and the cause on the basis of which security was granted
to the accused;
(ii) Whether the security continues to be provided as on date; and
(iii) If the answer to (ii) above is in the negative, the date on which the security
was withdrawn.
17 A further affidavit dated 3 April 2021 was filed by the DGP in compliance with
this Court’s order dated 26 March 2021 explaining that:
(i) Pursuant to the steps taken by the Damoh Police and the STF, the second
respondent was arrested from a bus stand in Bhind District on 28 March
2021. The second respondent was presently in the judicial custody at Sub-
Jail, Hata District, Damoh; and
(ii) The SP had recommended grant of security to the second respondent in view
of his enmity with several persons and his political background. On the basis
of the recommendation, the second respondent was provided security of one
officer on 11 July 2020. This was ratified by State Security Committee on 25
September 2020. The security was withdrawn on 9 January 2021.
18 On 6 April 2021, another affidavit was filed by the DGP detailing the reasons
for grant of security to the second respondent. The affidavit stated that:
(i) Smt. Rambai Govin d Singh, who is an MLA , made an application dated 3
July 2020 for providing security to her spouse (the second respondent )
“on the basis of his political background and enmity with several
persons ”;
(ii) A security officer was detailed to the second respondent on 11 July
(iii) A threat assessment report was sought from the SP who recommended
grant of security on 24 September 2020. The recommendation of the SP
was ratified by the S tate Security Committee on 25 September 2020;
(iv) Thereafter, a final order for grant of security was passed on 7 October
2020; and
(v) The ASP by an order dated 10 January 2021 direct ed the removal of the
security provided to the second respondent on the issuance of a warrant
of arrest by the ASJ on 8 January 2021.
19 Mr Varun Thakur, learned counsel appearing on behalf of the appellant has,
during the course of his submissions, outlined the basis on which cancellation of bail
granted pursuant to the order suspending sentence is sought. Learned counsel
urged that the second respondent has been implicated in a serious offence
punishable under section 302 of the Penal Code after he was enlarged on bail. It
has been urged that the sequence of events indicates that despite the order under Section 319 of the CrPC, the second respondent evaded the due course of law
despite a warrant against him and a proclamation. It has been submitted t hat the
investigating authorities were complicit in this and continued to protect the second respondent whose spouse is an MLA. Despite the order of this court, the DGP
reported initially that the second respondent could not be apprehended. The state
had provided security to him despite the conviction of an offence under Section 302. The order of the ASJ is a clear indicator of the police attempting to pressurize the
trial judge. Hence a cancellation of bail is warranted.
20 These submissions have been contested on behalf of the State and its
authorities by Mr Saurabh Mishra, learned A dditional Advocate General . Mr Mishra
submitted that the following sequence of events may be borne in mind:
(i) 15 March 2019 – an FIR was registered against certain accused including
the second respondent;
(ii) 13 June 2019 – a chargesheet was submitted to the competent court.
Though, the second respondent was named as an accused in the FIR , the
charge sheet did not name the second respondent as further investigation
was pending a gainst him under Section 173(8) of the CrPC;
(iii) 23 July 2019 – the impugned order was passed by the High Court;
(iv) 7 September 2019 – a closure report was submitted before the competent
court absolving the second respondent ;
(v) 24 March 2020 – a new government was formed in the State of MP
following a floor test in the legislative assembly on 18 March 2020; and
(vi) 8 January 2021 – an application was filed by the appellant under Section
319 of the CrPC for the issuance of summons to the second respondent to
face trial. The State did not oppose the application.
It was urged on behalf of the State that there is no substance in the charge of
collusion since as a matter of fact, the State had not opposed the application under
Section 319 of the CrPC .
21 The second limb of the submission is that pursuant to the directions issued by
this Court on 12 March 2021, an enquiry was conducted by the ADGP and STF,
Bhopal . The ADGP in his report dated 22 March 2021 to the DGP stated that no
substance was found in the observations of the ASJ in his order dated 8 February
2021. The conc lusions in the enquiry indicate:
“24. Upon analyzing the whole incident the following
conclusions are drawn :
(a) Ms. Bhawna Dangi, SDOP, had joined her new
posting, 6 days prior to appearance before
Hon'ble Court and it was her first field posting.
(b) Ms. Bhawna Dangi, SDOP informed the incident
with her self in the court to her senior officers.
(c) Superintendent of Police, Damoh, immediately
apprised of the inciden t happened with Ms.
Bhawna Dangi to the senior most Judge of the
District i.e. Hon'ble District and Session Judge, Damoh on 06.02.21.
(d) For coordination at the district level between judiciary and executive, the District and Additional Session Judge and Superintendent of Police
remain in touch. Under the same protocol, the
Superintendent of Police informed about the incident to the District and Session Judge.
(e) During the enquiry, the Hon'ble Additional Session
Judge, Hata and both the JMFC, Hata were
contacted but they showed their inability to give any statement unless permitted by the Hon'ble
High Court of Jabalpur. In this context on 17.03.21
an application was filed before the Hon'ble Registrar General, Madhya Pradesh High Court,
Jabalpur.
(f) The application dated 12.02.21 filed by Ms. Bhawna Dangi is pending in the office of Hon'ble Registrar General, Madhya Pradesh High Court,
Jabalpur and only after its inquiry any comment
can be given on the application filed by SOOP,
Dangi.
25. It is prov ed from the facts came in inquiry that the
Superintendent of Police has endorsed the
grievance of his subordinate to his senior officers
which is a part of his duty. No evidence of
Superintendent of Police intention in connivance
with accuseds to level fal se charges is found out. ”
Based on the above report, it has been submitted that the SDOP had joined at her
new place of posting on 31 January 2021. On 6 February 2021, she appeared
before the ASJ and explained the efforts which were made to arrest the second
respondent. It is alleged that the ASJ was not satisfied with the explanation and had
made her stand in the court for over four hours and had insulted her. The SDOP had
expressed her desire to the ASP to resign from service. This incident was narrate d
by the A SP to the JMFC, Hata who has attempted to sort out the matter.
Subsequently, the SDOP had submitted a complaint to the High Court and had met
the Registrar General on 12 February 2021. The order dated 8 February 2021 was
made known for the first time when it was published in the newspaper s on 20
February 2021.
22 In this context, it has been submitted that the enquiry against the SP has
been conducted in pursuance of the orders of this Court and no substance has been
found in the allegations leveled by the judicial officer.
23 The report of the ADGP states that though the ASP had denied
communicat ing to the JMFC that, “it is an order of the … Superintendent of Police
that the Magistrate … of Hata should be informed that SDOP Dangi is disturbed, she
is resigning, Sonkar Sahab to show some leniency ”, he had communicated with the
JMFC “to maintain better coordination between the Hon’ble Court and the Executive”
on his own accord. The relevant extract of the report is as follows:
“21. In this entir e incident, the Additional
Superintendent of Police, Damoh communicated with
the Hon’ble JMFC’s, Hata to maintain the better
coordination between the Hon’ble Court and the
Executive. During his statement, Addl.
Superintendent of Police admitted some commen ts
mentioned in the order sheet and denied some other
comments. In his statement, the Additional
Superintendent of Police, absolutely denied some references came in between the Hon’ble JM FC, Hata
about the Superintendent of Police, Damoh. He
further states that Superintendent of Police, Damoh
didn’t instruct him to communicate with JMFC, Hata.
He had discussed the matter with both the Hon’ble
JMFCs’ on his own to maintain better coordinatio n
between the parties.”
24 Mr Sidharth Luthra, learned senior counsel appearing on behalf of the SP
submitted that on 6 February 2021, the SDOP had made a complai nt about being
humiliated by the judicial officer in court and the SP had informed the District and
Sessions Judge about the incident on the same date. On 7 February 2021, the
Registrar General of the High Court was informed on phone. On 8 February 2021,
the ASJ passed an order expressing his apprehension that he was being targeted in
the di scharge of his duties. H owever , on the same day, the ASJ addressed a
communication to the SP making no such allegations. On 12 February 2021, the
Registrar General of the High Court was furnished with the application of the SDOP
and met her. The order dated 8 February 2021, it has been submitted, was
published in the newspapers on 20 February 2021. In this backdrop, Mr Luthra
urged that there is no substance in the allegation which have been leveled against
the SP .
25 Mr Shakeel Ahmed, learned Counsel appearing on behalf of the second
respondent has submitted that no adverse order may be passed against the second
respondent. At this stage, it may be necessary to note that an application for bail
was moved before this Court on behalf of the second respondent in IA No 50800 of
2021 in SLP (Crl) Diary No 21783 of 2020. On 1 June 2021, the following order was
passed by this Court:
“1 After arguing the application for bail, the lear ned counsel
appearing on behalf of the applicant (the second respondent
in the Special Leave Petitions) seeks the permission of the
Court to withdraw the application for bail.
2 The application for bail is accordingly dismissed as
withdrawn.”
The IA was accordingly dismissed as withdrawn.
26 Before we deal with the rival contentions, it is necessary at the outset to
advert to the correctness of the o rder passed by the High Court on 23 July 2019.
FIR No 143 of 2019 was registered on 15 March 2019 for offences under Sections
294, 323, 324, 307, 147, 148, 149 and 506 of the IPC against several accused
including the second respondent. It was alleged in the FIR that the accused had
assaulted the victim , Devendra Chaurasia, by rods and sticks. The injured
victim having succumbed to his injuries, an offence under Section 302 was added.
Among other accused, the FIR named the second respondent . On 13 June 2019, a
charge sheet was filed before the competent court , which did not name the second
respondent . Investigation under Section 173(8) of the CrPC was kept pending
against the second respondent.
27 In another case, the second respondent was convicted under Section 302 by
the Sessions Court on 27 October 2015 against which he had filed Criminal Appeal
No 3107 of 2015 before the High Court. During the pendency of the appeal , the
sentence was suspended on 3 February 2016. In view of the allegation that the
second respondent had committed offence of murder when his sentence was
suspended, the State government fil ed an application before the High Court for the
revocation of the order suspending the sentence/ granting bail to the second
respondent . Another application was filed by the appellant. The High Court disposed
of the two applications by noting the statement s of the A dditional Advocate General
that the State government is further investigating the application filed by the second
respondent stating that he has been falsely implicated. The High Court directed that
the investigation may be completed as far as possible within three months but not
later, and if upon investigation the second respondent is involved in the commission
of the crime, he should be taken i nto custody immediately and "the procedure as
prescribed be followed” .
28 On 7 September 2019, the police filed a closure report in relation to the
second respondent before the competent court in FIR No 143 of 2019 dated 15
March 2019. An application under Section 319 of the CrPC was filed before the ASJ
for summoning the s econd respondent . By an order dated 8 January 2021, the
application was allowed and the second respondent was arraigned as an accused. A
warrant of arrest was issued against the second respondent. Despite the issuance of
the warrant of arrest and a proclamation, the second respondent was not arrested.
The order of this Court dated 12 March 2021 speaks for itself.
29 The High Court by its impugned order dated 23 July 2019 allowed the second
respondent , who allegedly committed murder during the period when his sentence
was suspended, to continue on bail until his claim that he was being falsely
implicated was first investigated in ninety days . In adopting such a procedure, the
High Court has clearly transgressed into an unusual domain. The High Court has in
effect stultified the administration of criminal justice.
30 Section 389 (1)1 of the CrPC allows the court to release a convicted person
on bail. The second proviso to Section 389 (1) of CrPC provides that where a
convicted person has been released on bail, it is open to the public prosecutor to file
an application for the cancellation of bail. However, the grant of bail post -conviction
is governed by well-defined procedures and parameters. The factors that govern the
grant of suspension of sentence under Section 389 (1) have been discussed by this
1 “Section 389. Suspension of sentence pending the appeal; release of Appellant on bail. --(1) Pending any
appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that
the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that
he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is
convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less
than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such
release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public
Prosecutor to file an application for the cancellation of the bail. ”
Court (speaking through Justice Kurian Joseph) in Atul Tripathi vs. State of U.P.2
in the following terms:
“It may be seen that there is a marked difference between
the procedure for consideration of bail u nder Section 439,
which is pre conviction stage and Section 389 Code of Criminal Procedure, which is post -conviction stage. In case
of Section 439, the Code provides that only notice to the
public prosecutor unless impractical be given before granting
bail to a person who is accused of an offence which is triable
exclusively by the Court of Sessions or where the
punishment for the offence is imprisonment for life; whereas in the case of post -conviction bail u nder Section 389 Code of
Criminal Procedure, where the conviction in respect of a
serious offence having punishment with death or life
imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an
opportunity to the public prosecutor for showing cause in
writing against such release.
15. Service of a copy of the appeal and application for bail
on the public prosecutor by the Appellant will not satisfy the
requirement of first proviso to Section 389 Code of Criminal Procedure. The appellate court may even without hearing
the public prosecutor, decline to grant bail. However, in case
the appellate court is inclined to consider the release of the
convict on bail, the public prosecutor shall be granted an
opportunity to show cause in writing as to why the Appellant
be not released on bail. Such a stringent provision is introduced only t o ensure that the court is apprised of
all the relevant factors so that the court may consider
whether it is an appropriate case for release having
regard to the manner in which the crime is committed,
gravity of the offence, age, criminal antecedents of t he
convict, impact on public confidence in the justice
delivery system, etc. Despite such an opportunity being
granted to the public prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has
not filed any objecti on in writing. This procedure is intended
to ensure transparency, to ensure that there is no allegation
of collusion and to ensure that the court is properly assisted
by the State with true and correct facts with regard to the
relevant considerations for grant of bail in respect of serious
offences, at the post conviction stage.”
31 This Court in Ramji Prasad vs. Rattan Kumar Jais wal and Anr.3 has
observed that in cases involving conviction under Section 302 of the IPC, the
sentence should be suspended only in exceptional cases.
32 In Masood Ali Khan vs. State of U.P. and Ors .4, this Court has held that the
mere fact that the accused, who were on bail during the period of trial , did not
misuse their liberty is not a sufficient reason for the grant of suspension of sentence
post-conviction. This Court by placing reliance on Vijay Kumar vs Narendra5
reiterated that all the relevant factors including “nature of accusation made against
the accused, the manner in which the crime was alleged to have been committed,
the gravity of the offence, desirability of releasing the accused on bail after they
have committed the serious offence of murder ” must be looked into.
33 The High Court had suspended the sentence. W e are not in these
proceedings called upon to consider whether the order of the High Court grant ing a
suspension of sentence was valid in the first place.
34 There are distinct doctrinal concepts in criminal law namely (i) the grant of bail
before trial or, what is described as the ‘pre- conviction’ stage; (ii) setting aside an
order granting bail when the principles which must weigh in the decision on whether
bail should be granted have been overlooked or wrongly applied; (iii) the post -
conviction suspension of sentence under the provisions of S ection 389(1); and (iv)
the cancellation of bail on the ground of supervening events , such as the conduct of
the accused during the period of bail , vitiating the continuance of bail.
35 The present case falls in the last of the above genres where bail was sought
to be cancelled on the ground that the second respondent was implicated in an
offence under section 302 during the period when his sentence was suspended.
36 This Court in Abdul Basit vs. Abdul Kadir Choudhary6, while discussing the
powers of the High Court to cancel bail granted to an accused under Section 439 (2)
of the CrPC , has observed that typically the following conduct of the accused would
result in the cancellation of bail – (i) misuse of liberty by engaging in similar criminal
activity; (ii) interference with the course of investigation; (iii) tampering of evidence or
witnesses; (iv) threatening of w itnesses o r engaging in similar activities which would
hinder the investigation; (v) possibility of fleeing to another country; (vi) attempts to
become scarce by becoming unavailable for investigation or going underground; and
(vii) being out of the reach of their surety. Similar considerations govern the
cancellation of bail at the post -conviction stage under the second proviso to Section
389 (1) of the CrPC. This Court in Pampapathy vs. State of Mysore7, had held that
the High Court had t he power to revoke the suspension of sentence granted under
sub-Sections (1) and (2) of Section 4268 of the erstwhile Code of Criminal
7 1966 Supp SCR 477
8 “426. (1) Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it
in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail or on his own bond.
Procedure, 1898 (“CrPC, 1898”) using its inherent powers under Section 561- A of
the CrPC, 1898. The accused were alleged to have misused their liberty while their
sentence was suspended. Sub- Sections (1) and (2) of Section 426 of the CrPC,
1898 are similar to Section 389 (1) of the present CrPC. It may be noted that in
Pamapathy (supra), the issue of cancellation of bail of a convict, by taking recourse
to Section 561- A of the CrPC, 1898, arose because the second proviso, which, now,
has been added to sub- Section (1) of Section 389 CrPC, did not exist under the
earlier legal framework . However, since the second proviso to sub- Section (1) of
Section 389 CrPC., now, deals with the cancellation of bail, no inherent power,
would be required for revocation of suspension of sentence and bail granted to a
convicted person during the pendency of appeal at the appellate court . This Court in
its order passed in Ramesh Kumar Singh vs. Jhabbar Singh & Ors.9, has held
that if the accused misuses their liberty by committing other offences during the
suspension of sentence under Section 389 (1) of the CrPC, they are not entitled to
the privilege of being released on bail. In that case, the accused was convicted
under Section 302 of the IPC for killing the father of the complainant and during the
suspension of his sentence, when he was out on bail, he had committed the murder
of the b rothers of the complainant. This Court set aside the bail that was granted to
the accused by the High Court .
(2) The power conferred by this section on an appellate court may be exercised also by the High Court in the
case of any appeal by a convicted person to a court subordinate thereto.”
37 The present case was a fit case for the cancellation of bail by the High Court .
The narration in the earlier part of the judgment highlights the following facets:
(i) The registration of FIR 143 of 2019 implicating the second respondent in
the murder of the appellant’s father during the period when the sentence of
the second respondent w as suspended after his conviction of a prior
offence under Section 302.
(ii) The criminal antecedents of the second respondent;
(iii) The strong likelihood of the second respondent using his political clout to
prevent a fair investigation of FIR 143 of 2019;
(iv) The t ruth in the apprehensions of the appellant having become evident by
the abject failure of the police to properly investigate the FIR lodged
against the second respondent on the allegation that he had committed
the murder of the appellant’s father on 15 Mar ch 2019 after his sentence
was suspended by the High Court;
(v) The submission of a closure report by the police against the second
respondent absolving him ;
(vi) The order of the ASJ dated 8 January 2021 summoning the second
respondent under Section 319 of the CrPC;
(vii) The second respondent having evaded arrest despite the issuance of a warrant of arrest and a proclamation;
(viii) The failure of the law enforcement authorities to effectuate the arrest of the
second respondent in spite of the order of this Court dated 12 M arch 2021;
(ix) The peremptory directions issued by this Court on 26 March 2021
requiring the DGP to take necessary steps for compliance with the
previous order failing which the Court would be constrained to take
coercive steps in accordance with law;
(x) The eventual arrest of the second respondent on 28 March 2021 ostensibly from a bus stand;
(xi) The apprehension expressed by the ASJ in his order dated 8 February
2021 that he was being targeted at the behest of a politically influential
accused; and
(xii) The provision of security to the second respondent by the State
government at the behest of his spouse who is an MLA despite a prior
conviction under Section 302 of the IPC .
38 The High Court mis -applied itself to the legal principles which must govern
such a case. The ser ious error by the High Court in its impugned order can be
considered from two perspectives. First, the High Court by simply disposing of the
IAs seeking cancellation of bail ignored material considerations which ought to have
weighed in the decision. Some of the events which we have narrated above have
undoubtedly transpired after the order of the High Court. However, taking the
position as it stood when the High Court considered the issue, a clear case for
cancellation of bail was established. The second aspect which is also of significance
is the impact of the order of the High Court. The High Court was apprised of the fact
that FIR No 143 of 2019 had been lodged against the second respondent. The
investigation into the FIR had to proceed according to law. Instead, the High Court
gave a period of ninety days to the police to enquire into the complaint of the second
respondent that he was being targeted and allowed the police to thereafter proceed
in accordance with law. This order had the effect of obstructing a fai r investigation
into the FIR at the behest of the accused despite the nature and gravity of the
allegations against him. The events which have transpired since go to emphasize
the fact that the High Court was in grievous error in passing its directions whi ch were
misused to defeat the investigation. The police submitted a closure report absolving
the second respondent . Thereafter, despite the order under section 319, the second
responden t evaded arrested in contravention of the warrant of arrest which was
issued by the ASJ . The facts which have been narrated in the earlier part of this
judgment indicate that the police have been complicit in shielding the second
respondent. The criminal antecedents of the second respondent and the prior
conviction on a charge of murder have been adverted to earlier. The second
respondent, whose spouse is an MLA was provided security by the State. The DGP
was sanguine in informing this court that the second respondent could not be
arrested despite the directions issued by this Court. It was only after this C ourt
issued a peremptory direction indicating recourse to the coercive arm of law that the
second respondent was arrested, ostensibly from a bus -stand. The material on the
record indicates that an effort has been made to shi eld the accused from the
administration of criminal justice. The apprehensions expressed by the ASJ in his
order dated 8 February 2021 of the machinations of a highly influential accused
evading the process of law are amply borne out by the facts which hav e been
revealed before this Court. There is no reasonable basis to doubt the anguish and
concern of a judicial officer. That the state did not oppose the application under
section 319 is a feeble attempt to justify the inaction of the police. Unfortunately, the
High Court failed in its duty to ensure that the sanctity of the criminal justice process
is preserved. This court has had to step in to ensure that the rule of law is
preserved.
39 We accordingly order and direct that the order of the High Court dated 23 July
2019 shall stand set aside. IA Nos 6837 and 5781 of 2019 shall in the circumstances
stand allowed. The bail granted to the second respondent shall stand cancelled . We
also direct that the second respondent shall be moved under the directions of the
DGP to another jail in Madhya Pradesh to ensure that the fair course of the criminal
proceedings is not deflected.
40 During the course of this proceeding, an enquiry was directed to be made into
the apprehensions expressed by the ASJ in his order dated 8 February 2021. An
independent and impartial judiciary is the cornerstone of democracy. Judicial
independence of the d istrict judiciary is cardinal to the integrity of the entire system.
The courts comprised in the district judiciary are the first point of interface with
citizens. If the faith of the citizen in the administration of justice has to be preserved,
it is to the district judiciary that attention must be focused as well as the ‘higher’
judiciary. Trial judges work amidst appalling conditions – a lack of infrastructure,
inadequate protection, examples of judges being made targets when they stand up
for what is right and sadly, a subservience to the administration o f the High Court for
transfers and postings which renders them vulnerable. The colonial mindset which
pervades the treatment meted out to the district judiciary must change. It is only then
that civil liberties for every stakeholder – be it the accused, the victims or civil society
– will be meaningfully preserved in our trial courts which are the first line of defense
for those who have been wronged.
41 The functioning of the judiciary as an independent institution is rooted in the
concept of separation of powers. Individual judges must be able to adjudicate
disputes in accordance with the law, unhindered by any other factors. Thus, “for that
reason independence of judiciary is the independence of each and every judge”.
The independence of individual judges also encompasses that they are independent
of their judicial superiors and colleagues.10 This Court in Madras Bar Association
v. Union of India & Anr.11 speaking through Justice L. Nageswara Rao has
observed:
“29. Impartiality, independence, fairness and
reasonableness in decision- making are the hallmarks of the
judiciary. If “impartiality” is the soul of the judiciary,
“independence” is the lifeblood of the judiciary. Without
independence, impartiality cannot thriv e. Independence is
not the freedom for Judges to do what they like. It is the
independence of judicial thought. It is the freedom from
interference and pressures which provides the judicial
atmosphere where he can work with absolute commitment to
the cause of justice and constitutional values. It is also the
discipline in life, habits and outlook that enables a Judge to
be impartial. Its existence depends however not only on
philosophical, ethical or moral aspects but also upon several
mundane things —securi ty in tenure, freedom from ordinary
monetary worries, freedom from influences and pressures
10 M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience, Indiana International and
Comparative Law Review 10, No. 2 (2000): 245 -292.
11 2021 SCC OnLine SC 463
within (from others in the judiciary) and without (from the
executive). The independence of an individual Judge, that is,
decisional independence; and independence of the judiciary
as an institution or an organ of the State, that is, functional
independence are the broad concepts of the principle of
independence of the judiciary/ tribunal. ”
42 Our Constitution specifically envisages the independence of the district
judiciary . This is implicit in Article 50 of the Constitution which provides that the State
must take steps to separate the judiciary from the executive in the public services of
the State. The district judiciary operates under the administrative supervision of the
High Court which must secure and enhance its independence from external
influence and control. This compartmentalization of the judiciary and executive
should not be breached by interfering wi th the personal decision- making of the
judges and the conduct of court proceedings under them.
43 There is no gainsaying that the judiciary should be immune from political
pressures and considerations . A judiciary that is susceptible to such pressures
allows politicians to operate with impunity and incentivizes criminality to flourish in
the political apparatus of the State.
44 India cannot have two parallel legal systems, “one for the rich and the
resourceful and those who wield political power and influence and the other for the
small men without resources and capabilities to obtain justice or fight injustice.” The
existence of a dual legal system will only chip away the legitimacy of the law. The
duty also falls on the State machinery to be committed to the rule of law and
demonstrate its ability and willingness to follow the rules it itself makes, for its
actions to not transgress into the domain of “governmental lawlessness”.12
45 At the same time, we believe that judges, while being undeterred in their
commitment to follow the law and do justice, should be wary of launching into a
diatribe against the State authorities without due care and reflection.
46 The apprehensions expressed by the ASJ should be duly enquired into by the
High Court of Madhya Pradesh on its administrative side so that if they are found to
be true, necessary action should be taken in order to secure the fair administration
of justice. We have already taken note of the fact that the SDOP Hata had submitted
a complaint to the Registrar General. The complaint by the SDOP as well the the
order of the ASJ dated 8 February 2021 shall be placed befor e the Chief justice of
the Madhya Pradesh High Court on the administrative side by the Registrar General
within two weeks . The Chief Justice of the High Court of Madhya Pradesh is
requested to cause an enquiry to be made on the administrative side so that an
appropriate decision in that regard is taken. Having regard to this direction we are
not expressing any views on the report which has been submitted by the ADGP and
STF, Bhopal. The enquiry as directed above should be concluded expeditiously and
preferably within a period of one month from the date of the receipt of a certified
copy of this judgment. A copy of this order shall be communicated by the Registrar
(Judicial) of this court to the Registrar General of the High Court for compliance. The
appeals shall stand disposed of in the above terms.
12 Upendra Baxi, The Crisis of Legitimation of Law in The Crisis of the Indian Legal System: Alternative
Developments in Law (Vikas Publishing House, 1982).
47 Pending application(s), if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[Hrishikesh Roy ]
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The Supreme Court in a strongly worded judgment pulled up the State and Police authorities of Madhya Pradesh for attempting to shield the husband of a Bahujan Samaj Party (BSP) MLA accused of murdering congress leader Devendra Chourasia.
The Bench of Justices DY Chandrachud and Hrishikesh Roy took strong objection to the fact that Police officials tried to pressurise the trial court judge, and shield the accused Govind Singh.
"Singh's spouse was an MLA and that is why security was granted to Singh. Effort has been made to shield the accused from the process of criminal justice system," the Court noted.
The verdict came on a plea by Devendra Chourasia's son, Somesh Chourasia.
Regarding the allegation the trial judge was being pressured by the BSP MLA, the Court said that such attitude towards the judiciary has to change.
"Independence of judiciary is the independence of each and every judge, so that they are independent of their superiors also. Colonial mindset meted out to district judiciary has to change," the Court observed.
The Court, therefore, cancelled the bail of the accused noting that there has been an abject failure of the police to complete the investigation into the murder.
The Court also did not approve the Madhya Pradesh High Court's refusal to interfere with the bail granted to the accused.
"It was a clear case for cancellation of bail but the High Court have 90 days time to complete the probe," the top court said.
Read more here.
|
Civil No. 1134 of 1986.
503 (Under Article 32 of the Constitution of India) Petitioner in person and Mohan Pandey for the Petitioners.
K. Madhava Reddy, P.P. Rao, R.N. Keshwani and H.S. Parihar for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The petitioners who are employees of respond ent No. 1 National Bank for Agriculture and Rural Develop ment (hereinafter referred to as the Bank) request for a direction to the Bank to give them fitment benefits which were given to their counter parts who were in the Bank 's service prior to 1st February 1984.
The admitted facts are that on 1st February 1984, petitioner No. 1 was in the Bank 's service as a 'Grade B ' Officer land was promoted to 'Grade C ' Officer 's.cadre on March 7, 1984.
Petitioners 2 to 4 were not in the service of the Bank on 1st February 1984.
Petitioner No. 2 was appoint ed as a 'Grade C ' Officer and Petitioners 3 and 4 were appointed as 'Grade B ' Officers, on various dates in March 1984.
Petitioners 5 and 6 were in the Bank 's service in Clerical Grade prior to 1st February 1984 and were appointed as Officers 'Grade A ' after the said date.
The first respondent Bank came into existence on July 12, 1982 under an Act of Parliament, viz National Bank for Agriculture and Rural Development Act, 1981.
The initial staff of the Bank consisted of the employees of the Reserve Bank of India and of those recruited by the Reserve Bank of India exclusively to serve the erstwhile Agriculture Refi nance and Development Corporation which was taken over by the 1st respondent Bank.
On February 24, 1986, the Bank revised pay scales of all its Officers as a result of a settlement on the charter of demands submitted by the Bank 's Officers ' Association called NABARD Officers ' Association.
One of the demands of the Association was that the revision in the scales of their pay should be on the same basis as of the revision of the Officers in the Reserve Bank of India.
It appears that the NABARD Officers Association had submit ted its charter of demands on November 30, 1984 which was on the same lines as the charter of demands submitted by the Officers Association of the Reserve Bank of India to the Reserve Bank of India.
On October 9, 1985, the Reserve Bank of India revised the pay scales of its Officers w.e.f 1st February 1984.
As a result, the 1st respondent Bank 504 also revised the pay scales of its Officers, as stated earlier, on February 24, 1986, and to bring it on parity with the pay scales of the Reserve Bank of India, gave effect to them also from 1st February, 1984.
Hence the importance of the date February 1, 1984.
Incidentally it may be stated that the revision of pay scales of the Officers in the entire Banking Industry was brought into effect from that date.
The said date is thus not arbitrarily fixed by the respondent Bank for giving effect to the revision of pay scales.
Since the revision of pay scales was given effect to from February 1, 1984, it was necessary to fit the pay of the employees in service prior to February 1, 1984 in the revised pay scales.
Hence it was necessary to evolve some uniform formula for the fitments.
The Reserve Bank of India had already prepared a refixation chart for the purpose.
The respondent Bank also prepared its refixation chart for the purpose.
This chart was also approved of by the NABARD Officers Association.
The Association at the relevant time had 2284 members and except the present six petitioners nobody has made a grievance against the said chart.
By the present Petition what is in effect, challenged is the said refixation chart.
The refixation chart which is an Annexure to the Petition gives effect to the terms of settlement between the Bank and its Officers, which as stated above, is a part of the general settlement in the Banking Industry.
The said chart is made applicable to all the Officers who were in the service of the Bank holding either probationary, permanent or temporary appointments and its benefit is given from 1st February 1984.
The chart is no more than a device for fit ting the pay of the concerned Officers in the revised pay scales.
Since the revised pay scales were given retrospec tive effect from 1st February 1984 it was necessary, as a first step.
to fit the pay in the old scales into the new scales on and from 1st February 1984.
Such a fitment was necessary only in the case of those who were in service prior to February 1, 1984.
The entrants in service after that date would automatically be treated as being employed on the new scales from the date of their entry.
There was therefore, no need, as indeed there could not be, of making fitment adjustments in their case.
There is further no dispute that the employees like the petitioners who were appointed either for the first time, or promoted to the higher post, after February 1, 1984, were given all the benefits of the revised pay scales including the arrears in salary, treating them as if they were appointed initially in the new scales.
505 6.
The refixation chart under challenge, therefore, contained a table of fitment of salaries of those employees who were in service prior to 1st February 1984.
It is common knowledge that such fitment has to be made not by reducing the existing pay of the employees but fixing it into the nearest higher stage in the new scale.
The table incorporat ed in the chart therefore contained fitment increments for the employees in service prior to 1st February 1984 (herein after referred to as the old employees) to avoid reduction and anomalies which would otherwise result.
These increments were to merge in the new scales in course of time, when the concerned employees reached the appropriate stage in the new scale.
The increments given were not designed to grant higher emoluments to the old employees for all time to come.
As has been pointed out by the respondent Bank, there was a possibility of reduction in salary in some cases and of anomalies in other cases if a stage to stage adjustment was made in their salaries.
Hence the table was so prepared that the fitments avoid the said consequences.
The said fitment adjustments in the salaries of the old employees resulted in temporary increases in their pay packets, although, as stated earlier these fitment increments were to merge in future increments in the new scales.
The grievance of the petitioners in this petition is directed precisely against these fitment increments given to the old employees.
It is their case that these increments give undue benefit to the old employees as against them, and since they occupy the same posts they are also entitled to the same fitment bene fits.
That is the main relief which they have claimed in the petition by prayer (a).
The other reliefs are declaratory in nature and incidental to it.
In support of their claim they have invoked the theory of Equal Pay for Equal Work and Articles 14 and 16 of the Constitution by alleging discrimi nation between them and the old employees.
They have also pressed certain decisions in support of their case.
As will be obvious from what we have stated earlier, the whole basis of the petitioners ' case is misconceived.
It proceeds on wrong presumptions and unwarranted premises.
The present is not a case of discrimination between employees belonging to the same class or of granting different scales of pay to them.
The present is a case of adjusting and fitting the salaries of the old employees belonging to the same class into the new scales of pay which are made avail able to both the new and the old employees.
If in effecting such adjustments, it becomes necessary to give fitment increments to the old employees, it is to work out the equities and to do justice to them.
Their past service in fact merits it.
To deny them such adjustment is to treat them unequally by ignoring their past service and placing them on par with 506 the new entrants.
For this purpose, however limited it may be, the old employees in the present case stand in a differ ent class from that of the new.
The classification for the purpose is not only justified but necessary.
The revision of pay scales is always effected with a particular date pro spectively or retrospectively.
Whatever the date from which it is effected, it necessarily involves fitment of the salaries of the existing employees in the new scales.
A retrospective operation of the new scales therefore in volves, for the same purpose, a classification of employees into two categories, viz. those who were in service prior to the retrospective date and those who entered the service thereafter.
If the benefit of the revised pay scales is to be conferred equitably on the old and the new employees, the fitment of salaries is inevitable.
To avoid it is to deny the equal benefit of the revised scales to the employees in service prior to the date from which the new scales come into effect.
The service jurisprudence, therefore, makes it imperative to grant such fitments in the emoluments of the old employees.
The fitment/adjustment in the new scales further, as stated above, has to be done by revising the salaries upward.
This sometimes necessarily involves fitment in a higher stage in the pay scale than what the employee would be entitled to by a strict application of the stage to stage adjustment.
The provision is also, therefore, some times made to treat the additional benefit as a personal pay till it gets merged in the next higher increment.
This is a known practice of equitable adjustment of the old pay scales to the new pay scales.
There is no other way of effecting the just and required adjustment.
Thus, it is not a case of giving undue benefits to one section of the employees be longing to the same class, but is a case of conferring equitable benefits on the old employees and effecting a just adjustment between the salaries of the old and new employ ees, as necessitated by the new pay scales.
As stated above, there is no dispute in the present case that the petitioners were either appointed to the higher post or they came in the service of the Bank, for the first time after February. 1, 1984.
Those who were appointed to the higher post after February 1, 1984 and who were therefore necessarily in the lower post prior to that date, get the benefit of fitment into the new scales in theft earlier lower post according to the very same refixation chart and received arrears of salary on account of such refixation.
What they claim now is that notwithstanding the benefit of the refixation they got in theft lower post, they should also get the said benefit in the higher post, as if they were promoted to the higher post prior to February 1, 1984.
Similarly, those of the petitioners who entered the Bank 's service for the first time after February 1, 1984, want the benefit of refixation as if they 507 were in service prior to February 1, 1984.
The claim of the petitioners is thus on the face of it both unreasonable and unsustainable in law.
We may now examine the authorities cited before us.
K.N. Ananda & Ors.
vs The Karnataka State Financial Corpora tion, Bangalore & Anr., [1985] Labour & Industrial Cases Vol. was not a case of fitment of the salaries of the old employees into the revised scales of pay.
In that case, what the respondent Karnataka State Financial Corpora tion had, instead done was to prepare a conversion table and give the old employees salaries in the revised scale accord ing to the said table.
The pay given to,the old employees according to the table had apparently no relation to the stages in the revised pay scale at which the salaries of the old employees had to be fitted.
The Corporation also could not explain the basis on which the said table was worked out.
In fact, as is apparent from paragraph 16 of the judg ment, the learned counsel for the Corporation being unable to furnish the basis of the differentiation in the salaries, submitted before the court that in fact the Corporation wanted to protect the total emoluments and to allow the new employees, who were petitioners in that case, to earn incre ments over and above the pay, as enacted in the Corpora tion 's resolution of 30th March 1978 which was reproduced in the judgment.
But the State Government did not agree.
It is for this reason that the High Court there held that the conversion table insofar as it was made applicable to the old employees only, was discriminatory in nature and therefore invalid.
It will thus be seen that the facts in that case were different and hence the ratio of the said decision is not applicable to the present case.
P. Savita S/o.
Shri PL Savita vs Union of India, Minis try of Defence (Deptt. of Defence Production) New Delhi & Ors., ; was again not a case of fit ment of the salaries of the old employees into a new pay scale.
In fact, what was done in that case was to prescribe two separate pay scales for Senior Draftsmen by dividing them artificially into seniors and juniors, and awarding Senior Draftsmen new scales while keeping the Junior Drafts men on the old scale.
The Court, therefore, struck down the classification.
D.S. Nakara & Ors.
vs Union of India 's case ; was a case of dividing the same class of individu als, namely, the pensioners on the basis of an artificial date, and giving benefit of pension calculated on a new basis to those employees only who had retired after 31st March 1979.
while denying the benefit of the same 508 computation to those who had retired before that date.
The classification made of the pensioners into two categories on the basis of their retirement date had no nexus to the object which was sought to be achieved, namely to mitigate the hardship of the fixed income group, on account of the ever rising prices, and of the lowering of the value of the rupee.
In fact, it was pointed out by the Court in that case that by extending the benefit to those employees who had retired prior to March 1979 the Court was not making liber alisation of the pension retroactive.
It was only giving the benefit of the same basis of computation to all the pension ers whether they had retired before or after that date.
The Court also pointed out in that context that retroactiveness is implicit in the theory of wages.
When revised pay scales are introduced from a certain date, all existing employees are brought on to the revised scales adopting a theory of fitments and increments for the past service.
The benefit of the revised scales is not limited to those who enter service subsequent to the date fixed for introducing the revised scales but is extended also to those in service prior to that date.
These observations would also make it clear that it is a general practice recognized even by this Court that when new pay scales are introduced, the salaries of the old employees have to be adjusted and fitted into the new scales by adopting some formula of fitments and increments for past service.
In fact, if such fitment is not made, the old employees would get no benefit for the service rendered by them in the past, and they would be placed on par with those who enter the service after the date of the revision of scales.
That would be a case of unequals being treated equally.
It is, therefore, an absence of fitments and ad justments and not their application which results in dis crimination.
In State Government Pensioners ' Association & Ors.
vs State of Andhra Pradesh.
[1986] 3 SCC 501, the Government Order dated 26th March 1980 providing for higher gratuity to the employees who had retired after 1st April 1978 was challenged by the Pensioners ' Association on the ground that the benefit of the said higher gratuity was not made avail able to them.
The Court held that the provision of payment of gratuity on stepped up basis prospectively from a speci fied date of retirement, was not unconstitutional.
In Kanpur Suraksha Karamchari Union vs Union of India, the Government of India by its Order of 25th July 1981 accorded sanction to treat employees of canteens established in Defence Industrial Installation under Section 46 of the Factories Act as the Government employees with immediate effect.
By an amend 509 ment, the said Govt.
Order was given effect to from 22nd October 1980.
The question which was raised in the case was whether the employees who were recognised as Government employees w.e.f. 22nd October 1980, were entitled to calcu late the service rendered by them prior to 22nd October 1980 for the purpose of their pension, and the Court held that the period of service rendered by the employees prior to that date has to be counted for the said benefit.
This was thus in effect giving benefit to the old employees of their past service.
In Reserve Bank of India & Ors.
vs C.N. Sahasaranaman & Ors., 1, what was challenged was the com bined seniority and scheme of promotions for cadres of Officers and non Officers in the Reserve Bank of India.
In the past, there was a separate departmentwise and grade wise seniority, and the promotions to the cadres of Officers and non Officers were effected on the basis of such seniority.
In September 1962, a need was felt for the maintenance of a combined seniority list at each centre for the purposes of promotions as recommended by the National Industrial Tribu nal presided over by Justice Desai.
These recommendations for centre wise combined list were approved by this Court in 1966.
In 1970, the supervisory staff in Class1 was upgraded to staff officers in Class 1 pursuant to the settlement between the employees and the Bank on January 9, 1970 sub ject to certain conditions.
On 6th June 1970, a circular was issued for introduction of written examination for depart mental promotions of clerks grade I/Assistants etc.
to the post of Staff Officers Grade II in all the groups.
The circular was not, however, enforced.
On May 7, 1972 the Bank took several steps towards equalising promotional opportuni ties of employees by introducing what was known as Optee Scheme of 1965 and the Optee Scheme of 1966, and finally by entering into a settlement with the Association of the employees on May 7, 1972.
The Association by that settlement accepted the principle of maintenance of a combined seniori ty list at a centre.
On the same date, the Bank formulated a Scheme for promotions of staff officer Grade I1 after giving full opportunity to the Association to make its suggestions.
On that occasion, tile Bank and the Association further agreed by exchange of correspondence that the ratio of direct recruits to the promotees in the total strength of officers staff Grade II should be 17.5%: 82.5%.
On 13th May, 1972, the Bank introduced administrative circular No. 8 which was binding on all employees of the Bank.
On the same date, the Bank introduced another circular No. 9 on "Scheme of Combined Seniority List and switch over from clerical to non clerical" w.e.f. May 7, 1972 which was also binding on all employees.
The constitutional validity of this Scheme also was upheld by this Court.
510 On May 22, 1974 the Bank took a decision based on the recommendations of the Cadre Review Committee, and issued administrative circular No. 15 to prepare a common seniority list and to provide for another group mobility at the lowest level of officers in Grade A w.e.f. January 1, 1970.
On January 7, 1978 the Bank took further decision based on the recommendations of two Committees, and issued circular No. 8 to combine the seniority of all officers in Grade B and above, w.e.f. May 22, 1974, with a view to equalise the opportunity for promotion among officers.
Three employees who were Grade II clerks working at the Nagpur branch of the Bank ever since their employment, variously between 1962 to 1965, challenged clauses (II)(a)(i) of the Administrative Circular No. 8 of May 13, 1972 dealing with "the Scheme for promotion from staff officer Grade 1I" (later designated as Grade A) before the Nagpur Bench of the Bombay High Court.
This clause provided for the number of candidates who will be qualified to appear in the test at the written examina tion.
The clause stated that an estimate of the vacancies to occur in each office during the panel year, i.e. 1st Septem ber to 31st August, will be declared by the Bank in advance, and the number of candidates in that office will not exceed twice the number of such vacancies subject to other clauses in the Scheme.
The grievance of the petitioners was that the said clause was violative of their rights under Articles 14 and 16 of the Constitution since the chance to appear in the examination depended not on relative merits but merely on the fortuitous circumstance, namely, the number of vacancies occurring in the particular centre in a panel year which had no nexus with the purpose of promotion, namely, to secure a fresh cadre of staff officers, and therefore, the Scheme was bad in law.
The High Court found force in the submission and struck down the said clause.
In allowing the appeal filed by the Bank, this Court there held, among others, that: "In service jurisprudence there cannot be any service rule which would satisfy each and every employee and its constitution ality has to be judged by considering whether it is fair, reasonable and does justice to the majority of the employees and fortunes of some individuals is not the touch stone.
Further, whether there has been denial of equality of the view of promotion or any constitutional right infringed or not cannot be judged, where interest of large number of people are con cerned, in the abstract." 3.2 "The reference held pursuant to the orders of this Court dated 2nd May, 1984 undoubtedly indicates that 511 majority of the employees are in favour of acceptance of the modified settlement.
In matters of service conditions it is difficult to evolve as ideal set of norms governing various conditions of services and in grey area where service rules operated, if more than one view is possible without sacrificing either reasons or commonsense the ultimate choice has necessarily to be conditioned by several considerations ensuring justice to as many as possible and injustice to as few.
These principles, however, significant do not authorise the majority of the employees to trample upon the constitutional guarantees or rights of the individuals or minority employ ees.
Majority cannot thwart or barter away the constitutional rights of the minorities.
The constitutional guarantees are to protect this very danger.
But in judging the content of the constitutional rights, the entire perspective of the equality of opportunity here and denial of equal right in public employment have to be viewed in a fair, reasonable and just perspec tive.
Viewed in that light, it is true there may be individual instances exemplifying injustices by postponing or delaying the chances of promotions of the contesting re spondents yet that does not deny them their constitutional right in its proper measure, and the considerations that have weighed with the making of the modified scheme and in light of the other considerations it must be ob served that with whatever care and objectivity or foresight any rule is framed, some hard ship, inconvenience or injustice might to result but the paramount consideration is the reconciliation of the conflicting claims of two important constituents of service one which brings fresh clerical employees and the other mature experience.
There has been a happy merger of these two considerations in the scheme proposed and in that merger, no violation of the guaranteed rights of the opposing respondents have occurred.
" The observations have much bearing on the present case.
As has been pointed out hereinabove, in the present case also refixation chart of the salaries of the employees was worked out with the approval of the Association of the Bank Officers concerned.
The employees involved were further large in number.
Any chart evolved to fit the salaries of the old employees who had entered the service during the whole span of the period prior to 1st February 1984, was bound to result in some employees getting slightly more and others getting 512 slightly less.
It is not possible in such circumstances to satisfy all employees to the same degree.
Hence, as contend ed by the petitioners, if in some cases.
the employees have received some excessive benefit, the chart cannot be faulted on that account.
The chart as applied is a uniform one and is designed to adjust the old salaries in the new scale.
In a large organisation with a large number of employees in volved in the exercise, a few marginal cases of excessive benefits cannot be relied upon to invalidate the entire chart, for no adjustment chart in such cases can be free from some defects.
In Tarsem Lal Gautam & Anr.
vs State Bank of Patiala & Ors., AIR 1989 SC 30 and in C.R. Seshan & Anr.
vs State of Maharashtra & Ors., AIR 1989 SC 1287 this Court has, in fact, held that a higher category in the same class of employees on the basis of seniority cummerit can be carried out and a higher pay scale can be given to such higher category and that it is neither arbitrary nor unconstitu tional to do so.
The aforesaid review of the authorities shows that none of them supports the proposition advanced by the peti tioners, namely, that the salaries of the old employees cannot be brought on to the new or revised pay scales by giving them fitment increments as is done in the present case.
In fact, in such a case to refuse to fit the salaries of the old employees in the new scales of pay by denying them the necessary fitment or adjustment increments, is to deny them the equality of treatment.
That amounts to ignor ing their past service and to treating them on par with the new entrants which would be unjust in itself.
The adjustment increments granted to the old employees on such occasions automatically achieve the dual purpose of rewarding them for their past service and of adjusting their salaries in the new scale.
The adjustment fitment and increments are there fore not discriminatory but eminently just and valid.
In the circumstances, we find no merit in this petition and dismiss the same.
There will, however, be no order as to costs.
Y. Lal Petition dismissed.
|
In response to the charter of demands concerning the revision of pay scales, submitted by the officers of the Respondent Bank, called "NABARD Officers ' Association", the bank on 9.10.85 revised the pay scales of all its officers as per settlement with the Association and gave the said revision retrospective operation w.e.f.
1st February 1984, following the same date as was done in the Reserve Bank of India.
In order to fix the salaries of the employees, who were in employment of the Bank of 1 2 1984, the Respondent Bank prepared a refixation chart which was duly approved by the NABARD Officers ' Association.
The chart was made ap plicable to all the officers who were in service of the Bank on 1.2.1984.
The chart was a device to fit the salaries of the concerned officers in the new revised pay scales.
Thus it contained fitment increments for the employees in service prior to 1.2.84 to avoid reduction in emoluments and anamo lies which would otherwise have resulted.
These increments were to merge in the new scales in the course of time as they were not designed to grant higher emoluments to the old employees for all time to come but to avoid anamolies re sulting from refixation of salaries into new scales.
The Petitioners challenged the fitment increments granted to old employees.
It was their case that these increments gave undue benefit to the old employees as against them, and since they occupied the same posts they were also entitled to the same fitment increments.
They also invoked the theory the 'Equal pay for Equal work ' by alleging discrimination between them and the old employees.
It may be mentioned that the Association had 2284 members and except the present petitioners no body had made a grievance against the refixa tion chart.
Dismissing the Petition, this Court, 502 HELD: The revision of pay is always effected with a particular date prospectively or retrospectively.
Whatever the date from which it is effected, it necessarily involves fitment of the salaries of the existing employees in the new scales.
A retrospective operation of the new scales there fore involves, for the same purpose, a classification of employees into two categories viz., those who were in serv ice prior to the retrospective date, and those who entered the service thereafter.
If the benefit of the revised pay scales is to be conferred equitably on the old and the new employees, the fitment of salaries is in evitable.
To avoid it is to deny the equal benefit of the revised scales to the employees in service prior to the date from which the new sales came into effect.[506B C].
The fitment/adjustment in the new scales further, has to be done by revising the salaries upward.
This sometimes necessarily involves fitment in a higher stage in the pay scale than what the employee would be entitled to by a strict application of the stage to stage adjustment.
Some times the additional benefit is treated as personal pay till it gets merged in the next higher increment.
This is a known practice of equitable adjustment of the old pay scales to the new pay scales.
There is not other way of effecting the just and required adjustment.
[506D E] The adjustment increments granted to the old employees on such occasions automatically achieve the dual purpose of rewarding them for their past service and of adjusting their salaries in the new scale.
The adjustment, fitment incre ments are therefore not discriminatory but eminently just and valid.
[512F] K.N. Ananda & Ors.
vs The Karnataka State Financial Corporation, Bangalore & Anr., [1985] Labour & Industrial Cases Vol.
18 p. 1079; P. Savita S/o Shri P.L. Savita vs Union of India, Ministry of Defence (Deptt. of Defence Production) New Delhi & Ors., ; ; D.S. Nakara & Ors vs Union of India, ; ; State Government Pensioners Association & Ors.
vs State of Andhra Pradesh, [1986] 3 SCC 501; Kanpur Suraksha Karamchari Union vs Union of India, ; Reserve Bank of India & Ors.
vs C.N. Sahasaranaman & Ors., ; ; Tarsem Lal Gautam & Anr.
vs State Bank of Patiala & Ors., AIR 1989 SC 30; C.R. Seshan & Anr.
vs State of Maharashtra & Ors.
, AIR 1989 SC 1287, referred to.
|
Date of Decision: 19th February, 2021
+ W.P. (C) 2297/2021 & CM APPLs.6685/2021, 6686/2021,
Through: Mr. Akhil Sibal, Sr. Advocate with
Ms. Vrinda Bhan dari, Mr. Abhinav
Sekhri, Ms. Sanjana Sr ikumar, Mr.
Krishnesh Sapat & Ms. Sonali Malik,
Advocates (M -8826571429)
versus
Through: Mr. Tushar Mehta, Solicitor General ,
Maha jan, SPP, Mr. Rajat Nair, SPP
and Mr. Dh ruv Pande, Ms. Mallika
Hiremath, Mr. Shantanu Sharma, Ms.
Sairica Raju, Mr. A. Venkatesh, Mr.
Guntur Pramod Kumar, Mr. Shaurya
R. Rai, Ms. Zeal Shah, Ms. Aarushi
Singh and Mr. Anshuman Singh,
Advocates for R -1/GNCTD.
Mr. Chetan Sharma, ASG and Mr.
Ajay Digpaul, CGSC with Mr. Amit
Gupta, Mr. Vinay Yadav, Mr. Sahaj
Garg, Mr. Akshay Gadeock & Mr.
R.V. Prabhat, Advocates for R-
Ms. Nisha Bhambhani and Mr. Rahul
Bhatia, Advocates for R -3.
Mr. Mrinal Bharti, Mr. S umant De
and Mr. Manish Shekha r, Advocat es
for R -4. (M:8527099904)
Mr. Hrishikesh Baruah, Mr. Pranav
Jain, Ms. Mehma Kaur & Ms.
Radhika Gupta, Advocates for R -5.
Mr. Kunal Tandon, Mr. Kumar
Shashank Shekhar and Mr. Amandeep
Singh, Advocates for R -6.
Prathiba M. Singh , J. (Oral )
1. This hearing has been done through hybrid mode (physical and virtual
hearing).
2. The present petition has been filed by Ms. Disha Ravi who is stated to
be an environment al activist seeking various reliefs against the Poli ce, the
Ministr y of Information and Broadcasting (hereinafter Ministry of I&B) and
various news channels in respect of what are allegedly attributed leakage of
her messages and various other investigation material which has been
broadcasted and disseminate d by the TV cha nnels at the behest of Delhi
Police. The case of the Petitioner is that she was arrested on 13th February,
2021 in Bangalore and was brought to Delhi. She was sent on police remand
vide order dated 14th Februa ry, 2021 by the Duty Magistrate, Patiala House
Courts.
3. She claims that after her arrest during the process of investigation,
various messages, etc. were leaked by the police to the media, resulting in a
large number of programs , news bulletin s and onlin e dissemination of
various priva te messages and interventions which were broadcasted . Some
of the bulletins also made allegations that she is associated with various
illegal and unlawful groups. It is the submission of Mr. Akhil Sibal, ld.
Senior Counsel a ppearing for the Petitioner that the offic ial Twitter handle
of Delhi Police released various co mments about the investigation which is
going on and these formed the basis of the reports by the News channels. He
also alleged that the Petitioner apprehends that various messages were
leake d by the police to the media. He submits that there are four reliefs that
the Petitioner claims in this writ petition. Firstly, that the allege d WhatsApp
conversation ought to be removed from the public domain and the police
should be directed not to disse minate anything, which is not part of the
public record. Secondly, media house s ought to be directed to comply with
the program code and the advertisemen t code. Thirdly, the Delhi police
ought not to share the investigation files and lastly that the police ought not
to conduct any press briefings.
4. The ld. Senior Counsel has taken the Court t hrough the various
Twitter messages which ha ve been placed on record. Reliance is placed
upon various judgments in the manner in whic h TV channels and other
medi a outlets should exercise responsibility while re porting on an
investigation which is ongoing. The Petitioner is claimed to have issued
various cease and desist notices. However, since the media TV channels did
not exercise any restraint , the present petit ion has been filed. Finally reliance
is placed upon the office memorandum dated 1st April, 2010 issued by the
Ministry of H ome Affairs, which provides the broad guidelines in the
manner in which the investigation and coverage of investigation should be
undertaken.
5. Mr. Raju, ld. ASG appearing for the Delhi Police has at the outset
presented an affidavit on behalf of the Delhi Police. The same has been
sworn by Mr. Anyesh Roy, Deputy Commissioner of Police (Cyber Cell) to
the e ffect that the allegations o f the Petitioner that the information or
investigation data has been leaked, is fal se and is incorrect. A categorical
statement has been made to the effect that no information or documents
forming part of the case files has been shared by Delhi Police with any
media houses or individual. The only exception to this is press briefings or
broadcast s which are matter of record and are not disputed. He further
submits that there is an attempt by the Petitioner to malign the police and
there could be various othe r sources from where the leakage could have
taken place. In any event, he assures th e Court that the briefings of the Delhi
Police will be in accordance with law.
6. On a query from the Court, Mr. Raju, ld. ASG confirms that th e said
office memorandum dated 1st April 20 10 is operative even as of today. He
further submits that the present writ petition is nothing but a method to
exercise pressure on the investigation agencies by maligning them and an
attempt to hamper the investi gation.
7. Mr. Chetan Sharma , ASG appearing for the Ministry of I&B submits
that the Ministry is the nodal body for enforcing the program code and
advertisement code and under the Cable Televisions Network s (Regulation)
Act, 1995 and its Rules. The said Mi nistry has constituted an in ter-
Ministerial Committee which is headed by the Additional Secretary, I&B to
look into in any complaints which may be received . As on date No
complaints have been received. He also challenges the maintainability of the
writ pet ition.
8. On behalf of News Broadcasting Standards Authority (NBSA), Ms.
Nisha Bhamban i, ld. counsel submits that at the outset, the NBSA has no
jurisdiction o ver tweets or internet articles. It is the authority working under
the News Broadcasters Associa tion (NBA) and has nine Memb ers and is
headed by a retired Supreme Court Judge. She submits th at no complaint has
been received by the NBSA till date and if any complaint is received, the
same shall be considered in accordance with the code of conduct appl icable
to the Members of the NBA. Ld. counsel further confirms that the three TV
channels which a re impleaded in the present petition are Members of the
9. Mr. Mrinal Bharti, ld counsel on behalf of News 18, submits that he
wishes to take instructions in the matter as he has bee n served with the paper
book just a few hours ago. He wishes to verify the various b roadcasts and
submits that his channel would go by the broadcast s and justif ies the same as
the same are not violative in any manner.
10. On be half of India Today – Mr. Hr ishikesh Baruah, ld. counsel
submits that the only publication which is complained of is an online article
and does not relate to India Today TV channels. In any event, he submits
that the Petitioner herself does not seems to be alleging that the WhatsApp
messages are false or incorrect and cannot be attributable to her. If that is the
position , the broadcasting of the WhatsApp messages which are correct
cannot be complained of. Reliance is placed upon the judgment of the
Supreme Court in Central Public Information Officer, Supreme Court Of
India vs Subhash Chandra Agarwal 2020 5 SCC 481 and the judgment of
the Q ueens Bench in Douglas and Others v. Hello! Ltd [2001] QB 967 .
11. Mr. Kunal Tandon, ld. counsel appearing for Times Now places four
submissions for consideration i.e. firstly, that all the information is in public
domain and he has not had the opportunity to view the vide os which has
been shared with the Court. He further submits that in any event considering
the tweets wh ich have been posted by the Delhi Police, the broadcast of the
said tweets or any other news relating to the investigation of the Petitioner
cannot be obj ectionable. He submits that the right of privacy of the
Petitioner would be restricted only by public interest which has to be
`overwhelming ’ as per the judgment of the Supreme Court in K.S.
Puttaswam y and Anr. v. Union of India & Ors., 201 7 (10) SCC 1 . If the
Petitioner wishes to enforce her remedies in terms of the Cable Televisions
Networks (Regulatio n) Act and Rules, she has the remedy to do so. Since
the Government has not refused to entertain the Petitioner’s complaint as the
Petitioner has not approached the Government, the maintainability of the
petition is challenged.
12. In rejo inder, it is sub mitted that the difference between `Public
record s’ and records in public domain ha s to be maintained. The fact that the
WhatsApp messages may be in public domain, does not make them a part of
the public record. The Petitioner having been arrested, the ent ire leakage has
happened at the instance of Respondent No.1. Since the office memor andum
respect s the privacy of undertrials, the same should be abided by.
13. Heard ld. counsels for the parties. The present petition raises issues of
public importance. T here are three aspects to the present case. Firstly, the
privacy, dignity of the i ndividual concern ed as also her right to fair trial .
The s econd aspect would be the sovereignty /integrity of the country and
whether there could be reasonable restrictions that could be imposed
considering the nature of the investigation that i s currently taking place. The
third aspect would be the right to free speech and the right of the public to
know. Repeated judgment s of various courts including t he Supreme Court of
our country have laid down broad principles and guidelines in o rder to
ensure that a correct balance is struck.
14. Needless to add that in order to adjudicate the issues which have
arisen in the present petition, a detailed hearing would be requir ed, inasmuch
as a number of Respondents have not an opportunity to r espond to the
allegations made in the petition as also peruse the material that has been
handed over to the Court today. Thus, time would have to be granted to the
Responde nts to file a reply to the applica tion for interim relief.
15. However, the ques tion at this stage is whether the present state of
affairs ought to continue . This Court has had the opportunity to view the
videos, which have been placed on record of News 18 and several other
materials, which have been revealed from the record including the tw eets by
of Delhi Police and other publi cations which are online. There is no doubt
that the regulation of content in print and electronic media has been a very
contes ted issue across the w orld and India is no exception to that. The
reasons for the same are not far to seek i n as much as content regulation is
viewed as being direct ly affront ive to the Right of free speech . However,
while a journalist cannot be asked to reveal the source, it would have to be
ensured that the source ought to be a verifi ed and authentic source and the
content ought not to be merely specul ative or conjectural . Content also
ought not to be offensive, scandalising and to the extent possible shou ld be
factual in na ture.
16. In the present case, the affidavit, which has been pla ced on record by
the Delhi Police reads as under:
“I, Anyesh Roy, Deputy Commissioner of
Police, Cyber Crime Unit -CyPAD, Special
Cell, New Delhi do hereby solemnly declare
and affirm as under :
1. That I am supervisory officer of the FIR
No.49/2021 dated 0 4.02.2021, registered by
PS Special Cell and am conversant with the
facts and circumstances of the case. I am
further competent to swear this aff idavit.
2. That the presen t affidavit is file d in
compliance of the statement made before this
Hon’ble Court dated 18.02.2020. In this
regard, I respectfully state and submit that
the allegation of the petitioner that the
subject information [chats of th e petitioner]
has been leak ed by the Responden t No.1, is
false and factually incorrect.
I state and submit th at no
information/document forming part of the
case file including the subject chats have
either been shared by the Respondent No.1
with any media house or individual except
the information co mmunicated officially
through press briefing or broadcast, which is
a matter of record, nor the same has been
leaked from Respondent No.1’s end.”
17. Thus, the Delhi Police has taken an unequivoc al position that they are
not responsible for leaking the me ssages or the investigation material to the
medi a houses. The media houses, however, both in the online article s as
also in the videos claim to the contrary. This would require a little more
detailed examination in the present case and replies to be calle d from the TV
channels.
18. The question that arises is what should be the ad interim directions
that ought to be passed , if any, in order to ensure that all the three aspects –
the Petitioner ’s privacy, dignity and right of fair trial - the sovereignty and
integrity of the country - & the right to free speech are equally protected and
balanced. The various cases which are placed on record have laid down
two principles which are clear that the right of the indiv idual has al ways to
be balanced with the right of the public and the public int erest which is
involved.
19. The print and electronic media plays a very important role in ensuring
that there is no sensationalis m and that they adhere to responsible
journalism. Recen t coverage by the media defin itely shows that there is
sensationali sm. While police briefings and the happenings in Court
proceedings etc. can also be broadcasted and disseminated, leaked
investigation material ought not to be disseminated so as to prejud ice the
investigation.
20. Accordingly, without making any furthe r observations, on the various
issues which have been raised and would be adjudicated in the present
petition, the following directions are issue d:
(i) The Delhi Police will strictly abi de by the affidavit dated 18th
February, 2021, which has been filed today as also the Office
Memorandum dated 1st April, 2010, which is, admittedly, still
in operation. The Delhi Police or other in vestigation authorities
would, however, be, in te rms of th e said OM, entitled to
conduc t their briefings in accordance with law so long as no
rights of the Petiti oner are violated.
(ii) Media houses shall also ensure that the telecast/broadcast by
them is from verified/authenticated sources, though th e sources
need not be revealed. All di sseminated content shall be in strict
adherence to the `Programme Code ’ as contained in the Cable
Television Network s Rules 1994 as also the Code of Ethics &
Broadcasting Standards prescribed by the News Broadcasters
Associatio n.
(iii) The editorial teams of the respective channels shall ensu re that
only such broadcasts and telecasts are communicated and
disseminated, which have verified data and verified content.
The channel editors shall ensure that the channel s exercise
proper editorial control so that the Petitioner’s investigation is
not hampered, in any manner.
(iv) If the charge -sheet is filed in the meantime and the same is
made public , once the investigation reaches some conclusion,
dissemination of the contents of the charge -sheet w ould not be
interdicted in any manner.
(v) Since there is an alleg ation that persons who sympathise with
the Petitioner ’s cause are attempting to malig n the police and
investigation authorities, Mr. Akhil Sibal, ld. Senior Counsel
while denying the allegation, assure s that the Petitio ner or any
other person directly associated with her do not intend to
indulge in any kind of maligning of the police or the
investigating authorit ies. This assurance is accepted by the
Court.
(vi) The questi on of removal of content, whi ch is already in pu blic
domain shall be considered with the hearing of the stay
applic ation at a later stage.
21. All parties and the media in general shall adhere to the above
directions. The NBSA to co mmunicate these directi ons to all its members .
For t he sake of ready re ference of all stakehol ders, a copy of the Office
Memorandum dated 1st April 2010 is appended as Appendix A to this order.
22. Reply to the stay application or the writ petition , be filed within one
week. R ejoinder ther eto, if any, be filed within one we ek thereafter. List
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The Delhi High Court today directed news channel editors to exercise proper control while reporting so that the investigation into the farmers protests toolkit, in which arrested climate change activist Disha Ravi is implicated, is not hampered.
The Court also directed Ravi to ensure that the people connected to her do not indulge in scandalising the Delhi Police during the course of the investigation into the case.
The Bench of Justice Prathiba M Singh passed an interim order directing the following:
Delhi Police will strictly abide by affidavit filed today, wherein it has stated that it has not leaked anything to the media and that it does not intend to do so. The Office Memorandum of April 1, 2010 concerning press briefings to the media, would also have to be complied with. Delhi Police would be able to conduct press briefings in accordance with the law;
Media shall ensure that telecasts are from verified and authentic sources, though sources are not being asked to be revealed at present. The editorial teams shall ensure that only such broadcasts are disseminated which has verified content. The channel editors are to ensure proper editorial control so that the investigation is not hampered, in any manner;
Once the charge sheet is filed, its coverage would not be interdicted in any manner;
The petitioner is to ensure people connected to her do no indulge in unnecessary/scandalising messages. This would ensure that the parties do not go on a maligning course during the investigation. The Court also took note of the submission for the petitioner that no such content has been put out by the petitioner or persons connected. to her, and that they have no intention to do so.
The question of removal of content already online would be considered at a later stage.
The Court was of the opinion that the matter requires a detailed hearing, as a large number of respondents did not have the opportunity to peruse the material in question. It further noted in its order,
"There is no doubt that the regulation of content has been a very contested issue across the world. India is no exception...While journalists cannot be asked to reveal sources, they need to ensure that the source ought to be authentic and a verifiable source... "
The Court added,
"The media plays a very important role in ensuring there is no sensationalisation and that they indulge in responsible journalism. Recent coverage by the media definitely shows there is prejudicial and sensational journalism which is being undertaken by the media houses."
Justice Singh further noted that the need of the hour was to strike a balance.
"In order to ensure that all three aspects of petitioner's privacy/dignity, sovereignty/integrity and free speech are equally protected and balanced, right of the individual has to be balanced with the right of public," the Court said.
The matter will be next heard on March 17.
Appearing for Ravi today, Senior Advocate Akhil Sibal contended that the FIR lodged on February 4 does not mention the name of his client. He added that when she was arrested, no information was given to her family on whether production is going to happen. However, the media was present at the place of production in large numbers.
Sibal then told the Court that Times Now reported that Ravi "broke down in court and said she edited only two lines". On the same day, Sibal added, Delhi Police put out a tweet saying that Ravi did more that editing two lines, that she collaborated with a Khalistani organisation, and that she shared the toolkit with Greta Thunberg.
He accused the Delhi Police of making its case through its Twitter handle.
Thereafter, Sibal continued, a press briefing was held, following which the media began discussing WhatsApp chats allegedly sent by Ravi. The media had attributed this news to police sources, he said.
Referring to a News18 report, he said that the person reporting in Hindi goes into detail on what questions were asked by the police, and what answers were given. The media also reported that Disha Ravi also coaxed Greta Thunberg into speaking on the case, Sibal informed the Court.
When the Court asked Sibal if he was alleging that Delhi Police was responsible for leaks to the media, he said,
"They have in fact leaked, that is the only logical inference. The person broadcasting says I have got it from police forces. This is happening while I am being produced before the Magistrate."
He went on to refer to an India Today report with inbuilt commentary and inferences on the case.
Sibal then referred to a Central government circular advising police against press briefings in ongoing cases. In this circular, it was mentioned that such briefings should take place only at the stages of registration, arrest of accused, and chargesheeting, and should only be confined to the facts of the incident.
Additional Solicitor General SV Raju, appearing for Delhi Police urged the Court to adjourn the matter till Monday, assuring that no press conference would be held till then.
Justice Singh then raised a query on media attributing leaks to police sources, while acknowledging that a journalist may not divulge sources. Raju replied,
"What media says may not be gospel truth. To hide his source, (media) may say it is the police...There are several persons interrogating, somebody may leak it. There may be ten persons interrogating, a peon may leak..."
He added,
"We don't intend to do anything that is illegal. Leaking is illegal."
Raju then pointed out that there were certain statements made to malign the police.
"If we counter that and we hold a press conference, there cannot be any violation of guidelines."
He added that the bar on leaking should be applicable to both sides.
The ASG further contended that the writ petition has been filed to put pressure on and malign the police, and to hamper the investigation.
Advocate Nisha Bhambhani, appearing for News Broadcasting Standards Authority (NBSA), stated that no complaint was received by the NBSA and if any complaints had been received, NBSA would have taken action.
When counsel for News18, advocate Mrinal Bharti sought some time to file a reply, the Court observed,
"There is no doubt that the video is very, very sensational."
Advocate Hrishikesh Baruah, appearing for India Today, said that the article in question was not a news broadcast at all.
"This is only digital news online article...therefore Cable TV Network Act, programme code has no application..."
The Court noted that the issue raised is the WhatsApp messages being attributed to Ravi by these news channels. On this point, Raju contended,
"If you reveal WhatsApp chats at the stage of charge sheet, there is no violation of privacy. It is in favour of ensuring investigation that it is not revealed at this stage (before chargesheet)."
Sibal countered,
"There is a difference between the public record and the public domain. Merely saying that 'something is wrongfully disseminated in public domain so I must not be restrained from disseminating it further' is wrong."
He went on to say,
"How do we stop this? They say they haven't leaked, media says we got it from the police... they must not disclose anything from the casefile which is not part of public record. That's the only what to stop it."
ASG Chetan Sharma appeared for Central Government authorities to submit that the Union Ministry of Information and Broadcasting has constituted an inter-ministerial committee to look into complaints regarding television broadcasting. He pointed out that no complaint has been received so far over any private channel broadcast disseminating the WhatsApp messages. He added that the petition is premature.
Advocate Kunal Tandon appeared for Times Now, and contended that all the broadcasts were made were on the basis on material available in the public domain.
After taking the submissions of the parties on record, the Court proceeded to pass its interim order.
Ravi had moved Delhi High Court seeking a direction to the Delhi Police to not leak any material to media in relation to the toolkit FIR.
She had also prayed for a direction to the Central government to take appropriate action against News18, India Today, Times Now and all other satellite TV channels under the Cable Television Networks (Regulation) Act, 1995 for compromising her fair trial rights and privacy by reporting on details of the FIR.
Such conduct, it was asserted, goes against her presumption of innocence, and violates her right to fair trial, thereby affecting the administration of justice.
The Court had issued notice the NBSA and the news channel in the matter on February 18. During this hearing, SG Mehta claimed that the Delhi Police was not responsible for the leak of the FIR.
Ravi was apprehended by the Delhi Police during the night of February 13, on the allegation that she had made edits to a Google document that was shared as a “toolkit” related to the ongoing farmers protests.
The toolkit was the basis for the case registered by Delhi Police after Swedish climate activist Greta Thunberg had tweeted the same, expressing support for the farmers protests.
The Delhi Police claimed that the “toolkit” itself was created by a Khalistani group, Poetic Justice Foundation and was edited by Disha Ravi. It was Ravi who shared the same with Thunberg, the police alleged.
The police custody of Ravi, who was remanded for five days by the Patiala House Court, expires today. She was earlier allowed a copy of the FIR, as well as access to warm clothes and books.
She has now been sent to judicial custody for three days.
Read the order:
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Applicant :- Jasman Singh @ Pappu Yadav
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Bhagwan Das
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1-Despite being service of notice upon the informant, no one has
put in appearance on behalf of informant.
2-Heard Mr. Bhagwan Das, learned counsel for the applicant, Mr.
Virendra Kumar Maurya, learned Additional Government Advocate
assisted by Mr. Prashant Kumar Singh, learned brief-holder, representing
the State and perused the record of the case.
3-By means of this application, applicant-Jasman Singh alias Pappu
Yadav, who is involved in Case Crime No. 30 of 2019, under sections
323, 376(2)(1), 452 and 506 IPC, and section 3/4 of Protection of
Children From Sexual Offences Act, police station Jakhaura, district
Lalitpur, seeks enlargement on bail during the pendency of trial.
4-As per prosecution case, in brief, Smt. Kalawati, the informant,
who is aunt of the victim lodged first information report on 17.02.2019 at
1.15 hours in respect of incident, which took place on 16.02.2019 at 16.30
hours against the applicant alleging inter alia therein that on 16.02.2019 at
about 4.30 p.m. the victim, aged about 13 years, who after the death of her
mother residing with the informant, was alone in the house for doing
some house-hold work and all the family members had gone to
agricultural field for cutting fodder. The applicant taking the advantage of
the situation, forcibly entered into the house of the informant and
threatening to kill the victim, she was dragged to inside the room by
grabbing her hair, and forcibly committed rape upon the victim. At that
time, suddenly the informant, her son Rohit and one Magan came to the
house and knocked the door, but when they entered the house, they saw
the victim lying unconscious in a naked condition and the applicant tried
to fled away by climbing the wall, but he was caught hold by Rohit,
Magan Vishwakarma, Arjun and Madhav alias Chotu at the spot. When
the victim gain consciousness, she narrated the whole incident. Thereafter,
the police was informed about the incident on phone by the family
members of the informant, on which the applicant was arrested by the
police from the house of the informant.
5-It is argued by the learned counsel for the applicant that there was
love affair between the victim and the applicant. She herself called the
applicant, but he was caught hold by the family members of the victim. It
is also submitted by the learned counsel for the applicant that there is also
dispute between the informant and the applicant regarding the land,
therefore, the applicant has been falsely implicated in the present case,
averment in this regard has been mentioned in paragraph 14 of the bail
application. It is also submitted that the applicant has no criminal
antecedent to his credit and is facing detention since 16.02.2019. It is next
contended that there is no chance of the applicant of fleeing away from
the judicial process or tampering with the prosecution evidence. Learned
counsel for the applicant lastly submitted that if the applicant is released
on bail, he will not misuse the liberty of bail and will cooperate in the
early disposal of the case.
6-Per contra, learned Additional Government Advocate has opposed
the bail prayer of the applicant by contending that as per medical
examination report, the victim is minor child, aged about 13 years. The
applicant has committed rape upon the victim in her own house and he
was apprehended by the family members of the victim at the spot. It is
also submitted that the victim in her statement under section 164 Cr.P.C.
has made allegation of committing rape upon her forcibly by the applicant
and also supported the prosecution case. It is next submitted by learned
A.G.A. that the applicant has a criminal history of six cases, as mentioned
in bail rejection order of the applicant dated 23.10.2020, but in paragraph
19 of the bail application, it is mentioned that the applicant has no
criminal history.
7-After having heard the arguments of learned counsel for the
parties, this Court finds that the applicant has a criminal history of six
cases as mentioned in bail rejection order of applicant dated 23.10.2020,
but in paragraph 19 of the bail application it is mentioned that the
applicant has no criminal history, as such the applicant has not come with
clean hands before this Court and suppressed his criminal history. In
paragraph 14 of the bail application, it is mentioned that there is dispute
between the applicant and informant regarding the land, but no material in
this regard has been brought on record. The victim, aged about 13 years,
is studying in fifth standard. According to medical examination report of
the victim, all epiphysis are not fused. In the opinion of the doctor, who
conducted the medical examination of the victim, sign of violence seen
and sexual violence cannot be ruled out. The offence of committing rape
upon a minor child is heinous in nature.
8-In view of judgment of Hon'ble the Apex Court in the case of
Neeru Yadav vs. State of U.P. (2015) 3 SCC 527, criminal
antecedents of the accused cannot be ignored while deciding bail
application, discretionary powers of Courts to grant bail must be exercised
in a judicious manner in case of a habitual offender. The said judgement
has been further followed in a recent judgment of Apex Court in the case
of Sudha Singh vs. State of U.P. and another, 2021 (4) SCC 781.
9-In this case, a small innocent girl has been raped, who does not
understand its meaning. Little girls are worshiped in our country, but the
cases of pedophilia are increasing. Rape is a heinous crime. The victim
suffers from psychological effects of embarrassment, disgust, depression,
guilt and even suicidal tendencies. Many cases go unreported. In almost
rape cases, the victim was unwilling to report the name of the abuser. The
families of the victim remain silent about the sexual offences in order to
protect the family image. The victim/female small child experience sexual
abuse once tend to be more vulnerable to abuse in adult life. Healing is
slow and systematic. In such a situation, if the right decision is not taken
from the Court at the right time, then the trust of a victim/common man
will not be left in the judicial system. This is the time to strictly stop this
kind of crime.
10-Considering the facts and circumstances of the case,
submissions advanced on behalf of parties, gravity of the offence and
severity of the punishment, I do not find any good ground to grant bail to
the applicant.
11-Accordingly, the bail application is rejected.
12-However, it is clarified that the observation, if any, made here-in
above shall be strictly confined to the disposal of the bail application and
must not be construed to have any reflection on the ultimate merits of the
case.
13-Office is directed to send a copy of this order to the informant of
this case within two weeks.
14-It is directed that in case, certified copy of this order is not
issued due to COVID-19 pandemic, the copy of the order downloaded
from the official website of the Allahabad High Court shall be acted upon.
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The Allahabad High Court recently lamented about the rise of child sexual abuse cases in India, while denying bail to a man accused of raping a thirteen-year-old girl. (Jasman Singh v. State of UP)
Justice Sanjay Kumar Singh remarked that although little girls are worshiped in our country, the cases of pedophilia are increasing.
"In this case, a small innocent girl has been raped, who does not understand its meaning. Little girls are worshiped in our country, but the cases of pedophilia are increasing. Rape is a heinous crime. The victim suffers from psychological effects of embarrassment, disgust, depression, guilt and even suicidal tendencies. Many cases go unreported. In almost rape cases, the victim was unwilling to report the name of the abuser" the Court said
The Court observed further that small children who experience sexual abuse even once tend to be more vulnerable to abuse in adult life and that the healing process can be slow and systematic.
Rejecting the bail plea, the High Court added that if the right decision is not taken from the Court at the right time, then the trust of victims and the common man will not be left in the judicial system.
"In such a situation, if the right decision is not taken from the Court at the right time, then the trust of a victim/common man will not be left in the judicial system. This is the time to strictly stop this kind of crime", stated the order.
The bail application was moved by Jasman Singh, who was charged under Sections 323, 376(2)(1), 452 and 506 of the Indian Penal Code (IPC), along with Sections 3 and 4 of the Protection of Children From Sexual Offences Act (POCSO Act).
The prosecution told the Court that the incident took place in January 2019, when the thirteen-year-old victim was alone at home.
The accused is stated to have taken advantage of the situation, forcibly entered the house and threatened to kill the victim. He is further alleged of having dragged the victim inside a room by her hair and forcibly committed rape on her.
The victim is stated to have been found lying unconscious and naked when her family came home. The accused alleged tried to flee by climbing a wall, but was caught hold of at the spot.
Denying these allegations, the accused submitted that there was love affair going on between the victim and himself and that she had called him herself. It was also alleged that there was a dispute between the victim's family and the accused regarding some land, owing to which he was falsely implicated in the case.
The Court, however, found that nothing had been presented to support the claim made by the accused regarding the alleged land dispute.
The State further informed that the victim's age has been found to be thirteen-years following medical examination. The Additional Government Advocate stood by the prosecution's version that the accused had forcibly raped the victim before he was apprehended by her family. It was also submitted that the victim had alleged that the accused had raped her in her statement to the police.
Coupled with this, the Court also took critical note of the accused having a history of six criminal cases, as opposed to an averment in his bail plea that he had no criminal antecedents. The accused had not come with clean hands to the Court, the Judge therefore observed.
Referring to a doctor's report the Court added,
"... in the opinion of the doctor, who conducted the medical examination of the victim, sign of violence seen and sexual violence cannot be ruled out. The offence of committing rape upon a minor child is heinous in nature."
In view of these factors and the gravity of the alleged crime, the Court proceeded to dismiss the bail application.
Allahabad High Court denies bail to rape accused"Little girls are worshiped in our country, but cases of pedophilia are increasing."Reports @Areebuddin14 Read full story: https://t.co/HCpuVkffFD pic.twitter.com/0y59Wyfscn
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This special leave petition is against the judgment and order
dated 30th July 2021, passed by a Single Bench of the High Court of
Judicature at Bombay, rejecting an application being Interim
Application (ST) No. 9764 of 2021 filed by the petitioner in First
Appeal No. 9761/2021, seeking inter-alia an interim injunction
restraining the respondents from releasing the film “Gangubai
Kathiawadi”, based on the book “Mafia Queens of Mumbai”.
2.The petitioner who claims to be an adopted son of the
protagonist of the film “Gangubai Kathiawadi”, filed a suit in the
City Civil Court of Mumbai seeking, inter alia, permanent
injunction restraining the Respondent Nos. 1 and 2 from printing,
publishing, advertising, selling, alienating, assigning and/or
creating any third party rights or holding any press meets to
promote the novel “Mafia Queens of Mumbai” and/or otherwise writing
any other stories on the life of the petitioner’s mother.
3.The petitioner also sought a permanent injunction restraining
the respondent Nos. 3 and 4 from producing, selling, assigning any
rights to any entity, company, firm, cinema halls, multiplexes,
social media or any other platforms or giving any press statement
in public or on electronic media of the trailer/promo and/or film
of the movie “Gangubai Kathiawadi”. Interim relief was sought
inter alia restraining the concerned respondents from releasing the
movie “Gangubai Kathiawadi”.
4.Some of the respondents filed applications under Order VII
Rule 11 of the Code of Civil Procedure for rejection of the plaint
being Notice of Motion Nos. 186-187 of 2021, which were allowed by
the City Civil and Sessions Court, Mumbai and the plaint was
rejected.
5.Being aggrieved, the petitioner filed First Appeal No.
9761/2021 in the Bombay High Court and also filed Interim
Application being ST No. 9764 of 2021 seeking interim relief, which
has been rejected by the order impugned. The appeal is pending
before the Bombay High Court.
6.From the plaint, a copy whereof is included in the Paper Book,
and in particular Paragraph 24 thereof, it appears that one of the
respondents had, in response to a communication from the
petitioner, questioned the status of the petitioner as the adopted
son of Gangubai and called upon him to establish the same with
proof. However, the plaint does not disclose any particulars of
the petitioner's alleged adoption, not to speak of any documents on
materials except the photocopy of a Ration Card. As noted by the
City Civil and Sessions Court, Mumbai and the High Court, there are
no materials at all to establish that the petitioner is the adopted
son of Gangubai. A photocopy of a Ration Card unsupported by any
other material does not even prima-facie establish the case of the
petitioner of being the adopted son of Gangubai, who had died way
back in the year 1980.
7.In paragraph 3 of the plaint, the petitioner has stated that
he is the son of Gangubai. In paragraph 11 he has stated that his
mother had, since his adoption, given him all the love and
affection of a mother, even though Gangubai was not his biological
mother, she never made the petitioner feel that she was not his
biological mother. According to the petitioner, the movie as also
the book are defamatory in nature.
8.It is not in dispute that the film “Gangubai Kathiawadi” has
already been given the requisite certificate by the Central Board
of Film Certification (CBFC) under the Cinematograph Act, 1952.
9.Section 5-B of the Cinematograph Act, 1952 lays down the
principles for certifying films. The section provides that a film
shall not be certified for public exhibition, if, in the opinion of
the authority competent to grant the certificate, the film or any
part of it is against, inter alia, decency, or morality, or
involves defamation. Section 6 of the said Act enables the Central
Government to call for the records of any proceedings in relation
to any film which is pending certification or has been certified.
Rule 32 of the Cinematograph(Certification) Rules, 1983 provides
that where any complaint is received by the CBFC in respect of a
film which has been certified, such complaint shall be forwarded to
the Central Government and the Central Government may, if it
considers it necessary, direct the Chairman to re-examine the film
in such manner and with such assistance as may be specified in the
direction. The petitioner has apparently made no complaint to the
10.It is true that an injunction action can be initiated even
after a certificate is issued under the Cinematograph Act. The
Court may examine the film and judge whether its public display,
breaches the norms of decency or contravenes the law. A film which
is defamatory or indecent or breaches copyright cannot be allowed
to be exhibited only because a certificate has been issued. The
examples are of course illustrative.
11.At the same time, it has to be kept in mind that the
guidelines for certification of films, as contained in Section 5(a)
read with Section 5(B) of the Cinematograph Act, 1952 though not
mandatory, have been carefully formulated. They require the CBFC
to be responsive to the values and standards of society and also
take note of social changes. The CBFC is required to ensure that
sensibilities are not offended by obscenity, vulgarity, defamation
or denigration of any group of persons.
12.A book or a film that illustrates the consequences of a social
evil must necessarily show that social evil, as observed by a three
Judge Bench of this court speaking through Bharucha, J. in Bobby
Art International & Ors. vs. Om Pal Singh Hoon & Ors. reported in
(1996) 4 SCC 1. The guidelines must be interpreted in that light.
A film that carries a message and depicts social circumstances of a
group of underprivileged women is not impermissible.
13.The fact that the film has been certified by CBFC, which
comprises of a body of experts prima facie shows compliance with
the requirements of the guidelines. In the introduction of the book
“Mafia Queens of Mumbai” on which the film “Gangubai Kathiawadi” is
based, the author says :-
“As a writer and journalist, it was a seminal moment for me. I
was intrigued. I began compiling data and began taking a
special interest in crimes where women figured prominently. It
might come handy if I wrote a book, I told myself.
And after having written about all kinds of criminals over the
years, I can say with firm conviction that when it comes to
gender dynamics, it is much easier to be a Dawood Ibrahim than a
Jenabai Daaruwali. If you sift through the gangs of Chhotas
(Rajan and Shakeel), you will find clones galore, but you will
rarely come across a Sapna Didi, a woman who dared to stand up
against Dawood and was given a dastardly death by the don’s
acolytes. Of the twenty-two stab wounds inflicted on her, four
were specifically targeted at her private parts, a grisly
message of warning to other women not to dally with the mafia
This book is an attempt to understand the complex minds and the
psyche of women criminals. It is in no way meant to glorify
them. On the other hand, these women were not blank slates
written upon by dangerous male mafia members. There is no
simplistic cause-effect way of looking at their lives. There is
no doubt that for these women, crime was not only a way of
transcending their poverty and limitations but also a life-
saving concept. By focusing on these women, I am not trying to
essentialise the nature of female criminals. They are
fascinating women because they pushed the boundaries of our
dominant moral codes.
Compiling the extraordinary and powerful tales of thirteen women
from the world of crime and the underworld was overwhelmingly
challenging and arduous, especially because a number of them
flourished at a time when crimes by women were barely documented
or acknowledged. These include the stories of bootlegger
Jenabai Daaruwali and brothel madam Gangubai Kathiawadi.
As journalists the first lesson we learnt was not to sit on
judgment but raise questions. In the stories that you will
read, we have desisted from being judgmental and have stuck to
facts. We have relied heavily on court documents, police
records, cop historians, reliable journalists and published news
stories in major national dailies.
In the absence of these, we have interviewed relatives,
neighbours, retired policemen, veteran journalists and other
independent witnesses. We ensured that any account which seemed
controversial was corroborated by two separate parties. Those
accounts which seemed contradictory to each other were ignored.”
14.In Nachiketa Walhekar vs. Central Board of Film Certification
reported in ( 2018) 1 SCC 778, this Court held :
“5. Be it noted, a film or a drama or a novel or a book is a
creation of art. An artist has his own freedom to express
himself in a manner which is not prohibited in law and such
prohibitions are not read by implication to crucify the rights
of the expressive mind. The human history records that there are
many authors who express their thoughts according to the choice
of their words, phrases, expressions and also create characters
who may look absolutely different than an ordinary man would
conceive of. A thought provoking film should never mean that it
has to be didactic or in any way puritanical. It can be
expressive and provoking the conscious or the sub-conscious
thoughts of the viewer. If there has to be any limitation, that
has to be as per the prescription in law. ”
15.For an actionable tort, there has to be a wrongful act, and
damage or loss or inconvenience or annoyance caused to another, by
reason of the wrongful act. Annoyance or inconvenience or loss
alone does not give right to a legal action. The question of what
constitutes nuisance is a question which the Court has to
determine. The Court has first to ascertain what is the legal duty
of which there has been breach. The right to an injunction depends
on the legal right and this must be determined before any relief
can be granted by the Court.
16.Nowhere in the plaint or in the special leave petition filed
in this Court has the petitioner adverted to any provision of law
which prevents an author from writing a biographical book/story or
prohibits the making of any biographical film.
17.Mr. C. Aryama Sundaram, Mr. Mukul Rohatgi, Mr. Siddharth Dave
and Mr. Dhruv Mehta, learned senior Counsel appearing on behalf of
the respondents, have emphatically argued that the concerned
respondents have incurred phenomenal expenses in producing the film
“Gangubai Kathiawadi”, which is scheduled to be released tomorrow
i.e. 25.02.2022. This Court should not restrain the release of the
film at the last moment. The balance of convenience is against an
interim order at the last moment, restraining the respondents from
releasing the film which has already been distributed to the
exhibitors. The learned counsel for the respondents have asserted
that the book and the film based on the book eulogise the
protagonist “Gangubai”. She has not been defamed. They argued
that the respondents cannot be denied their fundamental right of
freedom of speech and expression guaranteed under Article 19(1)(a)
of the Constitution of India. It is true as argued by Mr.
Rakesh Singh, learned counsel appearing on behalf of the petitioner
that the fundamental right to freedom of speech and expression is
subject to restrictions. There is no fundamental right to defame,
which the concerned respondents have done in their book and in the
film based on the book.
18.Defamation has been defined in Section 499 of the Indian Penal
Code. As per the definition of ‘defamation’ in Section 499 of the
Indian Penal Code, w hoever, by words either spoken or read, or by
visible representations, makes or publishes any imputation
concerning any person, intending to harm, or knowing or having
reason to believe that such imputation will harm the reputation of
such person, is said to defame that person. As per Explanation-1
it may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person
if living and is intended to be harmful to the feelings of his
family or other near relatives. Explanation 4 clarifies that no
imputation is said to harm a person’s reputation, unless that
imputation directly or indirectly, in the estimation of others,
lowers the moral or intellectual character of that person.
There are, also exceptions to defamation. It is not defamation to
impute anything which is true, concerning any persons or if the
imputation has been made or published for the public good.
Whether or not it is for the public good is a question of fact,
that has to be determined by the Court.
19.Mr. Mukul Rohatgi and Mr. C. Aryama Sundaram, have placed
reliance on Section 306 of the Indian Succession Act to argue that
the right to sue for defamation does not survive after the death of
the party defamed. Section 306 of the Indian Succession Act which
speaks of the rights of administrators and executors of the estate
of the deceased, does not bar family members and near relatives
covered by Section 499 of the Indian Penal Code from seeking
injunction. The judgment of this Court in Melepurath Sankunni
Ezhuthassan vs. Thekittil Geopalankutty Nair reported in (1986) 1
SCC 118, cited by Mr. C. Aryama Sundaram was rendered in the
context of survival of the right to sue for damages for defamation.
A right in tort may arise when any imputation concerning a deceased
person harms the reputation of that person, if living or is
intended to be hurtful to the feelings of his family members or
other near relatives.
20.The argument sought to be advanced that the petitioner could
not have claimed the relief of injunction without first seeking a
declaration of his status as adopted son of Gangubai, cannot be
sustained. Of course the petitioner would be required to establish
that he is a family member.
21.It is well settled that for interim relief, the court has to
consider the prima facie case made out by the applicant for interim
relief, both on the question of locus standi to sue, if questioned
and on the merits of the prayer for interim relief. The Court also
has to consider the balance of convenience.
22.For maintaining an action in tort of defamation, the applicant
for interim relief would have to satisfy the Court, that (i) the
applicant was a member of the family or a near relative of the
person defamed; (ii) what was stated about the deceased family
member/relatives was untrue; and (iii) what was stated would lower
the character and reputation of the deceased. Mere hurting of
sensibility is not defamation, if the person said to be defamed is
not lowered in character or credit in the eyes of others.
23.The book was admittedly published in the year 2011. It is
stated that the decision to make the film “Gangubai Kathiawadi” was
taken in the year 2018 and the film was duly publicised. The film
is due to be released tomorrow, i.e., 25.02.2022. The question is
whether an ad interim order should be passed at this stage.
24.As observed above, there are no materials disclosed or even
pleadings to show, even prima facie, that the petitioner was a
family member or a near relative of Gangubai.
25.The contention of the petitioner is that the story of Gangubai
sought to be depicted is untrue, is vague and devoid of material
particulars. In any case, whether the story is true or incorrect
would have to be decided by the Court upon examination of the
evidence. The film certificate issued by the CBFC prima facie
shows that the film is not defamatory. Prima facie, it appears
that the movie is an artistic expression within the parameters of
law.
26.In the circumstances, interim relief was rightly refused to
the petitioner. The appeal of the petitioner is pending in the
High Court. It is open to the petitioner to agitate all issues in
the pending appeal. Any observations made in the impugned order at
the interlocutory stage will not affect the decision in the appeal.
The impugned order does not call for interference of this court.
27.The special leave petition is, accordingly dismissed.
28.Pending applications, if any, stand disposed of accordingly.
New Delhi;
February 24, 2022.
Petition(s) for Special Leave to Appeal (C) No(s). 15711/2021
(Arising out of impugned final judgment and order dated 30-07-2021
in IA(ST) No. 9764/2021 passed by the High Court of Judicature at
Bombay)
Date : 24-02-2022 This petition was called on for hearing today.
For Petitioner(s) Mr. Rakesh Singh, Adv.
Mr. Narendra Dubey, Adv.
Ms. Anjali Rajput, Adv.
Mr. Amogh Agrawal, Adv.
Mr. Sumit Sinha, Adv.
For Respondent(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. C. Aryama Sundaram, Sr. Adv.
Mr. Siddhartha Dave, Sr. Adv.
Mr. Dhruv Mehta, Sr. Adv.
Ms. Liz Mathew, AOR
Mr. Abhishek Malhotra, Adv.
Ms. Naomi Chandra, Adv.
Ms. Sanya Dua, Adv.
Mr. Navneet R., Adv.
Ms. Sonali Jain, Adv.
Ms. Vasudha Jain, Adv.
Ms. Saumya Gupta, Adv.
Mr. Nikhil Rohatgi, Adv.
Mr. M. Thangathurai, Adv.
Ms. Vidhi Thaker, Adv.
Mr. Aditya Vaibhav Singh, Adv.
Ms. Aarushi Singh, Adv.
Mr. Rajesh Kumar, Adv.
Mr. Parag Kanohar, Adv.
Mr. Zafar Inayat, Adv.
Ms. Rohini Musa, Adv.
Mr. Abhishek K. Gupta, Adv.
Mr. Samir Malik, Adv.
Mr. Parag Khandhar, Adv.
Ms. Rohini Musa, Adv.
Mr. Zafar Inayat, Adv.
Mr. Abhishek Gupta, Adv.
Mr. Pravin Anand, Adv.
Mr. Dhruv Anand, Adv.
Mr. Ameet Naik, Adv.
Ms. Madhu Gadodia, Adv.
Mr. Vikas Singh Jangra, AOR
UPON hearing the counsel the Court made the following
Heard learned counsel for the parties.
The special leave petition is dismissed in terms of the signed
order.
Pending applications, if any, shall stand disposed of.
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The Supreme Court on Thursday dismissed the petition seeking an injunction on the release of Alia-Bhatt starrer Gangubai Kathiawadi, filed by a person who claimed to be the adopted son of Kathiawadi on whom the film is based [Babuji Rawji Shah vs S Hussain Zaidi].
A Bench of Justices Indira Banerjee and JK Maheshwari was considering an appeal filed against the order of the Bombay High Court that continued the stay on summons issued by a Mumbai court in a criminal defamation complaint against the producers of Gangubai Kathiawadi, actress Alia Bhatt, and authors S Hussain Zaidi and Jane Borges, who wrote the book on which the film is based.
The bench has held that "prima facie, it appears that the movie is an artistic expression within the parameters of law."
"The contention of the petitioner is that the story of Gangubai sought to be depicted is untrue, is vague and devoid of material particulars. In any case, whether the story is true or incorrect would have to be decided by the Court upon examination of the evidence. The film certificate issued by the CBFC prima facie shows that the film is not defamatory. Prima facie, it appears that the movie is an artistic expression within the parameters of law," the order said.
Furthermore, the Court held that there are no materials disclosed or even pleadings to show, prima facie, that the petitioner was a family member or a near relative of Gangubai.
Appearing for the filmmakers, Senior Advocate Aryama Sundaram said that the Court was dealing with a case where the film has not been seen as yet.
"Censor certificate has been given. So for a person to say that legal right should not be exercised, the person has to show a strong reason," he said.
Sundaram also called into question the proof that the petitioner was actually Gangubai's adopted son.
"Not even a whisper of proof of the same apart from ration card," he argued.
On the argument of the petitioner that the film casts the area of Kamathipura (in Mumbai) in bad light, the Senior Advocate said,
"We don't consider it shameworthy if a woman rises above from this background and does something for the society, it is not to be ashamed of."
He also refuted the defamation claims, saying that nothing prima facie has been shown to the Court to prove the same.
"I am not defending the book Mafia Queens in any way. This book is there since 11 years. This person who claims to be a son is not aware of this and now when film is coming out he becomes aware of it," he said.
Sundaram next dealt with the claim of the petitioners that the names of victims of sexual assault could not be published.
"This is not an ongoing trial and she is not a victim. She is someone who has died 42 years ago. She is not a victim. Every house has a picture of her."
At this point said, a teary-eyed Justice Banerjee said that she had respect for women who are pushed into prostitution. Recounting her days as head of the West Bengal Legal Services Authority and Chair of the Calcutta High Court Legal Aid Committee, she said,
"I had once came across a trafficked woman and I still get goosebumps. A 14-year-old girl who could not manage meals was with an aunt who could not feed her. Then she was called to Mumbai for a job in a restaurant. She agreed to go to Mumbai to eat four square meals. Clients wanted to have unprotected sex with her.
One of the clients took pity on her and then she was taken to a journalist and sent to an NGO. She contracted HIV too. She caught my hand and said. 'What wrong did I do?' This is the plight of a lot of people there. I don't look down upon any one..."
"But I did not reveal the name of the victim or the village name," she added.
Sundaram then contended,
"Your Ladyship's point is correct, but this story is about how a lady beat the odds and this is a motivating story. Gangubai statue is there in Kamathipura and she is treated as a Devta/Devi there."
Senior Advocate Mukul Rohatgi backed the submissions made by Sundaram.
"The book is of 2011 and is not derogatory at all. The character Gangubai has been glorified as to how she rose from a background and became an activist and how she was caught in such a situation and how she rose thereon," Rohatgi argued.
After arguing that a defamation suit abates with the person's death, Rohatgi questioned,
"Why is there a gap of 9 months is challenging the Bombay High Court judgment? Reason will be Covid, but we all are working in Covid. This plea comes before a day before the release of the film. Satellite and third party rights have been granted."
He went on to cite the Padmaavat case, in which the Supreme Court had refused to ban the film.
"Injunction is an equitable relief and cannot be granted here. There are 2,000 theatres which will run this. Producer, actor, theatre, distributor all their rights run along with this and depend on the movie theatre tickets," Rohatgi said concluding his arguments.
Senior Advocate Siddhartha Dave appearing for Bhansali productions, submitted that the petitioners did not satisfy the court on the grounds of exception to defamation and that the plea ought to be dismissed.
Counsel for the petitioner, Advocate Rakesh Singh, argued that defamation not only affects the person, but family members as well. When the Court asked him to prove how the movie defamed Gangubai, Singh said,
"They say movie is on book and if the book is defamatory then movie is defamatory...the book says that she was having an affair and then she was pushed into a brothel in Kamathipura. The promo also depicts this...dialogue in movie is also defamatory to the victim."
Justice Maheshwari then asked Singh for proof that his client was adopted by Gangubai. On questioning the counsel, the Court found that there was no official adoption of the petitioner.
TMT Law Practice's Naomi Chandra and Sanya Dua along with DSK Legal briefed Senior Counsels appearing for Sanjay Leela Bhansali and Bhansali Productions through a team headed by Managing Partner Anand Desai and Partners Chandrima Mitra, Parag Khandhar and Samir Malik.
The petitioner was represented through Advocates Rakesh Singh, Arun Kumar Sinha and Sumit Sinha.
Naik Naik & Co. represented author S Hussain Zaidi.
On Wednesday, the Court had asked the producers of the film whether it would be possible to change the title of the movie, in light of the several cases pending before courts seeking to halt its release scheduled for Friday, February 25.
The respondents argued that with a day to go before the movie is released, a name change "would not be possible."
The suit filed by Gangubai's adopted son had sought an injunction against Bhansali Productions from producing, directing or airing the promo of any film based on said novel, including Alia Bhatt-starter Gangubai Kathiawadi.
It was the contention of the petitioner that the balance of convenience in a defamation suit must always be in favour of the defamed person.
Moreover, it was stated that the Bombay City Civil Court was not justified in dismissing the suit under Order VII Rule 11(d) CPC merely by placing reliance on two judgments of the Madras High Court which should only have a persuasive value on the Court.
Meanwhile, the Bombay High Court on Wednesday dismissed two petitions seeking to remove references to the area in which the film is set.
BREAKING: #SupremeCourt DISMISSES plea by Gangubai's "adopted son" seeking an injunction against Bhansali Productions from releasing #GangubaiKathiawadi @aliaa08 https://t.co/CblqzxGkKh
|
Aravind Kumar, J.
1. Even after 41 years, the parties to this lis are still groping in the
dark and litigating as to who should be brought on record as legal
representative of the sole plaintiff Mrs. Urmila Devi (hereinafter
referred to as ‘Urmila Devi’ for the sake of brevity ). This is a classic
case and a mirror t o the fact that litigant public may become
disillusioned with judicial process es due to inordinate delay in the legal
proceedings , not reaching its logical end , and moving at a snail’s pace
due to dilatory tactics adopted by one or the other party . The said suit ,
OS No.2 of 1982 , was instituted for the relief to declar e the sale deed,
executed by Shri Mangal Singh (hereinafter referred to as ‘first
defendant’ for the sake of convenience) in favour of defendant s No.4
to 32 in respect of the suit properties described in the plain ts schedule
as item No.1 to 8, to be null and void by claiming to be the owner of
the said properties ; and for a decree of possession of the suit properties
with costs .
2. When the aforesaid suit was still at infancy stage the sole-
plaintiff expired on 18.05.2007. One Mr. Manoj Kumar Jain filed an
application to substitute him as her legal heir , by placing reliance on
the Will dated 19.05.1999 and claiming to be a legatee under the said
registered Will. He also filed an affidavit stating thereunder that Mr.
Yashpal Jain (hereinafter referred to as ‘appellant ’ for the sake of
convenience) was a witness to the said registered Will. The defendants
objected to the said application contending inter alia that the appellant
herein was the adopted son of late Urmila Devi by relying upon the
adoption deed dated 06.01.1 973 duly registered in the office of the
Sub-Registrar. In the said proceedings , the present appellant also filed
an affidavit stating thereunder that he was a witness to the Will dated
19.05.1999 executed by Urmila Devi in favour of Manoj Kumar Jain.
The application filed by Manoj Kumar Jain came to be allowed by
order dated 24.02.2010.
2.1 Being aggrieved by the said Order the legal heirs of the first
defendant namely , legal heirs of Mangal Singh , filed a Civil Revision
No.2 of 2010 before the District Judge which came to be allowed by
setting aside the Order of the Trial Court on the ground that applicant
had stated during the course of the revisional proceedings that he would
not press the said application and as such directed the Trial Court to
consider the application filed by Yashpal Jain -appellant herein and
permitted him to file an application seek ing condonation of delay along
with the application to bring on record the legal representatives of the
sole plaintiff , since he had failed to do so earlier . Accordingly, revision
application came to be allowed by order dated 02.12.2011 and Mr.
Yashpal Jain filed an application before the Trial Court for condoning
the delay in filing such application and also prayed for abatement of
suit to be set aside . The learned Trial Judge vide Order dated
09.05.2012 allowed the application by setting aside the abatement and
permitted Yashpal Jain to be substituted as legal representative of late
Urmila Devi .
3. At this juncture, we would lik e to point out that a careful
perusal of the application and the orders passed by the courts below
would indicate that the parties and the courts below seem to have
proceeded on the footing that they were to adjudicate the right s of a
legal heir which if seen in the light of expression used in the Code of
Civil Procedure (hereinafter referred to as ‘CPC’) is impermissible , as
it is not referable to ‘legal heir ’ but ‘legal representative ’ as defined
under Section 2 (11) which reads:
“Legal representative ” means a person who in law
represents the estate of a deceased person, and includes any
person who intermeddles with the estate of the deceased and
where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the
party so suing or sued .
On the death of a party to the suit it is the legal representative who
is/are entitled to prosecute the proceedings and, in law, represent the
estate of the deceased . The legal representative w ho is brought on
record not only include s a legatee under a Will but also an intermeddler
of the property who would be entitled to sue and to be su ed and/or
continue to prosecute the proceedings. This vital aspect seems to have
been lost sight of by the courts below conveniently.
4. Be that as it may , the aforesaid Urmila Devi who claimed to be
Bhumidar and owner in possession of land situated in village
Sonargaon, Patti Katul syun, District G arhwal , Utt arakhand has
contended in her suit that the suit schedule properties were looked
after by Mangal Singh - the first defendant and as he had fraudulently
obtained a Bhumidar Sanad of the land comprising No.77, 3/16 Nalis ,
she had filed an application under Section 137 -A of UP Act No.1 of
1951 before the Tehsildar/ Assistant Collector , Pauri Garhwal,
challenging the said Bhum idari Sanad obtained by the first defendant ,
which was held in her favour by the Tehsildar, and confirmed by the
appellate authority. Not being satisfied with the said order, the first
defendant had filed a second appeal before the Revenue Board which
came to be allo wed in favour of Mangal Singh , against which a review
petition was filed thereon by Urmila Devi which came to be allowed
on 30.08.1982. The s aid order was challenged before the High Court
of Utt arakhand in W rit Petition (M/S) No.342 of 2005 ( old No.14655
of 1983 ) by Mangal Singh. In the said proceedings a substitution
application came to be filed by the legal representative of Mangal
Singh stating thereunder that Yashpal Jain (appellant herein) is the
legal representative of deceased Urmila Devi and prayed for his name
to be substituted. The said application came to be allowed vide order
dated 24.02.2012 and appellant herein was substituted as the legal
representative of Urmila Devi in writ proceedings . There is no further
challenge to said order or in other words , it has attained finality.
5. As already noticed hereinabove, appellant herein filed an
application for substitution as legal representative of the original
plaintiff -Urmila Devi along with an application for condoni ng the
delay in filing said application and to set aside the ab atement. The said
application came to be allowed vide Order dated 09.05.2012. Being
aggrieved by the said order, the Legal Representatives of Mangal Singh
filed Civil Revision No.4 of 2012 before the District Judge who
affirmed the Order of the Trial Court an d dismiss ed the Revision
Petition by Order dated 13.12.2012. The legal representatives of
Mangal Singh filed WP No.144 of 2013 before the High Court
challenging the Orders dated 09.05.2012 and 13.12.2012 passed by the
Trial Court and the Revisional Court, respectively . The High Court
allowed the writ petition by quashing the impugned orders and
rejecting the application of the appellant herein , thereby restoring the
original order dated 17.05.2008 where in Manoj Jain had been ordered
for being substituted as legal representative of late Urmila Devi on the
strength of the registered Will dated 19.05.1999 propounded by him
with a direction to concl ude the proceedings within a period of 9
months. Being aggrieved by the same, the present appeal has been
filed.
6. We have h eard the arguments of Ms. Rachna Srivastava,
learned Senior Advocate , appearing for the appellant and Mr.
Rameshwar Prasad Goyal, learned counsel , appearing for the
respondent s.
7. It is the contention of Ms. Rachna Srivastava, learned Senior
Advocate appearing for the appellant , that the High Court committed
a serious error in upsetting the findings of the Trial Court and the
Revisional Court whereunder the discretionary power was exercised
by condoning the delay while setting aside the ab atement and
allowing the application of the appellant herein to be brought on
record as legal representative of deceased Urmila Devi; t he High
Court erred in not considering the fact that courts below had recorded
a clear finding that appellant herein was the sole surviving legal
representative of the deceased plaintiff and as such it ought not to
have interfered with the well-reasoned order passed by the Trial
Court as affirmed by the Revisional Court ; She would also contend
that defendants in this suit who were the writ petitioners in WP(M/S)
342 of 2005 (old number 14655 of 1983) had substitute d the
appellant herein as legal representative of Urmila Devi in dispute
related to the suit schedule property (involved in OS No.2 of 1982 )
and as such defendants cannot be permitted to take stand contrary to
same. Hence , it is contended that impugned order is liable to be set
aside.
8. Per contra , Shri Rameshwar Prasad Goyal, learned counsel
appearing for the respondent s, support s the impugned order and
contend s that in the Writ Petition No.144 of 2013, appellant herein
who was a party therein had n ot filed a counter -affidavit and as such
High Court ha d recorded that non -trave rsing of petition averments
would amount to admission and had also taken note of the fact that
appellant herein had filed an affidavit before the Trial Court on
25.10.2008 whereunder he has accepted the Will dated 19.05.1999
executed by deceased Urmila Devi and thereby supported the stand of
Manoj Kumar Jain being the legal heir of Urmila Devi. He would also
draw the attention of this Court to yet another affidavit dated
21.08.2009 filed by the appellant himself in OS No.2 of 1982
where under he has again supported the Will dated 19.0 5.1999 or in
other words , supported the substitution of Shri Manoj Kumar Jain as
legal representative of deceased Urmila Devi. Hence, he contends
there is no illegality committed by the High Court. It is further
contended that appellant was having knowledg e of OS No.2 of 1982
and as such he cannot plead ignorance for the delay. Lastly,
challenging the adoption on the ground that s ame cannot be the basis
for the appellant herein to be brought on record , he has sought for
rejection of this appeal .
9. Having heard the learned counsel s appearing for the parties and
after bestowing our careful and anxious consideration to the rival
contentions raised at the Bar, we are of the considered view that
following points would arise for our consideration:
(i) Whether the impugned order dated 28.11.2019
passed in Writ Petition (M/S) No.144 of 2013 quashing the
order s dated 13.12.2012 rendered in Civil Revision No.4 of
2012 by the High Court whereby the order dated 09.05.2012
passed by trial cou rt allow ing the impleadment application
filed by the appellant herein had been rejected , is to be
sustained or set aside?
(ii) Whether any further direction or directions requires
to be issued for concluding the proceedings in a time bound
manner on account of Suit No.2 of 1985 pending for trial for
past 41 years ?
(iii) What order ?
10. It is not in dispute that Smt. Urmila Devi had instituted a suit
O.S. No.2 of 1982 against Mangal Singh and others in respect of suit
schedule properties as described in the plaint schedule for declaring the
sale deed s executed by Mangal Singh in favour of defendant Nos.4 to
32, as mentioned in Plaint Schedule 1 to 18 , as null and void; and
during the pendency of the said suit the plaintiff - Smt. Urmila Devi
expired on 18.05.2007 . On her demise Mr. Manoj Kumar Jain file d an
application on 17.05.2008 for substitution as her legal heir and
claiming right legatee under the Will dated 19.05.1999 . This
application was followed by an affidavit of the appellant (Yashpal Jain)
dated 25.10.2008 stating thereunder that his mother Urmila Devi had
executed a Will dated 19.05.1999 in favour of Manoj Kumar Jain and
also stating thereunder that Will was duly registered. The legal heirs of
the defendant objected the said substitution contending, inter alia , that
the present appellant is the adopted son of Urmila Devi and said
adoption deed was duly registered on 06.01.1973 in the office of the
Sub-Registrar. It was also conten ded that Shri Rajendra Prasad Jain
was the holder of power of attorney of Urmila Devi and on his
(Rajendra Prasad) death on 18.02.2001, she had executed another
power of attorney on 21.04.2001 appointing Virender Kumar Jain and
on the basis of the same the name of his wife came to be mutated in
respect of the lands indicated thereunder. Hence , it was contended that
Will propounded by Manoj Kumar Jain was fabricated and forged.
Hence, it was prayed that claim of Manoj Kumar Jain for being
substituted as legal representative of Urmila Devi is liable to be
rejected . Yet another affidavit was also filed by the appellant on
21.08.2009 reiterating the contents of the earlier affidavit dated
25.10.2008. In other words, it was contended that Manoj Kumar Jain
was not the legal representative of Urmila Devi.
11. The learned trial judge allowed the application by order dated
24.02.2010 for substitution by condoning the delay with costs and
directed substitution of Manoj Kumar to be the legal representative of
deceased plaintiff Urmila Devi.
12. The a forestated order dated 24.02.2010 came to be challenged
by legal representatives of Mangal Singh in Civil Revision No.2 of
2010 which resulted in same being allowed vide order dated
02.12.2011 and the order of the trial court dated 24.02.2010 was set
aside by taking note of the fact that Manoj Kumar Jain had stated in
his application 27/C along with affidavit that he would not press the
substitution application . The appellant was granted liberty to file an
application for impleadment as a party before the lower court. In this
background appellant herein file d an application for substitution as
legal representa tive of Urmila Devi and this application came to be
filed on 05.12.2011 along with application for condonation of delay
and to set aside abatement , which was opposed by the legal
representative s of the first defendants by filing objections and
contending that application filed by Yashpal Jain is not maintainable .
After hearing the learned Advocates appearing for the parties learned
trial judge by a detailed order dated 09.05.2012 condoned the delay
and allowed the application of the appellant to be brought on record as
legal representative of the deceased -plaintiff Urmila Devi. This order
came to be affirmed by order dated 13.12.2012 in Civil Revision No.4
of 2012 file d by the legal representatives of Mangal S ingh.
13. It is pertinent to mention at this juncture that during the life
time of Urmila Devi an application came to be filed under Section 137-
A of U.P. Act No.1 of 1951 before Tehsildar/ Assistant Collector, Pauri
Garhwal contending that the Bhumidari Sanad had been obtained by
Mangal Singh , with reference to land comprising Nos. 77, 3/16 Nalis ,
by adopting forgery , which came to be accepted . The appeal filed by
Mangal Singh before the Assistant Collector against the order of
Tehsildar did not yield any result, which gave rise to filing of a Second
Appeal before the Revenue Board culminating in said appeal being
allowed in favour of Mangal Singh. The Review Petition filed against
the order of the Second Appellate Authority came to be allow ed and
this was challenged by Mangal Singh in WP (M/S) No.342 of 2005
(Old No.14655 of 1983). During the pendency of the said writ
petition, as noticed earlier, Urmila Devi expired and an application for
substitution came to be filed by the very same lega l representatives of
Mangal Singh (who are Respondent Nos.1 to 5 herein) vide Annexure
P-10, specially plead ing thereunder to delete the name of Respondent
No.4 (therein) Smt. Urmila Devi and substitute Yashpal Jain
(appellant herein) in her place. This application came to be allowed by
order dated 24.02.2012 as reflected in Annexure RA/2 annexed to the
rejoinder affidavit of the appellant. In th is view of the matter, it cannot
be gain said by the respondents herein that the appellant is not to be
substituted as legal representative of deceased Urmila Devi. It is for
this cogent reason , the learned trial judge vide order dated 09.05.2012
allowed the substitution and permitted the appellant herein to be
substituted as legal representative of deceased plaintiff -Urmila Devi.
Rightly so, this order of the trial court came to be affirmed by the
Revisional Court vide order dated 13.12.2012. It would be apt and
appropriate to note at this juncture and at the cost of repetition that
Manoj Kumar Jain, who h ad initially filed an application for
substitution which came to be allowed by the trial court by order dated
24.02.2010, which order was carried in Civil Revision No.2 of 2010
and in the said proceedings an application came to be filed by said
Manoj Kuma r Jain stating thereunder that he does not intend to press
the application filed by him for being substituted as legal
representative of Urmila Devi . This fact also persuaded the Revisional
Court to remand the matter back to the trial court vide order dated
02.12.2011.
14. In this factual scenario, the defendants cannot be heard to
contend that appellant herein had filed two affidavits (Annexure P -5
and Annexure P -7) whereunder he had ad mitted Manoj Kumar Jain as
the legal representative of deceased Urmila Devi and as such he cannot
turn around to assert himself to be the legal representative of Urmila
Devi, for the simple reason that affidavits filed by the appellant
Yashpal Jain does no t even remotely suggest or indicate that he hav e
admitted Manoj Kumar Jain being the legal representative of Urmila
Devi. On the other hand, said affidavits which ha s been perused by
us, would clearly indicate that he has only affirmed and reiterated the
fact that he is a signatory to the said Will and nothing more or nothing
less.
15. Mr. Rameshwar Prasad Goyal, learned counsel appearing for
the respondents herein , have also contended that on account of non -
traversing of the writ petition averments the contents thereof are to be
presumed true and correct, though seem s to be an attractive
proposition at first brush , it cannot be accepted for the simple reason
that consent does not confer jurisdiction. Even otherwise, the records
would clearly indica te that Manoj Kumar Jain himself had filed an
application , accompanied by affidavit before the Revisional Court in
Civil Revision No.2 of 2010 , stating thereunder t hat he would not
press the application filed by him for substitution and this was
sufficient for the High Court to have accepted the plea of the appellant
or in other words , it should have sustained the order of trial court and
ordered for appellant being brought on record as legal representative
of deceased Urmila Devi.
16. At the cost of repetition , it requires to be noticed that
respondents herein themselves having filed an application in WP
(M/S) No.342 of 2005 for bring ing the present appellant (Yashpal
Jain) as her legal representative in the writ petition (M/S) 342/2005
and prosecuted the same , would reflect that they were in the
acquaintance of the fact that present appellant being the legal
representative of deceased Ur mila Devi but yet are attempting to
contend that Manoj Kumar Jain is to be brought on record as legal
representative of Urmila Devi. In this background the impugned order
which has resulted in rejection of the application filed by the appellant
to be brought on record as legal representative of Urmila Devi if
sustained would result in the estate of deceased plaintiff not being
represented , as a consequence of which suit would abate or would be
put to a silent d eath by the defendants without claim made in the suit
being adjudicated on merits. Hence, point No.(i) is answered in favour
of the appellant and against respondents and therefore , the impugned
order is set aside.
17. As far as the question of right of the appellant over the suit
schedule propert ies, we are of the view, by virtue of adoption
propounded , it is an issue which w ould be at large before the learned
trial court and the veracity of the Will dated 19.05.1999 alleged to
have been executed by Urmila Devi in favour of Manoj Kumar Jain ,
is to be decided in appropriate proceedings and as such we desist from
expressing any opinion in that regard and contention s of both parties
are kept open.
18. Case papers on hand would disclose that dispute between the
parties relates back to 02.02.1982 the date of institution of th e suit
No.2/1982 by the original plaintiff Smt. Urmila Devi . As to the stage
of the suit namely, as to whether trial has commenced or otherwise ,
the material available before this court are silent but the fact remains
that proceedings have got protracted from 1982 till demise of Urmila
Devi on 18.05.2007 and thereafter it has moved at a snail’s pace or in
other words , the litigation seems to have not been taken to its logical
end for reasons best known . The death of the original plaintiff opened
up a flood of litigation and as a result of it, several orde rs came to be
passed by the courts below , both in original jurisdiction and revisional
jurisdiction , which also reached the High Cout and ultimately before
this Court by th e present proceedings . The cause for delay has been
myriad. It is for this reason we have expressed our anguish at the
beginning of this judgment as to likelihood of litigant public get ting
disillusioned of justice delivery system due to delays. It would be apt
to note that certain litigations initiated more than 50 years back are still
pending. As per the data extracted from National Judicial Data Grid
(NJGD) , we have noted hereinbelow the three oldest civil and criminal
cases:
1. West Bengal
(a) Civil Judge Senior Division, Malda – Partition Suit
No.30 of 1952 – registered on 04.0 4.1952
(b) Civil Judge, Sr. Division, Medinipur – Other Suit
No.39 of 2017 -registered on 15.09.1953.
2. Uttar Pradesh
Civil Judge, Junior Division, Varanasi – Original Suit
No.319 of 1953 – registered on 02.07.1953
(1) Maharashtra
(a) Chief Judicial Magistrate, Amravati – R.C.C. No.2319
of 1959 – registered on 11.04.1959
registered on 06.10.1959
(c) Chief Judicial Magistrate, Amravati – R.C.C. No.778 of
1961 – registered on 30.08.1961
The Underlying factors behind Judicial Delays
19. The causes of delay are numerous loopholes in the law itself,
redundant and voluminous paper work, absence of the w itnesses,
adjournments sought and granted for no justifiable reason as also delay
in service of summons, lack of implementation of the provisions of
Code of Civil Procedure (hereinafter referred to as ‘CPC’) and Code
of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’), as the case
may be . These are only illustrative and not exhaustive. It is not that
there has been any lack of effort to speed up the Justice Delivery
System. However, the attempts made hitherto h ave yielded limited
results. Time and again various provisions of C.P.C. and Cr.P.C. have
been amended to cater the ever-increasing demands for speedy
disposal of cases and the results are not inspiring . There is an urgent
need to take pro -active steps to not only clear the huge backlog of cases
at all levels but there should be introspection by all the stakeholders to
gear up to meet the aspirations of the litigant public who would only
seek for speedy justice and to curtail the methods adopted to delay th e
proceedings which may suit certain section or class of the litigant
public. When millions of consumers of justice file their cases by
knocking at the doors of the courts of first instance, they expect speedy
justice . Thus, an onerous responsibility vest s on all stakeholders to
ensure that the people’s faith in this system is not eroded on account
of delayed justice. It is imperative to note that a bout 6 per cent of the
population in India is affected by litigation , in such a scenario the
courts would play an important role in the life of a nation governed
by Rule of Law . Peace and Tranquility in the society and harmonious
relationship between the citizens are achieved on account of effective
administration of justice and i ts delivery system , even the economic
growth of a country is dependent on the robust Justice Delivery
System which we have in our country.
20. When the efficiency has become the hallmark of modern
civilization and in all spheres of life there is an urgent need to hasten
the pace of delivery of justice by reducing the time period occupied by
the trial of suits and criminal proceedings as also the offshoots of such
litigation which results in revisions, appeals etc. arising out of them.
A historical outlook of steps taken to curb the Judicial delay
21. The issue of delay has been bothering all the stakeholders for
ages. Way back in the year 1924, a committee was constituted known
as the Civil Justice Committee to enquire into the issues relating to
changes and improvements necessary to bring in “more speedy,
economical and satisfactory dispatch of the business transacted in the
courts” under the chairmanship of Justic e Rankin. Delay in disposal of
cases beyond a period of two and a half years was a crucial concern
and it was emphasized by the said Committee that “ where the arrears
are unmanageable, improvement in the methods can only palliate. It
cannot cure”.1 The Central Government under the chairmanship of
Justice S.R. Das set up a committee known as High Court Arrears
Committee in the year 19 49. In 1979, the Law Commission of India in
its 77th Report on ‘ delay and arrear in trial courts’ observed that the
delay in civil or criminal matters ha ve decreased the confidence among
the general public about the judicial system. It was emphasized that
civil cases should be treated as lapsed if the matter was not disposed
of within one year from the date of registration, whereas a criminal
matter should be disposed within six months and in case of sessions
trial it should not go beyond one year. It was a lso suggested to timely
fill up the vacancies, appoint additional and ad -hoc judges and
increase overall judicial strength. Some of the key recommendations
of the Committee were:
“(i) Improvement of judicial system to meet modern
requirement of society.
(ii) Time for scrutiny of the cases should not take more than
one week.
(iii) Summons and notices should be attached with the plaint
at the stage of filing, without stating the filing date.
(iv) Procedural reforms in civil and criminal case
proceedings.”
1 Civil Justice Committee, 1924
22. The 79th reports of the Law Commission of India pertai ns to
“Delay and Arrears in High Courts and Appellate Court” which
when read along with the 77th report as aforementioned, has provided
a step -by-step manual for managerial judging, prescribing upper time
limits for trial procedure to ensure speedy disposal of cases to be
followed by Trial Courts, High Courts, and other appellate courts. Its
recommen dations range from ways in which judges should expedite
the service of summons to the drafting of the decree and includes the
suggestions that they should become more active in conciliation
efforts. Other notable recommendations include:
“(i) Appointment of administrative justices who supervise the
work of process servers ;
(ii) Fixing of dates should be done by presiding officer and
not readers, cases should deliberately not be fixed when the
prospects of them being taken up for low and a standard of
number of cases pending before courts should be decided and
whenever there are indications that the number of cases will
go beyond the standard, additional courts should be set up. ”
23. The 120th Law Commission Report on ‘ Manpower planning
in judiciary: a blueprint’ recommended that the most effective way to
overcome the heavy pendency of cases clogging on the judicial system
is by reducing judicial delay. It further state s that the judiciary is
overburdened by large number of cases filed each year, which clog an
already stressed system. The report states that in 2002, when the ratio of the
judges to population was 13 judges to 10 ,00,000 people, the Supreme Court
recommended, in All India Judges Association vs. Union of India (2002) 4
SCC 247, to increase the ratio to at least 50 judges per 10 ,00,000 people.
24. The Malimath Committee, constituted on Reforms of Criminal
Justice Syste m, suggested multiple recommendations in its report, for
Criminal Justice System, however some of them can be applied even
in the civil litigation:
1. Time limit for filing written statements, amendments of
pleadings, service of summons etc., must be prescrib ed.
2. So far as possible, parties must endeavor to decide or to settle
the cases outside the court and to carry out the same objective,
Section 89 in CPC, was introduced.
3. To record the evidences by issuing the Commission instead of
by presence before the court of law. For the purpose of the
same under Section 75 of the CPC, commission can be issued
for collecting evidence.
4. Time frame need to be provided for oral argument before the
court of law.
5. Restriction on Right of appeal.
25. Similarly, the Delhi High Court undertook a pilot project titled
‘‘Zero Pendency Court Project Report’2 whereunder 22 specific pilot
and reference courts were referred to collect data to examine
meticulously the life cycles of the legal cases. At its core , the project
sought to understand how the cases progressed through the legal
system in the absence of any backlog. The Data collected from the pilot
project led to suggestions of some major recommendations which
included, primarily, the assessment of Judi cial strength, which as per
the report, is regarded as a vital attribute to the cause of delay. The
report in this regard suggested to arrive at an optimal judge strength to
handle cases pending in different court and went on to provide the Ideal
number of judges for different court. The report also highlighted that
in criminal cases, prosecution evidence hearings accounts for the
Highest percentage of court hearings however when it comes to
allocation of time, the courts tend to dedicate more minutes to fi nal
arguments and the issuance of final orders. In civil cases,
miscellaneous hearings are common, but final order proceedings
2 The Inspiration for the project was a remark by Justice M.N. Venkatachalaih (former
CJI) in a conversation with Justice Ravindra Bhat, one of the members of the State Court
Management System Committee (SCMS) of the Delhi HC.
receive more time nevertheless, judges allocate a greater amount of
time to the final order or judgment hearings.
26. Melvin M Belli, a member of the California Bar, in his article
titled “The Law’s Delays: Reforming Unne cessary Delay in Civil
Litigation” , which was prepared as a project for the Belli society , has
noted “ Trial delays or the period of the American Legal System ”. The
backlog of the system has become so typical that a plaintiff has to wait
5 years for trial of a simple personal injury claimed. In case, i f there
is an appeal, a final disposition of the case may occur 10 years after
plaintiff has been i njured and the following factors were outlined as
the major contributors to the delay :
(i) The inefficient management of the court system by the
judiciary.
(ii) A Tremendous increase in litigation.
(iii) The philosophy of procrastination of many judges and
lawyers, and
(iv) The priority of criminal or civil cases on the court
calendar.
To tackle the aforesaid problems, the following remedial measures
were suggested as possible solutions:
1) Appointment of surrogate judges (auditors, referees,
judges pro tempore) to handle certain cases. The idea of using
surrogate judges is to avoid unnecessary adjudication under
formal trials. This is followed in Massachusetts, where court
appointed auditors or referees, who were practicing attorneys,
used to adjudge motor vehicle tort cases. They report their
findings of facts and conclusions to the court and the parties may
accept the auditor’s report as final or request a trial. If the case
goes to trial, the auditor’s findings are prima facie evidence and
may be read to the jury.
2) The imposition of interest accruing retroactively from
the time of incident, rather than from time of judgment, to
remove defendant’s incentives to delay.
3) The elevation of civil cases to parity with criminal cases
so that civil cases will not be usurped.
4) A requirement that judges set definite trial dates and
honor them, so that litigation cannot be delayed by one of the
attorneys.
27. At the outset, it is necessary to point out the reasons for delay
in civil trial namely :
(i) Absence of strict compliance with the
provisions of CPC;
(ii) Misuse of processes of the court;
(iii) Lengthy/prolix evidence and arguments. Non -
utilization of pr ovisions of the CPC namely
Order X (examination of parties at the first
hearing);
(v) Non-Awarding of realistic cost for frivolous and
vexatious litigation;
(vi) Lack of adequate training and appropriate
orientation course to judicial officers and
lawyers;
(vii) Lack of prioritization of cases;
(viii) Lack of accountability and transparency.
28. Apart from the above reasons, the other vital reasons include
the over -tolerant nature of the courts below while extending their olive
branch to grant adjournment at the drop of the hat and thereby bringing
the entire judicial process to a gr inding halt . It is crucial to understand
that the wheels of justice must not merely turn, they must turn without
friction, without bringing it to a grinding h alt due to unwarranted
delay . It is for such reasons that the system itself is being ridiculed not
only by the litigant public but also by the general public , thereby
showing signs of constant fear of delay in the minds of public which
might occur during the resolution of dispute, dissuading them from
knocking at the doors of justice. All the stakeholders of the system
have to be alive to this alarming situation and should thwart any
attempt to pollute the stream of judicial process and same require s to
be dealt with iron hands and curbed by nipping them at the bud, as
otherwise the confidence of the public in the system would slowly be
eroded. Be it the litigant public or Member of the Bar or anyone
connected in the process of dispensation o f justice , should not be
allowed to dilute the judicial processes by delaying the said process by
in any manner whatsoever. As held by this Court in T. Arivandandam
vs. T.V. Satyapal & Another AIR (1977 ) 4 SCC 467 the answer to an
irresponsible suit or litigation would be a vigilant judge. This analogy
requires to be stretched in the instant case and to all the pending
matters by necessarily holding that every stakeholder in the process of
dispensation of justice is required to act swiftly, diligently, without
giving scope for any delay in dispensation of justice . Thus , an onerous
responsibility rests on the shoulders of the presiding officer of every
court , who should be cautious and vigilant against such indolent acts
and perso ns who attempt to thwart quick dispensation of justic e. A
response is expected from all parties involved, with a special emphasis
on the presiding officer. The presiding officer must exercise due
diligence to ensure that proceedings are conducted efficient ly and
without unnecessary delays. While it's important to maintain a friendly
and cooperative atmosphere with the members of the Bar, this should
not be misused as a pretext for frequent adjournment requests. A word
of caution to the learned members of th e Bar , at this juncture , would
also be necessary because of they being considered as another wheel
of the chariot of dispensation of justice . They should be circumspect
in seeking adjournments , that too in old matters or matters which have
been pending for decades and desist from making request or prayer for
grant of adjournments for any reason whatsoever and should not take
the goodness of the presiding officer as his/her weakness.
29. In-fact, the utilization of the provision of CPC to the hilt
would reduce the delays. It is on account of non -application of many
provisions of the CPC by the presiding officers of the courts is one of
the reason or cause for delay in the proceedings or dispute s not
reaching to its logical conclusion.
30. The very fact of the pendency of the present suit No. 2 of 1982 ,
in the instant case , for the past 41 years is reflective of the fact, as to
how some of the civil courts are functioning and also depict ing how
stakeholders are contributing to such delays either directly or
indirectly . The procedure that is being adopted by the courts below or
specifically the trial courts is contrary to the express provisi ons of the
CPC . It can also be noticed that there are party induced delays. It is
laid down under Orders VIII Rule (1) that a defendant shall at or
before the first hearing or within 30 days, or 90 days as the court may
permit, present a written statement of his defence. In most cases, there
would be no difficulty in presenting such a written statement on the
date fixed, and no adjournment should be given for the said purpose
except for a good cause shown, and in proper cases, costs should be
awarded to the opposite side, namely realistic costs. However, this is
seldom found. Delay in filing the written statement and seeking
adjournments is also another tactic used by the parties to litigation to
delay the proceedings No doubt in catena of judgments including
Kailash vs. Na nku 2005 (4) SCC 480, Serum Advocates Bar
Association, Tamil Nadu vs Union of India, AIR 2005 SC 3353.
Bharat Kalra vs. Raj Kishan Chhabra (2022) SCC OnLine SC 613
and Shoraj Singh vs Charan Singh (2018) SCC OnLine All 6613 the
time limit prescribed under the CPC has been held to be directory and
not mandatory which by itself does not mean that adjournments if
sought should be granted for mere asking. Only when such prayer
being honest and prayer sought with a bona -fide intention, which we
will have to be d emonstrated in express terms, at least by way of an
affidavit, such prayers should be entertained as otherwise the purpose
of the legislative mandate would get defeated and the purpose of the
amendment brought to CPC by Act 22 of 2002 would also become
otiose. In other words, it is high time that the presiding officers of all
the trial courts across the country strictly enforce the time schedule
prescribed under sub -rule (1) of Rule (1) of Order VIII in its letter and
spirit rather than extending the olive branch on account of said
provision being held directory to its illogical end even where
circumstances of a particular case does not warrant time being
enlarged. Although Order XVII of the CPC indicate under the heading
“adjournments”, mak ing it ex plicitly clear the procedure which
requires to be adopted by the civil courts in the matter of trial , as
evident from plain reading of the said provision would reveal , seems
to have been completely lost sight of by all the stakeholders, which
can be held as one of the root cause for delay in disposal of civil cases.
It would be apt and appropriate to extract Order XVII of the C PC and
it reads:
“1. Court may grant time and adjourn hearing " (1) The
court may, if sufficient cause is shown, at any stage of the
suit grant time to the parties or to any of them, and may from
time to time adjourn the hearing of the suit for reasons to be
recorded in writing:
Provided that no such adjournment shall be granted more
than three time to a party during hearing of the suit.
(2) Costs of adjournment . -In every such case the Court
shall fix a day for the further hearing of the suit, and
[shall make such order s as to costs occasioned by the
adjournment or such higher costs as the court deems fit:
Provided that, -
(a) when the hearing of the suit has commenced, it shall be
continued from day -to-day until all the witnesses in
attendance have been examined, unles s the Court finds that,
for the exceptional reasons to be recorded by it, the
adjournment of the hearing beyond the following day is
necessary.
(b) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the co ntrol of
that party,
(c) the fact that the pleader of a party is engaged in another
Court, shall not be a ground for adjournment,
(d) where the illness of a pleader or his inability to conduct
the case for any reason, other than his being engaged in
another Court, is put forward as a ground for adjournment,
the Court shall not grant the adjournment unless it is satisfied
that the party applying for adjournment could not have
engaged another pleader in time,
(e) where a witness is present in Court but a p arty or his
pleader is not present or the party or his pleader, though
present in Court, is not ready to examine or cross -examine
the witness, the Court may, if it thinks fit, record the
statement of the witness and pass such orders as it thinks fit
dispen sing with the examination -in-chief or cross -
examination of the witness, as the case may be, by the party
or his pleader not present or not ready as aforesaid. ”
The High Court of Karnataka in the matter of M. Mahalingam
vs. Shashikala reported in ILR Karnataka 4055 had an occasion to
deal with this rule and it was observed as under:
“17. The proviso to sub -rule (2) of Rule 1 of Order XVII was
introduced by the code of Civil Procedure (Amendment)
Rules, 1976. The object and reason behind the introduction
of this proviso was that, when hearing of evidence has once
begun such hearing shall b e continued from day to day. The
said provision is being made more strict so that once such
stage is reached, an adjournment should be granted only for
unavoidable reasons. A few other restrictions were also
being imposed on the grant of adjournments. The intention
in enacting the said proviso is that, when the hearing of the
suit has commenced, it shall be continued from day -to-day,
until all the witnesses in attendance have been examined. In
other words, it provided that a suit being tried like a sessions
case in a Criminal Court. Therefore, the Rule is, once trial
begins, evidence should be recorded on day -to-day basis.
Even in exceptional cases, if an adjournment becomes
necessary, it has to be adjourned to the following day only.
Clauses -(b) (c) and (d) were introduced restricting the power
of the Court to grant adjournments on the grounds set out
therein. These clauses make it clear that, the fact that a
pleader of a party is engaged in another Court, is not a
ground for adjournment. Even the illness of the pleader and
inability of a pleader to conduct a case is not a ground for
adjournment, unless the Court is satisfied that the party
applying for adjournment could not have engaged another
pleader in time. It also provides for the Court to record the
statement of witnesses who are present in Court, when the
party who summoned him and the party who has to cross -
examine, the said witnesses and their counsel being not
present Therefore, it is clear that the Court can be liberal in
granting adjournments befo re the commencement of the
Trial. But once the trial commences, there is an obligation
cast on the Court to conduct the said trial day -to-day until all
the witnesses in attendance have been examined.
Unfortunately, this procedure which is in the statute bo ok
since 1976, is followed more in breach. Adjournments are
sought for and granted by the Courts as a matter of course.
The intention of the Parliament in enacting the said provision
was not appreciated. In spite of introduction of the proviso,
there was n o marked change in the trial of suits.
Adjournments continued to dominate and obstruct speedy
trial. Therefore, the parliament amended the law once again
and now an attempt is made to control the power of the
courts in granting adjournments.
18. This time sub-rule (1) and (2) of Rule 1 of Order XVII
was amended substantially by the code of Civil Procedure
(Amendment) Act, 1999. The object and reason behind the
amendment Act was that, every effort should be made to
expedite the disposal of civil suits and p roceedings so that
justice may not be delayed. The committee on Subordinate
Legislation (11th Lok Sabha) recommended that it should be
made obligatory to record reasons for adjournment of cases
as well as award of actual or higher cost and not merely
notio nal cost against the parties seeking adjournment in
favour of the opposite party. Further limit up to three
adjournments has also been fixed in a case.
19. The amended Sub -rule (1) of Rule 1 provides that at any
stage of the suit, if sufficient cause is s hown, the Court may
adjourn the hearing of the suit for the reasons to be recorded
in writing. Therefore, an adjournment cannot be granted for
a mere asking. There should be sufficient cause for such an
adjournment. Before granting adjournment, the Court h as to
record in writing the reasons, which constituted sufficient
cause for it to adjourn the case. The proviso to sub -rule (1)
of Rule 1 puts an embargo on the Court's power to grant
adjournments, in as much as, it restricts the said power to
grant adjour nments to three times to a party during the
hearing of the suit. Therefore, the Court cannot exercise its
power of granting adjournments arbitrarily, whimsically and
it should know its limitations. The amendment to sub -rule
(2) of Rule 1 makes it obligator y on the part of the Court to
make an order as to costs occasioned by the adjournments.
This rule is intended to see that the imposition of costs may
act as a deterrent to the party seeking adjournment when
there being no sufficient cause. By such costs, t he cost of
litigation would increase and it may dissuade the party from
seeking adjournment on flimsy grounds.
20. In spite of the legislative mandate reflected in the
aforesaid provision, the Courts and the Lawyers continue to
ignore the said statutory p rovisions and the requirement of
holding a continuous trial day to day. The Courts, in practice,
have buried the rule fathoms deep and have been granting
adjournments on the flimsiest grounds. In every case these
provisions are honoured more in breach than in compliance
with the spirit of providing justice expeditiously. It is rare
indeed when a court holds a trial continuously in terms of
this rule. If only the provisions of the Code are followed in
letter and spirit, the grievance of delay in disposal of cases
would have been reduced considerably. The rule of law
requires respect for the law by all the citizens of this country.
The Judges and Lawyers who are the officers of the Court
are No. exception. First , they should respect the rule of law,
i.e., these statutory provisions. Without any exception they
cannot plead any difficulty in implementing these provisions
in letter and spirit. They are duty bound to act according to
these statutory provisions. Without doing what we are
legally expected to do, we are barking up at the wrong tree
and by this process we are deceiving ourselves. Any number
of amendments to the Code or any efforts to reform the law
would have no effect, unless the Courts give effect to the
statutory provisions contained in the Code . If the Courts do
not implement the law, one cannot find fault with the
Advocates or the litigants. If these rules are implemented in
letter and spirit, it may lead to some inconvenience and
hardship as, for more than a century, the Judges, the lawyers
and litigants are used to a particular atmosphere in Court. It
is this atmosphere in Courts, which has no legal support and
is the cause for delay in disposal of cases. Therefore, it is
high time in the interest of speedy disposal of cases, these
rules are i mplemented; once implemented, in course of time,
lawyers and litigants would fall in line.
In order to implement these statutory provisions as
amended, what is required is a change of mind set among the
Judges and they must have the courage to depart from the
practice which is in vogue. They must remind themselves
that till now these provisions are not followed and the
procedure which is adopted in Courts was totally different
from what is provided under the statute and thus has no legal
basis. That is the real cause for delay in disposal of cases.
Therefore, the need of the hour is a change of mental
attitude, firstly, on the part of the judges and secondly, on
the part of lawyers and litigants. A beginning has to be made.
It has to be done by Judges and J udges alone. In spite of the
criticism and the amendment to the law made by the
Parliament, if the Judges are not sensitive and do not give
effect to these provisions which are made with an avowed
object of speedy disposal of cases, the Judges would be
failing in their duty. Therefore, one may not blame the Code
for delay in disposal of cases. The delay is on account of not
following the provisions of the Code and in not knowing the
philosophy behind these statutory provisions. Even now it is
not too late f or the Judges and Lawyers to give effect to the
statutory provisions and render speedy justice to the
litigants. Time has come that this malady should be treated
with even handed at all levels.
21. In fact this view finds support from the observations
made by the Law Commission in the Reports on the Code of
Civil Procedure:
“In the 14th Report of the Law Commission of India on
“Reform of Judicial Administration”, the Commission notes
with concern the failure of the Courts to appreciate that
Order 17 Rule 1 contemplates the continued hearing of a
case, once it has started, from day to day until it is finished.
It noted with concern that the judiciary seemed to think that
the interrupted hearings should be a rule and day to day
hearings the exception. Both th e lawyers and the subordinate
judiciary still persist in floating these provisions by refusing
to have a continuous trial.
27th Law Commission Report reads as under:
“There is a popular belief that the technicalities of legal
procedure can be exploited and a case continued almost
indefinitely if so desired. In a weak case, apart from
numerous applications for adjournment, frivolous
interlocutory applications are made, e.g. applications for
amendment of the pleadings or for amendment of issues,
examination o f witnesses on commission summoning
unnecessary witnesses etc., These tactics do not succeed
before an experienced and astute Judge. They succeed only
before Judges who have no adequate experience. And such
tactics succeed not because of the observance, bu t because
of the non -observance, of the rules of procedure. Delay
under this item is, therefore, not due to any defects in
procedure. Rules of procedure are intended to subserve and
not to delay or defeat justice.”
22. Therefore, while considering the pra yer for grant of
adjournment, it is necessary to keep in mind the legislative
intent. After the trial commences, the legislative mandate is,
it shall be continued from day to day until all the witnesses
in attendance have been examined. Even to grant an
adjournment beyond the following day exceptional reasons
should exist and it should be recorded in writing before
adjourning the hearing beyond the following day. A reading
of the proviso makes it clear that the limitation of three
adjournments contained in proviso to sub -rule (1) apply
where adjournment is to be granted on account of
circumstances which are beyond the control of that party.
Even in cases which may not strictly fall within the category
of circumstances beyond the control of a party, the Court by
resorting to the provisions of higher cost which can also
include punitive cost grant adjournment beyond three times,
having regard to the injustice that may result on refusal
thereof, with reference to peculiar facts of a case and
compensate the party who is inconvenienced by such
adjournment. The said cost cannot be notional. It should be
realistic. As far as possible actual cost incurred by the other
party shall be awarded where the adjournment is found to be
avoidable but is being granted on account of either
negligence or casual approach of a party or is being sought
to delay the progress of the ease. Therefore, an attempt is
made by the Parliament to enable the Court to have complete
control over the litigant and prevent parties from controlling
the course of the litigation. The whole object is to deter the
parties from seeking adjournment for the sake of mere
adjournment. If a party wants to have the luxury of an
adjournment, he should be made to pay for such luxury and
the opposite party who is in convenienced is to be
compensated. In other words , the cost of litigation should be
made high in so far as a party who is not interested in speedy
trial. A person who wants to obstruct the course of justice,
delay the disposal of cases, abuse the process o f court and
wants to harass his opponent by virtue of his money power,
for him the litigation should become costly which is not so
now. Therefore, this provision of imposition of cost to
prevent the litigant from seeking adjournment, thus, delay
the dispos al of cases, is to be given full effect. It is a weapon
in the armory of the Judge to control the course of litigation
and expedite trial. In spite of this provision if the Judges do
not understand the significance and importance of these
amendments and al low the parties to control the course of
litigation, it only shows either lack of will on their part to
implement these statutory provisions or their inability to
give effect to these statutory provisions.
23. When the litigants complain of delay in dispo sal of cases,
they cannot seek adjournments as a matter of right, as it is
against their interest. An adjournment at the instance of one
party, puts the other party to inconvenience, which in turn
gives rise to such complaints. But an adjournment may
becom e necessary for various reasons. Therefore, in such
circumstances it would be in the interest of justice to grant
adjournment, but at the same time the party inconvenienced
has to be duly compensated. It is in this background the
provision of Rule 1 of ord er XVII of CPC as amended has to
be understood and given effect to. A party to a litigation
cannot have any grievance for day-to-day trial and on the
contrary he should welcome it. It is only those litigants who
want to abuse the judicial process and wants to use this legal
machinery as a weapon of oppression against his opponents
can have any grievance. It is there, these amended provisions
come in handy to the courts to prevent such abuse of the
judicial process.
The Case Flow Management System Rules : An
Overlooked Lifesaver
31. On the recommendation of this Court in ‘ Salem Bar
Association vs. Union of India AIR 2003 SC 189 =2003 (1) SCC 49 a
committee was appointed to study the application on implementation
of Case Flow Management system in India, and in response, ‘Case
Flow Management Rules for High Courts and Subordinate Courts ’
were meticulously crafted. These guidelines mirrored the suggestions
outlined in the ‘National Mission for Delivery of Justice and Legal
Reform, ’ which served as a comprehensive blueprint for judicial
reforms through its strategic initiatives from 2009 to 2012.
Furthermore, the introduction of the Justice A.M. Khanwilkar
Committee on Case Management System aimed to align with these
efforts . On the basis of above recommendation most of the states have
adopted the concept of Case Flow Management and have framed their
own Rules for ensuring timely delivery of justice since 2005.
However, some of the States are yet to frame the rules. We request the
Hon’ble Chief Justice s of those High Courts where said Rules are yet
to be framed to take immediate steps to formulate such rules.
32. Be that as it may, mere framing of the rules would not suffice
the problem on hand , until and unless the spirit underlying in the
making of the such rules is effectively implemented. The mode,
method and manner in which it requires to be implemented is in the
hands of the respective High Courts. In this regard, alt hough many
High Courts have constituted committees (with different
nomenclature) to monitor the same, the effective implementation
seem s to have gone into oblivion. Thus, it would be imperative on the
part of the High Courts to ensure the object with which such
committees were constituted would not remain on paper but are
implemented in its letter and spirit by constant monitoring , at least by
securing the reports from trial court s through the District Judges once
in two months and keeping a watch and vigil parti cularly , over the old
cases . Such Committees should focus their attention through
monitoring efforts so as to keep a check on matters being adjourned
for no justifiable reason . When such exercise is carried out with utmost
dedication, it would necessarily yield positive results. Therefore, both
the existing committees and any yet -to-be-constituted Committees by
the respect ive High Courts should make all endeavours to achieve
the object of making su ch rules . The Hon’ble Chief Justices of the
High Courts are requested to activate these Committees and ensure the
implementation of the rules . It is in this background , with utmost
concern the observations were made in the Chief Justice’s Conference,
2016 towards strengthening Case Flow Management Rules for the
purposes of not only reducing arrears but also for ensuring speedy trial.
Numbers speak more than words: A close r look to the Statistics
of the National Judicial Data Gr id
33. One of the gravest Administrative and structural delay in
litigation in whole, appears to be because of judicial delay. According
to National Judicial Data Grid, the figures available for the
contribution of judicial delay in pendency of cases is alarming. The
State -wise pendency of cases before the respective High Court s and
overall Civil Courts as on 16.10.2023 are as under:
No Name of the
State & High
Courts High Courts Civil Courts
Civil Criminal Civil Criminal
1 Andhra
Pradesh 2,12,317 37,615 4,15,774 4,40,468
2 Arunachal
Pradesh
(Gauhati
High Court) 47,941 13,817 2,911 14,378
3 Assam
(Gauhati
High Court) 98,763 3,38,828
4 Bihar (Patna
High Court) 1,08,550 87,779 5,07,039 3,022,705
5 Chattisgarh
(Chhatisgarh
High Court) 59,640 32,342 23,419 76,331
6 Goa (Bombay
High Court) 6,01,362 1,14,309 26,040 30,521
7 Gujarat
(Gujarat High
Court) 1,10,403 56,267 4,02,283 12,70,278
8 Haryana
(Punjab &
Haryana High
Court) 2,76,432 1,65,363 4,55,539 11,13,672
9 Himachal
Pradesh
(Himachal
Pradesh High
Court) 81,875 13,618 1,63,805 3,70,345
10 Jharkhand
(Jharkhand
High Court) 37,565 46,895 85,359 4,21,577
11 Karnataka
(Karnataka
High Court) 2,535,097 45,802 9,33,869 10,69,156
12 Kerala
(Kerala High
Court) 1,99,169 55,659 5,56,950 13,70,576
13 Madhya
Pradesh
(Madhya
Pradesh High
Court) 2,74,085 1,75,924 3,68,346 16,37,442
14 Maharashtra
(Bombay
High Court) 15,96,833 34,09,391
15 Manipur
(Manipur
High Court) 4,567 493 5,049 2,670
16 Meghalaya
(Meghalaya
High Court) 883 189 3,517 10,880
17 Mizoram
(Gauhati
High Court) 2,980 3,120
18 Nagaland
(Gauhati
High Court) 1421 2747
19 Odisha
(Orissa High
Court) 1,08,154 38,078 3,50,358 15,05,895
20 Punjab
(Punjab and
Haryana High
Court) 3,93,004 5,24,061
21 Rajasthan
(Rajasthan
High Court) 4,86,248 1,78,745 5,50,742 18,19,230
22 Sikkim
(Sikkim High
Court) 119 39 522 1,126
23 Tamil Nadu
(Madras High
Court) 4,89,316 58,164 7,48,895 6,56,014
24 Telangana
(Telangana
High Court) 2,20,677 30,974 3,38,275 5,33,262
25 Tripura
(Tripura High
Court) 1,075 138 11,719 32,952
26 Uttarakhand
(Uttarakhand
High Court) 28,117 21,898 37,760 2,80,476
27 Uttar Pradesh
(Allahabad
High Court) 5,62,794 4,94,366 16,38,238 96,34,553
28 West Bengal
(Calcutta
High Court) 1,69,651 27,275 609910 20,09,011
29 National
Capital
Territory of
Delhi (Delhi
High Court) 78,890 32,770 2,40,118 11,44,038
30 Jammu &
Kashmir and
Ladakh (High
Court of
31 Andaman &
Nicobar
Islands
(Calcutta
High Court) 4,757 4,923
32 Chandigarh
(High Court
of Punjab &
Haryana) 23419 76331
33 Lakshadweep
(Kerala High
Court) 140 365
34 Dadra and
Nagar Haveli
and Daman
and Diu
(Bombay
High Court) 1412 1572
35 Puducherry
(Madras High
Court) 13,196 19,015
34. Further , according to National Judicial Data Grid, if we
consider the stage -wise pendency, it is revealed that majority of the
pendency in cases is at the Evidence/ Argument/ Judgement stage
(43,22,478), within which the maximum pendency is caused at the
stage of h earing and evidence. High pendency is also caused during
the Appearance/Service stage (27,03,493), within which the
maximum pendency is appearance and service/summons related. The
reasons behind the maximum pendency as stated by the NJDC has
been ruled to be matters which are stayed (9,69,262) unattended
(8,31,076) and awaiting records (8,219,929).
35. It is important to acknowledge that while striving for the oft -
cited goal of expeditious justice, courts, litigants, staff, and lawyers
may encounter some level of inconvenience. However, this
inconvenience should take a backseat in light of the Fundamental
Duties enshrined in the Constitution, specifically Article 51A(j) which
obligates every citizen to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to
higher levels of endeavour and achievement. Article 51A is to be
understood to be in a positive form with a view to strive towards
excellence. The people should not conduct themselves so as to enable
anyone to point fingers at them or blame them. “Excellence” means
honest performance. It is the vision of the founder of constitution
makers that citizens of this great country India that is Bharat , should
discharge duties in an exemplary manner rather than perform half -
heartedly. The duties envisaged under Article 51A are obligatory on
citizens. No doubt the fundamental duties cannot be enforced by Writs
and it is in this background it has to be und erstood that the duties which
are required to be performed by the citizens in general and particularly
by the stakeholders of judicial dispensation system should ensure that
they do discharge the obligations prescribed under the law in a n
exemplified manne r and not blame worthy .
36. In the hallowed halls of justice, where the rights and liberties
of every citizen are protected, we find ourselves at a critical juncture.
Our Judiciary, the cornerstone of our democratic system, stands as the
beacon of hope f or those who seek remedy. Yet, it is a solemn truth that
we must confront with unwavering resolve —the spectre of delay and
pendency has cast a long shadow upon the very dispensation of justice.
In this sacred realm, where the scales of justice are meant to balance
with precision, the backlog of cases and the interminable delays have
reached a disconcerting crescendo. The relentless march of time, while
it may heal wounds for some, it deepens the chasm of despair for
litigants who await the enforcement of th eir rights. Hence, It is here, in
the chambers of jurisprudence, that we must heed the clarion call of
reform with unwavering urgency.
37. It is undisputedly accepted that the significance of a swift and
efficient judiciary cannot be overstated. It is a cornerstone of
democracy, a bulwark against tyranny, and the guarantor of individual
liberties. The voices of the oppressed, the rights of th e marginalized,
the claims of the aggrieved —all are rendered hollow when justice is
deferred. Every pending case represents a soul in limbo, waiting for
closure and vindication. Every delay is an affront to the very ideals that
underpin our legal system. S adly, the concept of justice delayed is
justice denied is not a mere truism, but an irrefutable truth.
Thus, we stand at a crossroads, not of our choosing but of our duty
where the urgency of legal reforms in our judiciary cannot be
overstated, for the p endulum of justice must swing unimpeded. The
edifice of our democracy depends on a judiciary that dispenses justice
not as an afterthought but as a paramount mission. We must adapt, we
must reform, and we must ensure that justice is not a mirage but a
tangible reality for all.
38. Therefore, in this pursuit, we call upon all stakeholders —the
legal fraternity, the legislature, the executive, and the citizens
themselves —to join hands in a concerted effort to untangle the web of
delay and pendency. We must st reamline procedures, bolster
infrastructure, invest in technology, and empower our judiciary to meet
the demands of our time.
39. The time for procrastination is long past, for justice cannot be a
casualty of bureaucratic inefficiency. We must act now, fo r the hour is
late, and the call for justice is unwavering. Let us, as guardians of the
law, restore the faith of our citizens in the promise of a just and
equitable society. Let us embark on a journey of legal reform with
urgency, for the legacy we leave will shape the destiny of a nation. In
the halls of justice, let not the echoes of delay and pendency drown out
the clarion call of reform. The time is now, and justice waits for no one.
Hence, the following requests to Hon’ble the Chief Justice s of the High
Courts are made and directions are issued to the trial courts to ensure
‘speedy justice’ is delivered.
For the reasons aforestated, we proceed to pass the following
1. Civil Appeal is allowed and the order dated 28.11.2019
passed in Writ Petition (M/S) No.144 of 2013 by High Court of
Uttarakhand at Nainital is set aside and the order dated 09.05.2012
passed by the Trial Court as affirmed in Civil Revision No.4 of 2012
dated 13.12.2012 stands affirmed .
2. The following directions are issued:
i. All courts at district and taluka levels shall ensure
proper execution of the summons and in a time bound
manner as prescribed under Order V Rule (2) of CPC and
same shall be monitored by Principal District Judges and
after collating the statistics they shall forward the same to be
placed before the committee constituted by the High Court
for its consideration and monitoring .
ii. All courts at District and Taluka level shall ensure that
written statement is filed within the prescribed limit namely
as prescribed under Order VIII Rule 1 and preferably within
30 days and to assign reasons in writing as to why the time
limit is being extended beyond 30 days as indicated under
proviso to sub -Rule (1) of Order VIII of CPC.
iii. All courts at District s and Talukas shall ensure after the
pleadings are complete, the parties should be called upon to
appear on the day fixed as indicated in Order X and record
the admissions and denials and the court shall direct the
parties to the suit to opt for either mode of the settlement
outside the court as specified in sub -Section (1) of Section
89 and at the option of the parties shall fix the date of
appearance before such forum or authority and in the event
of the parties opting to any one of the modes of settlement
directions be issued to appear on the date, time and venue
fixed and the parties shall so appear before such
authority/forum without any further notice at such
designated place and time an d it shall also be made clear in
the reference order that trial is fixed beyond the period of
two months making it clear that in the event of ADR not
being fruitful, the trial would commence on the next day so
fixed and would proceed on day -to-day basis.
iv. In the event of the party’s failure to opt for ADR namely
resolution of dispute as prescribed under Section 89(1) the
court should frame the issues for its determination within
one week preferably , in the open court.
v. Fixing of the date of trial shall be in consultation with
the learned advocates appearing for the parties to enable
them to adjust their calendar. Once the date of trial is fixed,
the trial should proceed accordingly to the extent possible ,
on day -to-day basis .
vi. Learned trial judges of District and Taluka Courts shall
as far as possible maintain the diary for ensuring that only
such number of cases as can be handled on any given day for
trial and complete the recording of evidence so as to avoid
overcrowding of the cases and a s a sequence of it would
result in adjournment being sought and thereby preventing
any inconvenience being caused to the stakeholders.
vii. The coun sels representing the parties may be
enlightened of the provisions of Order XI and Order XII so
as to narrow do wn the scope of dispute and it would be also
the onerous responsibility of the Bar Associations and Bar
Councils to have periodical refresh er courses and preferably
by virtual mode .
viii. The trial courts shall scrupulously, meticulously and
without fail comply with the provisions of Rule 1 of Order
XVII and once the trial has commenced it shall be proceeded
from day to day as contemplated under the proviso to Rule
ix. The courts shall give meaningful effect to the
provisions for payment of cost for ensuring that no
adjournment is sought for procrastination of the litigation
and the opposite party is suitably compensated in the event
of such adjournment is being granted .
x. At conclusion of trial the oral arguments shall be heard
immediately and continuously and judgment be pronounced
within the period stipulated under Order XX of CPC .
xi. The statistics relating to the cases pending in each court
beyond 5 years shall be fo rwarded by every presiding officer
to the Princip al District Judge once in a month who
(Principal District Judge/District Judge) shall collate the
same and forward it to the review committee constituted by
the respective High Courts for enabling it to take further
steps .
xii. The Committee so constituted by the Hon’ble Chief
Justice of the respect ive States shall meet at least once in two
months and direct such corrective measures to be taken by
concerned court as deemed fit and shall also monitor the old
cases (preferably which are pending for more than 05 years)
constantly .
It is also made clear that further directions for implementation of the
above directions would be issued from time to time, if necessary ,
and as may be directed by this Court.
3. The Secretary General is directed to circulate the copy of this
judgment to the Registrar General of all the High Courts for being
placed before the respective Chief Justices for a consideration and
suitable steps being taken as opined herein above .
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While pronouncing its judgment in a 43-year-old case, the Supreme Court on Friday expressed concern that the public may lose confidence in the legal process if such delays continue.
A bench of Justices S Ravindra Bhat and Justice Aravind Kumar expressed anguish that there were even 50-year-old cases still pending before certain courts.
"Litigants may become disillusioned when the legal process moves at a snail's pace. This matter has been pending for over 43 years. We have expressed our anguish where some litigation pending since 50 years are also pending as per National Judicial Data Grid. Some of the oldest cases are in West Bengal, Uttar Pradesh and Maharashtra, which are over 65 years old," the bench stated.
The verdict was authored by Justice Kumar.
Reading out the operative part of the verdict, the judge proceeded to issue eleven directions to Chief Justices of High Courts to ensure that the progress of old cases is monitored.
"We have issued eleven directions to the Chief Justices of the High Courts and how the old cases are to be monitored, especially the ones which are pending for over five years. The Secretary General of this Court is requested to furnish this judgment to all the Registrars of the High Courts," the Court said.
While passing the order, the bench urged for litigants to refrain from seeking adjournments and prolonging hearings, where possible.
Efforts to curb the high case pendency require the efforts of both judges and lawyers, he added.
"Litigants will lose confidence when the delay continues. We have cited how a member of the Californian Bar had spoken on it and cited remedial measures for it. Litigants should be circumspect in seeking adjournments and should not take the goodness of the presiding officers as their weakness. We have noted down countrywide statistics and how efforts needed from the Bar and the Bench," the Court observed.
|
(arising out of SLP (Crl.) No. 13485 of 2023)
Leave granted.
Heard the learned counsel for the parties.
First Information Report1 No. 287/2019 for the offence(s)
punishable under Sections 406 and 506 of the Indian Penal Code,
18602 was registered on 30.08.2019 with Police Station – Hapur
Dehat, District – Hapur, Uttar Pradesh vide the complaint made by
Sanjay Garg, who is respondent no. 2 in the present appeal. The
relevant portion of the complaint, as converted into the FIR, reads
as under:-
“Sir, it is submitted that the applicant is the
proprietor/owner of the firm Garg Timber Products
located in Village Patna, Police Station Hapur
Dehat District Hapur, in which the applicant
deals in waste wood (buying and selling of wood).
From 01.12.2015 to 06.08.2017, the applicant had
supplied wood waste fuel worth Rs 5,69,31,811/-
along with the bill to the owner of Asar Eco
Power Limited, situated at Kosi Kala Village
1 For short “FIR”.
2 For short “IPC”.
Dotana District Mathura viz. VK Chaturvedi S/o
Shri Murari Lal Chaturvedi, Mob. No. 9879211625,
Address Managing Director, Asar Eco Power
Limited, 630 Village Dotana NH-2 Umbrella
District Mathura UP and Resident of 1402 14th
Floor Lasirna CHS Limited JP Road Andheri West
Mumbai 400058 and Manoj Chaturvedi Director, son
of Shri Murari Lal Chaturvedi, resident of 348
Nangla Paisa Mathura Uttar Pradesh Mob. No.
9719861000 and Lalit Chaturvedi Director, Asar
Eco Power Limited Kosi Kala Gram Dotana District
Mathura Mob. No. 9358704070 and Mukesh Sharma
Director Asar Eco Power Limited Kosi Kala Gram
Dotana District Mathura Mob. No. 8859008302, for
which RTGS of Rs.3,76,40,553/-was made by the
above four persons. The applicant is continuously
demanding the outstanding amount of Rs.
1,92,91,358/-, but the above four persons are not
ready to pay the remaining amount to the
applicant and there is a clear refusal and they
are saying that we buy goods from people like you
by lying. The above four persons, with the
intention of deceiving the applicant and
extorting money, purchased the wood waste
dishonestly and fraudulently with the intention
of benefiting themselves and causing loss to the
applicant and usurped the remaining amount of Rs.
1,92,91,358/- of the Applicant. The above four
persons are vicious, cunning and domineering
people who are not paying the remaining amount of
the applicant on the strength of their dominance
and are threatening to kill if the demand is
made. Due to which the applicant is quite
mentally disturbed and there is a threat to his
life and property from the above mentioned
people. The applicant went to the police station
to file a report about this incident but the
police station officials refused to take any
action and register the applicant's report.
Therefore, you are requested to direct the SHO,
Police Station Hapur Dehat, to register the
report of the applicant and take the strictest
legal action against the above mentioned four
people and to give the applicant's money to him.
Date Sd Hindi Sanjay Garg Applicant Sanjay Garg
Son of Late Shri Madanlal Garg Resident of 1899
New Pannapuri Garh Road Hapur Police Station
Hapur Dehat District Hapur Mob. No. 9412218796.
Note: I CC 325 Rajeev Kumar certify that the copy
of the complaint was typed word for word by me on
the computer.”
After the investigation, the police has filed the charge
sheet under Section 173 of the Code of Criminal Procedure, 19733,
which verbatim reproduces the complaint and, thereupon, refers to
the fact that the appellants, namely, Lalit Chaturvedi, Mukesh
Sharma and Manoj Chaturvedi have approached the High Court of
Judicature at Allahabad and obtained an order granting stay of
arrest. Thereafter, it is recorded as under : -
“From the statement of the complainant and
independent w1tnesses, it was found that the case
is under Section 420 IPC and accordingly, Section
420 IPC was added. It is clear from the documents
provided by the complainant and the advocate of
the named accused that the named accused
committed fraud and did not return Rs.19291358/-
to the complainant and the complainant was
threatened by the named accused Manoj Chaturvedi
when he asked for the money. After thorough
investigation, statement by complainant,
statement by sources and in detail, crime under
section 406, 420 IPC was found against all the
accused and along with the above mentioned
sections, a case of Section 506 IPC is also being
found against Manoj Chaturvedi Chaturvedi.
Therefore, charge sheet number 318/19 is
presented in the court through challan. Please
summon the evidence and punish the accused. The
investigation is concluded.”
This Court, in a number of judgments, has pointed out the
clear distinction between a civil wrong in the form of breach of
contract, non-payment of money or disregard to and violation of the
contractual terms; and a criminal offence under Sections 420 and
406 of the IPC. Repeated judgments of this Court, however, are
somehow overlooked, and are not being applied and enforced. We will
be referring to these judgments. The impugned judgment dismisses
the application filed by the appellants under Section 482 of the
Cr.P.C. on the ground of delay/laches and also the factum that the
chargesheet had been filed on 12.12.2019. This ground and reason is
also not valid.
In “Mohammed Ibrahim and Others v. State of Bihar and
Another”4, this Court had referred to Section 420 of the IPC, to
observe that in order to constitute an offence under the said
section, the following ingredients are to be satisfied : -
“18. Let us now examine whether the ingredients
of an offence of cheating are made out. The
essential ingredients of the offence of
"cheating" are as follows:
(i) deception of a person either by making a
false or misleading representation or by
dishonest concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that
person to either deliver any property or to
consent to the retention thereof by any person
or to intentionally induce that person so
deceived to do or omit to do anything which he
would not do or omit if he were not so
deceived; and
(iii) such act or omission causing or is likely
to cause damage or harm to that person in body,
mind, reputation or property.
19. To constitute an offence under section 420,
there should not only be cheating, but as a
consequence of such cheating, the accused
should have dishonestly induced the person
deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in
part a valuable security (or anything signed or
sealed and which is capable of being converted
into a valuable security).”
Similar elucidation by this Court in “V.Y. Jose and Another
v. State of Gujarat and Another”5, explicitly states that a
contractual dispute or b reach of contract per se should not lead to
initiation of a criminal proceeding. The ingredient of ‘cheating’,
as defined under Section 415 of the IPC, is existence of a
fraudulent or dishonest intention of making initial promise or
representation thereof, from the very beginning of the formation of
contract. Further, in the absence of the averments made in the
complaint petition wherefrom the ingredients of the offence can be
found out, the High Court should not hesitate to exercise its
jurisdiction under Section 482 of the Cr.P.C. Section 482 of the
Cr.P.C. saves the inherent power of the High Court, as it serves a
salutary purpose viz. a person should not undergo harassment of
litigation for a number of years, when no criminal offence is made
out. It is one thing to say that a case has been made out for trial
and criminal proceedings should not be quashed, but another thing
to say that a person must undergo a criminal trial despite the fact
that no offence has been made out in the complaint. This Court in
V.Y.Jose (supra) placed reliance on several earlier decisions in
“Hira Lal Hari Lal Bhagwati v. CBI”6, “Indian Oil Corporation v.
NEPC India Ltd.”7, “Vir Prakash Sharma v. Anil Kumar Agarwal”8 and
“All Cargo Movers (I) (P) Ltd. v. Dhanesh Badarmal Jain”9.
Having gone through the complaint, which was registered as an
FIR and the assertions made therein, it is quite clear that
respondent no. 2/complainant – Sanjay Garg’s grievance is regarding
failure of the appellants to pay the outstanding amount, in spite
of the respondent no. 2/complainant – Sanjay Garg’s repeated
demands. The respondent no. 2/complainant – Sanjay Garg states that
the supplies were made between the period 01.12.2015 and
06.08.2017. The appellants had made the payments from time to time
of Rs. 3,76,40,553/- leaving a balance of Rs. 1,92,91,358/-.
We will assume that the assertions made in the complaint are
correct, but even then, a criminal offence under Section 420 read
with Section 415 of the IPC is not established in the absence of
deception by making false and misleading representation, dishonest
concealment or any other act or omission, or inducement of the
complainant to deliver any property at the time of the contract(s)
being entered. The ingredients to allege the offence are neither
stated nor can be inferred from the averments. A prayer is made to
the police for recovery of money from the appellants. The police is
to investigate the allegations which discloses a criminal act.
Police does not have the power and authority to recover money or
act as a civil court for recovery of money.
The chargesheet also refers to Section 406 of the IPC, but
without pointing out how the ingredients of said section are
satisfied. No details and particulars are mentioned. There are
decisions which hold that the same act or transaction cannot result
in an offence of cheating and criminal breach of trust
simultaneously.10 For the offence of cheating, dishonest intention
must exist at the inception of the transaction, whereas, in case of
criminal breach of trust there must exist a relationship between
the parties whereby one party entrusts another with the property as
per law, albeit dishonest intention comes later. In this case
entrustment is missing, in fact it is not even alleged. It is a
case of sale of goods. The chargesheet does refer to Section 506 of
the IPC relying upon the averments in the complaint. However, no
details and particulars are given, when and on which date and place
10 Wolfgang Reim and Others v. State and Another , 2012 SCC OnLine Del 3341;
Mahindra and Mahindra Financial Services Ltd. and Another v. Delta Classic (P.)
Ltd., (2011) 6 Gauhati Law Reports 604; Mukesh Sharma v. State of Himachal
Pradesh, 2024:HHC:35.
the threats were given. Without the said details and particulars,
it is apparent to us, that these allegations of threats etc. have
been made only with an intent to activate police machinery for
recovery of money.
It is for the respondent no.2/complainant – Sanjay Garg to
file a civil suit. Initiation of the criminal process for oblique
purposes, is bad in law and amounts to abuse of process of law.
In view of the aforesaid discussion, the impugned judgment is
set aside and the present appeal is allowed quashing the FIR and
resultant proceedings, including the chargesheet.
We clarify that the present appeal only deals with the
question of criminal offence. We have not commented or made any
observations on the civil rights of respondent no. 2/complainant –
Sanjay Garg.
Pending application(s), if any, shall stand disposed of.
Petition(s) for Special Leave to Appeal (Crl.) No(s). 13485/2023
(Arising out of impugned final judgment and order dated 21-08-2023
in A482 No. 29424/2023 passed by the High Court of Judicature at
Allahabad)
Date : 06-02-2024 This petition was called on for hearing today.
For Petitioner(s) Mr. Rajul Bhargava, Sr. Adv.
Mr. Atul Kumar, Adv.
Mr. Abhimanyu Sharma, Adv.
Ms. Deepali, Adv.
Mr. Pulak Bagchi, Adv.
Ms. Chander Kiran, Adv.
Mr. Tarun Gupta, AOR
For Respondent(s) Mr. Rajat Singh, AOR
Mr. Abhishek Singh, Adv.
Mr. Sarthak Chandra, Adv.
Mr. Arun Pratap Singh Rajawat, Adv.
Mr. Gautam Das, AOR
Mr. Sanjeev Kumar Punia, Adv.
Mr. Dhirendra Kumar Jha, Adv.
Mr. Rajinder Singh Chauhan, Adv.
UPON hearing the counsel, the Court made the following
Leave granted.
The appeal is allowed in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
|
Police do not have the authority to recover money or act as a civil court for recovery of money after civil proceedings fail, the Supreme Court recently said [Lalit Chaturvedi and ors vs State of Uttar Pradesh and anr].
A bench of Justices Sanjiv Khanna and Dipankar Datta explained that there is a clear distinction between a breach of contract and criminal offences.
Non-payment of money or breach of contract are civil wrongs that differ from criminal offences, the Court underscored.
"The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money," the Court observed.
The observations came while quashing a criminal complaint and subsequent proceedings against an accused.
The chargesheet had alleged criminal breach of trust and criminal intimidation, apart from cheating, after a contract between the accused and the complainant fell through.
The High Court refused to set the aside the criminal case leading to the instant appeal before the top court.
The apex court at the outset lamented that its judgments regarding differentiating criminal and civil offences were getting overlooked instead of being applied and enforced.
"It is one thing to say that a case has been made out for trial and criminal proceedings should not be quashed, but another thing to say that a person must undergo a criminal trial despite the fact that no offence has been made out in the complaint," it stated
The chargesheet clearly shows that no criminal case is made out against the instant accused, it added.
"No details and particulars are mentioned ... In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods."
The top court noted that the criminal case had been lodged only with an intent to activate police machinery for recovery of money.
Initiation of the criminal process for such oblique purposes is bad in law, it underscored. It, thus, set aside the High Court order and quashed all criminal proceedings in the matter.
Senior Advocate Rajul Bhargava with advocates Atul Kumar, Abhimanyu Sharma, Deepali, Pulak Bagchi, Chander Kiran and Tarun Gupta represented the accused.
Advocates Rajat Singh, Abhishek Singh, Sarthak Chandra and Arun Pratap Singh Rajawat appeared for the Uttar Pradesh government.
Advocates Gautam Das, Sanjeev Kumar Punia, Dhirendra Kumar Jha and Rajinder Singh Chauhan represented the complainant.
|
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
Present: Sh. Vineet M Bajaj, Yash Singhal, Aditya Vardhan and Karan
Bansal Advocates for applicant/plaintiffs No.1 & 2
defendant No.1
Sh. Jitender Datta Parashar, Advocate for defendant No.2
1-By this order I shall dispose of an application under Order 39
Rules 1 & 2 read with Section 151 of CPC moved by the plaintiff.
2-Learned counsel for the applicant/plaintiff submitted that
plaintiff No.2 Mr. Vivek Bindra CEO of plaintiff No.1 M/s Bada Business
Pvt. Ltd. is a renowned youtuber and is recipient of many awards on
National as well as World level. He is a person of unimpeachable character.
There is neither any complaint nor any inquiry pending against him. Even no
authority has issued any statutory notice to him. Defendant No.1 Sandeep
Maheshwari is also a youtuber. He also does similar business that of
plaintiff No.2. He has started a smear campaign against plaintiff in order to
malign his reputation so that defendant No.1 may allure the clientage of
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
plaintiffs. Defendants No.2 & 3 are the clients of the plaintiffs. Defendant
No.1 without explicitly taking names of plaintiffs orchestrated a tutored
video of defendants No.2 & 3 and uploaded an incomplete video of the
session on 11.12.2023 on his youtube channel. He titled the video as BIG
SCAM EXPOSED and also depicted a man suited in red Tye in complete
resemblance to the business mark of the plaintiffs. Thereafter, in a
community post dated 13.12.2023, defendant No.1 explicitly admitted that
the contents of the video were related to plaintiffs only. The video dated
11.12.2023 has spread on social media like fire and approximately 75 Lakhs
people has already seen such video. Plaintiffs have been suffering huge loss
of revenue due to such video. Such video is continuously causing loss to the
reputation and esteem of the plaintiffs. Plaintiffs cannot be allowed to
disseminate such videos in order to satisfy his hidden agendas and motives.
He also put community post wherein he straightway hold the plaintiffs guilty
of indulging in a scam. Thereafter, he deleted his community post dated
16.12.2023 without making any clarification of the same. Defendant No.1 is
not an authority to hold him guilty of any fraud or scam. If any of the client
of plaintiffs is not satisfied with the service of plaintiff, he may go to
consumer forum or he can make a police complaint but defendant No.1 has
no right to upload any defamatory content against plaintiff in order to tarnish
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
his image. If the video dated 11.12.2023 is not ordered to be deleted, the
plaintiff would be finished at the time of final disposal of the suit. Even, if
suit of plaintiff is finally decreed by this court, then he would have nothing
to loose at that time. The loss being caused to plaintiff by such video cannot
be compensated in the terms of money. There are various authorities of
Hon’ble High Court observing that statements causing injury to the
reputation of plaintiff are required to be deleted as it is difficult to
contemplate the complete restitution through damages. To support his
arguments, learned counsel for the plaintiffs placed reliance upon following
judgments:- “Vinai Kumar Saxena Vs. Aam Aadmi Party and Others”
2022 SCC OnLine Del 3093 (Delhi High Court), “Naresh Kumar Vs. Wire
and Others” 2023 SCC OnLine Del 7314 (Delhi High Court),
“Convergytics Solutions Pvt. Ltd. and Others Vs. Randhir Hebbar and
Others” 2021 SCC OnLine Del 4811 : (2022) 286 DLT 51 (Delhi High
(2023 7 Supreme Court Cases 799 : 2023 SCC OnLine SC 31
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
With such submission, he requested to grant temporary injunction restraining
the defendant No.1 from uploading any defamatory remark/content on social
media against the plaintiff and for interim mandatory injunction seeking
direction to delete/take down the video dated 11.12.2023 and community
post dated 12.12.2023, 13.12.2023, 15.12.2023 and 16.12.2023.
3. Per contra, learned counsel for the defendant No.1 submitted
that defendant No.1 Mr. Sandeep Maheshwari does not do any business alike
to the plaintiff. Therefore, he needs not to disseminate or publish any video
or post for any business gain. The content of video dated 11.12.2023 is not
defamatory at all. Even the name of Mr.Vivek Bindra has not been used once
in a video. Defendant No.1 uploaded video of a session on 11.12.2020
without naming any person. They only discussed about business model of a
youtuber. It is plaintiff No.2, who related the video to himself and sent goons
to the office of defendant No.1 to intimidate him. Thereafter defendant No.1
wrote a community post to Mr. Vivek Bindra, but he did not make any
defamatory remark for him. She further submitted that plaintiff No.2 is not
of an unimpeachable character. He is actually defrauding the youngsters in
pretext of selling product/course. Plaintiff allures the young unemployed
persons to buy his course to learn the techniques of becoming rich, but he
does not provide any business course to them. When their students/clients
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
ask for refund of their money then plaintiff ask them to resell such course to
3-4 other persons so as to get reimbursed of their money in the form of
commission.
4- Learned counsel for the defendant No.1 has drawn attention of
this court over transcription of video dated 11.12.2023 wherein no
defamatory remarks has been made against any person. She has also drawn
attention of this court over many posts made by various persons over
Quora.com wherein people have straightway said that plaintiff company has
been befooling the young unemployed persons. She further submitted that
after uploading of such video, defendant No.1 has received approximately
7500 emails from the disgruntled clients of plaintiff who have been
defrauded and befooled by the plaintiff company. Defendant No.1 being a
public spirited person is only providing a platform to all such persons who
fell pray to the business schemes of plaintiff. Defendant No.1 has not
published anything wrong or false. Any imputation of truth made for public
good is best defence to defamation. Social Media is repleted with posts and
comments made by the students and clients of plaintiffs who found
themselves defrauded by the business schemes of plaintiffs. Mr. Maheshwari
Piri founder of carrier 360 also made a video against plaintiff No.2 titled as
“Lakho Bachho Ke Sath Cheating” . Plaintiff has not produced any material
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
to falsify such allegations. Therefore, freedom of speech and expression
guaranteed by Indian Constitution cannot be fettered on the basis of this false
and frivolous suit filed by plaintiff.
5- She further submitted that relief clause of both the plaint as well
as the application for stay is same. Plaintiff has been seeking direction to
defendant No.1 to delete the video dated 11.12.2023 in the form of interim
mandatory injunction. If this court grants the interim mandatory injunction
to delete such video, it would tantamount to decreeing the suit before
carrying out any trial. Interim mandatory injunction can only be granted if
there is a strong prima facie case in favour of plaintiff, whereas, there is no
base of the case of plaintiff as the video dated 11.12.2023 does not disclose
the identity of the plaintiff. Defendants No.2 & 3 came to the show of
defendant No.1 and they discussed about business model of plaintiff in such
session. Defendant No.1 without mentioning the name of plaintiff uploaded
such video on his youtube channel. It is only plaintiff who sent his goons to
the office of defendant No.1 to intimidate him. Such video does not depict
anything wrong or false against any person. She further submitted that even
All India Council for Technical Education, a Government Department has
also issued an advisory against fake MBA Programme being run by plaintiff.
Plaintiff has been providing a 10 days MBA Course to young unemployed
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
person. Vide public notice dated 28.12.2023, the Government has advised
the students/stake-holders to be cautions of such misleading programme and
not to fall prey to such fraudulent offers. She further submitted that this court
has no jurisdiction to try the civil suit. As per Section 20 of Civil Procedural
Court a civil suit can be filed where defendant resides or where wrong is
committed. In the case in hand, defendant is resident of Delhi. The video in
question was prepared in Delhi. The same was uploaded on youtube channel
of defendant No.1 in Delhi. Plaintiff has filed this suit in the Civil Court,
Faridabad only on the ground that he is resident of Faridabad and he saw
such video in Faridabad. He has nowhere stated that such video has caused
any harm to his reputation in Faridabad. He has not even pleaded that he
hold any reputation in Faridabad. Therefore, this court has no jurisdiction to
entertain the suit. Learned counsel for the defendants relied upon the
following judgments:- “Ajay Pal Sharma Vs. Udaiveer Singh” decided
on 28 July, 2020 (Delhi High Court), “Tata Sons Limited Vs. Greenpeace
International & Anr.” 2011 SCC OnLine Del 466 : (2011) 178 DLT 705 :
(2011) 45 PTC 275 (Delhi High Court, “Deoraj Vs State of Maharashtra
& Others” (2004) Supreme Court Cases 697 : 2004 SCC OnLine SC 442,
“Samir Narain Bhojwani Vs. Aurora Properties & Investments &
Anr.” (2018) 17 Supreme Court Cases 203, “Dorab Cawasji Warden Vs.
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
Coomi Sorab Warden & Others” (1990) 2 Supreme Court Cases 117,
“Ram Jethmalani Vs. Subramaniam Swamy” 2006 (87) DRJ 603 (High
Court of Delhi), “Dr. Subramaniam Swamy Vs. Ramakrishna Hegde”
(1990) 1 Supreme Court Cases 4, “ Banyan Tree Holding (P) Limited
Vs. A. Murali Krishna Reddy & Anr.” 2009 SCC OnLine Del 3780 :
(2010) 42 PTC 361 (Delhi High Court), “Escorts Limited Vs. Tejpal
Singh Sisodia” 2019 SCC OnLine Del 7607 (Delhi High Court), “Balaji
Ventures Pvt. Ltd. Vs. Maharashtra State Power Generation Company
Ltd. and Ors.” SLP (C) Nos. 1616 and 1673 of 2022 (Supreme Court of
India), “(India TV) Independent News Service Pvt. Ltd. Vs. India
“Tek Singh Vs. Shashi Verma & Another” (2019) 16 Supreme Court
Cases 678.
6- Learned counsel for the defendant No.2 also argued in the lines
of arguments advanced by learned counsel for defendant No.1 and also
requested for dismissal of stay application.
7- I have heard Sh. Vineet M Bajaj, learned counsel for the
plaintiff, Ms. Mumtaz Bhalla, learned counsel for defendant No.1 and Sh.
Jitender Parashar, learned counsel for defendant No.2 and perused the case
file very carefully and meticulously.
Dt:05.02.2024
Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
8- Plaintiff has filed the present suit for permanent and mandatory
injunction against the defendants pleading that plaintiff No.2 is a renowned
you tuber and is a motivational speaker. Defendant No.1 also does the same
business and in order to cause loss to the business of plaintiff he has started
maligning his reputation over social media. He has allured some of the
students of plaintiff company and has orchestrated a tutored video with
defendants No.2 & 3. He has pleaded that the video of 11.12.2023 and
community post dated 12.12.2023, 13.12.2023, 15.12.2023 and 16.12.2023
have been causing huge loss to the business of plaintiff and sought interim
mandatory injunction seeking direction to defendants to delete the video
dated 11.12.2023 and community posts and temporary injunction restraining
the defendants from passing any defamatory remark, video etc. on social
media against the plaintiff.
9- On the other hand, defendant No.1 has taken defence of public
good and truth against the allegations levelled by plaintiff. Defendant No.1
has brought on record various posts of social media and emails stated to have
sent by students of plaintiff to defendants wherein they have accused the
plaintiff of defrauding and befooling the public. Defendant No.1 has stated
that he is a public spirited person and has only provided a voice to the
victims of misrepresenting and misleading business programme of plaintiff.
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
Defendant No.2, who is admittedly the student of plaintiff has also supported
the stand of defendant No.1 and stated that he is victim of misleading and
misrepresenting programme of plaintiff.
10- At this nascent stage, when both the parties are yet to lead
evidence to prove their averments and to disprove the averments of opposite
party, the genuineness of the allegations levelled by defendants against the
plaintiffs cannot be commented upon. Both plaintiff No.2 and defendant
No.1 are the renowned youtuber. Plaintiff No.2 Mr. Vivek Bindra is stated to
have 21.5 Million subscribers and defendant No.2 Mr. Sandeep Maheswari is
stated to have 28.5 Million subscribers. Any accusation or allegations against
plaintiff made on the youtube channel of defendant No.1 certainly has
potential to cause injury to the business and reputation of plaintiff. Article 19
guarantees freedom of speech and expression to every citizen, but it is not
absolute. It is subject to number of restrictions mentioned in the Indian
Constitution itself. Defamation is one of the exception to freedom guaranteed
by Article 19 of Indian Constitution. Defendants can exercise their freedom
of speech and expression only in harmony to right to business, livelihood
and reputation of plaintiff. No body has any right to disparage, defame,
disrepute or malign the reputation of any person unless he is in possession of
sufficient material or unbiased information clearly pointing out to any kind
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
of illegal and nefarious activities of such person. Freedom of speech and
expression is certainly amenable to reasonable restrictions laid down in
Constitution of India which includes defamation. In “State Vs. Bihar Vs.
Lal Krishna Advani” AIR 2003 Supreme Court 3357, Hon’ble Supreme
Court observed as under:-
(vi) “On the one hand, there is a fundamental right of freedom of speech and
expression guaranteed under the Constitution of India and on the other hand,
it is the right of individual to his reputation and goodwill. The question
arises as to how to bring about a balance between the two rights’ How far
can the right of freedom of speech and expression extend and when does it
become necessary for the law to stop in to safeguard the right of the
individual to preserve his reputation and dignity’ The law of defamation
seeks to attain a balance between the above two competing rights.”
In “Ram Jethmalani Vs. Subramaniam Swamy” (supra),
Hon’ble Delhi High Court observed that:-
“92. Defamation is a public communication which tends to injure the
reputation of another. What statements are defamatory and the span of
defences varies from jurisdiction to jurisdiction but there is common
agreement in all jurisdictions that statements that are unflattering, annoying,
irksome, embarrassing or hurt one’s feelings are not actionable. Common
element in all jurisdiction is the potential to injure the reputation.
93. Since law of defamation,by making actionable certain utterances, runs
counter to another widely accepted legal tenant – the right to freedom of
expression, the two have been harmonized by judicial process so that an
individual’s right of privacy and protection of honour and reputation is
preserved and at the same time the public interest in free speech is also
protected.
94. The pendulum between reputation and expression has swung back and
forth through history, but a body of positive jurisprudence evidenced by the
decision in Sullivan’s case (Supra) has developed. However, I may note that
case law developed around political speeches. The aim of the law was to see
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
that there was no chilling effect. If a person is under a fear of being sued, he
may not express himself freely on public issues and this would chill the
public debate. Decision in Sullivan’s case (supra) as followed by the
Supreme Court of India in R. Rajagopal’s case (supra) highlighted that
Government nor Government officials, if criticized in discharge of their
duties, could bring no action or injunction and could not chill a public
debate. Subject to establishing actual malice, action would be brought by
Government Official if his personal reputation was damaged. However, no
action could be brought in relation to loss of reputation to the offence.
95. Traditional defences to an action for defamation have now become fairly
crystallized and can be compartmentalized in 3 compartments: truth, fair
comment and privilege. Truth, or justification, is a complete defence. The
standard of proof of truth is not absolute but is limited to establishing that
what was spoken was ‘substantially correct’. Fair comment offers protection
for the expression of opinions. Standard of proof is not that the Court has to
agree with the opinion, but is limited to determine whether the view could
honestly have been held by a fair minded person on facts known at the time.
Unlike defence of truth, defence based on fair comment can be defeated if
the plaintiff proves that the defamer acted with malice. Similar is the
situation where the defence is of qualified privilege. Privilege is designed to
protect expression made for the public good. Protection of qualified
privilege is lost, if actual malice is established. In public interest, absolute
privilege is a complete defence. Rationale of absolute privilege being
restricted to Court proceedings or proceedings before Tribunals which have
all the trappings of a Civil Court and Parliamentary proceedings is that if
threat of defamation suits loom large over the heads of lawyers, litigants,
witnesses, Judges and Parliamentarians it would prohibit them from
speaking freely and public interest would suffer.”
11- Defendant No.1 has produced hefty record including the posts
made by public against plaintiff on Quora.com, videos of Mr. Maheswari Piri
and emails stated to being sent by students/clients of plaintiff to defendant
No.1 wherein plaintiff No.2 Mr. Vivek Bindra is being accused of defrauding
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
or misrepresenting his clients. However, he cannot be allowed to make
defamatory remarks against plaintiff as genuineness of all such record is yet
to be checked. Therefore, at this stage, the defence of truth or public good
cannot help the defendant No.1 to disseminate or propagate defamatory
remarks or accusation against plaintiff.
12- In addition to the temporary injunction, plaintiff has also sought
an interim mandatory injunction seeking direction to defendant No.1 to
delete video dated 11.12.2023 and community posts dated 12.12.2023,
13.12.2023, 15.12.2023 and 16.12.2023. To obtain an interim mandatory
injunction, applicant is required to establish a very strong prima facie case of
a standard much higher than just prima facie case. Hon’ble Supreme Court
has widely discussed law relating to interlocutory mandatory injunctions in
“Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors.”, Hon’ble
Supreme Court as under”-
16. The relief of interlocutory mandatory injunctions are thus granted
generally to preserve or restore the status quo of the last non contested status
which preceded the pending controversy until the final hearing when full
relief may be granted or to compel the undoing of those acts that have been
illegally done or the restoration of that which was wrongfully taken from the
party complaining. But since the granting of such an injunction to a party
who fails or would fail to establish his right at the trial may cause great
injustice or irreparable harm to the party against whom it was granted or
alternatively not granting of it to a party who succeeds or would succeed
may equally cause great injustice or irreparable harm, courts have evolved
certain guidelines. Generally stated these guidelines are:-
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
1.The plaintiff has a strong case for trial. That is, it shall be of a higher
standard than a prima facie case that is normally required for a
prohibitory injunction.
2.It is necessary to prevent irreparable or serious injury which normally
cannot be compensated in terms of money.
3.The balance of convenience is in favour of the one seeking such relief.
13- The video dated 11.12.2023 was played in the court. Even
learned counsel for defendant No.1 read out the relevant transcription in her
arguments. However, there is no direct imputation against plaintiff in the
video. In impugned video, defendant No.1 can be seen discussing the
business model of a youtuber, wherein defendants No.2 & 3 have been
complaining that they purchased the business course from a youtuber for
Rs.50,000/- and Rs.35,000/- as the case may be. They have been accusing
that he does not impart any business education to his clients/students, rather
he has been making them salesmen. In such video, they are accusing such
unnamed youtuber of earning commission under the garb of providing
educational courses. Such 10.01 minute video was uploaded by defendant
No.1 on his youtube channel on 11.12.2023. Thereafter, defendant No.1
posted a community post wherein, he stated that plaintiff sent his employees
to the office of defendant No.1 in order to intimidate him to delete such
Dt:05.02.2024
Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
video. Thereafter, defendant No.1 again posted some community post
mentioned at page No.97 & 98 annexed with the complaint. A complete
scrutiny of video dated 11.12.2023 reflects that defendant No.1 did not make
any direct imputation against plaintiff No.2. From the community post it
appears that he admitted such video to be belonging to plaintiff but there is
no defamatory remarks in any community post except of 16.12.2023
mentioned at page no.98 which has already been deleted by defendant No.1
as admitted by plaintiff in their plaint.
14-To prove the strong prima facie case in his favour, plaintiff was
required to establish that the contents of such video are false and defendant
No.1 has uploaded the same with malice. However, he has not even denied
the business model/schemes discussed in the video and has not disclosed his
actual business models/schemes in his plaint. He was supposed to specify
any imputation or allegations in the video which is defamatory and false.
However, plaintiff failed to point out the same. At this stage, there is nothing
on record which may suggest that impugned Video dated 11.12.2023
contains any false and defamatory contents against the plaintiff. Learned
counsel for the plaintiff has relied upon “Naresh Kumar. Vs. Wire &
Ors.” and “Vinai Kumar Saxena Vs. Aam Aadmi Party & Ors.”
(supra) to support their relief of interim mandatory injunctions against the
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Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
defendants. With due respect the gist of both the authorities is not disputed
but the same is not applicable to the case in hand as facts of both such cases
are distinguishable. In “Naresh Kumar. Vs. Wire & Ors.”, defendants had
published and circulated article levelling direct allegations of corruption
against Chief Secretary of Government of National Capital Territory, Delhi
and in “Vinai Kumar Saxena Vs. Aam Aadmi Party & Ors.”, defendant
Aam Aadmi Party circulated hash tags making direct imputation against
Lieutenant Governor of Delhi. However, in the case in hand, the impugned
video neither contains any imputation nor contains any direct defamatory
remarks against plaintiff.
15- Further the contention of learned counsel for defendants No.1 &
2 that this court has no territorial jurisdiction to entertain the civil suit on the
ground that plaintiff has not suffered any loss of reputation in Faridabad does
not hold very much relevance at this stage. Plaintiff Mr. Vivek Bindra carries
out his business in Delhi and resides in Faridabad. His youtube channel is
stated to have been subscribed by 21.05 Million persons. The impugned
video has already been seen by more than 70 lakh persons. Therefore, at this
stage, it would not be appropriate to hold that plaintiff does not carry any
reputation in Faridabad and no person in Faridabad has seen the impugned
video or the community post. Considering the peculiar circumstances of this
Dt:05.02.2024
Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
case, the issue of jurisdiction in this case is mixed question of law and facts.
Therefore, it cannot decided, at this primarily stage.
16- In light of above discussion, this court is of considered view
that plaintiff has failed to prove the strong prima facie case warranting this
court to grant interim mandatory injunction. However, plaintiff certainly has
a prima facie case to the extent that any defamatory remarks, imputation or
accusation by defendant No.1 can cause huge loss to business and reputation
of plaintiff. Learned counsel for the defendant No.1 has also placed on
record an order dated 15.01.2024 passed by Hon’ble Delhi High Court
wherein Hon’ble Court has restrained a channel Partner of plaintiff from
uploading any defamatory video against defendant No.1 on the basis of order
dated 22.12.2023 passed by this court. The relevant portion of order dated
15.01.2024 passed by Hon’ble Delhi High Court is reproduced as under:-
“ For the aforesaid reasons,in line with the order passed by the learned Civil
Court in respect of the parties to the suit, until the next date of hearing,
defendant No.3 is restrained from publishing any defamatory/disparaging
video against plaintiffs on social media platforms or any other online or
offline mode.”
Dt:05.02.2024
Mohit Sardana...Gagandeep Goyal
CJ(JD)/Faridabad
CNR No: HRFB02005709-2023 CIS No: C S/3874/2023
17- Both the plaintiff and defendant No.1 are renowned youtubers.
Any of their videos or posts on the social media certainly induces great
number of youth following them. Therefore, to rest the controversy, both the
plaintiff and defendant No.1 are restrained from uploading any defamatory/
disparaging video or posts over social media or any other online and off line
mode against each other. Accordingly, stay application stands partly allowed.
With due respect the gist of authorities cited by learned counsel for plaintiff
to support relief of interim mandatory injunction is not disputed. However,
the same is not applicable to the present facts and circumstances of the
case.
18- Nothing herein above stated shall be deemed to be an
expression of the merits of the case.
Dt. 05.02.2024 (Gagandeep Goyal),
Civil Judge (Jr. Division.),
Faridabad/UID No. HR00517
Note: This order contains eighteen pages and all the pages have checked and
signed by me.
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A court in Haryana recently restrained YouTubers and motivational speakers Vivek Bindra and Sandeep Maheshwari from posting any defamatory content against each other on social media or offline platforms [M/s Bada Business Private Limited & Anr v Sandeep Maheshwari & Anr].
Faridabad Civil Judge (Junior Division) Gagandeep Goyal passed the interim order on February 5, partly allowing the plea filed by Vivek Bindra and his company, Bada Business.
Bindra approached the court to restrain Maheshwari from posting any defamatory content against him.
The Court said that while Bindra failed to prove strong prima facie case warranting interim mandatory injunction against Maheshwari, he does have a case to the extent that any defamatory remarks, imputation or accusation can cause huge loss to his business and reputation.
“Both the plaintiff (Bindra) and defendant No.1 (Maheshwari) are renowned youtubers. Any of their videos or posts on the social media certainly induces great number of youth following them. Therefore, to rest the controversy, both the plaintiff and defendant No.1 are restrained from uploading any defamatory/ disparaging video or posts over social media or any other online and off line mode against each other. Accordingly, stay application stands partly allowed,” the Court ordered.
However, the Court also held that Bindra failed to prove that Maheshwari’s video (where he raised questions on Bindra’s business model) was uploaded with malice.
“He (Bindra) has not even denied the business model/schemes discussed in the video and has not disclosed his actual business models/schemes in his plaint. He was supposed to specify any imputation or allegations in the video which is defamatory and false. However, plaintiff failed to point out the same. At this stage, there is nothing on record which may suggest that impugned Video dated 11.12.2023 contains any false and defamatory contents against the plaintiff.”
Maheshwari and Bindra have been engaged in a war of words since December 11, 2023, when the former released a video titled ‘Big Scam Exposed’. While the video did not name Bindra, social media users made the connection.
The allegation was that Bindra was running a scam and fooling young people by providing a 10-day MBA course.
Within few days, Maheshwari’s video garnered millions of views. Soon after this, Maheshwari claimed that he was being pressured to take down the video and that goons were sent to his house as well.
Bindra, however, denied any wrongdoing and released a video on his YouTube channel answering Maheshwari’s allegations.
Advocates Vineet M Bajaj, Yash Singhal, Aditya Vardhan and Karan Bansal appeared for Vivek Bindra.
Sandeep Maheshwari was represented by advocates Mumtaz Bhalla and Atul Mangla.
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D.B. Criminal Writ Petition No. 613/2023
----Petitioner
Versus
1. State Of Rajasthan, Dept. Of Home Jaipur.
2. The Dist. Collector, Jodhpur.
3. The Superintendent, Central Jail, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Kalu Ram Bhati
Mr. S. D. Chavariya
Mr. Lalit Kishore Sen
For Respondent(s) : Mr. Anil Joshi, GA-cum-AAG
Mr. Pallav Sharma, AAAG
Order
This writ petition has been filed on behalf of the petitioner
with a prayer that the respondents may be directed to release the
petitioner on 20 days’ parole. The petitioner was convicted and
sentenced for offence the under Sections 370(4), 342, 506,
Section 376(2)(D)(F) IPC read with Section 23 of the Juvenile
Justice Act, 2000.
The grievance of the petitioner is that he has filed an
application with a prayer for releasing him on 20 days’ parole, but
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the respondents are not taking any decision on the said
application.
Reply to the writ petition has been filed on behalf of the
State, wherein it is stated that the District Parole Advisory
Committee, Jodhpur, in its meeting dated 20.06.2023, has
considered the application filed by the petitioner for releasing him
on 20 days’ parole, however, rejected the same on the ground that
he is not entitled to grant of benefit of 20 days’ parole as per the
provisions of the Rajasthan Prisoners Release on Parole Rules,
2021 (for short ‘the Rules of 2021’).
Learned counsel for the petitioner has argued that the
petitioner was convicted and sentenced by the trial court on
25.04.2018, whereas the Rules of 2021 came into effect from
30.06.2021 and, as such, the application filed by the petitioner for
releasing him on 20 days’ parole is liable to be considered under
the provisions of the Rajasthan Prisoners Release on Parole Rules,
1958 (for short ‘the Rules of 1958’) and not as per the provisions
of the Rules of 2021.
Learned counsel for the petitioner has placed reliance on the
decision passed by the Hon’ble Supreme Court in the case of
Hitesh @ Bavko Shivshankar Dave Vs. State of Gujrat : Writ
Petition (Criminal) No.467/2022, decided on 24.01.2023
and the decision passed by this Court in the case of Anil Kumar
@ Kaley vs. State of Rajasthan & Ors.: D.B. Criminal Writ
Petition (Parole) No.381/2022, decided on 02.02.2023 at
Jaipur Bench.
Learned AAG has opposed this parole writ petition, however,
he is not in position to dispute the fact that the application filed by
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the petitioner for releasing him on 20 days’ parole is liable to be
considered as per the provisions of the Rules of 1958 as laid down
by the Hon’ble Supreme Court in Hitesh’s case (supra).
In such circumstances, the decision taken by the District
Parole Advisory Committee, Jodhpur in its meeting dated
20.06.2023, refusing to grant parole of 20 days’ to the petitioner,
is hereby set aside and the respondents are directed to consider
the application filed by the petitioner for releasing him on 20 days’
parole afresh in accordance with the provisions of the Rules of
1958, instead of the provisions of the Rules of 2021, within a
period of six weeks from the date of production of certified copy of
this order.
This parole writ petition is disposed of accordingly.
15-Arun/-
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The Rajasthan High Court on Monday directed the District Parole Advisory Committee, Jodhpur to reconsider the application filed by Asaram Bapu seeking 20 days of parole under the Rajasthan Prisoners Release on Parole Rules, 1958. [Asha Ram v. State Of Rajasthan & Ors]
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3. This is precisely the reason why we had heard arguments at some length in these two appeals filed by the appellant – Manish Sisodia, former Deputy Chief Minister of Delhi, who seeks bail in the prosecutions arising from RC No. 0032022A00553, dated 17.08.2022, registered by the Central Bureau of Investigation1, at CBI, ACB, New Delhi, under the Prevention of Corruption Act, 19882 and the Indian Penal Code, 18603; and Enforcement Case Information Report4 No. HIU-II/14/2022, dated 22.08.2022, filed by the Directorate of Enforcement5, under the Prevention of Money Laundering Act, 20026. 4. CBI has filed two chargesheets, dated 24.11.2022 and 25.04.2023, wherein the appellant – Manish Sisodia is named and is facing trial for the offences under Sections 7, 7A, 8 and 12 of the PoC Act and Sections 120B, 201 and 420 of the IPC. DoE has filed a criminal complaint dated 04.05.2023 against the appellant – Manish Sisodia for the offences under Sections 3 and 4 of the PML Act. 5. A number of legal issues and questions were raised, and do arise, for consideration, but we would refrain from delving into them in 1 For short, “CBI”. 2 For short, “PoC Act”. 3 For short, “IPC”. 4 For short, “ECIR”. 5 For short, “DoE”. 6 For short, “PML Act”.
depth and detail. However, there is a bounded discussion in the subsequent portion of the judgment only for deciding the present appeals and the question as to whether the appellant – Manish Sisodia is entitled to bail. Nevertheless, for the purpose of record, we will delineate some of them: (a) What is the scope and ambit of the constitutional protection under Articles 74 and 163 of the Constitution of India on the decisions taken by the Council of Ministers? (b) Whether on interpretation of Section 3 of the PML Act, ‘the act/process of generation’ or ‘the attempt to generate the proceeds of crime’ falls within the ambit of the expressions ‘assist’, ‘acquisition’, ‘possession’ or ‘use’ under Section 3 of the PML Act? If the answer is in affirmative, what are the legal consequences as per the Constitution of India, under the Code of Criminal Procedure, 19737, the IPC, and the General Clauses Act, 1897? (c) Whether a person can be prosecuted under the PML Act only when there is material to show that he has indulged or assisted in any activity/process of money laundering, albeit an 7 For short, “The Code”.
activity/process different and separate from the scheduled offence? (d) Whether an accused, who allegedly has committed the scheduled offence, can be prosecuted under the PML Act, when the alleged prime accused and the beneficiary of the proceeds of crime, a juristic person, is not arrayed as an accused in the criminal complaint filed by the DoE? (e) Whether Sections 45 and 50 of the PML Act should be read down in view of the constitutional scheme and mandate of Article 20 of the Constitution of India? 6. On behalf of the appellant – Manish Sisodia, the following submissions have been made: • The appellant – Manish Sisodia has been in custody from 26.02.2023 in RC No. 0032022A00553 and from 09.03.2023 in the ECIR No. HIU-II/14/2022. • CBI had submitted charge-sheet on 25.04.2023 and the DoE had filed the criminal complaint on 04.05.2023 against the appellant – Manish Sisodia. • There are 294 witnesses and about 31,000 pages of documents in the charge-sheet filed by the CBI. There are 162 witnesses
and 25,000 pages of documents in the prosecution complaints filed by the DoE. • Arguments on charge have not commenced, and the trial will take years. • The new excise policy was validly adopted after due deliberation by the Council of Ministers/Cabinet in larger and greater public interest: o Under the old excise policy there was an incentive to cheat because of the very nature of liquor - fast selling and highly taxed. As per the Ravi Dhawan Committee8 Report dated 13.10.2020, the profit margins could be up to 65-70%, as the manufacturers were able to acquire retail licenses through proxy ownership. o As a check, wholesale licenses were not to be issued to a manufacturer or retail licence holder, directly or to sister concerns or related entities. o 272 wards in 68 Assembly Constituencies were divided into 30 zones. Each zone was to have 9-10 wards with a maximum of 27 retail vends which were to be allotted on the basis of auction. Each zone operator was to operate 8 For short, “R.D. Committee”.
two mandatory vends in each ward. The remaining vends were freehold vends to be operated anywhere within that zone. o Auction, with a reserve price equal to the existing license fee plus sum of potential revenue, estimated VAT and 10% additional fee for increase on year to year ensured maximization of revenue. o The licence fee payable by the wholesaler was raised from Rs.5,00,000/- (rupees five lakhs only) under the old policy to Rs.5,00,00,000/- (rupees five crores only), which is an increase of approximately 10,000%. o The wholesalers were entitled to a standard distribution fee at the rate of 12% of the landed price. The landed price or the ex-distillery price was the lowest price as declared by the manufacturer in any market in India. o The standard distribution fee at the rate of 12%, though higher than the fee under the old policy, was necessary to cover the higher level of investment required, setting up of quality checking system, etc. The fee of 12% had also subsumed several other charges payable under the old policy.
• The new policy was drafted in a transparent manner after deliberation at different levels by Secretaries/Officers of the Excise, Planning, Finance and Law departments. The revenue generation was projected at 12%. • Comments from general public were invited. Around 14,671 e-mails were received. The comments were considered. As per the prosecution, 6 e-mails were planted/prompted. This assertion to establish a criminal offence relying on 0.04% e-mails is assumptive and overweening. • The policy was sent to the Lieutenant Governor9 of the National Capital Territory10 of Delhi for comments and recommendation. The LG gave his recommendation on some aspects. The Cabinet had considered and accepted the recommendations. • The new excise policy report prepared by the GoM was accepted by the Excise Department and the Cabinet of the NCT of Delhi. It was uploaded on the website on 05.07.2021. It was implemented only on 17.11.2021. • Proceeds of crime is the core ingredient for the offence of money laundering, which expression is required to be construed strictly, as held in Vijay Madanlal Choudhary and Others v. Union of 9 For short, “LG”. 10 For short, “NCT”.
India and Others11. The offence under the PML Act has nothing to do with the criminal activity, subject matter of the scheduled offence. PML Act penalises indulging in activity/process relating to the proceeds of the crime, derived or obtained as a result of that crime. • Allegation regarding kickback of Rs.100,00,00,000 (rupees one hundred crore only), and a portion of it being used for funding the Aam Aadmi Party12, for its election campaign in Goa, is a concocted story unsupported by any legal and admissible evidence and material. The money trial is unproven and false. • Co-accused Rajesh Joshi and Gautam Malhotra have been granted bail for the offence under the PML Act on the ground that there was no documentary evidence to show that proceeds of crime were used for the election purposes. • To establish the money trail and payment of bribe/kickback of Rs.100,00,00,000 (rupees one hundred crore only), the DoE has relied upon the statements made by co-accused or approvers. These statements are hearsay and do not in any manner implicate or connect the appellant – Manish Sisodia with the transfer and use of the proceeds of the crime. 11 (2022) SCC Online 929. 12 For short, “AAP”.
• The statements of co-accused or other witnesses relied upon by the DoE were extracted and forced by a threat of arrest, as in the case of Magunta Sreenivasulu Reddy, Butchi Babu and Manoj Rai. Some of the co-accused like Arun Pillai and Sameer Mahendru have retracted from their statements. • Raghav Magunta, son of a Member of Parliament of the ruling party in Andhra Pradesh, was forced to make the statement dated 27.07.2023, which is contrary to his earlier statement dated 16.09.2022. • Statements obtained from Dinesh Arora, an approver, is weak evidence and in this regard, reliance is placed upon Ravinder Singh v. State of Haryana13. • Statement of Dinesh Arora dated 12.07.2023 is contrary to his earlier statement made on 09.04.2023. • Allegations regarding the appellant – Manish Sisodia’s involvement in the grant of licence to Indo Spirit is make belief and a false assertion. Statements obtained from the officers of the Excise Department under Section 164 of the Code, namely, Suman, Sachin Solanki and Arava Gopi Krishna do not implicate the appellant – Manish Sisodia. 13 (1975) 3 SCC 742.
• The appellant – Manish Sisodia, in his statement dated 14.03.2023, has stated that he had not instructed the Excise Commissioner to expedite the clearance of Indo Spirit’s license. • Interaction and communications between the private parties viz. business of Indo Spirit was independent, and without any interference, knowledge and participation of the appellant – Manish Sisodia. • Vijay Nair was not associated with the appellant – Manish Sisodia. There are also contradictions in the statements made by C. Arvind, under Section 50 of the PMLA, dated 07.12.2022, and the one under Section 164 of Cr.P.C., dated 16.02.2023. • Allegation regarding destruction of the cabinet file is nothing but making a mountain out of a molehill. The three legal opinions, two by former Chief Justices of India and one by a Law Officer, on merits or demerits of the old policy, were benign, and of no consequence and relevance. The allegation is also contrary to the contemporaneous records maintained by DoE. 7. The CBI and DoE have submitted as under: • Under the old excise policy:
o There was no concept of private wholesaler and no concept of zones.14 o The distributor/wholesaler was entitled to 5% profit margin. o The retail trade was primarily undertaken by four corporations of the Government of NCT of Delhi. • R.D. Committee Report dated 13.10.202015 recommended: o Gradual withdrawal of government presence. o Wholesale operation under one government entity. o Three models were examined: (i) existing model, (ii) licenses vide lottery system, and (iii) licenses to limited entities. o Licenses vide lottery system was recommended since auctioning licenses to limited entities could lead to cartelisation. • The R.D. Committee Report dated 13.10.2020 was not preferred by the appellant – Manish Sisodia. Reliance is placed upon the statement of C. Arvind16 dated 16.02.2023 under Section 164 of the Code, and Rahul Singh17 dated 03.03.2023 under Section 14 As per the appellant – Manish Sisodia, under the old liquor policy there were private whole-sellers, which assertion prima-facie appears to be correct. 15 The Expert Committee headed by Ravi Dhawan was constituted on 04.09.2020. 16 Posted as Secretary to appellant – Manish Sisodia between July, 2019 to June, 2022. 17 Erstwhile Excise Commissioner of NCT of Delhi.
161 of the Code. The appellant – Manish Sisodia had not accepted the report because of ulterior reasons. • A conspiracy was entered viz. the new excise policy to enable supersize profits for wholesale distributors in return for kickbacks and bribes. To start with: o Public comments were invited to the R.D. Committee Report dated 13.10.2020. Some public comments vide emails were prompted by the appellant – Manish Sisodia to influence the decision making process. The emails18, statement of Zakir Khan19 dated 29.03.2023 recorded under Section 161 of the Code, and screenshots of WhatsApp chats of Kartikey Azad and Zakir Khan establish the motive. Thus, a facade of transparency and openness in policy making was created. o Rahul Singh20 supports the charge. He was asked to prepare a cabinet note in a particular manner with comments and suggestions of the stakeholders and public. The appellant – Manish Sisodia reprimanded Rahul Singh for annexing the opinion of legal experts in the cabinet note.21 C. Arvind’s 18 Emails shared by interns of the Delhi Minorities Commission as public comments to the R.D. Committee Report. 19 Chairperson of the Delhi Minorities Commission. 20 Erstwhile Excise Commissioner of NCT of Delhi. 21 Statement of Rahul Singh21 dated 03.03.2023, under Section 161 of the Code.
statement dated 16.02.2023 under Section 164 of the Code is similar. o The appellant – Manish Sisodia, had issued directions to Sanjay Goel,22 to prepare a note without the opinion of legal experts. Reliance is placed on the statement of Sanjay Goel dated 17.01.2023 under Section 161 of the Code, and the letter dated 02.02.2023 by the appellant – Manish Sisodia to the Excise Commissioner. • The draft GoM Report on new excise policy, as retrieved from the computer under the control of the appellant – Manish Sisodia was typed/uploaded on 15.03.2021 and was last modified at 11.27 a.m. The wholesalers were entitled to a minimum 5% commission on the landed price. As no upper limit was prescribed, the manufacturers and wholesale distributors could negotiate and settle for a higher commission. • Big manufacturers with high market share and turnover, would not have agreed to a commission higher than 5%, or commission at the @ 12% of the landed cost. • A liquor group from Hyderabad stayed in Delhi from 16.03.2021 to 18.03.2021. Arun Pillai, Abhishek Boinpally, and Sarath Reddy from 22 Excise Commissioner of NCT of Delhi, who had replaced Rahul Singh.
the liquor group had several meetings with Vijay Nair, who was the middleman, a member of the AAP, and a close confidant of the appellant – Manish Sisodia. He was residing in a government bungalow allotted to a Cabinet Minister, who was a part of GOM.23 The agenda of the meetings were to decide changes in the excise policy, to enable them to earn super-profits in return for kickbacks. o On the evening of 16.03.2021, Abhishek Boinpally and Butchi Babu, who were staying at Hotel Oberoi, travelled to another Oberoi hotel in Civil Lines, where they met Vijay Nair, who was staying in a close proximity. The travel to the Oberoi Hotel in Civil Lines is established by an invoice24, call record details and statement of an employee of the Oberoi.25 o A print/photocopy of a 36 page document was made on 16.03.2021 at Hotel Oberoi, Civil Lines, Delhi.26 o The document/print was taken by Vijay Nair, and handed over to the appellant – Manish Sisodia. The appellant – Manish Sisodia gave ‘the print’ to his secretary C. Arvind. o The altered GoM report dated 18.03.2023 consists of 36 pages, if one excludes the index and the title page. Reference is made 23 Reliance is placed upon statements made by Arun Pillai, Butchi Babu and Dinesh Arora. Reliance is also placed on screenshots found in the phone of Manoj Rai, an employee of Pernod Ricard. 24 On 16.03.2021, Rs. 3,000/- had been billed under the description, “Logistic Charges”. 25 Statement of Ibrahim Magdum dated 03.02.2023, under Section 161 of the Code. 26 On 16.03.2021, Rs. 360/- had been billed under the description, “Print/Photocopy”.
to the statement of C. Arvind dated 16.02.2023, under Section 164 of the Code. o Screenshots of WhatsApp chats of Butchi Babu dated 20.03.2021, which is prior to submission of the GoM report to the Cabinet on 22.3.2022, refers to the creation of the new post of the Director, Wholesale Operation. Based on the print/document prepared by the liquor group, the GoM report to the Cabinet was modified to create this post. o Further, the minimum wholesaler fee of 5% under the draft dated 15.03.2021, was modified to mandatory and fixed fee of 12% in the altered GoM report submitted to the Cabinet. • The GoM did not meet between 15.03.2021 and 19.03.2021. There are neither any deliberations/discussions nor any noting/ calculations by the GoM for increasing the wholesale commission/ fee from 5% to 12%. Reliance is placed on the statement of Arava Gopi Krishna under Section 164 of the Code. Reliance is also placed on the statement of Sanjay Goel, dated 11.04.2023, under Sections 50(2) and 50(3) of the PML Act. • The appellant – Manish Sisodia was unable to provide any rational explanation for increasing the commission from 5% to 12%.27 He 27 Statement of Manish Sisodia dated 07.03.2023, under Section 50(2) and 50(3) of the PML Act.
had stated that even under the old regime there was no calculation for the 5% margin. • The appellant – Manish Sisodia had used his influence for grant of wholesale licence to Indo Spirit, a firm in which the liquor group had substantial interest. Reliance is placed on the statements made under Section 164 of the Code by Arava Gopi Krishna, and C. Arvind, dated 16.02.2023. Reliance is also placed on the statement of Dinesh Arora, dated 24.11.2022, recorded under Section 306 of the Code. • License to Indo Spirit was granted in spite of existing complaints of cartelisation against the partners of Indo Spirit, namely, Sameer Mahendru and his wife. The complainant was asked to take back his complaint.28 • The license fee payable by the wholesale distributor was fixed at Rs.5,00,00,000/- (rupees five crores only). The license fee was deliberately not fixed on the turnover, to facilitate and at the behest of the liquor group. • Three big manufacturers held 85% market share. The entire scheme was a pretence to recoup and get bribe and kickback from the big wholesale distributors, who acted as the middlemen and 28 Statement of Jagbir Sidhu dated 19.09.2022, under Section 161 of the Code.
were entitled to fixed commission @ 12% of the landed price on the turnover, but were required to pay a fixed license fee of Rs.5,00,00,000/- (rupees five crores only) to the government. • The manufacturers could appoint and enter into a distributorship agreement with only one wholesale distributor. They were not entitled to appoint multiple wholesale distributors. However, the wholesaler could enter into a contract with more than one manufacturer. New excise policy was clearly lopsided and favoured the big wholesale distributors. • Mahadev Liquor, a contender and wholesale distributor of 14 small manufacturers having about 20% market share, was forced to surrender their licence since they were not ready to pay kickbacks. Mahadev Liquor had business in Punjab and the state machinery of Punjab Excise Department was used to arm-twist them.29 • Pernod Ricard, the largest manufacturer, was directed to do business through Indo Spirit. Reliance is placed upon evidence collected from the mobile chats, including screenshots, as well as statements of an employee30. • The plea that the appellant – Manish Sisodia was not in possession of the proceeds of the crime, should not be accepted as the 29 Statement of Jasdeep Kaur Chadha dated 23.08.2022 under Section 50(2) and 50(3) of the PML Act. 30 Statement of Manoj Rai dated 31.12.2022, under Sections 50(2) and 50(3) of the PML Act.
expression ‘possession’ includes constructive possession. A person need not be in actual possession. When a person exercises dominion or control over a thing, directly or indirectly, through another person, he is in ‘possession’ over the said thing. The appellant – Manish Sisodia was a key to the processes and activities dealing with the proceeds of the crime and in using proceeds of the crime. He had created an eco-system for generating, concealing and projecting the tainted money, used subsequently by AAP. • The kickback or the proceeds of the crime of Rs.100,00,00,000 (rupees one hundred crore only) were received from the liquor group, and used by the associates of the appellant – Manish Sisodia and other leaders of AAP. o Portions of these proceeds of crime were used in the Goa election campaign through multiple persons and entities. The attempt was to conceal the true nature of the proceeds of the crime and to project them as untainted money. o Part of the proceeds of crime of Rs.100,00,00,000 (rupees one hundred crore only) were transferred through a complex web of transactions through hawala route, which have been traced in spite of erasure of digital and documentary evidence. • The appellant – Manish Sisodia was unable to produce his two mobile phones out of three mobile phones used between the period
01.01.2021 to 19.08.2022. Only one phone was seized by the CBI on 19.08.2022, which was being used only since 22.07.2022. He has deliberately destroyed the evidence. • The appellant – Manish Sisodia, given his power and political clout, and being the main accused in the conspiracy, may have the evidence destroyed, and the witnesses and documents may be exposed. • Dinesh Arora’s statement to the DoE dated 14.08.2023, under Sections 50(2) and 50(3) of the PML Act, had revealed that he had taken Rs. 2,20,00,000 (rupees two crore twenty lakhs only) from Amit Arora, for the appellant – Manish Sisodia. This was on account of favourable change and tweak in the new excise policy. Analysis 8. Referring to Section 4531 of the PML Act, in Vijay Madanlal Choudhary (supra), the three Judges’ Bench has opined that the 31 Section 45 reads: “45. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by— (i) the Director; or
provision does not require that to grant bail, the court must arrive at a positive finding that the applicant has not committed an offence under the PML Act. Section 45 must be construed reasonably as the intent of the legislature cannot be read as requiring the court to examine the issue threadbare and in detail to pronounce whether an accused is guilty or is entitled to acquittal. Further, an order on an application for bail is passed much before the end of trial and sometimes even before commencement of trial. Lastly, it is trite, that for the purpose of considering an application for bail, although detailed reasons are not necessary to be assigned, and, therefore, the evidence need not be weighed meticulously, a tentative finding should be recorded on the basis of broad probabilities. The order granting bail must demonstrate application of mind at least in serious cases where the applicant has been granted or denied bail. The findings recorded by the Court for grant or refusing bail being (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation.—For the removal of doubts, it is clarified that the expression ‘Offences to be cognizable and non-bailable’ shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.
tentative, will not have any bearing on the merits of the case, and the trial court would proceed and decide the case on the basis of evidence produced during trial without in any manner being prejudiced thereby. 9. We have copiously referred to the assertions, arguments and contentions of both sides, and in terms of the mandate in Vijay Madanlal Choudhary (supra), we will be examining the allegations and the legal position to form our tentative opinion. However, we must notice and take on record at some aspects upfront. 10. First, the assertion that Rs. 2,20,00,000 (rupees two crores twenty lakhs only) was paid as bribe to the appellant – Manish Sisodia by Amit Arora, through middleman Dinesh Arora, is not a charge or an allegation made in the chargesheet filed by the CBI. It may be difficult to regard the alleged payment as a ‘proceed of crime’ under the PML Act. 11. Secondly, it has been submitted by the DoE that AAP is a trust and is a “person” under Section 2(1)(s) of the PML Act. Being a juristic person, it acts through natural persons. The assertion made is that a portion of the proceeds of crime were used for the purpose of the artificial judicial person to fund the election in Goa. The DoE has
stated at the Bar, and in the written submissions, that once the quantum of amount used in the election in Goa is ascertained, a decision to consider AAP as an accused under Section 3 will be taken. It is stated by the DoE that the matter in this regard is being processed. In the written submissions, the DoE states: “...some of the PoC (Proceeds of Crime) has been used for the purpose of artificial juridical person through its office bearers in the election funding of the AAP in Goa as well for the benefit of office bearers as indicated above. Once the quantum of amount used for election in Goa is ascertained a decision to consider AAP as accused under Section 3 read with Section 70 of the PMLA (PML Act) shall be taken at that point of time.” 12. Thirdly, the assertion in the complaint filed with the DoE that kickback of Rs.100,00,00,000 (rupees one hundred crore only) was actually paid by the liquor group is somewhat a matter of debate. However, there is an assertion, and the DoE has relied on evidence and material, that a portion thereof, that is, Rs. 45,00,00,000 (rupees forty five crores only) was transferred through Hawala for the Goa election and used by AAP, a political party, which is a juristic person.32 AAP is not being prosecuted. The charge that the appellant – Manish Sisodia is vicariously liable in terms of Section 70 of the PML Act cannot be alleged and has not been argued.33 32 We are not commenting on the material and evidence relied by the DoE or CBI. 33 See – Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661, and Sharad Kumar Sanghi v. Sangita Rane, (2015) 12 SCC 781.
13. Fourthly, the contention of the DoE that generation of proceeds of crime is itself ‘possession’ or ‘use’ of the ‘proceeds of crime’, prima facie, appears to be unclear and not free from doubt in view of the ratio in Vijay Madanlal Choudhary (supra). Further, the DoE’s contention that ‘generation’ amounts to possession and the expression ‘possession’ includes constructive possession, for which reliance is placed upon Mohan Lal v. State of Rajasthan34, is not assured. 14. On the other hand, the appellant – Manish Sisodia relies on paragraphs 251, 269 and 270 of Vijay Madanlal Choudhay (supra), to contend that money laundering is an independent offence regarding the process or activity connected with the proceeds of crime derived as a result of criminal activity relating to or in relation to a scheduled offence. It is submitted that Vijay Madanlal Choudhry (supra) has held that PML Act is an independent and distinct Act which deals with offences relating to only proceeds of crime, and not with the crime itself which generates the proceeds of the crime. In particular, paragraph 406 in Vijay Madanlal Choudhary (supra) states: “406…The fact that the proceeds of crime have been generated as a result of criminal activity relating to a 34 (2015) 6 SCC 222.
scheduled offence, which incidentally happens to be a non-cognisable offence, would make no difference. The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and the indulges in process or activity connected with such proceeds of crime...” Paragraph 407 similarly states: “407…the offence under this Act in terms of Section 3 is specific to involvement in any process or activity connected with the proceeds of crime which is generated as a result of criminal activity related to the scheduled offence…” 15. In Mohan Lal (supra), the expression ‘possession’, it is held, consists of two elements. First, it refers to corpus of physical control and second it refers to the animus or intent which has reference to exercise of self-control. In the context of narcotics laws, a person is said to possess control over the substance when he knows the substance is immediately accessible and exercises dominion or control over the substance. The power and dominion over the substance is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime. It would be a different
matter, when an accused, though not in possession, is charged for use, concealment or acquisition of the proceeds of the crime, or projects or claims the proceeds of crime as untainted property. The involvement of an accused may be direct or indirect. Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant – Manish Sisodia, direct or indirect, in the transfer of Rs. 45,00,00,000 (rupees forty five crores only) to AAP for the Goa elections is missing. 16. This Court in Y. Balaji v. Karthik Desari and Another35, while examining contours of Section 3 of the PML Act36, referred to the drafting note on self-laundering contained in the U.N. Model Law 2009, which states that the third party would be liable for money 35 (2023) SCC Online SC 645. 36 Section 3 of the PML Act reads: Section 3 of the PML Act reads: “3. Offence of money-laundering.—Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. Explanation.—For the removal of doubts, it is hereby clarified that,— (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely— (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
laundering even where the fundamental principles of domestic law require that it will not apply to persons who commit the predicate offence. In some countries, constitutional principles prohibit prosecuting a person both for money laundering and a predicate offence. However, in most common law countries, the fundamental principles do not prohibit application of money laundering offence to self-launderers. On dissection of the main part of Section 3, it is held that it postulates three ‘p’s, namely, the person, the process or activity, and the product. The process or activity consists of six parts – concealment, possession, acquisition, use, projecting or claiming the proceeds of crime as untainted property. The product, that is, the proceeds of the crime, has been defined in Section 2(u) of the PML Act, as a property derived or obtained directly or indirectly by a person as a result of criminal activity relating to a scheduled offence or the value of such property.37 As far as ‘person’ is concerned, it means those who directly or indirectly attempt to indulge; those who knowingly assist, or those who are knowingly a party, or those who are actually involved. On the above interpretation, this court held that the offence under Section 3 of the 37 Section 2(u) of the PML Act reads: “‘proceeds of crime’ means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;”
PML Act includes both the persons who commit the predicate or schedule offence and third party launderers.38 17. The judgment in Y. Balaji (supra), it is submitted by the appellant – Manish Sisodia, does not specifically examine whether ‘generation’ will be included in the six activities covered under the head ‘process or activity’. The second ‘p’ must relate to the activity or process with the third ‘p’, that is, the product, which is the proceeds of crime. However, we need not, in the present case, definitively pronounce on the said aspects as these issues and contentions will have to be examined threadbare by the trial court, or in an appropriate case by this Court. 18. The offence of conspiracy and abetment, in terms of Sections 120/ 120B and Sections 107/108 of the IPC, are not applicable to offences under the PML Act. At the same time, Section 3 of the PML Act is wide and encompassing as it uses the words, “directly or indirectly”, with reference to the person involved, and knowingly assists, or knowingly is a party in an offence in relation to the concealment, possession, acquisition, use, projecting or claiming the proceeds of crime as untainted property.39 38 For the purpose of the present decision, we need not examine whether there is a conflict in the ratio in Y. Balaji (supra) and the ratio in Vijay Madanlal Choudhary (supra). 39 Scope and ambit of these words/expressions has not been examined by us.
19. We must also record that the DoE has not urged and argued before us the contention that the new liquor policy is vitiated on the ground that retail vends had to be and were auctioned, though the R.D. Committee’s Report dated 13.10.2020 has suggested retail vends should be allotted by lottery.40 Normally, auction and allotment to the highest bidder would be fair and beneficial for revenue generation, though in certain circumstances allotment by other modes may be more fair and better.41 We will not go into the said aspect. Neither are we examining whether this plea can be taken by the DoE, in view of Articles 74(2)42 and 163(3)43 of the Constitution of India, as this relates to the wisdom or merits of the choice that every elected government has while formulating a policy.44 However, we should not be understood to mean that no policy decision would fall foul as 40 Relevant portion of the R.D. Committee Report dated 13.10.2020 reads: “1.3.4…. The lottery applications will be against the pool of all 846 vends and will be randomly allotted in wards, NDMC area and airports…” In the written submissions filed by the prosecution several assertions have been made. 41 In Indian Medicines Pharmaceuticals Corporation Ltd. v. Kerala Ayurvedic Cooperative Society Ltd. And Ors., 2023 SCC OnLine SC 5, this Court held that: “17. This Court has consistently held that government contracts must be awarded by a transparent process. The process of inviting tenders ensures a level playing field for competing entities. While there may be situations which warrant a departure from the percept of inviting tenders or conducting public auctions, the departure must not be unreasonable or discriminatory. In Centre for Public Interest Litigation v. Union of India, the ‘first-cum- serve’ policy was held to be arbitrary while alienating natural resources. However, the Court observed that though auction is ‘preferred’ method of allocation, it cannot be construed to be a constitutional requirement.” 42 Article 74(2) of the Constitution of India reads: “…(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.” 43 Article 163(3) of the Constitution of India reads: “…(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.” 44 See In Yashwant Sinha and Ors. v. Central Bureau of Investigation, (2019) 6 SCC 1, State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428, Doypack Systems (P) Ltd. v. Union of India, (1988) 2 SCC 299 and other cases.
to be covered as an offence under Section 7 of the PoC Act. We shall subsequently examine Section 7 of the PoC Act viz. the facts alleged. We need not go into the questions in detail as the argument with reference to Article 163(3) has not been specifically raised on behalf of the appellant – Manish Sisodia, though the plea that the CBI, the DoE and the Court should not examine merits and wisdom behind the choice of policy decision have been raised. 20. The appellant – Manish Sisodia, it is claimed, had deliberately destroyed the two mobile phones so as to prevent any investigation. Further, he had changed his mobile phone on 22.07.2022, the date on which the media had covered the news of the complaint sent by the LG of NCT of Delhi to the CBI for investigation. The appellant – Manish Sisodia states that people do change mobile phones frequently, and old phones need not be retained. Whether or not the allegation as to deliberate destruction of mobile phones is correct would be decided post recording of evidence, but this would not be a weighty factor for deciding the question of bail, given the period of detention undergone by the appellant – Manish Sisodia.45 45 See Section 201 of the IPC, which reads: “201. Causing disappearance of evidence of offence, or giving false information to screen offender.— Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,
21. However, there is one clear ground or charge in the complaint filed under the PML Act, which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence. This discussion is equally relevant for the charge-sheet filed by the CBI under the PoC Act and IPC. We would like to recapitulate the facts as alleged, which it is stated establish an offence under Section 3 of the PML Act and the PoC Act. These are: • In a period of about ten months, during which the new excise policy was in operation, the wholesale distributors had earned Rs. 581,00,00,000 (rupees five hundred eighty one crores only) as the fixed fee. • The one time licence fee collected from 14 wholesale distributors was about Rs.70,00,00,000 (rupees seventy crores only). • Under the old policy 5% commission was payable to the wholesale distributors/licensees. if a capital offence.—shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.—and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.—and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
• The difference between the 12%; minus 5% of the wholesale profit margin plus Rs.70,00,00,000/-; it is submitted, would constitute proceeds of crime, an offence punishable under the PML Act. The proceeds of crime were acquired, used and were in possession of the wholesale distributors who have unlawfully benefitted from illegal gain at the expense of the government exchequer and the consumers/buyers.46 Relevant portion of the criminal complaint filed by the DoE dated 04.05.2023, reads: “One of the reasons given by Sh Manish Sisodia is to compensate the wholesaler for increased license fee from Rs 5 lacs to Rs. 5 Cr. During this policy period, 14 LI licences were given by Excise Department, by raising the license fee for LI to Rs. 5 Cr in the entire period of operation of the Delhi Excise Policy 2021- 22, the Govt. has earned Rs. 75.16 Cr from the license fee of LI (as per Excise department communication dated 11.04.2023) (RUD 34). On the other hand the excess profit earned by the wholesalers during this period is to the tune of Rs. 338 Cr. (7% additional profit earned due to increase from 5% to 12%, Rs. 581 Cr being the total profit of LI as informed by Excise department). Therefore there 1s no logical correlation between the license fee increase and the profit margin increase. Whereas this excess profit margin benefit could have been passed on to the consumers in form of lower MRP. Contrary to the claim that the policy was meant to benefit the public or the exchequer, it was rather a conspiracy to ensure massive illegal gains to a select few private players/individuals/entities.” 46 We wish to clarify that not all distributor licensees may be involved or have committed an offence under Section 3 of the PML Act. The figures quoted above relate to the 14 licensees, and have to be watered down/lowered to the sales made by the delinquent whole-sale distributor licensees who are being prosecuted.
22. The charge-sheet under the PoC Act includes offences for unlawful gains to a private person at the expense of the public exchequer. Reference in this regard is made to the provisions of Sections 7, 7A, 8 and 12 of the PoC Act. 23. Clauses (a) and (b) to Section 7 of the PoC Act47 apply: (a) when a public servant obtains, accepts or intends to obtain from another person undue advantage with the intent to perform or fail to improperly or to forbear or cause forbearance to cause by himself or by another person; (b) obtains or accepts or attempts to obtain undue advantage from a person as a reward or dishonest performance of a public duty or forbearance to perform such duty, 47 Section 7 of PoC Act reads: “7. Offence relating to public servant being bribed.—Any public servant who,— (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.—A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. ‘S’ is guilty of an offence under this section. Explanation 2.—For the purpose of this section,— (i) the expressions ‘obtains’ or ‘accepts’ or ‘attempts to obtain’ shall cover cases where a person being a public servant, obtains or ‘accepts’ or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.”
either by himself or by another public servant. Explanation (2) construes the words and expression, “obtains, accepts or attempts to obtain”, as to cover cases where a public servant obtains, accepts or intends to obtain any undue advantage by abusing his position as a public servant or by using his personal interest over another public servant by any other corrupt or illegal means. It is immaterial whether such person being a public servant accepts or attempts to obtain the undue advantage directly or through a third party. 24. On this aspect of the offences under the PoC Act, the CBI has submitted that conspiracy and involvement of the appellant – Manish Sisodia is well established. For the sake of clarity, without making any additions, subtractions, or a detailed analysis, we would like to recapitulate what is stated in the chargesheet filed by the CBI against the appellant – Manish Sisodia: • The existing excise policy was changed to facilitate and get kickbacks and bribes from the wholesale distributors by enhancing their commission/fee from 5% under the old policy to 12% under the new policy. Accordingly, a conspiracy was hatched to carefully draft the new policy, deviating from the expert opinion/views to create an eco-system to assure unjust enrichment of the wholesale distributors at the expense of
government exchequer or the consumer. The illegal income (proceeds of crime, as per the DoE) would partly be recycled and returned in the form of bribes. • Vijay Nair, who was the middleman, a go-between, a member of AAP, and a co-confident of the appellant – Manish Sisodia, had interacted with Butchi Babu, Arun Pillai, Abhishek Boinpally and Sarath Reddy, to frame the excise policy on conditions and terms put forth and to the satisfaction and desire of the liquor group. • Vijay Nair and the members of the liquor group had meetings on different dates, including 16.03.2021, and had prepared the new excise policy, which was handed over to Vijay Nair. Thereupon, the commission/fee, which was earlier fixed at minimum of 5%, was enhanced to fixed fee of 12% payable to wholesale distributor. • The appellant – Manish Sisodia was aware that three liquor manufacturers have 85% share in the liquor market in Delhi. Out of them two manufacturers had 65% liquor share, while 14 small manufacturers had 20% market share. As per the term in the new excise policy - each manufacturer could appoint only one wholesale distributor, through whom alone the liquor would be sold. At the same time, the wholesale distributors could enter
into distribution agreements with multiple manufacturers. This facilitated getting kickbacks or bribes from the wholesale distributors having substantial market share and turnover. • The licence fee payable by the wholesale distributor was a fixed amount of Rs.5,00,00,000/- (rupees five crores only). It was not dependant on the turnover. The new policy facilitated big wholesale distributors, whose outpour towards the licence fee was fixed. • The policy favoured and promoted cartelisation. Large wholesale distributors with high market share because of extraneous reasons and kickbacks, were ensured to earn exorbitant profits. • Mahadev Liquor, who was a wholesale distributor for 14 small manufacturers, having 20% market share, was forced to surrender the wholesale distributorship licence. • Indo Spirit, the firm in which the liquor group had interest, was granted whole distributor licence, in spite of complaints of cartelisation etc. which were overlooked. The complainant was forced to take back his complaint. • The excess amount of 7% commission/fee earned by the wholesale distributors of Rs.338,00,00,000/- (rupees three hundred thirty eight crores only) constitute an offence as
defined under Section 7 of the PoC Act, relating to a public servant being bribed. (As per the DoE, these are proceeds of crime). This amount was earned by the wholesale distributors in a span of ten months. This figure cannot be disputed or challenged. Thus, the new excise policy was meant to give windfall gains to select few wholesale distributors, who in turn had agreed to give kickbacks and bribes. • No doubt, VAT and excise duty was payable separately. However, under the new policy the VAT was reduced to mere 1%. • Vijay Nair had assured the liquor group that they would be made distributor of Pernod Ricard, one of the biggest players in the market. This did happen. 25. In view of the aforesaid discussion and for the reasons stated, we are not inclined to accept the prayer for grant of bail at this stage. 26. However, we are also concerned about the prolonged period of incarceration suffered by the appellant – Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement48, the appellant therein was granted bail after being kept in custody for around 49 48 (2020) 13 SCC 791.
days49, relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab50, and Sanjay Chandra v. Central Bureau of Investigation51, that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another52, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab53 and Kashmira Singh v. State of Punjab54, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. 49 In P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337, the appellant therein was granted bail after being kept in custody for around 62 days. 50 (1980) 2 SCC 565. 51 (2012) 1 SCC 40. 52 (2022) 10 SCC 51. 53 (2005) 7 SCC 387. 54 (1977) 4 SCC 291.
This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability.55 Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code56 can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others57, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 55 See also Pankaj Bansal v. Union of India and Ors., 2023 SCC OnLine SC 1244. 56 436A of the Code reads: “436-A. Maximum period for which an undertrial prisoner can be detained.—Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.—In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.” 57 (2021) 2 SCC 427.
27. The appellant – Manish Sisodia has argued that given the number of witnesses, 294 in the prosecution filed by the CBI and 162 in the prosecution filed by the DoE, and the documents 31,000 pages and 25,000 pages respectively, the fact that the CBI has filed multiple charge sheets, the arguments of charge have not commenced. The trial court has allowed application of the accused for furnishing of additional documents, which order has been challenged by the prosecution under Section 482 of the Code before the High Court. It was stated at the Bar, on behalf of the prosecution that the said petition under Section 482 will be withdrawn. It was also stated at the Bar, by the prosecution that the trial would be concluded within next six to eight months. 28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom,
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The Supreme Court Monday denied bail to Aam Aadmi Party (AAP) leader and former Delhi Deputy Chief Minister Manish Sisodia in connection with the cases related to Delhi excise policy scam.
A bench of Justices Sanjiv Khanna and SVN Bhatti pronounced the order.
"In the analysis there are certain aspects which are doubtful.. regarding transfer of ₹338 crore transfer is established. We have rejected the bail," the Court said.
We have said that if the trial proceeds sloppily in these 6 months then they can approach this court, the bench added.
Sisodia has been in custody since February 26 this year. He is being probed by both the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).
The scam involves allegations that Delhi government officials had connived to grant liquor licenses to certain traders in exchange for bribes. The accused officials are alleged to have tweaked the excise policy to benefit certain liquor sellers.
The Delhi High Court had earlier denied bail to Sisodia in the cases against him by the two central agencies, prompting the AAP leader to move the Supreme Court for relief.
During the course of the hearings, the bench had told the ED that a predicate offence has to pre-date the offence of money laundering under the Prevention of Money Laundering Act (PMLA) and the ED cannot create a predicate offence.
The CBI and the ED had earlier told the Supreme Court that they were thinking of adding AAP as an accused in the matter.
The bench had sought to know from the CBI and ED whether there was any evidence of bribery that could implicate Manish Sisodia in the alleged scam.
It had remarked that merely because lobby groups or pressure groups had called for a certain policy shift, that would not by itself imply that corruption or a crime has taken place unless there is an element of bribery involved.
Additional Solicitor General SV Raju appeared for the CBI and the ED. Senior Advocate Abhishek Manu Singhvi represented Manish Sisodia.
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Writ Petition(s)(Civil) No(s). 629/2021
Date : 02-12-2022 This petition was called on for hearing today.
For Petitioner(s) Petitioner-in-person
For Respondent(s)
UPON hearing the counsel the Court made the following
1The reliefs which have been sought in the proceedings under Article 32 of the
Constitution are extracted below :
“T o issue a writ, order or direction in the nature of mandamus,
thereby directing the Respondent No.1 to 3 to frame/make strict
guidelines/law on racial discrimination faced by the people of
north east states across India by insertation relevant sections in
Indian Penal Code relying on the report/recommendation of M.K
Bezbaruah Committee submitted in the year 2014 and despite
Parliament Approval, it has not been implemented till date by the
Government of India.
T o issue a writ, order or direction in the nature of mandamus,
directing the Respondent No.1 and 2 to issue directions to the
Concerned Ministry to insert relevant chapters in all NCERT Books
(Class VI-VIII) namely Geography, History , Demography and
Culture & Heritage of States of North East separately;
T o issue a writ, order or direction in the nature of mandamus,
directing the Respondent No.4 to immediately suspend/ban the
accounts of their users, who has previously made videos on racial
discrimination from their platform and circulated the said video
through same platform .”
2It is well settled that a mandamus cannot be issued to a law making body to
frame legislation. The second relief pertains to the domain of education policy.
Insofar as the third relief is concerned, an individual, aggrieved by a racially
discriminatory video on a social media platform, would be at liberty to pursue
remedies as available in law.
3The Writ Petition is accordingly disposed of.
4Pending applications, if any, stand disposed of.
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The Supreme Court Friday refused to entertain a public interest litigation petition seeking changes to school curriculum by including chapters on geography and history of north-east India.
The plea filed by Jyoti Zongluju also sought changes to law to curb racial discrimination.
A bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha, however, said that these are matters falling within the domain of the executive and the parliament, and the Court cannot pass any orders.
"For racial discrimination you move police. Including chapters in history, geography is pertaining to policy and I believe teach children as little as possible since it is all information overload now and every ill in the society does not merit court intervention," the bench said.
The Court made it clear that it cannot issue a writ of Mandamus to law making authority.
Regarding chapters on history, geography, the Court said it squarely falls within the domain of education policy.
"And regarding videos on youtube on racial discrimination, police is the appropriate authority to look into this. Writ petition dismissed," the Court ordered.
The counsel for the petitioner said that people from north-east had suffered racial discrimination during COVID-19.
"But you want us to make changes to IPC provisions, and we cannot do that. The plea is dismissed," the Court said.
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Re: Proposal for transfer of Mr Justice Nani Tagia , Judge, Gauhati
High Court
On 23 August 2023, the Collegium proposed the trans fer of Mr Justice
Nani Tagia , Judge, Gauhati High Court to the High Court of
Judica ture at Patna , for better administration of justic e.
In terms of the Memorandum of Procedure, we have consulted Judge s
of the Supreme Court who being conversant with the affairs of the
Gauhati High Court are in a position to offer views on the proposed
transfe r. We have a lso consulted the Chief Justi ce of the Gauhati
High Court and the Chief Justi ce of the High Court of Judicature at
Patna .
By a communication dated 24 Augu st 2023 , Mr Justice Nani Tagia
has requested that he may be allowed to remain at any of the Be nches
of the Gauhati High Court or be transferred to the High Court of
Tripura.
We have considered the request ma de by Mr Justice Nani Tagia . The
Collegium does not find any merit in the request made by him.
The Collegium , therefore, resolves to reiterat e its recommend ation
dated 23 August 2023 to transfer Mr Justice Nani Tagia to the High
Court of Judicature at Patna .
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The Supreme Court Collegium on Thursday recommended the transfer of Justice Nani Tagia from the Gauhati High Court to the Patna High Court.
In a resolution published on the Supreme Court website on Thrusday, the Collegium noted that it had proposed the transfer in a meeting held on August 23.
However, Justice Tagia had made a request to remain at any of the benches of the Gauhati High Court or be transferred to the Tripura High Court instead.
The Collegium rejected such request and reiterated its recommendation. The resolution said that the transfer has been proposed for 'better administration of justice'.
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vil Appeal No. 5 186 of 1989.
From the Judgment and Order dated 31.8.1989 of the Delhi High Court in Company Appeal No. 35 of 1988.
F.S. Nariman, Ashok K. Mahajan and Subhash Sharma for the Appellants.
Anil B. Devan and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
Leave granted.
This is an appeal from the judgment and order of the Division Bench of the High Court of Delhi, dated 31st Au gust, 1989.
The appellant No. 1 M/s World Wide Agencies (P) Ltd. is a private limited company incorporated under the provisions of the Indian (hereinafter referred to as 'the Act ') to which Table 'A ' of Schedule 1 to the Act applies, as stipulated under the Articles of Association of the company.
As per the memorandum of associ ation the appellant company was carrying on the business of travel agents at G 40, Connaught Circus, New Delhi.
The authorised Share capital of the company was to the tune of Rs.5 lakhs divided into 5000 equity shares of Rs. 100 each.
The paid up capital as per the last annual return filed by the company with the Registrar of Companies, was Rs.2,01,000.
The company had at all relevant times 7 share holders and the total number of shares subscribed and paid up was 2010 shares.
The appellant No. 2 Mrs. Amrit Kaur Singh, at all rele vant times, was a shareholder holding 545 fully paid up shares in the share capital of the company, and was also the whole time working Director of the company, holding the office from 1974 onwards.
Late Mr. S.K. Desor was a British national.
He held 600 shares in the said company, acquired by him from the Ex Managing Director Mr. Amrik Singh Saluja and his family.
The respondents Nos. 2 & 3 to this appeal are children of late Mr. S.K. Desor who died on 5th March, 1985.
As per the certified copy of the annual return made up to 15th February, 1984 548 the shareholders of appellant No. 1 (company) were as fol lows: Mr. S.K. Desor 600 shares Mrs. Amrit Kaur Singh 545 shares Mr. Yash Pal Malhotra 250 shares Mrs. Amrit Gupta 200 shares Mrs. Savitri Devi Kohli 5 shares Mr. A.S. Saluja 5 shares Mr. Balwant Singh 405 shares 2010 shares A petition under sections 397 & 398 of the Act and in the alternative for winding up of the company was filed by the respondents on 25th March, 1985, wherein it was alleged that on 12th March, 1985 respondent No. 1, being the widow of late Mr. S.K. Desor, applied as a legal heir of late S.K. Desor to the Board of Directors of the appellantcompany for transmission of 850 shares held by her late husband.
It is stated that the shares of Yash Pal Malhotra had been ac quired by late Mr. S.K. Desor; and that respondent No. 1 filed an affidavit of her daughter Ms. Kim Paul, relinquish ing her claim to the shares of her late father.
The Board of Directors resolved that they had no objection to transmis sion of the shares held by Mr. S.K. Desor but the actual transmission would take place on respondent No. 1 's obtain ing Reserve Bank of India 's permission and the succession certificate.
The respondent No. 1 's application for allot ment of 5 shares as per her letter of the same date was allowed by the Board of Directors, and it was resolved that in view of allotment of these shares, her interest in the shares of her late husband, she be appointed as a Director of the company, subject to Reserve Bank of India 's permis sion.
It is stated in the judgment under appeal that at the said meeting of the Board of Directors, they recorded their deep appreciation for the services rendered by late Mr. S.K. Desor as Managing Directorcum Chairman of the company, and.
mourned his passing away.
The quorum of the said meeting was two Mrs.
Amrit Gupta and Mrs. Savitri Devi Kohli.
It is recorded in the judgment under appeal that on 23rd March, 1985 the Board of Directors held another meeting.
The minutes of the meeting of 12th March, 1985 were confirmed by the two above mentioned Directors.
The third Director, Mrs. Amrit K. Singh, however, objected as she stated that she had not been informed of the last meeting.
Various averments had been made in the petition with 549 regard to oppression and removal of certain valuables of Mrs. Amrit K. Singh and illegal operation of the bank ac count etc.
It was also asserted that Mrs. Singh was holding 545 shares benami and these in fact belonged to Mr. S.K. Desor.
A preliminary objection was raised on behalf of Mrs. Amrit K. Singh regarding the maintainability of the petition on the ground that the appellants were not members of the company as their names had not been recorded in the register of members.
A further objection was taken that a composite petition under sections 397 & 398 of the Act with an alternative prayer for winding up of the company was not maintainable.
The learned single Judge of the High Court sitting as a Company Judge dealt with the application and held that the appellants who were the wife and children of late Mr. S.K. Desor and had obtained letters of administration.
u/s 290 of the Indian Succession Act read with section 273 of the Act, as also the permission of the Reserve Bank of India, should be treated as members for the purpose of maintaining a petition sections 397 & 398 of the Act.
The learned single Judge also held that a composite petition was maintainable.
The appellant Mrs. Amrit K. Singh filed an appeal for herself and, as she alleged, as "Working Director" from the judgment and order dated 21st September, 1988 of the learned single Judge.
It appears that the appellants, aggrieved thereby, had also moved this Court under article 136 of the Constitution.
This Court by its order dated 18th January, 1989 stayed the further proceedings before the learned single Judge and directed expeditious disposal of the appeal pending before the division bench or the High Court, from the said order of 21st September, 1988 which had been admit ted on 13th October, 1988, for consideration by the Division Bench of the High Court of the application for.
directions.
By a judgment and order delivered on 31st August 1989 the Division Bench dismissed the said appeal and held that the petition section 397 & 398 was maintainable by the respondents in the facts and circumstances of the case, and that a composite petition sections 397,398 & 433(f) of the Act was maintainable.
Aggrieved thereby, the appellants preferred this appeal to this Court.
We are concerned with two questions of law, namely, whether the legal heirs of a deceased shareholder can be treated as members of the company for the purpose of main taining a petition sections 397 & 398 of the Act, and whether a composite petition under sections 397, 398 & 550 433(f) of the Act is maintainable.
We had the advantage of hearing Mr. F.S. Nariman, counsel for the appellants and Mr. Anil Diwan for the respondents.
It may be mentioned that during the pendency of the appeal before the High Court, without prejudice to the rights and contentions of the parties, an emergent meeting of the Board of Directors was directed by the High Court to be held on 28th January, 1989 to consider the question of registration of 450 shares belonging to the deceased Mr. S.K. Desor in the name of Mrs. Margarat T. Desor and her son Sameer K. Desor, being re spondents Nos. 1 & 3 respectively.
It further appears that as per the directions of the Division Bench, dated 27th January, 1989 the court had appointed Chairman Mr. C.K. Mahajan and Mrs. Margarat T. Desor were not permitted to vote at the said meeting.
At a meeting held subsequent thereto, by a majority, it was resolved not to register the respondents Nos. 1 & 3 as members.
It must, however, be noted that the Division Bench vide its order dated 27th January, 1989 had directed that no effect would be given to the said Resolution.
The question, therefore, which is material to be consid ered, is, whether the legal heirs of a deceased shareholder whose names are not entered in the register of members, are entitled to maintain petition sections 397 & 398 of the Act.
It was contended on behalf of the appellants that sections 397 & 398 of the Act must be strictly construed.
Section 397 of the Act which is in chapter VI of the Act under the heading "Prevention of Oppression and Mismanage ment", provides as follows: "Application to Court for relief in cases of oppression.(1) Any member of a company who complains that the affairs of the company are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members including any one or more of themselves may apply to the Court for an order under this section, provided such members have a right so to apply in virtue of section 399.
(2) If, on any application under sub section (1), the Court is of the opinion (a) that the company 's affairs are being conducted in a manner prejudicial to public interest or in a manner oppressive to any member or members, and 551 (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the fact would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up; the Court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit.
" On behalf of the appellants it was contended that the right which is a specific statutory right, is given only to a member of the company and until and unless one is a member of the company, there is no right to maintain application u/s 397 of the Act.
Mr. Nariman contended that there was no automatic transmission of shares in the case of death of a shareholder to his legal heir and representatives, and the Board has a discretion and can refuse to register the shares.
Hence, the legal representatives had no locus standi to maintain an application sections 387 & 398 of the Act.
Mr. Nariman submitted that the rights under sections 397 & 398 of the Act are statutory rights and must be strictly construed in the terms of the Statute.
The right, it was submitted, was given to "any member" of a company and it should not be enlarged to include "any one who may be entitled to become a member".
In order to decide the question involved, it would be necessary to examine certain provisions of the Act.
Section 2(27) of the Act states that "member" in relation to company does not include a bearer of a share warrant of the company issued in pursuance of section 114 of the Act.
Section 41 of the Act provides as follows: "(1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration, shall be entered as members in its register of members.
(2) Every other person who agreed in writing to become a member of a company and whose name is entered in its register of members, shall be a member of the company.
" Section 26 of the English Companies Act, 1948 in sub stantially the same.
Section 109 of the Act states as follows: "A transfer of the share or other interest in a company of a 552 deceased member thereof made by his legal representative shall, although the legal representative is not himself a member, be as valid as if he had been a member at the time of the execution of the instrument of trans fer.
" In this connection, it would be relevant to refer to Articles 25 to 28 of Table A of the Act, which deal with the transmission of shares and which are in the following terms: "25.(1) On the death of a member the survivor where the member was a joint ,holder, and his legal representatives where he was a sole holder, shall be the only persons recognised by the company as having any title to his interest in the shares.
(2) Nothing in clause (1) shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him with other persons.
26.(1) Any person becoming entitled to a share in consequence of the death or insolvency of a member may, upon such evidence being produced as may from time to time properly be required by the Board and subject as hereinafter pro vided, elect, either (a) to be registered himself as holder of the share; or (b) to make such transfer of the share as the deceased or insolvent member could have made.
(2) The Board shall, in either case, have the same right to decline or suspend registration as it would have had, if the deceased or insolvent member had transferred the share before his death of insolvency.
(1) If the person so becoming entitled shall elect to be registered as holder of the share himself, he shall deliver or send to the company a notice in writing signed by him stating that he so elects.
(2) If the person aforesaid shall elect to transfer the share, he shall testify his election by executing a transfer of the share.
553 (3) All the limitations, restrictions and provisions of these regulations resulting to the right to transfer and the registration of transfers of shares shall be applicable to any such notice or transfer as aforesaid as if the death or insolvency of the member had not occurred and the notice or transfer were a transfer signed by that member.
A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends or other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, become being registered as a member in respect of the share, be entitled in respect of it to exer cise any right conferred by membership in relation to meetings of the company: Provided that the Board may, at any time, give notice requiring any such person to elect either to be registered himself or to transfer the share, and if the notice is not complied with within ninety days, the Board may thereafter withhold payment of all divi dends, bonuses or other moneys payable in respect of the share, until the requirements of the notice have been complied with.
" Article 28 is more or less in para materia to articles 32 of Table A to the English Companies Act.
It may also be mentioned, as it ' has been mentioned by the High Court, that section 210 of the English Companies Act, before its amendment in 1990, was substantially the same as section 397 of the Act.
As mentioned hereinbefore, it is the admitted case of the parties that the regulation for management of the compa ny as contained in Table A to the Act apply to appellant No. 1 and the said relevant provision in the articles of associ ation of the company regarding transfer of shares is Article 17, which is as follows: "No share shall be transferred to any person other than a shareholder of the company so long as any member of the company is willing to purchase the same at fair value.
This clause shall not apply to the executor of administrator of a deceased shareholder, if there is will or to the heir or lineal decend ents where no letter of administration has been taken." 554 Mr. Nariman submits that in view of the specific provi sions of section 397 of the Act only a member is entitled to move a petition under sections 397 and 398 of the Act and that member is one whose name is in the register of members in view of section 41 of the Act, as mentioned hereinbefore.
In this connec tion, it is was emphasised that not only must the applicant be a member but in terms of section 399 of the Act, he has to fulfil the conditions laid down under clauses (a) and (b) of section 399 of the Act.
These should be construed so as to mean what the words say.
According to Mr. Nariman, a member is not, in view of the scheme of the Act, the representative of a deceased member.
It is true that it must be a member and section 41 of the Act provides that a member of a company is a person who has applied in writing and "whose name is entered in the regis ter of members" is entitled to move the petition.
It appears in this case that names of respondent Nos. 2 and 3 had not then been entered in the register of members at the relevant time when the application was made.
But the name of Late Shri S.K. Desor was still on the register of members and the requisite shareholding for moving a petition under sections 397 and 398 of the Act was held by him.
This question, though res integra so far as this country is concerned, has been considered in England, where Pennycuick, J. had occasion to consider this in Re Jermyn Street Turkish Baths Ltd., The Company there was incorporated in 1946 and represented a joint venture by L and section In 1952, S transferred his shareholding to Mrs. P who became a director of the company.
L died in 1953 and thereafter Mrs. P was mainly responsible for the company 's affairs.
The petition ers therein were appointed administrators in L 's estate in 1960, and in 1961, at their request, the names of the peti tioners therein were entered in the register of members of the company against the name of L as administrators of L.
On the questions whether the entry constituted merely a note of the grant of administration or the registration of the petitioners as members, and whether the petitioners were members of the company for the purposes of presenting a petition under section 210 of the English Companies Act at p. 65 of the report, Pennycuick, J. noted that it was contended before him that the petitioners therein were not members of the company and hence had no locus standi to present the petition bearing in mind that petition under section 210 of the English Companies Act could only be presented by a member of the company.
In the facts of that case, Pennycuick, J. held that the petitioners were duly registered as members of the company but he proceeded to hold that even if it were so, the personal representatives of a deceased member must be regarded as members of the company for the purposes of 555 section 210 Of the English Companies Act.
In this connection, reference was made to the decision of Buckley, J. in Re Bayswater Trading Co. Ltd., , where at p. 609 of the report, it was held that 'member ' would in clude representative of a deceased member for the purpose of section 353 of the English Companies Act.
This judgment of Penny cuick, J. went up in appeal to the Court of Appeal and it was reversed.
See Re Jermyn Street Turkish Baths Ltd., But on the point whether the repre sentative of a deceased member can maintain an action under section 210 of the English Companies Act, the views of Penny cuick, J. were not reversed or modified.
Mr. Nariman submit ted that the observations of Pennycuick, J. were obiter for the decision of the case.
We are unable to agree.
Indeed, this was a point specifically referred to by Pennycuick, J. as being raised and specifically decided.
But we need not detain ourselves with this controversy because the decision of the English Courts are not binding in the courts of India.
But the observations or the reasoning are of persua sive value.
We are clearly of the opinion that having regard to the scheme and the purpose of sections 397 and 398 of the Act, the reasoning on a para materia provision of the English Act would be a valuable guide.
The said construction, appears to us, to further the purpose intended to be fulfilled by petitions under sections 397 and 398 of the Act.
It facilitates solution of problems in case of oppression of the minorities when the member is dead and his heirs or legal representa tives are yet to be substituted.
This is an equitable and just construction.
This construction, as suggested by Penny cuick, J. does not militate against either equity or justice of the such situation.
We would, therefore, adhere to that construction.
In this connection, it may be mentioned that in the 1972 Edition of Gore Browne on Companies, it has been stated as follows: "It has recently been settled that the person al representatives of a deceased member, even though they are not registered as members, are entitled to present a petition under section 210.
In Re. Jermyn Street Turkish Baths Ltd., Pennycuick, J. held that on its true construc tion section 210 required that the word 'member ' should include the personal represen tatives of a deceased member, on whom title of his shares devolved by operation of law.
" In 1st Supplement January 1978 of Gore Browne on Compa nies, at para 16, it is stated that "while the shares remain in the name of the deceased holder, his estate is prima facie entitled to any subsequent benefits deriving from the shares".
At p. 491 of Buckley on Companies , the decision of Re Jermyn Street Turkish Baths Ltd. 's case (supra) has also been referred to and it was observed that for the purpose of the petition under section 210 of the English Companies Act, 'member ' includes the personal representatives of a deceased member.
Buckley also notes that this decision referred herein was reversed without affecting this point by the Court of Appeal.
In Halsbury 's Laws of England, 4th Edition, Vol. 7, para 1010, at p. 604, same view has been expressed.
The division bench of the Delhi High Court also noticed that the view expressed in Re Jermyn Street Turkish Baths (supra) also finds indirect support from various other decisions of the English Courts.
Reference was made to the decision in James vs Buena Venture Nitrate Grounds Syndicate Ltd., [1896] 1 Chancery Division 456; Re Dlewellyn vs Kasintoe Rubber Estate Ltd., and New Zealand Gold Extraction Company (Newbe ryyautin Proces) Ltd. vs Peacock, These decisions do indicate that the right of members in similar, though not identical situations, should be construed as being belonging to the legal representative or heirs of deceased members.
Our attention, however, was drawn to the decision of Supreme Court of Victoria in Re Meyer Dougals Pty. Ltd., ; by Gowans, J. Article 22 of Table A to the Victorian Companies Act, 1938 (4602) provides as follows that: "22.
A person becoming entitled to a share by reason of the death, bankruptcy or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not before being registered as a member in respect of the share be entitled in respect of it to exercise any right conferred by membership in relation to meeting of the company.
" Gowans, J. in that case found that there was a "careful distinction between members and persons entitled to share by reason of the death of a member but who are not registered appear to deny the status of a member to a legal personal representative who is not a member".
On an analysis of various decisions, Gowans, J. was of the view that a de ceased 's estate and its representative may in a particular context have to be treated as not a member and in view of the provisions of section 186(1) of the Victorian Companies Act, 1961 which provides "any member of a company who complains that the affairs of the company are being conducted in manner oppressive to one or more of 557 the members (including himself) may . apply to the court for an order under that section", Gowans, J. came to the conclusion that there was no reason for treating the word "members" in that section as not applying to a legal repre sentative who is not entitled to be accorded the right which registration would give him to vote in regulating the con duct of the company 's affairs.
The object of the section, which is in para materia to section 399 of the Act, was to pro vide a remedy for the case where, notwithstanding the fact that a person possesses the right of a member enabling him to participate in the conduct of the affairs of the company, he can claim that he as a member or as one of a number of members, is or are being oppressed by those who conduct the affairs of the company.
According to Gowans, J., it should not be treated as applying to someone who is not so entitled and cannot so claim.
With respect, we are unable to accept this view.
Having regard to the purpose of the section as we conceive it, it would not be just construction to deny the legal representatives of the deceased member the right of maintain a petition under sections 397 and 398.
We would prefer to accept the view of Pennycuick, J. in Re Jermyn Street Turkish Baths Ltd. 's case (supra).
It appears to us that this will be in consonance with the equity of the sections.
In Gower 's Principles of Modern Company Law, at p. 68, reference has been made to Re Jermyn Street Turkish Baths Ltd. 's, case (supra) and also to Re Meyer Douglas Pry Ltd. 's, case (supra), which, according to the learned author, seems to be more convincing.
Mr. Nariman also referred us to the comments in Hahlo 's Casebook on Company Law, 2nd Edi tion, p. 35 1, where in footnote, reference was made to Re Jermyn Street Turkish Baths Ltd. 's, case (supra), which have been followed in some decisions.
It was noted as fol lows: "It appears doubtful whether personal repre sentatives of deceased shareholders, who themselves are not, or cannot become, registered as shareholders, can be regarded as "members" for the purposes of section 210 of the 1948 Act: Re Cuthburt Cooper & Sons Ltd., [1937] Ch.
392 and Re Meyer Douglas Ltd., at 655.
" We do not agree for the reason mentioned before.
It further appears to us the Australian judgment does not reconcile to logic in accepting that legal representative can petition for winding up, which is called the "sledge hammer remedy", but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanage ment though the latter remedy requires establishment of winding up on just and equitable grounds as a precondition for its 558 invocation.
It would be rather incongruous to hold that the case for winding up on just and equitable grounds can be made out by the legal representatives under section 439(4)(b) of the Act but not the other.
This does not appear to be logi cal.
It appears to us that to hold that the legal represen tatives of a deceased shareholder could not be given the same right of a member under sections 397 and 398 of the Act would be taking a hyper technical view which does not ad vance the cause of equity or justice.
The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members.
When the member dies, his estate is entrusted in the legal repre sentatives.
When, therefore, these vestings are illegally or wrongfully affected, the estate through the legal represen tatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member.
We are of the opinion that this view is a correct view.
It may be mentioned in this connection that succession is not kept in abeyance and the property of the deceased member vests in the legal represen tatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under section 109 of the Act.
In some situations and contingencies, the "member" may be different from a "holder".
A "member" may be a "holder" of shares but a "holder" may not be a "member".
In that view of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the posi tion in the case of Kedar Nath Agarwal vs Jay Engineering Works Ltd. and Ors., , to which our attention was drawn.
Admittedly in the present case, the legal representa tives have been more than anxious to get theft names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest.
It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under sections 397 and 398 of the Act.
This would frustrate the very purpose of the necessity of action.
It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under sections 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms 559 signed by members, and as such having a financial interest, could also claim to move an application under sections 397 and 398 of the Act.
The High Court held that this is a fallacy, that in the case of persons having blank transfer forms, signed by members, it is the members themselves who are shown on the register of members and they are different from the persons with the blank transfer forms whereas in the case of legal representatives it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right.
A right has devolved on them though the death of the member whose name is still on the register.
In our opinion, therefore, the High Court was pre eminently right in holding that the legal representa tives of deceased member whose name is still on the register of members are entitled to petition under sections 397 and 398 of the Act.
In the view we have taken, it is not necessary to consider the contention whether as on the date of petition, they were not members.
In that view of the matter, it is not necessary for us to consider the decision of this Court in Rajahmundry Electric Supply Corpn.
Ltd. vs A. Mageshwara Rao & Ors., 13.
In view of the observations of this Court in Life Insurance Corporation of India vs Escorts Limited & Ors., ; at p. 1412, it is not necessary, in our opinion, to consider the contention as made on behalf of the appellant before the High Court that the permission of the Reserve Bank of India had been errone ously obtained and consequently amounts to no permission.
In the present context, we are of the opinion that the High Court was right in the view it took on the first aspect of the matter.
The second question was whether a combined petition under sections 397, 398 and 433(f) of the Act was maintainable.
In view of the observations of this Court in Shanti Prasad Jain vs Kalinga Tubes, and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors.
vs Akola Electric Supply Co. Pvt. Ltd., , we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under sections 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under section 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory.
As Halsbury 's Laws of England, 4th Edition, Volume 7, at p. 604 605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the Court may, with a view to bringing to an end the 560 matters complained of, make such order as it thinks fit, whether for regulating the conduct of the company 's affairs in future or otherwise.
We are of the opinion that averments which a petitioner would have to make to invoke the juris diction of sections 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under section 433(f) on the just and equitable ground, though they may appear to be rather conflicting if not contradictory.
We are in agreement with the High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irrecon cilable and cannot simultaneously be gone into.
Indeed these are made in the manner indicated before.
It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the Court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under ' section 397 can be granted.
This is a well accepted remedy exercised by the Courts.
We are, therefore, of the opinion that the High Court.was right in the view that a composite petition under sections 397,398 and 433(f) of the Act is main tainable.
The appeal, therefore, must fail and is accordingly dismissed.
We dismiss the appeal with costs, which is as sessed at Rs.5,000.
Y. Lal Appeal dis missed.
|
The appellant No. 1 is a private limited Company incor porated under the Indian Companies Act.
The Company had at all relevant times 7 share holders and the total number of shares subscribed and paid up was 2010 shares.
The appellant No. 2 is a shareholder and a whole time Director of the Company.
Consequent upon the death of one share holder, Mr. S.K. Desor, who had controlling interest in the Company, his legal representatives, wife and children respondents herein.
filed a petition under Section 397 and 398 of the Act and in the alternative prayed for winding up of the company.
A preliminary objection was raised on behalf of Mrs. Amrit K. Singh, appellant No. 2 regarding the maintainability of the petition on the ground that the respondents were not members of the company as their names had not been recorded in the register of members and as such they had no locus standi to file the petition in question.
A further objection was also taken that a composite petition under Sections 397 and 398 of the Act with an alternative prayer for winding up of the company was not maintainable.
A company Judge of the High Court before whom the peti tion came up for hearing held that the respondents who were the wife and children of the deceased share holder and who having obtained Reserve Bank 's permission and letters of administration according to law should be treated as members for the purpose of maintaining a petition under Sections 397 and 398 of the Act.
The company Judge also held that a composite petition was maintainable.
Appellant No. 2 preferred an appeal against the order of the Company Judge.
The appellants also moved this Court under Article 136 of the Constitution against the order of the Company Judge.
This court by its order dated 18th Janu ary 1989 stayed the further proceedings before the Single Judge and directed expeditious disposal of the appeal.
The Division Bench dismissed the appeal holding that the peti tion under 546 Sections 397 and 398 was maintainable.
Hence this appeal.
The same two questions as stated above arose for deter mination by this Court, Dismissing the appeal, this Court, HELD: Succession is not kept in abeyance and the proper ty of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purpose of transfer of shares under Section 109 of the Act.
[558D] In some situations and contingencies, the 'member ' may be different from a 'holder '.
A 'member ' may be a 'holder ' of shares but a 'holder ' may not be a 'member '.
[558E] To hold that the legal representatives of a deceased shareholder could not be given the same right of a member under Sections 397 and 398 of the Act would be taking a hyper technical view which does not advance the cause of enquiry or justice.
[558B] In the instant case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest.
It would.
therefore, be wrong to insist that their names must be first put on the register before they can move an application under Sections 397 and 398 of the Act.
This would frustrate the very purpose of the necessity of action.
[558F G] The decision of the English courts are not binding on the courts in India.
But the observations or the reasoning are of persuasive value.
[555C] Re Jermyn Street Turkish Baths Ltd., [1970] 3 All E.R. 37; Re Bayswater Trading Co. Ltd. ; James vs Quena Venture Nitrate Grounds Syndicate Ltd., [1896] 1 Chancery Division 456; Re Dlewellyn vs Kasintoe Rubber Estate Ltd., ; New Zealand Gold Extraction Company, (Newberyvautin Process) Ltd. vs Peocock, ; Re Meyer Dougals Pty Ltd., [1965] V.R. 638; Kedar Nath Agarwal vs Jay Engg.
Works Ltd. and Ors.
, ; Rajahmundry Electric Supply Corpn.
Ltd. vs A. Nageshwara Rao and Ors.
, ; ; Life Insurance Corporation of India vs
Escorts Ltd. and Ors., AIR 1986 SC 547 1370 at p. 1412; Shanti Prasad Jain vs Kalinga Tubes, and Bilasrai Joharmal and Ors.
vs Akola Electric Supply Co. Pvt. Ltd., , re ferred to.
|
No. HHC/Admn. 16(34)74-IV. Dated Shimla the 12h January, 2023.
In exercise of the powers vested in it under Section 16(2)
of the Advocates Act, 1961, the High Court of Himachal Pradesh has
been pleased to designate Sh. Anup Kumar Rattan, Advocate as a
Senior Advocate with immediate effect:
Endst. No. HHC/Admn. 16(34)74-IV-432
Copy forwarded for information to: Dated: 12.01.2023.
The Secretary General, Hon'ble Supreme Court of India, New Delhi.
The Principal Private Secretary to the Hon'ble Chief Justice, High
Court of Himachal Pradesh, Shimla-171001.
The Advocate General, Himachal Pradesh, Shimla.
The Secretary, Bar Council of India, New Delhi.
The Secretary, Bar Council of Himachal Pradesh, Shimla.
The President, High Court Bar Association, Shimla, H.P.
All the Registrars General, High Courts of India.
Sh. Anup Kumar Rattan, Advocate, High Court of Himachal Pradesh,
Shimla. 2.
All the Additional Registrars of this Registry.
All the Secretaries to the Hon'ble Judges of this High Court.
The Deputy Registrars/Assistant Registrars/Court Masters/Section
Officers/Private Secretaries/Chief Librarian/Public Relation Officer of
this Registry.
The Secretary/ Private Secretary/ P.As. to the Registrar General/
Registrar(Vigilance)/Registrar(Rules)/Secretary (HPHCLSC)/
Registrar (Judicial)/ Registrar (Administration)/District and Sessions
Judge(Leave/Training
Registrar(Estt.)/ Central Project Coordinator, High Court of Himachal
Pradesh.
The Section Officer( Computer branch) of this Registry for conversion
of the same into digital form on Gazette Website.
The NIC Coordinator, High Court of Himachal Pradesh for uploading
the notification on the High Court website. 9.
|
The Himachal Pradesh High Court on Thursday designated advocate Anup Kumar Rattan, who is the incumbent Advocate General (AG), as 'Senior Advocate' with immediate effect.
A notification to this effect was issued by the Registrar General of the High Court.
"In exercise of the powers vested in it under Section 16(2) of the Advocates Act, 1961, the High Court of Himachal Pradesh has been pleased to designate Sh. Anup Kumar Rattan, advocate as a Senior Advocate with immediate effect," the notification stated.
On December 20, 2022, Rattan was appointed as the new Advocate General of Himachal Pradesh after the Congress party returned to power in the State.
He replaced Ashok Sharma, who served as AG from December 2017 to December 2022.
Rattan pursued law from Himachal Pradesh University in the late 90s. He served as Additional Advocate General during the Congress rule in the State from 2012-17.
According to Hindustan Times, he was their legal correspondent in Shimla from 2004-2014.
|
Sarabjit Kaur …Appellant
Versus
The State of Punjab & Anr. …Respondent
Rajesh Bindal, J.
1.The Appellant having failed before the High Court has
filed the present appeal. A prayer was made for quashing
of F .I.R. No.430 dated 16.10.2017 under Sections 420, 120-
B and 506 of the Indian Penal Code, 1860. The petition
filed before the High Court seeking quashing thereof was
dismissed.
2. Learned counsel for the appellant submitted that the
appellant entered into an agreement to purchase a plot
measuring 1 (Kanal) on 27.05.2013 with Malkit Kaur, wife
of Surender Singh resident of Dhillon Colony, Near
Electricity Grid, G.T. Road, Moga, Jagraon, District
Ludhiana, Punjab on 27.05.2013. On the basis thereof
appellant entered into an Agreement to Sell the same to
Sarabjit Kaur wife of Darshan Singh (respondent No.2) on
18.11.2013. The date for execution of sale deed was fixed
as 25.06.2014. It was categorically mentioned in the
Agreement to Sell that at present the vendor was not the
owner of the property. The appellant received a sum of ₹
5,00,000/- as earnest money and the date of registration of
sale deed was fixed as 25.06.2014. The date for execution
of sale deed was extended to 24.12.2014 on receipt of
additional sum of ₹ 75,000/-. A complaint was filed by
Darshan Singh (complainant/ respondent No.2), son of
Jangir Singh on 30.09.2015 with reference to the same
alleged Agreement to Sell however against property
dealers Manmohan Singh, son of Prakash Singh and Ranjit
Singh alias Billa, son of Pal Singh. In the aforesaid
complaint, reference was made to two other transactions
entered into by Darshan Singh and prayer was that an
amount of ₹ 29,39,500/-be got recovered from the
property dealers.
3.The aforesaid complaint was investigated and finally
on 18.05.2016, it was opined that the dispute being civil in
nature, no police action was required. Darshan Singh
made another complaint on 05.10.2016 with the same
allegations without disclosing the fate of his earlier
complaint. Referring to the earlier enquiry made, the
aforesaid complaint was consigned to record on
23.01.2017. Thereafter, another complaint was made by
Darshan Singh against the appellant, Ranjit Singh and
Manmohan Singh. It is on the basis thereof that F .I.R. in
question was registered under Sections 420, 120-B and
506 IPC against the appellant, Manmohan Singh and Ranjit
Singh.
4.The argument raised by learned counsel for the
appellant is that the respondent No.2 who claims himself
to be the husband of vendee had filed two complaints
earlier with the same set of allegations and those were
consigned to record on the basis of the legal opinion
received opining the case to be of civil nature. In the first
such complaint, there were no allegations against the
appellant. In fact the dispute is purely civil in nature. In
case the appellant failed to execute the sale deed for
which admittedly the last date fixed was 24.12.2014.
Respondent No.2 could have availed of his appropriate
remedy of specific performance of Agreement to Sell but
no suit was filed. However, third complaint was filed
without disclosing the fate of earlier two complaints. The
F .I.R. in question was registered on the basis of the
complaint filed by respondent No.2 on 15.06.2017 i.e.
nearly three years after the date fixed for execution of sale
deed. The respondent No.2 had never issued any notice
prior to the filing of the compliant with the police seeking
any remedy. A perusal of three complaints filed by
respondent No.2 clearly suggest that from the initial prayer
for return of the amount paid by him, subsequently the
allegations of cheating was made. In the first complaint
while referring to different transactions, the allegation was
only against the property dealers not against the appellant
whereas in subsequent complaint improvement was made
and she was also involved.
5.Learned counsel for the State submitted that the
chargesheet having been filed, the appellant can raise all
the pleas before the court below. It is not a case for
quashing of the F .I.R.
6.Despite service of notice, respondent
No.2/complainant has not appeared.
7.Heard learned counsel for the parties and perused the
paper book.
8.On the material placed on record by the parties, it is
evident that an Agreement to Sell was executed by the
appellant in favour of the wife of respondent No.2, namely
Sarabjit Kaur for sale of plot measuring 1 (kanal). The
agreement to Sell specifically mentions the fact that
appellant/ the vendor gets entitled to the property on the
basis of the Agreement to Sell executed in her favour by
Malkit Kaur on 27.05.2013. The last date fixed for
registration of sale deed was 25.06.2014 which was
extended to 24.12.2014. There is nothing placed on
record by the complainant or the State to show that
besides filing of the criminal complaint, respondent No.2
had initiated any civil proceedings for execution of sale
deed on the basis of Agreement to Sell or in the alternative
return of the earnest money.
9.A perusal of the first complaint made by respondent
No.2 on 30.09.2015 shows that the prayer was made for
return of the amount paid by him with no allegation of
cheating. It was filed only against Manmohan Singh and
Ranjit Singh, the property dealers. Reference in the
aforesaid complaint was made to the Agreement to Sell
executed between the parties. In addition, there was a
reference to two other Agreements to Sell executed in
total. A prayer was made for getting an amount of
₹29,39,500/- refunded from the property dealers.
Though, in the aforesaid complaint reference was made to
the Agreement to Sell in question, however there was no
complaint made against the appellant. The aforesaid
complaint was investigated by the Economic Offences
Wing and a report was submitted to the Senior
Superintendent of Police on 22.03.2016. A report was
submitted on the basis of which the legal opinion was
sought from the District Attorney who opined that no
criminal offence was made out and the complainant shall
be at liberty to invoke jurisdiction of the civil court. The
aforesaid opinion was accepted by the Senior
Superintendent of Police, Ludhiana (Rural) on 18.5.2016.
10.Thereafter, Darshan Singh (respondent No.2) made
another complaint to DIG, Ludhiana on 05.10.2016 which
again was enquired into and a finding that earlier identical
complaint was filed as no criminal offence was made out
and the second complaint was consigned to record. In the
second complaint, there was no reference made to the
earlier complaint filed by Darshan Singh.
11.Still not satisfied as the result of the earlier complaint
was not to the liking of the respondent No.2. He filed
another complaint on 23.01.2017. Thereafter, another
complaint was filed by the respondent No.2 on 15.06.2017
on the basis thereof F .I.R. in question was registered. On
the facts of the case in hand, it is evident that the effort of
respondent No.2 was merely to put pressure on appellant
while involving her in a criminal case to get his money
back whereas there is nothing pleaded that respondent No.
2 that he was ever ready and willing to get the sale deed
registered. There was no effort made by the respondent
No.2 or the vendee in the Agreement to Sell to initiate any
civil proceedings to get the sale deed executed on the
basis of the Agreement to Sell. In fact, the last date fixed
for execution of the sale deed even after extension was
24.12.2014.
12.There is nothing on record to suggest that any notice
was issued by the respondent No.2 or the vendee to the
appellant to get the sale deed registered just either before
expiry of the last date fixed for executed of sale deed or
immediately thereafter. No civil proceedings were also
initiate rather the respondent No.2 proceeded only by filing
complaints with the police two of which were earlier filed.
Had there been any civil proceedings initiated, the
question of readiness and willingness of the vendee is also
an aspect to be examined by the Court.
13.A breach of contract does not give rise to criminal
prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the
transaction. Merely on the allegation of failure to keep up
promise will not be enough to initiate criminal proceedings.
From the facts available on record, it is evident that the
respondent No.2 had improved his case ever since the first
complaint was filed in which there were no allegations
against the appellant rather it was only against the
property dealers which was in subsequent complaints that
the name of the appellant was mentioned. On the first
complaint, the only request was for return of the amount
paid by the respondent No.2. When the offence was made
out on the basis of the first complaint, the second
complaint was filed with improved version making
allegations against the appellant as well which was not
there in the earlier complaint. The entire idea seems to be
to convert a civil dispute into criminal and put pressure on
the appellant for return of the amount allegedly paid. The
criminal Courts are not meant to be used for settling
scores or pressurise parties to settle civil disputes.
Wherever ingredients of criminal offences are made out,
criminal courts have to take cognizance. The complaint in
question on the basis of which F .I.R. was registered was
filed nearly three years after the last date fixed for
registration of the sale deed. Allowing the proceedings to
continue would be an abuse of process of the Court.
14.Hence, in our opinion the impugned order passed by
the High Court deserves to be set aside. The petition filed
by appellant for quashing of F .I.R. is ordered to be allowed.
As a consequence, F .I.R. No.430 dated 16.10.2017 and all
the subsequent proceedings therewith are ordered to be
quashed. The appeal is, accordingly, allowed.
|
The Supreme Court recently held that mere breach of contract does not give rise to criminal prosecution for cheating unless a fraudulent or dishonest intention was present right from the beginning of the transaction [Sarabjit Kaur v. State of Punjab and Another].
A division bench of Justices Abhay S Oka and Rajesh Bindal was of the view that merely on the allegation of failure to keep up promise, criminal proceedings cannot be initiated.
"A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings," the Court said.
The Court also cautioned against using criminal cases to pressurise parties to settle civil disputes.
"Criminal courts are not meant to be used for settling scores or pressurise parties to settle civil disputes," the bench said.
By way of background, a first information report (FIR) was registered against the accused-appellant under Sections 420 (cheating), 120B (criminal conspiracy) and 506 (criminal intimidation) of the Indian Penal Code (IPC).
The basis of this FIR was a third complaint made by the complainant-respondent against the appellant with regard to allegations of cheating in an agreement to sell of a property.
In the previous two complaints which were based on the same set of facts as the third complaint, the complainant-respondent had only made the prayer for return of the amount paid by him in the agreement to sell with no allegation of cheating.
Moreover, the said complaints were only directed at the property dealers and not against the appellant.
After investigation, it was found that no no criminal offence was made out with respect to the first complaint and the complainant was, therefore, granted the liberty to invoke the jurisdiction of the civil court.
Similar finding was arrived at in the second complaint as well.
However, in the third complaint, the complainant had accused the appellant of cheating and other offences. On the basis of the same, the FIR Came to be registered against the appellant.
The appellant then moved the Punjab and Haryana High Court seeking quashing of the FIR, but the plea was dismissed.
This was challenged before the Supreme Court.
The apex court after considering the sequence of complaints by the complainant, observed that the effort of the complainant was merely to put pressure on the appellant in order to get his money back.
Moreover, it was also noted that no efforts were made by the complainant to initiate any civil proceedings against the appellant to get the sale deed executed on the basis of the agreement to sell.
Rather, the complainant proceeded only by filing three identical criminal complaints with the police.
Taking note that the allegations made in the complaint are civil in nature, the Court observed:
"The entire idea seems to be to convert a civil dispute into criminal and put pressure on the appellant for return of the amount allegedly paid. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Wherever ingredients of criminal offences are made out, criminal courts have to take cognizance. The complaint in question on the basis of which F.I.R. was registered was filed nearly three years after the last date fixed for registration of the sale deed. Allowing the proceedings to continue would be an abuse of process of the Court."
Therefore, the Court allowed the appeal and quashed the case.
|
Date of Decision: 4th June , 2021
+ CS(OS) 262/2021 & I.A. Nos.6904/2021, 6906/2021,
Through: Mr. Deepak Khosla, Advocate
for plaint iffs along with
Ms. Juhi Chawla Mehta,
plaintiff No. 1 and Mr.
Veeresh Malik, plaintiff No.2
versus
Through: Mr. Tushar Mehta, SGI with
Mr. Amit Mahajan CGSC,
Mr. Kanu Aggarw al and Mr.
Dhruv Pande, Advocates for
Mr. Anurag Ahluwalia, CGSC
with Mr. Abhigyan Siddhant
and Mr. Nitnem Singh
Ghuman, Advocates for D -
7/Indian Council of Medical
Research
Mr. Arjun Mitra, Advocate for
D-23/Indraprastha Institute of
Informa tion Technology Delhi
Mr. Kapil Sibal, Senior
Advocate with Mr. Manjul
Bajpai an d Mr. Shashwat
Bajpai, Advocates for D -25,
D-26, D -27 and D -29/
Cellular Operators
Association of India
I.A. No. 6905 /2021 under Section 149 of CPC
1. The plaintiffs have affixed Court -fees of Rs.1,950/ - on the
plaint on the ground that the plaintiffs intend to challenge the Court -
fees Act . According to the plaintiffs , if the justice dispensation
system requires around 15 -20 years for settlement of a suit, the Court
has lost the moral as well as legal right to require the Court -fees to
be paid upfront at the beginning of the suit. The plaintiffs further
intend to challenge the Court -fees Act in terms of the original intent
of the Act being to recoup the costs for administration of justice,
whereas the present system is such that the inflow of the Court -fees
far exceeds the amount spent by the State on providing the
infrastructure to dispense justice. Relevant portion of the a pplication
is reproduced hereunder:
“3. That the suit has been filed by affixing court fees of
Rs. 1,950 for the present, and the plaintiffs / applicants
seeks time to deposit the balance (if any).
4. That it is also their intent to challenge the Court
Fees Act on the grounds, inter alia, that if the justice
dispensation system requires around 15 -20 years for
settlement of a suit, it has lost the moral as well as
legal right to require the court fees to be paid upfront
at the beginning of the suit.
5. That it is also their intent to challenge the Court
Fees Act in terms of the original intent of the Act being
to recoup the costs for administration of justice,
whereas the present system is such that the inflow of
fees far exceeds the amount spent by the State on
providing the infrastructure to dispense justice.
6. That under these circumstances, if the court fee be
found short, this Hon'ble Court may be pleased to
record the undertaking of the plaintiffs to pay whatever
be the appropriate court fee within four weeks of this
Hon'ble Court granting time to do so, or within 4
weeks of losing their challenge to the Court Fees act (if
he loses), whichever be later.
xxx xxx xxx
In view of the aforesaid facts and circumstances, it is
prayed that this Hon'ble Court may be pleased to :
(a) Allow this application, and grant appropriate time
to the plaintiff to pay the full Court Fees as may be
applicable to the matter (if the Court Fees paid at all
be short).
(b) Allow that the time to be fixed by this Hon'ble
Court be fixed keeping in mind the challenge to be
raised to the Court Fees Act.”
Plaintiffs’ Submissions
2. The plaintiffs seek time to pay the Court -fees under Section
149 read with Section 148 of CPC because of COVID -19 constraints
and Plaintiff No. 1 ’s visit to South Africa on or around 26th May,
3. Since the quantum of Court -fees quantified by the plaintiffs in
para 147 of the plaint (at Rs. 12,210) may, perhaps, also be called into
question (namely, as to how, in any case, the Court -fees cannot be
less than Rs. 2 lakhs, especially since, at para 164, the suit has been
valued by the plaintiffs themselves at Rs. 2 crores), the plaintiffs are
ready to immediately file elaborate Written Submissions on this
aspect, if required by this Court to do so.
4. Witho ut this becoming an issue at this stage, and subject to
their rights being permitted by this Court to stand preserved, the
plaintiffs undertake to pay whatever Court -fees is required by the
Registry to be paid, under directions of this Court after reading the
Written Submissions to be filed herein, in the time to be stipulated
by this Court.
5. This Court, while allowing the application and granting
deferment for whatever period of time this Court deems fit, may
make it clear that the quantum of Court -fees is yet to be decided by
this Court, thereby allowing fair opportunity to the plaintiffs to
present their arguments on this point in due course.
6. Nonetheless, if this Court wishes, the plaintiffs agree to pay
whatever Court -fees as may be directed by this Court , subject to
preservation of all their rights and contentions by this Court.
7. The resolution of this particular issue, if in favour of the
plaintiffs, shall be a landmark judgment by this Court, as it is their
respectfully -submitted contention that it is an erroneous proposition
in law to hold that Court -fees is payable on either the value of relief
claimed, or the pecuniary jurisdiction of the Court, whichever is
higher; it is their case that the Court -fees is to be paid only on the
value of the relief clai med, independent of the valuation of the suit
for the purposes of pecuniary jurisdiction.
Findings
8. The plaintiffs have valued the suit for purpose of jurisdiction
at Rs .2 Crore . The law is well settled that the valuation of the suit for
the purpose of jur isdiction and Court -fees has to be same. In that
view of the matter, the plaintiffs are liable to pay Court -fees of
Rs.1,97,544/ - on the plaint. As such , there is deficiency of the Court -
fees of Rs.1,95,594/ - by the plaintiffs.
9. Section 149 of Code of Civil Procedure empowers this Court
to extend the time to pay the deficient Court -fees. However, the
challenge sought by the plaintiffs into the validity of the Court -fees
Act is not permissible under Section 149 of Code of Civil Procedure .
As such, no case for determination of the Court -fees amount is made
out.
10. The application is misconceived, frivolous and unsustainable .
The law with respect to valuation and computation of Court -fees is
well settled. However, the plaintiffs have taken a stand not to pay the
Court-fees in utter disregard of well -settled law. All the objections
raised by the plaintiffs to the payment of Court -fees are hereby
rejected.
11. The application is partially allowed and in interest of justice,
the plaintiffs are granted one week to deposit the deficit Court -fees
of Rs.1,95,594/ -.
I.A. No. 6909/2021 under Section 80(2) of CPC
12. The plaintiffs are seeking dispensation from issuing notice to
the State entities under Section 80(1) of the Code of Civil Procedure
on the ground that it is an empty f ormality. Relevant portion of the
application is reproduced hereunder:
“3. That in any case, all the State entities have been
served with this suit prior to filing of the same, the suit
itself being fair notice, and yet, they have not appeared
before this Hon'ble Court, this itself being their waiver
to objecting to grant of interim relief.
4.That under these circumstances, it is humbly prayed
that the empty formality of issuance of notice may be
dispensed with in exercise of this Hon'ble Courts
power under Section 80(2) CPC .
xxx xxx xxx
It is therefore most respectfully and humbly prayed
that this Hon‟ble Court may be pleased to : -
i. Exercise its power under Section 80(2) CPC, and
dispense with the empty formality of issuance of notice
to State entities under Section 80(1) of the CPC.”
Plaintiffs ’ Submissions
13. Section 80(2) empowers this Court to waive the requirement
of prior notice on State Defendants and/or prior 60 days’ wait,
subject to the caveat that it shall not grant relief in the suit, whether
interim or otherwise, except after giving the State Defendants a
reasonable opportunity of showing cause in respect of the reliefs
prayed for in the suit.
14. Since the 5G roll-out has not actually happened, though -
equally damaging - trials involving the human population have
started (which is not the same as doing trials on pigs and/or rats,
and/or in an empty Thar Desert, or on the employees of the private
defendants) - so that not even one single human life is lost by these
trials, the plaintiffs a re agreeable if this Court, while waiving the
requirement of Section 80(1) of the CPC, grants fair opportunity to
the State Defendants to show cause as to why no interim relief be
granted which, in any case, is sought against the private defendants,
and no t against the State defendants.
15. In any case, all the State defendants have been served with the
suit, and have appeared today, which constitutes compliance with the
spirit of Section 80(1) of the CPC.
Findings
16. The notice under Section 80(1) of the Code of Civil Procedure
to the Government is mandatory before institution of the suit against
the Government. The object of the notice under Section 80 (1) is to
give an opportunity to the Government to reconsider the matter and
to make amends and settle the claim out of Court. Section 80 was
enacted for the advancement of justice for securing public good by
avoidance of unnecessary litigation.
17. In State of Andhra Pradesh v. Gundugola Venkata
Suryanarayana Garu , AIR 1965 SC 11, the Supreme Court
observed that the ob ject of the notice under Section 80(1) is to give
an opportunity to the Government to reconsider the matter and to
make amends and settle the claim out of Court. The Supreme Court
further observed that Section 80(1) is imperative and must be strictly
compl ied with . The Supreme Court further observed that failure to
serve a notice complying with the requirements of the statute will
entail dismissal of the suit. Relevant portion of the judgment is
reproduced hereunder:
“11. The object of the notice under Sect ion 80 is to
give to the Government or the public servant
concerned an opportunity to reconsider its or his legal
position and if that course is justified to make amends
or settle the claim out of Court. The section is
imperative and must undoubtedly be st rictly construed:
failure to serve a notice complying with the
requirements of the statute will entail dismissal of the
suit. But the notice must be reasonably construed.
Every venial error or defect cannot be permitted to be
treated as a peg to hang a def ence to defeat a just
claim. In each case in considering whether the
imperative provisions of the statute are complied with,
the Court must face the following questions:
(1) whether the name, description and residence of the
plaintiff are given so to enabl e the authorities to
identify the person serving the notice;
(2) whether the cause of action and the relief which the
plaintiff claims are set out with sufficient particularity;
(3) whether the notice in writing has been delivered to
or left at the office of the appropriate authority
mentioned in the section; and
(4) whether the suit is instituted after the expiration of
two months next after notice has been served, and the
plaint contains a statement that such a notice has been
so delivered or left.
In con struing the notice the Court cannot ignore the
object of the Legislature to give to the Government or
the public servant concerned an opportunity to
reconsider its or his legal position. If on a reasonable
reading but not so as to make undue assumptions th e
plaintiff is shown to have given the information which
the statute requires him to give, any incidental defects
or errors may be ignored.”
(Emphasis Supplied )
18. In State of A.P. v. Pioneer Builders, A.P. , (2006) 12 SCC
119, the Supreme Court held that serv ice of notice under Section 80
is a condition precedent for the institution of a suit against the
Government. The Supreme Court further observed that the object of
Section 80 is the advancement of justice for securing public good by
avoidance of unnecessar y litigation. The r elevant portion of the
judgment is reproduced hereunder:
“14. From a bare reading of sub -section (1) of Section
80, it is plain that subject to what is provided in sub -
section (2) thereof, no suit can be filed against the
Government or a public officer unless requisite notice
under the said provision has been served on such
Government or public officer, as the case may be. It is
well settled that before the amendment of Section 80
the provisions of unamended Section 80 admitted of no
implications and exceptions whatsoever and are
express, explicit and mandatory. The section imposes a
statutory and unqualified obligation upon the court
and in the absence of compliance with Section 80, the
suit is not maintainable. (See Bhagchand
Dagadusa v. Secy. of State for India in Council [(1926 -
27) 54 IA 338 : AIR 1927 PC 176] ; Sawai Singhai
Nirmal Chand v. Union of India [(1966) 1 SCR 986 :
AIR 1966 SC 1068] and Bihari Chowdhary v. State of
Bihar [(1984) 2 SCC 627].) The service of notice
under Sectio n 80 is, thus, a condition precedent for the
institution of a suit against the Government or a public
officer. The legislative intent of the section is to give
the Government sufficient notice of the suit, which is
proposed to be filed against it so that i t may reconsider
the decision and decide for itself whether the claim
made could be accepted or not. As observed in Bihari
Chowdhary [(1984) 2 SCC 627] the object of the
section is the advancement of justice and the securing
of public good by avoidance of unnecessary litigation .
xxx xxx xxx
17. Thus, from a conjoint reading of sub -sections (1)
and (2) of Section 80, the legislative intent is clear,
namely, service of notice under sub -section (1) is
imperative except where urgent and immediate relief is
to be granted by the court, in which case a suit against
the Government or a public officer may be instituted,
but with the leave of the court. Leave of the court is a
condition precedent. Such leave must precede the
institution of a suit without serving notic e. Even though
Section 80(2) does not specify how the leave is to be
sought for or given, yet the order granting leave must
indicate the ground(s) pleaded and application of mind
thereon. A restriction on the exercise of power by the
court has been imposed , namely, the court cannot
grant relief, whether interim or otherwise, except after
giving the Government or a public officer a reasonable
opportunity of showing cause in respect of relief
prayed for in the suit.
18. Having regard to the legislative intent noticed
above, it needs little emphasis that the power conferred
on the court under sub -section (2) is to avoid genuine
hardship and is, therefore, coupled with a duty to grant
leave to institute a suit without complying with the
requirements of sub -section (1) thereof, bearing in
mind only the urgency of the relief prayed for and not
the merits of the case. More so, when want of notice
under sub -section (1) is also made good by providing
that even in urgent matters relief under this provision
shall not be granted without giving a reasonable
opportunity to the Government or a public officer to
show cause in respect of the relief prayed for. The
provision also mandates that if the court is of the
opinion that no urgent or immediate relief deserves to
be gran ted it should return the plaint for presentation
after complying with the requirements contemplated in
sub-section (1). ”
(Emphasis Supplied)
19. In State of Kerala v. Sudhir Kumar Sharma , (2013) 10 SCC
178, the Supreme Court observed that a suit filed without
compliance of Section 80(1) of the Code of Civil Procedure cannot
be regularized by simply filing an application under Section 80(2) of
the Code of Civil Procedure.
20. The plaintiffs’ contention that Section 80(1) notice is an
empty formality is contrary to the well settled law and is hereby
rejected.
21. This Court is of the view that the notice u nder Section 80(1)
of the Code of Civil Procedure is necessary in the present case. The
application is therefore, dismissed.
I.A. No. 7001/2021 under Section 91(1)(b) of CPC
22. The plaintiffs are seeking leave to institute this suit on various
grounds inter -alia that the matter concerns public health and EMF
radiation caused by cellular telecommunication technology must
have caused harm to many members of the general publi c.
Plaintiffs’ Submissions
23. While Section 91(1)(b) of the CPC has been invoked, it is
respectfully submitted that Section 91 has been invoked only in
relation to the „wrongful acts‟ of the defendants, the „wrongful acts‟
relating to the act of omission in not completing studies on the health
hazards of 5G before permitting any further activity in that field.
Therefore, only some of the prayers in the suit relate to „wrongful
acts‟ of the defendants, such as prayer (xiii), the other prayers,
though also relating to the acts of omission on the part of the State
defendants, however, are more in the exercise of the statutory rights
of the plaintiffs . The Supreme Court ha s settled the proposition that
the ‘precautionary principle‟ stands embedded within the fold of
Article 21 of the Constitution of India, thereby conferring statutory
(rather, fundamental) rights upon the plaintiffs even independent of
Section 91of CPC.
24. The suit also seeks prayers that, though connected, can also be
sought de hors the „wrongful act s‟ of the defendants, and have been
preferred by the plaintiffs in exercise of their statutory rights e.g.
prayer (i) which is under Order XXVII -A of the CPC.
25. Even independent of grant of permission under Section
91(1)(b) of the CPC, the suit ought to be permitted to proceed,
where, at the highest, the issue of whether or not prior leave was
actually required in respect of each and every single prayer could,
become one of the issues to be framed in the suit.
26. Since numerous admissions of the defendants thems elves have
been tabled, which clearly show that they are guilty of „wrongful
acts‟ , as the plaintiffs do not wish to rely upon a State actor to
prosecute the present cause o n their behalf (i.e. the learned Standing
Counsel), they humbly request this Court to grant leave under
Section 91(1)(b) of the CPC for such prayers that this Court deems
appropriate to be covered under the aforesaid provision.
27. As the plaintiffs have themselves suffered special as well as
general injury, therefore, as is made clear by th e provisions of Sub -
Section (2) of Section 91 of the CPC, the suit ought to be permitted
to be proceeded with by this Court even if, for any reason, it is not
inclined to grant leave under Sub -Section (1) (b) of Section 91.
28. The provision is supposed to be an aid to the citizens of India,
whereby a duty is cast upon the learned Standing Counsel to
prosecute on their behalf. In other words, it is an enabling provision,
intended to assist the general populace in conserving their own time
and money when they be acting in general public interest, and not
intended to become a hindrance in their path of seeking justice, if
and when they be agreeable to pursue justice at the expense of their
own time, their own money and their own effort and which is why
there is no such similar stipulation with respect to Public Interest
Litigation s preferred under the Constitution of India.
I.A. No. 7002/2021 under Order VIII Rule 1 of CPC
29. The plaintiffs are seeking leave to sue in representative
interest on the ground that colossa l harm is eminent to general public
by the roll out of 5G technology and the suit involves issues
regarding public health of the present as well as future generations.
Plaintiffs’ Submissions
30. The plaintiffs , especially Plaintiff No. 1, who has been
publicl y and vociferously canvassing against the effects of EMF
radiation for the last decade or so, have been approached by a
number of individuals, requesting them to initiate legal proceedings
against the „silent killer‟ that exists in our country’s air, and w ho
have expressed their desire to join them in such proceedings .
31. As time, in light of COVID -19 constraints, was too short to
actually call upon all the other interested individuals to join hands in
the present suit, hence, it is in that respect that leave has been sought
by this Court to sue also in a representative interest, so that such
individuals, after release of appropriate advertisement, also can join
the proceedings in due course.
32. Since the plaintiffs, themselves, have individually suffered
special as well as general damage s, it is not the case of the plaintiffs
that the suit cannot proceed if the permission under Order I Rule 8 of
the CPC is to be denied by this Court.
33. In fact, grant of leave of this Court will give a first -hand
opportunity to this Court to assess how actually widespread is the
antagonism of members of the public at large against the acts of
omission of our regulatory agencies, just as was the case with
tobacco, pan masala, asbestos, et c.
34. In other words, the number of co -plaintiffs t hat are likely to
join the present proceedings will undoubtedly rock the conscience of
this Court into being sympathetic to the cause of present (as well as
unborn) generation(s) against what is undeniably a „silent killer‟ .
Findings in respect of I.A. Nos . 7001/2021 and 7002/2021
35. No case for grant of leave to institute the suit is made out
under Section 91(1)(b) of the Code of Civil Procedure or to sue in
representative interest under Order I Rule 8 of the Code of Civil
Procedure or to maintain the suit wi thout the aforesaid
leave/permission , as the plaintiffs ’ suit is defective and not
maintainable for the following reasons :-
I. Order VI Rule 2(1) of the Code of Civil Procedure
provides that the plaint shall contain statements of material
facts in a concise form but no evidence by which they are
to be proved. However, the plaintiffs have not complied
with Order VI Rule 2 of the Code of Civil Procedure as (i)
The statement of plaintiffs are not in concise form and (ii)
The plaintiffs have incorporated the evi dence in the plaint .
II. Order VI Rule 9 of the Code of Civil Procedure
provides that the contents of any document shall not be set
out in the plaint unless the precise words of the document
or any part thereof are material. However, the plaintiffs
have not co mplied with Order VI Rule 9 of the Code of
Civil Procedure and have reproduced the documents in the
plaint .
III. The plaint is stuffed with unnecessary scandalous,
frivolous and vexatious averments which are liable to be
struck down under Order VI Rule 16 of th e Code of
Civil Procedure .
IV. The plaintiffs have joined 33 defendants in this suit.
However, the plaint does not reflect the compliance of
Order I Rule 3 of the Code of Civil Procedure in joining
33 defendants in one suit.
V. The plaintiffs have joined various causes of action without
complying with Order II Rule 3 of the Code of Civil
Procedure .
VI. The plaintiffs have not verified the plaint which is
mandatory under Order VI Rule 15 of the Code of Civil
Procedure .
VII. In the affidavit filed along with the plaint, the plaintiffs
have deposed that only paras 1 to 8 of the plaint are true to
their knowledge whereas paras 1 to 169 of the plaint are
based on information and legal advice, meaning thereby
that the plaintiffs have no personal knowledge of any of
the averments made in the plaint. The suit totally based
upon information and legal advice is not maintainable .
VIII. Since the plaintiffs have no personal knowledge of any
averments made in the plaint and the whole plaint is based
on information and legal advice received, i t appears that
the plaintiffs want an inquiry to be conducted by this Court
into the averments made in the plaint which is not
permissible in law in these proceedings .
IX. Section 34 of the Specific Relief Act , 1963 deals with
declaratory suits. A person entit led to any legal character
can institute a suit against another person who denies or is
interested to deny his right. In the present case, the
plaintiffs never approach ed the defendants claiming any
right and therefore, there was no occasion for the
defend ants to respond or deny to the plaintiffs alleged
rights. In that view of the matter, the maintainability of the
declaratory relief s sought by the plaintiff s is doubtful.
X. Section 39 of the Specific Relief Act, 1963 deals with
mandatory injunctions. The twi n requirements of Section
39 are the existence of an obligation of the defendant
towards the plaintiff and the breach thereof by the
defendant. Both the se requirements are not fulfilled. The
maintainability of the mandatory injunction s sought by the
plaint iffs are , therefore, doubtful.
XI. The plaintiffs have not valued the suit properly for the
purpose of Court -fees.
XII. The plaintiffs have not given the mandatory notice under
Section 80(1) of the Code of Civil Procedure.
36. The observation s made by Justice Rajiv Sah ai Endlaw in one
of the cases that ‘This is a classic textbook case of, how not to draft
a plaint, which should be taught in law colleges and to young
lawyers so that such bloopers in drafting of pleadings, damaging to
one’s own client, are avoided ‟ is ful ly applicable to the present case.
37. The plaintiff s filed this suit on 28th May, 2021 in which the
Registry raised an objection to the maintainability of the suit. The
plaintiffs, instead of explaining how the suit is maintainable,
requested the Registry to list the suit as it is with defects and the
plaintiffs undertook to bear the cost and consequences of the same,
whereupon the Registry listed this matter , subject to objections ,
before this Court.
38. The entire suit filed by the plaintiffs is under Section 91 of the
Code of Civil Procedure read with Order XXVII -A and Order I Rule
8 of the Code of Civil Procedure. However, no application was filed
along with this suit to seek the leave of this Court to institute this
suit.
39. On 31st May, 2021, the plaintiff s filed two applications
namely I.A. Nos. 7001/2021 and 7002/2021 seeking leave to sue
under Section 91(1)(b) of the Code of Civil Procedure and Order I
Rule 8 of the Code of Civil Procedure . Although the plaint is not
based on any special damage suffered by pl aintiffs by EMF radiation
caused by cellular telecommunication technology , the plaintiffs have
attempted to set up a new plea in I.A. No s. 7001/2021 and
7002/2021 that the plaintiffs have been advised that they suffered
special damages because of EMF radia tion caused by cellular
telecommunication technology.
Conclusion
40. I.A. Nos. 6909/2021 , 7001/2021 and 7002/2021 are dismissed.
However, I.A. No. 6905/2021 is partially allowed and the plaintiffs
are directed to deposit the deficit Court -fees of Rs.1,95,594/ - within
one week, failing which the Registry shall recover the Court -fees
from the plaintiffs . Consequently, the suit is also dismissed. All
other applications are disposed of.
41. The plaintiffs have abused and misused the process of law
which has resulted i n waste of judicial time . The cost of Rs. 20 lakhs
is imposed on the plaintiffs. The plaintiff s are directed to deposit the
cost of Rs. 20 lakhs with Delhi State Legal Services Authority
(DSLSA ) within one week. If the cost is not deposited within one
week, DSLSA shall recover the same from the plaintiffs in
accordance with law. DSLSA shall utilize this cost for the cause of
the victims of road accidents.
42. If any proceedings are instituted by the Plaintiffs without the
deposit of the deficient Court -fees of Rs.1,95,594/ - and the cost of
Rs.20 lakhs , the Registry shall place the copy of this judgment
before the concerned Court in those proceedings.
43. It appears that the plaintiffs have filed this suit to gain
publicity which is clear from the fact that plaintiff No.1 circulated
the video conferencing link of this Court on her social media
accounts, which resulted in the repeated disruption of the Court
proceedings.
44. During the course of the hearing of this suit, the Court
proceedings were disrupted thrice by the unknow n miscreant s who
continued the disruption s despite repeated warning s. Issue show
cause notice to the persons who disrupted the Court proceedings as
to why the proceedings for contempt of Court be not initiated against
them. The Delhi Police shall ident ify the persons and serve the
notice on them.
45. List for reporting compliance before Joint Registrar on 05th
July, 2021.
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The Delhi High Court on Friday dismissed the plea filed by Bollywood actor Juhi Chawla against the rollout of 5G technology in India (Juhi Chawla & ors vs Science and Engineering Research Board & ors)
The Bench of Justice JR Midha said that it appeared that the suit was filed to garner publicity, noting how Chawla had circulated the web link of the hearing on social media.
The Court, therefore, imposed costs of Rs. 20 lakh on Chawla and other plaintiffs for abusing the process of law.
"Plaintiffs abused process of law. Costs of Rs 20 lakh is imposed on plaintiffs. It appears suit was for publicity. Juhi Chawla circulated link of the hearing on social media," the Court said.
Taking note of the disruptions caused to the hearing on account of the link being made public by Chawla, the Court directed that contempt notice be issued against the miscreants.
A direction was also passed to the Delhi Police to take action and submit a report before the Court.
Justice JR Midha also ruled that the plaint was defective and not maintainable.
"No case has been made out for leave to institute suit (under Section 80) or to sue in representative capacity. Plaint is defective and not maintainable," the Court held.
Further, the Court noted that Chawla not only did not comply with the mandate under Section 80 of the Code of Civil Procedure but also flouted several other mandates under the Code.
"The plaintiffs filed this suit on 28th May, 2021 in which the Registry raised an objection to the maintainability of the suit. The plaintiffs, instead of explaining how the suit is maintainable, requested the Registry to list the suit as it is with defects and the plaintiffs undertook to bear the cost and consequences of the same, whereupon the Registry listed this matter, subject to objections, before this Court.", the Court observed.
Importantly, the Court said that the plaint was not verified. It noted that only a few paragraphs were said to be "true to their knowledge".
"There is no personal knowledge of averments. Plaint based on legal advise is not maintainable," the judgment said.
The Court further ordered that the deficient Court-fees of Rs 1,95,594 shall also be paid by the plaintiffs.
After the pronouncement, Advocate Deepak Khosla, appearing for Chawla and other plaintiffs, sought a stay on the order.
He submitted that the imposition of costs was without any legal basis.
Rejecting the request, Justice Midha remarked,
"Matter is over. You have your legal remedies."
The costs is to be deposited with Delhi State Legal Services Authority within one week and shall be used for the cause of the victims of road accidents.
Chawla along with Veeresh Malik and Teena Vachani (plaintiffs) filed the suit before the High Court, arguing that until and unless 5G technology is "certified safe", its roll out should not be permitted.
Chawla and others had argued that it was an established fact that there "could be danger of imminent nature" due to 5G and as per RTI responses, no studies had been conducted on the same.
The Central government, however, contended that the suit was not maintainable in view of Sections 80 and 91 of the CPC.
Solicitor General Tushar Mehta, appearing for the Centre, submitted that the suit was frivolous and barred under Section 9 of the Code.
During the hearing that took place on Wednesday, the Court had said that the plaint was defective and had been filed for media publicity.
The Court had also opined that there several lapses in Chawla's plaint in terms of the Code of Civil Procedure.
The hearing on Wednesday was also marred by uncouth conduct by an unidentified visitor who started singing songs from Chawla's movies.
Read the Judgement:
|
(1)The appellant stands convicted by the impugned order
passed by the Central Administrative Tribunal, Principal
Bench, under Section 14 of the Contempt of the Courts Act,
1971 (hereinafter referred to as ‘Act’ for brevity) in terms
of the charge framed against the appellant.
After finding the appellant so guilty, we may notice
the following:
“37. There would have been every justification for us,
to impose the sentence, proportionate to the acts of
contempt held proved against the respondent. However,
by treating this as a first instance, we let him off
with a severe warning to the effect that if he repeats
such acts in future in the Tribunal, the finding that
he is guilty of contempt of Court, in this case, shall
be treated as one of the factors in the proceedings,
if any, that may ensue.
38. The copy of this order shall be forwarded to the
Bar Council of India and Delhi State Bar Council.”
(2)We have heard Shri Mehmood Pracha, appellant-in-
person. We have also had the advantage of hearing Shri
Vikramjit Banerjee, learned Additional Solicitor General who
incidentally, it must be noticed, in keeping with the
mandate of Central Administrative Tribunal Rules was called
upon to assist the Tribunal in the matter of proceedings
against the appellant.
(3)There were certain original applications before the
Tribunal. On the fateful day, which is 08.02.2019, it is
found by the Tribunal in the impugned order that the
appellant made certain submissions in his capacity as
counsel for the party. We may notice the relevant portions
as follows:
“9. Repeated requests to him, to advance arguments did
not appeal to him. He has also humiliated the learned
counsel for the Respondents by saying that they have
been shown their place by the Supreme Court by
imposing cost of Rs.25,000/- and that they have no
right whatever to plead before the Tribunal. He
created an unfortunate situation in the Court and was
browbeating the Chairman as well as the respondents
through his gestures and dramatics. All these were
tolerated, with a view to give quietus to a long
pending matters. Seeing that his provocation is not
yielding the expected results, the respondent herein
went on making personal attack on the Chairman.
10.By looking around the Court, he said that the
proceedings must be held in Camera and he has much to
say about the Chairman. He was informed that he can
say in the open Court whatever he intends and if that
is not done, it would amount to scandalising the
Chairman. His behaviour continued in the same manner
and he did not reveal anything. The Court was full
with Advocates of different standings and repeated
requests made by them to pacify the respondent did not
have any effect on him. He proceeded to observe that
Chairman lost his right to hear the PTs. He was
informed that Section 25 of the Act provides for
hearing of PTs only by the Chairman and that if he has
got any other alternative or suggestion, he can make
it. Even that did not work and he continued his
tirade. Left with no alternative, a detailed order
was passed on that date and a notice was issued. The
respondent was required to explain within two weeks as
to why contempt proceedings be not initiated against
him.”
(4)The charge was framed on 10.02.2020. Though the
charge was initially not produced along with the appeal
memorandum, the charge is subsequently produced along with
an application to produce the entire trial Court / lower
Court record. There was a draft charge and finally the
charge which has become the subject matter of the impugned
order which reads as follows:
“Central Administrative Tribunal, Principal Bench, New
Delhi hereby charges you Mr. Mehmood Pracha as under:-
That you on 08.02.2019 represented the applicant
in PT No. 288/2017 in OA No. 2413/2016. In the course
of the proceedings you insisted on the proceedings to
be conducted in camera since you had to say something
against the Chairman which could not be revealed in
open Court. However, when you were asked to reveal
whatever you wanted to say, you did not come forward.
The acts and omissions on your part would not only
have the effect of tarnishing the image of the
Tribunal but also amount to criminal contempt for
threatening the Presiding Officer.
You are hereby directed to be tried by the
Tribunal for the aforesaid charge.”
(5)There is no dispute that the charge was denied by the
appellant. This can be seen from the order produced before
us which is order dated 10.02.2020. The case stood listed
on 25.02.2020. As to what transpired thereafter is best
explained with reference to the terms of the order dated
18.03.2020. It reads as follows:
“We heard Shri Vikramjit Banerjee, learned Additional
Solicitor of General, who addressed his arguments by
referring to the relevant provisions of the Contempt of
Courts (C.A.T.) Rules, 1992 and has also drawn our
attention to the judgment of the Hon’ble Supreme Court
in Leila David v. State of Maharashtra & Ors. (2009) 10
The respondent, who argued the case in person,
also addressed his arguments, at length. He insisted
that a trial must be conducted as contemplated under
Rule 15 of the Rules. However, since the contempt has
taken place in the face of the Court, the question of
trial may not arise. On this issue also, the
respondent addressed his arguments.
We reserve the judgment.”
(6)From the impugned judgment, it is seen that the order
was reserved on 18.03.2020. The order was rendered on
23.09.2020. The appellant would urge before us that the
Tribunal has erred in denying the appellant the right to be
tried for the charge leveled against him. There are other
contentions also. The appellant draws our attention to the
Contempt of Courts (C.A.T.) Rules, 1992 (hereinafter
referred to as ‘Rules’ for brevity).
Rule 13 and Rule 15 read as follows:
13. Hearing of the case and trial.—Upon consideration
of the reply filed by the respondent and after hearing
the parties:—
(a) If the respondent has tendered an unconditional
apology after admitting that he has committed the
contempt, the Tribunal may proceed to pass such orders
as it deems fit;
(b) if the respondent does not admit that he has
committed contempt, the Tribunal may,—
(i) if it is satisfied that there is a prima facie
case, proceed to frame the charges in Form No. III
(subject to modification or addition by the Tribunal
at any time); or
(ii) drop the proceedings and discharge the
respondent, if it is satisfied that there is no prima
facie case, or that it is not expedient to proceed;
(c) The respondent shall be furnished with a copy of
the charge framed, which shall be read over and
explained to the respondent. The Tribunal shall then
record his plea, if any;
(d) If the respondent pleads guilty, the Tribunal may
adjudge him guilty and proceed to pass such sentence
as it deems fit;
(e) If the respondent pleads not guilty, the case may
be taken up for trial on the same day or posted to any
subsequent date as may be directed by the Tribunal.
15. Procedure for trial.—(i) Except as otherwise
provided in the Act and these rules, the procedure
prescribed for summary trials under Chapter XXI of the
Code shall as far as practicable be followed in the
trial of cases for contempt.
(ii) The Tribunal may, at its discretion, direct that
evidence be produced in the form of affidavits.
(iii) The Tribunal may, either suo motu or on motion
made for that purpose, order the attendance for cross-
examination of a person whose affidavit has been filed
in the matter.
(iv) The Tribunal may, at its discretion, direct any
person to be examined as Tribunal witness.
(v) The Tribunal may make such order as it deems fit
for the purpose of securing the attendance of any
person to be examined as a witness and for discovery
or production of any document.”
(7)Shri Vikramjit Banerjee, learned Additional Solicitor
General, on the other hand, would support the order. He
would submit that the Court may bear in mind the plight of
the Tribunal that is accosted with the behaviour alleged
against the appellant. In other words, as found by the
Tribunal, in keeping with the charge the appellant is
alleged to have in the presence of a large number of lawyers
made the request to have proceeding held in the chamber as
he had something to say against the Chairman. In the
impugned order, he points out, the Tribunal has found that
again in keeping with the charge that when the appellant was
called upon to divulge what he had to reveal ‘only’ in
chamber in the open Court, the appellant refused to do so.
(8)Shri Vikramjeet Banerjee, learned Additional Solicitor
General, would commend for our acceptance the findings and
the order ultimately passed by the Tribunal. He would also
justify the submission which he made before the Tribunal
based on the judgment of this Court reported in Leila David
v. State of Maharashtra & Ors. (2009) 10 SCC 337. In other
words, he would submit that the Tribunal has not erred in
drawing support from the law laid down that when proceedings
are launched under Section 14 for contempt committed by a
person in the face of the Court, a trial may not be
indispensable. He would also point out that the final order
as passed by the Tribunal in this case, would also obviate
any need for interference by this Court and the interest of
justice has been subserved and the Tribunal has balanced the
interest of justice by upholding the dignity of the
Tribunal, by on the one hand convicting the appellant for
his conduct, but at the same time not sentencing him but on
the other hand, only letting him off with a warning.
(9)He would also point out that when the incident took
place on 08.02.2019, the Tribunal did not immediately rush
into the proceedings. The matter traveled to the Delhi High
Court on the question as to whether the Tribunal or rather
the Chairman of the Tribunal could act in the matter under
the Act. The Delhi High Court formed the view that the
Tribunal was bestowed with adequate power. The matter
reached this Court at the instance of the appellant and this
Court affirmed the view of the Delhi High Court. It is
thereafter that the matter was taken up.
(10)Section 14 of the Act reads as follows:
“14.Procedure where contempt is in the face of the
Supreme Court or a High Court.—(1) When it is alleged,
or appears to the Supreme Court or the High Court upon
its own view, that a person has been guilty of
contempt committed in its presence or hearing,the
Court may cause such person to be detained in custody,
and, at any time before the rising of the Court, on
the same day, or as early as possible thereafter,
shall—
(a) cause him to be informed in writing of the
contempt with which he is charged;
(b) afford him an opportunity to make his defence to
the charge;
(c) after taking such evidence as may be necessary or
as may be offered by such person and after hearing
him, proceed, either forthwith or after adjournment,
to determine the matter of the charge; and
(d) make such order for the punishment or discharge of
such person as may be just.
(2) Notwithstanding anything contained in sub-section
(1), where a person charged with contempt under that
sub-section applies, whether orally or in writing, to
have the charge against him tried by some judge other
than the Judge or Judges in whose presence or hearing
the offence is alleged to have been committed, and the
Court is of opinion that it is practicable to do so
and that in the interests of proper administration of
justice the application should be allowed, it shall
cause the matter to be placed, together with a
statement of the facts of the case, before the Chief
Justice for such directions as he may think fit to
issue as respects the trial thereof.
(3) Notwithstanding anything contained in any other
law, in any trial of a person charged with contempt
under sub-section (1)which is held, in pursuance of a
direction given under sub-section (2), by a Judge
other than the Judge or Judges in whose presence or
hearing the offence is alleged to have been committed,
it shall not be necessary for the Judge or Judges in
whose presence or hearing the offence is alleged to
have been committed to appear as a witness and the
statement placed before the Chief Justice under sub-
section (2) shall be treated as evidence in the case.
(4) Pending the determination of the charge, the Court
may direct that a person charged with contempt under
this section shall be detained in such custody as it
may specify:
Provided that he shall be released on bail, if a bond
for such sum of money as the Court thinks sufficient
is executed with or without sureties conditioned that
the person charged shall attend at the time and place
mentioned in the bond and shall continue to so attend
until otherwise directed by the Court:
Provided further that the Court may, if it thinks
fit,instead of taking bail from such person, discharge
him on his executing a bond without sureties for his
attendance as aforesaid. ”
A perusal of Section 14 would appear to indicate the
procedure to be followed when contempt is in the face of the
Supreme Court or the High Court.
(11)Section 17 of the Administrative Tribunals Act, 1985
provides the Tribunal with the same jurisdiction, powers and
authority in respect of contempt of itself as a High Court
has and may exercise for this purpose the provisions of the
Act with the modifications as provided therein.
Section 17 reads as follows:
“17. Power to punish for contempt. –A Tribunal shall
have, and exercise, the same jurisdiction, powers and
authority in respect of contempt of itself as a High
Court has and may exercise and, for this purpose, the
provisions of the Contempt of Courts Act, 1971 (70 of
1971) shall have effect subject to the modifications
that –
(a)the reference therein to a High Court shall be
construed as including a reference to such Tribunal;
(b)the references to the Advocate-General in section
15 of the said Act shall be construed, -
(i)in relation to the Central Administrative Tribunal,
as a reference to the Attorney-General or the
Solicitor-General or the Additional Solicitor-General;
and
(ii)in relation to an Administrative Tribunal for a
State or a Joint Administrative Tribunal for two or
more States, as a reference to the Advocate-General of
the State or any of the States for which such Tribunal
has been established.”
Therefore, we proceed on the basis that the power
under Section 14 of the Act is also available to the
Tribunal. Section 17 appears to confer the powers,
jurisdiction and authority of a High Court on the Tribunal.
There is no reference to the powers of the Supreme Court in
Section 17.
(12)The question, however, which pointedly arises for our
consideration, in the facts of this case, is whether, after
framing a charge as noticed by us, it was necessary that
there should be a trial and whether the charge should be
supported with any evidence.
(13)As far as the light shed by Section 14 goes, Section
14(1)(c) appears to indicate that the proceedings include
taking of evidence as may be necessary or as may be offered
by such person and thereafter, to determine the matter of
the charge. Sub-Section (2) of Section 14 contemplates the
situation where in regard to the Supreme Court or the High
Court, the alleged contemnor seeks to have the matter be
heard by another Judge, in which case, the application is to
be allowed if the Court is of the opinion that it is
practical to do so and in the interest of proper
administration of justice. In such eventuality, section
14(3) contemplates that it shall not be necessary for the
Judge or Judges in whose presence or hearing the offence is
alleged to have committed to appear as a witness and it is
sufficient if the statement of the judge is placed before
the Chief Justice which is then to be treated as evidence.
(14)Coming to the Rules, Rule 13 contemplates that if the
respondent (alleged contemnor) does not admit that he has
committed contempt and a prima facie case is made out, the
Tribunal is to proceed to frame a charge in Form No. III
subject to modification or addition by the Tribunal at any
time. The charge is to be read over and explained and the
Tribunal is thereafter to record his plea, if any. Rule
13(e) provides that if the respondent pleads not guilty, the
case may be taken up for trial on the same day or it is to
be posted to any subsequent date as directed by the
Tribunal.
(15)Rule 15 deals with the procedure for trial. It
contemplates that except where it is otherwise provided in
the Act or the Rules, the procedure for summary trial under
Chapter XXI of the Code of Criminal procedure shall as far
as practical be followed in the trial of case for contempt.
It is open to the Tribunal at its discretion to direct that
the evidence be produced in the form of affidavits. The
Tribunal may also on motion or suo motu order attendance for
cross examination of a person whose affidavit has been
filed. Rule 15(iv) contemplates that the Tribunal may at
its discretion direct any person to be examined as Tribunal
witness.
(16)The Tribunal, by the impugned order, has only noticed
in keeping with the charge that the appellant did make the
statement in the Court that he had something to say about
the Chairman which he wished to communicate to him in the
chamber. This is disputed by the appellant. The charge
indeed is on the lines as found by the Tribunal. But the
charge was denied by the appellant.
(17)Shri Vikramjit Banerjee, learned Additional Solicitor
General, very fairly drew our attention to the counter
affidavit of the appellant to the charge wherein it is
indicated as follows:
“Apart from the above observations which were recorded
in the Order, several oral observations were made by
this Hon’ble Bench of this Hon’ble Tribunal speaking
through its Hon’ble Chairman during the hearing on the
said date, which were apparently unsavoury. More
particularly, it was alleged by this Hon’ble Bench in
open Court that the Respondent “ manages Judges and
Benches of the Supreme Court ”. To such a deeply
hurtful, humiliating and completely baseless remark,
the Respondent, in solemn discharge of his duty as an
officer of the court and being responsible as such for
maintaining its dignity, humbly responded by praying
that the Hon’ble Tribunal may conduct further
proceedings in chamber with a view to protect the
dignity of the Hon’ble Supreme Court, the Hon’ble High
Courts as well as its own dignity. It is humbly
submitted that the majesty of law can only be upheld
if there is inter-se amity between all the
institutions tasked with upholding it. Whenever
institutional dignity is at the risk of being
unwittingly compromised, it is the duty of every
conscientious and law abiding citizen, and most
importantly, of the learned members of the Bar, to
prevent such a slip from occurring. The request for
chamber hearing was made by the Respondent in
discharge of the said duty. It is respectfully
submitted that at no stage any disrespectful
word/gestures or any personal
attacks/allegations/threat/innuendo, were made by the
Respondent against anyone whosoever let alone this
Hon’ble Tribunal or its Hon’ble Chairman.”
(18)Therefore, this is not a case where we can proceed on
the basis that the appellant has admitted his guilt to the
charge that appellant made a statement in the open Court
that he had certain things to say about the Chairman which,
however, he would reveal only in the chamber. This is the
crux of the matter. His version is as noticed by us in the
counter affidavit, which he filed to the charge. It is
another matter that we may agree with the view of the
Tribunal if the appellant had indeed made the allegations
against the Chairman in the form of an insinuation that he
had something to say about the Chairman which he would
reveal only in chamber and what is more, he maintained
silence which is eloquent when he was called upon to say
whatever he had to say in the open Court. If that were the
position, we would have little difficulty in upholding the
conviction.
(19)Here, however, the problem is different. The issue
arises from the denial of the very charge about what
happened on 08.02.2019. In the circumstances of this case
when the charge was framed on 10.02.2020 and the appellant
pleaded not guilty and the proceedings on the date
18.03.2020 would show that on the one hand, learned
Additional Solicitor General relied upon judgment of this
Court and submitted that the Tribunal would be free to
proceed in the matter without holding a trial but the
appellant on the other hand, insisted on his right to be
tried and the matter was reserved for judgment resulting in
no trial at all taking place admittedly, there would be a
problem in law in the facts of this case.
(20)Shri Vikramjit Banerjee, learned Additional Solicitor
General, however, would seek support from the judgment of
this Court in Leila David (supra). He took us through the
said judgment.
(21)The appellant, on the other hand, would submit that
the said judgment cannot apply. The said judgment reveals
certain features which stand out. The Court notices that
certain allegations were made in the writ petition as well
as in the supporting affidavits. The petitioners therein
were asked to withdraw the allegations which they refused to
do. Thereupon, this Court felt compelled to issue notice as
to why contempt proceedings should not be taken.
Thereafter, when the matter came up before the Bench
presided by the learned Judge, the Court took the view that
even the show cause reply was equally contumacious.
Proceedings were initiated. The order which was recorded by
the learned Judge of this Court indicates that one of the
petitioners had gone to the extent of saying that the Judges
should be jailed for having initiated proceedings against
them. One of the petitioners before this Court it is
recorded went to the extent of throwing a footwear at the
Judges. It is further recorded that all this happened in
the presence of the learned Solicitor General of India
(later Attorney General of India) and others. A division of
opinion led to the matter being placed before a Bench of
three learned Judges. These are the facts of the case which
is relied by the learned Additional Solicitor General of
India and which forms the basis of the impugned order as
well apparently. The question which fell for decision was
the need to hold trial or allowing the party to adduce
evidence.
(22)We may notice in this regard the following
observations:
“28. As far as the suo motu proceedings for contempt
are concerned, we are of the view that Arijit Pasayat,
J. was well within his jurisdiction in passing a
summary order, having regard to the provisions of
Articles 129 and 142 of the Constitution of India.
Although, Section 14 of the Contempt of Courts Act,
1971, lays down the procedure to be followed in cases
of criminal contempt in the face of the court, it does
not preclude the court from taking recourse to summary
proceedings when a deliberate and wilful contumacious
incident takes place in front of their eyes and the
public at large, including Senior Law Officers, such
as the Attorney General for India who was then the
Solicitor General of India.
29. While, as pointed out by Ganguly, J., it is a
statutory requirement and a salutary principle that a
person should not be condemned unheard, particularly
in a case relating to contempt of court involving a
summary procedure, and should be given an opportunity
of showing cause against the action proposed to be
taken against him/her, there are exceptional
circumstances in which such a procedure may be
discarded as being redundant.
31. Section 14 of the Contempt of Courts Act, 1971
deals with contempt in the face of the Supreme Court
or the High Court. The expression “contempt in the
face of the Supreme Court” has been interpreted to
mean an incident taking place within the sight of the
learned Judges and others present at the time of the
incident, who had witnessed such incident.
35. Section 14 of the Contempt of Courts Act no doubt
contemplates issuance of notice and an opportunity to
the contemnors to answer the charges in the notice to
satisfy the principles of natural justice. However,
where an incident of the instant nature takes place
within the presence and sight of the learned Judges,
the same amounts to contempt in the face of the Court
and is required to be dealt with at the time of the
incident itself. This is necessary for the dignity and
majesty of the courts to be maintained. When an
object, such as a footwear, is thrown at the Presiding
Officer in a court proceeding, the object is not to
merely scandalise or humiliate the Judge, but to
scandalise the institution itself and thereby lower
its dignity in the eyes of the public.
36. In the instant case, after being given an
opportunity to explain their conduct, not only have
the contemnors shown no remorse for their unseemly
behaviour, but they have gone even further by filing a
fresh writ petition in which apart from repeating the
scandalous remarks made earlier, certain new
dimensions in the use of unseemly and intemperate
language have been resorted to to further denigrate
and scandalise and overawe the Court. This is one of
such cases where no leniency can be shown as the
contemnors have taken the liberal attitude shown to
them by the Court as licence for indulging in
indecorous behaviour and making scandalous allegations
not only against the judiciary, but those holding the
highest positions in the country. The writ proceedings
have been taken in gross abuse of the process of
Court, with the deliberate and wilful intention of
lowering the image and dignity not only of the Court
and the judiciary, but to vilify the highest
constitutional functionaries.
37. In such circumstances, while agreeing with the
procedure adopted by Pasayat, J. in the facts of this
case, we are not inclined to interfere with the
sentence which has been imposed on the contemnors. The
order dated 23-3-2009 [ Leila David (3) v. State of
Maharashtra, (2009) 10 SCC 348 : (2009) 13 Scale 325
(2)] , granting bail to the contemnors is hereby
recalled. The Secretary General is directed to take
the contemnors into custody forthwith and to arrange
to have them sent to the appropriate jail to serve out
the sentence.”
(23)A perusal of the aforesaid observations would lead us
to believe that the said judgment turns on its facts. It
was contempt committed before this Court. The nature of the
contempt is clearly brought out. In fact, it was when the
contempt of court case was launched that there were further
acts which included the throwing of footwear at the Judges.
Subsequent conduct also did not reveal much of a change in
the attitude of the contemnors in the said case. What is
most relevant, however, is that the Court noticed the
presence of Articles 129 and 142 of the Constitution as
constituting sources of jurisdiction for this Court.
(24)In this case, however, in the first place, we cannot
possibly equate the Tribunal with this Court. Undoubtedly,
the Tribunal is endowed with the same power as are available
to the High Court under the Act. But conspicuously, the
powers available to this Court under Article 129 and 142 are
not available to the Tribunal. The facts of the case which
arose for consideration before this Court cannot, in our
view, be compared with the facts of the present case. The
appellant denied charges. What is more, he specifically
staked the claim to have a trial conducted on the charge
framed against him. No trial at all was conducted. In
other words, no evidence was taken. The findings have been
rendered after framing of the charge on 10.02.2020. The
only day on which the case stood listed before the
pronouncement of the judgment is 18.03.2020. We have
noticed all that took place on 18.03.2020. On the said day,
different submissions were made. On the one hand, the
Additional Solicitor General told the Tribunal that the
trial may not be necessary in view of the judgment in Leila
David (supra). The appellant, on the other hand, joined
issue and insisted that the trial must be conducted.
A perusal of the order dated 18.03.2020 would show
that the appellant had raised his argument about the need
for a trial even in the case of a contempt being committed
in the face of the Court. In other words, he canvassed for
the position that a trial is necessary in such a case.
(25)It is pointed out by Shri Vikramjeet Banerjee, learned
Additional Solicitor General, that the appellant did along
with his counter affidavit file certain documents apparently
relating to the proceedings before the Tribunal.
(26)We would think that in the facts of this case, denial
of a right of trial which is contemplated also under Section
14(1)(c) of the Act as also Rule 15 of the Rules has
resulted in miscarriage of justice.
(27)We have noticed the central issue which had to be
decided on the strength of evidence in the teeth of the
denial of the charge by the appellant. We would think that,
in the facts of the case, the Tribunal could not have
derived support of the judgment of this Court for reasons
already indicated.
(28)The upshot of the above discussion is that the
appellant must succeed. We are allowing this appeal only on
the ground that the procedure under the Act and in the Rules
which related to adducing of evidence when there is a denial
of the charge, was not followed. We would undoubtedly have
had no reservation in upholding the order if there was
evidence to support the charge as framed against the
appellant. Subject to these observations, the appeal is
allowed. Impugned order is set aside. Needless to say the
direction to forward the case to the Bar Council of India
will also perish. The impugned order will stand set aside.
(29)We record our deep sense of appreciation for Shri
Vikramjit Banerjee, learned Additional Solicitor General,
who not only assisted us but assisted us with fairness and
placing the position at law before us.
New Delhi;
August 10, 2022.
Criminal Appeal No. 892/2020
Date : 10-08-2022 This appeal was called on for hearing today.
For Appellant(s)
Appellant-in-person
For Respondent(s)
Mr. Vikramjeet Banerjee, ASG.
Ms. Shruti Agarwal, Adv.
Mr. Shivam Singhania, Adv.
UPON hearing the appellant-in-person and the counsel
the Court made the following
The appeal is allowed in terms of the signed
reportable judgment.
Pending applications stand disposed of.
[Signed reportable judgment is placed on the file.]
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The Supreme Court on Wednesday sets aside the order of the Central Administrative Tribunal (CAT) convicting Advocate Mehmood Pracha for contempt of court [Mehmood Pracha v. CAT].
A Bench of Justices KM Joseph and Hrishikesh Roy held that a denial of the right to trial, as contemplated under the Contempt of Courts Act and the Central Administrative Tribunal Rules, resulted in a miscarriage of justice.
"We are allowing this appeal only on the ground that the procedure under the Act and in the Rules which relate to adducing of evidence when there is a denial of charge, was not followed. We would undoubtedly have had no reservation in upholding the order if there was evidence to support the charge as framed against the appellant" the Bench said.
The Supreme Court had in August last year asked Pracha to tender an unconditional apology in the contempt case. Back then, it had observed,
"What we are looking at is, there is not previous history to it. On condition that Mr Pracha will file an unconditional apology before the tribunal, we will consider setting aside the order and whole thing goes. He is a lawyer and he will move on. All of us commit mistakes but the idea is that one makes amends at the earliest," said Justice Joseph.
Pracha maintained that since he has committed no wrong, he will not apologise. The Court clarified that it was not compelling him to do anything and that the judges of the Court are not "12 century lords of England."
"We are not like Lords here in the 12th century England. That is not the idea you see! We don't (want to) put any condition. It should be unconditional. This will serve your interest and also the dignity of the tribunal. Everyone commits mistakes. The whole idea is at some point you say sorry."
When Pracha said that the contempt of court case was registered against him only because he was defending the "honour of the Supreme Court", the Bench said,
"You could have brought it separately here in this Court. Two wrongs cannot make a right.
The Bench thus asked Pracha to place on record the charges against him, after he suggested contesting the same if the matter is to be decided on merits.
In September last year, the CAT had held Pracha guilty of contempt, but let him off with a severe warning. The Principal Bench of the Tribunal took suo motu cognisance of the conduct of Pracha during the hearing of a case of Indian Forest Service officer Sanjiv Chaturvedi who was on deputation at AIIMS.
Chaturvedi had filed different applications with regard to recording of his Annual Confidential Reports (ACRs), it said.
"From the various developments that took in this case, what we gather is that the attempt was more to add to the personality of the applicant and his counsel i.e., the respondent herein, and for that purpose, the tribunal became easy target," the CAT had said in its order.
|
Reserved
Petitioner :- Dr. Vijay Kumar Sharma
Respondent :- State Of U.P. And 2 Ors
Counsel for Petitioner :- Vijay Kumar Dixit,Ashok Mehta (Senior
Counsel for Respondent :- G.A.
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Ajai Tyagi,J.
(As per : Hon'ble Munishwar Nath Bhandari, J.)
The writ petition has been filed for following reliefs which are
quoted hereunder for ready reference :-
“I.To issue a writ order or direction in the nature of
mandamus commanding and directing the Respondent No. 2
& 3 to treat Case Crime No. 385 of 2019 as the Main Case
Crime and to merge all the other Case Crimes/FIRs
registered in Bike-Bot matter at PS: Dadri and elsewhere in
State of UP , as statements u/s 162 of the Cr.P .C. and to merge
these subsequent FIRs in main Case Crime No. 385/2019.
II.To issue a writ order or direction in the nature of
mandamus commanding and directing the Respondent No. 2
& 3 to treat the Charge Sheet filed in Case Crime No.
385/2019 on 01.02.2021 as the Main Charge Sheet and all
the subsequent additional Charge Sheets filed thereafter the
Main Charge Sheet, to be treated as Supplementary Charge
Sheet as to main Charge Sheet and be merged to the main
charge sheet in Case Crime No. 385/2019.
III.To issue writ order or direction in the nature of
mandamus commanding and directing the Respondent No. 2
to initiate Trial Proceedings at the earliest, in Main Case
Crime No. 385/2019 and to only conduct one trial
proceeding for all the connected matters which are merged
and added to the Main Case Crime No. 385/2019 as prayed
in Prayer I & II hereinabove.
IV .To issue writ order or direction in the nature of
mandamus commanding and directing the Respondent No. 2,
not to subject Petitioner for each and every time of fresh
investigation/remand in favour of Respondent No. 3 and to
stop issuing multiple routine remand orders against the
Petitioner, in respect of the same offence arising out of same
incident, facts, grounds, cause of action, course of
transaction and evidences or consequences thereupon in the
‘Bike-Bot’ matter, which are similar and identical to the main
Case Crime No. 385/2019, wherein which the Petitioner has
already been taken under judicial remand since 19.11.2020.”
Shri Ashok Mehta, learned Senior Counsel, assisted by Shri
Vijay Kumar Dixit, appearing for the petitioner has pressed the writ
petition mainly in reference to first prayer and information report at
Annexure-14 describing the number of cases registered against the
petitioner.
Learned counsel for the petitioner submits that hundreds of FIRs
have been registered against the petitioner. In pursuant to it, the
petitioner is produced for remand in reference to each FIR whereas
after the first FIR, subsequent FIRs should have been taken to be
statement under Section 162 Cr.P.C. A prayer was made to the Police
Authorities not to produce the petitioner for remand in each FIR rather
subsequent FIR be taken as statement under Section 162 Cr.P.C.
The detailed facts pertaining to the case have been given. It is
seriously opposed by learned counsel for the respondents. It is stated
that petitioner alongwith other accused had cheated around 3 lacs
persons involving around Rs. 4,000 crores. It is resulted in separate
first information report on different dates and in reference to different
transactions. Shri Manish Goyal, learned Additional Advocate General
assisted by Shri Syed Ali Murtaza, appearing for the respondents thus
seriously opposed the prayer made by learned counsel for the
petitioner.
The facts referred by learned counsel for the petitioner show that
number of FIRs have been registered against Noble Cooperative Bank
Limited and other accused.
An investor company, namely, Garvit Innovative Promoters
Limited (hereinafter referred to as “GIPL”) was incorporated to carry
out business of rental of bikes on the pattern of Ola/Uber. It was after
taking investments from the public for purchase of bikes to be rented
out. The rental received, out of it, was to be paid to the investors. The
authorised representative of GIPL opened a bank account in the Noble
Cooperative Bank Limited. The amount of investments by various
investors came in the bank accounts of GIPL. The Noble Cooperative
Bank Limited to which petitioner is the Chief Executive Officer
transferred the funds elsewhere, as was directed by the authorised
signatory of GIPL. A request was thereupon made by the GIPL to the
Noble Cooperative Bank Limited to issue around 2,61,000 cheques
for distribution of dividend and monthly rental to the investors. The
cheques were issued by the bank alleged to be without knowledge of
the petitioner. There was no approval by him for printing of 2,61,000
cheques for its issuance.
The allegations of fraud, if any, could have been made against
GIPL and the officers of the Cooperative Bank for issuance of
cheques without the knowledge and permission of the petitioner. It
could not have been against the petitioner. The bank intimated about
the illegalities committed by the GIPL by sending a letter to the
Reserve Bank of India and FIU. It was leaked thus the promoters of
GIPL started threatening the petitioner. The promoter of GIPL Shri
Sanjai Bhati and others were arrested and despite the cooperation of
the petitioner and statement under Section 161 Cr.P.C. recorded by
Economic Offence Wing, Meerut, petitioner was also arrested. The
petitioner even cooperated with the Agency yet the case was
registered against him alongwith others resulting in several remands
pursuant to each FIR.
Leaned Senior Counsel appearing for the petitioner submitted
that in view of the judgment of Supreme Court in the case of T.T.
Antony Versus State of Kerala and others reported in (2001) 6 SCC
181, this Court should direct the respondents to treat subsequent FIRs
after the first, to be statement under Section 162 Cr.P.C. The reference
of the judgment in the case of Amish Devgan Versus Union of India
and others reported in (2021) 1 SCC 1 has also been given.
In the case of T.T. Antony (supra) , several FIRs were registered
in reference to one incident. The Apex Court directed to treat
subsequent FIRs to be a statement under Section 162 Cr.P.C. The
prayer is to apply the judgment aforesaid and grant the prayer.
The writ petition has been seriously opposed by learned counsel
for the respondents. It is submitted that the argument of learned
counsel for the petitioner in reference to the judgment of the Apex
Court in the cases of T.T. Antony (supra) and Amish Devgan (supra)
may not be accepted as both the judgments are not applicable on the
facts of this case. It is even the judgment of the Apex Court in the case
of Arnab Ranjan Goswami Versus Union of India and others
reported in (2020) 14 SCC 12 . In the cases referred to above, there
was one incident giving rise to several FIRs disclosing one or more
cognizable offence, therefore, the direction of the nature required in
those cases were given by the Apex Court. Since the facts of this case
are distinguishable, the judgments may not be applied so as to restrain
the police to produce the petitioner on remand in reference to FIRs.
The transactions herein are by different person resulting in separate
FIR. The prayer is, accordingly, to dismiss the writ petition.
We have considered the rival submissions of the parties and
perused the record.
The writ petition was filed with multiple prayers but while
arguing it, learned counsel for the petitioner mainly pressed prayer
no.1. It is to treat all subsequent FIRs after the first to be an statement
under Section 162 Cr.P.C. and, accordingly, remand of the petitioner
may not be permitted in reference to each FIR. The prayer was made
even in reference to the number of cases registered by the
Enforcement Wing at Annexure-14.
The facts available on record show registration of a number of
FIRs against the petitioner by different persons in reference to their
own transactions. We are not recording finding on the facts as it would
be a subject matter of trial and any comment at this stage may affect
either of the parties. However, for the appreciation of the argument of
learned Senior Counsel, we are referring the allegations contained in
the FIR and the charge-sheet. It has been disclosed that 2,61,000
cheques were issued by the Noble Cooperative Bank Limited to
various investors. It was involving huge amount. The issuance of the
cheques by the bank is said to be on the instruction of the GIPL. The
allegations further show transfer of the amount received from the
investors leaving hardly any balance in the bank account of GIPL. The
transfer of the entire amount was in the knowledge of the bank yet
they issued around 2,61,000 cheques. The amount involved therein is
not negligible but running in crores. The investors lodged first
information report in reference to their own transaction.
Owing to the facts referred above, the issue for consideration
before the Court is as to whether all subsequent FIRs after the first to
be treated statement under Section 162 Cr.P.C. and, accordingly,
restrain the respondents to produce the petitioner on remand in
reference to each FIR. The issue aforesaid alone has been formulated
for the reason that at this stage, learned counsel for the petitioner did
not press another prayers.
Learned Senior Counsel appearing for the petitioner has mainly
relied on the judgment of the Supreme Court in the cases of T.T.
Antony (supra) and Amish Devgan (supra) . The reliance has been
placed even on the judgment in the case of Arnab Ranjan Goswami
(supra).
We are first taking the judgment of the Apex Court in the case of
T.T. Antony (supra) as to whether law laid down by the Apex Court
therein would be applicable to the facts of this case. In the case of T.T.
Antony (supra), an FIR was registered on an incident when a Minister
came to Kannur District of State of Kerala to inaugurate evening
branch of a Cooperative Bank. Violent demonstrations were staged by
the members of youth wing of rival political party. The police had to
open fire to protect the Minister and public apart from private
properties at two places. Out of the firing, five persons died while six
others received injuries. More than 100 persons suffered injuries in
lathi charge while few police personnel also received injuries. An FIR
was lodged and registered as Case Crime No.353 of 1994. After three
years, another FIR bearing Case Crime No. 268 of 1997 was
registered pursuant to report of Inquiry Commission. The Apex Court
considered the issue as to whether registration of subsequent FIR out
of one and same incident was proper. Referring to Sections 154, 162,
186 Cr.P.C. apart from other provisions, it was held that any FIR
arising out of the same incident subsequent to the first FIR should be
taken as statement under Section 162 Cr.P.C. The relevant para of said
judgment is quoted hereunder for ready reference :
“A just balance between the fundamental rights of the
citizens under Articles 19 and 21 of the Constitution and the
expansive power of the police to investigate a cognizable
offence has to be struck by the court. There cannot be any
controversy that sub-section (8) of Section 173 Cr.P .C
empowers the police to make further investigation, obtain
further evidence (both oral and documentary) and forward a
further report or reports to the Magistrate. In Ram Lal
Narang Versus State (Delhi Admn.), (1979) 2 SCC 322, it
was, however, observed that it would be appropriate to
conduct further investigation with the permission of the
court. However, the sweeping power of investigation does
not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing
the final report under Section 173(2) Cr.P .C. It would
clearly be beyond the purview of Section 154 and 156
Cr.P .C. nay, a case of abuse of the statutory power of
investigation in a given case. In our view a case of fresh
investigation based on the second or successive FIRs, not
being a counter-case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and in
respect of which pursuant to the first FIR either
investigation is under way or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482 Cr.P .C. or
under Article 226/227 of the Constitution.”
In the said case, the Apex Court noted second FIR out of same
incident. The significance of the word “same incident” is relevant for
the reason that FIRs are not out of same incident giving rise to one or
more cognizable offences. It is out of separate transactions by
different investors, therefore, the judgment of the Apex Court in the
case of T.T. Antony (supra) would not be applicable to the facts of this
case.
The next judgment referred by learned counsel for the petitioner
is in the case of Amish Devgan (supra) . Paras 123 and 125 of the said
judgment have been referred by learned Senior Counsel and are
quoted hereunder :
“123. In Arnab Ranjan Goswami’ s case, the proceedings in
the subsequent FIRs were quashed as the counsel for the
complainants in the said case had joined the petitioner in
making the said prayer. However, in the present case, we
would like to follow the ratio in T.T. Antony which is to the
effect that the subsequent FIRs would be treated as
statements under Section 162 of the Criminal Code. This is
clear from the following dictum in T.T. Antony:
“18. An information given under sub-section (1) of
Section 154 Cr.P .C. is commonly known as first
information report (FIR) though this term is not used
in the Code. It is a very important document. And as
its nickname suggests it is the earliest and the first
information of a cognizable offence recorded by an
officer in charge of a police station. It sets the
criminal law in motion and marks the
commencement of the investigation which ends up
with the formation of opinion under Section 169 or
170 Cr.P .C., as the case may be, and forwarding of a
police report under Section 173 Cr.P .C.. It is quite
possible and it happens not infrequently that more
informations than one are given to a police officer in
charge of a police station in respect of the same
incident involving one or more than one cognizable
offences. In such a case he need not enter every one
of them in the station house diary and this is implied
in Section 154 Cr.P .C. Apart from a vague
information by a phone call or a cryptic telegram,
the information first entered in the station house
diary, kept for this purpose, by a police officer in
charge of a police station is the first information
report — FIR postulated by Section 154 Cr.P .C. All
other informations made orally or in writing after
the commencement of the investigation into the
cognizable offence disclosed from the facts
mentioned in the first information report and entered
in the station house diary by the police officer or
such other cognizable offences as may come to his
notice during the investigation, will be statements
falling under Section 162 Cr.P .C. No such
information/statement can properly be treated as an
FIR and entered in the station house diary again, as
it would in effect be a second FIR and the same
cannot be in conformity with the scheme of Cr.P .C.
Take a case where an FIR mentions cognizable
offence under Section 307 or 326 IPC and the
investigating agency learns during the investigation
or receives fresh information that the victim died, no
fresh FIR under Section 302 IPC need be registered
which will be irregular; in such a case alteration of
the provision of law in the first FIR is the proper
course to adopt. Let us consider a different situation
in which H having killed W, his wife, informs the
police that she is killed by an unknown person or
knowing that W is killed by his mother or sister, H
owns up the responsibility and during investigation
the truth is detected; it does not require filing of fresh
FIR against H — the real offender — who can be
arraigned in the report under Section 173(2) or
173(8) Cr.P .C., as the case may be. It is of course
permissible for the investigating officer to send up a
report to the Magistrate concerned even earlier that
investigation is being directed against the person
suspected to be the accused.”
125. Lastly, we would also like to clarify that Section 179 of
the Criminal Code permits prosecution of cases in the court
within whose local jurisdiction the offence has been
committed or consequences have ensued. Section 186 of the
Criminal Code relates to cases where two separate charge-
sheets have been filed on the basis of separate FIRs and
postulates that the prosecution would proceed where the
first charge-sheet has been filed on the basis of the FIR that
is first in point of time. Principle underlying Section 186 can
be applied at the pre-charge-sheet stage, that is, post
registration of FIR but before charge-sheet is submitted to
the Magistrate. In such cases ordinarily the first FIR, that is,
the FIR registered first in point of time, should be treated as
the main FIR and others as statements under Section 162 of
the Criminal Code. However, in exceptional cases and for
good reasons, it will be open to the High Court or this
Court, as the case may be, to treat the subsequently
registered FIR as the principal FIR. However, this should
not cause any prejudice, inconvenience or harassment to
either the victims, witnesses or the person who is accused.
We have clarified the aforesaid position to avoid any doubt
or debate on the said aspect.”
We are again required to look into the facts of the case of Amish
Devgan (supra). It was a case where several FIRs in different States
were registered pursuant to a telecast where Amish Devgan said to
have made objectionable comments. The broadcast was heard by
many persons resulting in registration of several FIRs. The facts
aforesaid show that FIRs therein were also out of the same incident. It
was out of one broadcast on the television. The Apex Court, thus
applied the judgment in the case of T.T. Antony (supra).
There exist significance to the word “same incident” giving rise
to one or more cognizable offence. The case in hand is not having one
incident but different and separate incident. The judgment of the Apex
Court in the cases referred to above would apply when several FIRs
are registered out of one incident.
Two issues have been decided therein in judgment supra. The
first is that one incident giving rise to more than one cognizable
offence cannot result in separate FIR for each cognizable offence
involved therein. The investigation has to be one in respect of all the
cognizable offences involved in one incident. It should not result in
submission of charge-sheet in reference to each cognizable offence
and, therefore, it was held that police should not register separate FIR
for each cognizable offence involved in one incident. The Apex Court
has even clarified the position aforesaid by giving illustration.
The illustration given in para 123 in the case of Amish Devgan
(supra) is relevant. In a case where initially FIR was registered for the
offence under Section 307 or 326 Indian Penal Code but during the
course of investigation, the injured/victim dies then a fresh FIR for the
offence under Section 302 Indian Penal Code is not required to be
registered rather necessary alteration in the FIR can be made. At this
stage, we may further add that FIR registered for one or more offences
is not a final word rather in the investigation if any other offence is
detected, the charge-sheet is to be filed for all offences found involved
despite not mentioned in the FIR.
The other illustration given by the Apex Court that a person H
having killed wife W informs the police that she has been killed by
unknown person. During the course of the investigation, truth is
detected that wife was killed by mother or sister of informant-husband
H. It would not require registration of fresh FIR on it.
In view of the above, an incident involving more than one
cognizable offence should not result in registration of separate FIR for
each cognizable offence. The aforesaid is one part of the issue decided
by the Apex Court.
The second issue is as to whether several FIRs can be registered
in reference to one incident and if it has been registered, the
subsequent FIR, after the first, be treated as statement under Section
162 Cr.P.C. The second issue decided by the Apex Court can apply
only when there are several FIRs out of one incident. The word “one
incident” is of great relevance and for that, the Apex Court has given
illustration. One incident may result in several FIRs but subsequent
FIR, after the first, is to be treated as a statement under Section 162
Cr.P.C. The facts of the cases cited by learned counsel for the
petitioner shows several FIRs out of one incident/occurrence which is
not the case here. In the instant case, each FIR is registered by a
different person and in regard to the separate incident with him and
accordingly, it was registered separately, thus the judgment of the
Apex Court in the case of T.T. Antony (supra) or even in the case of
Amish Devgan (supra) would not apply.
The judgment in the case of Amish Devgan (supra) refers to
certain illustration to clear the legal position and crystallize the issue
as to when subsequent FIR to be treated as a statement under Section
The facts of this case would not attract any of the judgments
referred by learned counsel for the petitioner to restrain the
respondents for sending the petitioner on remand in reference to each
FIR.
The facts involved in the case of Arnab Ranjan Goswami
(supra) is also considered. It was also a case where several FIRs were
out of one incident. To attract all the judgments referred by learned
counsel for the petitioner, it should be one incident. Those judgments
would not apply in the cases where for separate incident, may be
involving in same cognizable offence, separate FIRs have been
registered. The evidence in reference to each FIR would also be in
reference to the individual case.
In the light of the discussion made above, we are unable to
accept the prayer made by the petitioner.
The writ petition is, accordingly, dismissed with a note that
other than the prayer pressed during the course of argument and has
been dealt with, we have not touched other issues having not being
pressed.
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The Allahabad High Court recently observed that the judgments of the Supreme Court in Arnab Goswami v. State of Maharashtra, Amish Devgan v. Union of India and TT Antony v. State of Kerala would not be applicable in cases in which separate FIRs are registered involving same cognizable offence but arising out of separate incidents (Dr. Vijay Kumar Sharma v. State of UP).
A Division Bench of Justices Munishwar Nath Bhandari and Ajai Tyagi held that to attract those judgments, the FIRs should be related to the same incident.
"The facts involved in the case of Arnab Ranjan Goswami is also considered. It was also a case where several FIRs were out of one incident. To attract all the judgments referred by learned counsel for the petitioner, it should be one incident. Those judgments would not apply in the cases where for separate incident, may be involving in same cognizable offence, separate FIRs have been registered. The evidence in reference to each FIR would also be in reference to the individual case," the Court said.
The Court, therefore, dismissed a plea praying that after first FIR, every subsequent FIR should have been taken to be statement under Section 162 of Code of Criminal Procedure (CrPC) and police authorities should, therefore, not produce the petitioner for remand in each FIR.
The Court was hearing a matter wherein FIRs were registered against Noble Cooperative Bank Limited and other accused for allegedly cheating around 3 lakh persons to the tune of Rs. 4,000 crores.
The petitioner was the Chief Executive Officer of Noble Cooperative Bank Limited which operated the accounts of investor company Garvit Innovative Promoters Limited (GIPL).
GIPL was incorporated to carry out business of rental of bikes. The company had taken investments from the public for purchase of bikes to be rented out.
The rental received out of it was to be paid to the investors. The investments made by various investors came into the bank account of GIPL which were in Noble Cooperative Bank.
A request was then made by the GIPL to Noble Cooperative Bank to issue around 2,61,000 cheques for distribution of dividend and monthly rental to the investors.
On this note, it was submitted before the Court that these cheques were issued by the bank without the knowledge of the petitioner.
"There was no approval by him for printing of 2,61,000 cheques for its issuance. The allegations of fraud, if any, could have been made against GIPL and the officers of the Cooperative Bank for issuance of cheques without the knowledge and permission of the petitioner." the petitioner submitted.
Hundreds of FIRs were registered against the petitioner.
Pursuant to the same, the petitioner was produced for remand in reference to each FIR. The petitioner contended that after first FIR, every subsequent FIRs should have been taken to be statement under Section 162 CrPC.
A prayer was, therefore, made to the Police authorities not to produce the petitioner for remand in each FIR; rather subsequent FIR be taken as statement under Section 162 CrPC.
In this regard, the following prayer was made:
"To direct the direct the Police authorities to treat Case Crime No. 385 of 2019 as the Main Case Crime and to merge all the other Case Crimes/FIRs registered in Bike-Bot matter at PS: Dadri and elsewhere in State of UP, as statements u/s 162 of the Cr.P.C. and to merge these subsequent FIRs in main Case Crime No. 385/2019."
The Court, however, noted that registration of a number of FIRs against the petitioner by different persons was in reference to their own transactions.
"It has been disclosed that 2,61,000 cheques were issued by the Noble Cooperative Bank Limited to various investors. It was involving huge amount. The issuance of the cheques by the bank is said to be on the instruction of the GIPL. The allegations further show transfer of the amount received from the investors leaving hardly any balance in the bank account of GIPL. The transfer of the entire amount was in the knowledge of the bank yet they issued around 2,61,000 cheques. The amount involved therein is not negligible but running in crores. The investors lodged first information report in reference to their own transaction," the Court noted.
The petitioner placed reliance on TT Antony judgment of the Supreme Court in this regard.
The High Court, however, noted that in TT Antony, the second FIR came out of the first FIR.
"The significance of the word “same incident” is relevant for the reason that FIRs are not out of same incident giving rise to one or more cognizable offences. It is out of separate transactions by different investors, therefore, the judgment of the Apex Court in the case of TT Antony would not be applicable to the facts of this case," the Court ruled.
Similarly, Amish Devgan's was a case where several FIRs in different States were registered pursuant to a television telecast wherein anchor Amish Devgan was said to have made objectionable comments.
"The broadcast was heard by many persons resulting in registration of several FIRs. The facts aforesaid show that FIRs therein were also out of the same incident," the Court said.
Same was the case with Arnab Goswami judgment, the Court said.
The petition was, therefore, dismissed.
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Writ Petition(s)(Civil) No(s). 620/2021
Date : 24-06-2021 This matter was called on for hearing today.
For Petitioner(s)
Mr. Shashibhushan P. Adgaonkar, AOR
Mr. Ravibhushan P. Adgaonkar, Adv.
Mr. Gagandeep Sharma, Adv.
Mr. Rana Sandeep Bussa, Adv.
Ms. Ruchi Rathi, Adv.
For Respondent(s)
Ms. Neelam Sharma, Adv.
Ms. Pankhuri Shrivastava, Adv.
Mr. Soumik Ghosal, AOR
Mr. Gaurav Singh, Adv.
67564&67565/21 Mr. Prashant Padmanabhan, AOR
Mr. Asish Sarkar, Adv.
Ms. Mamta Sharma, Adv.
Mr. Praveen Swarup, AOR
Ms. Pareena Swarup, Adv.
Ms. Sadiya Shakeel, Adv.
67878&67880/21 Mr. Abhishek Choudhary, Adv.
Mr. Prabhu Prassana Behera, Adv.
Mr. Nabab Singh, Adv.
Ms. Ritika Ritu, Adv.
Mr. Abhishek Pattnaik, Adv.
Ms. Manju Jetley, AOR
Mr. Sandeep Devashish Das, AOR
State of Tripura Mr. Shuvodeep Roy, AOR
Mr. Kabir Shankar Bose, Adv.
State of Kerala Mr. G. Prakash, AOR
Ms. Priyanka Prakash, ADv.
Ms. Beena Prakash, Adv.
State of Haryana Dr. Monika Gusain, AOR
State of Punjab Mrs. Jaspreet Gogia, AOR
Ms. Mandakini Singh, Adv.
Mr. Karanvir Gogia, Adv.
Ms. Shivangi Singhal, Adv.
Ms. Ashima Mandla, Adv.
State of Assam
Mr. Devajit Saikia, Sr. Adv. (A.G.)
Mr. Nalin Kohli, AAG
Mr. Debojit Borkakati, AOR
Mr. R. Baruah, Adv.
Mr. A. Chaliha
Mr. Vivek Sonkar, Adv.
Mr. Ankit Roy, Adv.
State of Manipur Mr. Pukhrambam Ramesh Kumar, Adv.
Ms. Anupama Ngangom, Adv.
Mr. Karun Sharma, Adv.
R-18 Mr. Jayesh Gaurav, Adv.
Ms. Diksha Ojha, Adv.
Mr. Ranjan Nikhil Dharnidhar, AOR
State of Andhra Mr. Mahfooz A. Nazki, AOR
Pradesh Mr. Polanki Gowtham, Adv.
Mr. Shaik Mohamad Haneef, Adv.
Mr. T. Vijaya Bhaskar Reddy, ADv.
Mr. Amitabh Sinha, Adv.
Mr. K.V. Girish Chowdhary, Adv.
Mr. Shrey Sharma, Adv.
State of Gujarat Ms. Deepanwita Priyanka, AOR
State of U.P. Mr. Harish Pandey, AOR
State of Telangana Mr. P. Venkat Reddy, Adv.
Mr. Prashant Tyagi, Adv.
Mr. P. Srinivas Reddy, Adv.
M/s. Venkat Palwai Law Associates, AOR
State of Karnataka Mr. Shubranshu Padhi, AOR
Mr. Ashish Yadav, Adv.
Mr. Rakshit Jain, Adv.
Mr. Vishal Banshal, Adv.
UPON hearing the counsel the Court made the following
We have interacted with the learned counsel appearing
for the State of Andhra Pradesh and State of Kerala, who
had filed affidavit(s) stating that the Board of the
concerned State has taken an in principle decision to
continue with the XII standard examination.
As regards the State of Kerala, the issue is limited
to XI standard Examination. The State of Kerala has
already conducted XII standard Examination in the month
of April, 2021.
In the present proceedings, we are focusing only on
the grievance regarding the XII standard Examination of
the respective Boards of different States. Resultantly,
we do not wish to examine the grievance of the students
of State of Kerala, who want to pursue XI standard
Examination.
The students of XI standard from State of Kerala are
free to file substantive writ petition before the High
Court raising all contentions available to them. The same
are kept open. The High Court may decide the said
grievance on its own merits.
Reverting to the State of Andhra Pradesh, Mr. Mahfooz
A. Nazki, learned counsel appearing for the State, seeks
time to take instructions on matters in respect of which
certain aspects have been discussed in the course of
arguments.
Hence, this matter be listed tomorrow, i.e.,
25.06.2021 at 2:00 p.m.
As regards the State of Assam, affidavit has been
filed mentioning that the X and XII standards
examinations have been cancelled and the Scheme is being
formulated by the concerned Boards for allocation of
internal assessment marks. That be done expeditiously.
In addition, the Scheme must provide for a proper
mechanism for redressal of dispute or grievance of the
students after declaration of results, as has been done
in the case of C.B.S.E. and I.C.S.E. Boards.
Learned counsel appearing for State of Haryana
submits that a clarification be issued that the
respective Boards are free to formulate their own Schemes
being autonomous and independent bodies. We have no
difficulty in acceding to this submission.
In other words, we make it clear that each Board may
formulate its own Scheme.
However, we further make it clear that we are not
endorsing the correctness and validity of the proposed
Schemes, to be so formulated by the concerned Boards.
That will be considered on its own merits, if and when
occasion arises.
Learned counsel appearing for the N.I.O.S. submits
that the N.I.O.S. has cancelled the examinations and are
in the process of formulating the Scheme.
We direct all the State Boards to ensure that the
Schemes are formulated and notified at the earliest and
not later than 10 days from today and also declare the
results of internal assessment by 31.07.2021, which is
the time-line specified for C.B.S.E. and I.C.S.E. Boards
in terms of our order dated 22.06.2021 passed in Writ
Petition(C) No. 522 of 2021.
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The Supreme Court on Thursday said that it will not allow the Andhra Pradesh government to conduct Class 12 State Board exams unless it is convinced that the exams for 5.20 lakh students can be held without any fatality amid the COVID-19 pandemic.
A Bench of Justices AM Khanwilkar and Dinesh Maheshwari stated the same while hearing a plea to cancel all Class 12 State Board exams.
Earlier, the Central Board for Secondary Education (CBSE) and the Indian Certificate of Secondary Education (ICSE) had decided to cancel exams owing to the pandemic.
While all States have either conducted or cancelled Class 12 exams already, the State of Andhra Pradesh informed the top court that it would conduct board exams by the end of July.
However, the Supreme Court made it clear that it has to be convinced of how precautions will be taken to safeguard students against spread of the virus.
"Unless we are convinced that you are prepared to conduct exam without any fatality, till then we will not allow it. Wwhen others have cancelled you cannot hold it to show you are different," said Justice Khanwilkar.
Justice Maheswari added,
"We are not here for counselling. We know as a responsible government, you are concerned about health and safety of students and staff. If there is a conscious decision, then where is that file and who took that decision? What was the background? It is not the question of exam but health and safety of all."
The top court also directed all State Boards to formulate and notify assessment schemes not later than 10 days from today.
"We direct all the State Boards to ensure that the Schemes are formulated and notified at the earliest and not later than 10 days from today and also declare the results of internal assessment by July 31, 2021, which is the time-line specified for CBSE and ICSE Boards in terms of our order dated June 22, 2021 passed in Writ Petition(C) No. 522 of 2021," the order said.
The two primary reservations expressed by the Bench regarding the stance of Andhra Pradesh were:
1. How will the State arrange 34,634 rooms for 5.20 lakh students and from where will the support staff and logistical arrangements be made for the same?
2. If exams are held in the last week of July, then when will results be declared? If results come out late, then it would deprive students from applying for admissions.
Though Advocate Mahfooz Nazki, appearing for Andhra Pradesh, made it clear that the decision arrived at was a reasoned policy decision, the top court directed the State to file a detailed reply by tomorrow.
The Court also asked the State to file details showing which authority took the decision to conduct the exam and why it was done.
Another issue that came up during the hearing concerned Class 11 exams in Kerala.
The State indicated that the exams will be conducted in September, whereupon the top court directed the case to be heard by Kerala High Court, if the students file a writ petition in the High Court.
"In the present proceeding, we are only on grievance regarding 12th exams of respective boards. Resultantly, we do not wish to examine the grievance of Kerala students who have grievance regarding 11th standard exams. Students are free to file writ in Kerala High Court. Kerala High Court to decide the case on its own merits," the Court ordered.
The Court has also made it clear that it will not impose a uniform scheme to be followed by State boards for assessing students. The validity of such schemes may be decided at a later date, if such cases arise, the Bench stated.
The matter will be heard on Friday at 2 PM.
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+ W.P.(C) 5099/2023 and CM APPL. 19920/2023, 19921/2023
Through: Mr. Nidhesh Gupta, Senior Advocate
with Mr. Kaustubh Shakkarwar,
Advocates ( M-9764143399 )
versus
Through: Mrs. Avnish Ahlawat, Mr. Nitesh
Kumar Singh, Mrs. Lavanya Kaushik
& Mrs. Aliza Alam, Advocates.
Mr. Neeraj Shekhar, Mr.Ashutosh
Thakur, Dr.Sumit Kumars, Advocates
for R-2. (M- 9312210391 )
Mr. Ripudaman Bhardwaj, CGSC
with Mr. Sahaj Garg, GP for R-3.
1. This hearing has been done through hybrid mode.
CM APPL. 19921/2023 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
3. The present petition has been filed by the Petitioners seeking
implementation of order of Hon’ble the Chief Justice dated 24thAugust,
2018 and 3rdSeptember, 2019 and payment of arrears to the Petitioners.
4. The petition has been filed by 11 Petitioners who were attached as
Law Researchers to different Hon’ble Judges of this Court. It is their case
that vide order dated 18th September, 2017, Hon’ble the Chief Justice had
initially enhanced the monthly remuneration of Law Researchers from
Rs.25,000/- to Rs.35,000/-. On 24th August, 2018, the remuneration was
again increased to Rs.50,000/-. The amount was finally increased to
Rs.65,000/- vide order dated 3rd September, 2019.
5. The grievance of the Law Researchers who are before the Court, is
that they were functioning as Law Researchers during the relevant periods
and the arrears has not been paid to them. Through RTI applications, it has
been revealed that financial sanction for payment of arrears has not been
issued by the GNCTD. Accordingly, the present writ petition has been filed
seeking release of arrears in terms of the remuneration fixed by the High
Court to the Petitioners and to other Law Researchers.
6. Issue notice.
7. Let ld. Counsel for Respondent No.1 take instructions in the matter
and place on record the reasons as to why sanction has not been issued in
respect to the arrears liable to be paid to Law Researchers who were
discharging their duties at the relevant point of time.
8. A status report/affidavit be filed by 15thMay, 2023 with advance copy
to the other side.
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The Delhi High Court on Monday sought a response from the Delhi government as to why it has not cleared the arrears of law researchers of High Court judges [Danish Iqbal v. GNCTD].
Justice Prathiba M Singh was hearing a plea filed by a group of law researchers of various judges of the High Court. They sought implementation of the orders passed by the Chief Justice of the High Court on August 24, 2018 and September 3, 2019.
The Chief Justice had initially fixed their remuneration at ₹25,000 and the same was enhanced to ₹35,000 by an order passed on September 18, 2017. Further orders were passed on August 24, 2018 when the remuneration was enhanced to ₹50,000 and finally on September 3, 2019, the same was enhanced to ₹65,000.
The petitioners contended that despite working as law researchers during the relevant period, they haven't received the arrears yet. They even filed an application under the Right to Information Act (RTI) only to learn that the financial sanction for paying the arrears has not been issued by the Delhi government.
Therefore, they filed the writ petition seeking release of arrears of their remuneration as fixed by the Chief Justice of the High Court.
Having considered the issue, Justice Singh issued notice to the Delhi government.
"Let the government counsel take instructions in the matter and place on record the reasons as to why sanction has not been issued in respect to the arrears liable to be paid to Law Researchers who were discharging their duties at the relevant point of time," the Bench ordered.
A further direction was issued to the government file an affidavit or a status report on the issue by May 15.
The matter will be next heard on May 22.
Senior Advocate Nidhesh Gupta along with Advocate Kaustubh Shakkarwar appeared for the Petitioners.
Advocates Avnish Ahlawat, Nitesh Kumar Singh, Lavanya Kaushik, Aliza Alam represented the GNCTD.
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Writ Petition(s)(Civil) No(s). 875/2022
Date : 05-12-2022 This petition was called on for hearing today.
For Petitioner(s) Petitioner-in-person
For Respondent(s)
UPON hearing the Petitioner-in-person
the Court made the following
What is prayed in the present Writ Petition, under Article 32
of the Constitution of India, by way of PIL, reads as under:-
“(a) The petitioner therefore, request the Hon’ble Court
to take his public interest plea and to consider all
aspects of the information provided in this PIL and to
issue guidelines to the opposite parties so that there
will be no religious differences among them and that
they all believe that they are the children of one God
and now they accept Sri Sri Thakur Anukul Chandra as
Paramatma (Supreme spirit)”
India is a secular country and the petitioner cannot be
permitted to pray that the citizen of India may accept Sri Sri
Thakur Anukul Chandra as Paramatma (Supreme spirit).
This is not a genuine Public Interest Litigation at all and
this seems to be a Publicity Interest Litigation and that too
thoroughly mis-conceived Writ Petition, which deserves to be
dismissed and is, accordingly, dismissed with exemplary costs,
which is quantified at Rs.1,00,000/- (One Lakh only), to be
deposited with the Registry of this Court within a period of four
weeks from today. Pending applications stand disposed of.
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The Supreme Court Monday rejected a public interest litigation (PIL) petition seeking a declaration that founder of Satsang, Sree Sree Thakur Anukulchandra be declared "parmatma'.
A bench of Justices MR Shah and CT Ravikumar said that India is a secular country and such prayers cannot be made by way of PILs. It, therefore, imposed costs of ₹1 lakh on the petitioner for filing the "misconceived" plea.
"Hum yeh lecture nahi sunne aaye hain. Hum secular desh hain. PIL ka koi matlab hota hain. (Not here to listen to a lecture, we are a secular country. PIL has a meaning)," said Justice Shah.
The petition was filed by one Upendra Nath Dalai.
The Court said that while the petitioner is free to consider Sree Sree Thakur Anukulchandra as his God, the same cannot be imposed on others.
"India is a secular country and such prayers cannot be made in a PIL. Dismissed," the Court ordered.
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FIR no. 152/2021
PS Connaught Place
State Vs. Ashwani Upadhyay
U/s 188/268/270/153 A IPC,
S. 3 Epidemic Diseases Act &
In view of the directions of the Hon'ble High Court of Delhi vide order No.
439-470/RG/DHC-2021 dated 22.07.2021, matters are being taken up through video
conferencing using Cisco Webex. It is certified that there was no interruption during the
proceeding and all the parties were heard.
Present:Sh. Sikhar Mahajan, Ld. APP for the state.
Sh. Vikas Singh, Sh. Sidharth Luthra, Sh. Pradeep Rai, Sh. Gopal Shankar
Narayan, Ld. Senior Advocates for the applicant/accused.
Sh. Ashwani Dubey, Sh. Ardhendu Mauli Kumar Prasad, Sh. Nirmal
Amabastha, Sh. Manish Kumar, Sh. Rudra Vikram Singh, Sh. Alakh Alok Srivastav, Sh.
Jalaj Aggarwal, Sh. Karunesh Kumar Shukla, Sh. Himashu Pathak and Sh. Chandan Kumar
Singh, Ms. Shubhangi Jain, Sh. Pankaj Singhal, Ld. Counsels for the applicant/accused.
This is an application for grant of bail to the applicant/accused under Section
437 CrPC (inadvertenetly mentioned as Section 439 CrPC).
Reply has been filed by the IO wherein the IO has vehemnetly opposed the
bail application on the ground that release of applicant/accused will be prejudicial in
maintaing public tranquility and will create further serious law and order situation. There
are chances that the applicant/accused will create communal disharmony.
At the very outset, all the offences alleged against the accused, except for
offence u/s 153A IPC, are bailable in nature hence, the hearing in the present application is
confined to non-bailable offence alleged against the accused.
Sh. Vikas Singh, Ld. Senior Advocate on behalf of applicant/accused submits
that this is blatant abuse of power by the Police. Police cannot apprehend anyone
indiscriminately. It is submitted that it is an admitted fact that the applicant/accused was
present on the spot in the morning and not at the time of alleged incident relating to hate
speech committed u/s 153A IPC. The applicant/accused has left the spot at or around 11.00
am and reached his home around 12:15 pm in Ghaziabad . Ld. Senior Advocate submits that
he has seen the video personally and on perusal of the said video it can be seen that the hate
speech was made after it rained however, the applicant/accused has left the spot even before
the rain started. Ld. Senior Advocate submits that all the offences except for the offence u/s
153 A IPC are bailable. For the purpose of Section 153A IPC, it is imperative that the hate
speech should have been made at the instance of a person or the person should have actively
participated in making such remarks which promotes enmity between different groups. It is
submitted by Ld. Senior Advocate that had the accused been present on the spot at the time
of commission of the alleged offence, the accused should have been arrested then and there.
Even otherwise, the FIR should have been registered soon after the alleged offence was
committed. However perusal of the FIR clearly shows that the FIR was registered belatedly.
Ld. Senior Advocate further submits that the mandate of Section 41A CrPC is
violated as neither any notice was served upon the applicant/accused nor any justification
for arrest of the applicant/accused is provided as clearly, all the offences alleged are having
imprisonment of less than 7 years. Ld. Senior Advocate submits that applicant/accused is
being illegally incarcerated and therefore bail should be granted to the applicant/accused
forthwith.
Ld. Senior Advocate Sh. Sidharth Luthra supporting the contention of Ld.
Senior Advocate Sh. Vikas Singh, submits that it is a clear case of non-compliance of the
Arnesh Kumar judgment which is applicable in the present case . Ld. Senior Advocate has
placed reliance upon the order passed by Hon'ble Supreme Court of India in Munnavar vs
State of MP vide order dated 06.02.2021 wherein the petitioner was released on bail,
although interim, due to non-compliance of Arnesh Kumar judgement . Ld. Senior Advocate
further submits that the case of the applicant/accused is distinct from the other accused
person. Ld. Senior Advocate further submits that applicant/accused may be a part of the
meeting at particular point of time but that does not imply that he shall be blamed for each
and every thing that may have happen in his absence. Hence, the applicant/acccused be
released.
Countering the sbmissions made on behalf of applicant/accused, Ld. APP for
the state has pointed out two main points of concern as far as the applicant is concerned.
Firstly, Ld. APP for the state points out towards the gravity of offence in the terms of
senstivity of the issue. In this regard, Ld. APP for the state submits that this is the time of a
Pandemic wherein large gatherings are not being allowed to prevent spread of Covid-19
Pandemic, the gathering was held without any permission, gathering was held near
Parliament during the ongoing Moonsoon Session. It was indeed a senstitive time and place
when there was no need to gather, hence the applicant/accused has clearly violated against
the guidlines issued to curb the Covid-19 Pandemic and Section 144 CrPC which was
applicable at that place during that time. Pointing towards the second point of concern, Ld.
APP for the state submits that it is a celar case of involvement of applicant/accused as the
event was organized at the behest of the applicant/accused. Ld. APP for the state further
submits that the gathering was an unlawful assembly in which the applicant/accused
actively participated knowing the common object of that unlawful assembly.
Rebutting the submissions made by Ld. Senior Advocate of the
applicant/accused, Ld. APP for the state submits that there is no delay in registration of FIR
as it was only after scrutinising the material available, applicant/accused was arrested. Ld.
APP for the state further submits that the IO concerned has acted with due diligence in
exercise of power conferred to him u/s 41 Cr.PC. Ld. APP for the state further submits that
if the applicant/accused was not involved in the commision of offences, he should have
acted in a bonafide manner to inform the concerned police officials regarding commision of
such offences. To crack nexus and find out all the persons involved in alleged offence, Ld.
APP for the state submits that custody of applicant/accused is required for proper
investigation of the case.
In rebuttal, Ld. Senior Advocate Sh. Vikas Singh submits that the applicant
accused is not denying that he was not present at the gathering however, the
applicant/accused was neither present on the spot at the time of commision of alleged hate
speech. Ld. Senior Advocate submits that applicant/accused has credible standing and he is
a reputed member of the Bar. He is not going to abscond. The arrest of the applicant/accused
is againt the rule of law. No involvement of the accused can be seen from the FIR or from
the reply of the IO. Even in the viral videos applicant/accused cannot be seen.
Ld. Senior Advocate Sh. Sidharth Luthra countering the submissions of Ld. APP for
the state, placing reliance upon the para 12 of the Arnesh Kumar judgment and submits that
the non bailable offence u/s 153A IPC has maximum imprisonment of three years and
clearly action of the police officials in apprehending the applicant/accused is against the rule
of law. It is no doubt that the IO has decretion to arrest the applicant/accused u/s 41 CrPC
however, such powers had to be exercised caustiously and in light of the law of the land
including the judgments passed by Hon'ble Supreme Court of India and Hon'ble High
Courts. Ld. Senior Advocate submits that reliance of Section of 149 IPC by Ld. APP is
misplaced as it is only relevant when a person participate in an unlawful assembly knowing
the common object of such assembly. It is no where on record that the applicant/accused
was present on the spot at the time of commision of offence u/s 153 A IPC. Ld. Senior
Advocate, countering the submission of Ld. APP for the state with regard to failure of the
applicant/accused in acting in a bonafide manner, refers to Section 39 CrPC wherein the
duty to inform about the commision of offence no where enumerates the offences alleged
against the applicant/accused. It is not even the case of a man at the wrong place.
Sh. Ardhendu Mauli, Ld. Counsel for the applicant/accused has placed reliance
upon guidlines passed by the Hon'ble Supreme Court of India in Suo Motu Writ Petition
(civil) No. 1 of 2020 IN RE : Contagion of Covid-19 Virus in Prisons to prevent the over
crowding of prisons during this pandemic time.
Ld. Senior Advoate Sh. Gopal Shankarnarayan submits that the viral videos
are now in public domain and no where it can be seen that applicant/accused was present
when the present offence u/s 153A IPC was committed by the applicant/accused. It is further
submitted that there is no credible information available with the investigating agency to
apprehend. Name of the applicant/accused is being misused by some miscreants due to
which the agency had apprehend the applicant/accused. Ld. Senior Advocate submits that no
reason has been provided by the investing agency why custody of applicant/accused is
required when everything allegedly incriminating is available in public domain no where
pointing towards the applicant/accused. Ld. Senior Advocate submits that mere presence of
the applicant/accused at one point of time during the gathering cannot be attributed to the
whole chain of events happened in active absence of the applicant/accused.
Sh. Ashwani Dubey, Ld. Counsel assisting Ld. Senior Advocates and for the
applicant/accused submits that the applicated has acted in bonafide manner and has duly
offered the investigating agency for his assistance in the investigation. In this regard, the
applicant/accused has also sent e-mails to the Commissioner of Police, Delhi. Ld. Counsel
submits that the applicant/accused has deep roots in the society.
Heard both sides at length. Perused the record.
The Hon'ble Supreme Court in Prahlad Singh Bhati vs NCT Delhi AIR
2001 SC 1444 held that while granting bail, the court has to keep in mind the nature of
accusations, the nature of evidence in support thereof, the severity of the punishment which
conviction will entail, the character, behaviour, means and standing of the accused,
circumstances which are peculiar to the accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable apprehension of the witnesses being
tampered with, the larger interests of the public or State and similar other considerations. It
has also to be kept in mind that for the purposes of granting the bail the legislature has used
the words “reasonable grounds for believing” instead of “the evidence” which means the
court dealing with the grant of bail can only satisfy it as to whether there is a genuine case
against the accused and that the prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to have the evidence establishing the
guilt of the accused beyond reasonable doubt.
Indeed it is difficult time for everyone during this pandemic and serious view
should be taken against those who violates the guidelines/restrictions to curb this pandemic,
yet the offences as far as breach of these guidelines are concerned are bailable in nature,
which can be dealt by the Trial Court on merits.
As far as the offence u/s 153A IPC is concerned except for mere assertion,
there is nothing on record to show that the alleged hate speech to promote enmity between
different groups was done in the presence or at the behest of the applicant/accused. Even
during hearing, this Court has inquired from Ld. APP and so far, there is nothing against the
accused in the alleged video. It is not the case where there chances that applicant/accused
will abscond. Conspiracy is no doubt hatched behind closed doors and that the investigation
in the present matter is at nascent stage that however, does not imply that liberty of a citizen
be curtailed on mere assertions and apprehension. In B.P Sharma Vs. Union of India,
(2003) 7 SCC 309, Hon'ble Brijesh Kumar, J. observed that "it is always better, nay,
necessary too that the freedom as guaranteed under the Constitution should be allowed to be
enjoyed by the citizens to the fullest-possible extent without putting shackles of avoidable
coweb of rules and regulations putting check and restrictions in the enjoyment of such
freedoms."
As a cumulative effect of the aforesaid discussion this Court is of the
considered opinion that the applicant/accused deserves to be released on bail subject to
filing of personal bond of Rs. 50,000/- with one surety in the like amount and subject to
the following conditions:-
1) The applicant shall continue to cooperate with the ongoing investigations and shall join
the investigation as and when summoned by the IO;
2) The applicant shall not leave the country without the permission of the court;
3) The applicant shall scrupulously appear at each and every stage of the proceedings before
concerned Court so as not to cause any obstruction or delay to its progress.
Needless to say that nothing observed herein shall have any bearing upon the
merits of the case.
In view of the above, present application stands disposed of. Proceedings be
sent to the Court concerned through proper channel.
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A Delhi court on Wednesday granted bail to advocate Ashwini Upadhyay arrested in connection with anti-muslim speeches made at Jantar Mantar on August 8.
Metropolitan Magistrate Udbhav Kumar Jain granted the relief to Upadhyay, noting as far as the allegation under Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) of the Indian Penal Code goes, except for a "mere assertion" there was nothing on record to show that the alleged hate speech to promote enmity between different groups was done in the presence or at the behest of the applicant/accused.
The order stated, "Indeed it is difficult time for everyone during this pandemic and serious view should be taken against those who violates the guidelines/restrictions to curb this pandemic, yet the offences as far as breach of these guidelines are concerned are bailable in nature, which can be dealt by the trial court on merits."
"Even during hearing, this Court has inquired from Ld. APP and so far, there is nothing against the accused in the alleged video. It is not the case where there chances that applicant/accused will abscond. Conspiracy is no doubt hatched behind closed doors and that the investigation in the present matter is at nascent stage that however, does not imply that liberty of a citizen be curtailed on mere assertions and apprehension," it observed.
As a result, Upadhyay was allowed bail subject to filing of personal bond of ₹50,000 with one surety in the like amount and subject to riders. He was directed to continue in cooperating with the ongoing investigations and join probe as and when summoned by the investigating officer.
"The applicant shall not leave the country without the permission of the court. He shall scrupulously appear at each and every stage of the proceedings before Court concerned so as not to cause any obstruction or delay to its progress," the order further directed.
The court clarified that its observations shall not have any bearing on the case's merits.
Defending Upadhyay, Senior Advocate Vikas Singh had argued that he would be the last person to defend those who make such speeches.
"I will be last person to defend someone making such a hate speech. The country will get completely divided if we allow such speeches," Singh said.
The Supreme Court Bar Association President was one of four Senior Advocates to represent Upadhyay in the case. The others were Sidharth Luthra, Pradeep Rai and Gopal Sankaranarayanan. Singh told the Court,
Sr Advocate Vikas Singh: I will be last person to defend someone making such a hate speech. The country will get completely divided if we allow such speeches. pic.twitter.com/zXAkBnIcbs
"We are all appearing not only because [he is a] respected advocate, this kind of arrest can't be permitted...it is clear form the video that it is at 5pm...Police can’t indiscriminately arrest anybody when there is no plausible suspicion also. Suppose allegation was that it was in his presence, I wouldn’t have defended him..."
Singh pointed out that it was clear that the videos, which went viral, were of 5pm as it could see that it it had already rained.
Luthra added that there was distinction in role and a person who left the sport couldn't be said to have a common intention with people, who subsequently committed the alleged offences. "If a man has left the spot, you can’t claim a common intention against him. The CDR is with the police. They should have verified if he had left the spot before the untoward incident before arresting him," he stressed.
Public Prosecutor Shikher countered,
"We have to see gravity of the offence, date, pandemic time...At this time you are gathering so many people...You see the area...Parliament Session was going on..."
He went on to add,
"It was an unlawful assembly.. All these offences were committed. Section 149 is involved. Even if in his presence, somebody has given hate speech..."
According to the prosecutor, it was to be prima facie seen whether the accused was present at the relevant time and if the hate speech was made on behalf of the accused. "He didn’t bother to bring this to the notice of police agencies. No bona fide there also..," he argued.
"His version is that he has left. But it is a matter of investigation. There is no evidence to that affect. The case is at a nascent stage, and it has to be investigated if there is a nexus.. Aiding hai ki nahi hai (if there is aiding)...," the prosecutor submitted.
Singh rebutted saying the prosecutor had himself stated that he analysis of the video was yet to be done. He said without question, persons making such a hate speech as demonstrated in the video, should be apprehended.
However, Upadhyay's arrested was stated to be illegal. "We feel it's against the rule of law. Anyone can be picked up then, if that's the law. But it is not," argued Singh.
Sankaranarayanan then contended,
"Mere presence, even if such a presence is admitted, will not be sufficient... He wasn’t there. It is for the prosecution to show he was present."
The senior lawyer pointed out that all the evidence that the police was looking for was available online.
"Videos are there, individuals are available. All of us know Ashwini personally and that's why we are all here. The event took place after him.. If I start making communal slogans would your honour be responsible.. Would the PP be responsible?" he questioned.
The Court ultimately reserved the matter for orders.
On Tuesday, Upadhyay and five others were arrested by Delhi Police in relation to the anti-Muslim sloganeering that took place at his rally “against colonial-era laws” in the country held on August 8.
The rally set up by Upadhyay saw hundreds of people in attendance calling for a march under the ‘Bharat Jodo Movement’. However, a video had later surfaced with a few people calling for killing of Muslims in India.
That same day, Upadhyay was remanded to two days of judicial custody, following which he sought bail. Upadhyay’s counsel contended that he never had any intention to promote hatred or enmity within different religious communities. He questioned the fact that the matter falls within Section 153A of IPC while arguing that the accused was not even present at the venue rather he had left at around 12.15 in the afternoon and therefore, there was no ground for judicial custody remand.
Upadhyay had denied knowledge and told Bar & Bench that the communal sloganeering were given after his event wrapped up. "The rally was from 10 to 12 pm. Whereas the sloganeering happened around 5 pm. Our rally was outside park hotel but the slogans were given near Parliament house police station. I do not know who they were," he said.
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1.The present criminal appeals arise out of the common
Judgment & Order dated 13th December 2021 passed by the
Aurangabad Bench of the Bombay High Court in
Confirmation Case No. 1 of 2019 and Criminal Appeal Nos.
808 and 810 of 2019 whereby the High Court confirmed the
death penalty and life imprisonment imposed upon the
Accused No. 1-Digambar (Appellant in Criminal Appeal Nos.
221-222/2022) and Accused No. 2-Mohan (Appellant in
Criminal Appeal No. 280/2023) respectively, for conviction
for the offence punishable under Section 302 of the Indian
Penal Code, 1860 (hereinafter referred to as “IPC”) read with
Section 34 IPC.
2.These Criminal Appeals arise from conspectus of facts
adumbrated as follows:
2.1.Pooja (Deceased) was married to one Jethiba
Hashanna Varshewar on 10th June 2017. Pooja was
having a love affair with one Govind (Deceased) for
the past 5 years. The Appellant/Accused- Digambar
is the brother of Pooja.
2.2.On 22nd July 2017, Pooja left her matrimonial home
without informing anybody. Thus, her husband had
lodged a missing report at Bhokar Police Station on
the same day.
2.3.The Accused Digambar, having knowledge of the love
affair of Pooja and Govind, was suspicious that Pooja
might have gone with Govind. Thus, on 22nd July
2017 itself, he called Govind on his mobile
whereupon Govind informed him that Pooja was not
with him and he can do whatever he wants. The
Accused Digambar searched for Pooja at various
places but she was not to be found. During the
search, he called Govind twice or thrice and each
time Govind informed him that Pooja was not with
him. The Accused Digambar tried calling Govind in
the night, but his phone was switched off and
Digambar took this as an indication that Pooja was
with him.
2.4.Next day, i.e., on 23rd July 2017, the Accused
Digambar along with co-accused Mohan went to the
house of the sister of Govind. In the said house, he
found Govind as well as Pooja. The Accused
Digambar assured Pooja that he will get her married
to Govind since they both are in love for the past 5
years. Pooja was convinced with Digambar’s
assurance but she denied to go without Govind.
Thus, the Accused Digambar and Mohan along with
Pooja and Govind left that place on motorcycle.
2.5.Near Village Beltaroda, the Accused Digambar asked
Pooja and Govind to wait for some time. The Accused
Digambar visited his Aunt’s house and picked up a
sickle from there and concealed it near his waist.
After coming back to the spot where Pooja and
Govind were waiting for him, the Accused took the
duo along with himself to his village. En route, he
stopped his motorcycle near a canal and tried to
convince them, but they were not ready to listen. At
that time the Accused Digambar took out the sickle
and assaulted on Govind’s throat. When Pooja tried
to get hold of him, he removed the handle of the
sickle and thrust the backside of the sickle in Pooja’s
neck. These attacks by the Accused Digambar
resulted in death of the duo.
2.6.The Accused then rushed to the Bhokar Police
Station and himself lodged the FIR No. 404/2007
that he has committed the aforesaid crime.
2.7.Pursuant to the investigation, chargesheet was filed
and trial was conducted by the court of Additional
Sessions Judge at Bhokar, Nanded. The Trial Court,
vide its judgment dated 17th July 2019, convicted the
Accused Digambar for the offences punishable under
Sections 302/201/120-B of IPC and sentenced him
to death penalty while the Accused Mohan was
convicted for the offences punishable under Sections
302/201/34/120-B of IPC and sentenced to undergo
life imprisonment.
2.8.The Accused Digambar had filed Criminal Appeal No.
810/2019 and the Accused Mohan had filed Criminal
Appeal No. 808/2019 before the High Court.
Confirmation Case No. 1/2019 was also lodged for
confirmation of the death sentence imposed upon the
Accused Digambar.
2.9.Vide the impugned judgment, the High Court
confirmed the death sentence imposed upon the
Accused Digambar and dismissed the Criminal
Appeals.
3.We have heard Shri Sudhanshu S. Choudhari and Shri
Subodh S. Patil, learned counsel appearing on behalf of the
appellants and Shri Chinmoy Khaladkar, learned counsel
appearing on behalf of the State.
4.Shri Choudhari submits that both the Trial Court and
the High Court have grossly erred in convicting the appellant.
He submits that the confessional statement made by the
appellant Digambar to the Police could not have been relied
on for resting the conviction. He submits that apart from the
extra-judicial confession, there is absolutely no evidence to
convict the appellants. He further submits that it is
improbable that both the appellants and the two deceased
travelled on one motor-cycle. Learned counsel submits that
only on the basis of the evidence of last seen together,
without there being any corroboration, the conviction could
not have been recorded by the Trial Court.
5.Shri Subodh Patil also submits that the gap between
the appellants being last seen in the company of the
deceased and the deceased found to be dead is long enough
to give benefit of doubt to the appellants.
6.Shri Choudhari submits that, in any case, the present
case is not a fit case for sentencing the appellant-Digambar
to death penalty. He submits that the present case cannot
be considered to be a ‘rarest of rare’ case so as to award
death penalty.
7.Shri Chinmoy Khaladkar, on the contrary, submits that
the Trial Court as well as the High Court have rightly found
that the appellants had committed the ghastly murder and
awarded a capital sentence. He submits that the present
case is nothing but a case of honour killing. It is submitted
that since the accused were opposed to the deceased Pooja
having an affair with deceased Govind, the accused have
assaulted and killed the deceased. Learned counsel submits
that applying both the crime and the criminal tests,
interference with the capital punishment would not be
warranted. He submits that the appellant-Digambar is not
an illiterate person. He is an educated person and was also
using a smartphone. It is submitted that the conduct of an
educated person committing such a heinous crime cannot be
pardoned. He, therefore, prays for dismissal of the appeals.
8.With the assistance of the learned counsel, we have
scrutinized the material evidence on record.
9.The prosecution case mainly rests on the circumstances
of the accused being lastly seen in the company of the
deceased, and the death of the deceased occurring shortly
thereafter.
10.Insofar as the last seen theory is concerned, the
prosecution mainly relies on the evidence of P.W.5-Shankar
and P.W.6-Santosh.
11.P.W.5-Shankar is brother-in-law of deceased Govind.
He stated in his evidence that on 22nd July 2017 at about
6.00 a.m., Govind told him that Pooja called him on mobile
phone. Pooja told Govind that she ran away to Nanded from
her house and she called Govind at Nanded. He stated that,
at about 6.00 p.m., Pooja came to his house. Thereafter, on
the cell phone of his niece Punam, he contacted his brother-
in-law Santosh (P.W.6) and told him that Pooja had come to
his house. He stated that he tried to convince Pooja that her
conduct was not proper and that he would call her father on
mobile. However, Pooja told him that he should not tell
anybody because she would not leave Govind as she was in
love with Govind since the last 5 years.
12.P.W.5-Shankar further stated in his evidence that on
23rd July 2017, in the morning at about 8.00 to 9.00 a.m.,
both the accused persons came to his house. Digambar told
him that you know as to what type of person I am. When he
asked about Pooja, P.W.5-Shankar told him that she was in
the house. P.W.5-Shankar further stated that Digambar told
him that he was aware that Pooja and Govind had a love
affair since the last 5 years and, therefore, their marriage
would be performed. P.W.5-Shankar told Digambar that
such type of marriage was not possible because Pooja is
already married. On this, Digambar told him that Govind
was his friend since childhood and thus he would get him
married to his sister, Pooja. Pooja told Govind that Digambar
is her brother and she had faith on him that he would
perform her marriage with Govind. P.W.5-Shankar stated
that Pooja told that she will not leave Govind. At that point
of time, accused No.2-Mohan abused them. Thereafter, both
the accused and both the deceased had left on the
motorcycle. Accused Mohan was driving the motorcycle,
Pooja and Govind were sitting in between and Digambar was
sitting behind them. He stated that after some time, he and
his brother-in-law Santosh (P.W.6) proceeded towards
Mudhol by autorickshaw. He called Govind on his cell phone
and asked him where he was. Govind told him that he was
ahead of village Beltaroda. He asked Govind to give cell
phone to Digambar. However, Digambar switched off the cell
phone without talking with him. He further stated that, at
that time, his brother-in-law Santosh received phone call
from Bhokar Police Station on his mobile, who informed him
that his brother Govind and Pooja were killed in between
village Divshi to village Nigva.
13.Though P.W.5-Shankar was thoroughly cross-examined,
his statement, insofar as the accused and the deceased
leaving together from the house of the said witness, is not
shattered.
14.Similar is the evidence of P.W.6-Santosh, who is the
brother of the deceased.
15.P.W.7-Sudam Kishanrao Thakre was a Police Head
Constable, who was attached to the Bhokar Police Station at
the relevant time. He, in his examination-in-chief, has stated
that, on 23rd July 2017, at 1415 hours, he received phone
call form LPC Mundhe, informing that a murder was
committed of one girl and boy in between Divsi to Nigva. He
went there and saw that one girl was injured and when he
inquired her about the boy, then she pointed her finger
towards the river. He searched near river and he found one
body soaked up in blood. He submitted that he intended to
take the injured girl to the hospital. However, she
succumbed to the injuries at the spot.
16.P.W.8-Sushilkumar Pralhad Chavan was the Police
Sub-Inspector, who recorded the confessional statement of
the accused-Digambar and conducted the investigation.
17.Though the extra-judicial confession of the accused-
Digambar cannot be taken into consideration, however, his
conduct of going to the Police Station and surrendering
before the Police can certainly be taken into consideration in
view of Section 8 of the Indian Evidence Act, 1872
(hereinafter referred to as “the Indian Evidence Act”)
18.It could thus be seen that the prosecution has
established that the deceased and the accused persons left
the house of P.W.5-Shankar together and soon thereafter the
death of the deceased person had occurred. As such, the
burden to show as to what happened after leaving the house
would shift on the accused in view of Section 106 of the
Indian Evidence Act. It is to be noted that what transpired
after the accused left along with the deceased, is only within
the knowledge of the accused. However, the accused persons
have utterly failed to discharge the said burden.
19.In that view of the matter, we find that no interference
would be warranted with the concurrent findings of the Trial
Court and the High Court that the accused appellants are
guilty of offence punishable under Section 302 of the IPC.
20.However, the only question that arises is, as to whether
the present case could be considered as one to be ‘rarest of
the rare’ so as to award death penalty.
21.In the case of State of Uttar Pradesh v. Krishna
Master and others1, the accused had killed six persons and
wiped of almost the whole family on the ground of saving the
honour of the family. In the said case, though this Court
found that the same would fall within the ‘rarest of the rare’
case, it commuted the capital sentence to the one to rigorous
imprisonment for life and fine of Rs.25,000/- each.
22.This Court in the case of Gandi Doddabasappa alias
Gandhi Basavaraj v. State of Karnataka2, wherein the
accused had committed murder of his daughter, who was in
the advanced stage of pregnancy, though upheld the
conviction of the accused under Section 302 IPC, but
commuted the sentence from capital punishment to
imprisonment for life.
23.There are certain other precedents of this Court as to
which cases would fall under the category of ‘rarest of rare’
case.
24.In the case of Prakash Dhawal Khairnar (Patil) v.
State of Maharashtra3, the appellant was a Senior
Scientific Assistant. He wiped out his brother’s entire family.
This Court found that this was done by him on account of
frustration as his brother was not partitioning the alleged
joint property. Though this Court held that the crime was
heinous and brutal, but it could not be considered to be
‘rarest of rare’ case. This Court held that, it is difficult to
hold that appellant is a menace to the society and that there
is no reason to believe that he cannot be reformed or
rehabilitated.
25.In the case of Mohinder Singh v. State of Punjab4,
this Court observed thus:
“25. It is well-settled law that awarding
of life sentence is a rule and death is an
exception. The application of the “rarest
of rare” cases principle is dependent
upon and differs from case to case.
However, the principles laid down and
reiterated in various decisions of this
Court show that in a deliberately
planned crime, executed meticulously in
a diabolic manner, exhibiting inhuman
conduct in a ghastly manner, touching
the conscience of everyone and thereby
disturbing the moral fibre of the society,
would call for imposition of the capital
punishment in order to ensure that it
acts as a deterrent. While we are
convinced that the case of the
prosecution based on the evidence
adduced confirms the commission of
offence by the appellant, however, we are
of the considered opinion that still the
case does not fall within the four corners
of the “rarest of rare” cases.
26.In the said case, the accused had committed murder of
his wife and daughter. However, this Court found that the
said could not be considered to be ‘rarest of rare’ case.
27.Recently, this Court, in the case of Sundar @
Sundarrajan v State by Inspector of Police5, held that
‘rarest of rare’ doctrine does not require that in such a case
only death sentence has to be imposed. This Court held that,
while considering as to whether the death sentence is to be
inflicted or not, the Court will have to consider not only the
grave nature of crime but also as to whether there was a
possibility of reformation of a criminal.
28.In the present case, both the appellants do not have any
criminal antecedents. The appellant-Digambar, who has
been sentenced to capital punishment, was a young boy of
about 25 years at the time of the incident. The medical
evidence would further reveal that the appellants have not
acted in a brutal manner, inasmuch as there is only single
injury inflicted on both the deceased. As such, we find that
the present case cannot be considered to be ‘rarest of rare’
5 Review Petition (Criminal) Nos. 159-160 of 2013 in Criminal Appeal
Nos. 300-301 of 2011 dated 21st March 2023
case. In any case, the report of the Probation Officer, Nanded
as well as the Superintendent, Nashik Road Central Prison
would show that the appellant-Digambar has been found to
be well-behaved, helping and a person with leadership
qualities. He is not a person with criminal mindset and
criminal records.
29.The report of the Probation Officer, Nanded further
states thus:
“The Sarpanch and the people in the
village stated that, the inter-caste
marriage of Deceased friend Govind and
Deceased sister Pooja was putting the
social pressure and being angry about it,
the subjected incidence was happened in
sudden provocation by Digambar.
Overall, everyone who were present
during the Home Inquiry gave the good
opinion about the behavior of Digambar
baburao Dasre.”
30.We are, therefore, of the considered view that the High
Court as well as the Trial Court erred in holding that the
present case would fall under the ‘rarest of rare’ case to
award capital punishment to appellant-Digambar. We are,
therefore, inclined to partly allow the appeals of appellant-
Digambar. However, insofar as the appellant-Mohan, who
has been awarded a sentence of life imprisonment, is
concerned, we find that there is no reason to interfere.
31.In the result, we pass the following order:
(i)Criminal Appeal filed by appellant-Mohan is
dismissed.
(ii)Criminal Appeals filed by appellant-Digambar are
partly allowed. Though the conviction of the
appellant-Digambar under Section 302 IPC is
maintained, the sentence of capital punishment is
commuted to life imprisonment.
32.Pending application(s), if any, shall stand disposed of.
|
The Supreme Court on Friday commuted the death sentence awarded to one Digambar who was found guilty of murdering his married sister and her lover in 2017 [Digambar v. State of Maharashtra].
A three-judge bench of Justices BR Gavai, Vikram Nath and Sanjay Karol said that the convict was not a person with criminal mindset or criminal records.
"Appellant-Digambar has been found to be well-behaved, helping and a person with leadership qualities. He is not a person with criminal mindset and criminal records," the Court observed.
The Court, therefore, upheld the conviction but set aside the death penalty and commuted it to life imprisonment.
The Court was hearing an appeal challenging the 2021 decision of the Bombay High Court which had confirmed the death penalty of the appellant and life imprisonment imposed upon the appellant and one Mohan respectively, for conviction under Section 302 (murder) of the Indian Penal Code (IPC).
By way of background, the deceased-Pooja had got married in June 2017. However, she was having a love affair with one Govind for the past 5 years. In the last of July 2017, she left her matrimonial home. The present appellant-Digambar, who was the brother of Pooja, was suspicious that she must have gone with her lover, Govind. Therefore, he tried to enquire from Govind about the presence of Pooja but he denied the same.
One night when Govind's phone was switched off, the two convicts when to Govind's plce and found him there along with Pooja. The appellant convinced Pooja that he will help her marry Govind and, thereafter, all the four left the place on a motorcycle.
After reaching his aunt's place, the appellant asked Pooja and Govind to wait for some time and returned while hiding a sickle. Before the fatal move, the accused-appellant tried to convince Pooja and Govind against the relationship but the refused to heed him.
The appellant then took out the sickle and attacked both Pooja and Govind resulting in the death of the two.
The trial court convicted both Digambar and Mohan. Digambar was sentenced to death while Mohan was given life imprisonment. The High Court also confirmed the same.
Aggrieved, Digambar moved the present appeal before the apex court.
The apex court found that the prosecution had established that the deceased duo and the accused persons left together and soon thereafter the death of the two had occurred.
"The burden to show as to what happened after leaving the house would shift on the accused in view of Section 106 of the Indian Evidence Act. It is to be noted that what transpired after the accused left along with the deceased, is only within the knowledge of the accused. However, the accused persons have utterly failed to discharge the said burden," the Court observed.
Hence, it upheld the conviction.
However, as regards the validity of the death sentence awarded by the trial court and confirmed by the High Court, the top court was of the view that the present case will not fall under the 'rarest of rare case' category.
In this regard, the Court noted that the appellant had not have any criminal antecedent and was just 25 years old at the time of commission of the crime.
"The medical evidence would further reveal that the appellants have not acted in a brutal manner, inasmuch as there is only single injury inflicted on both the deceased. As such, we find that the present case cannot be considered to be ‘rarest of rare’ case," the Court said.
It also noted that the report submitted by the Probation officer also showed that Digambar was well-behaved, helping and a person with leadership qualities, and he is not a person with criminal mindset and criminal records.
Therefore, the Court commuted the death penalty to life imprisonment.
As regards Mohan, the Court confirmed the life imprisonment awarded to him.
Advocates Sudhanshu S Choudhari and Subodh S Patil appeared for the appellants.
Advocate Chinmoy Khaladkar appeared for the State.
|
ivil Appeal No. 5055 of 1989.
From the Judgment and Order dated 27.2.1989 of the Allahabad High Court in C.M.W.P. No. 12322 of 1984.
Satish Chandra, E.C. Agarwala, Atul Sharma, Ms. Purnima Bhatt and V.K. Pandita for the Appellants.
G.L. Sanghi, B.D. Agarwal, G. Ganesh, K.L. John and Ms. Shobha Dikshit for the Respondents.
531 The Judgment of the Court was delivered by SHARMA, J.
This case arises out of a proceeding under the Indian Stamp Act, 1899.
Special leave is granted.
A dispute between the appellants and the respondent No. 1, who are members of a family, was referred to an arbitrator, who made an award on 9.10.1973, and filed the same within a few days before the civil court for making it a rule of the court.
On objection by the present appellants, the prayer was rejected on 18.3.1976 and the order was confirmed by the High Court on 3.7.1981 in a regular first appeal.
An application for special leave was dismissed by this Court on 18.4.1983 and a prayer for review was also rejected.
It is stated on behalf of the appellants that in the meantime the respondent No.1 applied before the Collec tor for summoning the award and realising the duty and penalty.
A copy of the award was annexed to the application.
The respondent 's prayer was opposed by the appellants but was allowed by the Collector on 15.7.1983; and, on a request made to the civil court for sending the award, the civil court asked the office to do so.
The appellants moved the Chief Controlling Revenue Authority under section 56 of the Indian Stamp Act (hereinafter referred to as the Act) against the Collector 's order dated 15.7.1983.
The Authority in exercise of its revisional power set aside the impugned order of the Collector, inter alia, on the ground of lack of jurisdiction.
The respondent challenged this judgment before the High Court in a writ case which was allowed by the impugned judgment dated 27.2.1989.
The matter was remanded to the Collector to decide the case afresh in the light of the observations.
The High Court also doubted the power of the Chief Controlling Revenue Authority to entertain the appellants ' application under section 56 of the Act.
This judg ment is the subject matter of the present appeal.
Mr. Satish Chander, the learned counsel for the appellants, contended that there cannot be any doubt about the power of the Chief Controlling Authority to correct an erroneous order of the Collector.
Emphasis was laid on the language of section 56 suggesting its wide application.
The learned counsel was also right in arguing that the Authority is not only vested with jurisdiction but has the duty to quash an order passed by the Collector purporting to be under Chapters IV and V of the Act by exercising power beyond his jurisdiction.
To hold otherwise will lead to an absurd situation where a subordinate authority makes an order beyond its jurisdiction, which will have to be suf fered on account of its unassailability before a higher 532 authority.
This Court in Janardan Reddy and Others vs The State of Hyderabad and Others, ; , after refer ring to a number of decisions, observed that it is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the court to which it would lie if its order was with jurisdiction.
We, therefore, agree with the appellants that the Chief Controlling Revenue Authority had full power to interfere with the Collector 's order, provided it was found to be erroneous.
Their difficulty, however, is that we do not find any defect in the Collector directing to take steps for the realisation of the stamp duty.
It was contended on behalf of the appellants that the respondent No. 1 had no locus standi to move the Collector for impounding the award and sub section (1) of section 33 of the Act had no application.
The learned counsel proceeded to say that in the circumstances it has to be assumed that the Collector acted suo motu under sub section (4) of the said section and since the proviso to sub section (5) directs that no action under sub section (4) shall be taken after a period of four years from the date of execution of the instrument, the Collector had no authority to pass the impugned order after about a decade.
In reply, Mr. G.L. Sanghi urged that the order for impounding the award was passed by the civil court itself on 18.3.1976, and the further orders of the Collector dated 22.7.1983 and of the civil court dated 27.8.1983 were passed merely by way of implementing the same.
The learned counsel is right in relying upon the concluding portion of the order of the civil court dated 18.3.1976 directing the impounding of the award and sending it to the Collector for necessary action.
It is true that further steps in pursuance of this judgment were not taken promptly and it was the respondent No. 1 who drew the attention to this aspect, but it cannot be legiti mately suggested that as the reminder for implementing the order came from the respondent, who was motivated by a desire to salvage the situation to his advantage, further steps could not be taken.
There is no question of limitation arising in this situation and it cannot be said that what had to be done promptly in 1976 would not be done later.
The orders of the Collector dated 15.7.1983 and 22.7.1983 must, therefore, in the circumstances, be held to have been passed as the follow up steps in pursuance of the civil court 's direction dated 18.3.1976, and no valid objection can be taken against them.
The Collector, therefore, shall have to proceed further for realisation of the escaped duty.
It was next contended that in any event the Collector did not 533 have the power to enquire into the correct valuation of the property which was the subject matter of the award.
Reliance was placed on the observations in Himalaya House Co. Ltd. Bombay vs Chief Controlling Revenue Authority, There is no merit in this point either.
The case comes from Uttar Pradesh where express provisions have been made by the insertion of section 47 A, authorising the Collector to examine the correctness of the valuation.
Lastly Mr. Satish Chandra argued that the respondent No. 1 is taking keen interest in the present proceeding in an attempt to illegally re open the question of making the award a rule of the court, which stood concluded by the impugned judgment of the High Court and the order of this Court dismissing the special leave petition therefrom and he can not be allowed to do so.
The reply of Mr. Sanghi has been that this aspect is not relevant in the present pro ceeding for realisation of the duty and need not be decided at this stage.
His stand is that an award which is not made rule of the court is not a useless piece of paper and can be of some use, say by way of defence in a suit.
He said that this question will have to be considered if and when the occasion arises.
Having regard to the limited scope of the present proceeding, we agree with Mr. Sanghi that we may not go into this aspect in the present case, but we would clari fy the position that on the strength of the present judgment it will not be open to the respondent to urge that the effect of the High Court decision dated 8.7.1981 and the orders of this Court dismissing the special leave petition therefrom and later the review application has disappeared or has got modified.
The appeal is disposed of in the above terms, but the parties are directed to bear their own costs of this Court.
G.N. Appeal disposed of.
|
A dispute between the appellants and respondent No. 1 was referred to an arbitrator who made an award and filed it before the civil court.
On objection by the appellants, the prayer for making the award a rule of the court was reject ed.
On appeal, the High Court confirmed the same.
This Court refused special leave and a petition for review was also dismissed.
Meanwhile, respondent No. 1 applied to the Collector for summoning the award and for realising the escaped duty and penalty.
The application was allowed.
The appellants moved the Chief Controlling Revenue Authority under Section 56 of the Indian Stamp Act, 1899 and the authority set aside the Collector 's order.
The respondents challenged the said order in a writ petition before the High Court which allowed the same and remanded the case to the Collector for deciding it afresh.
Aggrieved, the appellants filed this appeal by special leave, contending inter alia, that; (a) Respondent No. 1 had no locus standi to move the Collector for impounding the award: (b) the Collector had no authority to pass the im pugned order after a decade; and (c) the Collector did not have the power to enquire into the correct valuation of the property which was subject matter of the award.
Disposing of the appeal, this Court, HELD: 1.1 It is well settled that if a court acts with out jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e. an appeal would lie to the court to which it would lie if its order was with jurisdiction.
[532A] 530 1.2 There is no question of limitation arising and it cannot be said that what had to be done promptly in 1976 could not be done later.
The orders of the Collector dated 15.7.1983 and 22.7.1983 were passed as the follow up steps in pursuance of the civil court 's direction dated 18.3.76 and no valid objection can be taken against them.
The Col lector, therefore, shall have to proceed further for reali sation of the escaped duty.
[532G] 1.3 The Chief Controlling Revenue Authority had full power to interfere with the Collector 's order, provided it was found to be erroneous.
But this Court does not find any defect in the Collector directing taking of steps for reali sation of the stamp duty.
[532B] Janardan Reddy and Ors.
vs State of Hyderabad and Ors.
, ; , relied on.
The instant case comes from Uttar Pradesh where express provisions have been made by the insertion of Sec tion 47 A, authorising the Collector to examine the correct ness of the valuation.
Hence the Collector had the power to enquire into the valuation of the property which was the subject matter of the award.
[533A B] Himalaya House Co. Ltd., Bombay vs Chief Controlling Revenue Authority, , referred to.
It is clarified that on the strength of the present judgment it will not be open to the respondent to urge that the effect of the High Court decision dated 8.7.1981 and the order of this Court dismissing the special leave petition therefrom and later the review application have disappeared or have got modified.
[533D E]
|
[Arising out of SLP (Crl.) No. 9777 Of 2022]
1. Leave granted.
2. The appeal arises out of the final judgment and order
dated 23rd May 2022 passed by the High Court of Himachal
Pradesh at Shimla in Criminal Appeal No. 46 of 2018 ,
thereby upholding the judgment and order dated 1st
December 2017 passed by the Additional Sessions Judge -II,
Solan (hereinafter referred to as ‘Trial Court’ ), vide which the
present appellant – accused Nirmala Devi was convicted for
the offences punishable under Section s 302 and 201 of the
Indian Penal Code , 1860 (hereinafter referred to as ‘ IPC’) and
sentenced to undergo imprisonment for life .
3. When the matter first came up before us, we had issued
notice vide orde r dated 7th November 2022, for the limited
issue of converting the sentence from Section 302 IPC to
either part I or II of Section 304 IPC. Vide the same order , we
had directed the appellant – accused to be released on bail
on such terms and conditions as may be imposed by the
Trial Court.
4. As such, the short issue before us is as to whether, in
the facts and circumstances of the present case, the sentence
imposed upon the appellant – accused under Sect ion 302 IPC
can be converted into part I or II of Section 304 of IPC.
5. The facts as may be necessary to answer the aforesaid
issue, shorn of unnecessary details are as follows:
5.1 On 26th May 2015 a t about 10:30 AM , the
appellant – accused telephonically info rmed the
police that her husband Mast Ram, the deceased ,
had been missing from the previous night . On the
same day a t 7:00 o’clock in the morning , the
appellant – accused had found her husband lying
in the courtyard of the house stained with blood.
Thereafter, she along with her children, daughter
Priyanka (PW -1) and son Vinod - accused No. 2,
took his body to a room in the house, where he
died at about 10:00 AM.
5.2 After the said phone call , a police party reached
the spot , examined the scene of the incident , took
photographs, and transported the body of the
deceased to hospital for medical examination and
post-mortem.
5.3 On the very same day , one Ghungriya Ram,
nephew of the deceased, who was working in the
Home Guard and was on official leave, received a
phone call at about 1:30 PM informing him that
his maternal uncle Mast Ram had died in the
morning and his dead body was at Civil Hospital,
Arki. He rushed to the hospital whereupon he saw
the dead body of his uncle in the mortuary . He
noticed injury marks on the head, arms and legs
of the body .
5.4 Thereafter , he filed a complaint on the same day ,
stating therein that his aunt, i.e. the appellant –
accused and her son Vinod had strained relations
with the deceased, and they often used to quarrel.
On the basis of the complaint , an FIR No. 36 of
2015 was registered at Police Station Arki, Dist.
Solan (H.P) . The post -mortem was conducted on
27th May 2015, and on the same day , both the
accused , i.e. Nirmala Devi and Vinod were
arrested.
5.5 During their interrogation , both the accused
reveal ed that the ir relations with the deceased
were poor , and that the deceased Mast Ram was of
a quarrelsome nature and used to beat them
regularly . On account of such behavior of the
deceased, they w ere residing in separate houses.
On the fateful day , Priyanka , the deceased’s
daughter , had demanded some money from her
father to enable her to attend a National Cadet
Corps Camp, but on the refusal of the deceased to
provide the money, an altercation had ensued
between the appellant – accused and deceased.
During the course of the quarrel, the appellant –
accused gave several blows with the stick to the
deceased . As a result , Mast Ram died.
5.6 It was also disclosed during interrogation that
both the accused had taken off their cloth es after
the incident and concealed them in a carry bag
under the bed box. Thereafter, appellant – accused
led the police to the bed box in her house from
where the carry box was recovered containing a
lady shirt Ext. P -10, salwar Ext. P -11, a male
lower Ext. P -12 and vest Ext. P -13, which were
taken into possession in the presence of two police
officers. As per the disclosure statement of the
accused No. 2 - Vinod, the danda used to inflict
blows was recovered from the gali where the house
of the accused was situated .
5.7 The post -mortem and viscera report indicated that
the deceased had died due to hemorrhag ic shock
and oedema of brain. Thereafter, on completion of
the investigation , a chargesheet was filed against
the accused under Section s 302 and 201 of the
IPC read with Section 34 of the IPC . The accus ed
plead ed not guilty, and the trial commenced
thereafter .
5.8 The Trial Court, vide judgment and order dated 1st
December 2017, in Sessions Trial No. 2 -AK/7 of
2016/2015, convicted the appellant – accused
under Section s 302 and 201 of the IPC and
sentenced her to undergo imprisonment for life ,
whereas Vinod – accused No. 2 was acquitted from
all the charges levelled against him .
5.9 Thereafter , an appeal was preferred by the
appellant – accused before the High Court which
was dismissed vide the impugned judgment and
order .
6. We have heard Mr. Aditya Dhawan, learned counsel
appearing for the appellant and Mr. Karan Kapur, learned
counsel appearing for the respondent State.
7. Since there is no dispute with regard to homicidal death
of the deceased, we do not find it necessary to refer to the
medical evidence.
8. As stated hereinabove, the short question that falls for
consideration is as to whether the conviction under Section
302 of the IPC would be required to be main tained , or
whether the case would fall under a lesser offence.
9. Recently, this Bench, speaking through Justice J.B.
Pardiwala, in the case of Anbazhagan v. State represented
by the Inspector of Police1, delivered on 20th July 2023,
has succinctly explained the fine distinction between the
cases that would fall under Section 302, Section 304 Part -I
and Section 304 Part -II of the IPC. In the present case, the
conviction under Section 302 IPC has been passed by the
trial court and main tained by the High Court solely on the
basis of testimony of Priyanka (PW -1).
10. Priyanka (PW -1) is the daughter of the deceased and the
appellant. The trial court and the High Court have
question ed the veracity of the evidence of Priyanka (PW -1). If
the te stimony of the prosecution witnesses is found to be
unreliable , then the benefit ought to have been in favour of
the deceased.
1 2023 SCC OnLine SC 857
11. In any case, even after a careful scrutiny of the
testimony of Priyanka (PW -1), we find that it will be difficult
to sustain conv iction under Section 302 of the IPC.
12. It is not in dispute that the relations between the
deceased on one hand, and the other members of the family
consisting of the appellant, wife of the deceased, his son, the
original accused , and Priyanka (PW -1) daughte r of the
deceased, on the other hand, were not cordial. If the
testimony of PW -1 is read as a whole, it would reveal that her
father and mother often quarreled . PW -1, in her evidence,
has stated that the deceased Mast Ram fractured the leg of
her mother during one of such quarrels, and a criminal case
was also pending against him for the said offence. Her
testimony would show that her father was residing separately
in the old house whereas the three other members were
residing separately. It is stated that, on the date of the
incident, she got up at about 07.00 o’clock in the morning
and asked her father to give Rs.500/ - as she wanted to take
part in the NCC Camp. Her father refused to provide the said
amount. PW -1 narrated the said incident to her mother. Her
mother asked her father to give the said amount to her.
Even then, the father did not provide the said amount.
Thereafter, a quarrel started between her father and mother.
Her m other gave blows with a stick on the head and legs of
her father. Her father sustained injuries , which led to his
death .
13. It is to be noted that the weapon used in the crime is a
stick which was lying in the house , and which, by no means,
can be called a d eadly weapon . Therefore, the possibility of
the appellant causing the death of the deceased while being
deprived of the power of self -control, due to the provocation
on account of the deceased not agreeing to pay Rs.500/ - to
PW-1, cannot be ruled out.
14. We further find that it will also be necessary to take into
consideration the background in which the offence took
place. T here used to be persistent quarrel s between the
deceased and the appellant. In one of such incident s, the leg
of the appellant was f ractured by the deceased, and a case
was already pending against him for the said offence .
15. In our considered view, the appellant is entitled to
benefit of doubt , inasmuch as the offence committed shall
fall under Exception I of Section 300 IPC. Thus, t he
conviction under Section 302 IPC needs to be altered into
Part-I of Section 304 IPC.
16. In the result, the appeal is allowed. The conviction of
the appellant is altered from Section 302 of the IPC to Part -I
of Section 304 of the IPC. The appellant has already been
incarcerated for a period of almost 9 years, and , therefore, we
find that t he sentence already undergone would serve the
ends of justice . The bail bonds of the appellant shall also
stand discharged.
17. Pending application(s), if any, shall stand disposed of.
|
The Supreme Court on Tuesday modified a murder conviction to that of culpable homicide not amounting to murder after noting that the weapon of attack was a stick, which the Court opined was not a deadly weapon. [Nirmala Devi vs State of Himachal Pradesh]
A bench of Justices BR Gavai and JB Pardiwala was dealing with a case where a woman was accused of beating her husband to death during a quarrel.
"The weapon used in the crime is a stick which was lying in the house, and which, by no means, can be called a deadly weapon. Therefore, the possibility of the appellant causing the death of the deceased while being deprived of the power of self-control, due to the provocation on account of the deceased not agreeing to pay Rs.500/- to PW-1, cannot be ruled out," the top court observed.
The Court proceeded to reduce the jail sentence of the wife from life imprisonment to the period of imprisonment already undergone (nine years).
In May 2022, the Himachal Pradesh High Court order had upheld her murder conviction. This verdict was challenged by the woman (appellant) before the Supreme Court.
The appellant was stated to have beat her husband with a stick after her daughter complained that he did not give her ₹500 to join a National Cadet Corps (NCC) camp.
The Court noted that the relations in the family were not cordial, and that the couple often quarreled, sometimes violently. On one such occasion, the Court observed that the deceased man had fractured the leg of the appellant-wife.
As such, the Court concluded that there was a possibility that the appellant had been provoked before she attacked her husband with a stick, leading to his death.
"There used to be persistent quarrels between the deceased and the appellant. In one of such incidents, the leg of the appellant was fractured by the deceased, and a case was already pending against him for the said offence. In our considered view, the appellant is entitled to benefit of doubt, inasmuch as the offence committed shall fall under Exception I of Section 300 IPC. Thus, the conviction under Section 302 IPC needs to be altered into Part-I of Section 304 IPC," the top court stated.
The appeal was, therefore, allowed, and the appellant's conviction was modified from murder to culpable homicide.
Advocate Aditya Dhawan represented the appellant, one Nirmala Devi. Advocate Karan Kapur appeared for the Himachal Pradesh government.
|
(Arising out of impugned final judgment and order dated 01-07-2023
in CRLMA No. 14435/2022 passed by the High Court of Gujarat at
Ahmedabad)
Date : 01-07-2023 This petition was called on for hearing today.
For Petitioner(s) Mr. C.U. Singh, Sr. Adv.
Ms. Aparna Bhat, AOR
Ms. Karishma Maria, Adv.
Mr. Nizam Pasha, Adv.
For Respondent(s) Mr. Tushar Mehta, SG
Ms. Swati Ghildiyal, AOR
Mr. Kanu Agrwal, Adv.
Mr. Madhav Sinhal,Adv.
UPON hearing the counsel the Court made the following
1.Heard Mr. C.U. Singh, learned senior counsel appearing for
the petitioner and Shri Tushar Mehta, learned Solicitor General
of India appearing for the respondent/caveator.
2.This matter has come up before this Court since the Bench
of two learned Judges of this Court, vide the order passed of
even date, have differed on the question as to whether the
petitioner was entitled to interim protection or not.
3.After the order was passed by the Division Bench, the
Hon’ble the Chief Justice of India has constituted a Bench
consisting three of us to decide the issue, on which the
learned two Judges have differed.
4.This special leave petition challenges the order passed by
the learned Single Judge of the High Court today at 11:00 a.m.,
rejecting the criminal miscellaneous application for grant of
bail filed by the petitioner.
5.We are not inclined to go into the merits of the matter.
At this stage, we are only concerned with that part of the
order wherein the request made by the petitioner for stay of
the order for a period of one month was rejected.
6.In ordinary circumstances, we would not have considered
such a request. However, it is to be noted that after the FIR
was registered against the petitioner on 25.06.2022 and the
petitioner was arrested, this Court considering the application
for grant of interim bail had granted the same on certain
conditions, vide order dated 02.09.2022.
7.One of the factors that weighed with this Court was that
the petitioner was a lady and as such entitled to special
protection under Section 437 Cr.P.C.
8.We find that, taking into consideration this fact, the
learned Single Judge ought to have granted at least some
protection so that the petitioner has sufficient time to
challenge the order passed by the learned Single Judge before
this Court.
9.In that view of the matter, without considering anything
on merits of the matter, finding that the learned Single Judge
was not correct in granting even some protection, we grant stay
of the impugned order passed by the High Court for a period of
one week from today.
10.In the meantime, the Registrar (Judicial) shall obtain
orders from Hon’ble the Chief Justice of India and place the
matter before an appropriate Bench for considering the Special
Leave Petition.
11.Needless to state that the parties would be at liberty to
file any pleading, if they so desire, and also place on record
the relevant documents.
(Arising out of impugned final judgment and order dated 01-07-2023
in CRLMA No. 14435/2022 passed by the High Court Of Gujarat at
Ahmedabad)
Date : 01-07-2023 This petition was called on for hearing today.
For Petitioner(s) Mr. C.U. Singh, Sr. Adv.
Ms. Aparna Bhat, AOR
Ms. Karishma Maria, Adv.
Mr. Nizam Pasha, Adv.
For Respondent(s) Mr. Tushar Mehta, SG
Ms. Swati Ghildiyal, AOR
Mr. Kanu Agrwal, Adv.
UPON hearing the counsel the Court made the following
After having heard this Special Leave Petition for
sometime, we are unable to agree while deciding the prayer
for interim relief. Therefore, it will be appropriate if
under the orders of the Hon’ble the Chief Justice of India,
this petition is placed before the appropriate larger Bench.
The Registrar (Judicial) is directed to place this order
immediately before the Hon’ble the Chief Justice of India.
Mr. C.U. Singh, learned Senior Advocate appearing for
the petitioner submits that the matter may be placed before
the Hon’ble the Chief Justice of India at the earliest so that
the Bench can be constituted at the earliest. It is for the
Hon’ble the Chief Justice of India to consider that request.
|
The Supreme Court on Saturday granted interim bail to activist Teesta Setalvad for seven days in the conspiracy case related to the 2002 Gujarat riots [Teesta Setalvad v. State of Gujarat].
In the second special hearing held today, a top court Bench of Justices BR Gavai, AS Bopanna and Dipankar Datta stayed the Gujarat High Court order denying bail to Setalvad.
The Court further directed that Setalvad's appeal against the High Court order be placed before the Chief Justice of India (CJI) for hearing at length.
"We find that the learned single judge (of High Court) ought to have granted at least some protection as that he petitioner has sufficient time to challenge the order before this Court. In that view of the matter, we grant stay for one week. Registry to obtain orders from the CJI for listing before appropriate bench," the order said.
Earlier today, Setalvad had moved the Supreme Court for interim bail after the High Court directed her to surrender to the authorities immediately.
Setalvad is accused of fabricating documents to implicate higher functionaries of the then Gujarat government led by erstwhile Chief Minister Narendra Modi.
In its 127-page ruling, Gujarat High Court had held that releasing Setalvad on bail would deepen the communal polarisation in the country.
"Prima facie, this Court is of the view that, if Setalvad is enlarged on bail, it will deepen and widen the communal polarisation," the High Court had said.
Among other observations, the High Court had said that Setalvad used victims of the Godhra riots as a ladder to get a Padma Shri award and to tarnish the image of then Gujarat Chief Minister Narendra Modi in a bid to topple his government.
The plea before the Supreme Court was initially listed before a Bench of Justices AS Oka and Prashant Kumar Mishra. The two judges, were, however, unable to concur on the grant of interim relief to Setalvad.
They, therefore, referred the matter to the CJI for constitution of a larger bench to decide on the issue.
Hours later, the three-judge Bench was formed to hear the case.
Justice Datta opined that a judgment of the High court was a one on "liberty" and that "too on a Saturday."
Justice Gavai weighed in that when there is a difference of opinion, then the court should "lean in favour of liberty."
Justice Gavai observed that the earlier judgment of the Supreme Court by Justice AM Khanwilkar-led bench had noted that the officers probing the Gujarat riots case "should be in the dock."
Solicitor General Tushar Mehta, appearing for Gujarat government, said that should Setalvad not get any special treatment from the apex court and should be treated as any other ordinary citizen.
"Is she an extraordinary citizen?" SG Mehta asked.
To this Supreme Court stated that even an ordinary accused would get time to challenge the High Court order.
"You are a mighty Solicitor appearing for a mighty state," Justice Gavai remarked.
SG Mehta responded, "I am not a mighty Solicitor appearing for a good state."
|
W.P.(C)No. 15534 of 2023
Dated this the 23rd day of June, 2023
The father of a minor girl aged 15 years filed
this writ petition with a main prayer to terminate
the pregnancy of his daughter. It is stated that the
minor son of the petitioner impregnated her minor
daughter. I am sure that the petitioner, the father
of these minor children put his signature in this writ
petition with tears in his eyes. He and his wife has
to face this embarrassing situation not only today
but in future too. It is the duty of our society to
keep these parents close to get over from this
trauma. Nobody can blame the parents. But,Neutral Citation Number :2023:KER:35102
we the society is responsible for this. Sibling incest
may take place in the context of a family system
that does not provide a safe environment for its
members. But it may also happen because of the
lack of knowledge about safe sex. I am of the
considered opinion that the Government should
seriously think about the necessity of proper ‘sex
education’ in schools and colleges. This court
observed like this on earlier occasion also. Safe sex
education is the need of the hour to avoid these
type of embarrassment to the parents. A good
family atmosphere is necessary in the society. To
attain this, every citizen of this country should join
together without pelting stone to such unfortunate
people. The above writ petition is filed with the
following prayers:
“(i) Issue a writ of mandamus or anyNeutral Citation Number :2023:KER:35102
other appropriate writs, orders of directions
directing the respondents to terminate the
pregnancy of the victim girl in Crime
No.331/2023 of the Vazhikadavu Police Station
as expeditiously as possible;
(ii) Declare that the pregnancy would
cause serious mental injury to the minor girl
and hence the same is liable to be terminated;
(iii)Issue a writ of mandamus or any
other appropriate writs, orders of directions
directing the 8th respondent to restore the
custody of the minor girl child to her parents
forthwith;
(iv)Dispense with the filing of English
translation of Vernacular documents;
(v)Grant such other reliefs as this
Hon'ble Court may deem fit and proper in the
circumstances of the case.”[SIC]
2.When this writ petition came up for
consideration on 16.05.2023, this Court passed the
following order:
“When the matter came up before this Court
on 12.5.2023, the learned Government PleaderNeutral Citation Number :2023:KER:35102
submitted that the victim was produced before the
Medical Board on 11.05.2023. She sought for time
to produce the medical reports.
2. Today, the learned Government Pleader
makes available the medical report of the Special
Medical Board constituted by Superintendent,
Government Medical College Hospital, and the
observations in the report are extracted
hereunder:-
Opinions of the Medical Board after
Examination are
“1. Child is physically and mentally fit
for Medical Termination of Pregnancy.
2. Continuation of pregnancy is likely to
cause grave injury to the social and mental
health of the child.
3. Physical health of the child is likely to
be affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of
pregnancy there is a possibility of giving birth
to a live baby with all the problems of
prematurity. So the Medical Board has raised
concerns about the further care of the baby in
case needed.”
3. Since risk factors are involved, theNeutral Citation Number :2023:KER:35102
petitioner is to file an affidavit before this Court
undertaking to undergo the risk shown in the
report of the Medical Board. The Medical Board
shall also evaluate the possibility of saving the life
of the baby before termination of pregnancy.
Post on 19.05.2023.
Hand Over ”
3.Thereafter, when the matter came up for
consideration on 19.05.2023, this Court passed the
following order:
“The petitioner is the father of a minor girl aged
15 years and he has approached this Court,
seeking the following reliefs:
(i) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the respondents to terminate the pregnancy of
the victim girl in crime No.331/2023 of the
Vazhikadavu Police Station as expeditiously as
possible;
(ii) Declare that the pregnancy would cause
serious mental injury to the minor girl and
hence the same is liable to be terminated;
(iii) Issue a writ of mandamus or any other
appropriate writs, orders of directions directing
the 8th respondent to restore the custody ofNeutral Citation Number :2023:KER:35102
the minor girl child to her parents forthwith;
(iv) Dispense with the filing of English
translation of Vernacular documents; (v) Grant
such other reliefs as this Hon'ble Court may
deem fit and proper in the circumstances of the
case.”
2. The unfortunate situation in this case is
as follows:
The minor daughter of the petitioner got
impregnated by the son of the petitioner and as of
now the daughter is 7 months pregnant. The
prayer as above is sought in such circumstances.
3. In response to the averments contained
in the writ petition, the Medical Board after
examination, submitted a report wherein, their
opinion was expressed in the manner as follows:
“Opinions of the Medical Board after
Examination are
1. Child is physically and mentally fit for
Medical Termination of pregnancy.
2. Continuation of pregnancy is likely to cause
grave injury to the social and mental health of
the child.
3. Physical health of the child is likely to be
affected by the complication of teenage
pregnancy.
4. As she has crossed 32 weeks of pregnancy
there is a possibility of giving birth to a liveNeutral Citation Number :2023:KER:35102
baby with all the problems of prematurity. So
the Medical Board has raised concerns about
the further care of the baby in case needed.”
4. Earlier, when the matter came up for
consideration before this Court, taking note of the
eventuality as highlighted by the Medical Board as
serial No.4 above, the petitioner was directed to
submit an affidavit, undertaking to undergo the
risks as highlighted by the Medical Board. In
compliance of the aforesaid direction, an affidavit
has been submitted by the petitioner.
5. Upon perusal of the medical report, it is
evident that, the child is physically and mentally
fit for medical termination of pregnancy. It is also
stated that continuation of pregnancy is likely to
cause grave injury to the social and mental health
of the child. Considering the fact, the child is born
from his own sibling, various social and medical
complications are likely to arise. In such
circumstances, the permission as sought for by
the petitioner to terminate the pregnancy is
inevitable. However, even while addressing the
said issue and passing appropriate orders in this
regard, the possibility of giving birth to a live baby
cannot be overruled, as highlighted by the MedicalNeutral Citation Number :2023:KER:35102
Board.
6. In such circumstances, I am inclined to
allow medical termination of pregnancy of the
daughter of the petitioner, in the light of the
principles laid down by this Court in the decisions
reported in xxx v. Union of India and others
[2021(3) KLT 279] and xxx v. Union of India
and others [2022 KHC 2022]. Therefore, it is
ordered that, respondents 4 and 5 are directed to
take urgent steps to medically terminate the
pregnancy of minor daughter of the petitioner
without any delay. After completion of the
procedure, a report in this regard shall be
submitted before this Court to enable the Court to
pass appropriate orders for addressing the further
issues that are likely to arise in this case.
Post after a week.”
4.Again when the matter came up for
consideration on 02.06.2023, this Court passed the
following order:
“The petitioner is free to submit an
application before the 8th respondent seeking
restoration of the child in accordance to Sec. 40 ofNeutral Citation Number :2023:KER:35102
Juvenile Justice (Care and Protection of Children)
Act, 2015 by tomorrow. If such an application is
received, the 8th respondent will consider the same
and take a decision in it, in consultation with the
doctors, within one week from the date of receipt
of the application. The order passed by the 8th
respondent will be produced before this Court.
2. Regarding the discharge of the petitioner's
child, the Police authorities can do the needful in
consultation with the medical authorities. The
custody of the new born child of the minor girl also
will be decided by the 8th respondent in accordance
to Sec.35 of the Juvenile Justice Act.
3. Post on 09.06.2023.
Issue a copy of this order today itself. ”
5.Today when the matter came up for
consideration, both sides submitted that, as per
order dated 03.06.2023, the Child Welfare
Committee, Malappuram handed over the minor
mother to her uncle. The order is produced before
this Court. It will be better to extract the relevant
portion of the above order:Neutral Citation Number :2023:KER:35102
6.As far as the new born child is concerned,
the Child Welfare Committee informed that the new
born child is surrendered to the committee and a
consequential order is also passed. The relevant
portion of the order No.CWC/M/1547/2022 dated
07.06.2023 passed by the Child Welfare
Committee, Malappuram is extracted here under:
7.In the light of the above orders, I think
no further order is necessary. The Child WelfareNeutral Citation Number :2023:KER:35102
Committee will take necessary consequential steps
in accordance with law. The protection of the new
born child is the duty of the state. These types of
causalities shall not be there in our society in
future. The embarrassment of the parents and also
the victim girl cannot even be imagined. As I said
earlier, this happened because of the lack of
knowledge about the safe sex. Minor children are in
front of ‘internet’ and ‘google search’. There is no
guidance to the children. The Government should
constitute a committee, if necessary, to study the
issue and should think about including the ‘safe sex
education’ in the curriculum of schools and
colleges.
The Registry will forward a copy of this
judgment to the Chief Secretary, State of Kerala for
taking appropriate action in the light of the factsNeutral Citation Number :2023:KER:35102
and circumstances of this case.
With the above observation, this writ petition
is disposed of.
DM JUDGENeutral Citation Number :2023:KER:35102
|
The Kerala High Court recently urged the State government to seriously consider the need for including safe sex education in the curriculum of schools and colleges.
The Court made the observation while disposing of a petition filed by a father to medically terminate the pregnancy of his minor daughter who was impregnated by her own brother.
Justice PV Kunhikrishnan underscored that safe sex education is the need of the hour to avoid this type of embarrassment for the parents.
“Nobody can blame the parents. But we the society are responsible for this. Sibling incest may occur in a family system that does not provide a safe environment for its members. But it may also happen because of the lack of knowledge about safe sex. I am of the considered opinion that the Government should seriously think about the necessity of proper ‘sex education’ in schools and colleges ... A good family atmosphere is necessary for the society. To attain this, every citizen of this country should join together without pelting stones at such unfortunate people," the judgment stated.
The Court has called for the constitution of a committee, if necessary, to study the issue of including ‘safe sex education’ in the curriculum of schools and colleges.
“As I said earlier, this happened because of the lack of knowledge about safe sex. Minor children are in front of ‘internet’ and ‘Google search’. There is no guidance for the children," the Court highlighted.
A copy of the order was also directed to be forwarded to the Chief Secretary, State of Kerala for necessary action.
Earlier, the Court had initially allowed the medical termination of the minor girl's seven-month pregnancy. However, the Court was informed in the following hearing that the minor girl had delivered a child.
Thereafter, the Court directed the Child Welfare Committee to take a decision on the custody of the new born child in accordance with the Juvenile Justice Act.
The Child Welfare Committee in turn informed the Court that the newborn child was surrendered to it and that the minor girl was handed over to her uncle.
Thus, the Court observed that no more orders were needed in the case and disposed of the matter, while stressing that such incidents should not occur in the State again.
“In light of the above orders, I think no further order is necessary. The Child Welfare Committee will take necessary consequential steps in accordance with the law. The protection of the newborn child is the duty of the state. These types of causalities shall not be there in our society in the future. The embarrassment of the parents and the victim girl cannot be imagined," the Court observed.
|
Civil Appellate Jurisdiction
Present:
The Hon’ble Justice Tapabrata Chakraborty
The Hon’ble Justice Partha Sarathi Chatterjee
FA 109 of 2018
IA No. CAN 2 of 2019 (Old No. CAN 2764 of 2019) [Disposed of]
Sri Sekhar Kumar Roy
versus
Smt. Lila Roy & Another
For the Appellant : Mr. Ayan Poddar,
Mr. Soham Dutta,
Mr. Kamran Alam.
For the Respondents : Mr. Sagnik Chatterjee,
Mr. Sayan Mukherjee.
Hearing is concluded on : 8th May, 2023.
Judgment On : 7th June, 2023.
Partha Sarathi Chatterjee, J.
1. Judgment and decree dated 22nd December, 2016 passed by the
learned Civil Judge, S enior Division, Sealdah in Title Suit no. 109 of 2011,
whereby the suit for declaration, partition and permanent injunction
instituted by the plaintiff/appellant herein was dismissed , have been called
in question in the present appeal.
2. One Sekhar Kumar Roy, t he plaintiff/appellan t (in short, Sekhar)
presented the plaint contending inter alia that his father, Sailen dra Kumar
Roy, since deceased ( in short, Sailendra) purchased the suit property by
one registered deed of sale in 1 969 in ‘benam’ of his w ife, Smt . Lila Roy,
defendant no. 1, since deceas ed (in short, Lila). Lila, who happened to be a
house -wife, was a mere name lender and she did not contribute any single
farthing towards consideration money since she had no independent income
at the relevant time of purchase of the suit property. Sailendra got the
building plan sanctioned in the name of Lila and by spending money from
his own fun d constructe d two -storied building thereon. He thereafter died
intestate on 29. 5.1999 leaving behind his widow , Lila, the plaintiff as his
son and one daughter, the defendant no. 2 , namely Sumita Saha (in short,
Sumita) , who according to Sectio n 8 of Hindu Succession Act have inherited
1/3rd share each of the suit property and Sekhar stayed in the suit property
till 11 .5.20 11 and since then , he started leaving apart. Sekhar thereafter
approached the defendants to effect partition of the suit property by met es
and bounds but the defendants refuted the claim of partition of Sekhar and
hence, the suit.
3. Records reveal that bo th the defendants defended the suit by filin g
separate written statements. Crux of the defence taken by Lila and
defendant no. 2 in their written statement is as follows:
i) Lila purchas ed the suit property from her ‘s tridhan’ property.
She asserted that she got the building plan sanctioned in her
own name and then constructed two -storied building on the suit
land from her own fund;
ii) She further claimed therein that according to legislative fiat
incorporated in Section 3 of Benami Transaction (Prohibition)
Act, 1988 (hereinafter referred to as the 1988 Act ), she became
the absolute owner of the suit property and same was duly
mutated in her name and deed of conveyance dated 20.1.197 0
had never been challenged either by Sekhar or by her husband
at any point of t ime and mere payment of requisi te
consideration money does not , ipso facto , prove benami
transac tion;
iii) She claimed that Section 8 of Hindu Succession Act, 1955 has
got no application in the present lis and she emphatically
denied that Sekhar has acquired 1 /3rd share in the suit
property;
iv) She lamented that Sekhar abandoned her in May, 2011 and
since his marriage, Sekhar subjected her to mental and physical
torture and she used to pass her days taking financial
assistance from her daughter, the defendan t no.2 and by
execut ing one will , which was registered on 4.9.2011, she
bequeathed the suit property in favour of Sumita;
4. Upon pleadings of t he respective parties, the learned C ourt below
framed as many as four issues . In corroboration of the facts depicted i n the
plaint, Sekhar adduced his oral testimony but he did not tender any
document whereas to len d support to their case projected in written
statement, both the defendants deposed and produced some documents
which were admitted in evidence as Ext. A to E.
5. Aggrieved by the judgment and decree whereby the suit was
dismissed, Sekhar preferred the present appeal contending, inter alia, that
the learned C ourt below ought to have considered that Lila happened to be
a mere house -wife and she had no independen t income and hence, she was
a mere name lender and Sailendra, his father purchased the land and
constructed a structure thereon for the benefit s of his family members and
learned C ourt below ought to have considered that Lila in her evidence
admitted that she was not engaged in any profession throughout her life and
Sailendra was the sole bread -earner of her family and defendants failed to
prove that Lila paid the consideration money to purchase the land and Lila
incurred expenses for construction of the b uilding standing thereon.
6. Mr. Poddar , learned Advocate representing Sekhar, the appellant
herein submits that Lila claimed that she purchased the suit property and
constructe d a building thereon from her ‘s tridhan’ properties but no
particulars of ‘stridhan’ properties have been disc losed and Lila did not
disclose wherefrom she acquired the ‘s tridhan’ properties and she did not
disclose the value of her ‘s tridhan’ properties. He contends that from the
evidence of Lila it is graphically clear that she was a mere house -wife and
she had no independent income of her own whereas Sailendra had a
business of soap and oil and that Sailendra was the only earning member of
the family at the relevant time of purchase of the suit property. Accor ding to
Mr. Poddar the learned C ourt below should have considered whether the
story that Lila purchased the suit property from her own fund is probable or
not. He asserts that the defendants failed to prove that suit prope rty was
purchased from Lila’s ‘stridhan’ properties and hence, C ourt should have
decreed the suit. He submits that cavil between the parties should be given
a clear burial by declaring share of Sekhar and by ordering partition of the
suit property. To bolster his submission, he placed reliance upon the
judgmen ts delivered in cases of Union of India –vs- Moksh Builders And
Financiers Ltd. & Ors. reported in (1977) 1 SCC 60 , Pulin Behari Addy –vs-
Debendra Nath Addy reported in (1981) 1 CHN (CAL) 531 , Dr. Prasanta
Kumar Das –vs- Susanta Kumar Das & Ors. reported in (2017) 1 CHN (CAL)
7. In response, Mr. Chatterjee, learned Advocate app earing for the
respondents submits that the suit property was purchased in 1970 and
Sailendra died in 1999. Sekh ar dragged Lila, his mother, aged about 85
years , in Court. Lila deposed in 2016 regarding the suit property which was
purchased almost 46 years back. Hence, it is not expected that Lila would
preserve all the documents and proofs relating to payment of consideration
money and expenses borne for construction of buil ding. He informed the
Court that Lila has gifted the suit property in favour of her daughter in 2015
by dint of registered deed of gift and thereafter Lila died in 2019.
8. Mr. Chatterjee further contends that Lila paid taxes to the
Corporation and drawi ng our attention to the evidence of the parties, he
contends that Sekhar himself admitted that h e did not look after her
mother . He submits that appellant has been making desperate attempt to
shift the burden upon the defendants but it is burden of the pla intiff to
prove that Sailendra paid the consideration money and incurred the
expenses for construction of the structure.
9. Mr. Chatterjee further submits that plaintiff has failed to prove that
Sailendra had a motive to create benami in the name of Lila a nd plaintiff did
not bring any evidence to prove that Sailendra had sufficient money to
finance Lila for purchasing the suit property and hence, the learned C ourt
below has rightly refused to decree the suit. He contends th at from the
evidence it is eviden t that after marriage, Lila came to possess jewellery and
valuable articles and from such ‘stridhan ’ articles, Lila purchased the suit
property and constructed the building. To strengthen his submission he
placed reliance upon a judgment delivered in case of Valliammal –vs-
Subramanian & Ors. reported in (2004)7 SCC 233 .
10. In reply, Mr. Poddar submits that question of onus has not been
prope rly appreciated by the learned C ourt below. According to him, when
both the parties have adduced their respective e vidence, question of burden
of proof loses its significance. Burden lies upon Lila to prove her source
wherefrom she collected consideration money and expenses for construction
of building since it is demonstrable from the evidence that she had no
independ ent income. He submits that Lila lost his father at her age of 2
years and she was brought up by her maternal uncle and hence, the story
that she came to possess jewellery and valuable articles before and at the
time of her marriage has no leg to stand on.
11. Crucial question which is to be answered in the present appeal is
whether the transaction i.e. the purchase of suit property under registered
deed of sale dated 20.01.1970 by Lila is benami transaction.
12. Benami Transaction (Prohibition) Act, 1988 d efines the
expression, ‘benami transaction’ and equipped the appropriate authority
with powers to acquire benami property. Provisions of three sections being
Section s 3, 5 & 8 of the 1988 Act , which was initially a 9 -section legislation,
came into force w ith effect from 5.9.1988 whereas the remaining provisions
thereof came into force from the date being 19.9.1988. Section 3 being a
prohibitory legislation cannot have retrospective operation but the Section
2(a) of the Act which is a pi ece of declaratory legislation can have its
application irrespective of its date or duration. So, definition of the
expression ‘benami transaction’ can be borrowed from Section 2(a) of the
1988 Act in respect of the transaction held prior to promulgation of the said
Act. As defined in Section 2(a) of the Act ‘benami transaction’ means any
transaction in which property is transferred to one person for a
consideration paid or provided by any other person. A transaction must,
therefore, be benami irrespective of its date or dura tion.
13. In India, two kinds of benami transactions ar e generally
recognized. Where a person buys a property with his own money but in the
name of another person without any intention to benefit such other person,
the transaction is called benami . In that case, the transferee holds the
property for the benefit of the person who has contributed the purchase
money, and he is the real owner. The second case which is loosely termed as
a benami transaction is a case where a person who is the owner of the
proper ty executes a conveyance in favour of another without the intention of
transferring the title to the property thereunder. In this case, the transferor
continues to be the real o wner. [ See, the judgment delivered in the cases of
Bhim Singh – vs- Kan Singh , reported in (1980) 3 SCC 72 and Pulin Behari
Addy (supra) ].
14. However, t here is a presumption in law that the person who
purchases the property is the owner of the same and such presumption can
be displaced only by pleading and successfully proving that the person
whose name appears in the document is not the real owner, but only a
benami and heavy burden lies on the person who pleads that recorded
owner is mere name -lender.
15. Now, coming to the case at hand, it can be argued that to hold
the subject t ransaction as benami transaction, it is to be proved by the
principle of preponderance of probability that although the suit property was
purchased in name of Lila but the consideration money was paid or provided
by her husband and not by Lila.
16. Indisp utably, subject deed of sale was executed and registered on
20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee
was mere name -lender and Sekhar adduced his oral testimony only and he
did not produce any document whereas Lila depose d in 2016 and adduced
her oral accounts which found support from the evidence of DW -2 and Lila
had produced all the documents relating to suit property.
17. During course of hearing , both the appellant and the respondent s
advanced their arguments on the is sue relating to ‘burden of proof’ . So,
main question centred around the present appeal is whether it was Sekhar
who had to discharge the burden to prove that the subject sale transaction
was benami transaction or it was Lil a who was to prove that she purc hased
the suit property from own fund or ‘stridhan ’ properties detailing the source
of such fund and disclosing every details of payment of consideration
money.
18. The question relating to burden of proof has been set at rest in th e
judgment of Jaydayal P oddar ( Deceased) thr. Lrs. –vs. Mst. Bibi Hazra
reported in AIR 1974 SC 171 in which the Hon’ble Apex Court ruled as
follows:
“It is well settled that the burden of proving that a particular sale
is benami and the apparent purchaser is not the real owner , always
rests on the person asserting it to be so. This burden has to be strictly
discharged by adducing legal evidence of a definite character which
would either directly prove the fact or benami or establish
circumstances unerringly and reasonably raisi ng an inference of that
fact. The essence of a benami is the intention of the party or parties
concerned; and not unoften such intention is shrouded in a thick veil
which cannot be easily pierced through. But such difficulties do not
relieve the person ass erting the transaction to be benami of any part of
the serious onus that rests on him; nor justify the acceptance of mere
conjectures or surmises, as a substitute for proof. The reason is that a
deed is a solemn document prepared and executed after conside rable
deliberation, and the person expressly shown as the purchaser in the
deed, starts with the initial presumption in his favour that the apparent
state of affairs is the real state of affairs. Though the question, whether
a particular sale is benami or not, is largely one of fact, and for
determining this question, no absolute formulae or acid test, uniformly
applicable in all situations, can be laid down; yet in weighing the
probabilities and for gathering the relevant indicia, the courts are
usually gu ided by these circumstances: (1) the source from which the
purchase money came; (2) the nature and possession of the property,
after the purchase; (3) motive, if any, for giving the transaction a benami
colour; (4) the position of the parties and the relat ionship, if any,
between the claimant and the alleged benami dar; (5) the custody of the
title-deeds after the sale and (6) the conduct of the parties concerned in
dealing with the property after the sale.”
19. In the given case, Sekhar claimed that his mother , Lila was a mere
name -lender. He deposed that at the relevant time of sale, he was not
present and he could not say the actual amount of consideration money and
he admitted that he did not verify from attesting witness, identifier etc.
whether his f ather pai d the consideration money and he admitted that his
father never claimed himself to be the real owner of the suit pro perty and he
admitted that he did not have any document to show that his father paid the
consideration money.
20. From evidence of Lila, it appears that Lila admitted that she was a
home -maker throughout her life and she had no independent income of her
own and she asserted that she purchased the suit property from her
‘stridhan ’ properties. She claimed that she herself purchased the property
selling her gold ornaments . Admittedly, Lila testified that during his stay in
the suit property, Sekhar used to behave well with her.
21. Mr. Poddar tried to convince us that since both the parties have
led evidence, question of burden of proof has lost its significance and C ourt
should pass judgment appreciating evidence let in by the parties and since,
Lila failed to disclose the particulars of her ‘stridhan ’ properties and since,
Lila admitted that she was a home -maker throughout h er life havin g no
independent income of her own , the learned Court below should have come
to the conclusion that Lila was nothing but a mere name -lender.
22. At the cost of reiteration , it may be stated that a Court is required
to bear in mind the well-settled principl es to the effect that the burden of
showing that a transfer is a benami transaction always lies on the person
who asserts it. In the Indian society, if a husband supplies the consideration
money for acquiring property in the name of his wife, such f act doe s not
necessarily imply benami transaction. S ource of money is, no doubt, an
important factor but not a decisive one. The intention of the supplier of the
consideration money is the vital fact to be proved by the party who asserts
benami . In other words, e ven if it is proved that Sailendra paid the
consideration money, the p laintiff m ust further prove that Sailendra really
intended to enjoy the full benefit of the title in him alone.
23. In the case before us, Sekhar could not bring any evidence even to
show what was amount of consideration money and how the consideration
money was paid and how the suit property was purchased and even he
could not prove who paid the consideration money. He could not produce
any document relating to the suit property. Title deed and all document s
relating to the suit property were all along in the custody of Lila and Lila a ll
along paid municipal tax and got the suit property mutated in her name and
Sekhar could not bring any evidence on record to lead any prudent man to
infer that his father had a motive to create benami in name of his mother or
Sailen dra intended to enjoy the full benefit of the title in him alone.
Judgments relied upon by the appellant in spite of having unquestionable
value of the proposition laid down the rein, shall not come in aid of the
appellant in the fact ual matrix of the case at hand.
24. As a result, we are inclined to hold that learned C ourt below has
correctly held that Sekhar has failed to discharge his burden to prove that
subject sale transacti on is benami transaction and we have not found any
wrong in the approa ch and decision of the learned C ourt below and we are
of the view that judgment and decree impugned cannot be annihilated .
25. Ex consequenti , the appeal fails. Judgment and decree impug ned
are affirmed. Parties shall bear their own cost s.
26. Let a decree be drawn up , accordingly.
27. Let a copy of this judgment along with the L CR be sent down to
the learned C ourt below forthwith.
28. Urgent Photostat copy o f this judgment, i f applied for, shall be
granted to the parties as expeditiously as possible, upon compliance o f all
formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
|
A transaction cannot be labelled a benami transaction merely because the husband bought the property in the name of the wife, the Calcutta High Court recently ruled [Sekhar Kumar Roy vs Lila Roy].
A division bench of Justices Tapabrata Chakraborty and Partha Sarathi Chatterjee said that even if it is proved that husband paid the consideration money, it has to be further proved that husband really intended to enjoy the full benefit of the title in him alone.
"In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one," the bench emphasised in its order passed on June 7.
The intention of the supplier of the consideration money is the vital fact and the same has to be proved by the party who asserts that the transaction was a benami one, the Court said.
"Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami," the Court stated.
The burden of showing that a transfer is a benami one, always lies on the person who asserts it, the bench underlined.
The bench was seized of an appeal filed by one Sekhar Kumar Roy (plaintiff), who sought partition of a two-storey house, which was constructed by his father Sailendra.
Sailendra had purchased the land on which the house stands, in the name of his wife Lila.
After her husband's death in 1999, the wife (Lila), son (Sekhar) and daughter (Sumita) all got 1/3 shares in the property.
Sekhar lived in the house till 2001 but later moved out and then sought to partition the property. However, the mother and daughter (Lila and Sumita) were not ready to accept this.
Things became worse for the family after the mother gave up her share as a gifted property to her daughter.
Sekhar then moved the Court alleging that this was a benami property.
The plaintiff alleged that his father had purchased this benami property which was given to his mother Lila.
However, the bench noted that Sekhar could not bring any evidence even to show what was amount of consideration money was and how the consideration money was paid and how the suit property was purchased.
"He could not produce any document relating to the suit property," the bench noted while dismissing the claim.
Advocates Ayan Poddar, Soham Dutta and Kamran Alam appeared for the plaintiff.
Advocates Sagnik Chatterjee and Sayan Mukherjee represented the defendants.
|
Through Mr. Vipul Lamba, Advocate
versus
Through Ms. Meenakshi Dahiya, APP for the
State with W/SI Vinod Kapoor , PS
Delhi Cantt
1. This petition under Section 482 Cr.P.C is for quashing FIR
No.275/2019 dated 30.10.2019 registered at Poli ce Station Delhi Cantt for
offences under Section 363/366/376 IPC and Section 6 of the POCSO Act.
2. Facts, in brief, leading to the instant petition are as under:
a) A missing complainant was given by one Sukhlal R/o Jhuggi
No.A -8, Kibri Palace, Delhi Cantt, s tating that his daughter
(victim/Petitioner No.2 herein) who is 16 years of age is
missing from home. It is stated that the complainant tried to
find her but was unable to find her. It is stated that one Kundan
S/o Ghanshyam (Petitioner No .1 herein), aged 21 years, who
used to reside nearby his house, has kidnapped his daughter. On
this complaint FIR No.275/2019 dated 30.10.2019 was
registered at Police Station Delhi Cantt for offences under
Section 363 IPC .
b) During the course of investigation the date of b irth of the
Victim/Petitioner No. 02 was found to be 28.12.2003 . The
victim was 16 years of age at the time of incident. Petitioner
No.1 was found to be 18 years of age at the time of incident.
c) On 10.08.2020 the mother of the Petitioner No.1 handed over
the victim/prosecutrix (Petitioner No.2 herein) to police.
Petitioner No.2 gave a statement to the Police stating that she
got married to petitioner No. 1 on 29.10.2019 in a Temple at
Mahua, U.P. However, she does not have any document s to
prove their marria ge. It was further stated by the Petitioner No.2
that she is seven months pregnant. Counselling of the victim
was done and her Medical examination was conducted on
10.08.2020 vide MLC No. 199/20 at D een Dayal Upadhayay
hospital and the v ictim was sent to N irmal Chaya shelter home.
d) On the basis of the statement of the victim and her age proof,
offences under Sections 366 & 376 IP C and Section 6 of the
POCS O Act were added. Victim's statement under Section 164
Cr.P.C. was recorded wherein she stated that she was frustrated
with the taunts of her parents and therefore she went to the
accused and they got married.
e) Petitioner No.1 was arrested on 12.08.2020 . He was granted
regular bail vide order 26.08.2020 by the learned ASJ, FTC -
POCSO Act, Patiala House Court, New Delhi.
f) On 02.09.2020 Petitioner No. 1 and Petitioner No.2 performed
formal wedding reception in presence of family and friends.
g) Charge -sheet has been filed on 11.02.2022 .
h) Petitioner No .2 delivered a baby boy on 20.10.2020.
i) Petitioner No.1 has now ap proached this Court by filing the
instant petition for quashing the abovementioned FIR on the
ground that the complainant/Respondent No.2 i.e. the father of
the victim/petitioner No.2 has accepted the marriage of
Petitioner No.1 & 2.
3. The short question whi ch arises, therefore, is whether this Court
should exercise its jurisdiction under Section 482 Cr.P.C for quashing the
FIR or not.
4. Petitioner No.1 has married Petitioner No.2/Victim. There is a child
out of the wedlock. Petitioner No.1 is 21 years of age h aving his full life
ahead of him. Petitioner No.2/Victim is only 18 years of age and is
completely dependent on the Petitioner No.1. Parents of both the sides have
accepted the marriage. This is not a case where the Petitioner No.1 has
established physical relationship forcefully and against the will of Petitioner
No.2 and fearing punishment has agreed to marry her after the filing of the
FIR. In fact Petitioner No.2 in her statement under Section 164 Cr.P.C has
categorically stated that she is in love with Petitioner No.2 and since her
parents objected to the marriage she decided to go to the Petitioner No.1 and
on her asking they got married on the very next day .
5. It is well settled that Section 482 Cr.P.C gives inherent powers to the
High Court and the pur pose of Section 482 Cr.P.C is to prevent the abuse of
the process of law and more particularly, to secure the ends of justice. The
opening words of Section 482 Cr.P.C "nothing in this Code" shows that
Section 482 Cr.P.C is an over -riding provision. These w ords indicate that
none of the provisions of the Code limits or restricts the inherent powers of
Section 482 Cr.P.C.
6. The purpose of Section 482 Cr.P.C is primarily to secure the ends of
justice. In Gian Singh v. State of Punjab , (2012) 10 SCC 303 , the Sup reme
Court has observed as under:
"55. In the very nature of its constitution, it is the
judicial obligation of the High Court to undo a wrong
in course of administration of justice or to prevent
continuation of unnecessary judicial process. This is
founde d on the legal maxim quando lex aliquid alicui
concedit, conceditur et id sine qua res ipsa esse non
potest. The full import of which is whenever anything is
authorised, and especially if, as a matter of duty,
required to be done by law, it is found imposs ible to do
that thing unless something else not authorised in
express terms be also done, may also be done, then that
something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, co mplete and
substantial justice for which it exists . The power
possessed by the High Court under Section 482 of the
Code is of wide amplitude but requires exercise with
great caution and circumspection.
56. It needs no emphasis that exercise of inherent
power by the High Court would entirely depend on
the facts and circumstances of each case . It is neither
permissible nor proper for the court to provide a
straitjacket formula regulating the exercise of inherent
powers under Section 482. No precise and infle xible
guidelines can also be provided. " (emphasis supplied)
7. Ordinarily the High Courts must show restrain in quashing FIRs for
offences under Sections 376 IPC and POCSO Act. In the instant case the
FIR was registered under Section 363 IPC and Section 37 6 IPC and Section
6 of the POCSO Act were added later on. The victim/Petitioner No.2 has
stated in her 164 statement that she was in love with the Petitioner No.1 and
she eloped with him out of her own volition. It is stated they got married in a
temple in Uttar Pradesh on the very next day and the Petitioner No.2/victim
has given birth to a baby boy. The families of the Petitioners No.1 & 2 have
accepted the marriage.
8. Considering the fact that the whole life of Petitioner No.1 and
Petitioner No.2 and their child would be ruined , this Court asked the learned
APP as to whether she has any objections if this Court exercises its
jurisdiction under Section 482 Cr.P.C and quash the FIR . Learned APP for
the State very fairly and taking humanitarian approach stated that she has no
objections if the instant FIR is quashed.
9. In view of the peculiar facts and circumstances of this case, this Court
is inclined to quash the FIR. Resultantly, FIR No.275/2019 dated
30.10.2019 registered at Police Station Delhi Cantt for off ences under
Section 363/366/376 IPC and Section 6 of the POCSO Act and the
proceedings emanating therefrom are hereby quashed.
10. Accordingly , the petition is disposed of along with the pending
application(s), if any .
|
The Delhi High Court recently quashed a first information report (FIR) filed for rape and offences under the Protection of Children from Sexual Offences (POCSO) Act using its inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) [Kundan and anr. v State and Ors].
Justice Subramonium Prasad stated that the Court was inclined to quash the FIR and proceedings given the peculiar facts and circumstances of the case.
As per the facts of the case, the father of a minor girl had in 2019 filed a missing persons complaint alleging that the petitioner, then 18 years old, had kidnapped his then 16-year-old daughter. After the FIR was lodged, the mother of the petitioner handed over the girl to her parents. The girl gave a statement to the police that she had married the petitioner and was seven months pregnant. On the basis of her statement, charges of rape and POCSO Act offences were added to the FIR.
After the petitioner was granted bail, he and the girl performed a formal wedding ceremony in the presence of friends and family. Soon thereafter, the girl delivered a baby boy.
In this background, and in light of the fact that the father of the girl had accepted their marriage, the petitioner approached the High Court seeking quashing of the FIR.
In his order, Justice Prasad noted that Section 482 gives inherent powers to the High Court to prevent the abuse of the process of law and more particularly, to secure the ends of justice. While stating that High Courts must ordinarily show restrain in quashing FIRs for offences under Sections 376 IPC and the POCSO Act, he noted,
"The victim/Petitioner No.2 has stated in her 164 statement that she was in love with the Petitioner No.1 and she eloped with him out of her own volition. It is stated they got married in a temple in Uttar Pradesh on the very next day and the Petitioner No.2/victim has given birth to a baby boy. The families of the Petitioners No.1 & 2 have accepted the marriage."
Considering the fact that the lives of the couple and their child would be ruined if the criminal proceedings against the petitioner were to continue, the Court asked the public prosecutor if she would have any objections if it exercised its jurisdiction under Section 482 CrPC to quash the FIR.
"Learned APP for the State very fairly and taking humanitarian approach stated that she has no objections if the instant FIR is quashed," the Court noted.
In this light, the FIR was quashed.
Advocate Vipul Lamba appeared for the petitioner. Assistant Public Prosecutor Meenakshi Dahiya appeared for the State.
|
No. K-13029/02/2023-USJI
Government of India
Ministry of Law & Justice
Department of Justice
(Appointments Division)
Jaisalmer House, 26, Man Singh Road,
Dated: 27th September, 2023.
In exercise of the power conferred by clause (1) of Article 217 of the
Constitution of India, the President is pleased to appoint (i) Ms. Justice Nidhi
Gupta, S/Shri Justices (ii) Sanjay Vashisth, (iii) Tribhuvan Dahiya, (iv) Namit
Kumar (v) Harkesh Manuja, (vi) Aman Chaudhary, (vii) Naresh Singh, (viii)
Harsh Bunger, (ix) Jagmohan Bansal, (x) Deepak Manchanda and (xi) Alok Jain,
Additional Judges of Punjab and Haryana High Court, to be Judges of that High
Court with effect from the date they assume charge of their respective offices.
To
The Manager,
Government of India Press,
Minto Road,
New Delhi. 2.41" 70&
(Rajinaer 11 hyap)
Special Secretary to the Government of India
Tele: 2338 3037
No. K-13029/02/2023-US.II Dated: 27.09.2023
Copy to:-
1. (i) Ms. Justice Nidhi Gupta, S/Shri Justices (ii) Sanjay Vashisth, (iii)
Tribhuvan Dahiya, (iv) Namit Kumar (v) Harkesh Manuja, (vi) Aman
Chaudhary, (vii) Naresh Singh, (viii) Harsh Bunger, (ix) Jagmohan
Bansal, (x) Deepak Manchanda and (xi) Alok Jain, Additional Judges
of Punjab and Haryana High Court through the Registrar General,
Punjab and Haryana High Court, Chandigarh.
2. The Secretary to Governor of Punjab, Chandigarh.
3. The Secretary to Governor of Haryana, Chandigarh.
4. The Secretary to Chief Minister of Punjab, Chandigarh.
5. The Secretary to Chief Minister of Haryana, Chandigarh.
6. Secretary to ,the Chief Justice, Punjab and Haryana High Court,
Chandigarh.
7. The Chief Secretary, Government of Punjab, Chandigarh.
8. The Chief Secretary, Government of Haryana, Chandigarh.
9. The Registrar General, Punjab and Haryana High Court, Chandigarh.
10. The Accountant General, Punjab, Chandigarh.
11. The Accountant General, Haryana, Chandigarh.
12. The President's Secretariat, (CA.II Section), Rashtrapati Bhavan, New
Delhi
13. PS to Principal Secretary to the Prime Minister, PM's Office, South
Block, New Delhi.
14. Registrar (Conf.), o/o Chief Justice of India, 7, Krishna Menon Marg,
New Delhi.
16. Technical Director, NIC, Department of Justice, with a request to
upload on the website of the Department (www.doi.gov.in).
F,A4 al 05 7-02"g (Prem C and)
|
The Central government on Wednesday cleared the appointment of eleven additional judges of the Punjab and Haryana High Court as permanent judges.
Union Minister of State with independent charge of the Law and Justice Ministry, Arjun Ram Meghwal shared this development through social media platform, X (Twitter).
The following are the additional judges who have been made permanent:
1. Justice Nidhi Gupta
2. Justice Sanjay Vashisth
3. Justice Tribhuvan Dahiya
4. Justice Namit Kumar
5. Justice Harkesh Manuja
6. Justice Aman Chaudhary
7. Justice Naresh Singh @ Naresh Singh Shekhawat
8. Justice Harsh Bunger
9. Justice Jagmohan Bansal
10. Justice Deepak Manchanda
11. Justice Alok Jain @ Alok Kumar Jain
The Supreme Court Collegium had recommended that the above eleven judges be made permanent judges of the High Court on September 14.
All eleven judges were appointed as additional judges on August 16 last year.
As on September 1, the Punjab and Haryana High Court is functioning at a strength of 58 judges as against its sanctioned strength of 85 judges.
|
M.Cr.C. Nos. 35596/2018
M.Cr.C. Nos. 35596/2018
Reserved on :03.08.2023.
Pronounced on : 17.08.2023
1. The applicants have filed these petitions u/s. 482 of the Cr.P.C.
seeking quashment of FIR No.139/2018 registered on a complaint
made by respondent No.2 alleging commission of offence u/s. 498-A,
323 and 34 of the IPC at Police Station Mahila Thana, Indore. The
petitioner in M.Cr.C. No.16764/2019 has also sought quashment of the
proceedings in Cr. Case No. 878/2019.
M.Cr.C. Nos. 35596/2018
Daksh Mathur (the elder son of Apllicant No.1) . Smt. Meera Mathur is
the wife of applicant No. 1. The applicants are residents of
Respondent No. 2 / the
complainant is a daughter of
Respondent No.2 and Kartik Mathur ( younger son of Applicant No.1)
were married following Hindu rites and rituals in Indore on 22.6.2017.
The prosecution story
2.Respondent No.2, lodged an FIR on 29.7.2018 at Police Station
Mahila Thana Indore disclosing that at the time of marriage, her
parents spent Rs. 50 to 60 Lakhs and they also gave gold and silver
ornaments to the applicants. Her husband Kartik Mathur and his
parents demanded Rs.1,00,000/- for the arrangement of an AC bus, at
the time of marriage which her father had given. She went to her
matrimonial house in Gurgaon. Thereafter she went with her husband
to Shimla for a honeymoon. Parents of Kartik Mathur i.e. Rajan
Mathur and Smt. Meera Mathur and Smt. Nandita Mathur W/o. Daksh
Mathur also reached Shimla to spoil the honeymoon. the complainant
further alleges that they all ill-treated by way of taunting her for the
demand of Rs.10 Lakhs and a car. Thereafter, they all came back to
Gurgaon. On 30.6.2017, Kartik Mathur left for Australia disclosing that
he is unhappy with her as her parents did not fulfil the demand. SheApplicant No.1 is the father of Kartik Mathur R/o
and Apllicant No. 2 is the wife of
M.Cr.C. Nos. 35596/2018
remained with her in-laws in the matrimonial house for a few days. She
was beaten and thrown out of the house on 30.7.2017. Thereafter, she
came to Indore and lodged the FIR on 29.7.2018 i.e. after one year. The
contents of the FIR are as under :
“eSa mfu- laxhrk ckfj;k efgyk Fkkuk bankSj ij inLFk gaw vkt fnukad dks Qfj;kfn;k
iYyoh ifr dkfrZd ekFkqj mez 30 lky fu- th 39 lkÅFk flVh ikVZ 2] xqMxkao gky
fuoklh 35 ukud iSysl dkWyksuh fiiY;kjkÅ bankSj }kjk ,d ys[kh vkosnu izLrqr
fd;k ftl ij ls vijk/k /kkjk 498,] 323] 34 Hkknfo dk ik;k tkus ls vijk/k
iathc) dj foospuk esa fy;k tkrk gS udy vkosnu fuEukuqlkj gS izfr] Jheku Fkkuk
izHkkjh egksn; efgyk Fkkuk bankSj fo"k; ifr] lkl] llqj] tsBkuh }kjk ngst esa 10
yk[k :i;s o dkj dh ekax dj izrkfM+r djus ckor~A egksn;] fuosnu gS fd eSa izkFkhZ
iYyoh ifr dkfrZd ekFkqj mez 30 lky fu- th 39 lkÅFk flVh ikVZ 2] xqMxkao gky
fuoklh 35 ukud iSysl dkWyksuh fiiY;kjkÅ bankSj dh jgus okyh gaw esjh 'kknh
fnukad 22-06-17 dks dkfrZd firk jktu ekFkqj fu- th 39 lkÅFk flVh ikVZ 2
xqMxkao ds lkFk nksuksa ifjokjksa dh jkthethZ ls l;kth gksVy bankSj esa gqbZ Fkh 'kknh
esa esjs ekrk firk us djhc 50&60 yk[k :i;s [kpZ fd;s Fks o lksus pkanh ds jde nh
Fkh o fonkbZ ds le; llqjky tkus ds fy;s esjs ifr] lkl] llqj] tsBkuh us ,d
yk[k :i;s ,-lh- cl ds fy;s ekax dh o dgk fd 10 yk[k :i;s o dkj Hkh ges
ngst esa pkfg;s] rks fQj esjs ekrk firk us 01 yk[k :i;s rqjar cl esa tkus ds fy;s
fn;s mlds ckn esa llqjky xqMxkao pyh x;h ogk ls rhu fnu ckn gh esjs ifr vkSj
eSa guhewu ds fy;s f'keyk x;s rks ogka ij esjs lkl] llqj] tsBkuh Hkh vk x;s ogka
ij Hkh esjs ifr] lkl] llqj] tsBkuh us esjs lkFk vPNk O;ogkj ugha fd;k vkSj fQj
ge lHkh xqMxkao vk x;s fQj fnukad 30-06-17 dks esjs ifr vkLVªsfy;k pys x;s vkSj
tkrs le; cksys fd eSa rqels ukjkt gaw rqEgkjs ekrk firk us ngst esa 10 yk[k :i;s
o dkj ugha nh gS fQj mlds ckn eSa llqjky esa gh jgh bl nkSjku esjs lkFk esjs
lkl] llqj] tsBkuh us ngst dh ckr dks ysdj rkukdlh djrs vkSj dgrs fd rsjs
ek;ds ls ngst esa 10 yk[k :i;s o dkj ysdj vk;k blh ckr dks ysdj lHkh us esjs
lkFk ekjihV dj fnukad 30-07-17 dks ?kj ls Hkxk fn;k rc eSa vius ekrk firk ds ?
kj bankSj vk x;h esjs ekrk firk us Hkh esjs llqjky okyks dks le>kus dk iz;kl fd;k
ijarq os ugha ekus vkSj dgus yxs fd 10 yk[k :i;s o dkj dh O;oLFkk gks x;h gks
rks ge rq>s ys tkrs gS ojuk ugha ys tk;sxs vkSj viuh ekax ij vM+s gS bl izdkj esjs
ifr] lkl] llqj] tsBkuh us 'kknh ds fnu ls gh ngst dh ekax dj eq>s 'kkjhfjd o
ekufld :i ls izrkfM+r fd;k gSa eSa buds fo:) dkuwuh dk;Zokgh pkgrh gawA
izkFkhZ;k ¼gLrk{kj vaxzsth esa vLi"V gSa½ iYyoh ifr dkfrZd ekFkqj fu- 35 ukud iSysl
dkWyksuh fiiY;kjkÅ bankSj eksck- uacj 7715836578 ”
3.The aforesaid FIR was registered against her husband - Kartik,
father-in-law – Rajan Mathur (applicant No.1), mother-in-law – Smt.
Meera Mathur (applicant) and wife of Kartik's brother ('Jethani') –
Nandita Mathur (applicant No.2 ) u/s. 498-A, 323 and 34 of the IPC.
M.Cr.C. Nos. 35596/2018
The police sent notice u/s. 41A of the Cr.P.C. to the applicants for their
appearance in the Police Station for investigation. Rajan Mathur sent a
detailed e-mail questioning the registration of FIR at Indore when no
offence was said to have been committed at Indore.
4. By way of these M.Cr.Cs. the applicants are seeking quashment
of the FIR and the proceedings of the criminal case inter alia on the
ground that none of the parties have ever resided at Indore. Indore was
only a venue for the marriage. The applicants are permanent residents
of Gurgaon and the parents of respondent No.2 are residents of Navi
Mumbai (Maharashtra). Merely the venue of the marriage was Indore,
hence the selection of a Police Station at Indore for registration of the
FIR u/s. 498A, 323 and 34 of the IPC where no offence said to have
been committed is nothing but the intention to harass the applicants. It
is further submitted that Respondent No.2 left the matrimonial house as
per her own will and since then she is residing in Navi Mumbai now in
Australia. There is a delay of the period of one year in lodging the FIR.
Family settlement proceedings were initiated by Kartik Mathur in the
Family Court in Victoria, Australia. It is further submitted that
applicant No.1 Rajan Mathur is a retired Air Force Officer and Smt.
Nandita is his daughter-in-law, and wife of Daksh Mathur who is Lt.
Col. an Army Officer. Applicant No.2 usually resides with her husband
and was temporarily residing with her in-laws as her husband is posted
in the forward areas of Jammu and Kashmir. She has unnecessarily
been dragged into these proceedings. The allegation of demand of
dowry of Rs.10 Lakhs and a car is totally false and baseless. The
applicants have specifically alleged that on 24.6.2017 i.e. 2nd day of
M.Cr.C. Nos. 35596/2018
marriage, respondent No.2 turned away and disclosed that she was
having a relationship with a boy before marriage. It is further submitted
that after the marriage, respondent No.2 sent a mail to her husband
Kartik in which there was no such allegation of demand of dowry.
Therefore, on this ground alone, the FIR, which is nothing but sheer
abuse of the process of law, is liable to be quashed.
5. After notice, respondent No.2 has filed a detailed reply opposing
the prayer for quashment of the FIR. She has reiterated the allegations
made in the FIR. It is submitted that the entire allegations in the FIR
are a matter of evidence, therefore, at this stage, same cannot be
quashed by conducting a mini trial. It is further submitted that she is a
permanent resident of 35, Nanak Palace Colony, Pipliyarao, Indore. It
is also submitted that her husband Kartik has obtained an ex-parte
decree of divorce from the Court in Australia. As the marriage was
solemnized in India under the Hindu Marriage Act, therefore, the
decree of divorce is illegal and not binding on her. She has quoted
various judgments of the High Courts and Apex Court in respect of the
scope of Section 482 of the Cr.P.C.
6. The applicant /Smt. Meera Mathur, mother-in-law of respondent
No.2 has also filed M.Cr.C. No.16764/2019 seeking quashment of the
FIR. In this petition, respondent No.2 has filed the reply through Power
of Attorney holder Sarvesh Mathur ( father), whose residential address
is at B 503, Crystal Court, CHS, Sector 7, Kharghar, Navi Mumbai.
After execution of the Power of Attorney dated 21.12.2018, respondent
No.2 travelled to Australia on 28.12.2018. At present, she is residing in
Australia and contesting the case before the Session Court Indore as
M.Cr.C. Nos. 35596/2018
well as this High Court.
7. So far as the allegations in the FIR are concerned, according to
respondent No.2, the parents of Kartik demanded Rs.10 Lakhs and a
car during her stay in the matrimonial house. Her Father-in-law,
mother-in-law and sister-in-law ('Jethani') used to taunt her for the
demand of Rs.10 Lakhs and a car. She was thrown out of the house on
30.7.2017 after beating her. Thereafter she came to Indore at her
parents' house. Her parents tried to resolve the dispute but the parents
of Kartik were adamant about the demand of Rs.10 Lakhs and a car.
According to her, she was subjected to physical as well as mental
cruelty. Accept oral evidence there is nothing on record to corroborate
her statement to establish the charge of 498-A of the I.P.C. .
8. There is a delay of one year in lodging the FIR for which there
is no explanation. So far the jurisdiction is concerned only the marriage
was solemnized at Indore. Respondent No.2 only gave an address but
there is no material to support that she or her father is an ordinary
resident of Indore. Even if it is believed that they have some
connection in Indore but as per the allegation in the FIR none of the
offences are said to have been committed in Indore. Applicants are
permanent residents of Gurgaon and the parents of the complainant are
permanent residents of Navi Mumbai (Maharashtra). As per the
contents of the FIR, the entire allegation about the demand of dowry
and commission of atrocities in the matrimonial house at Gurgaon.
Nothing happened after leaving the matrimonial house on 30.7.2017 in
Indore. Therefore, the FIR at Police Station Mahila Thana at Indore has
wrongly been registered.
M.Cr.C. Nos. 35596/2018
9. So far as the commission of the offence under Section 323 of the
IPC is concerned, there is only an oral allegation about the assault.
There is no MLC on record. The delay of one year in lodging the FIR
has not been explained. The allegation of demand of dowry of Rs.10
Lakhs and a car against father-in-law, mother-in-law and 'Jethani' are
general in nature.
10.Nowadays the very purpose of the insertion of Section 498-A in
the Penal Code, 1860 with the object to punish the husband or his
relatives, has been defined. In most of the cases, this section is being
misused as observed by several High Courts and the Hon'ble Supreme
Court. The Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar
: [(2014) 8 SCC 273] has observed that the relatives are unnecessarily
being made accused under section 498-A of the I.P.C..
11.The cases are lodged under Section 498-A of the Penal Code,
1860 only to settle the matrimonial dispute. some times the FIR wife
lodges the FIR immediately after receipt of the summons from the
Family courts. Nowadays there is a package of 5 cases against the
husband and family members in family court and the criminal court
under I.P.C., the Hindu Marriage Act and the Protection of Women
from Domestic Violence Act, 2005 . The Hon'ble Supreme Court in
Preeti Gupta v. State of Jharkhand : [(2010) 7 SCC 667] . Paragraphs
32, 33, 34, 35 and 36 of the said judgment are quoted herein below:
“32. It is a matter of common experience that most of these
complaints under Section 498-A IPC are filed in the heat of
the moment over trivial issues without proper deliberations.
We come across a large number of such complaints which are
not even bona fide and are filed with oblique motive. At the
same time, rapid increase in the number of genuine cases of
dowry harassment is also a matter of serious concern.
M.Cr.C. Nos. 35596/2018
33. The learned members of the Bar have enormous social
responsibility and obligation to ensure that the social fibre of
family life is not ruined or demolished. They must ensure that
exaggerated versions of small incidents should not be
reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their
concurrence. The learned members of the Bar who belong to a
noble profession must maintain its noble traditions and should
treat every complaint under Section 498-A as a basic human
problem and must make serious endeavour to help the parties
in arriving at an amicable resolution of that human problem.
They must discharge their duties to the best of their abilities to
ensure that social fibre, peace and tranquillity of the society
remains intact. The members of the Bar should also ensure
that one complaint should not lead to multiple cases.
34. Unfortunately, at the time of filing of the complaint the
implications and consequences are not properly visualised by
the complainant that such complaint can lead to
insurmountable harassment, agony and pain to the
complainant, accused and his close relations.
35. The ultimate object of justice is to find out the truth and
punish the guilty and protect the innocent. To find out the
truth is a Herculean task in majority of these complaints. The
tendency of implicating the husband and all his immediate
relations is also not uncommon. At times, even after the
conclusion of the criminal trial, it is difficult to ascertain the
real truth. The courts have to be extremely careful and
cautious in dealing with these complaints and must take
pragmatic realities into consideration while dealing with
matrimonial cases. The allegations of harassment of
husband's close relations who had been living in different
cities and never visited or rarely visited the place where the
complainant resided would have an entirely different
complexion. The allegations of the complainant are required
to be scrutinised with great care and circumspection.
36. Experience reveals that long and protracted criminal
trials lead to rancour, acrimony and bitterness in the
M.Cr.C. Nos. 35596/2018
relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the complainant if
the husband or the husband's relations had to remain in jail
even for a few days, it would ruin the chances of an amicable
settlement altogether. The process of suffering is extremely
long and painful.”
12.The Courts have experienced that on the general and omnibus
allegations the family members and distant relatives are being roped in
a case arising out of Section 498-A of the Penal Code, 1860, which was
considered by the Hon'ble Supreme Court in Geeta Mehrotra v. State
of UP : [(2012) 10 SCC 741] . The cases related to distant relatives
were further considered and deprecated by the Hon'ble Supreme Court
in K. Subba Rao v. The State of Telangana : [(2018) 14 SCC 452] .
13. Taking guidance from the above-mentioned cases where there is
apparent misuse of Section 498-A of the Penal Code, 1860 the High
Court should exercise the power conferred under section 482 of the
Cr.P.C. to protect the relatives of the husband in matrimonial dispute in
order to do the complete justice and prevent misuse of the process of
law. .
14. Shri Jerry Lopez, learned counsel appearing for respondent No.2
has argued that the FIR may not contain all the details but in statement
u/s. 161 of Cr.P.C. or evidence in the Court would contain the details
about the demand of dowry or atrocities committed to her. It is further
submitted that the e-mail exchange and the chat conversations in
respect of the demand of dowry also constitute mental cruelty. The
scope of interference by the High Court at this stage is impermissible .
In support of his contention, has submitted the list and photocopies of
the judgments passed by the various High Courts and the Apex Court
M.Cr.C. Nos. 35596/2018
in the case of 2013 (2) Kar.L.J. 194 : Nanjaiah V/s. State of
Karnataka; AIR 1997 SC 768 : Rattan Singh V/s. State of H.P. ; 2017
Cr.L.J. (NOC 746) 233 : Sujoy Lahiri V/s. Smt. Nandini Lahiri ; order
dated 15.3.2016 passed in M.Cr.C. No.1825/2011 by this Court,
Gwalior Bench (Bhagwan Singh V/s. State of M.P.) ; 2017 SCC
Online Pat. 2771: Sureshwar Narayan V/s. State of Bihar ; order
dated 4.9.2013 passed in W.P. (Crl.) No.588/2011 by Delhi High Court;
2013 SCC Online 13771 : Subrata Kumar V/s. State of W.B. ; AIR
2016 SC 1871 : Amanullah V/s. State of Bihar ; (1996) 8 SCC 164:
State of Bihar V/s. Rajendra Agrawalla ; 1995 Cr.L.J. 2935 : Ganesh
Narayan Hegde V/s. S. Banagarappa ; and 1997 Cr.L.J. 3221:
Darshan Singh V/s. State of Punjab .
15. In M.Cr.C. No. 35596/2018, the applicants have filed an
application (I.A. No.14725/2022) seeking direction to respondent No.1
to procure the e-mail verification report. During pendency of these
petitions, a charge-sheet has been filed on 5.3.2019. On 23.9.2021,
learned Govt. The Government Advocate appearing for respondent No.
1 informed this Court that the details of e-mails have been verified, but
the e-mails exchanged between the parties could not be procured as the
same is restricted by Gugal. The DIG, Indore vide letter dated
18.1.2019 directed for investigation but the said report has not been
produced. Therefore, the applicants filed an application for the
production of the investigation report and e-mail verification report.
16. This Court vide order dated 21.10.2021 directed the parties to
settle the dispute by way of mediation for which Smt. Rashmi Pandit
was appointed as a Mediator. The Mediator submitted the report on
M.Cr.C. Nos. 35596/2018
19.1.2022 and according to which the parties were not ready to
compromise the matter.
17.At present, the husband and wife both have settled in Australia.
The parents of the husband are being harassed by way of the criminal
case in India. Applicant No.1 Rajan Mathur is aged about 67 years and
his wife is also a senior citizen. General allegations have been levelled
against 'Jethani' hence she has unnecessarily been dragged in the FIR.
As per the contents of the FIR, the husband of respondent No.2 was not
even in India at the time of so-called omission of crime. Respondent
No.2 has given the Power of Attorney to her father to contest the case
against these applicants. This is now a case of reverse cruelty upon
them. There is no specific allegation that when her husband left India
for Australia there was any demand for dowry, etc. Now a day it is very
common for the husband and wife to reside or do jobs outside of India
and their parents are made to suffer in India by way of criminal or
matrimonial litigation.
18. In view of the foregoing discussion, these M.Cr.Cs. deserve to be
and hereby allowed. The impugned FIR is hereby quashed and
consequently, the charge sheet as well as the proceedings in the
criminal case are also hereby quashed. Let a photocopy of this order be
retained in the file of connected M.Cr.C.
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The Madhya Pradesh High Court recently commented on the misuse of Section 498A (cruelty to women) of the Indian Penal Code (IPC), observing that nowadays there is a “package of five cases” being filed by the wife against the husband and his family members in courts [Rajan v. The State Of Madhya Pradesh].
Justice Vivek Rusia added that Section 498A of the IPC, which is meant to punish cruelty by a husband or his relatives, is being misused nowadays as also observed by several High Courts and the Supreme Court.
"Nowadays there is a package of 5 cases against the husband and family members in family court and the criminal court under IPC, the Hindu Marriage Act and the Protection of Women from Domestic Violence Act, 2005," the Court said.
The Court was hearing applications to quash a first information report (FIR) accusing a husband and his relatives of the offence under Section 498A, IPC (husband or relative of husband of a woman subjecting her to cruelty) and causing hurt.
The Court ultimately quashed this criminal case, terming it a case of “reverse cruelty” upon the accused.
Observing that the complainant-woman was residing abroad while pursuing criminal cases against family members in India, the judge added:
“Now a day it is very common for the husband and wife to reside or do jobs outside of India and their parents are made to suffer in India by way of criminal or matrimonial litigation."
The FIR was registered by a woman against her husband, father-in-law, mother-in-law and husband’s sister-in-law.
The woman alleged that she was ill-treated by in-laws and thrown out of the house after her husband left for Australia “disclosing that he is unhappy with her as her parents did not fulfil the demand (for ₹10 lakh and a car).”
The Court was also told that the husband had obtained an ex-parte decree of divorce from a court in Australia.
Justice Rusia noted that there was a delay of one year in lodging the FIR for which “there is no explanation."
The Court also opined that the FIR was registered at the wrong place. In this regard, it was noted that the accused were permanent residents of Gurgaon, whereas Indore where the FIR was registered, was only the place of marriage.
The Court was further unconvinced by the allegations of hurt and dowry demands by the accused.
“At present, the husband and wife both have settled in Australia. The parents of the husband are being harassed by way of the criminal case in India... There is no specific allegation that when her husband left India for Australia there was any demand for dowry, etc.,” the Court observed.
With these observations, the Court quashed the criminal case and allowed the applications filed by the complainant's in-laws (applicants).
Advocate Amar Singh Rathore appeared for the applicants. Advocate Sudarshan Josh appeared for the State. Advocate Jerry Lopez appeared for the complainant.
|
and
1Whether Reporters of Local Papers may be
allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the
fair copy of the judgment ?
4Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
Versus
Appearance:
and
Date : 25/01/2023
Heard learned advocate Mr. Ekrama Qureshi for
the appellant and learned advocate Mr. Nishith
Acharya for the respondent at length.
2.The present appeal under Section 96 of the Code
of Civil Procedure, 1908, read with section 28 of the
Hindu Marriage Act, 1955, preferred by the appellant-
husband is directed against judgment and decree dated
20.11.2019 passed by learned Principal Judge, Family
Court, Amreli, whereby the Court below granted the
prayer of the respondent wife for dissolution of
marriage between the parties, deciding the Family
Suit No. 66 of 2017 accordingly.
3. The said suit was instituted by the applicant
plaintiff-wife under Section 13 of the Hindu Marriage
Act, 1955 (hereinafter referred to as 'the Act')
pleading inter alia that the plaintiff-respondent
herein had contracted civil marriage with defendant-
appellant herein. The parties are addressed as per
their original status in the suit as plaintiff-wife
and defendant-husband.
3.1 On 04.08.2018, the marriage between the parties
was registered by the competent authority at village
Chakkargadh of the Amreli District. It was the case
of the plaintiff that after one month, the plaintiff-
wife had gone to stay at matrimonial house at
Bhavnagar in joint family. Before the marriage, the
plaintiff had been studying Civil Engineering at
Amreli and was in third year of the course. The
respondent-defendant was a teacher in the college and
used to take classes where the plaintiff also used to
study. It was averred by the plaintiff that the
defendant was in habit of telling her that she should
secure double 'A' grade in the subject in which the
defendant was teacher and if such result was not
secured, the plaintiff will have to succumb to the
wishes of the defendant.
3.1.1It was the case that defendant obtained the
mobile number of the plaintiff and wanted her to
maintain a relationship as friend. It was averred
that the defendant used to convey and tell to the
plaintiff while in college that the relationship of
teacher and pupil was to be upto 6.00 PM only
whereafter, both had to behave as friends. The
defendant had been been pressing the plaintiff, it
was further stated, to contract marriage with him.
The defendant was already married and had two
children out of the first wedlock. He used to tell,
averred the plaintiff in the plaint, that if the
plaintiff married with him, his children would get
the love of a mother.
3.1.2 The plaintiff averred stated that she was of
very young age and was unwilling to marry against the
wish of her parents. However, the defendant behaved
to blackmail her and used to give threats to commit
suicide. He even once attempted suicide. The
plaintiff stated that out of fear, pressure and
coercion, she was forced to go for civil marriage.
It was alleged that the defendant had obtained
signature of the plaintiff in the marriage
application form, etc. and thus contracted marriage.
3.1.3 It was further the say of the plaintiff
wife that after marriage, she was initially given
proper treatment, however, after some time, the
respondent started taunting her and commenting on her
for small issues upon instigation of his mother and
father. It was in respect of cooking work and
household work. The in-laws and the appellant also
used to tell the plaintiff to bring share of property
from the parental house and demanded Rs.5 lakhs
towards making of furniture. It was averred that
since the plaintiff refused, she was driven out from
the matrimonial home.
3.1.4The plaintiff stated that she stayed at her
parental house thereafter for some time. The
defendant came back and took the plaintiff wife the
Bhavnagar. The plaintiff wife became pregnant for
three times. However, she was forced to go for
abortion by husband and in-laws against her wish. It
was the case of the plaintiff that she was treated
like a maid.
3.1.5It was stated that prior to marriage,
promise was given to her that the husband would allow
her to complete her studies, however, subsequently
refused and asked the plaintiff that unless she
brings some share of money from her father, she would
not be permitted. The plaintiff stated that since
she was threatened by the husband not to say anything
and not name anyone and further threatened to kill
her brother, she did not file any complain and went
on to tolerate the torture to continue to suffer. It
was the averment that in the year 2013, the defendant
and his parents drove away the plaintiff from the
house, committing of the above acts of cruelty.
3.1.6 The plaintiff stated that ever since the
marriage, the defendant husband did not care for
maintenance nor extended to her the matrimonial
rights and he gave up all efforts to continue the
matrimonial life. It was averred that husband
behaved with cruelty and since 2013, deserted the
wife without any good cause. On such pleadings and
allegations, the plaintiff prayed for decree of
divorce. The grounds for divorce were cruelty and
desertion.
3.2 Defendant filed written statement at exhibit
14 denying the allegations of the plaintiff. It was
denied that the plaintiff had contracted the marriage
forcefully or out of threat. It was alleged that the
family members of the wife used to threaten the
defendant to kill him since since they had contracted
marriage out of love. It was stated that the
plaintiff herself was frightened because of the
threats from her father and without informing the
defendant husband, went to stay to the parental
house.
3.2.1 It was stated by the defendant that plaintiff
herself asked to file complaint against her mother
and father and therefore, the defendant filed
complaint against father-in-law and mother-in-law.
It was stated that thereafter, father and mother of
defendant was reported to have severed all
relationship with the plaintiff including in respect
of her share in the property and such press note was
published in the local newspaper.
3.2.2 It was sought to be contended that the
matrimonial life between plaintiff and defendant was
smooth. That admission was secured for plaintiff
to study B.Sc. at Bhavnagar and defendant used to
take care of all the needs of the plaintiff.
According to the defendant, other friends of the
plaintiff's wife had completed diploma, therefore,
the plaintiff wanted that she may also be permitted
to complete the course, whereafter she would go to
father's house and would thereafter come to stay with
the defendant. It was submitted that wife tactfully
wanted to leave her parents to come to stay with
defendant. It appears that the defendant went away to
Amreli from Bhavnagar without telling anybody.
According to the defendant, the plaintiff stopped
contacting him on telephone and it appeared that her
inclination had changed.
3.2.3 It was the say of the defendant that after
passage of one year, the children of the plaintiff
were taken admission and wife was told to come to the
matrimonial house and stay there. It was stated by
the defendant that the plaintiff conveyed to him that
in order that the reputation of her parents was not
tarnished, she would not be able to come back to the
defendant. According to defendant, the plaintiff
stated that he should settle the dispute by paying
Rs. 25 Lakhs to her father. The defendant also
stated that out of the pressure of family dispute,
his mother committed suicide by taking acid. The
appeal for divorce was opposed on such premise.
3.3 The trial court noted that from the side of
defendant, oral or documentary evidence was not
produced. It was observed that during the trial
proceedings, adjournment reports were given by the
side of the defendant, which were time and again
granted and the defendant was thus given adequate
opportunity to lead his evidence. At one point of
time, cost was also imposed while granting
adjournment but the amount was not paid by the
defendant. The right to lead evidence of the
defendant was thereafter closed. It was subsequently
stated by the trial court that even as the defendant
filed application for reopening the stage of
evidence, he continued to give adjournment
applications and lead evidence. He did not remain
present and virtually gave up the prayer to seek
reopening of the evidence. Rojkam was referred to
and it was observed that after service of summons
till the stage of completion of arguments, defendant
never appeared before the court.
3.4 The trial court framed the issues. The first
issue was whether the petitioner wife proved that the
respondent treated her with cruelty. The second was
whether the petitioner had proved that the respondent
deserted her for continuous period of not less than
two years immediately preceding the filing of the
petition.
3.4.1The trial court answered all the issues in
affirmative. It was recorded that the plaintiff and
defendant had contracted civil marriage. The trial
court relied on the deposition of the plaintiff at
exhibit 24 wherein the plaintiff reiterated her case
pleaded in the plaint and passed the decree of
divorce.
4.Learned advocate for the appellant assailing the
impugned judgment and decree, submitted that the
entire story put up by the plaintiff wife was not
correct. He submitted that the plaintiff had
willingly developed the relationship with defendant
while she had been studying under the defendant at
the college. She had contracted marriage, it was
submitted, with full knowledge that the defendant was
married and had two children. It was submitted that
plaintiff was of major age and was capable of taking
her own decisions. He further submitted that it was
not correct to mention that the appellant was at
Amreli at the time of marriage, and that in fact he
was at Bhavnagar at that time.
4.1It was further submitted that though allegations
were made by the wife, her three pregnancies were
forced-terminated without her wish, no evidence was
produced by the wife in this regard. It was
submitted that the appellant used to take care of the
plaintiff and was neither put to any coercion or to
act against her wish. It was submitted that the
appellant himself arranged for her studies at Science
College, Amreli. It was contended that in the year
2013, Diploma course was completed by her which could
not have been done without the cooperation of the
appellant husband.
4.2On the other hand, learned advocate for the
respondent submitted that the facts were clear. He
referred to the evidence of the plaintiff to submit
that questions were not put to the wife and the wife
could prove her case. It was submitted that
respondent was well aware of the factum that she was
his student and took unfair advantage of the
relationship to contract marriage with her and then
to exert cruelty.
5.The plaintiff submitted his examination-in-chief
by affidavit. She reiterated her case put forth in
the plaint. It was stated that her marriage with the
appellant was a civil marriage contracted on
04.08.2011, which was registered, that after marriage
she stayed in the joint matrimonial family. It
transpires from her evidence before marriage, she was
a student in Amreli Polytechnic College where the
appellant was teacher who used to tell her every time
that in the subject he had been teaching, the
plaintiff should obtain AA grade otherwise, she will
have to obey him. The plaintiff deposed that the
appellant used to send messages time and again asking
her to maintain the friendship. The appellant used
to blackmail and threaten her with death and also
once took poisonous liquid also.
5.1It was given out by the plaintiff that she was
coerced, forced and harassed mentally to enter into
marriage relationship. It was deposed that the
appellant had obtained signature in the application
form by playing deceit stating that in order to avoid
any objection from any family member especially
parents of the plaintiff, that the signature was
required.
5.2It was in plaintiff's evidence that after some
time, her in-laws started asking for dowry. They
asked Rs.5 lakhs to tell the plaintiff that such
amount she should bring for the purpose of furniture.
As the plaintiff refused to obey the demands, the
appellant and his parents deserted her. It came out
from plaintiff's evidence that she had conceived
thrice but all the time, she was forced to undergo
abortion. She stated that after some time, she was
taken back but again she was driven out in 2013 and
since then, she has been leading miserable life.
5.3On behalf of the defendant husband, cross-
examination of the plaintiff was taken. The
plaintiff was asked about her date of marriage, the
time since the marriage was registered. She was also
asked whether she was aware about the fact that the
appellant had two children from his earlier wedlock.
The wife stated that after marriage, she stayed for
about one year in the matrimonial house with the
appellant.
5.4 About the complaint filed on 03.03.2012 by the
plaintiff against her own parents, she stated in the
cross-examination that the said act on her part was
out of compulsion as the husband compelled her to
give such complaint before the police to create a
cleavage in the relationship between her and her
parents. She denied that the suit was wrongly filed
to harass the appellant. No other questions were put
in the cross-examination. There was no re-examination
also. The decree of divorce was prayed for by the
plaintiff wife on the ground of cruelty and
desertion. The trial court accepted the grounds of
cruelty and desertion and passed the decree of
divorce.
5.5 The evidence highlighted above reveal material
facts about the relationship between the parties and
the treatment meted out to the respondent wife by
appellant husband. Even otherwise, it may be
recollected that section 14 of the Family Courts Act
deals with the application of Indian Evidence Act,
1872. It says that a Family Court may receive as
evidence any report, statement, documents,
information or matter that may in its opinion assist
to deal effectually with a dispute, whether or not
the same would be otherwise relevant or admissible
under the Indian Evidence Act. In other words, the
aforesaid provision gives certain leeway to the
Family Court in dealing with the matters which are
matrimonial in nature. These matters are permitted
to be dealt with without being strictly bound by the
Rules of evidence.
5.5.1Though the Evidence Act would apply, a kind
of leeway is given to the Family Court. The
legislature wanted the Family Court to receive the
documents, etc., irrespective of its relevance or
admissibility under the Indian Evidence Act, when
otherwise they throw light on the issues involved.
Any such report, statement, document or information
could be received by the Family Court.
5.5.2 The object of the above provision was
explained by the Bombay High Court in Deepali Santosh
Lokhande vs. Santosh Vasantrao Lokhande[2018(1) Mh LJ
944] in paragraph 6 as under,
"The object, effect and consequence of this
provision is to remove any embargo on the Family
Court to first examine the relevancy or
admissibility of the documents under Indian
Evidence Act in considering such documents in
adjudication of the matrimonial dispute. The
Statement of Object and Reasons leading to the
enactment of the Family Court's Act would also
become a guiding factor so as to ascertain the
intention of the legislature in framing Section
14 when it uses the above words. One of the
objects of the legislation as Clause 2 (h) of
the Statement of Object and Reasons would
provide is "simplify the rules of evidence and
procedure so as to enable a Family Court to deal
effectively with a dispute". This clearly
manifests the intention of the legislature to
remove complexities in the application of rules
of evidence to make the procedure more
comprehensible so as to enable a Family Court to
deal effectively with a matrimonial dispute
under the Family Courts Act, which is a special
5.5.3Thus the position emerges is that the
Family Court may receive the document even if not
legally admissible in evidence and consider such
facts out of the rigour of the relevancy or
admissibility under the Evidence Act if the Family
Court is of the opinion that such document, material
or such fact in issue would assist to deal with the
dispute effectively.
5.5.4The following observations in Deepali
Santosh Lokhande (supra) become more relevant in the
facts obtained in this case, extracted from paragraph
"In matrimonial cases, the Family Court is
expected to adopt standards as to how a prudent
person would gauge the realities of life and a
situation of commotion and turmoil between the
parties and applying the principle of
preponderance of probabilities, consider whether
a particular fact is proved. Thus, the approach
of the Family Court is required to be realistic
and rational to the facts in hand rather than
technical and narrow. It cannot be overlooked
that matrimonial disputes involve human problems
which are required to be dealt with utmost human
sensitivity by using all intelligible skills to
judge such issues. The Family Court has a
special feature where in a given case there may
not be legal representation of the parties."
5.5.5The very proposition of section 14 read
with section 20 of the Act in permitting the court
dealing with matrimonial disputes to consider the
evidence irrespective of its admissibility and
relevance and thus, in a way distancing from strict
rules of evidence, is intended to facilitate the
adjudication of matrimonial disputes in right
direction. It is rather wisdom of facts and not the
insensitive corners of law which should guide the
Family Court and the Courts dealing with matrimonial
disputes in its decision making process.
5.5.6In other words, as the matrimonial disputes
are peculiar by their very nature, special standards
to deal with the facts and evidence have to be
employed by the courts to cull out the truth. The
courts are often required to read the facts and
assessed the evidence, between the lines. The
Courts are often needed to scan the facts to deduce
the reality. The veil may have to be lifted to see
through and behind the curtain as to what are the
real implications from the facts obtained and how the
matrimonial relationship work. An approach of
prudence would require in the process of arriving at
conclusion. The ground of cruelty is also required
to be addressed and assessed from facts and evidence
accordingly.
5.6 Now, section 5 of the Hindu Marriage Act, 1955
provides for condition for Hindu Marriage. It says
that a marriage may be solemnized between two Hindus
if certain conditions are fulfilled. One of the
condition in section 5(i) is that neither party as a
spouse living at the time of marriage. In view of
the aforesaid provision, it is to be observed at the
outset that the appellant herein was already a
married person having two children out of the first
wedlock. His earlier wife was living though claimed
to have obtained divorce with her. He contracted
marriage with respondent who was his student. The
marriage between the parties could be said to be
suffering from basic infirmity that one of the party-
appellant had been living at the time of marriage.
5.6.1Section 11 of the Act is about void
marriages. The provision says that any marriage
solemnised after commencement of the Act shall be
null and void and may, on a petition presented by
either party against the other party, be so declared
by the decree of nullity if it contravenes any of the
conditions specified in clauses (i), (iv) and (v) of
Section 5. Therefore, one of the ground on which the
marriage could be treated as nullity and could be so
declared is that, as provided in section 5 (i) that
either party has a spouse living at the time of
marriage.
6.The above propositions provide background to
assess the grounds of desertion and cruelty on which
the decree of divorce has been passed. The evidence
suggested in no uncertain terms that the respondent
was driven out of matrimonial house and was deserted
in the year 2013. These were acts and conduct
amounting to cruelty to the wife. Before noticing
them from the facts on record and the evidence, the
concept of cruelty as judicially recognised and
perceived to be a statutory ground for passing decree
for dissolution of marriage. Section 13(1)(ia)of the
Act envisages ground of cruelty providing that where
other party has, after solemnization of marriage,
treated the petitioner with cruelty, the marriage may
be dissolved.
6.1 In G.V.N. Kameshvar Rao vs. G. Jebily[AIR 2002
SC 576], the Supreme Court observed that since
cruelty is not being defined, the inference of
cruelty-mental cruelty in particular has to be drawn
from the circumstances of each case. It was observed
that dimensions and parameters of cruelty cannot be
circumscribed.
6.2 In Smt. Mayadevi vs. Jagdish Prasad [AIR 2007
SC 1426], the Supreme Court held that where the
cruelty is alleged and in the divorce proceedings,
the proof as regards the element of cruelty is
elicited, the concept of proof beyond reasonable
doubt would not apply.
6.2.1The Court observed,
"In delicate human relationship like
matrimony, one has to see the probabilities
of the case. The concept, a proof beyond
the shadow of doubt, is to be applied to
criminal trials and not to civil matters
and certainly not to matters of such
delicate personal relationship as those of
husband and wife. Therefore, one has to see
what are the probabilities in a case and
legal cruelty has to be found out, not
merely as a matter of fact, but as the
effect on the mind of the complainant
spouse because of the acts or omissions of
the other. Cruelty may be physical or
corporeal or may be mental. In physical
cruelty, there can be tangible and direct
evidence, but in the case of mental cruelty
there may not at the same time be direct
evidence. In cases where there is no direct
evidence, Courts are required to probe into
the mental process and mental effect of
incidents that are brought out in evidence.
It is in this view that one has to consider
the evidence in matrimonial disputes."
(para 9)
6.2.2 As the expression "cruelty" has not been
defined in the Act, it has to be gathered from the
facts of each case. The cruelty may be physical or
mental to be the ground for dissolution of marriage.
To judge the mental cruelty, host of factors
attending to facts of the case may become relevant.
6.2.3In Smt. Mayadevi (supra), the Apex Court
stated the question of mental cruelty,
"The question of mental cruelty has to be
considered in the light of the norms of marital
ties of the particular society to which the
parties belong, their social values, status,
environment in which they live. Cruelty, as
noted above, includes mental cruelty, which
falls within the purview of a matrimonial wrong.
Cruelty need not be physical. If from the
conduct of his spouse same is established and/or
an inference can be legitimately drawn that the
treatment of the spouse is such that it causes
an apprehension in the mind of the other spouse,
about his or her mental welfare then this
conduct amounts to cruelty."
(para 9)
6.2.4It was observed that cruelty is a concept
used to be employed in relation to human conduct and
human behaviour. It is to be judged from the
disposition of spouse towards other. Assessing the
proof of physical cruelty may not pose any
difficulty, however, when the cruelty is of mental
nature, well it is a matter of inference to be drawn
by taking into account the nature of conduct and its
effect on the complaining spouse. The Supreme Court
stated that in a given case, there may be the conduct
which itself is bad enough and per se not approvable
to amount to cruelty.
6.3 In Vishwanath Sitaram Agrawal vs. Sarla
Vishwanath Agrawal [AIR 2012 SC 2586] , the Apex Court
observed in paragraph 17 of the judgment that,
"The expression ‘cruelty’ has an inseparable
nexus with human conduct or human behaviour. It
is always dependent upon the social strata or
the milieu to which the parties belong, their
ways of life, relationship, temperaments and
emotions that have been conditioned by their
social status."
6.3.1 It was however observed that cruelty may
have nexus with the culture and human value in a
particular society and the conditions which may be
attached to the matrimonial tie, "....The cruelty
alleged may largely depend upon the type of life the
parties are accustomed to or their economic and
social conditions. It may also depend upon their
culture and human values to which they attach
importance."
6.4 Assessed and considered in the above light,
certain facts manifested from record stare at the
face. The relationship between the appellant and the
respondent-original plaintiff was a teacher-student
relationship. According to the case of wife, she was
forced and trapped to contract marriage. There is
gainsaying that the appellant held the position of
dominance and trust both. T he plaintiff aged 28 years
was the student in the Polytechnic College. The
husband aged 40 years was the teacher who used to
take the classes where the plaintiff was also one of
the pupil.
6.4.1It appears from the unrebutted evidence and
pleadings that the appellant advanced himself to the
plaintiff to seek relationship with her. It also
emanated from the facts and evidence on record that
appellant could manage to develop confidence and
relationship with her and also got married with her.
It is also not in dispute that the appellant husband
was already married, had two children out of the
first marriage and his first wife was living.
6.4.2 The evidence suggested that even when the
plaintiff was in college, studying as student of the
appellant, she was pressurised directly or indirectly
by the appellant who used to tell her that she was
expected to pass out with 'A' Grade and if she does
not pass out in 'A' Grade, she would have to obey
whatever the appellant wanted. The appellant used to
tell her on phone, which is also not denied, that if
the plaintiff marries with appellant, the two
children born out of the first wedlock of the
appellant would get mother's love. Recurring
incidences of sending of message to the plaintiff was
a kind of harassment and has to be viewed as
harassment only when a person positioned as teacher
sends such luring message to the student.
6.5 The plaintiff has narrated the details about
cruelty exerted to her when she went to her
matrimonial home to stay there. The details about
asking of dowry and requiring the plaintiff wife to
bring Rs. 5 Lakhs towards furniture, etc., are not
controverted or could not be demolished by the other
side in course of leading evidence, at this juncture
the wife was driven away and deserted as she did not
succumb to the demands. The case was specific by the
plaintiff wife that as many as three times, she was
required to undergo abortion against her wish.
6.6 It may be true that the appellant has produced
various documents such as copies of Aadhar card, bank
passbook, college fee receipt, college identity card,
pregnancy report, it does not in any way discard
the theory of cruelty specifically pleaded by wife.
On the contrary, the medical prescription and
pregnancy sonography report produced by the
respondent support and stand to fortify the case of
the wife that she was pregnant and abortion was
forced on her as many as three times.
6.7 The case put forth by wife was not rebutted by
the appellant husband. In the totality of facts, the
plaintiff could be said to have proved her case.
Cruelty is not a defined concept. Whether cruelty is
acted upon or not depends upon facts and
circumstances. It is only the facts and circumstances
of the particular case, which helped to determine
that cruelty was proved or not as legal ground to
grant the decree of divorce. A student forced to
marry a teacher, both having large gap in terms of
age and prospects, and post marriage treatment meted
out to the plaintiff in the present case makes out to
prove that the plaintiff wife was subjected to
cruelty.
6.8 It is not possible to accept the submission on
the part of the learned counsel for the appellant
that it was a case of no evidence. At times, the
facts themselves speak the story. It cannot be said
that there is a dearth of evidence so as not to
believe the version of the plaintiff-wife. The facts
stated in the plaint by the wife and the allegations
made were supported by her evidence. Little was
trashed out in the cross-examination. In view of such
facts, absence of some evidence would not be
construed as absence of such facts otherwise
gatherable from circumstantial facts.
6.9 In view of the aforesaid reasons and
discussions, challenge to the judgment and decree
passed by the Court below granting divorce between
the parties allowing the suit of the plaintiff wife
book no error. It has to be upheld.
7.This appeal is liable to be dismissed. It is
dismissed. Connected Civil Application also stands
disposed of.
|
A teacher forcing his much younger student to marry him would amount to cruelty entitling the student-wife to divorce, the Gujarat High Court recently held.
A division bench of Justices NV Anjaria and Sandeep N Bhatt, therefore, upheld the decision of a family court dissolving the 5-year-long marriage of a 45-year-old professor, who had forced his student, 12 years younger than him, to marry him.
"Cruelty is not a defined concept. A student forced to marry a teacher, both having large gap in terms of age and prospects, and post marriage treatment meted out to the wife (student) in the present case makes out to prove that she was subjected to cruelty," the bench said in its order pronounced on January 25.
The husband was before the Court challenging the order of a family court in Amreli district, which granted divorce to the wife on the grounds of cruelty.
As per the facts of the case, the wife was a student of the husband, who was teaching her in the college. There he made advances and insisted that she scores an A grade in his subject failing which she will have to act as per his whims.
Besides this, the professor kept calling her on phone insisting her to marry him. He told her that if she gets married to him, his two children from an earlier marriage, would get a mother's love. She alleged that he had obtained her signatures on some documents which later turned out to be a marriage application form.
However, after marrying him, the girl learnt that his first wife wasn't dead and that his marriage subsisted. She further claimed that her in-laws kept taunting her and demanded ₹5 lakh from her parents for furniture. She further stated that the husband as well as the in-laws did not let her conceive and that she was forced to abort her pregnancy thrice.
The husband, on the other hand, claimed that he funded the girl's studies and that it was a love marriage and not a forced marriage. He even argued that there wasn't much evidence produced by the wife to substantiate her claims.
Having considered the contentions, the bench said that in most cases, facts themselves speak the entire story.
It noted that there was enough evidence in the case to prove the facts.
"According to the case of wife, she was forced and trapped to contract marriage. There is gainsaying that the husband held the position of dominance and trust both. The wife aged 28 years was the student in the Polytechnic College. The husband aged 40 years was the teacher, who used to take the classes where she was also one of the pupil," the bench noted.
The bench noted that the husband made advances to the wife, who was then his student to seek a relationship.
"Recurring incidences of sending of message to the wife was a kind of harassment and has to be viewed as harassment only when a person positioned as teacher sends such luring message to the student," the bench underscored.
Reagrding the medical documents placed on record by the husband to show he took proper care of the wife, the bench said that the same on the contrary support the wife's contention and fortify her case that she was pregnant and abortion was forced on her as many as three times.
Therefore, the bench dismissed the appeal and upheld the Family Court's verdict.
Advocate Ekrama H Qureshi appeared for the husband.
Advocate Nishith P Acharya represented the wife.
|
Re: Proposal for transfer of Mr Justice P Sam Koshy , Judge,
High Court of Chhattisgarh .
Mr Justice P Sam Koshy has sought his transfer out of the State of
Chhattisgarh . Acceding to his request, on 05 Jul y 2023 the Collegium
proposed his transfer to the High Court of Madhya Pradesh .
Mr Justice Koshy has, however, requested for a transfer to any High
Court other than the High Court of Madhya Pradesh .
Mr Justice Koshy has volunteer ed for a transfer out of Chhattisgarh.
On reconsiderati on of the recommendati on made by this Collegium
yesterda y, the Collegium resolves to recommend that he be transferred to the
High Court for the State of Telangana , instead of the High Court of Madhya
Pradesh .
The Collegium is recommend ing transfer of Mr Justic e Koshy to the
High Court of Telangana bearing in mind that this would enrich the
composition of th at High Court.
|
The Supreme Court Collegium recently recommended the transfer of Chhattisgarh High Court judge, Justice P Sam Koshy to the Telangana High Court.
The Collegium resolution published on the Supreme Court website said that the judge himself had volunteered to be transferred out of the State of Chhattisgarh.
In response, the Collegium had initially proposed that Justice Koshy be transferred to the Madhya Pradesh High Court.
However, Justice Koshy then requested that the transfer be to any High Court but that of Madhya Pradesh.
The Collegium, therefore, proposed Justice Koshy's transfer to the Telangana High Court.
"The Collegium is recommending transfer of Mr Justice Koshy to the High Court of Telangana bearing in mind that this would enrich the composition of that High Court," the resolution stated.
|
1. Heard Shri Ranjan Mukherjee and Ms. Astha Sharma, learned
counsel for the parties.
2. In Session s Trial No. 05/1998 arising from Sessions Case No.
37/1997 pursuant to the FIR No.110/1993 lodged under
Sections 341, 302 read with 34 of IPC at Jhalda Police Station ,
Purulia , by one Lakshmi M ahato, the eldest son of the
deceased -Smt. Kes hari M ahato, all the five accused persons
namely ; Bhaktu Gorain (A-1), Surendra Gorain (A-2), Bandhu
Gorain (A-3), Ranjit Gorai (A-4) and Rajen Gorain (A-5) were
convicted and sentenced to rigorous imprisonment for life
with a fine of Rs.1000 /- each, in default of payment of which
they were directed to serve further imprisonment of one
month each. The above judgment and order of the conviction
and sentencing the accused persons has been affirmed by the
High Court vide judgment and order dated 21.07.2010.
3. All the accused persons assailed the above conviction i.e.
judgments and orders of the High Court and the trial court by
filing the Special Leave Petition wherein leave was granted on
03.01.2014. The appeal against A -2, A-4 and A-5 was
dismissed vide order dated 25.11.20 11. Therefore, presently
the appeal is concerning A -1 (Shri Bhaktu Gorain ) and A -3
(Shri Bandhu Gorain ) only.
4. The aforesaid FIR was lodged at 08:45 a .m. on 27.09.1993
alleging that the incident in which the mother of the
informant/ complainant was put to death had occurred early
in the morning at around 06:00 am. The five accused persons
surrounded ( gheraoed) the deceased Smt. Keshari M ahato,
the widowed mother of the complainant , and her daughter -in-
law Smt. Bijali Mahato , who were returning from the pond
after performing their daily ablution s. The accused persons
were armed with tangi, tab ala and lathi. Upon hearing the
screams of the deceased and her daughter -in-law, the
complainant along with his brothers Sudhir Mahato (PW-2),
Rampada Mahato (PW-3) and the uncle’s son Pratham
Mahato (PW-5) rushed out of their house which was hardly 30
cubits away and found the accused persons assaulting the
deceased on her head. The deceased instantly fell down and
died on the spot. The accused persons made good their escape
from the place of occurrence.
5. The Investigating Officer reached the place of occurrence and
prepared an Inquest Report (Ext.2) of the dead body, seized
the incriminating article (Ext.5), examined the witnesses and
recorded their statements under Section 161 CrPC and
prepared a sketch map (Ext.4) of the place of occurrence. The
post-mortem was conducted by Dr. A.K. H azari (PW-9) around
2 pm on the same day. All the accused persons were arrested
by the police on 04.10.1993.
6. Admittedly, Lakshmi Mahato (PW-1), the informant, Sudhir
Mahato (PW-2) and Rampada Mahato (PW-3) are the sons of
the deceased and are the eye witnesses to the incident. Bijali
Mahato (PW-4) is the daughter -in-law of the deceased [wife of
Lakshmi Mahato (PW-1)] and is one another eye witness of the
incident. Pratham Mahato (PW-5) is the nephew of the victim
Raghu Mahato (PW-6) is a post -occurrence witness. Binode
Mahato (PW-7) is the father -in-law of Krishna Chandra
Mahato , one another brother of the informant who was
visiting the house of the deceased due to karam puja and as
such had an occasion to witness the heinous crime. The
presence of Raghu Mahato (PW-6) and Binode Mahato (PW-7)
has been established by the evidence of Sudhir Mahato (PW-
2). The scribe of the FIR Subhash Mahato was examined as
(PW-8). Dr. A.K. Hazari who conducted the post -mortem
examination on the body of the deceased was examined as
PW-9 whereas Sub-Inspector Santosh Kumar Das who was
on duty at the police station and had received the complaint
was examined as PW -10. The Investigating Officer of the case
had died and as such could not be examined.
7. The contents of the FIR (Ex.1) were proved by the ocular
evidence of Lakshmi Mahato (PW-1). He stated that he rushed
to the place of occurrence along with his brothers upon
hearing the screams of the deceased and his wife and upon
reaching the spot they witnessed that the deceased had been
stopped and surrounded (gherao ed) by the accused persons
whereupon Surendra Gorain (A-2) and Bhaktu Gorain (A-1)
assaulted her with tangi and tabala on her head whereas
Ranjit Gorain (A-4) assaulted her with lathi on her right hand ,
consequently, t he deceased fell down on the ground and died
instant aneously .
8. The aforesaid witness also testified that on the previous night,
all the above five accused persons called the deceased a witch
(diayen) who is the cause of trouble to the villagers as she
used to indulge in witchcraft. Her activities have caused
suffering to the wife of Surendra Gorain (A-2) who was not
keeping good health for some time. The place where deceased
was killed was near the house of one Buka Mahato. He
identified all the accused persons while they were in the court
room.
9. The testimony of Lakshmi Mahato (PW-1) was corroborated by
Sudhir Mahato (PW-2). He even corroborated the incident of
the previous night wherein the deceased was abused for
practicing witchcraft and alleged to be the cause of trouble to
the villagers particularly to the wife of Surendra Gorain (A-2).
He also stated that the place of incident was only at a distance
of 40 -50 cubits from their house and they have reached the
spot instantly upon hearing the screams. Rampada Mahato
(PW-3) categorically proved that when he reached the place of
occurrence upon hearing the screams of his moth er and that
of his elder brother’s wife Bijali Mahato (PW-4), he saw
Surendra Gorain (A-2) assaulting his mother by a tangi,
Bhaktu Gorain (A-1) by tabala and Ranjit Gorain (A-4) by lathi
on the head whereupon his mother fell on the ground and
died.
10. Bijali Mahato (PW-4) in her testimony stated that after
washing their face etc. she was returning with her mother -in-
law to her house but on the way back, they were intercepted
by all the five accused persons who surrounded (gheraoed )
them and assaulted the mother -in-law with the weapons
possessed by them in front of the house of Biju Mahato. Her
mother -in-law fell down and died instantly. She also stated
that there was a quarrel between her mother -in-law and the
five accused persons on the previous night.
11. It may be pertinent to mention here that all the aforesaid
witnesses successfully stood the test of cross -examination
and nothing could be extracted from them in cross -
examination that could discredit their testimony. The
credibility of the above witnesses is not in doubt and in fact
they are wholly reliable witnesses in the facts and
circumstances of the case.
12. In addition to the above witnesses, there is one chance
witness Raghu Mahato (PW-6). He rushed to the place of
occurrence upon hearing the shouting of “Mario Mario ”, he
found all the accused persons proceeding towards their house
on the south with the weapons in their hands. He saw the
deceased lying dead in front of the house of Buka Mahato. His
evidence could not be demolished in cross -examination. He
had signed the Inquest Report ( Ext.2 ) as a witness.
13. Dr. A.K. Hazari (PW-9), who conducted the post -mortem
cross -examination , proved the post -mortem report and the 3
injuries reported therein . The said injuries are as follows :
“1). Incised wound over left side face, orbit
and frontal region, vertically placed,
measuring 6" x 1" bone cut.
On dissection, muscle left eye -ball cut, left
xygomatic bone and frontal bone (left side)
cut. Intracrtranial haemorrhage was
present.
2). Incised would over occipital region,
transfersely placed, measuring 6" x 2" x
bone cut.
On dissection, blood -clots were present.
Occipital bone cut and intractranial
hemorrhage was present.
3). Swelling over right fore -arm.
On dissection, fracture both bone of mid -
shaft of right forearm present. ”
14. He had opined that injury Nos.1 and 2 might have been
caused by sharp cutting weapon like tangi, tabala etc. and
that injury No.3 might have been caused by hard and blunt
substance like lathi. The cause of death was stated to be
shock and hemorrhage as a result of the aforesaid injuries
which was ante -mortem and homicidal in nature. The tangi
which was the only weapon recovered was shown to him in
open court and he opined that injury Nos.1 and 2 could have
been caused by that type of weapon.
15. In view of the above evidence and some other evidence which
is not very material and worth referring , it is evident that all
the witnesses have proved that all the five accused persons
have surrounded (gheraoed) the deceased and h er daughter -
in-law Bijoli Mahato in the early hours of the day while they
were returning to their home after performing their day’s
routine at the pond and had assaulted the deceased with
tangi, tabala and lathi on her head due to which she fell down
and died instantaneously. The i njuries she received were
enough to cause death.
16. The submission on behalf of the appellants is that they never
had any common intention to kill the deceased and that they
simply wanted to teach a lesson to the deceased so that she
may not indulge in her practices of witchcraft in future.
17. The submission is devoid of any merit as admittedly an
altercation had taken place between the parties on the
previous night in which all the five accused persons were
present and it is in furtherance of the said quarrel that all of
them had appeared in the morning with reinf orced vengeance.
The very fact that they had assembled in the morning and
surrounded ( gheraoed ) the deceased with deadly weapons is
sufficient indication to infer that they had surrounded
(gheraoed ) in a pre -planned manner with a pre -determined
mind. Thus, the submission that they had no common
intention stands completely ruled out. Moreover, the nature
of injuries which have been caused on the head of the
deceased with the deadly weapons proves that they had
assembled with the common in tention and not merely to
threaten her or to deter her from practicing witchcraft.
18. Notwithstanding that two of the accused persons B andhu
Gorain (A-3) and Rajen Gorain (A-5) had no weapons with
them or m ight not have assaulted the deceased but certainly
they were part of the team that surrounded (gheraoed ) the
deceased with the common intention to kill after they had an
altercation with her the previous night on the subject of
practicing witchcraft.
19. In the light of the above clinching evidence and in the absence
of any specific lacuna in the testimony of the witnesses and
the documentary evidence adduced, we are of the opinion that
the trial court had not committed any error in convicting and
sentencing the accused persons with imprisonment of life.
The conviction and sentence have rightly been affirmed by the
High Court.
20. It may not be out of context to mention that the detention
certificate s of Bhaktu Gorain (A-1) and Bandhu Gorain (A-3)
issued by the Superintendent of Midnapore Central
Correctional Home, Paschim Midnapore, on 28.10.2022
certifies that they have served a total period of 15 years, 9
months & 24 days and 11 years, 7 months & 5 days (without
remission) respectively as on the date of the certificate . They
are, therefore, permitted to seek remission in accordance with
the prevailing policy of the State and it is expected that if any
such application/representation is made by them, it shall be
duly considered on its own merits. The application shall be
decided in accordance with applicable policy within three
months from the date of filing.
21. In the facts and circumstances of the case, the Appeal lacks
merit and is dismissed with the above observation .
|
The Supreme Court on Tuesday upheld the conviction of two men sentenced to life imprisonment for killing a woman on suspicions that she practiced witchcraft. [Bhaktu Gorain and anr vs State of West Bengal]
A bench of Justices Abhay S Oka and Pankaj Mithal confirmed their conviction on finding that there was clinching evidence pointing to the guilt of the accused.
The Court also noted that there were no gaps in the witness testimony against the accused persons.
"We are of the opinion that the trial court had not committed any error in convicting and sentencing the accused persons with imprisonment of life. The conviction and sentence have rightly been affirmed by the High Court," the Supreme Court held.
However, the two convicts were given the liberty to file remission applications.
The Court added that these applications should be considered in three months, given their long incarceration.
Whereas one of the convicts had been in prison for over 15 years, the other had remained in jail for over 11 years, the Court noted.
The incident took place in 1993 in Purulia, West Bengal.
As per the prosecution, the two convicts were part of a group of five persons who had gheraoed and assaulted the deceased woman by hitting her on the head, causing her death on the spot.
Witnesses had testified that the five men had called her a diayen (witch) who was troubling villagers.
Both the trial court and the High Court convicted the accused for the woman's murder, leading to appeals before the Supreme Court.
Appeals filed by three of the five convicts were earlier dismissed by the Supreme Court in 2011.
The appeals filed by the remaining two convicts have now been dismissed as well by the top court.
Advocate Ranjan Mukherjee appeared for the accused persons/ convicts, Bhaktu Gorain and Bandhu Gorain.
Advocate Astha Sharma represented the West Bengal government.
|
Civil Appeal No. 3946 of 1987.
349 From the Judgment and Order dated 22.7.1983 of the High Court of Delhi in L.P.A. No. 141 of 1982 (M).
P.N. Misra for the Appellant.
Krishan Kumar and Vimal Dave for the Respondent.
The Judgment of the Court was delivered by OZA, J.
Leave granted.
This appeal arises out of SLP(Civil) No. 14149/83 filed by the petitioner husband against the judgment of High Court of Delhi in Letters Patent Appeal No. 141/82 decided on 22.7.83.
The present appellant husband filed a petition in the trial court for decree of divorce on the ground of cruelty and desertion.
The trial court granted the decree of divorce but on appeal by the respondent wife learned Single Judge of High Court of Delhi reversed the decision and dismissed the petition filed by the appellant husband.
It is against this that a Letters Patent Appeal under clause 10 of the Letters Patent was filed before the High Court wherein it was heard by a Division Bench of the High Court and the appeal filed by the appellant was dismissed.
It is against this that the present special leave petition was filed.
Considering the circumstances of the case and the age of the parties we issued notice and also directed the parties to appear before us in chambers and in spite of our best efforts it is unfortunate that no reconciliation was possible.
It is one of those unfortunate cases where the husband and wife are of mature age not only that but they have a grown up son who is maturing into a lawyer as he is studying in law and unfortunately even these circumstances were not able to bring about an amicable settlement in the matter.
The parties to these proceedings were married at Delhi in accordance with the Hindu customs on February 7, 1961.
It seems that there was disagreement and disharmony from the very beginning.
A male child, however, was born out of this wedlock on August 30, 1964.
The parties by and large lived together till February 1971.
They have lived separately ever since except for a short duration in the middle of 1975 when they were together.
The main allegation of the appellant was that from the very beginning the respondent wife did not like to 350 live in the joint family and she used to behave in a peculiar manner A always created ugly scenes, indulged in quarrels and taunting and ultimately forced the appellant to shift to a government allotted quarter and live separately away from other members of the family but according to him even then her behaviour continued to be the same and it was also alleged that because of her behaviour ultimately the appellant suffered a nervous break down and had to be admitted in the Willingdon Hospital New Delhi for about 45 days.
The Division Bench of the High Court came to the conclusion that from perusal of all the facts alleged it appears that there may have been a few incidents prior to the birth of the child on August 30, 1964 but after that there was no such incident pleaded or proved till 1966 except for the allegation that the wife got the pregnancy terminated sometime in 1966 against the wishes of the appellant and on this basis the learned Judges of the Division Bench came to the conclusion that the early part before August 1964 probably was a period of inexperience and lack of adjustment between the husband and wife but ultimately after the birth of the son in 1964 there appears to be nothing serious and in this view of the matter the learned Judges came to the conclusion that between 1963 and 1968 there appears to be no incident or problem which really deserves consideration.
A small matter about her describing herself Mrs. Veena Vohra instead of Mrs. Veena Nanda the learned Judges have considered and have accepted the explanation of the wife as plausible.
The learned Judges of the Division Bench have considered all the circumstances and have also referred to the correspondence and the letters wherein regrets have been expressed in some matters by the respondent.
Considering all these facts, the Division Bench came to the conclusion that although it is unfortunate that they have not been keeping good relations but it could not be said to be a case of cruelty entitling the appellant to a decree for divorce.
Having heard learned counsel for the parties and also having heard the parties themselves we come to the same conclusion as was reached by the learned Judges of the Division Bench of the High Court while disposing of the appeal filed by the appellant against the judgment of the learned Single Judge.
It is no doubt an unfortunate state of affairs but it could not be held that the respondent was behaving with the appellant in a manner which could be termed as cruelty which would entitle the appellant to a decree for divorce.
Sometimes the temperament of the parties may not be conducive to each other which may result in petty quarrels and troubles although it was contended by the appellant that he had to suffer various ailments on account of this kind 351 of behaviour meted out to him by the wife but it could not be held on A the basis of any material that ailment of the appellant was the direct result of her (respondent 's) conduct.
The Division Bench therefore was right in coming to the conclusion that there is no material to come to the conclusion that the respondent treated the appellant with such cruelty as would entitle him to a decree for divorce.
In view of the facts and circumstances, therefore, the appeal is devoid of merit.
It is therefore dismissed.
The judgment of the High Court of Delhi is maintained.
In the circumstances of the case respondent shall be entitled to costs of this appeal.
The counsel 's fee is quantified at Rs.3,000.
S.L. Appeal dismissed.
|
% The appellant and the respondent, husband and wife, were married under the Hindu Customs in February, 1961.
Disagreement and disharmony between the two ensued from the very beginning after the marriage.
The parties by and large lived together till February, 1971, and separately ever since thereafter except for a short period in 1975.
The respondent wife, as alleged by the appellant, did not like to live in the joint family and always created ugly scenes by quarrels, etc.
The appellant was forced to live separately from the joint family, but even then, according to him, the conduct of the wife continued to be the same bad.
The appellant alleged that he suffered a nervous breakdown because of her behaviour and had to be hospitalised.
He, therefore, filed a petition for a decree of divorce on the grounds of cruelty and desertion.
The trial Court granted the divorce.
On appeal by the respondent, the High Court reversed the decision of the trial Court and dismissed the petition for divorce.
A Letters Patent Appeal by the appellant was dismissed by the High Court.
The appellant appealed to this Court for relief by special leave.
Dismissing the appeal, the Court, ^ HELD: It could not be held that the respondent was behaving with the appellant in a manner which could be termed as cruelty, which entitled the appellant to get a decree of divorce.
Sometimes, the temperament of the parties may not be conducive to each other, resulting in petty quarrels, but it could not be held on the basis of any material that the ailment of the appellant was the direct result of the respondent 's conduct.
The High Court was right in coming to the conclusion that there was no material to prove that the respondent treated the appellant with such a cruelty as would entitle the appellant to a decree of divorce.
The judgment of the High Court maintained.
[350G H; 351A B]
|
vil Appeals Nos.
596 597 (NL) of 1986.
From the Judgment and Order dated 19.12.1985 of the Madras High Court in W.A. No. 1235/83 & W.A. No. 72 of 1984.
15 M.K. Ramamurthi, K.S. Jankiraman and Jitender Sharma for the Appellant.
T.S. Gopalan, P.N. Ramalingam and A.T.M. Sampath (NP) for the Respondents.
The Judgment of Court was delivered by RANGANATH MISRA, J. These are two ap.
peals by special leave at the instance of the Union representing the workmen and challenge is to the reversing decision of the Division Bench of the High Court in two writ appeals one filed by the employer Company and the other by the workmen through their union.
The State Government of Tamil Nadu by order dated 11.5.1981 made a reference under section 10(1)(d) of the Indus trial Disputes Act, 1947, (hereafter 'Act ' for short) to the Industrial Tribunal of the following disputes: "Whether the non employment of the following workers is justified; if not, to what relief are they entitled? To compute the relief, if any awarded in terms of money, if it could be so computed.
" A list of 186 workmen was appended to the reference.
The Union itself had come into existence on 1st of October, 1980.
It had written to the Company on 14.10.1980 that despite several years of service rendered by casual employ ees they were not being confirmed and were deprived of benefit and facilities applicable to permanent workmen.
Before the Tribunal the employer and the workmen filed their respective statements.
On 25.11.1981, on behalf of the workmen an amendment was sought which the Tribunal allowed.
The Company challenged the amendment by filing a writ peti tion before the High Court but the High Court was of the view that the propriety of the amendment could be assailed, if necessary, while challenging the award itself passed in due course.
The Tribunal held that 181 casual employees should be re employed with full back wages and 50 other casual employees should also be re employed but without back wages.
This direction was given on the ground that the requirement of section 25F of the Act had not been satisfied before termination which amounted to retrenchment.
16 The Company assailed the award by filing a writ petition before the High Court.
A learned Single Judge held that the relief of reinstatement with back wages should have been confined to 131 casual employees as they alone had worked for 240 days and set aside the award in respect of 50 others on the ground that they had not completed 240 days of serv ice.
Two writ appeals were filed before the Division Bench of the High Court Writ Appeal No. 1235 of 1983 by the Company challenging the affirming part of the award and Writ Appeal No. 72 of 1984 by the Union of the workmen negativing relief to fifty workmen.
The Division Bench went into the matter at great length.
It found that until the amendment had been made the workmen had a different claim from what was ultimately pressed before the Tribunal.
The Division Bench further found that there was great variation in the number of workmen for whom relief was claimed.
It took note of the fact that the Compa ny 's counter statement was filed on 1st of August, 1981, and till that date, the respective stands of the Union and the Company were clearly different.
The case of the Union until then was that there was non employment of employees on and from 13.10.1980 inasmuch as work to the casual employees was refused on that date; the Company 's case was that on 13.10.1980, 130 casual employees out of the list attached to the reference had actually worked and most of them had also worked on 14th and 15th of October, 1980.
On the 25th of November, 198 1, and amendment of the original claim state ment was sought by saying: "There were certain omissions and clerical cum typographical mistakes with regard to the narration of events and circum stances leading to the raising of dispute relating to the non employment of 186 workmen mentioned in the Annexure of the terms of reference and covered by this dispute.
" The amended statement proceeded to state: "On 15th October, 1980, the management told the workers who had worked on that day that their services were terminated and would not be permitted to work from 16th October, 1980.
A number of these workers were prevented entry at the gate on 16.10.1980.
The Union had decided to raise a dispute in respect of all these cases along with the earlier cases of non employment also.
" 17 The Division Bench found that an entirely new case was thus sought to be introduced changing the case of non em ployment on and from 13.10.1980, to non employment in the months of July, August, September and October, 1980, and a specific case of non employment on and from 16.10.1980.
After discussing at great length the oral and documentary evidence and the submissions advanced in the appeals the Division Bench summarised the position thus: "This whole litigation gives us an impression that though there may be a legitimate grievance of non confirmation of casual workers who have put in long terms of employment, the union seems to be wholly responsible for the situation in which the casual workers in dispute have found themselves in, a blatantly false case of non employment and termination of 141 persons was put up.
It was only at later stages that the union found that such a case cannot be successfully proved and indeed was false to the knowledge of the union and a case of termination on 16.10.
1980 was sought to be introduced by amending only a part of the claim statement.
As a result of this amendment, an inconsistency crept in the claim statement itself.
It is rather unfortunate that the Tribunal, by a very superficial approach, merely accepted the evidence that 131 persons were terminated when the evidence, as indicated above, not only runs counter to the initial statement, but is wholly insufficient and inadequate to prove that there was termination on the part of the company.
Merely telling a casual worker that there is no work is consistent with the status of casual workers and the compelling circumstances of the removal of the cards or a positive statement that no work would be given at all to the casual workers, is lacking in the instant case.
In our view, the award of the Tribunal is clearly vitiated because the Tribunal has not even considered the inconsistency in the stand taken by the union and the evidence has not been considered at all by the Tribunal.
We are, therefore, con strained in this case to take the view that it is not proved that the company terminated the employment of any of the employees who were casual workers, and the finding to the contra recorded by the Tribunal and confirmed by the learned Single Judge must be set aside." Thereafter the Division Bench examined the tenability of the 18 stand of the Union in its appeal and came to hold that the plea of retrenchment had not been established.
Thus, the appeal by the Company was allowed and the appeal of the workmen was dismissed.
That is how two appeals have been brought before this Court out of one and the same award.
We have heard counsel for the parties.
Written submis sions have also been filed in support of their respective stands.
We are inclined to take the view that the Division Bench has adopted too strict an approach in dealing with the matter.
It is true that the stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two follow ing days.
The Union had mixed up its claim of confirmation with stoppage of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its counter statement making a definite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen.
It came to find that 131 persons out of the list of 186 appended to the reference had as a fact worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
We are of the view that in the facts and circumstances appearing on the record it was not appropriate for the Division Bench to dismiss the claim of the workmen altogether.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the mate rial on the record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 131 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribu nal.
Quantum of evidence or appreciation thereof for record ing findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.
The finding of fact that workmen out of the list appended to the reference had completed 240 days or work should, therefore, not have been disturbed by the Division Bench of the High Court.
The Tribunal had given the relief on the basis that the statutory requirement of section 25F of the Act had not been complied with.
As the 19 Division Bench found, and we find no justification to take a different view, the case of termination of employment had indeed not been made out.
On that footing a direction for reinstatement with full back wages ought not to have been given.
We are, therefore, inclined to mould the relief available to the workmen.
The claim of the confirmation of 131 workmen as found by the Tribunal and upheld by the learned Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.12.1986 and 5.5. 1988.
Such payments as have been made shall not be recovered.
Parties are directed to bear their respective costs through out.
Appeals allowed.
|
Under the , the State Government referred to the Industrial Tribunal the question whether the nonemployment of certain workmen in the appel lant Company was justified, and if not what was the relief to which they were entitled.
The employer and the workmen filed their respective statements before the Tribunal and the workmen sought an amendment which the Tribunal allowed.
The employer challenged the amendment by way of a writ petition before the High Court.
The High Court took the view that the amendment could be assailed while challenging the award itself.
The award was made and the employer assailed the same in a writ petition filed before the High Court.
The High Court confined the relief to 131 casual employees who have worked for more than 240 days and set aside the award in respect of 50 others since they did not complete 240 days of service.
Aggrieved, both the employer and the workmen filed appeals before the Division Bench.
The Division Bench found that until the amendment was made, the workmen had a different claim from what was ultimately pressed before the Tribunal, that there was great variation in the number of workmen for whom relief was claimed, and came to the conclusion that it was not proved that the employer terminated the services of any of the casual workers.
Thus, the appeal of the employer was allowed and that of the workmen dismissed.
Aggrieved, the workmen have filed these appeals by Special Leave.
14 Allowing the appeals in part, this Court, HELD: 1.
The stand taken by the Union that work had not been provided on 13.10.1980 was wrong in view of the fact that a substantial number of casual workmen out of the 186 had really worked on the 13th and the two following days.
The Union had mixed up its claim of confirmation with stop page of work leading to retrenchment.
The Union obviously realised its mistake when the Company filed its Counter statement making a difinite assertion that bulk of the workmen had worked on 13th, 14th and 15th of October, 1980.
The Tribunal did examine the question of confirmation on the basis of days of work put in by the workmen, It found that 131 persons out of the 186 worked for 240 days.
The number of 186 was reduced to 181 on account of duplication or death.
The remaining 50, according to the Tribunal, had not completed 240 days of work and were, therefore, not entitled to confirmation.
[18C D] 2.
While it is a fact that the workmen had made tall claims which they had failed to substantiate, it was for the Tribunal and the High Court to appreciate the material on record and decide as to which part of the claim was tenable.
The finding of the Tribunal that 13 1 workmen had put in more than 240 days of work was arrived at on the basis of some evidence; it may be that better particulars and clear evidence should have been placed before the Tribunal.
The Tribunal rightly gave the relief on the basis that Section 25F of the industrial Disputes Act had not been complied with.
[18E H] 3.
The claim of confirmation of 131 workmen as found by the Tribunal and upheld by the Single Judge of the High Court shall be restored.
Relief of back wages in the facts and circumstances would, however, not be granted except to the extent it has been covered by two interim orders of this Court dated 14.2.1986 and 5.5.1988.
Such payments as have been made shall not be recovered.
[19B C] 4.
Quantum of evidence of appreciation thereof for recording findings of fact would not come within the purview of High Court 's extraordinary jurisdiction under article 226 of the Constitution.
|
Petition(s) for Special Leave to Appeal (C) No(s).1917/2022
(Arising out of impugned Interim order dated 03-02-2022 in CWP
No.24967/2021 passed by the High Court Of Punjab & Haryana At
Chandigarh)
(With applns for exemption from filing c/c of the impugned judgt)
Date : 17-02-2022 This matter was called on for hearing today.
For Petitioner(s) Mr. Tushar Mehta, Ld. SG
Mr. Rajat Nair, Adv
Mr. Jagbir Malik, AAG
Mr. Madhav Sinhal, Adv
Mr. Shekhar Raj Sharma, Adv.
For Respondent(s) Mr. Mukul Rohatgi, Sr. Adv.,
Mr. Shyam Divan, Sr. Adv.
Mr. Chetan Mittal, Sr. Adv.
Mr. Malak Manish Bhatt, AOR
Mr. Tushar Sharma, Adv
Ms. Neeha Nagpal, Adv.
Mr. Himanshu Gupta, Adv
Mr. Rajat Bector, Adv.
Mr. Udbhav Nanda, Adv.
Mr. S HariHaran, Adv
Mr. Tushar Sharma, Adv
Ms. Jaikriti S. Jadeja, AOR
Ms. Prapti Allagh, Adv
Mr. Dushyant Dave, Sr. Adv.
Ms. Neha Sangwan, Adv.
Mr. Shiv Vinayak Gupta, Adv.
Mr. Jeetender Gupta, AOR
Mr. Puneet Sharma, AOR
Mr. Sidharth Dias,Adv.
Mr. Vishal Sharma, Adv
Mr. Mahesh Kumar, Adv.
Mr. Dhawesh Pahuja, Adv.
Mr. Umrao Singh Rawat, Adv.
Ms. Devika Khanna,Adv.
UPON hearing the counsel the Court made the following
The constitutional validity of Haryana State
Employment of Local Candidates Act, 2020 (‘the Act’)
has been challenged by the Responden t – Faridabad
Industries Association and others before the Punjab and
Haryana High Court. On 3rd February, 2022, the High
Court stayed the implementation of the Act. Aggrieved
by the said Order, State of Haryana is before us by
filing this special leave petition.
The learned Solicitor General of India
appearing for the State of Haryana, submitted that the
impugned order staying the legislation is contrary to
the law laid down by this Court. He relied upon several
judgments of this Court in which it has been held that
there is a presumption of legality in favour of the
legislation and it is ordinarily not stayed unless the
legislation is prima facie unconstitutional or
manifestly illegal. He further submitted that no
reasons have been given by the High Court while staying
the impugned legislation.
Mr. Dushyant Dave, learned senior counsel
appearing for respondent no.1, took us through the order
passed by the High Court to argue that impugned order
cannot be said to be vitiated due to non application of
mind. The High Court was prima facie s atisfied that the
legislation is unconstitutional for which reason the
interim order w as passed. He stated that over 48,000
companies which are registered in the State of Haryana,
would face immense hardship as they cannot employ
anybody from outside the State from the date of
commencement of the Act. He submitted that, if this
Court feels that reasons have to be given by the High
Court, the order passed by the High Court should be
continued and the High Court may be requested to decide
the matter finally.
Mr. Shyam Divan, learned senior counsel appearing
for Manesar Industrial Welfare Association adopted the
arguments of Mr. Dushyant Dave. In case, this Court is
setting aside the Order passed by the High Court, Mr.
Shyam Divan submitted that the impugned order should be
treated as an ad interim order and the High Court can be
requested to decide the Interlocutory Application within
a time frame. In the alternative, he submitted that a
direction can be given by this Court to the State
Government not to take coercive steps against the
employers while requesting the High Court to decide the
Writ Petition at the earliest.
Courts are reluctant to pass interim orders staying
legislations. Stay of legislation can only be when the
Court is of the opinion that it is manifestly unjust or
glaringly unconstitutional. No reasons are given by the
High Court in support of the impugned order by which a
legislation is stayed. Therefore, the impugned order is
set aside.
The impugned order dated 03rd February, 2022 passed
by the High Court is set aside as the High Court has not
given the sufficient reasons for staying the
legislation.
We do not intend to deal with the merits of the
matter as we propose to request the High Court to decide
the Writ Petition expeditiously and not later than a
period of four weeks from today. The parties are
directed to be present before the High Court on 22nd
February, 2022 for fixing the schedule of hearing. The
parties are directed not to seek adjournment.
In the meanwhile, the State of Haryana is directed
not to take any coercive steps against the employers.
The Special Leave Petition is disposed of.
I.A. Nos. 20323 and 20178 of 2022 - Applications for
intervention are allowed. Pending application(s), if
any, shall stands disposed of.
|
The Supreme Court on Thursday set aside an order of the Punjab & Haryana High Court staying the Haryana State Employment of Local Candidates Act, 2020, which grants 75 per cent reservation in private sector jobs to persons domiciled in Haryana [State of Haryana v. Faridabad Industries Association].
The Bench of Justices L Nageswara Rao and PS Narasimha, however, also ordered the Haryana government not to take any coercive action against employers.
"The order passed by the High Court is set aside as the High Court has not given sufficient reasons for staying the legislation," the top court ordered.
Appearing for the State government, Solicitor General Tushar Mehta pointed out that similar legislation was passed in four other states. At this point, the Court asked,
"Do you want us to transfer all the pending cases back here? Should we decide or decide on the stay and send [the matter back] to High Court?"
SG Mehta suggested stay the Punjab & Haryana High Court order while he moves for transfer of all the cases to the Supreme Court. He further submitted that the Act was a means to regulate migrants from settling in other states.
Senior Advocate Dushyant Dave, appearing for the Faridabad Industries Association, intervened, saying,
"Is this the way legislature can act? If this law is applicable for even a day, then there will be daily prosecutions. There are 9 lakh companies."
Justice Narasimha replied,
"Every State has its own legislation. We are not on merits. What we are on is how High Court immediately delivered am interim order."
Dave then explained the consequences of enforcing the legislation.
"Even a law firm in Gurgaon will be affected and cannot employ juniors from other states unless they employ 75 percent juniors from Haryana itself. Definition of employer is sweeping."
Representing the Manesar Employees Association, Senior Advocate Shyam Divan concurred, saying,
"It will have profound impact on business...The Division Bench (of the High Court) considered it correctly. Let this be treated as ad interim order...Assuming there is no stay to be granted, they ought not to take any coercive steps."
The Court then said that it would offer interim protection to the associations, stating,
"We will set aside the order, order no coercive steps and let the High Court decide in one month. We are protecting you."
With a request to the High Court to decide the matter within four weeks, the Bench adjourned the case.
Along with Dave, Advocate-on-Record Jeetender Gupta and Advocate Neha Sangwan appeared for Faridabad Industries Association.
On February 3, a a Bench of Justices Ajay Tewari and Pankaj Jain of the Punjab & Haryana High Court admitted several petitions challenging the law, which provides 75 per cent reservation for local youth in private sector jobs with a monthly salary of less than ₹30,000 from January 15, 2022.
This, after the Faridabad Industries Association, the IMT Industrial Association and Gurgaon Industrial Association and others challenged the Act. The petition by the Gurgaon body stated that the Act was against the provisions of the Constitution and the principle of meritocracy.
The Haryana government immediately moved the Supreme Court in appeal. SG Mehta said that he was given only 90 seconds by the High Court to argue the matter after which the Division Bench of the High Court proceeded to admit the petition and stayed the law.
|
Criminal Appeal No. 111 and 477 of 1979.
From the Judgment and Order dated 19.4.1978 of the Allahabad High Court in Criminal Appeal No. 661 of 1975.
N.P. Midha and B.D. Sharma for the Appellant in Crl.
A. No. 111 of 1979.
Prithvi Raj, Prashant Choudhary and D. Bhandari for the Respondent in Crl.
A. No. 111 of 1979 and Appellant in Crl.
A. No. 477 of 1979.
M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent in Crl.
A. No. 477 of 1979.
The Judgment of the Court was delivered by AHMADI, J.
In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur (U.P.).
The case arose out of the death of one Ram Dhiraj Tiwari in police custody.
Accused No. 1 Rafiuddin Khan (Respondent in Criminal Appeal No. 477 of 1979) was the Sub Inspector of Police Station Kure Bhar in District Sul tanpur at all material times during the commission of the crime.
Accused No. 2 Shamsher Ali (since acquitted) was posted at the said police station as Beat Constable No. 3.
His companion Accused No. 3 (Appellant in Criminal Appeal No. 111 of 1979) was the Head Moharrir of the said police station.
Crime No. 71 of 1971 under Section 395, IPC was registered at the said police station on 25.5.
1971 concern ing a dacoity committed at Village Khara within 32 the jurisdiction of the said police station.
In that connec tion one Jagdamba was arrested on 20.9.1971.
During interro gation by AI the said suspect is alleged to have made.a confessional statement involving Ram Dhiraj Tiwari.
On the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him.
Pursuant thereto A2 and his companions apprehended Ram Dhiraj from his residence in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence of his mother Kamaraji (PW 7), sister 's husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9).
After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1.
PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station.
It is alleged that soon charge of A1, he was given a severe beating with lathi and dandas by A1 and two constables, whose identity is not established, with a view to extracting a confessional statement from him.
When PW 8 and PW 10 tried to intervene.
, A1 demanded a sum of Rs.2000 from them to refrain from ill treating Ram Dhiraj.
Thereupon PW 8 went to Village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla (PW 5) the husband of Ram Dhiraj 's eider sister.
On the arrival of PW 5 at the police station, A1 is alleged to have repeated his demand of Rs.2000.
Since the bribe was not paid A1 and his two compan ions renewed the torture with vengeance which lasted till about 9 or 10 p.m.
As a result of the merciless beating Ram Dhiraj was badly injured.
It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19.10.1971 was not entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in village Hanna Harora by A2 and his two chowkidars.
The defence version was that as he tried to resist arrest A2 and his two companions beat him up as a result of which he sustained the injuries in question.
Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail.
General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sardar police station at about 12.15 noon for admission to the District Jail as he had sustained injuries.
It, however, transpired later that Ram Dhiraj died at about 4.00 p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanput for remand.
On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m.
On 21.10.1971 an inquest 33 was made on the dead body and thereafter the dead body was sent for post mortem examination.
PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante mortem injuries on the body of the deceased.
The prosecution case against A1 was that he was respon sible for having beaten the suspect Ram Dhiraj in the compa ny of two others which resulted in as many as 28 injuries to which he ultimately succumbed.
It was also alleged that he had demanded a bribe of Rs.2000 to desist from meting out third degree punishment to the suspect.
He was, therefore, charged under Section 304, 330, 201, 218/ 34, I.P.C., while his companion A3 was charged under Section 201 and 218, I.P.C.
All the three accused persons denied the charges levelled against them and claimed to be tried.
They however did not deny the fact that Ram Dhiraj died in police custo dy.
The case set up by A 1 was that he was away from the police station between 5.00 p.m. and 7.30 p.m., on 19.10.1971 and, therefore, the allegation that he had tor tured Ram Dhiraj is fabricated and wholly false.
A2 admitted the fact that Ram Dhiraj was arrested outside his village house at Khajapur on 19.10.1971 and was brought to the police station Kure Bhar on the same day at about 4.00 p.m.
He, however, denied having caused any injury to him during arrest.
A3 denied the prosecution allegation that he had deliberately and wilfully posted false entries in the Gener al Diary to help A 1.
The learned Special Judge before whom the accused were tried came to the conclusion that the deceased was arrested from his residence on 19.10.1971 as alleged by the prosecu tion and not from near the culvert of village Hanna Harora on 20.10.1971; that no beating was given to him at the time of his arrest and that he was beaten in police station Kure Bhar where he was taken on 19.10.1971 itself after his arrest by A1 and two other constables who could not be identified.
He also found that the fact that he was brought to the police station on 19.10.1971 was deliberately sup pressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead post ing a false entry No. 10 (Exh.
Ka 13) on the next day, 20.10.1971.
He also found that a false entry was posted in the diary to show that he was sent to Sadar police station where he died before admission to jail.
Lastly he found that A2 had counter signed the general diary entry No. 10 without knowing the contents thereof.
On facts found proved, the trial court convicted A1 under Section 304 (Part II) and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment for 3 years, under Section 201 and 218/34 and 161 I.P.C. and 34 under Section 5(1)(d) read with Section 5(2) of the Preven tion of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on each count all substantive sentences to run concurrently.
A2 was acquitted of all the charges levelled against him.
A3 was, however, convicted under Sections 201 and 218 I.P.C. and was ordered to suffer Rigorous Imprisonment for 2 years on each count.
The sub stantive sentences were ordered to run concurrently.
Both the convicted accused preferred Criminal Appeal No. 661 of 1975 in the High Court.
The State did not question the acquittal of A2.
The High Court accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. as proved through DWI and DW2 and, therefore, the prosecution version was unacceptable.
It also found that the three prosecution witnesses PW5, PW8 and PW 10 were not eye witnesses to the incident and hence their story about beat ing in the police station and the demand of bribe cannot be accepted.
It lastly held that A 1 could not be held respon sible for the omission to post an entry in the general diary about the arrival of the deceased to the police station at 4.00 p.m. as he himself had returned to the police station at 7.30 p.m.
On this line of reasoning the High Court al lowed A1 's appeal and set aside the conviction on all counts.
The High Court, however, maintained the conviction of A3 but reduced the sentence to Rigorous Imprisonment for 6 months.
Criminal Appeal No. 111 of 1979 is preferred by A3 questioning his conviction while Criminal Appeal No. 477 of 1979 is preferred by the State questioning the acquittal of A1.
As both these appeals arise out of the same judgment.
We think it would be convenient to dispose them of by this common judgment.
The fact that Ram Dhiraj died of injuries received by him after his arrest and while he was in police custody is not seriously disputed.
The prosecution version is that he was beaten in the police station on 19.10.1971 by A1 and his two companions after he was arrested from his residence and brought to the police station.
The defence version on the other hand is that the deceased was arrested on 20.10.1971 by A2 and his two companions from near a culvert in village Hanna Harora and he was beaten up by them as he resisted arrest.
Of course A2 has denied this in his statement re corded under Section 313 of the Criminal Procedure Code.
Be that as it may, both the prosecution as well as the defence version suggest that the deceased had received a beating at the hands of the police after his arrest.
The evidence of PW1, Dr. Misra shows that the deceased had received as many as 28 injuries.
by some blunt weapon or weapons which re sulted in his death due to 35 shock and haemorrhage on the afternoon of 20.10.197 1.
The trial court has come to a firm conclusion that these in juries were caused to the deceased in the police station after his arrest.
The High Court also opines that the "number of injuries speaks that most probably he had not received those injuries only during arrest and that he was subjected to severe assault sometime after his arrest".
Even this halting. finding recorded by the High Court shows that both the courts felt that the deceased was seriously beaten while in police custody.
The fact that Ram Dhiraj died a homicidal death is, therefore, rightly not contested before us.
Having regard to the rival versions, the crucial ques tion which must be answered is regarding the date, time and place of arrest.
It is not in dispute that an offence of dacoity at village Khera was registered at Police Station Kure Bhar on 25.5.1971.
One Jagdamba was arrested in that connection on 20.9.1971.
A1 was investigating that crime.
In the course of interrogation by A1, Jagdamba is stated to have revealed the name of Ram Dhiraj as his accomplice.
The evidence of PW 6 Chowkidar Ram Jas is that A1 had directed A2 to arrest Ram Dhiraj and produce him before him.
A2, PW 6 and Chowkidar Harakh then went to fetch Ram Dhiraj.
In the absence of any specific information, the first place to visit to locate the wanted man would be his residence.
PW 6 also deposed that the police party went in search of the deceased to his village and apprehended him from near his residence.
However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma Harora on 20.10.1971.
The learned trial Judge nega tived this contention as the certified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissi ble in evidence since the said enquiry could not be equated to a judicial proceedings and was, therefore, inadmissible in evidence.
He was of the view that the same could not be admitted in evidence under Section 90 of the Evidence Act.
In this view the proper course was to call for the original statement, confront the witness with the contradictory part and on proof use it as evidence to discredit the witness.
We agree with the learned trial judge that the contents of a certified copy of the statement recorded under Section 176 of the Code would not be admissible in evidence unless the contradiction is proved by putting it to the witness in cross examination and the maker has had an opportunity to admit or deny it.
In our view it has to be proved like any other previous state.meat.
The trial judge also opined that even if the statement was admis 36 sible under Section 90, Evidence Act that statement per se cannot efface his substantive evidence in court for the simple reason that at the time of recording of that state ment he was under the direct influence of A1 his superior, and was, therefore, not a free agent.
The learned trial judge was, therefore, of the opinion that the contradiction even if proved cannot militate against the truth of his statement.
The High Court has endorsed the finding of the trial court that as PW 6 was a chowkidar under the adminis trative control of A1 he could be prevailed upon to support the defence theory in t, he inquiry under Section 176.
The High Court also held that the short signature of PW 7 as 'Jassi ' in the General Diary Entry No. 10 must have been obtained by A3 to add sanctity to the defence version.
The High Court finally stated that even if absolute reliance is not placed on the evidence of PW 6 in this behalf, his evidence is duly corroborated by the evidence of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother in law and labourer of the deceased.
These three witnesses have also deposed that the deceased was arrested from his village Khajapur at about 11.00 a.m. on 19.10.1971.
The High Court has rightly ob served that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc., there is nothing brought out in their cross examina tion to discredit their evidence in this behalf.
The prose cution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have their shops near the culvert of village Hanna Harora to negative the defence version regarding the arrest of the deceased from there.
Therefore, both the courts have record ed a concurrent finding of fact that the deceased was ar rested on 19.10.1971 at about 11.00 a.m. from his village Khajapur.
That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false.
The need to make a false entry speaks for itself.
The next question is where, when and by whom were the injuries inflicted on the deceased.
The High Court observes that the medical evidence on record shows that the injuries found on the person of the deceased were caused on the evening of 19.10.1971.
In fact according to the High Court the medical evidence lends credence to the prosecution case that the deceased was arrested on 19.10.1971.
The High Court holds as under: "After considering the injuries of the deceased I have not the least doubt in my mind that those injuries were not caused to him during arrest, and that he was beaten some 37 times after his arrest and before he was sent to jail from police station Kure Bhar".
There is, therefore, no doubt that the High Court reached a firm finding that the arrest was made on 19.10.1971 at about 11.00 a.m. from village Khajapur and the injuries noticed by the medical officer on the person of the deceased at the time of the autopsy were inflicted after his arrest and not during the course of arrest.
Now it is not in dispute that A 1 was serving as the Station Officer of police station Kure Bhar on the 19/20.10.197 1.
He was in charge of the investigation of the dacoity case in which Jagdamba was arrested.
It was he who had interrogated Jagdamba and had secured a confessional statement from him.
The information divulged by Jagdamba necessitated the arrest of the deceased.
It is, therefore, reasonable to infer that AI would interrogate the deceased also.
Since the arrest was made from village Khajapur, the presence of PW 7, PW 8 and PW 9 at the time of the arrest cannot be doubted.
PW 8 and PW 10 deposed that they had followed the deceased to the police station after his ar rest.
PW 8, the brother in law of the deceased and PW 10 have deposed that after the deceased was taken to the police station he was subjected to third degree treatment by AI and two policemen whom they have not identified.
Both have stated on oath that A 1 and his two unidentified companions beat the deceased with lathi and danda to extract a confes sion from him and when they entreated A 1 not to beat the deceased, he demanded Rs.2000 from them.
PW 8 then went to village Desarwa of Pure Nilkanth to fetch PW 5, the husband of the eider sister of the deceased.
On the arrival of PW 5 at the police station he too requested A1 not to beat the deceased but Ai reiterated his demand for Rs.2000.
When the witness expressed his inability to meet the demand, AI resumed the ill treatment to the deceased.
It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour but that by itself, without anything more, was not sufficient to doubt their testimony which receives corroboration from medical evidence.
We are, therefore, of the opinion that unless there are sound grounds to reject their evidence it would not be proper to brush aside their evidence on the specious plea that they are interested witnesses.
Even though the High Court came to the conclusion that the deceased was beaten after his arrest, the High Court refused to place reliance on the direct testimony of these three witnesses insofar as the involvement of A1 is con cerned.
The first reason assigned is that since 38 the village of PW 5 is 11 or 12 miles from Khajapur which in turn is about 10 miles from Kure Bhar, it is not possible that he could have reached the police station by about 4.30 p.m.
In the first place the exact time of arrival of de ceased to the police station is not known.
Secondly when the witnesses spoke about the time factor they merely mentioned the approximate time and not the exact time of PW 8 's depar ture and return to the police station with PW 5.
We are, therefore, of the opinion that the evidence of the prosecu tion witnesses cannot be thrown overboard on such an infirm ground.
The High Court has also cast doubts on the evidence of PW 5 on the ground that he told a deliberate lie that there was no sentry at the police station to make his entry in the police station probable.
This too appears to us to be a weak reason for discarding his evidence.
His presence at the police station is established by the telegram that he sent to the superior police officers complaining about the beat ing given to the deceased.
We, therefore, do not think that the High Court was justified in refusing to act on his evidence on this ground.
In the application exhibit Ka 3 the name of A2 was mentioned as one of the constable who was assisting A1 in beating the deceased to extract a confession from him.
However, in the substantive evidence the witness did not name A2 but merely stated that A1 and two other constables had beaten the deceased.
The High Cort, therefore, inferred that he had wrongly named A2 as one of the assailants in exhibit Ka. 3 and was, therefore, not a reliable witness.
But both in the telegram, and application exhibit Ka. 3 the name of A1 is men tioned.
The omission to name A2 as one of the constables involved in the beating cannot absolve A1.
We are, there fore, inclined to think that the High Court was not right in refusing to act on the evidence of the witness on such consideration.
The High Court rejects the evidence of the three prose cution witnesses on the ground that the telegram was sent by PW 5 as late as 23.10.
In our opinion the High Court failed to appreciate that 19th and 20th were lost in trying to secure the release of the deceased from AI.
After the suspect died on the 20th the next day i.e., 21st was lost in post mortem examination and securing the dead body of the deceased for funeral.
His evidence discloses that the dead body was not delivered to him till 4.30 p.m.
On that day he went to village Khajapur and broke the news of death to PW 7 and other family members.
He has deposed that he sent the telegram only after he received threats from A 1.
The trial court has discussed this aspect of 39 the case in detail and has rightly pointed out that it was a difficult decision to take for PW 5 as he may not like to incur the wrath of A1.
But when A1 threatened him, he was left with no choice but to inform his superiors.
The High Court, with respect, has failed to properly appreciate and assess the situation.
After all everyone thinks twice before deciding to make so serious a complaint against a police officer.
We do not think there was so serious a delay as to throw out the evidence of the three witnesses on that ground.
PW 10 's evidence has been rejected on a very flimsy.
ground.
He is the neighbours of the deceased.
He was at the police station upto 7.00 or 8.00 p.m. and claims to have seen A1 beating the deceased.
His evidence is rejected on the ground that he was interested in getting the policemen punished because the deceased was beaten to death while in police custody.
It is further stated that all others associ ated with him are keen to see that somebody gets punished for the assault on the deceased.
We find it difficult to comprehend why this witness would falsely involve A1 if he was not responsible for the injuries caused to the deceased.
The conduct of this witness is branded as unnatural because he did not go to inform PW 7 and others about the death of the suspect.
Since PW 5 and PW 8 were aware of the death.
There was no need for PW 10 to inform the family members of the deceased as he would be justified in believing that PW 5 and PW 8 must have informed them.
We are, therefore, of the view that the High Court had rejected the evidence of PW 10 on thoroughly untenable grounds.
That brings us to the question whether the alibi set up by A1 can come to his rescue.
In this connection reliance is placed on the evidence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police Station.
He claims to have come to Kure Bhar on 19.10.1971 for investigation of an offence under Section 363/366 I.P.C. of his police station.
He wants us to believe that he was at the Kure Bhar police station from 5.00 p.m. to 9.30 p.m.
According to him A1 was not at the police station till about 7.30 p.m.
Reliance is placed on the general diary entry dated 19.10.1971 to show that A 1 had left the police station at about 10.30 a.m. for Tikar and had returned to the police station at 7.30 a.m.
This entry is proved through DW 2.
Now according to DW 1 even though he had come to Kure Bhar for investigation, he him self remained at the police station throughout and sent his men with A.S.I. (II) of Kure Bhar to Dilawar Ka Purwa for investigation.
He wants us to believe that he came from his police station to investigate a crime but kept sitting at Kure Bhar police station throughout from 5.00 p.m. to 9.30 p.m.
Is this natural conduct? The obvious reason for so stating 40 is to discredit PW 5, PW 8 and PW 10 who have in unmistaka ble terms stated that A1 was at the police station and had beaten the deceased.
DW 1 stand belied by the general diary entry made at his police station on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I. (II) of that police station and went to village Dilawar ka Purwa for investigation and returned to his police station at 4.00 p.m.
According to the said entry from Dilawar ka Purwa he went to Sultanpur where he passed the night, left for Ram nager next morning and returned to his police station via Durgaganj.
The learned trial judge dealt with this part of the defence evidence thus: "It is also improbable of belief that once station officer Jaswant Singh had taken care to come to Kurebhar in order to make the investigation of the crime of his police station, he had leisurely lingered on at PS Kurebhar and not person ally proceeded to make the investigation of the said case".
The learned trial judge observed that he appears to have come forward to help a member of his own fraternity.
The learned trial judge, therefore, came to the conclusion: "If general diary entries Nos. 15 and 21 may have been falsely incorporated, where is the guarantee that the gener al diary entry No. 17 which falls in between these, may not have been falsely incorporated".
The learned trial judge also felt that it was not possible to believe that an important police officer like A 1 would spend the whole day from 10.30 a.m. to 7.30 p.m. inquiring about an application at Village Tiker.
The learned judge in the High Court considers the ap proach of the learned trial judge unacceptable because: "Sub Inspector Juswant Singh has stated that he himself had stayed at Police Station Kurebhar and had sent other members of his party and an A.S.I. of Police Station Kurebhar to Dilawar Ka Purwa.
The mere fact that S.I. Jaswant Singh happens to be a Sub Inspector of Police is no ground to reject his testimony.
After all there should be some reason for a police officer posted at police station Machlishahr at Jaunpur to falsely depose for defending Rafi 41 Uddin Khan appellant.
If S.I. Jaswant Singh 's evidence is disbelieved in the present case, he himself incurs the risk of losing his job" This line of reasoning does not commend to us.
We fail to understand how the learned judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job.
The leaned trial judge gave sound reasons for disbelieving the evidence of DW 1 that he did not stir out of Kure Bhar police station from 5.00 p.m. to 9.30 p.m.
The High Court failed to appreciate that on realising that the condition of the deceased had deteriorated, a false entry was made by A3 at the behest of A1 to show that (i) the deceased was not arrested on 19.10.1971 nor was he brought to the police station Kure Bhar by about 4.00 p.m. and (ii) that he was actually arrested by A2 from near the culvert of village Hanna Harora on 20.10.71 and was given a beating before actual arrest, a fact which is denied by A2 in his statement under Section 313 of the Code.
Thus the foundation for absolving himself from the responsibility of having ill treated the deceased was laid.
The trail court rightly holds that there is no guarantee that entry 17 is accurate when entries 15 and 21 are found to be false.
The entry in the case diary regarding crime No. 28 of Machlishahr recorded by A.S.I. Bankey Bihari who had accompanied DW 1 clearly men tions that when they reached Kure Bhar they met the Thana Adhiyakshakh (i.e. A 1) at about 5.00 p.m. which negatives the theory that A1 had left the police station at 10.30 a.m. and had not returned till 7.30 p.m. of 19.10.
Without coming to grips with the circumstances pointed out by the trial court for disbelieving DW 1, the High Court surpris ingly accepted his evidence as gospel truth only because he ran the risk of losing his job.
The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation.
The High Court should also have realised that it is general ly difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipu late as in this case.
It is only in a few cases, such as the present one, that some direct evidence is available.
In our view the reasons assigned by the High Court are too weak to stand judicial scrutiny.
We are aware that so far as A 1 is concerned, we are called upon to interfere in an acquittal appeal.
Since it is said that an acquittal 42 reinforces the presumption of innocence we have carefully considered the reasons given by the High Court for setting aside the conviction of A 1.
We are satisfied beyond any manner of doubt that the High Court completely misdirected itself.
We have dealt with the facts at some length to justify our interference under Article 136 of the Constitu tion.
Had we not been fully satisfied that gross injustice was done because the High Court misdirected itself we would not have interfered in exercise of our powers under Article 136 of the Constitution.
For the above reasons we dismiss Appeal No. 111 of 1979 preferred by A3 as we are satisfied that his conviction is correctly recorded.
We allow the State 's appeal No. 477 of 1979 and restore the conviction of A1 recorded by the trial court by setting aside his acquittal by the High Court.
On the question of sentence a fervent appeal was made by his counsel that having regard to the passage of time and the changed circumstances A1 should not be sent to jail and the sentence of fine should suffice.
We are unable to accede to this request.
The offence is of a serious nature aggravated by the fact that it was committed by a person who is sup posed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody.
Death in police custody must be seriously viewed for other wise we will help take a stride in the direction of police raj.
It must be curbed with a heavy hand.
The punishment should be such as would deter others from indulging in such behaviour.
There can be no room for leniency.
We, therefore, do not think we would be justified in reducing the punish ment imposed by the trial court.
A1 is on bail.
Since the trial court 's order of his conviction and sentence is restored he will surrender to his bail within a week 's time to serve his sentence.
|
Three police personnel were charged with offences aris ing out of the death of one Ram Dhiraj Tiwari in police custody.
Rafiuddin Khan (accused No. 1) was the Sub Inspec tor of Police Station Kure Bhar, Shamsher Ali (accused No. 2) was a Beat Constable, and Gauri Shankar Sharma (accused No. 3) was the Head Moharrir.
The prosecution version was that AI directed A2 and two police chowkidars, to apprehend Ram Dhiraj, deceased, who was a suspect in a dacoity case.
Pursuant thereto, Ram Dhiraj was arrested from his residence on 19.10.1971 at about 11.00 a.m. and brought to the police station.
The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the presence of two other constables, whose identity was not established, which resulted in as many as 28 injuries to which he ultimately succumbed.
It was also alleged that A1 had demanded a bribe of Rs.2000 to desist from meeting out third degree punish ment to the suspect.
The case against A3 was that he delib erately and wilfully posted false entries in the General Diary to help A1.
The defence version on the other hand was that the deceased was arrested on 20.10.1971 by A2 and his companions from near a culvert in the village and he was beaten up by them as he resisted arrest.
The Trial Court accepted the prosecution version and convicted A1 under section 304 (Part II) section 330, sec tions 201 and 218/34 and 161, IPC, and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947.
Accused No. 2 was acquitted of all charges.
Accused No. 3 was convicted under sections 201 and 218, IPC.
The High Court, however, accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m.
The High Court found that the three prosecution witnesses were not eye witnesses 29 30 to the incident and hence their story about beating in the police station and the demand of bribe could not be accept ed.
The High Court accepted the evidence of DW 1, Jaswant Singh, Station Officer, Machilishahr Police Station, who claimed to have come to Kure Bhar Police Station on 19.10.1971 for investigation of another offence.
According to DW 1, AI was not at the police station till about 7.30 p.m.
While dismissing the appeal filed by accused No. 3, and allowing the State appeal against the acquittal of accused No. 1, and restoring his conviction recorded by the trial court by setting aside his acquittal by the High Court, this Court, HELD: (1) Both the courts have recorded a concurrent finding of fact that the deceased was arrested on 19.10.1971 at about 11.00 a.m. from his village Khajapur.
That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false.
The need to make a false entry speaks for itself.
[36E F] (2) It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour, but that by itself, without anything more, was not sufficient to doubt their tastimony which receives corroboration from medical evidence.
Unless there are sound grounds to reject their evidence it would not be proper to brush aside their evi dence on the specious plea that they are interested witness es.
[37F G] (3) It is difficult to understand how the learned Judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job.
The High Court should have realised that cases are not unknown where police officers have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation.
[41B] (4) The High Court should have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for re sorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case.
It is only in a few cases, such as the present one, that some direct evidence is available.
[41F G] (5) After carefully considering the reasons given by the High Court for setting aside the conviction of AI, this Court is satisfied beyond any manner of doubt that the High Court had completely misdi 31 rected itself and hence interference by this Court under Article 136 of the Constitution, was justified.
[42A B] (6) The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authori ty to brutally assault persons in his custody.
Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj.
It must be curbed with a heavy hand.
The punishment should be such as would deter others from indulging in such behaviour.
There can be no room for leniency.
This Court does not think it would be justified in reducing the punishment imposed by the trial court.
[42D E]
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Appeal No. 81 of 1990.
From the Judgment and Order dated 7.3.1989 of the Rajas than High Court in S.B. Civil (Misc.) Second Appeal No. 2 of 1976.
Guman Mal Lodha, Sushil K. Jain, B.P. Aggarwal and Sudhanshu Atreya for the Appellant.
C.M. Lodha and Surya Kant for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
Heard learned counsel for both sides and special leave is granted.
This appeal by the auction purchaser is against the judgment of the High Court of Rajasthan, Jaipur Bench, dated March 7, 1989 made in S.B. Civil (Misc.) Second Appeal No. 2/76.
The facts, though many, relevant to dispose of the appeal are stated as under: 3.
S/Shri Gokulchand and Rekhchand, Respondents Nos.
5 and 6 herein, defendants 2 and 3 in O.S. No. 37/59 on the file of the Court of the Civil Judge, Jhalawar, obtained in another suit, an ex parte 27 money decree to recover Rs.5,557.10 against Bal Mukund and brought to sale the joint family house which is the disputed property in the present litigation.
Mohanlal, his minor son and his widow filed objections under Order 21 Rule 58 CPC which were rejected.
The sale was confirmed on October 24, 1958, and sale certificate was issued on November 28, 1958.
The respondents filed O.S. No. 37/59 under Order 21 Rule 63 CPC to set aside the sale.
The Trial Court by its judgment dated December 5, 1961 dismissed the suit, but on appeal, the District Judge at Kotah allowed the appeal and decreed the suit for resti tution of the plaint schedule property since possession had in the meantime, been taken.
Second Appeal No. 91/65 filed in the High Court was abated as a whole since Mohanlal died on May 1, 1968 and his legal representatives being Respond ents Nos.
2 to 4 were not brought on record by substitution.
When execution was levied for restitution, though the appel lant raised several objections to its executability but challenge was confined to two grounds, namely, the decree passed by the District Judge is a nullity as he lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit admittedly valued at Rs.15,000 under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, and it was entertainable by the High Court, and sec ondly, the decree being a declaratory one was incapable of execution, notwithstanding the direction for restitution of the plaint scheduled property.
The Executing Court dismissed the objection petition, but on appeal the order of the Executing Court was reversed.
On further appeal the High Court allowed the same, set aside the appellate order and directed the appellate court to transfer it to the appropri ate Civil Court for execution as per law.
As against it the present appeal has been filed.
The contention that the decree passed by the District Judge, Kotah, on appeal is a nullity is devoid of substance.
It is true that under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, the District Court is empowered to entertain an appeal against the decree of a Trial Court of the value only upto Rs.10,000 and by operation of sub section (b) of section 21(1) the appeal would lie only to the High Court as the value of the suit was admittedly Rs.15,000.
But this is a suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the decree of Rs.5,557.10 to be invalid and does not bind them.
In Radha Kunwar vs Reoti Singh, AIR 19 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC it was held that the value of the amount of decree is the value for the purpose of the suit under Order 21 Rule 63 CPC.
Therefore, merely because the valuation of the pro 28 perty sold in execution had been put at Rs.15,000, the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be that valuation.
Accordingly, we hold that Section 21(1)(a) of the Ordinance is attracted.
Therefore, the decree of the Appellate Court in C.A. No. 157/61 on the file of the Court of the District Judge, Kotah, is not a nullity.
The only other question is whether the plaintiff is entitled to restitution of the property.
Once the decree which was the subject matter of execution was declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai, the execution sale would not bind them and as a result they became entitled to restitution.
The decree does admit tedly contain a direction for restitution.
Therefore, it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house.
Accordingly, the decree is executable.
To a question put by the Court whether in view of the long pendency of the proceedings it could not be equitable that the appellant should pay the proper value of the house or deliver possession thereof, the learned counsel for the appellant fairly stated that whatever amount be fixed by this Court, the appellant is prepared to pay the same.
The learned counsel for the respondents on the other hand rely ing upon the statement made in the objections dated April 28, 1973, filed by the appellant maintained that he had then claimed only a sum of Rs.11,900 in all, and the appellant would be entitled only for that amount.
On the other hand, the appellant having been in possession and enjoyment of the property, the respondents are entitled to the mesene prof its.
On the facts and in the circumstances and in considera tion of the fact that the litigation is pending for a long period, we are of the view that justice and equity would be met if we direct the District Court, Kotah, to assess the prevailing market value of the plaint scheduled house and the site as on date and direct the appellant to pay the value thereof within a time to be fixed by him.
If the respondents have not drawn the balance of the sale amount in the original suit filed by S/Shri Gokulchand and Rekhchand and after full satisfaction was recorded, the appellant is entitled to withdraw the said balance amount.
In case the amount was already withdrawn, the appellant is entitled to deduct the same from the amount fixed by the District Court.
In case the appellant fails to pay the value of the property assessed by the District Court as directed above, there shall be a direction for restitution of the plaint scheduled property as per the decree of the Appellate Court in C.A. No. 157/61.
The appeal is accordingly allowed, but, in the circumstances, without costs.
P.S. S Appeal allowed.
|
Under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950 the District Court is empowered to entertain an appeal from a decree of the value of only upto Rs.10,000.
Appeals in other cases lie only to the High Court.
In the instant case, a joint family house was brought to auction in satisfaction of an ex parte money decree to recover Rs.5,557.10.
The respondent coparceners filed objec tions under Order 21 Rule 58 CPC, which were rejected.
The sale was confirmed in 1958 and the sale certificate issued.
They, thereupon, filed a suit under Order 21 Rule 63 CPC to set aside the sale, in which the valuation of the property sold in execution was put at Rs.15,000.
The trial court dismissed the suit.
The District Court, however, allowed the appeal and decreed the suit for resti tution of the property since possession had in the meantime been taken.
The appellant auctionpurchaser raised objections to the execution on the ground that the said decree was a nullity as the District Court lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit valued at Rs.15,000 under Section 21(1)(a) of the Ordinance, and that the decree being a declaratory one was incapable of execution.
The executing court dismissed the objection petition but on appeal the order was reversed.
On further appeal, the High Court set aside the appellate order.
Allowing the appeal in part, the Court, HELD: The value of the amount of decree would be the value for the purpose of the suit under Order 21 Rule 63 CPC.
In the instant case, the suit was laid to set aside the sale by declaring the decree of 26 Rs.5,557.10 to be invalid.
Merely because the valuation of the property sold in execution had been put at Rs.15,000 the valuation of the suit under Order 21 Rule 63 CPC could not be treated to be that valuation.
Accordingly, Section 21(1)(a) of the Ordinance was attracted.
It could not, therefore, be said that the decree passed by the District Court for restitution of the property was a nullity.
Since, it was not a mere declaratory decree but coupled with a decree for restitution of the property, the plaintiff was entitled to execution.
[27G 28A, 28C] Radha Kunwar vs Reoti Singh, AIR 1916 PC 18 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC, referred to.
However, in view of the fact that litigation was pending for a long period, it would be equitable if the appellant is permitted to pay the proper value of the house.
The District Court is directed to assess the prevailing market value of the house and the site as on date.
The appellant to pay the value thereof within a time fixed by the District Court.
[28D, F]
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No. 665 of 1988 (Under Article 32 of the Constitution of India).
Sanjay Parikh, M.L. Sachdev, C.S. Vaidyanathan, S.R. Bhat, S.R. Setia, S.C. Dhanda, H.K. Puri, Harish N. Salve, Rajiv Dutta, Anil Kumar and Sultan Singh for the Petition ers.
Raja Ram Agarwal, S.C. Manchanda, G.L. Sanghi, A.S. Nambiar, Ashok K. Srivastava, R.S. Rana, P.G. Gokhale, B.R. Agarwala, R.B. Hathikhanawala, C.M. Nayar, P.K. Manohar, P.N. Misra, Ms. Halida Khatoon and Santhanam for the Respondents.
G.L. Sanghi, Ms. Vrinda Grover, Miss Seita Vaidialingam, Kailash Vasudev and A.C. Gulathi for the Intervenor.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
In these several writ petitions, we are concerned with the question of harmonising the power of different States in the Union of India to legislate and/or give 735 appropriate directions within the parameters of the subjects in list II of the 7th Schedule of the Constitution with the principle of economic unity envisaged in Part XIII of the Constitution of India.
We are also concerned with the provi sions of exemption, encouragement/incentives given by dif ferent States to boost up or help economic growth and devel opment in those States, and in so doing the attempt of the States to give preferential treatment to the goods manufac tured or produced in those States.
The question essentially is the same in all the matters but the question has to be appreciated in the context of the provisions and the fact situation of the different States involved in these writ petitions.
It would, therefore, be appropriate to first deal with writ petition No. 803/88 (Niksin Marketing Associate & Ors.vs Union of India & Anr.) which is under article 32 of the Constitution by four petitioners.
Petitioner No. 1 in W '.P.
No. 803/88 is a partnership firm carrying on business in New Delhi.
Petitioner No. 2 is its partner and petitioner No. 3 is another partnership business carrying on business at Kanpur in U.P. consisting of petitioner No. 4 and other partners.
The petition chal lenges the constitutional validity of notification No. ST II7558/X 9(208) 1981 U.P. Act XV 48 order 85 dated 26th December, 1985 issued by Uttar Pradesh Govt.
u/s 4A of the Uttar Pradesh Sales Tax Act, 1948.
A prior notification No. ST II/604 X 9(208) 198 1 U.P. Act XV 48 Order 85 dt. 29th January, 1985 was superseded by the aforesaid notification dt. 26th December, 1985.
It also challenges the constitu tional validity of notification No. ST II/8202/X 9(208) 1981 issued by Uttar Pradesh Govt. u/s 8(5) of the which superseded a previous notification.
It also challenges the constitutional validity of section 4A of the Uttar Pradesh Sales Tax Act, 1948 as substituted by U.P. Act 22 of 1984 and also section 8(5) of the and consequentially all actions and proceedings taken by the respondent u/s 5A of the said Act.
The respondents to this application are the State of Uttar Pradesh, the Union of India, and the Commissioner of Sales Tax, Uttar Pradesh.
It is stated that the petitioners carry on the business of selling cinematographic films and other equipments like projectors, sound recording and reproducing equipment, industrial X ray films, graphic art films, Photo films etc.
in the State of Uttar Pradesh and in Delhi.
The petitioners sell the goods upon receiving these from the manufacturers from outside the State of U.P.
They are dealers on behalf of those manufacturers.
The petitioners are dealers of Hindu stan Photo Films Mfg. Co. Ltd., a Government of India under taking.
In 736 U.P. there is a single point levy of sales taX.
The State of U.P. had issued two notifications u/s 4A of the U.P. Sales Tax Act and u/s 8(5) of the exempting new units of manufacturers as defined in the Act in respect of the various goods for different periods ranging from 3 to 7 years as the case may be, from payment of any sales tax.
These notifications are annexed and terms thereof are set out in annexures A 1 & B 1 to the writ petition.
The notification dated 26th December, 1985 stated, inter alia: "The Governor is pleased to direct that in respect of any goods manufactured in an indus trial unit, which is a new unit as defined in the aforesaid Act of 1948 established in the areas mentioned in column 2 of the Table given below, the date of starting production whereof falls on or after the first day of October, 1982 but not later than 31st March, 1990, no tax under the aforesaid Act of 1956 shall be payable by the manufacturer thereof on the turnover of sales on such goods for the period specified in column 3 against each, which shall be reckoned from the date of first sale if such sale takes place not later than 6 months from the date of starting production subject to certain conditions mentioned.
" It is not necessary to set out the conditions.
In the annexure several districts have been mentioned.
In column 2 categories have been made for exemption and have been divid ed in 2 categories, one in case of units with capital in vestment not exceeding 3 lakhs of rupees and another in cases of the units with capital investment exceeding 3 lakhs of rupees.
For one the period of exemption is 5 years while for the latter it is 7 years.
Period of exemption various from 3 to 7 years in different districts.
More or less similar were the terms of notification dated 29th January 1985.
The case of the petitioners is that they did not ini tially feel the adverse effects or discrimination on account of these notifications.
Petitioners point out that the manufacturers covered by the said notification are entitled to sell the articles manufactured by them without liability to pay sales tax while the manufacturers in other States and non manufacturers of the same article selling the same goods in the State are liable to pay sales tax under the local Sales Tax Act as well as under the .
The petitioners found that they had become liable to pay sales tax on their sales at 12% + 10% surcharge 737 (13.2%) under the U.P. Sales Tax Act on photographic and graphic arts material and @ 8% + 10% surcharge (8.8%) on medical x ray films and chemicals and a minimum of 10% on their inter State turnover whereas the manufacturers in the State of U.P. and their dealers had no tax liability by virtue of the exemption granted under the impugned notifica tions.
Thus the petitioners contend that the goods sold by them became costlier by 8.8% to 13.2% depending on the item sold compared to the goods of manufacturers in the State of U.P.
They had given a chart illustrating the position.
They, hence, contended that they became subject to gross discrimi nation and their business was crippled and wanted to sustain the said contention by referring to a chart showing gross sale prices of the products in diverse States.
In the prem ises the petitioners challenge these provisions as ultra vires of the Constitution of India, the rights guaranteed under part XIII as also under articles 14 & 19(l)(g) of the Constitution.
The question is, are these notifications valid, proper and sustainable in the light of part XIII of the Constitu tion of India judged in the background of the said articles.
Appearing in support of the petition, Mr. Sanjay Parikh in writ petitions Nos.
790,665 and 1939 40/88, Mr. C.S. Vaidy nathan and Mr. S.C. Dhanda in writ petition No. 761/88, Mr. Harish N. Salve for the petitioners in writ petition No. 803/88.
Miss Seita Vaidialingam, Mr. G.L. Sanghi, Kailash Vasudev for the intervenors.
These petitions have been heard together.
Apart from the submission that the provisions impugned violate articles 19(l)(g) and 14 of the Constitution, and are in violation of the principles of natural justice, the main challenge to these provisions by Mr. Salve was that they violated the provisions of articles 301 to 305 of Part XIII of the Constitution of India.
The contention of the petitioners was that, subject to other provisions of Part XIII, trade, commerce and intercourse throughout the terri tory of India was enjoined to be free.
Article 302 of the Constitution empowers the Parliament by law to impose such restrictions on the freedom of trade, commerce or inter course between one State and another or within any part of the territory of India as may be required in the public interest.
Article 303 indicates the restrictions on the legislative powers of the Union and the States with regard to trade and commerce, and stipulates that, notwithstanding anything contained in article 302, neither Parliament nor the legislature of the States shall have power to make any law giving or authorising the giving of any preference to one State 738 over another or making or authorising the making of any discrimination between one State and another by virtue of any entry relating to trade and commerce in any list of the 7th Schedule.
Sub clause (2) of article 303 enjoins that nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.
Article 304 deals with restrictions on trade, commerce and intercourse among States, which is as follows: "304.Restrictions on trade, commerce and intercourse among States.
Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest; Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
" Article 305 saves certain existing laws and laws provid+ing for State monopolies.
Our attention was drawn to the decision of this Court in Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; There this Court was concerned with the Assam Taxation (on goods carried by Roads and Inland Waterways) Act, 1954 which was passed under entry 56 of list II of the 7th Schedule to the Constitution.
The appellants therein contended that the Act had violated the freedom of trade guaranteed by article 301 of the Constitution and as it was not passed after obtaining the previous sanction of the President as 739 required by article 304(b), it was ultra vires.
The respondent therein had urged that taxing laws governed only by Part XII and not Part XIII (which contained articles 301 & 304) and in the alternative that the provisions of Part XIII applied only to such legislative entries in the 7th Schedule as dealt specifically with trade, commerce and intercourse.
Gajendragadkar, Wanchoo and Das Gupta, JJ. held that the Act violated article 301 and since it did not comply with the provisions of article 304(b) it was ultra vires and void.
On the contrary, Chief Justice Sinha held that the Assam Act did not contravene article 301 and was not ultra vires.
According to the learned Chief Justice, neither the one extreme position that article 301 included freedom from all taxation nor the other that taxation was wholly outside the purview of article 301 was correct; and that the freedom conferred by article 301 did not mean freedom from taxation simpliciter but only from the erection of trade barriers, tariff walls and imposts which had a deleterious effect on the free flow of trade, commerce and intercourse.
Justice Shah on the other hand expressed the view that the Assam Act infringed the guarantee of freedom of trade and commerce under article 301 and as the Bill was not moved with the previous sanction of the President as required by article 304(b) nor was it validat ed by the assent of the President under article 255(c), it was ultra vires and void.
In construing the provisions with which we are concerned herein, in our opinion, it is instructive to remind our selves, as was said in James vs Commonwealth of Australia, [19361 AC 578 at 613, that the relevant provision of the Constitution has to be read not in vacuo but as occurring in a single complex instrument in which one part may throw light on another, and therefore, Gajendragadkar, J. as the learned Chief Justice then was, at p. 860 of the said re port, rightly in our opinion posed the problem as follows: "In construing article 301 we must, therefore, have regard to the general scheme of our Constitution as well as the particular provi sions in regard to taxing laws.
The construction of article 301 should not be determined on a purely academic or doctrinaire considerations; in construing the said Article we must adopt a realistic approach and bear in mind the essen tial features of the separation of powers on which our Constitution rests.
It is a federal constitution which we are interpreting, and so the impact of article 30 1 must be judged accordingly.
Besides, it is not irrelevant to remem ber in this connection that the Article 23 are construing imposes a constitutional limitation on the power of 740 the Parliament and State Legislatures to levy taxes, and generally, but for such limitation, the power of taxation would be presumed to ,be for public good and would not be subject to judicial review or scrutiny.
Thus considered we think it would be reasonable and proper to hold that restrictions freedom from which is guaranteed by article 301, would be such restric tions as directly and immediately restrict or impede the free flow or movement of trade.
Taxes may and do amount to restrictions; but it is only such taxes as directly and immedi ately restrict trade that would fall within the purview of article 30 1.
The argument that all taxes should be governed by article 301 whether or not their impact on trade is imme diate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld.
If the said argument is accepted it would mean, for instance, that even a legisla tive enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an addition al wage bill may indirectly affect trade or commerce.
We are, therefore, satisfied that in determining the limits of the width and ampli tude of the freedom guaranteed by article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement?"
It is in that light we must examine the impugned provision.
It is necessary to bear in mind that taxes may and sometimes do amount to restrictions but it is only such taxes as directly and immediately restrict trade that would fall within the mischief of article 301.
Mr. Salve, however, rightly reminded us that regulatory measures or measures imposing compensatory taxes for using trading facilities do not come within the purview of restrictions contemplated under article 301.
Here, it is necessary to refer to the deci sion of this Court in the Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 SCR 491 which was a decision of a bench of this Court consisting of 7 learned Judges, and was concerned with the Rajasthan Motor Vehicles Taxation Act, 1951.
Sub section (1) of section 4 of that Act provided that no motor vehicle shall be used in any public place or kept for use in Rajasthan unless the owner thereof had paid in respect of it, a tax at the appropriate rate specified in the schedules to that Act within the time allowed.
The appellants therein were carrying on the busi ness of plying stage carriages in the State of Ajmer.
They held permits and plied their buses on diverse routes.
There was one route which lay 741 mainly in Ajmer State but it crossed narrow strips of the territory of the State of Rajasthan.
Another route, Ajmer to Kishangarh, was substantially in the Ajmer State, but a third of it was in Rajasthan.
Formerly, there was an agree ment between the Ajmer State and the former State of Kishan garh, by which neither State charged any tax or fees on vehicles registered in Ajmer or Kishangarh.
Later, Kishan garh became a part of Rajasthan.
On the passing of the Rajasthan Motor Vehicles Taxation Act, 1951, and the promul gation of the rules made thereunder, the Motor Vehicles Taxation Officer, Jaipur, demanded of the appellants payment of the tax due on their motor vehicles for the period from April 1, 1951 to March 31, 1954.
The appellants challenged the legality of the demand on the grounds that section 4 of the Act read with the Schedules constituted a direct and immedi ate restriction on the movement of trade and commerce with and within Rajasthan inasmuch as motor vehicles which car ried passenger and goods within or through Rajasthan had to pay tax which imposed a pecuniary burden on commercial activity and was therefore hit by article 301 of the Constitu tion and was not saved by article 304(b) inasmuch as the provi so to article 304(b) was not complied with, nor was the Act assented to by the President within the meaning of article 255 of the Constitution.
It was held by Das, Kapur, Sarkar and Subba Rao, JJ. as the learned Judges then were, that the Rajasthan Motor Vehicles Taxation Act, 1951 did not violate the provisions of article 301 of the Constitution of India and that the taxes imposed under the Act were compensatory or regulatory taxes which did not hinder the freedom or trade, commerce and intercourse assured by that article.
Das, Kapur and Sarkar, JJ. held that the concept of freedom of trade, commerce and intercourse postulated by article 301 must be understood in the context of an ordinary society and as part of a Constitution which envisaged a distribution of powers between the States and the Union, and if so understood, the concept must recognise the need and legitimacy of some degree of regulatory control, whether by the Union or the States.
Mr. Justice Subba Rao, as the learned Chief Justice then was, observed that the freedom declared under article 30 1 referred to the right of free movement of trade without any obstructions by way of barriers, inter State or intra State, or other impediments operating as such barriers; and the said freedom was not impeded, but on the other hand, promot ed, by regulations creating conditions for the free movement of trade, such as, police regulations, provisions for services, maintenance of roads, provision for aerodromes, wharfs etc., with or without compensation.
Parliament may be law impose restrictions, it was stated, on such freedom in the public interest, and the States also, in exercise of their legislative power, may impose similar restrictions, 742 subject to the proviso mentioned therein.
Laws of taxation were not outside the freedom enshrined either in article 19 or 301.
Mr. Justice Hidayatullah, as the learned Chief Justice then was, and Rajagopala Ayyangar and Mudholkar, JJ.
held that section 4(1) of the Rajasthan Motor Vehicles Taxation act, 195 1 offended article 301 of the Constitution, and as resort to the procedure prescribed by article 304(b) was not taken it was ultra vires the Constitution.
The pith and substance of the Act was the levy of tax on motor vehicles in Rajasthan or their use in that State irrespective of where the vehi cles came from and not legislation in respect of inter State trade or commerce.
A tax which is made the condition prece dent of the right to enter upon and carry on business is a restriction on the right to carry on trade and commerce within article 30 1 of the Constitution.
The act was not, in its true character, regulatory.
In judging the situation it would be instructive to bear in mind the obser vations of Mr. Justice Das at p. 5 12 of the report, where he observed that in evolving an integrated policy on this subject our Constitution makers seem to have kept in mind three main considerations which may be broadly stated thus: first, in the larger interests of India there must be free flow of trade, commerce and intercourse, both inter State and intra State; second, the regional interests must not be ignored altogether; and third, there must be a power of intervention by the Union in any case of crisis to deal with particular problems that may arise in any part of India.
At p. 523 of the report, it was reiterated that for the tax to become a prohibited tax it has to be a direct tax the effect of which is to hinder the movement part of trade.
Dealing with wide interpretation Justice Das observed at p. 523 5 of the said report as follows: "The widest view proceeds on the footing that article 301 imposes a general restriction on legislative power and grants a freedom of trade, commerce and intercourse in all its series of operations, from all barriers, from all restrictions, from all regulation, and the only qualification that is to be found in the article is the opening clause, namely, subject to the other provisions of Part XIII.
This in actual practice will mean that if the State Legislature wishes to control or regu late trade, commerce and intercourse in such a way as to facilitate its free movement, it must yet proceed to make a law under article 304(b) and no such bill can be introduced or moved in the Legislature of a State without the previous sanction of the President.
The practi 743 cal effect would be to stop or delay effective legislation which may be urgently necessary.
Take, for example, a case where in the inter ests of public health, it is necessary to introduce urgently legislation stopping trade in goods which are deleterious to health, like the trade in diseased potatoes in Australia.
If the State Legislature wishes to introduce such a bill, it must have the sanction of the President.
Even such legislation as imposes traffic regulations would require the sanction of the President.
The learned Judge reiterated that the Court will have to ascertain whether the impugned law in a given case affects directly the said movement or indirectly and remotely affects it.
Mr. Salve, however, sought to contend that as regards the local sales tax, there were broadly two well accepted propositions, namely, sales tax was a tax levied for the purpose of general revenue.
Secondly, it was neither a compensatory tax nor a measure regulating any trade.
Reli ance was placed on the observations of Mr. Justice Raghubar Dayal, J. in Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., ; but the context in which the said observations were made has to be examined.
That case dealt with a petition under article 32 of the Consti tution.
The petitioners therein were dealers in hides and skins in the State of Madras.
The main contention was that the tanned hides and skins imported from outside and sold inside the State were, under r. 16 of the Madras General Sales Tax Rules, subject to a higher rate of tax than the tax imposed on hides and skins tanned and sold within the State and this discriminatory taxation offended article 304 of the Constitution.
The contentions of the respondents therein were that sales tax did not come within the purview of article 304(a) as it was not a tax on the import.
of goods at the point of entry, that the impugned rule was not a law made by the State legislature, that the im pugned rule by itself did not impose the tax but fixed the single point at which the tax was imposed by sections 3 & 5 of the Act was to 744 be levied; and that the impugned rule was not made with an eye on the place of origin of the goods.
It was held that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulating measures.
Reliance was also placed by Mr. Salve on the observa tions of Justice Raghubar Dayal in A. Hajee Abdul Shakoor & Co. vs State of Madras, 17 at 225.
See also the observations in State of Madras vs N.K. Nataraja Mudali ar; , at 847 and Andhra Sugars Ltd. & Anr.
vs State of Andhra Pradesh & Ors., ; where at p. 7 18 of the report it was reiterated that a sale tax which discriminates against goods imported from other States may impede the free flow of trade and is then invalid unless protected by article 304(a).
It is, however, necessary to bear in mind that in N.K.N. Mudaliar 's, case (supra) at p. 850 Mr. Justice Bachawat after referring to several cases observed as follows: "But, there can be no doubt that a tax on such sales would not normally offend Article 301.
That Article makes no distinction between movement from one part of the State to another part of the same State and movement from one State to another.
Now, if a tax on intra State sale does not offend Article 301, logically, I do not see how a tax on inter State sale can do so.
Neither tax operates directly or imme diately on the free flow of trade or the free movement of the transport of goods from the part of the country to the other.
The tax is on the sale.
The movement is incidental to and a consequence of the sale.
" There was a reference in the said judgment to the obser vations of Jagannathadas, J. in The Bengal Immunity Co. Ltd. vs State of Bihar, at 754 wherein it was stated: "Now it is not disputed that a tax on a purely internal sale which occurs as a result of the transportation of goods from a manufacturing centre within the State to a purchasing market within the same State is clearly permissible and not hit by anything in the Constitution.
If a sale in that kind of trade can bear the tax and is not a burden on the freedom of trade, it is difficult to see why a single point tax on the same kind of sale where a State boundary intervenes bet 745 ween the manufacturing centre and the consum ing centres need be treated as a burden, especially where that tax is ultimately to come out of the residents of the very State by which such sale is taxable.
Freedom of trade and commerce applies as much within a State as outside it.
It appears to me again, with great respect, that there is no warrant for treating such a tax as in any way contrary either to the letter or the spirit of the freedom of trade, commerce and ' intercourse provided under Article 301.
" It was contended that the ex hypothesi violates article 301 of the Constitution since it is a tax on inter State movement of goods.
Shah, J. in Mudali ar 's case (supra) at p. 84 1 of the report observed that tax under the on interState sales, it must be noticed, is in its essence a tax which encumbers movement of trade or commerce, if it (a) occasions the movement of goods from one State to another; (b) is effected by a trans fer of documents of title to the goods during their movement from one State to another.
It was contended by Mr. Salve that by exempting the local manufacturers from both local and central sales tax, the State Govt. has clearly made the imposition of both local and central sales tax discriminato ry and prejudicial to outside goods.
The goods of the local manufacturer, when sold by him, do not bear any tax whereas the goods imported from outside the State have to bear the burden of sales tax.
It was also contended that similarly, the goods of a 'local manufacturer, when exported from the State of U.P. do not have to bear tax, while goods brought into the State of U.P. and further ex , ported in competi tion with the local goods have to bear the tax, so there is clear discrimination against goods produced by manufacturers situated outside the State.
The discrimination within the meaning of article 301 read with article 304 arises where there is a difference in the rates of sales tax levied, it was sought to be emphasised by Mr. Sanjay Parikh for some of the peti tioners.
This proposition has been reiterated by this Court in a large number of cases, according to counsel, and we were referred to the observations in State of Madhya Pradesh vs Bhailal Bhai & Ors., ; at 268 9 and Mudal iar 's case (supra) where at p. 847 Shah, J. reiterated that imposition of differential rates of tax by the same State on goods manufactured or produced in the State and similar goods imported in the State is prohibited under article 304(a).
It was also reiterated by this Court in Rattan Lal & Co. & Anr.
vs The Assessing Authority & Anr.
, ; at 557 dealing with the Punjab General Sales Tax Act that when a taxing State was not imposing rates of tax on imported goods different from the rates of 746 tax on goods manufactured or produced, article 304 had no application.
So long as the rate was the same, article 304 was satisfied.
Reference was made to India Cement & Ors.vs State of Andhra Pradesh & Ors. whereas at p. 759 this Court observed that variation of the rate of inter state sales tax did affect free trade and commerce and created a local preference which was contrary to the scheme of Part XIII of the Constitution.
To similar effect are the observations to which Mr. Sanjay Parikh has referred us in Weston Electronics & Anr.
vs State of Gujarat & Ors.
Mr. Salve strongly relied on the observations of Justice Cardozo in C.A.F. Seeling Inc. vs Charles H. Baldwin, at 1038 where the learned Judge observed while he was dealing with article (1) section 8, clause (3) of the American Constitution which is known as the 'Commerce Clause ' "This part of the Constitution was framed under the dominion of a political philosophy less parochial in range.
It was framed upon the theory that the peoples of the several States must sink or swim together and that in the long run prosperity and salvation are in union and not division".
This passage has been cited with approval in this Court in Atiabari 's case (supra) by Gajendragadkar, J. as aforesaid.
We were referred to the observations of Firm A.T.B. Mehtab Majid & Co.s case ; at 445.
It was contended that the acceptance of the petitioner 's case would not conflict with the plenary power of the State to grant exemptions under the Act because statutory powers have to yield to constitutional inhibitions and, therefore, article 304(a) & (b) being envisaged to safeguard the eco nomic unity of the country, these must have precedence.
It was also contended that the petitions under article 301 read with 304(a) are clearly maintainable.
Reliance was placed in Smt.
In light of these, it was contended by the petitioners that the petition under article 32 is clearly maintainable.
The question as we see is, how to harmonise the con struction of the several provisions of the Constitution.
It is true that if a particular provision being taxing provi sion or otherwise impedes directly or immediately the free flow of trade within the Union of India then it will be violative of article 301 of the Constitution.
It has further to be borne in mind that article 301 enjoins that trade, commerce and 747 intercourse throughout the territory of India shall be free.
The first question, therefore, which one has to examine in this case is, whether the sales tax provisions (exemption etc.) in these cases directly and immediately restrict the free flow of trade and commerce within the meaning of article 30 1 of the Constitution.
We have examined the scheme of article 30 1 of the Constitution read with article 304 and the observations of this Court in Atiabari 's case (supra), as,also the observations made by this Court in Automobile Transport, Rajasthan 's case (supra).
In our opinion, Part XIII of the Constitution cannot be read in isolation.
It is part and parcel of a single constitutional instrument envis aging a federal scheme and containing general scheme confer ring legislative powers in respect of the matters relating to list II of the 7th Schedule on the State.
It also confers plenary powers on States to raise revenue for its purposes and does not require that every legislation of the State must obtain assent of the President.
Constitution of India is an organic document.
It must be so construed that it lives and adapts itself to the exigencies of the situation, in a growing and evolving society, economically, politically and socially.
The meaning of the expressions used there must, therefore, be so interpreted that it attempts to solve the present problem of distribution of power and rights of the different States in the Union of India, and anticipate the future contingencies that might arise in a developing organism.
Constitution must be able to comprehend the present at the relevant time and anticipate the future which is natural and necessary corollary for a growing and living organism.
That must be part of the constitutional adjudica tion.
Hence, the economic development of States to bring these into equality with all other States and thereby devel op the economic unity of India is one of the major commit ments or goals of the constitutional aspirations of this land.
For working of an orderly society economic equality of all the States is as much vital as economic unity.
The taxes which do not directly or immediately restrict or interfere with trade, commerce and intercourse throughout the territory of India, would therefore be excluded from the ambit of article 301 of the Constitution.
It has to be borne in mind that sales tax has only an indirect effect on trade and commerce.
Reference may be made to the Constitution bench judgment of this Court in Andhra Sugar Ltd. & Anr.vs State of A. P. & Ors., where this Court observed that normally a tax on sale of goods does not directly impede the free movement of transport.
See also the observations in Mudaliar 's case (supra) where at p. 851 it was observed that a tax on sale would not normally offend article 301.
That 748 article made nO distinction between movement from one part of State to another part of the same State and movement from one State to another.
In this connection, reference may also be made to the observations in Bengal Immunity 's case (supra).
Both the preceding cases clearly establish that if a taxing provision in respect of intra State sale does not offend article 30 1, logically it would not affect the freedom of trade in respect of free flow and movement of goods from one part of the country to the other under article 301 as well.
It has to be examined whether difference in rates per se discriminates so as to come within articles 301 and 304(a) of the Constitution.
It is manifest that free flow of trade between two States does not necessarily or generally depend upon the rate of tax alone.
Many factors including the cost of goods play an important role in the movement of goods from one State to another.
Hence the mere fact that there is a difference in the rate of tax on goods locally manufac tured and those imported would not amount to hampering of trade between the two States within the meaning of article 301 of the Constitution.
As in manifest, article 304 is an excep tion to article 30 1 of the Constitution.
The need or taking resort to exception will arise only if the tax impugned is hit by articles 301 and 303 of the Constitution.
If it is not then article 304 of the Constitution will not come into picture at all.
See the observations in Nataraja Mudaliar 's case (supra) at pp.843 6 of the report.
It has to be borne in mind that there may be differentiations based on consid eration of natural or business factors which are more or less in force in different localities.
A State might be allowed to impose a higher rate of tax on a commodity either when it is not consumed at all within the State or if it is felt that the burden falling on consumers within the State, will be more than that and large benefit is derived by the revenue.
The imposition of rates of sales tax is influenced by various political, economic and social factors.
Preva lence of differential rate of tax on sales of the same commodity cannot be regarded in isolation as determinative of the object to discriminate between one State and another.
Under the Constitution originally flamed revenue from sales tax was reserved for the States.
In V. Guruviah Naidu & Sons.vs State of Tamil Nadu & Anr.
The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter State trade and commerce.
The ques tion as to when the 'levy of tax would consti tute discrimination would depend upon a varie ty of factors including the rate of tax and the item of goods in respect of the sale of which it is levied.
The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State.
When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the rate of 3 per cent when they were purchased in raw form.
As against that, in the case of hides and skins which have been imported from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 1 1/2 per cent at the point of first sale in the State of the dressed hides and skins.
This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins com pared to the price of raw hides and skins.
It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins.
The Legisla ture, it seems, calculated the price of hides and skins in dressed condition to be double the price of such hides and skins in raw state.
To obviate and prevent any discrimina tion of differential treatment in the matter of levy of tax, the Legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins.
" The object is to prevent discrimination against the imported goods by imposing tax on such goods at a rate higher than that borne by local goods.
The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale on which it is levied.
Every differentiation is not discrimination.
The word 'discrimination ' is not used in article 14 but is used in articles 16, 303 & 304(a).
When used in article 304(a), it involves an element of inten tional and purposeful differentiation thereby creating economic barrier and involves an element of an unfavorable bias.
Discrimination implies an unfair classification.
Reference may be made to the observations of this Court in Kathi Raning Rawat vs The State Of Saurashtra, ; where Chief Justice Shastri at p. 442 of the report reiterated that all legislative differentiation is not necessarily discriminatory.
The whole doctrine of classification is based on this and on the well known fact that the circumstances covering one set of provisions or objects may not necessarily be the same as these covering another set of provisions and objects so that the question of unequal treatment does not arise as between the provisions covered by different sets of circumstances.
Where the general rate applicable to the goods locally made and on those imported from other States is the same nothing more normally and generally is to be shown by the State to dispel the argument of discrimination under article 304(a), even though the resultant tax amount on imported goods may be different.
Here, reference may be made to Ratan Lal 's case (supra).
In the instant writ petition, in the State of U.P. those producers or manufacturers who do not come within the ambit of notifications, have to pay tax on their goods at the general rate described and there is no differentiation or discrimination qua the imported goods.
The question naturally arises whether the power to grant exemption to specified class of manufacturers for a limited period on certain conditions as provided by section 4A of the U.P. Sales Tax Act is violative of article 304(a).
It was contended by the petitioners that Part XIII of the Constitu tion was envisaged for preserving the unity of India as an economic unit and, hence, it guarantees free flow of trade and commerce throughout India including between State and State and as such article 304(a), even though an exception to article 301, yet applies where an exemption is granted by one State to a special class of manufacturers for a limited period on certain conditions.
It was so submitted that either a State should grant exemption to all goods irrespec tive of the fact that the goods are locally manufactured or imported from other States, else it would be violative of article 304 and 304(a).
It was submitted by the respondents that this is not the correct position.
This argument ignores the basic feature of the Constitution and also the fact that the concept of economic unity may not necessa 751 rily be the same as it was at the time of Constitution making for establishing new industries so as to be economically de veloped.
It was also submitted that if all the parts of India i.e. to say all the States are economically strong or developed then only can economic unity as a whole be assured and strengthened.
Hence, the concept of economic unity is ever changing with very wide horizons and cannot and should not be imprisoned in a strait jacket of the concept and notion as advocated by the petitioner.
Economic unity of India is one of the constitutional aspirations of India and safeguarding the attainment and maintenance of that unity are objectives of the Indian Constitution.
It would be wrong, however, to assume that India as a whole is already an economic unit.
Economic unity can only be achieved if all parts of whole of Union of India develop equally, economi cally.
Indeed, in the affidavits of opposition various grounds have been indicated on behalf of the respondents suggesting the need for incentives and exemptions, and these were suggested to be absolutely necessary for economic viability and survival for these industries in these States.
These were based on cogent and intelligible reasons of economic encouragement and growth.
There was a rationale in these which is discernible.
The power to grant exemption is always inherent in all taxing Statutes.
If the suggestions/submissions as advanced by the petitioners are accepted, it was averted, and in our opinion rightly, that it will destroy completely or make nugatory the plenary powers of the States.
If the exemption is based on natural and business factors and does not involve any intentional bias, the impugned notifications to grant exemption for limited period on certain specific conditions cannot be held to be bad.
Judged by that yardstick, the present notifica tions cannot be held to be violative of the constitutional provisions.
An examination of article 304(a) would reveal that what is being prohibited by this article which is really an exception to article 30 1 will not apply if article 301 does not apply.
In the instant case the general rate applicable to locally made goods is the same as that on imported goods.
Even supposing without admitting that sales tax is covered by article 301 as a tax directly and immediately hampering the free flow of trade, it does not follow that it falls within the exemption of article 304 and it would be hit by article 301.
Still the general rate of tax which is to be compared under article 304(a) is at par and the same qua the locally made goods and the imported goods.
752 Concept of economic barrier must be adopted in a dynamic sense with changing conditions.
What constitutes an economic barrier at one point of time often cease to be so at another point of time.
It will be wrong to denude the people of the State of the right to grant exemptions which flow from the plenary powers of legislative heads in list II of the 7th Schedule of the Constitution.
In a federal polity, all the States having powers to grant exemption to specified class for limited period, such granting of exemption cannot be held to be contrary to the concept of economic unity.
When all the States have such provisions to exempt or reduce rates the question of economic war between the States inter se or economic disintegration of the country as such does not arise.
It is not open to any party to say that this should be done and this should not be done by either one way or the other.
It cannot be disputed that it is open to the States to realise tax and thereafter remit the same or pay back to the local manufacturers in the shape of subsidies and that would neither discriminate nor be hit by article 304(a) of the Constitution.
In this case and as in all constitutional adjudications the substance of the matter has to be looked into to find out whether there is any discrimination in violation of the constitutional mandate.
Exercise of power under article 304(a) can be effective only if the tax or duty on goods imported from other States and the tax or duty imposed on similar goods manufactured or produced in that State is such that there is no discrimination.
Hidayatullah, J. as the learned Chief Justice then was, observed, at p. 883 of the report, that article 304(a) imposes no ban but lifts the ban imposed by articles 30 1 & 303 subject to one condition.
That article is enabling and prospective.
Counsel for the respondents drew out attention to articles 38 & 39 of the Constitution.
The striving for the attainment of the objects enshrined in these Articles is enjoined.
For achieving these objects the States have neces sarily to develop themselves economically so as to 753 secure economic unity and to minimise the inequalities and imbalances between State and State and region and region.
If the power to grant exemption has been conferred for achiev ing these objects on all, it is not possible to assail these as violative of article 304 as the latter article has to be interpreted in conjunction with others and not in isolation could validly classify new units producing edible oil as distinct and separate from other units and validly withdraw the exemption in relation to such units only.
It is true that the afore said observations were made in the context different from article 304(a) but basically the concept of equality embodied in articles 304(a) & 16 are the same.
article 14 enjoins upon the State to treat every person equal before the law while article 304(a) enjoins upon the State not to discriminate with respect to imposition of tax on imported goods and the locally made goods.
vs State of Andhra Pradesh & Ors., (supra); Weston Electronics vs State of Gujarat, (supra) and West Bengal Hosiery Assn.
& Ors.
vs State of Bihar & Anr.
, ; wherein it has been reiterated that difference in rate of sales tax is hit by articles 301 & 304 but the said conclusions were arrived at in the context of a controversy not in the present form and the question of exemption as such did not arise in these cases, as explained later.
These cases were not at all concerned with granting of exemption to a special class for a limited period on specific conditions of main taining the general rate of tax on the goods manufactured by all those producers in the State who do not fall within the exempted category at par with the rate applicable to import ed goods as we have read these cases.
Hence, it was not necessary in those decisions to consider the problem in its present aspect.
If, however, the said power is exercised in a colourable manner intentionally or purposely to create unfavorable bias by prescribing a general lower rate on locally manufactured goods either in the shape of general exemption to locally manufactured goods or in the shape of lower rate of tax, such an exercise of power can always be struck down by the courts.
That is not the situation in the instant cases.
The aforesaid decisions, therefore, are not authorities for the general proposition that while, main taining the general rate at par, special rates for certain industries for a limited period could not be prescribed by the States.
754 There was another subsidiary question in these matters as to whether the legislation in the shape of notification is law within the meaning of article 304 of the Constitution.
In The State of U.P. & Ors.vs Babu Ram Upad hya, [196] 12 SCR 679 at 702 this Court relied on a passage from Maxwell "On the Interpretation of Statutes" and held that a rule framed in the absence of any specific provision in the Act shall be deemed to be a part of the Act itself.
In the State of Tamil Nadu vs Hind Stone etc.; , at 757 this Court relied upon the aforesaid dictum in the case of Babu Ram Upadhya, (supra) and distinguished the decision in State of Mysore vs H. Sanjeeviah, ; cited on behalf of the petitioner.
This Court in Kailash Nath & Anr.vs State of U. P. & Ors., AIR 1957 SC 790 at 791 has held that the notification having been made in accord ance with the power conferred by the Statute has statutory force and validity and, therefore, exemption is as if con tained in the Act itself.
The U.P. Sales Tax Act by section 24(4) confers rule making powers on the State Government.
Section 25 confers powers on the State Government to issue notifications with retrospective effect.
Hence, it cannot be disput ed that the exemption notification is the exercise of the legislative power.
This Court in State of U.P. & Ors.vs Renusagar Power Co. & Ors., ; at 100 has held that the power to grant exemption is quasi legislative.
In M/s Narinder Chand Hem Raj & Ors.vs Lt. Governor, Adminis trator, U.T., Himachal Pradesh & Ors., at 751 it was held that the exercise of the power is legisla tive whether it is by the legislature or by the delegate.
In respect of the decisions aforesaid relied on behalf of the petitioner, on examination of the observations in India Cement 's case (supra) to the contrary to which stated hereinbefore on this aspect must be confined to the facts of that case alone as the said decision had no occasion to consider it in the full light.
In the aforesaid view of the matter the challenge in these petitions to the aforesaid exemptions cannot, in our opinion, be upheld.
The writ petitions dealing with the U.P. matters on the same conten tions, therefore, fail.
Writ petition No. 665/88 being M/s Video Electronics Pvt. Ltd. & Anr.
By that notification the State Government has differentiated between the manufacturers of electronics goods outside the State and within the State.
Under section 5 of the Punjab General Sales Tax Act (hereinafter referred to as 'the Act '), the State of Punjab had been imposing sales tax @ 10% + 2% surcharge on electronics goods sold within the State irrespective of their manufacture.
The State Govt. in pursuance of the powers conferred on it u/s 5 of the Act issued the notification date 11.12.1986 stating that the rate of sales tax payable by an electronic manufac turing unit existing in Punjab in cases of electronic goods specified in Annexure A of the petition within the State will be 1%.
Thus the rate of sales tax was brought down from 10% (+ 2% surcharge) to 1% while for similar goods manufac tured outside the State and sold within the respondent State, the rate of sales tax remained 10% (+ 2% surcharge).
It was contended that there was differentiation.
In support of this contention the petitioners reiterate more or less the same submissions, as indicated before.
It is true that there was difference in rate yet there was reason for this differentiation.
The State Government in its counter affida vit has stated that a lower rate of tax i.e. to say 1% in the case of new units and 2% in the case of existing units has been levied to boost this industry and to stop the existing industry shifting to neighboring States.
The pre vailing peculiar circumstances of Punjab were one of the factors indicated for the same.
The lower rate, it was reiterated, was imposed in view of the peculiar circum stances and also to attract new entrepreneurs from other States and from within the State.
It was contended that the said notification was issued in public interest in view of the peculiar position; and that while the States of Gujarat and Maharashtra are fully developed States, on the other hand, Punjab is comparatively a backward State in industry.
Unless some incentives are given, the industries which have already shifted to other States, will have further deterring effects.
Hence, in view of the situation the concessional rate was introduced and was not discriminatory.
As mentioned hereinbefore, reliance was placed mainly on H. Anraj vs Govt of Tamil Nadu, (supra) to which one of us was a party.
That was a decision dealing with lottery tick ets, and dealt with the question whether lottery tickets amounted to movable property so as to be within the purview of the Sale of Goods Act.
But in relation to the question relevant to the present purpose it was reiterated that the real question is, whether direct and immediate result of the impugned notification was to impose an unfavourable and discriminatory tax burden on the imported goods (in those cases lottery tickets of other 756 States) when they are sold within the State of Tamil Nadu as against indigenous goods (Tamil Nadu Government lottery tickets) when these are sold within the State, from the point of view of the purchaser and this question had to be considered from the normal business of commercial point of view.
It has to be reiterated that more or less all States used to issue and sell lottery tickets, hence, the lottery tickets from other States were specifically discriminated against in the sense that there was differentiation without any valid or justifiable reason.
That would certainly work as deterrent.
Trade, commerce and intercourse throughout the territory of India, come within article 301 of the Constitu tion.
It prevents imposing on goods imported from other States a tax to which similar goods in the State are not subject so as to discriminate between the goods so imported and goods produced locally.
In that light the decision in Anraj 's case has to be understood.
The cases of India Cement & Ors. vs State of Andhra Pradesh & Ors., (supra); Weston Electronics vs State of Gujarat & Ors., (supra) and West Bengal Hosiery Assn. & Ors.vs State of Bihar & Anr., (supra) were cases where there was a naked blanket preference in favour of locally manufactured goods as against goods coming from outside the State.
These cases, as we read these, dealt with a conferment of exemp tion without any reason or concession in favour of indige nous manufactured goods which was not available in respect of the goods imported into that State.
In case, however, of U.P. as well as State of Punjab the provisions which we have examined, proceeded on a different basis.
In these cases, it cannot be suggested, in our opinion, that there is discrimi nation against goods manufactured outside the State.
In case of Punjab an Overwhelmingly large number of local manufac turers of similar goods are subject to sales tax and, there fore, the general statement that the manufacturers within the State are favoured against the manufacturers outside the State, is incorrect.
Under the notifications in case of Punjab, only newly set up units are eligible to claim the benefits thereunder for a limited period of 5 years and that also only if they strictly comply with the terms and condi tions set out in the notification.
It has to be reiterated that sales tax laws in all the States provide for exemption.
It is well settled that the different entries in lists I, II and III of the 7th Schedule deal with the fields of legislation, and these should be construed widely, liberally and harmoniously.
And these entries have been construed to include ancillary or inciden tal power.
Power to grant exemption is inherent in all taxing legislations.
Economic unity is a desired goal, economic equilibrium and prosperity 757 is also the goal.
Development on parity is one of the com mitments of the Constitution.
Directive principles enshrined in articles 38 & 39 must be harmonised with economic unity as well as economic development of developed and under developed areas.
In that light on article 14 of the Constitu tion, it is necessary that the prohibition in article 301 and the scope of article 304(a) & (b) should be understood and construed.
Constitution is a living organism and the latent meaning of the expressions used can be given effect to only if a particular situation arises.
It is not that with chang ing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used.
The connotation of the expressions used takes its shape and colour in evolving dynamic situations.
A backward State or a disturbed State cannot with parity engage in competition with advanced or developed States.
Even within a State, there are often backward areas which can be developed only if some special recentives are granted.
If the incentives in the form of subsidies or grant are given to any part of units of a State so that it may come out of its limping or infancy to compete as equals with others, that, in our opinion, does not and cannot contravene the spirit and the letter of Part XIII of the Constitution.
If there is none, it will amount to hostile dis crimination.
Judge in this light, despite the submissions of Mr. Sanjay Parikh and Mr. Vaidyanathan, we are unable to accept the contentions that the petitioners sought to urge in this application.
The next petition is W.P. No. 1124/88 Computer Graphics (P) Ltd. & Anr.
vs Union of India & Ors., which challenges the concession given in favour of manufacturers in U.P. and Goa.
The same contentions were reiterated for the reasons discussed hereinbefore.
We are unable to accept this peti tion.
It may be relevant to refer to Associated Tanners Vizianagram, A. P. vs C.T. 0.
, Vizianagram, Andhra Pradesh & Ors., ; where it was stated that when a taxing statute was not imposing rates of tax on imported goods different from rates of tax on goods manufactured locally, article 304 had no application.
In case an exemption was granted applying the same rate the resulting tax might be somewhat higher but that did not contravene the equality clause contemplated by article 304.
In the instant writ petition in view of the terms of the notification impugned and the facts and the circumstances stated in the affidavit of the State Government as well as the interveners, Goa and Pondicherry, being comparatively under developed in electronic industry, in 758 our opinion, it cannot be said that there was violation of either Part XIII of the Constitution or Article 14 of the Constitution.
This application must also, therefore, fail.
Writ petition No. 70/89 Spartek Ceramics India Ltd. vs Union of India & Ors., under article 32 also challenges the notification under the and the U.P. Act as mentioned hereinbefore.
In the state of facts as appearing, this petition also fails.
We have considered the submissions and the statements made by the interveners in these matters.
Writ Petition No. 761/89 Weston Electronics Ltd. & Anr. vs State of Punjab & Anr., dealing with the notifications issued by the State of Karnataka and writ petition No. 1140/88 M/s Survo Udyog Pvt. Ltd. & Anr. vs State of Bihar & Anr., deal with the same controversy and with similar notification.
In view of the averments made which we have examined in detail on behalf of the concerned State Governments in the light of the principles we have reiterated before, we are of the opinion that the notifications impugned cannot be challenged and the petition cannot succeed.
We have also considered writ petition No. 10 16/88 M/s Disco Electronics Ltd. & Anr.vs State of U.P. & Others, and in light of the facts and the circumstances and the aver ments made in the background of the principles reiterated, we are unable to sustain the challenge to the impugned notifications.
In these matters we had the advantage of having the views of the interveners and we have considered the submissions made on their behalf.
In the aforesaid light the intervention applications are allowed, submissions considered and the aforesaid writ petitions are dismissed but in the facts and the circum stances of the case, there will be no order as to costs.
Y. Lal Petitions dismissed.
|
A common question of law having arisen for determination in these petitions filed under Article 32 of the Constitu tion, they are disposed of by a Common Judgment, though the petitioners dealers are different and carry on their busi ness in different states and have challenged the respective provisions of law by which their cases are governed.
The petitioners in WP 803/88 carry on the business of selling cinematographic Idms and other equipments like projector, sound recording and reproducing equipments, X Ray films etc.
in the State of U.P. and in Delhi.
The petition ers receive these goods from their manufacturers outside the State of U.P.
In U.P. there is a single point levy of Sales Tax.
The State of Uttar Pradesh issued two notifications under section 4A of the Uttar Pradesh Sales Tax Act and under Section 8(5) of the Central Sales Tax Act exempting new units of manufacturers as defined in the Act in respect of the various goods for different periods ranging from 3 to 7 years, from payment of Sales Tax.
The petitioners by these petitions challenge the constitutional validity of these Notifications.
They have also challenged the constitutional validity of section 4A of the Uttar Pradesh Sales Tax Act and sections 8(5) of the Central Sales Tax Act, and the proceedings taken by the Respondent under section 5A of 732 the said Act.
The case of the petitioners is that they are discriminated on account of these notifications as the manufacturers covered by these Notifications are entitled to sell the articles manufactured by them without liability to pay sales tax while the manufacturers in other states and non manufacturers of the same article selling the same goods in the State are liable to pay sales tax under the local Sales Tax Act as well as under the Central Sales Tax Act.
Their contention, therefore, is that they became subject to gross discrimination and their business was crippled.
In these premises the petitioners challenge the provisions as ultra vires the constitution being violative of the provi sions of Articles 301 to 305 of part III of the Constitution as also Articles 14 and 19 of the Constitution.
The Respondents counter the assertion of the petition ers.
According to them the contention put forward by the petitioners ignores the basic features of the Constitution and also the fact that the concept of economic unity may not necessarily be the same as it was at the time of the Consti tution making; the state which was technically and economi cally weak in 1950 cannot be allowed to remain in the same state of affairs.
The state has to give subsidy and grant exemptions/concessions for the economic development of the state to new industries.
It was urged that if all the states are economically strong or developed then only can economic unity as a whole be assured or strengthened.
Dismissing the petitions, this Court, HELD: Sales Tax Laws in all the States provide for exemp tion.
Power to grant exemption is inherent in all taxing Legislations.
Economic unity is a desired goal.
Development on parity is one of the commitments of the Constitution.
Directive Principles enshrined in Articles 38 and 39 must be harmonised with economic unity as well as economic develop ment of developed and under developed area.
[756H; 757A B] Taxes may sometime amount to restrictions but it is only such taxes as directly and immediately restrict trade that would fail within the mischief of article 301.
[740E] See Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; and Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 SCR 491.
The taxes which do not directly and immediately restrict or 733 interfere with trade, commerce and intercourse throughout the territory of India would therefore be excluded from the ambit of article 30 1 of the Constitution.
It has to be borne in mind that sales tax has only an indirect effect on trade and commerce.
[747F] In the instant case, the general rate applicable to locally made goods is the same as that on imported goods.
Even supposing without admitting that Sales Tax is covered by article 301 as a tax directly and immediately, hampering the free flow of trade, it does not follow that it fails within the exemption of article 304 and it would be hit by article 30 1.
Still the general rate of tax which is to be compared under article 304(a) is at par, and the same qua the locally made goods and the imported goods.
[751G H] Concept of economic barrier must be adopted in a dynamic sense with changing conditions.
What constitutes an economic barrier at one point of time often ceased to be so at anoth er point of time.
It will be wrong to denude the people of the state of the right to grant exemptions which flow from the plenary powers of legislative heads in List III of the 7th Schedule of the Constitution.
[752A B] Basically the concept of equality embodied in Articles 304(a) and 16 are the same.
Article 14 enjoins upon the state to treat every person equal before the law while Article 304(a) enjoins upon the state not to discriminate with respect to imposition of tax on imported goods and the locally made goods.
[753C] It is not that with changing times the meaning changes but changing times illustrate and illuminate the meaning of the expressions used.
The connotation of the expressions used takes its shape and colour in evolving dynamic situa tions.
[757B C] James vs Commonwealth of Australia, at 613; Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., ; ; A. Hajee Abdul Shakoor & Co. vs State of Madras; , at 225; State of Madras vs N.K. Nataraja Mudaliar, ; at 847; Andhra Sugars Ltd. & Anr. etc vs State of Andhra Pradesh & Ors., ; ; Bengal Immunity Co. Ltd. vs State of Bihar, at 754; State of Madhya Pradesh vs Bhailal Bhai & Ors., ; at 268 9; Rattan Lal & Co. & Anr.
vs The Assessing Authority & Anr., ; at 557; India Cement & Ors.
vs State of Andhra Pradesh & Ors.
, ; ; Weston Electroniks & Anr.
vs State of Gujarat & Ors., 568 at 571; C.A.F. Seeling Inc. vs Charles H. Baldwin, at 1038; Smt.
Ujjam Bai vs State of U.P., [1963] 1 SCR 778 at 851; Coffee Board, Bangalore vs Joint Commercial Tax Officer, Madras & Anr.
, ; at 156; V. Guruviah Naidu & Sons vs State of Tamil Nadu & Anr., ; at 1070; Kathi Raning Rawat vs The State of Saurashtra, ; ; Kalyani Stores vs The State of Orissa & Ors., ; ; Bharat General & Tex tiles Industries Ltd. vs State of Maharashtra, 72 STC 354; H. Anraj vs Government of Tamil Nadu, ; West Bengal Hosiery Assn.
& Ors.
vs State of Bihar & Anr.
, ; ; State of U. P. & Ors.
vs Babu Ram Upadhya, ; at 702; State of Tamil Nadu, vs Hind Stone etc.; , at 757; State of Mysore vs H. Sanjeeviah, ; ; Kailash Nath & Anr.
vs State of U.P. & Ors.
, AIR 1957 SC 790 at 791; State of U.P. & Ors.
vs Renu sagar Power Co. & Ors., ; at 100; M/s Narinder Chand Hem Raj & Ors.
vs Lt. Governor, Administrator, U.T., Himachal Pradesh & Ors., at 751 and Associ ated Tanners Vizianagram A.P.v.
C.T.O., Vizianagram, Andhra Pradesh & Ors., ; , reffered to.
|
ivil Appeal No. 3395 of 1982.
From the Judgment and Order dated 4.6.1982 of the Punjab and 572 Haryana High Court in L.P.A. No. 936 of 1982 Shankar Das and H.K. Puri for the Appellant.
A.K. Ganguli, R.P. Srivastava, P. Parameshwaran, Ms. A. Subhashini and Dalip Sinha for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The appellants are a public limited company having a factory at Faridabad and engaged in manu facturing air conditioning and refrigeration equipment of various kinds and descriptions.
They are holding a L 4 Licence to manufacture goods falling under Tariff Item No. 29A of the Central Excise Tariff.
As per classification lists submitted from time to time under rule 173B of the Central Excise Rules, 1944, the company had declared in Form I that they are engaged in the manufacture of goods falling under sub items (2) and (3) of Tariff Item No. 29A. Against gate pass Nos. 111, 112 and 113 dated January 21, 1970 and gate pass No. 116 dated January 22, 1970 the appellants had cleared from the factory cooling coils, condensors and compressors and supplied the same for putting up a cold storage plant to one M/s Ravi Cold Storage, Ahmedabad.
These parts were manufactured by the appellants in their factory at Faridabad and were cleared by them against the above mentioned gate passes after payment of a duty of Rs. 13.547.20 P.
Against gate pass Nos. 95, 90, 97 and 98 dated January 21, 1969 the appellants had cleared from the factory various parts of refrigerating and air conditioning appli ances and machinery for an Ice factory plant to one M/s Gujarat Industrial Investment Corporation Limited, Ahmeda bad.
These parts also were manufactured by the appellants in their factory at Faridabad and were cleared by them against gate passes referred to above after payment of a duty of Rs. 19,336.87 P.
On the ground that parts of the refrigerating and air conditioning appliances which they have removed under the above said gate passes are not excisable goods falling under Tariff Item No. 29A(3), they filed two refund applications.
The Assistant Collector of Customs rejected both these applications holding that the assessment was made correctly.
The appellants preferred two appeals agianst these orders before the Collector of Customs and Central Excise, Chandi garh, who by his common order dated December 20, 1971 dis missed the appeals.
Thereafter, the appellants filed writ petition in the High Court of Punjab and Haryana at Chandi garh.
This writ petition was 573 dismissed by a learned Single Judge holding that the goods supplied are parts of a refrigerating and air conditioning appliances, that a complete cold storage plant was not supplied to M/s Ravi Cold Storage, Ahmedabad or M/s Gujarat Industrial Investment Corporation Ltd. Ahmedabad, and that they will fall clearly within the purview of Tariff sub item (3) of Tariff Item 29 A.
An appeal preferred against this judgment was dismissed in limine by a Division Bench.
In order to understand the argument of the learned counsel for the appellants, it is necessary to set out Tariff Item 29 A in full at the relevant period, which reads as follows: Item No. Tariff Description Rate of Duty 29A. REFRIGERATING AND AIR CONDITIONING APPLIANCES AND MACHINERY, ALL SORTS, AND PARTS THEREOF (1) Refrigerators and other refrigerat Thirty ing appliances, which are ordinarily per cent sold or offered for sale as ready ad valorem assembled units, such as ice markers, bottle collers, display cabinets and water coolers.
(2) Air conditioners and other air Thirty conditioning appliances, which per cent are ordinarily sold or offered ad valorem for sale as ready assembled units, including package type of air conditioners and evaporative type of coolers.
(3) Parts of refrigerating and Forty air conditioning appliances per cent and machinery, all sorts.
ad valorem The argument of the learned counsel for the appellants was that sub items (1) and (2) deal with refrigerators and other refrigerating appliances and air conditioners and other air conditioning appliances respectively which are ordinarily sold or offered for sale as a ready 4514 assembled unit.
Therefore, in order to bring it within sub items (1) and (2) such refrigerating and air conditioning appliances should be complete assembled units and they must also be ordinarily sold or offered for sale as such ready assembled units.
The illustrative examples referred to in the two sub items make this clear according to them.
The cold storage plant and ice factory plant supplied to the factories concerned in this case as such are not such com plete assembled units which are ordinarily sold or offered for sale within the meaning of sub items (1) and (2).
From this premise they sought to interpret sub item (3) as mean ing that the goods that are covered by that sub item are parts of those refrigerating or air conditioning appliances which in its assembled form would have come as a complete unit under Tariff sub items (1) and (2) of Item 29A and are manufactured for sale.
In other words, they want to restrict the content of sub item (3) with reference to the items that may fall under sub items (1) and (2).
The further submission was that though in its sweep sub item (3) may appear to cover all and every part of refrigerating and air condition ing appliances and machinery of all sorts, the words "and parts therefore" in the heading controlled the meaning and restrict it in the context only to parts of a completed unit which as such completed unit would have come under sub items (1) and (2) of Item 29A.
In this connection, learned counsel has referred to certain decisions of the High Courts which we will refer to later.
By Finance Act of 1961 Item 29A and 40 were introduced in the First Schedule to the and those two entries read as follows: "29A. AIR CONDITIONING MACHI Twenty NERY, ALL SORTS.
per cent ad valorem.
REFRIGERATORS AND PARTS Twenty THEREOF.
SUCH AS ARE per cent SPECIALLY DESIGNED FOR USE ad valorem." WITH REFRIGERATORS.
The Notes on Clauses relating to the relevant clause in the Finance Bill 10 of 1961 stated that Item 29A proposes to levy an excise duty on air conditioning machinery and Item 40 proposes to levy an excise duty on refrigerators and "parts thereof.
" By the Finance Act 2 of 1962 a combined tariff entry in the form 575 prevailing in 1969 and 1970 was introduced and the Notes on Clauses relating to this amendment stated that the proposal is "to combine into one item the present tariff items 29A and 40 relating to 'Air conditioning Machinery ' and 'Refrig erators ' respectively as well as to make it more comprehen sive.
" Under the Government of India, Ministry of Finance, Department of Revenue, Notification No. 80/62 Central Ex cises, dated 24th April, 1962 as subsequently amended by Notifications dated 29th December, 1962, 23rd March, 1968 and 14th June, 1969 all parts of refrigerating and air conditioning appliances and machinery other than the "parts" mentioned below were exempt from the payment of excise duty leviable thereon: "(i) Cooling coils or evaporator (ii) Compressor (iii) Condenser (iv) Thermostat (v) Cooling unit, and in the case of absorption types of refrigerators in which there is no compressor, heater including Burners and Baffles in a Kerosene Operated absorp tion type refrigerator.
(vi) Starting Relay, controls (including expansion value and solenoid valves) and pressure switches (vii) Overload Protection/Thermal Relay (viii) Cabinet.
" There are a number of other notifications also exempting parts of refrigerating and air conditioning appliances and machinery, intended to be used for various purposes speci fied in the notifications, such as, use in refrigerating and air conditioning appliances or machinery which are installed or to be installed in any of the following establishments: "1.
Computer rooms.
Research and test laboratories 3.
Animal houses 4.
Telephone exchanges 5.
Broadcasting studios 6.
Trawlers 7.
Dams 8.
Mines and tunnels 9.
Thermal and hydel power stations 10.
576 Technical buildings of Military Engineering Service 11.
Any Hospital run by the Central Government, a State Govt., a Local Authority or a Public Charitable Institution and 12.
Any factory.
" Vide the Notification No. 93/76 CE dated 16.3.1976 issued under subitem (3) of Item 29A of the First Schedule.
there are various other notifications also issued under the same sub item which covers installation of air condition and refrigerating equipments of almost all categories.
The legislative history and the notifications of the Government show that sub item (3) of Item 20A is a compre hensive provision encompassing within it parts of all sons of air conditioning and refrigerating appliances and machin ery and the Government of India was issuing notifications of exemptions on the understanding that such parts are covered by sub item (3).
The language used in sub item (3) is also wide and comprehensive in its application and could not be given a restricted meaning.
Sub items (1), (2) and (3) are independent of each other and mutually exclusive.
The scope of sub item (3) is neither restricted nor controlled by the provisions of sub items (1) and (2).
It is well settled that the headings prefixed to sec tions or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used for cutting down the plain meaning of the words in the provision.
Only, in the case of ambiguity or doubt the heading or sub heading may be referred to as an aid in construing the provision but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision.
Sub item (3) so construed is wide in its application and all parts of refrigerating and air conditioning appliances and machines whether they are covered or not covered under sub items (1) and (2) would be clearly covered under that sub item.
Therefore, whether the manufacturer supplied the refrigerating or air condi tioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub item (3) of Item 29A.
Strong reliance was placed by the learned counsel for appellants on the decision of the Allahabad High Court in Mother India Refrigeration Industries (P) Ltd. vs Superin tendent of Central Excise & Ors., All.
In that case the writ petitioners were the owners 577 Of a old storage plant.
The writ petitioners themselves installed and assembled the cold storage plant.
Part of the plant consisted of erecting locally what are called cooling coils and condensers.
Generally cooling coils and condensers contain a very long length of pipes made in a particular shape.
The petitioners in that case, however, bought pipes of various lengths, erected them one after the other and joined one with the other with a 'U ' shape bend.
These bends were welded.
The result was that the various pipes consti tuted an unit indesigning the plant.
This part of the plant was necessary in order to pass the cooling gas through it and thereby cool the chambers of the storage.
The petition ers bought the pipes and the bends from the market and got them placed at the factory site and got them welded.
The department, in the view that the conglomeration of pipes manufactured by the petitioner, constituted manufacture of cooling coils which are parts of refrigerating and air conditioning appliances and machinery covered by Item 29A(3) called upon the petitioners to pay excise duty on its value.
All the authorities found that the erection and installation by the petitioners, by laying pipes and joining them by welded bends, amounted to the manufacture of cooling coils and condensers as known to refrigeration technology.
The High Court accepted these findings.
However, it held that parts of refrigerating and air conditioning appliances which answer the description given in sub items (1) and (2) alone are liable to duty under Entry 29A(3) and not all parts used in refrigeration technology.
The learned judges reached this conclusion on the grounds that: "The heading of Entry 29A makes it clear that only parts of such refrigerating and air conditioning appliances and machinery as are covered by sub entries (1) and (2) alone are liable to duty.
In other words, the parts in question should be such as are ordinarily sold or offered for sale as ready.
assembled units.
On any other interpretation the words 'thereof ' occurring in the heading 29A will be redun dant.
An interpretation which makes any part of a statute redundant has to be discarded." and that "When an entry in the schedule specifically refers to and re stricts the applicability of duty to goods which are assembled units and which are generally offered for sale, the concept of sale is necessarily brought in.
As already seen, sub entry (3) takes it colour from sub entries (1) and (2) because of the specific directive of the heading by using the words 'parts thereof '.
" 578 We are afraid that both these reasons are fallacious and not acceptable.
As already stated neither can sub entry (3) be said to take its colour from sub entries (1) and (2) nor could those sub entries or heading curtail the plain meaning of the words used in sub entry (3).
We, therefore, hold that the Mother India Refrigeration Industries (P) Ltd. vs Supdt.
of Central Excise & Ors. 's, case (supra), was wrongly decided and accordingly we overrule the same.
The learned Judges have also relied on a Tariff Advice dated September 30, 1969 given under the Customs Act for the purpose of levying countervailing duty.
We shall deal with this ques tion when we consider that Tariff Advice in a latter part of this judgment.
The decisions of the Bombay High Court in Blue Star Ltd. vs Union of India & Anr., Bom.
and Joy Ice Cream, Bombay vs Union of India, Bom., related to the scope of Tariff item 29A(1) and not Item 29A(3) with which we are concerned.
In the view we have taken that sub entries (1) and (2) of Entry 29A cannot control or restrict the meaning of such entry (3) it is not necessary for us to go into the scope of Entry 29A (1) and (2).
These decisions, therefore, are no relevance.
The decision of the Kerala High Court in Calicut Refrig eration Co. vs Collector of Customs & Central Excise, Cochin & Ors., Ker., also does not touch upon the question with which we are concerned.
The decision of the Allahabad High Court in Chhibramau Cold Storage vs CEGAT, All.
and Goptal Cold Storage & Ice Factory vs Union of India & Ors., All., simply followed the decision in Mother India Refrigeration Industries (P) Ltd. vs Supdt.
of Central Excise & Ors., (supra) and, there fore, they do not advance the case any further.
On the other hand, we have a decision of the Gujarat Court in Anil Ice Factory & Anr.
vs Union of India & Ors., Guj., wherein M.P. Thakkar, Chief Justice, as he then was, referred to the Allahabad High Court judgment and dissenting from it held: "On taking a close look at Item 29A it will be seen that what is printed at the top of the entry as "caption" indi cates the nature of the goods covered by the entry.
It does not more than indicate what is the nature of the goods which are specified in the said entry.
(1), (2) and (3) are independent of each other.
Clause (3) in terms refers to goods which fall within the description of the said entry, 579 namely, "Parts of refrigerating and air conditioning appli ances and machinery, all sorts".
It is not disputed that cooling coils and condensers would fall within the category of "appliances and machinery".
Counsel however argues that we must first read the scope of cl.
(1) and cl.
(2) and draw an inference therefrom that the goods covered by entry, will attract excise duty only provided they are manufactured for sale.
We see no valid reason for reading the entry in that manner.
Each of the three sub clauses referes to different entries and specifies different rates of duty for the goods falling within the respective entries." and that "As we indicated earlier, in the first place the purpose of the caption is to provide a clue to the nature of the goods which are covered by the entry.
But even otherwise if the caption is read in the manner in which it has been worded it does not justify or warrant an inference that it related to goods which are manufactured for the purpose of sale.
Entry 29A adverts to goods which would fall within one or the other of the three classifications specified therein.
The description of each category of goods if clearly mentioned in col.
So far as CI.
(3) is concerned the tariff description is "parts of refrigerating and air conditioning appliances and machinery".
We cannot read the words 'manufactured for sale ' in entry No. 3 by drawing upon the theory of "Taking colour" which has no application in a case like the present one.
If we inject these words we would be re writing this section and we would be legislating which we cannot do.
" The learned counsel for the appellants then relied on the Trade Advice dated 30th September, 1969 given by the Central Board of Excise and Customs, New Delhi, in respect of classification of refrigerating machinery and ice making plant which are not sold or offered for sale as ready assem bled unit for purposes of countervailing duty under the Customs Act.
After referring to sub items (1) and (2) of Item 29A as covering complete plant and equipment which a re ordinarily sold or offered for sale as ready assembled units, had stated as follows, with reference to sub item (3): "Sub item (3) of item 29A of the Central Excise Tariff 580 refers to parts or ' machinery and appliances and complete plants which cannot be considered as "parts of machinery" would not be classifiable under sub item (3) to item 29A C.E.T. also.
" As may be seen from this paragraph it consists of two parts, the first portion referring to parts of machinery and appli ances and the second portion referring to complete plants which cannot be considered as parts of machinery.
The whole argument arose because of the composite sentence used in this paragraph.
It only means complete plants which are covered by Items (1) and (2) cannot be considered as parts on machinery and such complete plants would not be classi fiable under sub item (3) of Item 29A.
The reliance placed by the learned counsel on this notification does not in any way advance the case of the appellants.
In the foregoing circumstances, the appeal fails and it is dismissed with costs.
Y. Lal Appeal dismissed.
|
The appellant company was engaged in the manufacturing of airconditioning and refrigeration equipment under a proper licence.
On January 21, 1970 the appellant cleared from the factory cooling coils, condensers and compressors and supplied the same to M/s. Ravi Cold Storage, Ahmedabad for putting up a cold storage and paid duty of Rs.13,547.20 P in respect thereof.
Again on January 21, 1969, the appel lant cleared from the factory various parts of refrigerating and air conditioning appliances and machinery for an Ice factory plant to one M/s. Gujarat Industrial Investment Corporation Ltd., Ahmedabad and paid a duty of Rs. 19,336.87P.
Both the aforesaid goods were manufactured at the appellant 's factory.
Thereafter the appellant filed two refund applications of the said excise duty before the Assistant Collector of Customs, contending that the refrig erating and air conditioning appliances which they had removed on the aforesaid dates were not excisable goods failing under Tariff Item No. 29A(3).
The Assistant Collec tor of Customs rejected both the applications holding that the assessment was correctly made.
The appellant company preferred two appeals against these orders before the Col lector of Customs and Central Excise, Chandigarh, who dis missed both the appeals.
Thereupon the appellant filed a writ petition in the High Court.
The learned single Judge who heard the petition dismissed the same holding that the goods supplied are parts of a refrigerating and air condi tioning appliances, that a complete cold storage plant was not supplied to M/s. Ravi Cold Storage, Ahmedabad or M/s. Gujarat Industrial Investment Corporation Ltd., Ahmedabad and that they would fail clearly within the purview of Tariff sub item (3) of Tariff Item 29 A.
An appeal preferred against this judgment was dismissed by a Division Bench in limine.
Hence this appeal.
Before this Court also the appellant inter alia contended that 571 though in its sweep sub item (3) may appear to cover all and every part of refrigerating and air conditioning appliances and machinery of all sorts, the words "and parts thereof" in the heading controlled the meaning and restrict it in the context only to parts of a completed unit which as such completed unit would have come under sub items (1) and (2) of item 29 A. Dismissing the appeal, this Court, HELD: The legislative history and the notifications of the Government show that sub item (3) of item 29 A is a comprehensive provision encompassing within it all sorts of air conditioning and refrigerating appliances and machinery and the Government of India was issuing notifications of exemptions on the understanding that such parts are covered by sub item (3).
The language used in sub item (3) is also wide and comprehensive in its application and could not be given a restricted meaning.
Sub items (1), (2) and (3) are independent of each other and mutually exclusive.
The scope of sub item (3) is neither restricted nor controlled by the provisions of sub items (1) and (2).
[576C D] Whether the manufacturer supplies the refrigerating or airconditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub item (3) of item 29 A. [576F G] Complete plants which are covered by items (1) and (2) cannot be considered as parts of machinery and such complete plants would not be classifiable under sub item (3) of Item 29 A. [580B C] Mother India Refrigeration Industries Pvt. Ltd. vs Supdt.
of Central Excise and Ors., All, overruled.
Blue Star Ltd. vs Union of India and Anr., Bom.
; Joy Ice Cream, Bombay vs Union of India, Bom.; Calicut Refrigeration Co. vs Collector of Customs & Central Excise, Cochin and Ors.
, Ker.; Chhibramau Cold Storage vs CEGAT, ; Goptal Cold Storage & Ice Factory vs Union of India and Ors., and Anil Ice Factory & Anr.
vs Union of India and Ors., , referred to.
|
ivil Appeal No. 480 of 1986.
From the Judgment and Order dated 10.7.85 of the Madhya Pradesh High Court in Misc.
Petition No. 1235 of 1984.
D.N. Mukherjee and Ran jan Mukherjee for the Appellant.
S.S. Khanduja, Yashpal Dingra and Baldev Kishan for the Respondents.
The Judgment of the Court w. as delivered by 146 K. JAGANNATHA SHETTY, J.
This appeal by leave from a judgment of the M.P. High Court concerns the scope of Sec tion 415 of the M.P. Municipal Corporation Act, 1956 ( 'the Act ' for short).
The circumstances can be shortly stated.
Within the Jabalpur Municipal Corporation limits, there is a 'Mandi ' established under the M.P. Krishi Upaj Mandi Adhiniyam, 1973 ( 'Adhiniyam ') covering an area of 55 acres.
It is enclosed by high boundary wall and is under the con trol and jurisdiction of the Krishi Upaj Mandi Samithi or otherwise called the Market Committee.
Under Section 7 of the Adhiniyam, the market Committee is a body corporate with power to provide facilities for regulation of buying and selling of agricultural produce and establishment of proper administration of the market.
Section 7(3) of the Adhiniyam provides that notwithstanding anything contained in any enactment for the time being in force, every market commit tee shall for all purposes, be deemed to be a 'local author ity '.
Inside the Mandi, the market committee appears to have constructed office buildings, shop complexes, godowns, market yards, shades and other buildings.
The Jabalpur Municipal Corporation assessed property tax in respect of the buildings within the Mandi area and also demanded safai tax, water tax, electricity charges, development charges for the years 1980 81 to 198384.
The market committee has re fused to pay the same and claimed that the corporation has no jurisdiction to levy and collect such taxes or charges.
The Corporation did not agree with that claim and initiated proceedings to recover the dues.
Challenging the action taken, the Market Committee moved the High Court under Article 226 of the Constitution for quashing the recovery proceedings.
The High Court following an earlier decision arising under Section 334 of the M.P. Municipalities Act, 1961, allowed the petition and quashed recovery proceedings.
The High Court also directed the Corporation to take steps in accordance with Section 4 15 of the Act for resolving the dispute with the market committee.
The order of the High Court reads as follows: "Section 415 of the M.P. Municipal Corporation Act, 1956 provides for adjudication of disputes between the Corpora tion and local authorities by the State Government on a reference made to it for this purpose.
The corresponding provision in the M.P. Municipalities Act, 1961 is Section 334.
In a similar situation, where recovery proceedings had been commenced against a Krishi Upaj Mandi Samiti, like 147 the petitioner, by the Municipal Council, Gadarwara, a Division Bench in Misc.
Petition No. 994 of 1981 (Jawahar Krishi Upaj Mandi Samiti, Gadarwara and another) decided on 5.6.1983 quashed the recovery preceedings and directed the Municipal Council to take steps under section 334 of the M.P. Municipalities Act, 1961 for adjudication of the dis pute between itself and the Krishi Upaj Mandi Samiti.
Since section 415 of the M.P. Municipal Corporation Act, 1956 is in pari materia with section 334 of the M.P. Municipalities Act, 1961 that decision has to be followed.
Consequently, this petition is allowed.
The pending recovery proceedings against the petitioner are quashed and the respondent Municipal Corporation, Jabalpur is directed to take steps in accordance with section 4 15 of the M.P. Municipal Corporation Act, 1956 for resolving its dispute with the petitioner.
The parties shall bear their own costs.
" In this appeal, the Municipal Corporation, Jabalpur has challenged the validity of the above order.
Before us, the core of the argument of learned counsel for the appellant is that the Market Committee is not a local authority either under the Municipal Corporation Act, or under the M.P. General Clauses Act, 1957.
It has been declared to be a local authority only for purposes of the Adhiniyam and that declaration could not be relevant for the purpose of Section 415 of the Act.
The Market Committee unless it falls within the definition of 'local authority ' under the M.P. General Clauses Act, 1957, the dispute under Section 415 of the Act could not be referred to the Govern ment.
Counsel also referred to us the various provisions of the Act which confer power on the Corporation to levy and collect taxes and charges.
Indisputably, the respondent is not a local authority as defined under M.P. General Clauses Act, 1957.
Section 2(20) of the said Act defines 'local authority ' to mean "a munici pal corporation, municipality, local board, Janapad Sabha, village panchayat, or other authority legally entitled to, or entrusted by the Government with the control of manage ment of a municipal or local fund.
" Counsel for the respond ent however, strongly relied upon Section 7(3) of the Adhi niyam which provides that the Market Committee shall be deemed to be a local 148 authority notwithstanding anything contained in any other enactment.
It seems to us that it is not necessary to express any opinion on this controversy and even if we assume in favour of the respondent that it is a local authority without deciding, the recovery proceedings could not have been quashed by the High Court.
And the Corporation could not have been directed to refer the dispute to the Government under Section 415 of the Act.
Section 4 15 of the Act reads: "Disputes between Corporation and local authorities: If any dispute arises between the Corporation and any local authority as regards anything done or to be done under this Act, it shall be referred to the Government for decision and such decision may include an order as to costs of any en quiry ordered by the Government, and shall be final.
Provided that it shall be competent to the Corpora tion and the local authority to agree in writing that any such dispute shall, instead of being referred to the Govern ment for decision, be referred to the decision of an arbi trator or arbitrators appointed under the , or to a civil court under Section 20 of the Code of Civil Procedure, 1908.
" The Section is clear and provides that the disputes arising between the Corporation and local authority as regards anything done or to be done under the Act, shall be referred to the Government for decision.
It shall be compe tent also to the Corporation and local authority to agree in writing that any such dispute shall, instead of being re ferred to the Government be referred to the decision of an arbitrator under the or to a civil court under Section 20 of the Code of Civil Procedure.
The assess ment of tax or demand of any fees by the Corporation under the provisions of the Act could fall within the term "any thing done or intended to be done under the Act" as provided under Section 415.
Even refusal of the Corporation to con sider the objections against assessment and recovery of tax or fees could also be considered as "anything done or in tended to be done under the Act".
The question however, is whether it would be obligatory for the Corporation in the event of the local authority refusing to pay taxes or fees to approach the Government or refer the dispute 149 to the Government for decision? The answer to the question should be in the negative.
Section 4 15 does not provide that the Corporation has to move the Government when the local authority has refused to pay the tax or fees levied and demanded.
There are also no rules framed by the Govern ment regulating the exercise of power under the Section and at any rate our attention has been drawn to no statutory rules framed under the section.
The High Court however, has followed its earlier deci sion arising under Section 334 of the Municipalities Act.
There the dispute arose between the Gadarwara Municipal Council and Mandi Samiti Gadarwara as to the authority of the former to collect takes and charges from the latter.
The Mandi Samithi was an authority constituted like the present Market Committee under Section 7 of the Adhiniyam and func tioning within the Municipal limits.
It challenged the recovery proceedings initiated by the Municipal Council and moved the High Court for appropriate relief under Article 226 of the Constitution.
The High Court quashed the recovery proceedings and directed the Municipal Council to approach the Government under Section 334 of the Municipalities Act to resolve the dispute.
This decision, we think, overlooks the plain terms of Section 334 and even otherwise it is not relevant for operation of Section 415 of the Act.
Section 334 of the M.P. Municipality Act, 1961 reads: "Dispute between Council and other local body: (1) In the event of any dispute arising between a Council and any other local authority established under any State Act on a matter in which they are jointly interested, such dispute shall be referred to the State Government, whose decision shall be final.
" Under this Section the State Government has framed rules called "Madhya Pradesh Municipalities (Regulation of Rela tions between Councils and other local Authorities) Rules, 197 1".
Rules 2 and 3 are in these terms: "Rule 2.
Whenever a Council and any other authority are jointly interested in any matter, such matter shall be settled amicably between them and where they do not come to a mutual agreement, the matter shall be referred to the Collector.
150 Rule 3.
The Collector shall then arrange a joint meeting of the Council and Local Authority and manage to bring about an amicable settlement.
" The rules thus provide that the dispute in which the Council and local authority are jointly interested in any matter, but not possible to settle the dispute mutually, the matter shall be referred to the Collector.
The Collector shall try to bring about an amicable settlement by arranging a joint meeting of both the authorities.
Rules 4 and 5 are also relevant in this context and may be read: "Rule 4.
If the talk for amicable settlement fails, the Collector shah persuade the Council and the local authority to agree in writing to refer the matter to an arbitrator or arbitrators appointed under the and if they agree, the matter shall be referred to such arbitrator or arbitrators, as the case may be.
Rule 5.
When the Council and local authority do not agree to refer the matter to arbitration the Collector shall refer the matter to the State Government with his comments on it and the decision of the State Government shall be final.
" Under Rule 5, it would be for the Collector to refer the matter to the Government with his comments, and not for the Municipal Council to approach the Government.
By comparing the provisions of Section 415 of the Act with Section 334 of Municipalities Act, it will be seen that the structure of the former is different from the latter.
Section 4 15 speaks of dispute between the Corporation and local authority as regards anything done or to be done under the Act.
And such a dispute shall be referred to the Govern ment for decision.
Section 334 refers to a dispute on a matter in which the Municipal Council and local authority are jointly interested and it states that such dispute shall be referred to the State Government for decision.
Section 334 does not refer to the dispute as regards "anything done or to be done under the Act.
" Section 415 does not speak of any dispute in which the Corporation and the local authority are jointly interested.
Secondly, there are no rules framed for operation of Section 415 of the Act.
In view of these differences the view taken by the High Court.
That the Corporation must take steps to resolve the dispute cannot be justified.
It has apparently no support 151 either from the terms of Section 4 15 or from any rules framed for the purpose.
In the result, we allow the appeal and reverse the judgment of the High Court.
In the circumstances of the case, there will be no order as to costs.
T.N.A. Appeal allowed.
|
The appellant Corporation assessed property tax in respect of buildings belonging to the respondent Market Committee, which refused to pay the same.
Proceedings were commenced for recovery of the dues.
The respondent moved the High Court under Article 226 of the Constitution for quash ing the recovery proceedings.
The High Court following its earlier decision arising under Section 334 of the M.P. Municipalities Act, 1961 allowed the petition, quashed the recovery proceedings and directed the Corporation to refer the dispute to the Govern ment under Section 415 of the M.P. Municipal Corporation Act, 1956.
Aggrieved by the aforesaid decision, the Corporation, appealed to this court.
Allowing the appeal, this Court, HELD: 1.
The assessment of tax or demand of any fees by the Corporation under the provisions of the M.P. Municipal Corporation Act, 1956 could fail within the term "anything done or intended to be done under the Act" as provided under Section 415 of the Act.
Even 145 refusal of the Corporation to consider the objections against assessment and recovery of tax or fees could also be considered as "anything done or intended to be done under the Act".
But section 415 does not provide that the Corpora tion has to move the Government when the local authority has refused to pay the tax or fees levied and demanded.
[148GH; 149A] 2.
The structure of section 415 of the M.P. Municipal Corporation Act, 1956 is different from section 334 of the M.P. MuniCipalities Act; 1961.
Section 415 speaks of dispute between the Corporation and local authority as regards anything done or to be done under the Act.
And such a dis pute shall be referred to the Government for decision.
Section 334 refers to a dispute on a matter in which the Municipal Council and local authority are jointly interested and it states that such dispute shall be referred to the State Government for decision.
Section 334 does not refer to the dispute as regards "anything done or to be done under the Act.
" Section 415 does not speak of any dispute in which the Corporation and the local authority are jointly inter ested.
There are no rules framed for operation of section 415 while under section 334 the State Government has framed Rules.
In view of these differences the view taken by the High Court that the Corporation must take steps to resolve the dispute cannot be justified.
It has apparently no sup port either from the terms of section 415, or from any rules framed for the purpose.
Therefore, the recovery proceedings should not have been quashed by the High Court.
And the Corporation should not have been directed to refer the dispute to the Government under section 415 of the M.P. Municipal Corporation Act, 1956.
[150F H; 151A] Jawahar Krishi Upaj Mandhi Samiti Gadarwara & Anr.
vs Municipal Committee Gadarwara & Anr.
Petition No. 994 of 1981 decided by the M.P. High Court on 5.5.1983, distin guished.
|
Appeal No. 35 of 1959.
Appeal from the judgment and decree dated October 29, 1956, of the Allahabad High Court in Writ Petition No. 327 of 1956.
H. N. Sanyal, Additional Solicitor General of India, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants.
G. C. Mathur and C. P. Lal, for the respondents.
1960, December 13.
The Judgment of Imam, Kapur, Das Gupta and Dayal, JJ. was delivered by Das Gupta, J. Ayyangar, J. delivered a separate judgment.
DAS GUPTA, J.
This appeal is against an order of the High Court of Judicature at Allahabad rejecting the appellants ' application under article 226 of the Constitution.
The first appellant is the Diamond Sugar Mills Ltd., a public limited company owning and operating a sugar factory at Pipraich in the District Gorakhpur, for the manufacture of sugar from 244 sugarcane.
The second appellant is the Director of the company.
By this application the appellants challenged the imposition of cess on the entry of sugarcane into their factory.
On February 24, 1956, when the application was made the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (U. P. XXIV of 1953), was in force.
Section 20 of this Act gave to the Governor of U. P. the power to impose by notification "a cess not exceeding 4 annas per maund on the entry of sugarcane into an area specified in such notification for consumption, use or sale therein".
This Act it may be mentioned had taken the place of an earlier Act, the U. P. Sugar Factories Control Act, 1938, section 29 of which authorised the Governor of U. P. to impose by a notification after consultation with the Sugar Control Board under the Act "a cess not exceeding 10 per cent of the minimum price, if any, fixed under section 21 or 4 annas per maund whichever was higher on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein".
Notifications were issued under this provision for different crushing seasons starting from 1938 39, the last notification issued thereunder being for the crushing season of 1952 53.
These notifications set out a number of factories in a schedule and provided that during 1952 53 crushing season cess at a rate of three annas per maund shall be levied on the entry of all sugarcane into the local areas comprised in factories mentioned in the schedule for consumption, use or sale therein.
Act No. XXIV of 1953 repealed the 1938 Act.
The first notification under the provisions of section 20 of the 1953 Act was in these terms: "In exercise of the powers conferred by sub section (1) of section 20 of Uttar Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1953; (U. P. Act No. XXIV of 1953) the Governor is pleased to declare that during the 1954 55 crushing season, a cess at a rate of three annas per maund shall be levied on the entry of all sugar cane into the local areas comprised in the factories mentioned in the Schedule, for the consumption, use or sale therein".
245 Similar notifications were also issued on October 23, 1954, for the crushing season 1954 55 and on November 9, 1955, for the crushing season 1955 56.
The appellants ' factory was one of the factories mentioned in the schedule of all these notifications.
On the date of the application, i.e., February 24, 1956, a sum.
of Rs. 2,59,644 9 0 was due from the first appellant and a further sum of Rs. 2,41,416 3 0 as liability on account of cess up to the end of January, 1956, also remained unpaid.
The appellant contended on various grounds that section 20 of Act XXIV of 1953 was unconstitutional and invalid and prayed for the issue of appropriate writs directing the respondents the State of U. P. and the Collector of Gorakhpur not to levy and collect cess on account of the arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons and to withdraw the notifications dated October 23, 1954, and November 9, 1955 , which have been mentioned above.
During the pendency of this application under article 226 before the Allahabad High Court the U. P. Legislature enacted the U. P. Sugarcane Cess Act, 1956 (U. P. XXII of 1956), repealing the 1953 Act.
Section 3 of this Act as originally enacted was in these words: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may like.
wise remit in whole or in part such cess in respect of cane used or to be used in factory for any limited purpose specified in the notification.
Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase 'of cane intended or required for use.
consumption or sale in such factory shall be deemed to be the premises of the factory.
(2) The cess imposed under sub section (1) shall 246 be payable by the owner of the factory and shall be paid on such date and at such place as may be prescribed.
(3) Any arrear of cess not paid on the date prescribed under sub section (2) shall carry interest at 6 per cent.
per annum from such date to date of payment.
" There is a later amendment by which the words "four annas" have been altered to "twenty five naye paise" and the words "Gur, Rab or Khandsari Sugar Manufacturing Unit" have been added after the words "factory" in sub section (1).
These amendments are however not relevant for the purpose of this appeal.
Section 9 of this Act repealed section 20 of the Sugar Cane (Regulation of Supply and Purchase) Act, 1953.
Sub sections 2 and 3 of section 9 are important.
They are in these words: "2.
Without prejudice to the general application of section 24 of the U.P. General Clauses Act, 1904, every notification imposing cess issued and every assessment made (including the amount of cess collected) under or in pursuance of any such notification, shall be deemed a notification issued, assess ment made and cess collected under this Act as if sections 2, 3 and 5 to 8 had been in force at all material dates.
Subject as provided in clause (1) of Article 20 of the Constitution every notification issued cess imposed and act or thing done or omitted between the 26th January, 1950, and the Appointed date in exercise or the purported exercise of a power under section 29 of the U. P. Sugar Factories Control Act, 1938, or of section 20 of the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, which would have been validly and properly issued, imposed, done or omitted if the said sections had been as section 3 of this Act, shall in law be deemed to be and to have been validly and properly imposed and done, any judgment, decree or order, of any court notwithstanding.
" The position after the enactment of the U. P. 247 Sugarcane Cess Act, 1956, was that the imposition and assessment of cess that had already been made under the 1953 Act would operate as if made under the 1956 Act.
In view of this the first appellant, the Diamond Sugar Mills Ltd., prayed to the High Court for permission to raise the question of constitutionality and validity of the 1956 Act.
It also prayed for the issue of a writ in the nature of mandamus directing the respondents not to levy cess upon the petitioners appellants under this new Act, the U. P. Sugarcane Cess Act, 1956.
This application was allowed and the High Court considered the question whether section 3 of the U. P. Sugarcane Cess Act, 1956, 'empowering the State Government to impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for the consumption, use or sale therein was a valid law.
The principal ground urged in support of the appellants ' case was that the law as enacted in section 3 was invalid and that it was beyond the legislative competence of the State Legislature.
Several other grounds including one that the provisions of the section went beyond the permissible limits of delegated legislation were also raised.
All the grounds were negatived by the High Court which accordingly rejected the appellants ' petition.
The High Court however gave a certificate under Article 132(1) and also under article 133(1)(c) of the Constitution and on the basis of that certificate the present appeal has been filed.
Of the several grounds urged before the High Court only two are urged before us in appeal.
One is that the law was invalid, being beyond the legislative competence of the State legislature; the other is that in any case the provision giving the Governor power to levy any cess not exceeding 4 annas without providing for any guidance as to the fixation of the particular rate, amounted to excessive delegation, and was accordingly invalid.
The answer to the question whether the impugned law was within or beyond the legislative competence of the State legislature depends on whether the law falls under Entry 52 of the State List 248 List II of the Seventh Schedule to the Constitution.
It is quite clear that there is no other entry in either the State List or the Concurrent List under which the legislation could have been made.
Entry 52 is in these words: "Tax on the entry of goods into a local area for consumption, use or sale therein".
Section 3 of the impugned Act which has already been set out provides for imposition of a cess on the entry of sugarcane into the premises of a factory for use, consumption or sale therein.
Is the "premises of a factory" a local area within the meaning of the words used in Entry 52? If it is the legislation was clearly within the competence of the State legislature; if it is not, the law was beyond the State legislature 's competence and must be struck down as invalid.
In considering the meaning of the words "local area" in entry 52 we have, on the one hand to bear in mind the salutary rule that words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude; on the other hand we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in.
an anxiety to preserve the power of the legislature.
In Re the Central Provinces & Berar Act No. XI V of 1938 (1) Sir Maurice Gwyer, C. J., observed: "I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of correcting any supposed errors".
Again, in Navinchandra Mafatlal vs The Commissioner of Income Tax, Bombay City (2) Das, J. (as he then was) delivering the judgment of this Court observed: ". . .
The cardinal rule of interpretation however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most (1) , 37.
(2) [1955] 1 S.C.R. 829.
249 liberal construction should be put upon the words so that the same may have effect in their widest amplitude.
" Our task being to ascertain the limits of the powers granted by the Constitution, we cannot extend these limits by way of interpretation.
But if there is any difficulty in ascertaining the limits, the difficulty must be resolved so far as possible in favour of the legislative body.
The presumption in favour of constitutionality which was stressed by the learned counsel for the respondents does not take us beyond this.
On behalf of the appellants it has been urged that the word "local area" in its ordinary grammatical meaning is never used in respect of a single house or a single factory or a single plot of land.
It is urged that in ordinary use the words "local area" always mean an area covering a specified region of the country as distinguished from the general area.
While it may not be possible to say that the words "local area" have acquired a definite and precise meaning and the phrase may have different connotations in different contexts, it seems correct to say that it is seldom, if ever, used to denote a single house or a single factory.
The phrase appears in several statutes, some passed by the Central Legislature and some by the Provincial or State Legislatures; but in many of these the words have been defined.
These definitions being for the peculiar purpose of the particular statute cannot be applied to the interpretation of the words "local area" as used in the Constitution.
Nor can we derive any assistance from the judicial interpretation of the words "local area" as used in the Code of Criminal Procedure or other Acts like Bengal Tenancy Act as these interpretations were made with reference to the scope of the legislation in which the phrase occurs.
Researches into dictionaries and law lexicons are also of 'no avail as none of these give the meaning of the phrase "local area".
What they say as regards the meaning of the word "local" offers no guidance except that it is clear that the word "local" has different meanings in different contexts.
32 250 The etymological meaning of the word "local" is "relating to" or "pertaining to" a place.
It may be first observed that whether or not the whole of the State can be a "local area", for the purpose of Entry 52, it is clear that to be a "local area" for this purpose must be an area within the State.
On behalf of the respondents it is argued that "local area" in Entry 52 should therefore be taken to mean "any part of the State in any place therein".
So, the argument runs, a single factory being a part of the State in a place in the State is a "local area".
In other words, "local area" mean "any specified area inside the State".
The obvious fallacy of this argument is that it draws no distinction between the word "area" standing by itself and the phrase "local area".
If the Entry had been " entry of goods into any area of the State. . . some area would be specified for the purpose of the law levying the cess on entry.
If the Constitutions were empowering the State Legislatures to levy a cess on entry of goods into any specified area inside the state the proper words to use would have been "entry of goods into any area. . . " it would be meaningless and indeed incorrect to use the words they did use "entry of goods into a local area".
The use of the words "local area" instead of the word "area" cannot but be due to the intention of the Constitution makers to make sure that the power to make laws relating to levy on entry of goods would not extend to cases of entry of goods into any and every part of the state from outside that part but only to entry from outside into such portions of the state as satisfied the description of "local area".
Something definite was sought to be expressed by the use of the word "local" before the word "area": The question is: what exactly was sought to be expressed? In finding an answer to the question it is legitimate to turn to the previous history of constitutional legislation in the country on this subject of giving power to legislature to levy tax on the entry of goods.
In the State of Madras vs Gannon Dunkerley & Co., Ltd.(1) (1) ; 251 this Court referred with approval to the statement of law in Halsbury 's Laws of England, Vol.
II, para.
157, p. 93, that the existing state of English law in 1867 is relevant for consideration in determining the meaning of the terms used in the British North America Act in conferring power and the extent of that power.
This has necessarily to be so as in the words of Mr. Justice Brewer in South Carolina vs United States (1) "to determine the extent of the grants of power, we must, therefore place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.
" Turning now to the previous legislative history we find that in the Government of India Act, 1935, Entry 49 of the Legislative List (List II of the 7th Schedule) was in the same words as Entry 52 of the Constitution except that instead of the words "taxes" as in Entry 52 of List II of the Constitution, Entry 49 List II of the Government of India Act, used the word "cess".
In Government of India Act, 1915, the powers of the provincial legislatures were defined in section 80A. 'Under clause (a) of the third sub section of this section the local legislature of any province has with the previous sanction of the Governor General power to make or take into consideration any law imposing or authorising the imposition of any new tax unless the tax was a tax scheduled as exempted from this provision by rules made under the Act.
The third of the Rules that were made in this matter under Notification No. 311/8 dated December 18, 1920, provided that the legislative council of a province may without the previous sanction of the Governor General make and take into consideration any law imposing or authorising a local authority to impose for the purpose of such local authority any tax included in Schedule II of the Rules.
Schedule II contained 11 items of which items 7 and 8 were in these words: 7.
An octroi 8.
A terminal tax on goods imported into a local (1) ; 252 area in which an octroi was levied on or before 6th July, 1917.
Item 8 was slightly modified in the year 1924 by another notification as a result of which it stood thus: 8.
A terminal tax on goods imported into or exported from a local area save where such tax is first imposed in a local area in which an octroi was levied on or before July 6, 1917.
Octroi is an old and well known term describing a tax on the entry of goods into a town or a city or a similar area for consumption, sale or use therein.
According to the Encyclopedia Britannica octroi is an indirect or consumption tax levied by a local political unit, normally the commune or municipal authority, on certain categories of goods on their entry into its area.
The Encyclopedia Britannica describes the octroi tax system in France (abolished in 1949) and states that commodities were prescribed by law and were divided into six classes and for all the separate commodities within these six groups maximum rates of tariff were promulgated by presidential decree, specific rates being fixed for the three separate sorts of octroi area, established on the basis of population, namely, communes having (1) less than 10,000 inhabitants, (2) from 10,000 to 50,000 and (3) more than 50,000.
While we are not concerned here with other features of the octroi tax system, it is important to note that the tax was with regard to the entry of goods into the areas of the communes which were local political units.
According to the Shorter Oxford English Dictionary "commune" in France is a small territorial division governed by a maire and municipal council and is used to denote any similar division elsewhere.
The characteristic feature of an octroi tax then was that it was on the entry of goods into an area administered by a local body.
Bearing in mind this characteristic of octroi duty we find on an examination of items 7 and 8 of the Schedule Rules mentioned above that under the Government of India Act, 1919, the local legislature of a Province could without the previous sanction of the Governor General impose a 253 tax octroi for entry of goods into an area administered by a local body, that is, a local government authority and the area in respect of which such tax could be imposed was mentioned in item 8 as local area.
It is in the background of this history that we have to examine the use of the word "local area" in item 49 of List II of the Government of India Act, 1935.
Here the word "octroi" has given place to the longer phrase "cesses on the entry of goods into a local area for consumption, use or sale therein.
" It was with the knowledge of the previous history of the legislation that the Constitution makers set about their task in preparing the lists in the seventh schedule.
There can bring title doubt therefore that in using the words "tax on the entry of goods into a local area for consumption, use or sale therein", they wanted to express by the words "local area" primarily area in respect of which an octroi was leviable under item 7 of the schedule tax rules, 1920 that is, the area administered by a local authority such as a municipality, a district Board, a local Board or a Union Board, a Panchayat or some body constituted under the law for the governance of the local affairs of any part of the State.
Whether the entire area of the State, as an area administered by the State Government, was also intended to be included in the phrase "local area", we need not consider in the present case.
The only other part of the Constitution where the word "local area" appears is in article 277.
That Article is in these words: "Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district, or other local area may, notwithstanding that these taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
" 254 There can be little doubt that "local area" in this Article has been used to indicate an area in respect of which there is an authority administering it.
While the scope of Article 277 is different from the scope of entry 52 so that no direct assistance can be obtained in the interpretation of the words "local area" in entry 52 from this meaning of the words in article 277 it is satisfactory to find that the meaning of "local area" in entry 52 which appears reasonable on a consideration of the legislative history of the matter is also appropriate to this phrase in its only other use in the Constitution.
Reliance was sought to be placed by the respondents on a decision of the Allahabad High Court in Emperor vs Munnalal (1) where the word "local area" as used in section 29 of the U. P. Sugar Factories Control Act, 1938, fell to be considered.
That section, as we have already mentioned, authorised the Governor of U. P. to impose by a notification, after consulting the Sugar Control Board under the Act, a cess on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein.
The notifications which were issued under this provision set out a number of factories for the levy of a cess at the rate of three annas per maund on entry of all sugarcane into the local area comprised in the factories mentioned in the schedule for consumption, use or sale therein.
Section 29 was clearly within the words of entry 49 of List 11.
The question that arose before the Court was whether the specification of certain factories as local areas was valid law.
The learned Judge appears to have proceeded on the basis that the Governor had notified the area comprised in 74 factories as one "local area" and held that once this was 'done the entire area covered by all these factories should be considered as one statutory local area.
It appears to us that the learned Judge was not right in thinking that the area comprised in 74 factories was notified as one local area.
What appears to have been done was that the area of each factory was being notified as a local area for the purpose of the Act.
Proceeding on (1) I.L.R. 1942 All. 302. 255 the basis that the area comprised in the 74 factories was notified as one local area the learned Judge addressed himself to the question whether this entire area was a local area within the meaning of the Act.
He appears to have accepted the contention that the word local area was used in the sense of an administrative unit, but, says he, the administration need not be political, it may be industrial and educational or it may take any other form of governmental activity.
"I cannot see," the learned Judge observed, "why it is not open to the provincial government or the provincial legislature to make an industrial survey of the province and to divide up the entire province into industrial areas or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area.
And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of entry No. 49 of List II in which a cess may be levied".
Even if this view were correct it would be of no assistance to the respondents.
It is no authority for the proposition that the area of one single factory is a local area within the meaning of entry 49.
We think however that the view taken by the learned Judge is not correct.
It is true that when words and phrases previously interpreted by the courts are used by the Legislature in a later enactment replacing the previous statute, there is a presumption that the Legislature intended to convey by their use the same meaning which the courts had already given to them.
This presumption can however only be used as an aid to the interpretation of the later Statute and should not be considered to be conclusive.
As Mr. Justice Frankfurter observed in Federal Commissioner vs Columbia B. System (1) when considering this doctrine, the persuasion that lies behind the doctrine is merely one factor in the total effort to give fair meaning to language.
The presumption will be strong where the words of the previous statute have received a settled meaning by a (1) 311 U.S. 131.
256 series of decisions in the different courts of the country; and particularly strong when such interpretation has been made or affirmed by the highest court in the land.
We think it reasonable to say however that the presumption will naturally be much weaker when the interpretation was given in one solitary case and was not tested in appeal.
After giving careful consideration ' to the view taken by the learned Judge of the Allahabad High Court in Emperor vs Munnalal (supra) about the meaning of the words "local area" and proper weight to the rule of interpretation mentioned above, we are of opinion that the Constitution makers did not use the words "local area" in the meaning which the learned Judge attached to it.
We are of opinion that the proper meaning to be attached to the words "local area" in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like.
The premises of a factory is therefore not a "local area".
It must therefore be held that section 3 of the U. P. Sugarcane Cess Act, 1956, empowering the Governor to impose a cess on the entry of sugarcane into the premises of a factory did not fall within Entry 52 of the State List.
As there is no other Entry in either State List or Concurrent List in which the impugned law could fall there is no escape from the conclusion that this law was beyond the legislative competence of the State Legislature.
The law as enacted in section 3 of the U. P. Sugarcane Cess Act, 1956, must therefore be struck down as invalid.
It may be mentioned that this is not a case where the law is in two parts and one part can be severed from the other and saved as valid while striking down the other portion which is invalid.
Indeed, that was not even suggested by the learned counsel for the respondents.
It is unnecessary for us to consider whether if section 3 had instead of authorising levy of cess for entry of sugarcane into the premises of a factory for use, consumption or sale therein had authorised the imposition of a cess on entry of cane into a local area for 257 consumption, sale or use in a factory that would have been within Entry 52.
It is sufficient to say that we cannot re write the law for the purpose of saving a portion of it.
Nor is it for the Court to offer any suggestion as to how the law should be drafted in order to keep it within the limits of legislative competence.
As the law enacted by the Legislature stands there is no escape from the conclusion that this entire law must be struck down as invalid.
In view of this conclusion on the first ground raised on behalf of the appellant it is unnecessary to consider the other ground raised in the appeal that section 3 has gone beyond the permissible limits of delegated legislation.
As we have held that the impugned legislation was beyond the legislative competence of the State Legislature the appellants are entitled to the relief asked for.
We accordingly allow the appeal, set aside the order passed by the High Court and order the issue of a writ directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons under the U. P. Sugarcane Cess Act, 1956.
The appellants will get their costs here and below.
AYYANGAR, J. I have had the privilege of perusing the judgment just now pronounced, but with the utmost respect regret my inability to agree with the order proposed.
The learned Judges of the High Court held that the impugned enactment was within the scope of Entry 52 of the State Legislative List in Schedule 7 to the Constitution, by placing reliance on the following passage in the Judgment of Das, J. in Emperor vs Munna Lal (1) where the learned Judge said: "Indeed I cannot see why it is not open to Provincial Government or Provincial Legislature to make an industrial survey of the Province and to divide up the entire province into industrial areas (1) I.L.R. [1942] All. 302, 328. 33 258 or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area.
And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of Entry No. 45 of List II in which a cess may be levied.
" In other words, the view which they favoured was to read the expression "local area".
practically to mean any "area" entry into which was by the relevant fiscal statute, made the subject of taxation.
In my opinion that is not a correct interpretation of the entry and agree with my learned brethren that having regard to the historical material, which has been exhaustively set out and discussed in their judgment, the word "local area" can in the entry designate only a predetermined local unit a unit demarcated by statutes pertaining to local self government and placed under the control and administration of a local authority such as a municipality, a cantonment, a district or a local board, an union or a panchayat etc.
and not any region, place or building within the State which might be defined, described or demarcated by the State 's taxing enactment as an area entry into which is made taxable.
But there my agreement stops and we diverge.
In my opinion, this construction of the expression "local area" in entry 52 does not automatically result in the invalidity of the impugned enactment and of the levy under it, but the extent to which, if any the charging section exceeds the power conferred by the entry would depend on matters which have not been the subject of investigation, and it is this point that I shall elaborate in the rest of this judgment.
It is unnecessary for the purposes of this case and possibly even irrelevant, to determine the precise scope, content and incidents of an "octroi" duty except that in the context in which it appeared in the Scheduled Taxes Rules framed tinder the Government of India Act, 1919, the expression signified a tax levied on entry into an area of an unit of local administration.
It is unprofitable to canvass the question 259 whether a local authority empowered at that date to levy an 'octroi ' might or might not lawfully confine the levy to entry for consumption alone, to use alone or for sale alone.
But when that entry was refashioned and enacted as item 49 of the Provincial Legislative List under the Government of India Act, 1935 (in terms practically identical with Entry 52 in the State Legislative List under the Constitution), the matter was no longer left in doubt.
The new item ran: "Cesses on the entry of goods into a local area for consumption, use or sale therein".
In connection with the use of the words "for consumption, use or sale therein" in the item three matters deserve notice: (1) Where the entry into the "local area" was not for one of the purposes set out in it, viz., for consumption, use or sale therein, but the entry was, for instance in the course of transit or for warehousing during transit, the power was not available; in other words, a mere entry could not per se be made a taxable event.
(2) It was sufficient if the entry was for any one of the three purposes; the use of the disjunctive 'or ' making this clear.
(3) The passage of goods from one portion of a local area to another portion in the same local area, would not enable a tax to be levied, but the entry has to be "into the local area", i.e., from outside the local area.
It is the second and the third of the above features that call for a more detailed examination in the context of the points requiring decision in the present case.
With this background I shall analyse the terms of section 3(1) of the Act (United Provinces Act XXII of 1956) to ascertain where precisely the provision departs from the scope or content of entry 52.
I will read that section which runs: "3.
The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may likewise remit in whole or in part such cess in respect 260 of cane used or to be used in factory for any limited purpose specified in the notification.
Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase of cane intended or required for use, consumption or sale in such factory shall be deemed to be the premises of the factory.
" Leaving the Explanation for the present, there are two matters which require advertence: (1) The first was the point emphasised by Mr. Sanyal for the appellant, that entry into the premises of a factory "for the purpose of consumption, use or sale therein" is fastened on as the taxable event treating the factory premises as if that were itself a "local area".
(2) Apart from entry into factory premises for use, consumption or sale therein, entry of the cane into other places within the local area, i.e., into "unit for local administration" is not made the subject of tax levy.
The second of the above matters cannot invalidate the legislation, because a power to tax is merely enabling, and apart from any question of discrimination under article 14 which does not arise for consideration before us the State is not bound to tax every entry of goods into "a local area".
Again, the tax could undoubtedly be confined to entry of goods into a "local area" for consumption or use in particular modes; in other words, there could be no legal objection to the tax levy on the ground that it does not extend to entry of goods into "a local area" for every type of consumption or use.
In my judgment the real vice of the charging section 3(1) lies not in that it Confines the levy to cases where the entry is for purposes of consumption etc.
in a factory but 'in equating the premises of a factory with "a local area" entry of goods into which, occasions the tax.
Another way of expressing this same idea would be to say that whereas under Entry 52 the movement of goods from within the same local.
area in which the factory is situated into the premises of the factory, could not be the subject of tax liability, because there 261 would in such cases be no entry of the goods "into a local area" under section 3(1) of the Act, not merely is the movement of goods into the factory from outside the 'local area ' in which the factory is situate made the subject of tax, but the words used are capable of imposing the tax even in those cases where the entry into the factory is from within the same local area.
What I have in mind may be thus illustrated: If factory A situated in Panchayat area B gets its supply of cane from outside the Panchayat area, the levy of the tax on the entry of the cane into the Panchayat area would clearly be covered by entry 52.
The State is not bound to tax every entry of the cane into the area but might confine the levy to the entry of the cane for the purpose of consumption in a factory.
The tax might be levied and collected at the border of the Panchayat area but there is no legal obligation to do so, and the place at which the entry of the goods is checked and the duty realised is a matter of administrative machinery which does not touch on the validity of the tax imposition.
It would thus not detract from the validity of the tax if by reason of convenience for effecting collection, the tax was levied at the stage of entry into the premises of a factory.
So long, therefore, as the cane which enters a factory for the purpose of consumption therein comes from outside that local unit of administration in which the factory is situated, in my opinion it would be covered by the words of entry 52 and well within the legislative competence of the State Government.
The language of section 3, as it stands appears, however, also to extend to cases where the supply of cane to a factory is from within the same local unit of administration; in other words, where there is no entry of the cane into the local area as explained earlier.
If this were the true position, the enactment cannot be invalidated as a whole.
It would be valid to the extent to which the tax is levied on cane entering a factory for the purpose of consumption etc.
therein from outside the local area, within which the factory premises are situated, and only invalid where it out steps this limitation.
262 The next question is whether this is a case where the valid and invalid portions are so inextricably interwoven as to leave the Court no option but to strike down the entire enactment as invalid as beyond the legislative competence of the State, or whether the charging provision could be so read down as to leave the valid portion to operate.
In my opinion, what is involved in the case before us is not any problem of severance, but only of reading down.
Before taking up this question for discussion two objections to the latter course have to be considered.
The first is that this aspect of the matter was not argued before us by learned Counsel for the State as a ground for sustaining the validity of the legislation.
In my judgment this is not an objection that should stand in the way of the Court giving effect to a view of the law if that should appear to be the correct one.
In making this observation one has necessarily to take into account the fact that legislation in nearly this form, has been in force in the State for over twenty years, and though its vires was once questioned in 1942, that challenge was repelled and the tax levy was held valid and was being collected during all this period.
The sugar cane cess has been a prime source of State Revenue for this length of time and this Court should not pronounce such a legislation invalid unless it could not be sustained on any reasonable ground and to any extent.
The second ground of objection which has appealed to my learned brethren but with which, I regret, I cannot concur is that it would require a rewriting of the Act to sustain it.
Now if the first paragraph of sub section
(1) of section 3 bad read: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory (from outside the local area in which the factory premises were situate) for use, consumption or sale therein:" (The words in brackets added by me) 263 the levy would be entirely within entry 52 even according to my learned brethren.
The question is whether the implication of these words would be a rewriting of the provision or whether it would be merely reading the existing provision so as to confine it to the powers conferred upon the State Legislature by the relevant legislative entry.
In view of the strong opinion entertained by my learned brethren, I have given the matter the utmost consideration, but I feel that the words which I have suggested are a permissible mode of construction of a statute by which wide words of an enactment which would cover an event, contingency or matter within legislative power as well as matters not within it, are read as confined to those which the law making only had authority to enact.
In my judgment the opinion of the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1), affords a useful analogy to the present case.
The enactment there impugned provided for the devolution or succession to "property" in general terms which would have included both agricultural as well as nonagricultural property, whereas the Central Legislature which enacted the law had no power to deal with succession to agricultural property.
The contention urged before the Court was that by the use of the expression "property", the legislature had evinced an intention to deal with property of every type and that it would be rewriting the enactment and not carrying out the legislative intent if the reference to "property" in the statute were read as "property other than agricultural property".
Dealing with this contention, Sir Maurice Gwyer, delivering the opinion of the Court said: "No doubt if the Act does affect agricultural land in the Governors 'Provinces, it was beyond the competence of the Legislature to enact it: and whether or not it does so must depend upon the meaning which is to be given to the word "property" in the Act.
If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers (1) 264 of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference 'to that kind of property with respect to which it is competent to legislate and to no other.
The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffec tive, the Court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land. . .
The Court does not seek to divide the Act into two parts, viz., the part which the Legislature was competent, and the part it was incompetent, to enact.
It holds that, on the true construction of the Act and especially of the word "property" as used in it, no part of the Act was beyond the Legislature 's powers.
" The Court accordingly held that the Hindu Women 's Rights to Property Act, 1937, applied to non agricultural property and so was valid.
In this connection it might be interesting to refer to the decision in Blackwood vs Queen (1) which Sir Maurice Gwyer, C.J., referred to with approval.
That case related to the validity of a duty imposed by the Legislature of Victoria (Australia) on the personal estates of deceased person.
The learned Chief Justice observed "The Judicial Committee construed the expression "personal estate" occurring in the statute to refer only to: "such personal estate as the colonial grant of probate conferred jurisdiction on the personal representatives to administer, whatever the domicile of the testator might be, that is to say, personal estate situate within the Colony, in respect of which alone the Supreme Court of Victoria had power to grant probate: Their Lordships thought that "in imposing a duty of this nature the Victorian Legislature also was contemplating the property which was under its own hand, and did not intend to levy a tax in respect of property (1) 265 beyond its jurisdiction".
And they held that "the general expressions which import the contrary ought to receive the qualification for which the appellant contends, and that the statement of personal property to be made by the executor under section 7(2) of the Act should be confined to that property which the probate enables him to administer" (1).
To confine the tax to the limitations subject to which it could, under the Constitution, be levied is, in my opinion, not an improper method of construing the statute.
The manner in which the word "property" was read down by the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1) and the word "personal property" construed by the Privy Council in Blackwood vs Queen (2) make in my opinion less change in the text of the impugned provision than the addition of the words I have set out above, which after all are words implicit in the power conferred on the State Legislature.
I would, therefore, hold that the charging section would be invalid and beyond the legislative competence of the State of Uttar Pradesh only in so far as it seeks to levy a tax on cane entering a factory from within the same local area in which the factory is situate and that in all other cases the tax is properly levied; and that the impugned section could and ought to be so read down.
The matter not having been considered from this aspect at earlier stages, we have necessarily no material before us for adjudicating upon whether tax levied or demanded from the appellant is due and if so to what extent.
We have nothing before us to indicate as to how far the cane, the entry of which into the factory of the appellant is the subject of the impugned levy, has moved into the factory from outside the local unit in which the factory is situated or originated from within the same local area.
I consider that without these matters being investigated it would not be possible to adjudicate upon the validity of the tax demanded from the appellants.
There is one matter to which it is necessary to (1) Per Sir Maurice Gwyer, C. J. , 23, (2) 34 266 advert which I have reserved for later consideration, viz., the validity of the Explanation to section 3(1)of the Act.
It would be apparent that the Explanation was necessitated by the terms of sub section
(1) of section 3 which equated "factory premises" with "local areas", or rather rendering factory premises the sole local areas entry into which occasioned the tax.
So far as the purchasing centres which are dealt with in the Explanation are concerned, the cane that moves into them from outside the "local area" where these centres are would clearly be covered by Entry 52, since the purpose of the movement into the centre is on the terms of the provision for effecting a sale therein.
In other words, the same tests which I have discussed earlier in relation to entry into factory premises, would apply mutates mutandis to these purchasing centres and in so far as a tax is levied on the movement of the cane from outside the local area the levy would be legal and in order.
I would read down the Explanation in the same manner, as I have read down the main charging provision so as to confine the levy to entry from outside 'that "local area" local area being understood in the sense already explained.
I would accordingly allow the appeal, and remand it to the High Court for investigating the material facts which I have mentioned earlier with a direction to pass judgment in accordance with the law as above explained.
BY COURT.
In accordance with the opinion of the majority the appeal is allowed, the order passed by the High Court is set aside and a writ be issued directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and successive crushing seasons under the Uttar Pradesh Sugarcane Cess Act, 1956.
The appellants will get their costs here and below.
Appeal allowed.
|
Entry 52 of List II of the Seventh Schedule to the Consti tution empowered State Legislatures to make a law relating to "taxes on the entry of goods into a local area for consumption, use or sale therein".
The U. P. Legislature passed the U. P. Sugarcane Cess Act, 1956, which authorised the State Government to impose a cess on the entry of cane into the premises of a factory for use, consumption or sale therein.
The appellant contended that the premises of a factory was not a 'local area ' within the meaning of Entry 52 and the Act was beyond the competence of the legislature.
243 Held, (per Imam, Kapur, Das Gupta and Raghubar Dayal, jj.) that the impugned Act was beyond the competence of the legislature and was invalid.
The premises of a factory was not a "local area" within the meaning of Entry 52.
The proper meaning to be attached to the words "local area" in Entry 52 was an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like.
In re: the Central Provinces & Beray Act No. XIV of 1938, , Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829, State of Madras vs Gannon Dunkerley & Co., Ltd., ; and South Carolina vs United States, , referred to.
Emperor vs Munnalal, I.L.R. 1942 All. 302, disapproved.
Per Ayyangar, J.
The Act was invalid only in so far as it sought to levy a tax on cane entering a factory from within the same local area in which the factory was situate and was valid in other cases.
It was permissible to read the Act so as to confine the tax to the limitations subject to which it could be constitutionally levied and to strike down that portion which out stepped the limitations.
In re Hindu Women 's Rights to Property Act, 1937, and Blackwood vs Queen, , applied.
|
ivil Appeal No. 3154 of 1982.
From the Judgment and Order dated 28.9.1981 of the Allahabad High Court in S.A. No. 1874 of 1970.
Satish Chandra, S.N. Singh, T.N. Singh, H.L. Srivastava and Sudama Ojha for the Appellants.
U.R. Lalit and R.D. Upadhyaya for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal is directed against the judgment dated 28 9 1981 of the High Court of Allahabad in Second Appeal No. 1874 of 1970.
167 The plaintiff respondent filed the suit alleging inter alia that before enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, hereinafter referred to as "Zamindari Abolition Act", defendants Nos. 3 to 25 were the tenants in chief of the plots in suit and his father Munni Lal was their sub tenant; that Munni Lal died in 1951 leav ing behind four sons including the plaintiff respondent; that remaining three brothers of the plaintiff had separated and consequently the plaintiff became sole tenant; that Munni Lal was recorded occupant in Khasra 1356 Fasli and in cultivatory possession in Khasra 1359 Fasli and consequen tially he acquired adhivasi rights and then sirdari rights, the rights of defendants 3 to 25 extinguished under section 240 A of the Zamindari Abolition Act; that in 1968, however, defendants Nos. 1 and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the plots in suit.
They had started interfering with the plaintiff 's possession and, hence, the plaintiff respondent filed the suit for permanent injunction.
Defendants Nos. 1 to 3, 5 to 7, 13 and 14 contested the suit.
They denied the plaintiff 's claim and disputed that the plaintiff 's father, Munni Lal, was the sub tenant or that he acquired adhivasi rights or sirdari rights.
It was further pleaded that the plaintiff or his father was never in possession of the plots in suit.
The suit for permanent injunction was dismissed.
Against the judgment of the trial court, the plaintiff respondent preferred Appeal No. 321 of 1969 which was dis missed by the first appellate court.
The Second Appeal No. 1874 of 1970, filed before the High Court of Allahabad against the judgment of the first appellate court, was allowed on 28 9 1981.
The respondent based his title on three grounds, namely, (i) that his father Munni Lal was recorded occupant in Khasra 1356 Fasli (be ginning from 1.7.1948 and ending with 30.6.1949) and became adhivas under section 20(b)(i) of the Zamindari Abolition Act; (2) that his father Munni Lal was in cultivatory possession of the disputed land it Khasra 1359 Fasli (beginning from 1.7.1951 and ending with 30.6.1952 and consequently he became adhivasi under section 3 of the U.P. Land Reforms (Supplementary) Act, (U.P. Act No. 31 of 1952);and (3) that his father Munni Lal was sub tenant over the disputed land and, there fore, he became an adhivasi and consequently the sirdar under the provisions of the zamindari Abolition Act.
The trial court and the first appellate court recorded finding of 168 facts to the effect that the plaintiff 's father Munni Lal was not in cultivatory possession of 1359 Fasli and there fore he could not get adhivasi right under section 3 of the U.P. Land Reforms (Supplementary) Act, 1952.
Both the courts further observed that the plaintiff 's father was not a recorded occupant within the meaning of section 20(b)(i) of the Zamindari Abolition Act, as the entry of his name in column 6 of the Khasra 1356 Fasli was suspicious, not being supported by Khatauni entry.
It was further held that as his father died in 1951 before the date of vesting i.e. 1.7.1952 (when the zamindari was abolished in U.P. under the provi sions of Zamindari Abolition Act), the plaintiff is not entitled to the benefit of becoming adhivasi under section 20(b)(i) of the Zamindari Abolition Act.
The trial court and the first appellate court also found that no contract or sub tenancy between Munni Lal and the proforma defendants was proved.
The High Court held the view that the approach made by the courts below was wrong.
The question that arose for decision in the suit was whether the appellant 's father was a sub tenant? The learned Single Judge noticed that if Munni Lal was a sub tenant, his heir being the adhivasi and the appellant must, therefore, suc ceed.
The evidence relating to the sub tenancy and conse quent possession was therefore, considered in detail and the learned Judge concluded that Munni Lal was in cultivatory possession of the land in 1356 Fasli as a sub tenant.
His rights as sub tenant devolved on the appellant who continued in possession as such and became adhivasi and rights of defendants 3 to 14 were extinguished under the Zamindari Abolition Act and defendants could not interfere with appel lants possession.
In this view the appellant was granted a decree reversing the decision of the lower courts.
The main contention advanced on behalf of the appellants before us is that the decision having been rendered by the trial court and the first appellate court on the basis of the finding of fact regarding the right claimed and the possession alleged, in the absence of any substantial ques tion of law, there was no jurisdiction of the High Court under section 100 C.P.C. to disturb the finding of a concur rent nature and upset the decision.
The High Court, while exercising its power under section 100 C.P.C., has no juris diction to interfere with the finding of fact recorded by the first appellate court.
Reliance was placed on V. Rarna chandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302.
Section 100(1)(c) refers to a substantial error or defect in the procedure.
The error or defect in the proce dure to which the clause refers is not an error or defect in the appreciation of 169 evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly errone ous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision as held in Madan Lal vs Gopi, ; The substantial issue in the present suit was whether the respondent was in possession of the disputed land.
The respondent claimed possession under his father as sub tenant and thereafter as sirdar.
In support of his claim respondent relied on the entries in the revenue records and the re ceipts for payment of rent.
The effect of these documents had been wholly ignored by the lower courts on the assump tion that these were fabricated.
The U.P. Zamindari Aboli tion Act came into force on July 1, 1952.
Section 20(b)(i) of the Act provided that every person, recorded as occupant of a land in the Khasra or Khatauni of 1356 Fasli prepared under sections 28 and 33 of the U.P. Land Revenue Act 190 1, be called the adhivasi of the land.
This Court in Amba Prasad vs Abdul Noor Khan & Ors., ; examined the scheme of the section and held that the title to posses sion as adhivasi depends on the entry in the Khasra of 1356 Fasli.
The section eliminates enquiries into possession in accepting the record in the Khasra.
The Court observed at page 808: "The word 'occupant ' is not defined in the Act.
Since khasra records possession and enjoyment the word 'occupant ' must mean a person holding the land in possession or actual enjoyment.
The khasra, however, ma mention the proprietor, the tenant, the sub tenant and other person in actual pos session, as the case may be.
by occupant is meant the person in actual possession it clear that between a proprietor and a tenant the tenant and between a tenant and the sub tenant the latter and 170 between him and a person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occupants. ' ' In Nath Singh & Ors.
vs The Board of Revenue & Ors., ; in answering the contention that the cor rectness of the entry in the record of Khasra of 1356 Fasli could be gone into and where the respondents are recorded only as sub tenant and not as occupant, they could not get the benefit of section 20(b)(i) of the Act, this Court held as under: "The record of rights for the year 1356F. had not been corrected afterwards.
We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub tenants after the decision in favour of the landlord, Ram Dhani Singh.
The last decision of this Court also shows that as between the tenant and the sub tenant the entry in the record of rights in favour of the sub tenant makes him the occupant entitled to the adhivasi rights under section 20 of the Act.
" In this case the Khasra entry for 1356 Fasli Ex 4 showed that the respondent 's father Munni Lal was sub tenant.
As rightly stated by the High Court, it is not for the plain tiff to prove that this entry is correct.
It was for the defendants to show that the entry had been introduced sur reptitiously out of ill will or hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the respondent 's father.
The Khasra entry of 1371 Fasli and 1372 show the respondent 's name as person in possession.
It is clear indication that possession of the subtenant continued with the respondent.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the re spondent as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
We agree that the lower appellate court was not justified in ignoring these documents.
The High Court was, therefore, well within its powers in appreciating the evidence and arriving at its own conclusion.
The contention that the second appeal abated on account of non filing of substitution application after the death of defendants Nos. 6, 10 and 11 had been reiterated before us.
These defendants were only proforma parties and the High Court was right in holding hat appeal did not abate.
We may refer to The State of Punjab vs 171 Nathu Ram; , where it is held "that ordinari ly the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appel lants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court.
" The Civil Court had jurisdiction to try the suit for injunction when the question of title arose only incidentally.
The objection to jurisdiction of the Civil Court to try the suit on the ground that revenue court had exclusive jurisdiction is not sustainable the suit being one for permanent injunction and the question of title arises only incidentally.
We find no merit in the appeal which is accordingly dismissed.
No order as to costs.
G.N. Appeal dis missed.
|
The plaintiff respondent claimed that before the U.P. Zamindari Abolition and Land Reforms Act, 1950 came into force, his father was a sub tenant under defendants 3 to 25 and after his father 's death, the other 3 sons separated from the plaintiff and consequently he has become the sole tenant.
According to him, his father was recorded occupant of Khasra 1356 Fasli (1.7.1948 to 30.6.1949) and was in cultivatory possession in Khasra 1359 Fasli (1.7.1951 to 30.6.1952) as a result of which he had acquired adhivasi rights and sirdari rights, and the rights of defendants 3 to 25 extinguished under section 240 A of the said Act.
He alleged that in 1968, defendants I and 2 obtained fictitious sale deed from defendants Nos. 3 to 25 in respect of the said land and started interfering with his possession.
He, therefore, filed a suit for permanent injunction.
The suit was contested by some of the defendants who pleaded that neither the plaintiff nor his father was in possession of the said land at any point of time and there was no question of sub tenancy or acquiring of adhivasi/sirdari rights.
The trial court dismissed the suit.
The appeal preferred by the plaintiff respondent was dismissed by the first appellant court.
The trial court as also the first appellate court held that the respondent was not entitled to become an adhivasi under section 20(b)(i) of the Act since his father died in 1951 before the date of vesting i.e. 1.7.1952.
Both the courts also held that his father was not in cultivatory possession of Khasra 1359 Fasli and, therefore, he could not get adhivasi rights under section 3 of the U.P. Land Reforms (Supple 165 mentary) Act, 1952.
It was also held that there was no contract or sub tenancy in the name of his father.
The plaintiff respondent preferred an appeal before the High Court which allowed the appeal and granted a decree reversing the decision of the courts below.
Aggrieved, the appellants have flied the present appeal contending inter alia that since there were concurrent findings of facts by the trial court and the first appellate court, and in the absence of any substantial question of law, the High Court had no jurisdiction under section 100 C.P.C. to disturb the concurrent findings of facts.
Dismissing the appeal, this Court, HELD: 1.
Section 100(1)(c) of the Code of Civil Proce dure refers to a substantial error or defect in the proce dure.
The error or defect In the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits.
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded inconsequence is grossly erro neous, that cannot be said to introduce a substantial error or defect in the procedure.
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure.
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure.
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequent matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.
[168H; 169A C] Madan Lal vs Gopi, ; relied on.
V. Ramachandra Ayyar & Anr.
vs Ramalingam Chettiar & Anr., AIR 1963 SC 302 referred to.
Section 20(b)(1) of the Act eliminates enquiries into possession in accepting the record in the Khasra.
In the instant case the Khasra entry for 1356 Fasli showed that the appellant 's father was the subtenant.
It is not for the appellant to prove that this entry Is incorrect.
It was for the defendants to show that the entry had been introduced 166 surreptitiously out of ill will of hostility.
In the absence of such proof, the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the appellant 's father.
The Khasra entry of 1371 Fasli and 1372 show the appellant 's name as person in possession.
It is clear indication that possession of the sub tenant con tinued with the appellant.
The rent receipts of the year 1929 and subsequent years are not required to be proved by the appellant as pointed out by the learned Judge.
These furnish evidence of possession as sub tenant.
The lower appellate court was not justified in ignoring these docu ments.
The High Court was, therefore, well within its power in appreciating the evidence and arriving at its own conclu sion.
[170B, E G] Amba Prasad vs Abdul Noor Khan & Ors., ; and Nath Singh & Ors.
vs The Board of Revenue & Ors., ; relied on.
Though the revenue courts had exclusive jurisdiction, the civil court had jurisdiction to try the suit for injunc tion when the question of title arose only incidentally.
[171B] 4.
The High Court was right in holding that the appeal did not abate on account of non filing of substitution application after the death of certain defendants.
[170H] The State of Punjab vs Nathu Ram, ; relied on.
|
No. 975 of 1986.
(Under Article 32 of the Constitution of India).
D.D. Thakur, V.C. Mahajan, section Markandaya, G.S. Rao, Sreepal Singh and Ms. Kusum Chowdhary for the Petitioners.
R N. Trivedi, S.C. Batra and Raju Ramachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The dispute in this group of writ petitions under Article 32 of the Constitution relates to allotment of land for residential purposes by New Okhla Industrial Development Authority (shortly known as 'NOIDA ').
NOIDA is a trans Jamuna housing project set up by the Uttar Pradesh Government in the year 327 1976.
Prior to the setting up of the NOIDA, the Defence Services Cooperative Housing Society Ltd. and other socie ties had acquired lands in the area for purposes of housing of their members and when the same came to be notified for acquisition for NOIDA, writ petition No. 9034 of 1983 was filed challenging the acquisition; the federation also filed a separate writ petition being 1588 of 1984.
Some other writ petitions by the different parties were also filed.
On 14th January, 1985, after hearing parties a Bench of this Court inter alia made the following directions: "Both sides presented a fair and nearly accurate picture of the present situation.
Spirit of re conciliation rather than confrontation prevailed all throughout.
All reasonable suggestions emanating from both sides either accepted or seriously considered by both sides with a view to implement ing the scheme under which plots were to be allotted.
Only three points remain which necessitated court 's intervention.
Having examined them we direct: (1) NOIDA shall hand over actual possession of plots to each allottee of each society involved in the dispute.
To identi fy them a list setting out their names has to be supplied within six weeks from today.
(2) Mr. G.L. Sanghi, learned counsel urged that NOIDA will be entitled to escalation charges for the year 1981 and 1982 which works out at the rate of Rs.20 per square metre.
He repeatedly pointed out that the NOIDA would be entitled to the same under the scheme.
May be there was substance in the submission.
However, having regard to the fact that a sum of Rs.5.50 crores has already been deposited by the allottees with the NOIDA for some time and as the scheme had not been implemented as per time schedule provided in the scheme itself, to meet possession of plot to each allottee had to be handed over some where in 1982 and which would be now done in 1985 pursuant to the directions yet without setting a precedent and having regard to the facts of this case and special circumstances pointed out to this Court with regard to the present position, we are of the opinion that the NOIDA is not entitled to escalation charges for the year 1981 and 1982.
(3) The third point of a minor difference was that a special 328 charge has to be paid by all allottees whose plots are said to be situated at a comparable advantageous position, such as, corner plots, plots abutting to the main road or both etc.
There may be advantage in taking the corner plot or a plot abutting on the road, but that is fortuitous and not be one 's volitional selection.
Having regard to the special facts of this case and the element of luck in getting a particular plot we direct that the NOIDA would not be enti tled to collect special charge or anything extra for such plots.
We order accordingly.
It was further pointed out that there were some applicants who applied for the plots but who failed to keep to the time schedule in the matter of payment.
If the number of such applicants had not been very large, the Court would have examined each case.
But the number of such applicants appears to be quite big.
Mr. Soli Sorabjee, learned counsel, in this con nection pointed out that under the interim order of this Court dated September 3, 1988, amongst others NOIDA was directed to reserve 269 acres of land in sectors 41 and 42 or in adjoining sectors in addition to the land already allotted to the petitioners.
Therefore, their cases deserve consideration as requisite area of land is available.
At the suggestion of the Court Mr. G.L. Sanghi, learned counsel agrees to appoint Shri Z.H. Kazmi, Law Assistant Registrar (Housing), Lucknow who would be specifi cally directed to look into the case of each such applicant and decide whether any one deserves allotment avoiding technical approach and by approaching the matter from the angle of social justice with broad vision.
If there is any dispute which cannot be resolved liberty to move this Court . . " On 16th December, 1985, the following order was made: "The parties are agreed that the dispute in regard to pay ment of interest and the eligibility for allotment of plots may be decided by Shri D.A. Desai, Chairman, Law Commission, as mediator and not as Arbitrator.
The parties agree that whatever decision is given by Shri D.A. Desai 329 will be accepted by them as binding and there will be no question of challenging it in any form whatsoever.
The parties also agree that simultaneous with the execution of documents possession of the plots shall be forthwith handed over to those who are admitted as eligible for allotment and interest shall be paid by them at the rate of 15% per annum from the date of the order made by this Court, namely, 2.4.1985, subject to adjustment one way or the other accord ing to the decision which may be given by Shri D.A. Desai.
" The decision contemplated by the December order took some time to be given and the report furnished to this Court came to be hotly debated.
More than three years have been taken on that account.
It is unnecessary to deal with the different problems which arose in the proceedings before this Court after submission of the report till the matter has been heard in the third week of January this year.
We suggested to Mr. Thakur, learned counsel appearing for the Federation of Co operative Housing Societies and Mr. Trivedi, learned Additional Advocate General of Uttar Pra desh appearing for NOIDA and counsel appearing for the different parties to sit across the table and work out an acceptable modality by which the problem could be best answered and we are happy to note that their efforts have been to a large extent successful and the scope of what at one time appeared to be an unending dispute had now been substantially reduced and confined to certain issues which require to be dealt with by this order of ours.
It is agreed that the total number of persons who are entitled to allotment is 2,380 and the Federation represent ing the various cooperative societies has drawn up the particulars of these 2,380 applicants.
At the hearing, counsel and NOIDA authorities present in Court had agreed to allotment of 90 acres out of the 269 acres set apart by this Court 's earlier order.
In a written note submitted by Mr. Thakur it has been brought to our notice that if their initial requirement of 130 acres is reduced to 90 acres, a plot of 112.5 square metres will have to be scaled down to 77.73; similarly a plot of 162 square metres will have to be reduced to 112.3 square metres; a plot of 202.5 square metres will have to be reduced to 140.45 square metres; and a plot of 250 square metres will have to be reduced to 173.59 square metres.
It has not been disputed that the four categories of plots were stipulated in the scheme.
If this scaling down is to be done the plots are 330 bound to be of odd sizes and working out may be difficult.
We have, therefore, decided that instead of 90 acres of land the total area to be released on that account should be 96.29 acres in all and different sizes of plots as provided in the scheme shall stand reduced to the sizes indicated below: section No. As per scheme Plots now to be allotted (Sq. metres} (Sq. metres) 1.
112.5 100 2. 162 130 3. 202 150 4.
250 180 Apart from 2,380 eligible allottees there are separate applications which are before the Court already and are being dealt with separately.
To meet their claims we are of the view that 71 decimals should also be set apart and the same would be subject to such orders as the Court may ulti mately make in these cases.
In the event of any area being unallotted the same would revert back to NOIDA.
The plots to be allotted are to be developed by NOIDA.
While the federation and the other petitioners wanted that a three months ' limit should be fixed it has been pleaded on behalf of the NOIDA that the time limit should be two years.
There is a limit to waiting and human patience and the span of the life of the applicants is not available to be extend ed by NOIDA.
Taking an overall picture of the matter we direct that a period of nine months beginning from 1st of March, 1990, is the limit within which developed plots shall be allotted to the 2,380 entitled persons now represented by the Federation and such other persons as referred to above.
The next relevant point for consideration is what should be the price to be paid.
We have already indicated that this Court in its order dated 14th January, 1985, had not agreed for any escalation charges.
More than five years have since been rolled by.
Turn of events have taken an unwieldy course.
Prices have gone up in every sphere and the rupee has lost its value over the years.
To bind NOIDA by the terms of its scheme at this point of time would not at all be fair.
We may point 331 out at this stage that these 2,380 persons have already deposited huge amounts of money said to be about five crores of rupees with NOIDA and the money has been held on account without utilisation, as no final decision had been taken.
Undoubtedly this money must be fetching interest.
Mr. Rama chandran learned counsel appearing for NOIDA has indicated that current rate per square metre is Rs. 1,200.
Taking into consideration the fact that these 2,380 members have waited too long for allotment of their plots, we are of the view that NOIDA should be permitted to charge @ Rs. 1,000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12% interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every person included in the figure of 2,380 within three months from now in monthly instalments.
The 1st instalment is to be paid on or before 31st March, 1990; the 2nd instalment to be paid on or before 30th April, 1990; and the 3rd instalment to be paid on or before 31st May, 1990.
It shall be the obligation of the Federation to duly notify every member of the direction and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA would thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
The terms in regard to allotment for the remaining few persons as stated above shall also be the same.
Town planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the federation of the different societies would cooperate with NOIDA in this regard.
The order reserving 269 acres of land is vacated, sub ject to the allotments indicated.
The writ petition is disposed of with these directions.
There shall be no order as to costs.
P.S.S. Petitions disposed of.
|
Certain cooperative housing societies comprising of the petitioners and others had acquired lands in the trans Jamuna area of Uttar Pradesh prior to the setting up of the New Okhla Industrial Development Authority in 1976.
When the said lands came to be notified for the Development Authority writ petitions were filed in 1983 under Article 32 of the Constitution for quashing the acquisition.
In its order dated January 14, 1985 the Court had directed the Authority to hand over actual possession of plots to allottees in volved in the dispute.
Since a dispute had arisen as to the eligibility of a large number of applicants who had failed to keep to the time schedule in the matter of payment the Court in its interim order dated September 2, 1983 had directed the Authority to reserve 269 acres of land in addition to the land already allotted.
The petitioners in the instant case belong to this category.
The total number of persons entitled to allotment has been determined at 2,380.
The Authority 's scheme for the petitioners had stipulated four sizes of plots viz. 112.5 sq. metres, 162 sq. metres, 202.5 sq. metres and 250 sq. metres.
They, therefore, claimed an area of 130 acres out of the 269 acres set apart for them.
The Authority, however, sought to reduce this area to 90 acres and the plot area to 77.73, 112.3, 140.45 and 173.53 sq. metres respectively.
Disposing of the petitions, the Court.
HELD: If the scaling down from 130 acres to 90 acres is to be done the plots are bound to be of odd sizes and work ing out may be difficult.
Therefore, instead of 90 acres of land the total area to be released on that account should be 96.29 acres and the different sizes of plots as provided in the scheme shall stand reduced to 100 sq. metres, 326 130 sq. metres, 150 sq. metres and 180 sq. metres respec tively.
71 decimals of land should also be set apart for the other applicants being dealt with separately.
The plots are to be developed by the Authority in accordance with the norms laid down, and allotted within a period of nine months beginning from 1st of March, 1990.
[329H 330F, 331F] Prices have gone up in every sphere.
To bind the Author ity by the terms of its scheme at this point of time would not at all be fair.
These 2,380 persons have already depos ited huge amounts of money said to be about five crores of rupees with the Authority and the money has been held on account without utilisation, as no final decision had been taken.
The current rate per square metre is Rs.1,200.
Taking into consideration the fact that the members have waited too long for allotment of their plots, the Authority should be permitted to charge Rs.1,O00 per square metre.
Every member who has deposited any sum of money with the Authority against proposed allotment shall ble entitled to 12% inter est on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment against actual price of land to be worked out @ Rs. 1,000 per square metre.
Balance amount, if any, shah have to be paid by every person includ ed in the figure or 2,380 within three months from the date of the order in monthly instalments.
Failure to pay any of the instalments within the time limit indicated shall dis qualify such person from allotment.
The terms in regard to allotment for the remaining few persons shall also be the same.
[330G 331E]
|
ivil Appeal No. 1102 of 1990.
From the Judgment and Order dated 7.10.1988 of the Patna High Court in C.W.J.C. No. 2075 of 1988.
A.K. Sen, K.D. prasad, J. Krishna and Mrs. Naresh Bakshi for the Appellant.
S.K. Sinha and U.S. Prasad for the Respondents.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
Special Leave is granted.
This appeal from an order of the Patna High Court raises an important question as to the scope of section 33 B of the ( 'The Act ').
The facts can be quite shortly stated: The appellant company is mainly engaged in construction of coal washeries on contract basis in different collieries and also doing allied and incidental work.
Shivaji Prasad Sinha respondent No. 4 was a Senior Supervisor in the company 's establishment at Dhanbad.
It is said that he was caught red handed when carrying 55 pieces of electromagnetic clutch plates kept concealed in the tool box of his scooter.
The management held domestic enquiry into the incident and found him guilty of committing theft.
He was accordingly dismissed from service.
The dispute arising therefrom was referred under Section 10(1)(c) of the Act to Labour Court Dhanbad for adjudication.
The Labour Court registered the case as refer ence case No. 4 of 1988 and issued notice to the parties.
The parties entered appearance and filed their respective pleadings.
When the matter was thus pending consideration the respondent seems to have written to the Government stating that it would be difficult for him to attend the Labour Court Dhanbad since he has been residing at Hajipur and it would be convenient for him if the case is trans ferred to Labour Court Patna.
That application was made without intimation to the management.
The Government howev er, has acceded to the request of the respondent and without opportunity to 294 the management transferred the case to Labour Court Patna.
The Notification issued in that regard reads as follows: "NOTIFICATION Patna dated 8th August 1988 S.O.
In exercise of powers conferred by sub section (1) of Section 33 B of the (14 of 1947) the Governor of Bihar after careful consideration of the application of the petitioner Shri Shivajee Prasad Sinha wherein he has prayed for the transfer of adjudication proceedings to Patna keeping in view to the difficulties expressed by him to attend the labour court, Dhanbad, regu larly due to his residence at Hajipur is pleased to withdraw the proceeding shown in Annexure 'A ' pending before Labour Court, Dhanbad and transfer the said proceeding to the Labour Court, Patna for speedy disposal from the stage at which the case is transferred.
" The management moved the High Court by way of writ petition under Article 226 of the Constitution to have the Notification quashed.
The High Court did not agree and summarily dismissed the writ petition with an observation: "Since no prejudice is being caused to the petitioner and no allegation of mala fide has been made against the presiding officer, Patna, we are not inclined to interfere with the order under challenge.
This application is dismissed" The management in the appeal challenges the Government notification withdrawing and transferring the pending case from the Labour Court Dhanbad to Labour Court Patna.
Since the impugned notification has been issued under Section 33 B of the Act, we may for immediate reference set out that Section.
Omitting immaterial words, it is in these terms: "33.B. Power to transfer certain proceedings: (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, 295 Tribunal, or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special direc tions in the order of transfer, proceed either de novo or from the stage at which it was so transferred." The Section 33 B provides power to the appropriate Government to withdraw any proceedings pending before a labour court or Tribunal and transfer it for disposal to another labour court or Tribunal.
It could be exercised suo motu or on representations of the parties.
The expression 'may ' in sub section (1) of Section 33 B only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power conferred thereunder has to be exercised or not.
But when once a decision is taken to transfer a pending case then the requirement of giving reasons becomes mandatory.
The authority is under legal obligation to record reasons in support of its decision.
Reasons would be life of the decision.
Failure to give reasons or giving reasons not germane would be fatal to the decision.
In Associated Electrical Industries (P) Ltd. vs Its Workmen, [1961] II LLJ 122, 130 the Government withdrew and transferred a reference from one tribunal to another tribu nal merely stating that expediency required the withdrawal and transfer.
The validity of the order of withdrawal and transfer was challenged inter alia on the ground that no reasons were stated for passing the order.
Gajendragadkar, J., (as he then was) speaking for this Court observed that the requirement about the statement of reasons to be record ed must be complied with both in substance and in letter.
To say that it is expedient to withdraw a case from one tribu nal and transfer it to another does not amount to giving reasons as required by the Section.
In the instant case, the key question for consideration is whether the Government before accepting the representa tion of the workman and transferring the case from the labour court, Dhanbad to labour court, Patna should have given an opportunity to the management? The validity of the reasons given by the Government for transferring the case is another question to be considered.
We will presently consider the question but before doing so a brief survey of some of the High Courts decisions bearing on this aspect may be usefully made.
The Punjab High Court in Workman of Punjab 296 Worsted Spinning Mills Chheharta vs State of Punjab & Ors., [1965] II LLJ 2 18 has expressed the view that the power to transfer pending case under section 33 B is not a mere administrative but quasi judicial power and the appropriate Government cannot transfer a case on the basis of allega tions of one party without giving reasonable opportunity to other party to represent its point of view.
This was also the view recognised by the Madras High Court in Management of Sri Rani Lakshmi Ginning and Weaving Mills Ltd. vs State of Madras, at 167.
It was explained by the Madras High Court that the reasons given by a party who moved for transfer may not be valid or relevant or may not be true at all.
Whether such reasons in fact exist and whether those reasons have any relevance for a transfer could be tested only if the other party has notice of the same.
The High Courts of Calcutta, Andhra Pradesh and Allaha bad have however, taken contrary view.
In Jay Engineering Works Ltd. vs Fourth Industrial Tribunal, Calcutta, [1977] (Lab) 1C 1739 at 1750 the Calcutta High Court has observed that it would be difficult to appreciate how under such circumstances, the Government could be called upon to give a notice to the parties before making an order under section 33 B. There could be no principle involved in giving such a notice.
Nobody 's rights could possibly have been effected in taking such action and there is no question of observing the principles natural justice.
The Andhra Pradesh High Court in Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) IC 325 at 329 has adopted a similar line of reasoning.
It was emphasized that Section 33 B in terms does not con template any notice being given before a transfer is made of any proceeding from one Labour Court to another.
There is no right to any party to have any question decided by a partic ular court.
An arbitrary exercise of power of transfer is adequately safeguarded by the statutory requirement to record reasons for such transfer.
The Allahabad High Court in Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) IC 335,338 has also expressed similar views.
After the leading English case of Ridge vs Baldwin,I ; and an equally important case of this Court in A.K. Kraipak & Ors.
vs Union of India, there was a turning point in the development of doctrine of natural justice as applicable to administrative bodies.
Both the authorities laid down that for application of rules of natural justice the classification of functions as 'judi cial ' or 'administrative ' is not necessary.
Lord Reid in Ridge case explained, 'that the duty to act judicially may arise from the very nature of the 297 function intended to be performed and it need not be shown to be super added '.
Hegde, J., in Kraipak case said that under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law.
The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner.
The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.
The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.
What is thus important in the modern administration is the fairness of procedure with elimination of element of arbitrariness.
The State functionaries must act fairly and reasonably.
That is, however, not the same thing to state that they must act judicially or quasijudicially.
In Keshav Mills Co. Ltd. vs Union of India, ; Mukherjea, J., said (at 30): "The administrative authority concerned should act fairly, impartially and reasonably.
Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly." The procedural standards which are implied by the duty to act fairly has been explained by Lord Pearson in Pearl berg vs Varty, ,547: "A tribunal to whom judicial or quasi judicial functions are entrusted is held to be required to apply those principles (i.e. the rules of natural justice) in performing those functions unless there is a provision to the contrary.
But where some person or body is entrusted by Parliament with administrative or executive functions there is no presump tion that compliance with the principles of natural justice is required although, as 'Parliament is not to be presumed to act unfairly ', the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fair ness.
" In Mohinder Singh Gill vs Chief Election Commissioner, ; at 434 Krishna Iyer, J. commented that natural justice though 298 varying is the soul of the rule as fair play in action.
It extends to both the fields of judicial and administrative.
The administrative power in a democratic set up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice.
Good administration demands fair play in action and this simple desideratum is the fount of natural justice.
Fairness is flexible and it is intended for improving the quality of government by injecting fairplay into its wheels.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati, J., expressed similar thought that audio alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power.
In Swadeshi Cotton Mills vs Union of India, Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statu tory body or tribunal is administrative or quasi judicial, a duty to act fairly, that is, in consonance with the funda mental principles of substantive justice is generally im plied.
The presumption is that in a democratic polity wedded to the rule of law, the State or the Legislature does not intend that in the exercise of their statutory powers its functionaries should act unfairly or unjustly.
In the same case, Chinnappa Reddy, J., added (at 2 12) that the princi ples of natural justice are now considered so fundamental as to be 'implicit in the concept of ordered liberty '.
They are, therefore, implicit in every decision making function, call it judicial, quasi judicial or administrative.
The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice.
The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication.
Citations could be multiplied since there is fairly abundant case law has come into existence: See, for example, Royappa vs State of Tamil Nadu, ; and Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 13 1.
More recently in a significant judgment in Charan Lal Sahu & Ors.
vs Union of India, JT learned Chief Justice Sabyasachi Mukharji has referred to almost all the authori ties of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the consti tutional set up of this country.
No man or no man 's right should be affected without an 299 opportunity to ventilate his views.
The justice is a psycho logical yearning, in which men seek acceptance of their view point by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right.
It may be noted that the terms 'fairness of procedure ', 'fair play in action ', 'duty to act fairly ' are perhaps used as alternatives to "natural justice" without drawing any distinction.
But Prof. Paul Jackson points out that "Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the.
contrary, to refer to a standard of behaviour which, in creasingly, the courts require to be followed even in cir cumstances where the duty to observe natural justice is inapplicable" (Natural Justice by Paul Jackson 2nd ed.
p. 11).
We share the view expressed by Professor Jackson.
Fair ness, in our opinion, is a fundamental principle of good administration.
It is a rule to ensure the vast power in the modern state is not abused but properly exercised.
The State power is used for proper and not 'for improper purposes.
The authority is not misguided by extraneous or irrelevant consideration.
Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons.
To use the time hallowed phrase "that justice should not only be done but be seen to be done" is the essence of fairness equally applicable to administrative authorities.
Fairness is thus a prime test for proper and good adminis tration.
It has no set form or procedure.
It depends upon the facts of each case.
As Lord Pearson said in Pearlberg vs Varty, (at 547), fairness does not necessarily require a plurality of hearings or representations and counter repre sentations.
Indeed, it cannot have too much elaboration of procedure since wheels of administration must move quickly.
A case with a not dissimilar problem was in Pannalal Binjraj and Anr.
vs Union of India, There the Commissioner of Income Tax by the power vested under section 5(7A) of Income Tax Act, 1922, transferred an asses see 's case from one Income Tax Officer to another without hearing the assessee.
Section 5(7A) of the Income Tax Act, 1922 provided: "The Commissioner of Income Tax may transfer any case from one Income Tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income Tax Officer to another.
Such 300 transfer may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice al ready issued by the Income tax Officer from whom the case is transferred.
" This Section did not provide for affording an opportuni ty to the assessee before transferring his case from one Income Tax Officer to another.
The assessee challenged the constitutional validity of the Section.
This Court upheld its validity on the ground that it is a provision for admin istrative convenience.
N.H. Bhagwati, J., speaking for this Court, however remarked (at 589): " . . it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under section 5(7A) of the Act is made by the Commissioner of Income Tax or the Central Board of Revenue, as the case may be, and notice is given to the party affected and he is afforded a reasonable opportunity of representing his views on the question and the reasons of the order are reduced however briefly to writing .
There is no presumption against the bona fide or the honesty of an assessee and normally the income tax authorities would not be justified in refusing to an assessee a reasonable oppor tunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64(1) and (2) of the Act is sought to be made against him, be it a transfer from one Income Tax Officer within the State to an Income Tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected.
" Section 5(7A) was replaced by Section 127 of the Income Tax Act, 1961, which now makes it obligatory to record reasons in making the order of transfer after affording a reasonable opportunity of being heard to the assessee in the matter.
In Ajantha Industries vs Central Board of Taxes, ; this Court considered the validity of a transfer order passed under Section 127 and it was held that merely recording of reasons on the file was not sufficient.
It was essential to give reasons to the affected party.
The order of transfer in that case was quashed for not communi cating reasons to the assessee.
In the present case, the State has withdrawn the pending refe 301 rence from the Labour Court, Dhanbad and transferred it to another Labour Court at the distant District of Patna, on the representation of the workman, without getting it veri fied from the management.
The State in fairness ought to have got it verified by giving an opportunity to the manage ment which is a party to the pending reference.
Denial of that opportunity is a fatal flaw to the decision of the Government.
The management need not establish particular prejudice for want of such opportunity.
In S.L. Kapoor vs Jagrnohan, ; at 765 Chinnappa Reddy, J., after referring to the observation of Donaldson, J., in Altco Ltd. vs Suth erland, said that the concept that justice must not only be done but be seen to be done is basic to our system and it is concerned not with a case of actual injustice but with the appearance of injustice or possible injustice.
It was emphasized that the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed.
The non observance of natural justice is itself prejudice to any man and proof of prejudice independ ently of proof of denial of natural justice is unnecessary.
This takes us to the reasons given by the Government in support 'of the order of transfer.
The Government has stated that the workman is having his residence at Hajipur and it would be therefore, inconvenient for him to attend the labour court regularly at Dhanbad.
However, most of the factors do not point that way.
The workman and his family members seem to be still residing in colony quarter at Dhanbad (Annexure C).
His two sons are studying in De Nobili School at Mugma which is a nearby village.
Reference may be made to a letter dated September 8, 1988 (Annexure D) of the Headmaster of the School in which the children of the work man are studying.
Reference may also be made to a letter (Annexure E) from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad.
As against these material, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna.
In fact, in the counteraffidavit, he has not denied the documents annexed to the Special Leave Petition, and not seriously disputed the factum of his residence in the colony quarter at Dhanbad.
Even the alleged recommendation of the Ward Commissioner referred in his counter affidavit has not been produced.
We have, therefore, no hesitation in holding that the Government was misled by the representation of the workman. 302 In the result, we allow the appeal and quash the notifi cation dated August 8, 1988 by which the Government of Bihar transferred the case from the Labour Court, Dhanbad to the Labour Court, Patna.
The Labour Court, Dhanbad shall now proceed to dispose of the matter as expeditiously as possi ble.
In the 'circumstances of the case, we make no order as to costs.
P.S. S Appeal allowed.
|
Sub section (1) of section 33 B of the provides that the appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceedings pending before a Labour Court or Tribunal and transfer it for disposal to another Labour Court or Tribunal.
Respondent No. 4, a workman of the appellant company at Dhanbad, was caught red handed while stealing certain goods.
The domestic enquiry found him guilty of committing theft.
Consequently,.
he was dismissed from service.
The dispute arising therefrom was referred to the Labour Court, Dhanbad under section 10(1)(c) of the Act for adjudication.
When the matter was pending consideration the respondent sought transfer of the case to the Labour Court at Patna on the plea that since he was residing at his village near Patna it would be difficult for him to attend the proceedings at Dhanbad.
That application was made without intimation to the management.
The Government, however, without giving opportu nity to the management transferred the case to Patna by a notification dated August 8, 1988 issued under section 33B of the Act.
The writ petition filed by the management seeking to quash the notification was dismissed by the High Court on the view that no prejudice was being caused to the manage ment and no allegation of mala fide had been made against the presiding officer.
Allowing the appeal by special leave, the Court.
HELD: 1.1 The power to transfer a pending case under section 33B of the is not a mere administra tive but quasijudicial power and the appropriate Government cannot transfer a case on the basis of allegations of one party without giving a reasonable opportunity to the other party to represent its point of view.
Such 291 allegations may not be valid or relevant or may not be true at all.
That could be tested only if the other party has notice of the same.
[296A C] Punjab Worsted Spinning Mills, Chheharta vs State of punjab & Ors., [1965] II LLJ 218 and Management of Sri Rani Lakshmi Ginning & Weaving Mills Ltd. vs State of Madras, , referred to.
Jay Engineering Works Ltd. vs Fourth Industrial Tribu nal, Calcutta, [1977] (Lab) I.C. 1739; Muthe Steels (India) Ltd. vs Labour Court, Hyderabad, [1979] (Lab) I.C. 325 and Pioneer Ltd. vs Labour Court, Gorakhpur, [1983] (Lab) I.C. 335, overruled.
1.2 What is important in the modern administration is the fairness of procedure with elimination of element of arbitrariness, for fairness is a fundamental principle of good administration.
It is a rule to ensure that vast power in the modern State is not abused but properly exercised.
The State power is used for proper and not for improper purposes.
The authority is not misguided by extraneous or irrelevant consideration.
Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons.
The concept that 'justice should not only be done but be seen to be done ' is the essence of fairness and is equally applicable to administrative authorities.
Fairness is thus a prime test for proper and good administration.
It has no set form or procedure.
It does not necessarily re quire a plurality of hearings or representations and counter representations.
It depends upon the facts of each case.
[297C, 299C E] Ridge vs Baldwin, ; ; A.K. Kraipak & Ors.
vs Union of India, ; Keshav Mills Co. Ltd. vs Union of India; , ; Pearlberg vs Varty, , 547; Mohinder Singh Gill vs Chief Election Com missioner; , ; Maneka Gandhi vs Union Of India, [1978] 2 SCR 621; Swadeshi Cotton Mills vs Union of India, ; Royappa vs State of Tamil Nadu, ; ; Union of India vs Tulsi Ram, [1985] (Supp.) 2 SCR 131; Charan Lal Sahu & Ors.
vs Union of India, JT ; Natural Justice by Paul Jackson, 2nd ed.
p. 11 and Pannalal Binjraj & Anr.
vs Union of India, , referred to.
1.3 In the instant case, the State had withdrawn the pending reference from the Labour Court, Dhanbad and trans ferred it to another Labour Court at the distant District of Patna, on the represen 292 tation of the workman without getting it verified from the management.
The State in fairness ought to have got it verified by giving an opportunity to the management which was a party to the pending reference.
The management was not required to establish particular prejudice for want of such opportunity.
The non observance of natural justice was itself prejudice to the management and proof of prejudice independently of proof of denial of natural justice was unnecessary.
Denial of the opportunity to the management was thus a fatal flaw to the decision of the Government.
[300H 30 IA, B D] S.L. Kapoor vs Jagmohan, ; and Altco Ltd. vs Sutherland, , referred to.
The expression 'may ' in Sub section
(1) of section 33B of the Act only makes it discretionary in so far as the appropriate Government taking a decision as to whether the power con ferred thereunder has to be exercised or not.
But when once a decision has been taken to transfer a pending case then the requirement of giving reasons becomes mandatory.
The authority would be under legal obligation to record reasons in support of its decision.
Failure to give reasons or giving reasons not germane would thus be fatal to the deci sion.
[295C D] Associated Electrical Industries (P) Ltd. vs Its Work men, [1961] II LLJ 122 and Ajanta Industries vs Central Board of Taxes, ; , referred to.
2.2 In the instant case, the Government has stated that the workman was having his residence at his village near Patna and it would be, therefore, inconvenient for him to attend the Labour Court regularly at Dhanbad.
Most of the factors, however, do not point that way.
The workman and his family members seem to be still residing in the colony quarter at Dhanbad.
His two sons are studying in a school at a nearby village.
The letter dated September 8, 1988 of the Headmaster of the said school speaks of that fact.
The letter from the Assistant Electrical Engineer in proof of the electricity supplied to the quarter occupied by the workman at Dhanbad is also relevant.
As against these mate rials, the workman has not produced any proof in support of his allegation that he has been residing in a village home near Patna.
He has not denied the documents annexed to the special leave petition and not seriously disputed the factum of his residence in the colony quarter at Dhanbad.
The Government was, therefore, misled by the representation of the workman.
[301E H] 293 3.
The notification dated August 8, 1988 is quashed.
The Labour Court, Dhanbad shall proceed to dispose of the matter as expeditiously as possible.
[302A]
|
rit Petition No. 1032 of 1986.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, Ms. section Ralhan, S.C. Dhande and Ms. Rekha Pandey for the petitioners.
770 V.S. Desai, A.S. Bhasme and Khanwilkar for the respondents.
The Judgment of the Court was delivered by PATHAK, C.J.
The petitioners manufacture electronic goods, including television sets, television cameras and television monitors.
The factories are located at Delhi, and the goods are sold through sales organisations spread all over India, including the State of Gujarat.
Section 7 of the Gujarat Sales Tax, Act, 1969 provides for the levy of sales tax on the turnover of sales of goods specified in Part A Sch.
II appended to the Act.
Entry 80A(a) of Part A of Sch.
II specifies the rate of tax applicable to the turnover of television sets.
The rate was 15% originally upto 1981, the Entry applied to all television sets, whether manufactured and sold within the State of Gujarat or imported from outside the State.
No distinction was made between the goods on the basis of the place of manufacture.
Sub section
(2) of section 49 of the Act empowers the State Government to exempt, in the public interest, any specified class of sales from payment of the whole or any part of the tax payable under the Act.
In 1981, while the rate for electronic goods entering the State for sale therein was maintained at 15%, the rate in respect of locally manufactured goods was reduced to 6% by Notification No. (GHN 51) GST 1081 (section 49)(109) TH issued under sub section
(2) of section 49 of the Act.
The Notification introduced a new entry in the Schedule dealing specifically with electronic goods manufactured in the State of Gujarat.
Thereafter in 1986 the rate of sales tax in respect of television sets imported from outside the State was reduced from 15% to 10% and for goods manufactured within the State of sales tax was reduced to 1% by Notification No. (GHN 22) GST 1086/(S. 49)(173) TH dated 29 March, 1986.
The petitioner contends that by lowering the rate of tax in respect of goods manufactured within the State, the State Government has created an invidious discrimination which is adversely affecting the free flow of inter state Trade and commerce, resulting in a contravention of Article 301 of the Constitution.
It is pointed out that a purchaser buying a television set manufactured within the State of Gujarat pays about Rs.250 to 300 less for a black and white model and Rs.750 to Rs.1,000 for a colour model.
It is said that the sales of electronic goods manufactured by the petitioner have been prejudicially affected within the State of Gujarat.
article 301 of the Constitution declares that subject to the provi 771 sions of Part XIII "trade, commerce and intercourse throughout the territory of India shall be free".
Clause (1) of article 303 prohibits "the legislature of a State from making any law giving, or authorising the giving of, any preference to one State or another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule".
The terms of the prohibition are subject to article 304, which provides: "Notwithstanding anything in article 301 or article 303, Legislature of a State may by law: (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
" It is apparent that while a State Legislature may enact a law imposing a tax on goods imported from other States as is levied on similar goods manufactured in that State the imposition must not be such as to discriminate between goods so imported and goods so manufactured.
In the Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., [1963] Suppl.
2 S.C.R. 435 this Court was called upon to consider the validity of Rule 16 of the Madras General Sales Tax Rules under which tanned hides and skin imported from outside the State of Madras were subject to a higher rate of tax then the tax imposed on hides and skins tanned and sold within the State.
Referring to its earlier decisions in Atiabari Tea Co. Ltd. vs The State of Assam and Ors.
,[1961] 1 S.C.R. 809 and The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491 where the scope and significance of article 301 were explained, it proceeded to observe: "It is therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulatory measures.
772 Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities.
Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against article 301 and will be valid only if it comes within the terms of article 304(a).
article 304(a) enables the Legislature of a State to make laws affecting trade, commerce and intercourse.
It enables the imposition of taxes on goods from other States if similar goods in the State are subjected to similar taxes, so as not to discriminate between the goods manufactured or produced in that State and the goods which are imported from other States.
This means that if the effect of the sales tax on tanned hides or skins imported from outside is that the latter becomes subject to a higher tax by the application of the proviso to sub rule of r. 16 of the Rules, then the tax is discriminatory and unconstitutional and must be struck down." So also in H. Anraj vs Government of Tamil Nadu and Dipak Dhar & Ors.
vs State of West Bengal & Anr., this Court struck down the levy of tax imposed by the State of Tamil Nadu on lottery tickets issued by other States and sold within the State of Tamil Nadu while exempting from such levy lottery tickets issued by the Government of Tamil Nadu.
In answer to the writ petition, the respondents point out that the rate of tax was reduced in the case of goods manufactured locally in order to provide an incentive for encouraging local manufacturing units.
Reference is made to cl.(b) and (c) of article 39 of the Constitution.
We do not think that any support can be derived from the two clauses of article 39.
(a) of article 304 is clear in meaning.
An exception to the mandate declared in article 301 and the prohibition contained in Cl.
(1) of article 303 can be sustained on the basis of cl.
(a) of article 304 only if the conditions contained in the latter provision are satisfied.
In the result, the discrimination effected by applying different rates of tax between goods imported into the State of Gujarat and goods manufactured within that State must be struck down.
The next question is whether, for the purpose of ensuring the 773 same rate of tax between the petitioners and the local manufacturers, the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers or should the higher rate imposed on the petitioners be maintained and the notifications imposing the lower rate on local manufacturers be quashed.
A perusal of the record shows that the grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax.
So long as the higher rate of tax imposed on the petitioners was also suffered by the local manufacturers, no complaint was voiced by the petitioners.
It is the levy of the lower rate on local manufacturers that constitutes the substance of the grievance.
That is borne out by the terms of the relief specifically claimed by the petitioners, that the notifications specifying a lower rate for local manufacturers should be quashed.
Moreover, the rate levied on the petitioners is the rate prescribed under section 7 of the Act.
That is the rate applied generally.
It represents the normal standard of levy.
The lower rate applied to local manufacturers has been applied by invoking sub section
(2) of section 49 of the Act.
It represents a departure from, or exception to, the general norm.
In cases such as this, the Court should, when granting relief, choose the alternative which would give effect to the statutory intention.
And, therefore, in this case what is called for is the quashing of the impugned notifications reserving a lower rate of tax for local manufacturers.
Accordingly, the writ petition is allowed and the Notifications No. (GHN 51) GST 1081 (section 49)(109) TH dated 23 July, 1981 and No. (GHN 22) GST 1086/(S.49)(173) TH dated 29 March, 1986 prescribing a lower rate of tax for local manufacturers in respect of television sets and other electronic goods are quashed.
The petitioners are entitled to their costs.
H.L.C. Petition allowed.
|
By availing of its powers under sub section
(2) of section 49 of the Gujarat Sales Tax Act, 1969 to exempt, in the public interest, any specified class of sales from payment of the whole or any part of the tax payable under the Act, the Government of Gujarat issued two notifications prescribing a lower rate of tax for goods manufactured within the State as compared to similar goods imported from outside the State.
The petitioners, who are manufacturing electronic goods, including television sets etc., in factories located outside the State, challenged the validity of these notifications as violative of article 301 of the Constitution.
The State Government contended that the rate of tax was reduced in order to provide as incentive for encouraging local manufacturing units and sought to draw support for its action from clauses (b) and (c) of article 39.
Allowing the Petition and quashing the notifications aforesaid, ^ HELD: article 301 declares that subject to the provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.
Clause (1) of article 303 prohibits the legislature of a State from making any law giving, or authorising the giving of, any preference to one State or another, or making, or authorising the making of, any discrimination between one State and another.
The terms of the prohibition are subject to article 304.
Clause (a) of article 304 provides that the legislature of a State may, by law, impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject so, however, as not to discriminate between goods so imported and goods so manufactured or produced.
It is apparent that while a State Legislature may enact a law 769 imposing a tax on goods imported from other States, as is levied on similar goods manufactured in that State, the imposition must not be such as to discriminate between goods so imported and goods so manufactured.
We do not think any support can be derived from the two clauses of article 39 to justify the reduction in the rate of tax in the case of goods manufactured locally.
Clause (a) of article 304 is clear in meaning.
An exception to the mandate declared in article 301 and the prohibition contained in cl.
(1) of article 303 can be sustained on the basis of cl.
(a) of article 304 only if the conditions contained in the latter provision are satisfied.
[770H;771A B,772F G] Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., [1963] Suppl.
2 S.C.R. 435; Atiabari Tea Co. Ltd. vs The State of Assam and Ors.
, ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491 and H. Anraj etc.
vs Government of Tamil Nadu etc., , relied on.
(ii) The next question is whether, for the purpose of ensuring the same rate of tax between the petitioners and the local manufacturers, the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers, or, should the higher rate imposed on the petitioners be maintained and the notifications imposing the lower rate on local manufacturers be quashed.
The grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax.
The rate levied on the petitioners is the rate prescribed under section 7 of the Act.
That is the rate applied generally.
It represents the normal standard of levy.
The lower rate applied to local manufacturers has been applied by invoking sub section
(2) of section 49 of the Act.
It represents a departure from, or exception to, the general norm.
In cases such as this, the Court should, when granting relief, choose the alternative which would give effect to the statutory intention.
And, therefore, in this case what is called for is the quashing of the impugned notifications reserving a lower rate of tax for local manufacturers.
[772H; 773A E]
|
vil Appeal Nos. 1274 to 1278 of 1984.
From the Judgment and Order dated 27.5.81 of the Punjab and Haryana High Court in R.F.A. Nos.
688 to 692 of 1979.
Rajinder Sachar and K.C. Dua for the Appellants.
S.P. Goel, Rana Ranjit Singh and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
These appeals on special leave are directed against the judgment .and order dated May 27, 1981 passed in R.F.A. Nos.
688 to 592 of 1979 and 1112 of 1979 by the High Court of Punjab and Haryana at Chandigarh.
The short ques tion raised in these appeals is whether the appellants are entitled to any compensation 'for nursery plants existing on the land at the time of acquisition as well as at the time of notification published under Section 4 of the Land Acqui sition Act, 419 1894.
Secondly, whether the valuation made in respect of the mother plants is low and the same needs to be increased in accordance with the report of the Horticulture Expert.
The facts of these appeals in short, are as follows.
A notification under section 4 of the Land Acquisition Act, 1894 was published on March 24, 1971 for acquisition of the lands in question in village Faridabad, Hadbust No. 123, Tehsil Ballabgarh, District Gurgaon for a public purpose viz. for planned development of residential sector No. 19 by the Haryana Government.
Thereafter, a declaration under Section 6 of the said Act was published vide Notification No. LAC 71/NTLA/376 dated January 18, 1972 in Haryana Gov ernment Extraordinary Gazette.
The Government declared that the Government was satisfied that the said land was needed at public expenses for a public purpose namely for the planned development in the area of this village Faridabad.
Thereafter a notice under Section 9 and 10 was issued call ing upon the owners and other interested persons to file their claims in respect of the interest in the land and also other particulars as regards their claims for compensation for such interest.
The owners of the land and other inter ested persons filed their claims demanding compensation for the land @ Rs.35 per sq.
and also claimed compensation for the nursery plants and potted plants in the land ac quired.
The Land Acquisition Collector awarded compensation in respect of the land acquired @ Rs.900 per Biswa.
The Land Acquisition Collector held that the mother plants and trees were irremovable and as such he assessed the value thereof at Rs.2,41,576.
He also awarded the shifting charges for the shifting of potted plants amounting to Rs. 1,773.20 paise together with compulsory charges @ 15% of the amount award ed.
This award was made by the Land Acquisition Collector on February 22, 1975.
The possession of the acquired land was taken by the Government.
The Land Acquisition Collector also granted six months ' time or any such further period as extended by the Government to enable the appellants to remove the nursery plants as well as the potted plants from the acquired land.
The Collector further stated in the award that the nursery plants can be removed from the land and the same be sold by the owners to the customers.
So no compensa tion was awarded in respect of these plants as well as in respect of the potted plants.
The appellants filed five claim petitions being Petition Nos.
191/85 to 195/85 of 1973/78 in the Court of the Addi tional District Judge, Gurgaon.
The 2nd Additional District Judge, Gurgaon after hearing 420 the parties and also considering the evidences enhanced the rate of compensation of the acquired land (C) Rs. 10 per sq.
It has also been held that the appellants will be enti tled to double the compensation for trees and plants as given by the Land Acquisition Collector.
He also ordered that the appellants shall be entitled to solatium at the rate of 15% on the enhanced amount of compensation on these two items.
In all other respects the impugned order made by the Land Acquisition Collector was upheld.
He further or dered that the appellants will be entitled to recover inter est @ 6% from the date of compensation to the date of reali zation of the enhanced amount to be paid to them and the appellants shall also be entitled to recover the proportion ate costs of the petitions from the Government.
The appellants filed R.F.A. Nos.
688 to 692 of 1979 in the High Court of Punjab and Haryana.
The High Court fixed the value of the acquired land considering the potentiality of the land @ Rs. 16 per sq.
The total area of the land acquired in these appeals being 11.38 acres, at the rate of Rs. 16 per sq.
the value of the land acquired comes to Rs.8.8 lakhs.
The Land Acquisition Collector awarded a sum of Rs.2,41,576 for the trees, which value had been doubled by the Court below.
The High Court held that no case was made out for doubling the value of the trees in the evidence recorded before remand.
It has been further observed by the High Court that the appellants ' own case was that most of their income was from potted plants, flowers and nursery plants, the potted plants gave the maximum income, as was shown by the vouchers produced by the appellants on record.
The potted plants had been taken away by the appellants after acquisition.
Similar was the position of nursery plants.
The High Court, therefore, held that the value awarded by the Land Acquisition Collector would be for the trees and since no justification was made, the Court below was in error in doubling the value of the trees.
The High Court, therefore, valued the acquired land at the enhanced rate of Rs. 16 per sq.
, for the trees the compensation awarded by the Land Acquisition Collector was directed to be paid to the appellants and the enhancement awarded in re spect of trees by the Court below was set aside.
It was further ordered that the appellants would be entitled to solatium at the rate of 15 per cent and interest at the rate of 6% per annum from the date of taking of possession till payment thereof.
The appeals were thus disposed of.
Against this judgment and decree passed in R.F.A. Nos.
688 to 692 of 1979, the appellants filed five Special Leave Petitions before this Court.
On February 27, 1984 this Court granted Special Leave 421 confined only to the compensation for mother plants and nursery plants.
Mr. Rajinder Sacbar, learned counsel appearing on behalf of the appellants has made two fold submissions before this Court.
His first submission is that the Land Acquisition Collector as well as the Courts below were wrong in not granting any compensation for the nursery plants.
Nursery plants were grown in the nursery on the acquired land for the purpose of rearing them for a certain period and there after selling those plants to the customers on taking out the same from the nursery.
There has been an inspection and a list was prepared of the various varieties of fruits and flower plants existing on the acquired land at the time of acquisition.
He further submitted that the value of these various plants has been assessed by Shri Som Dutta Diwan, Deputy Director, Horticulture/Vegetable, Haryana, Chandi garh, who was requested to assess the value of all sorts of trees.
Copies of the assessment made by him had been filed before the Land Acquisition Collector and it will be evident from the said assessment lists that each variety of trees has been assessed separately with reference to the total number of those trees.
It has been submitted by Mr. Sachar in this connection that these nursery plants if taken out of the land will die after two three days.
The appellants have got no other land where they could plant these plants and keep them alive.
It has, therefore, been submitted by him that the High Court was wrong in refusing to assess the value of the nursery plants and to award compensation in respect of the same.
Mr. Sachar next submitted that the compensation awarded with regard to the mother trees by the Land Acquisition Collector has been made arbitrarily without reference to the market price of these trees.
It has been further submitted by referring to the judgment and order of the 2nd Additional District Judge, Gurgaon that the 2nd Additional District Judge held that the.
appellants were entitled to double the compensation under the head 'value of trees and plants ' as assessed by the Land Acquisition Col lector.
The High Court arbitrarily and wrongly rejected this on the mere ground that there was no justification for doubling the compensation as awarded by the Land Acquisition Collector in respect of the mother trees and plants.
It has, therefore, been submitted by Mr. Sachar that the amount of compensation awarded by the Land Acquisition Collector in respect of the mother trees should be doubled and the com pensation for the nursery plants should also be assessed on the basis of the value of the plants as assessed by the Deputy Director of Horticulture.
422 Mr. S.P. Goel appearing for the respondent State has submitted that the land acquired was not treated as an agriculture land in assessing the market value of the same.
It has been taken as urban land and considering its potenti alities, the High Court assessed the value of the land @ Rs. 16 per sq.
In such circumstances, the value of the land being assessed on considering its potentiality, the question of valuation of the mother trees as well as of the nursery plants does not at all arise.
The valuation of the mother trees can at best be assessed at the value assessed by the Land Acquisition Collector.
There is, therefore, no ground for interference with the amount of compensation awarded by the Land Acquisition Collector and upheld by the High Court.
It has been next submitted by the learned counsel for the State that the nursery plants are planted and grown for the purpose of selling the same to the customers after taking them out from the land.
These nursery plants are never planted for the purpose of growing them into big trees or mother plants.
The High Court has rightly held that like the potted plants these nursery plants can easily be removed from the nursery as the purpose of growing these plants is to sell the same to the customers.
These plants can be removed and sufficient time had been granted by the State by permitting the appellants to remove these plants from the acquired land.
It has, therefore, been submitted that the High Court has rightly rejected the claim of the appellants for compensation in respect of the nursery plants.
We have considered in depth the arguments advanced by the learned counsel for both the parties and we have also considered very carefully the weighty reasonings given by the High Court as well as by the Land Acquisition Collector.
It is obvious that the land acquired though agriculture land was taken for assessment of its market value not as agricul ture land but as land with high potentialities i.e. as urban land and, therefore, the market value of these lands has been fixed after considering its potential value @ Rs. 16 per sq.
The appellants did not at all dispute this value and on the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, we find that there is much substance in the submissions made on behalf of the State that the mother trees should be valued as wood and the value has been rightly assessed as such by the Land Acquisition Collector in his award and the same has been upheld by the High Court.
Moreover, the find ings of the Collector that the nursery plants can be taken out of the land and sold to the customers like potted plants and as such no compensation can be awarded is in our consid ered opinion quite in accordance with law.
In these cir 423 cumstances, we do not find any infirmity or arbitrariness in the findings arrived at by the High Court and as such there is no merit in the contentions made on behalf of the appel lants in these appeals.
We, therefore, uphold the findings of the High Court and dismiss the appeals without any costs.
P.S.S Appeals dis missed.
|
The appellants ' land was acquired under the Land Acqui sition Act on March 24, 1971 for planned development as residential area.
They were then running a plant nursery on the said land.
A large number of potted plants, mother plants and trees also existed there.
They demanded compensa tion for the land at the rate of Rs.35 per sq.
They also claimed compensation for nursery plants, potted plants mother plants and trees.
The Land Acquisition Collector awarded compensation in respect of the land at the rate of Rs.900 per Biswa.
He held that the mother plants and trees were irremovable and as such assessed the value thereof at Rs.2,41,576.
He also awarded charges for the shifting of potted plants.
In re spect of the nursery plants he took the view that the appel lants were not entitled to any compensation as these could be removed from the land and sold.
The District Judge enhanced the rate of compensation for the acquired land at the rate of Rs. 10 per sq.
and also doubled the compensation for trees and mother plants.
The High Court considering the potentiality of the acquired land fixed its value at the rate of Rs. 16 per sq.
It took the view that the court below was in error in doubling the value of the trees as no case was made out in the evidence recorded and therefore set aside the enhance ment.
In these appeals by special leave it was contended for the appellants that the nursery plants if taken out of the land would die after two three days and the appellants had got no other land where they could plant them and keep them alive.
It was further contended that the compensation with regard to mother trees had been awarded with 418 out reference to their market price and that the High Court had arbitrarily rejected the enhancement in the said compen sation granted by the District Court.
Dismissing the appeals, the Court, HELD: 1.
The finding of the Land Acquisition Collector that the nursery plants could be taken out of the land and sold to the customers like potted plants and as such no compensation could be awarded was quite in accordance with law.
Sufficient time had been granted by the State by per mitting the appellants to remove these plants from the acquired land.
Their claim was, therefore, rightly rejected by the High Court.
[422G H, D E] 2.
The land acquired though agricultural land was taken.
for assessment of its market value @ Rs. 16 per sq.
not as agricultural laud but as laud with high potentialities i.e. as urban laud.
The appellants did not at all dispute this value.
On the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, it could not be said that the value of mother trees has been wrongly assessed as wood.
The appellants were, therefore, not entitled to enhancement In the value of trees.
[422F G]
|
ivil Appeal No. 1312 of 1990.
From the Judgment and Order dated 6.7.
1988 of the Rajasthan High Court in D.B. Civil W.P. No. 71/77.
section Hegde, Additional Solicitor General, A. Subba Rao for C.V.S. Rao for the Appellants.
S.C. Birla for the Respondent.
The Judgment of the Court was delivered by 762 K. JAGANNATHA SHETTY, J.
Special leave granted.
Bakshi Ram respondent was a constable in the Central Reserve Police Force at Devli in Rajasthan.
On 17th March 1971 at about 8.45 p.m. he along with another constable forced entry into the room of Garib Das the constable of the CRP Group Centre band platoon.
Garib Das was then not present in the room.
His wife Savitri Devi who was inside tried to prevent their entry, but in vain.
Both the consta bles caught hold of her and misbehaved with her.
The respondent was tried for an offence under Section 10(1) of the .
Section 10 of the Act sets out less heinous offences and Section 10(1) refers to any act or omission which, though not speci fied in the Act, is prejudiciable to good order and disci pline.
On the evidence adduced in the case he was found guilty of the charge and by judgment dated 23rd March 1971 he was sentenced to four months R.I. by the Magistrate 1st Class and Commandant Group Centre, CRPF, Deoli (Rajasthan).
He was lodged in the Civil Jail, Jaipur to undergo the sentence.
In view of his conviction and sentence.
, the Department by way of disciplinary action dismissed him from service.
This action was taken when his appeal against the conviction and sentence was pending before the Sessions Judge.
The learned Judge by judgment dated 22 September 1971 upheld the conviction but released him under the ("the Act").
Apparently he was released under Section 4 of the Act upon furnishing bonds to keep peace and be of good behaviour for a period of six months.
The re spondent complied with those conditions.
After expiry of the period of good conduct, he moved the High Court with Writ Petition under Article 226 of the Constitution challenging his dismissal from service.
The High Court relying upon Section 12 of the Act has set aside the dismissal and di rected that he should be reinstated into service with all consequential benefits.
The High Court has expressed the view that the sole reason for dismissal of the respondent was his conviction under Section 10(1) of the Central Re serve Police Force Act but in view of Section 12 of the Probation of Offenders Act, 1968, there was no disqualifica tion for him to continue in service.
This is how the High Court observed: "The clear language of Section 12 of the Probation of Of fenders Act, 1958 which provides that a person dealt with under the provisions of Section 3 or Section 4 of that 763 Act shall not suffer disqualification, if any, attaching to a conviction under any law, notwithstanding anything con tained in any other law.
This provision has the effect of removing disqualification attaching to the petitioners ' conviction under Section 10(n) of the C.R.P.F. Act.
Section 12 of the Probation of Offenders Act dealing specifically with this situation clearly provides that the provisions therein is 'notwithstanding any thing contained in any other law. ' Hence, effect has to be given to the same.
" The judgment of the High Court has been challenged in this appeal.
Since the result of the appeal turns on the scope and meaning of Section 12 of the Probation of Offenders Act, it is necessary to set out the Section.
Section 12 is in these terms: "12.
Removal of disqualification attaching to conviction Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law, Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subse quently sentenced for the original offence.
" Section 3 of the pro vides power to the Court to release certain offenders after admonition.
Section 4 provides power to the Court to release certain offenders on probation of good conduct.
Under the disposition made by the Court under Section 4 the sentence is suspended during the period of probation and the offender is released on his entering into a bond to keep peace and be of good behaviour.
Section 9 provides for procedure in case of offender failing to observe conditions of bond.
The Court, if satisfied, that the offender has failed to observe any of the conditions of bond for keeping good behaviour could sentence him for the original offence or where the failure is for he first time, then, without prejudice to the continuance in force of the bond, the Court may impose upon him a penalty not exceeding fifty rupees.
764 It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction.
Dealing with the scope of Sections 3, 4 and 9 of the , Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr.
T.R. Challappan etc.
, at 596 speaking for the Court observed: "These provisions would clearly show that an order of re lease on probation comes into existence only after the accused is found guilty and is convicted of the offence.
Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on proba tion of the offender.
The order of release on probation is merely in substitution of the sentence to be imposed by the Court.
This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals.
The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the condi tions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence.
This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on proba tion.
Under sections 3, 4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof.
In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.
" As to the scope of Section 12, learned Judge went on (at 596): "It was suggested that Section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification, attached to a conviction of an offence under such law.
This argument, in our opinion, is based on a gross misreading of the provisions of Section 12 of the Act, the words "attaching to a conviction of an offence 765 under such law" refer to two contingencies: (i) that there must be a disqualification resulting from a conviction and (ii) that such disqualification must be provided by some law other than the .
The Penal Code does not contain any such disqualification.
Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused.
It is also manifest the disqualification is essentially differ ent in its connotation from the word 'misconduct '." In criminal trial the conviction is one thing and sen tence is another.
The departmental punishment for misconduct is yet a third one.
The Court while invoking the provisions of Section 3 or 4 of the Act does not deal with the convic tion; it only deals with the sentence which the offender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceedings the delin quent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (See Article 311(2)(b) of the Constitution and Tulsiram Patel case: [1985] Supp.
2 SCR 131 at 282).
Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law.
The section was not intended to exonerate the person from departmental punish ment.
The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise.
That seems obvious from the lerminology of Section 12.
On this aspect, the High Court speak with one voice.
The Madras High Court in R. Kumaraswami Aiyer vs The Commission er, Municipal Council Tiruvannamalai and Anr., [1957] Crl.
L. J. 225 Vol.
58 and Embaru (P) vs Chairman Madras Port Trust, Mad., the Andhra Pradesh High Court in A. Satyanarayana Murthy vs Zonal Manager, L.I.C., AIR 1969 AP 371, the Madhya Pradesh High Court in Prem Kumar vs Union of India and Ors., [1971] Lab & Ind. cases 823, the Punjab & Haryana High Court in Om Prakash vs The Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., The Delhi High Court in Director of Postal Services and Anr.
vs Daya Nand, have expressed the same view.
This view of the High Courts in the aforesaid cases has been approved by this Courtin T.R.Challappan 's case 766 In Trikha Ram vs
V.K. Seth and Anr., [1987] Supp.
SCC 39 this Court after referring to section 12 has altered the punishment of dismissal of the petitioner therein into "removal from service", so that it may help him to secure future employment in other establishment.
Section 12 is thus clear and it only directs that the offender "shall not suffer disqualification, if any, attach ing to a conviction of an offence under such law".
Such law in the context is other law providing for disqualification on account of conviction.
For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed.
That in effect is the scope and effect of Section 12 of the Act.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstate ment upon getting the benefit of probation of good conduct.
Apparently, such a view has no support by the terms of Section 12 and the order of the High Court cannot, there fore, be sustained.
In the result the appeal is allowed.
The impugned order of the High Court is set aside.
However, we alter the penal ty of dismissal from service into 'removal from service ' as it was done in Trikha Ram 's case.
In the circumstances of the case, we make no order as to costs.
T.N.A. Appeal al lowed.
|
The respondent, a constable, convicted under section 10(n) of the but released on probation under section 4 of the , was dismissed from service.
He chal lenged his dismissal before the High Court which ordered his reinstatement holding that there was no disqualification for him to continue in service, for section 12 of the has the effect of removing the dis qualification attaching to his conviction.
Hence this appeal by the Union of India.
Allowing the appeal and setting aside the order of the High Court, this Court.
HELD: 1.
Section 12 of the only directs that the offender 'shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law '.
Such law in the context is the other law providing for disqualification on account of conviction e.g. if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of section 12 stands re moved.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct.
Section 12 does not preclude the department from taking action for misconduct leading to the offence or to his conviction theron 761 as per law.
It was not intended to exonerate the person from departmental punishment.
[766B C; 765E] R. Kumaraswami Aiyer vs The Commissioner, Municipal Council Tiruvannarnalai and Anr., ; Embaru (P) vs Chairman Madras Port Trust, Mad; A. Satyanarayana Murthy vs Zonal Manager L.I.C., AIR 1969 A.P. 371; Prern Kumar vs Union of India & Ors., [1971] Lab.
& Ind. Cases 823; Om Prakash vs The Director Postal Services & Ors., and Director of Postal Services & Anr.
vs Daya Nand, , approved.
The Divl.
Personnel Officer Southern Railway & Anr.
T.R. Challappan, , followed.
In criminal trial the conviction is one thing and sentence is another.
The departmental punishment for miscon duct is yet a third one.
The Court while invoking the provi sions of section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the of fender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction, however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceed ings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his con viction on a criminal charge.
Therefore the question of respondent 's restatement into service does not arise.
Howev er, the penalty of dismissal from service is altered into removal from service.
[765C D, F; 766E] Tulsi Ram Patel vs Union of India, [1985] Suppl.
2 SCR 131 and Trikha Ram vs
V.K. Seth & Anr., , followed.
|
Criminal Appeal No. 128 of 1990.
From the Judgment and Order dated 19.8.1989 of the Patna High Court in Criminal Miscellaneous No. 2314 of 1989.
A.D. Sikri, Ranjan Mukherjee and D. Goburdhan for the Appellant.
R.K. Garg and A. Sharan for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Special leave granted.
790 The legality of the order of the High Court dated 19.8.
1989 passed on an application made under section 482 Cr.
P.C. is challenged in this appeal.
In a case instituted on a private complaint by the appellant for offences under sec tions 452 and 323 I.P.C., the Judicial Magistrate First Class, Patna, in exercise of power under section 192(2) Cr.
P.C. transferred the case for enquiry under section 202 of the Code.
The Court of the Second Class Magistrate, after examining witnesses, by order dated 22.3.
1985 issued proc ess to the two accused, the respondents herein.
The order of the Magistrate issuing process was challenged by the re spondents under section 482 before the High Court.
The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cogni zance of the offence and the subsequent proceedings were, therefore, illegal.
The High Court, by its order dated 20.8.88, dismissed the petition.
It was found that there was no such illegality.
The respondents again made Crl.
Petition 2314/89 under section 482 Cr.
P.C. before the High Court alleging, inter alia, that the record of the proceed ings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer.
The learned Single Judge accepted the case of the respondents and quashed the proceedings by the impugned order.
The learned counsel for the appellant contended before us that the second application under section 482 Cr.
P.C. was not entertainable, the exercise of power under section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of section 362 of the Cr.
P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course.
We find considerable force in the contention of the learned counsel.
The inherent power under section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice.
Such power cannot be exercised to do something which is expressly barred under the Code.
If any considera tion of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision.
If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court.
Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the 791 same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.
In the present case, there had been a definite finding that the complaint was taken cognizance of by the Magistrate before he transferred the proceedings under section 192(2) for enquiry under section 202 Cr.
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate.
A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not, therefore, warranted.
The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings.
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter.
Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code.
Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
The inherent pow ers, however, as much are controlled by principle and prece dent as are its express powers by statute.
If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
In Superintendent & Remembrancer of Legal Affairs vs Mohan Singh, , this Court held that section 561A preserves the inherent power of the High Court to make such orders as it deemed fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked.
In that case the facts and circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application.
The question as to the scope and ambit of the inherent power of the High Court vis a vis an earlier order made by it was, therefore, not concluded by this decision.
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362.
It is clearly stated in Sooraj 792 Devi vs Pyare Lal, ; that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code.
The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code.
The court is not empowered to review its own decision under the purported exercise of inherent power.
We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials.
The High Court has grievously erred in doing so.
Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.
We allow the appeal and set aside the order of the High Court.
G.N. Appeal allowed.
|
A case was instituted on a private complaint by the appellant for offences under Sections 323 and 452 IPC before the Judicial Magistrate First Class, who transferred the case to Second Class Magistrate for enquiry.
The Second Class Magistrate issued process to the respondents, which was challenged under Section 482 Cr.
P.C., on the ground that the First Class Magistrate transferred the case without taking cognizance and that the subsequent proceedings were illegal.
The High Court dismissed the petition.
Again the respondents approached the High Court under Section 482 Cr.
P.C. alleging that the case had not been taken cognizance of, before it was transferred.
This time the High Court accepted the plea and quashed the proceedings.
This appeal, by special leave, challenges the High Court 's order on the grounds that the second application under Section 482 Cr.
P.C. ought not to have been entertained as it amounted to review of the earlier order and it was contrary to the spirit of section 362 Cr.
Allowing the appeal, this Court, HELD: 1.1 The inherent power under Section 482 Cr.
P.C. is intended to prevent the abuse of the process of the Court and to secure ends of justice.
Such power cannot be exer cised to do something which is expressly barred under the Code.
If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision.
If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inher ent power in the prevailing circumstances and pass appropri ate orders to secure the ends of justice or to 789 prevent the abuse of the process of the Court.
Where there is no such changed circumstance and the decision has to be arrived at on the facts that existed as on the date of earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.
[790F H; 791A] 1.2 Ira matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362 Cr.
P.C. [791E H] Sooraj Devi vs Pyare Lal, ; , relied on.
Superintendent & Rememberancer of Legal Affairs vs Mohan Singh, , referred to. 2.
In the instant case, there had been a definite find ing that the complaint was taken cognizance of by the Magis trate before he transferred the proceedings under section 192(2) Cr.
P.C. for enquiry under section 202 Cr.
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate.
A reappraisal of the facts on record to determine whether such cognizance had been taken in a subsequent proceeding is not, therefore, warranted.
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter.
[791 B C]
|
ivil Appeal No. 1349 of 1990 From the Judgment and Order dated 18.8.1988 of the Kerala High Court in E.S.A. No. 23 of 1987.
section Padmanabhan and R.N. Keshwani for the appellant.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special leave granted.
An extent of 80 cents of land which is in dispute in this appeal was agreed to be sold in favour of the appellant under an agreement dated October 9, 1978.
Before the sale deed was executed, a third party in execution of a decree got the property attached on November 16, 1978.
The sale deed was executed on November 23, 1978.
The question is: Does the sale prevail over the attachment? The High Court of Kerala in the judgment under appeal has held that the sale would be subject to attachment.
This appears from the following observation: "The sale deed was executed at a time when the property was already under attachment.
It is true that even before af fecting attachment there was an agreement for sale by Saroj ini Ramakrishnan in favour of the appellant.
But the agree ment for sale will not create any interest in the property.
The fact that Ext.
A 12 Sale deed was executed on the basis of an agreement executed before the attachment will not place the appellant in any better position.
He could take the 80 cents under Ext.
A 12 only subject to the attachment.
" 834 The correctness of the view taken by the High Court has been called into question in this appeal.
We may first draw attention to some of the relevant statutory provisions bearing on the question.
Order 38 Rule 10 of the Code of Civil Procedure provides that attachment before judgment shall not affect the rights existing prior to the attachment of persons not parties to the suit.
Under Section 40 of the Transfer of Property Act, a purchaser under a contract of sale of land is entitled to the benefit of an obligation arising out of that contract and it pro vides that that obligation may be enforced inter alia against a transferee with notice.
Section 91 of the Trusts Act also recognises this principle that the transferee with notice of an existing contract of which specific performance can be enforced must hold the property for the benefit of the party to the contract.
These are equitable rights though not amounting to interest in immovable property within the meaning of Section 54 of the Transfer of Property Act which declares that a contract of sale does not create an interest in the property.
On this line of reasoning it has been held by the Madras High Court that the purchaser of an antecedent agreement gets good title despite attachment.
See Paparaju Veeraraghavayya vs Killaru Kamala Devi & Ors., AIR 1935 Mad. 193, Veerappa Thevar & Ors.
C.S. Venkataramma Aiyar & Ors., AIR 1935 Mad. 872 and Angu Pillai
M.S.M. Kasiviswa nathan Chettiar, There is a useful parallel from the decision of the Calcutta High Court in Purna Chandra Basak vs Daulat Ali Mollah, AIR 1973 Cal.
432 wherein it was observed that the attaching creditor attaches only the right, title and inter est of the debtor and attachment cannot confer upon him any higher right than the judgment debtor had at the date of attachment.
Hence, if under a contract of sale entered into before attachment, the conveyance after attachment in pursuance of the contract passes on good title inspite of the attachment.
To the same effect are the decisions of the Bombay High Court in Rango Ramachandra vs Gurlingappa Chinnappa, AIR 1941 Bom.
198 and Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli, AIR 1943 Bom.
The High Court of Travancore Cochin in Kochuponchi Varughese vs Quseph Lonan, AIR 1952 Travancore Cochin 467 has also adopted the same reasoning.
The Punjab & Haryana High Court however, has taken a con 835 trary view in Mohinder Singh and Anr.
vs Nanak Singh and Anr., AIR 1971 Pb. & Haryana 381.
It has been held that a sale in pursuance of a pre attachment agreement is a private afienation of property and must be regarded as void against the claim ot the attaching creditor.
In support of this proposition, Section 64 of the Code of Civil Procedure was relied upon which according to the High Court was intended to protect the attaching creditor against private aliena tion.
This was also the observation of the Lahore High Court in Buta Ram & Ors.
vs Sayyed Mohammad, AIR 1935 Lahore 71.
In our opinion, the view taken by the High Courts of Madras, Bombay, Calcutta and Travancore Cochin in the afore said cases appears to be reasonable and could be accepted as correct.
The agreement for sale indeed creates an obligation attached to the ownership of property and since the attach ing creditor is entitled to attach only the right, title and interest of the judgment debtor, the attachment cannot be free from the obligations incurred under the contract for sale.
64 CPC no doubt was intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor.
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from an antecedent agreement for sale of the attached property.
The attaching creditor cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor.
We cannot, there fore, agree with the view taken by the Punjab and Haryana High Court in Mohinder Singh 's case AIR 1971 Pb. & Haryana 381.
In the conclusion that we have reached, this appeal must beallowed and is accordingly allowed.
The order of the High Court is reversed and that of the trial court is restored.
In the circumstances of the case, we make no order as to costs.
P.S.S. Appeal allowed.
|
The land in dispute was agreed to be sold in favour of the appellant under an agreement.
Subsequently, a third party in execution of a decree got the property attached.
The sale deed was executed thereafter.
A question arose as to the validity of the sale.
The High Court held that the sale would be subject to attachment.
Allowing the appeal by special leave, the Court, HELD: The agreement for sale creates an obligation attached to the ownership of the property.
The attaching creditor is entitled to attach only the right, title and interest of the judgment debtor.
Hence, if an agreement for sale is entered into before attachment, the attachment cannot be free from the obligation so incurred, and the attaching creditor will not get any right higher than the judgment debtor had on the date of the attachment.
He cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor.
[835C, 834F, 835E] Accordingly, though section 64 CPC is intended to protect the attaching creditor, but if the subsequent conveyance is in pursuance of an agreement for sale which was entered into before the attachment, the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor.
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from the antecedent agreement for sale of the at tached property.
[835D E] Paparaju Veeraraghavayya vs Killaru Kamala Devi & Ors., AIR 1935 Mad. 193; Veerappa Thevar & Ors.
C.S. Venkataram ma Aiyar & Ors.
, AIR 1935 Mad. 872; Angu Pillai vs
M.S.M. Kasiviswanathan Chettiar, ; Puma Chandra Basak vs Daulat Ali Mollah, AIR 1973 Cal. 432; Rango Rama chandra vs Gurlingappa 833 Chinnappa, AIR 1941 Bom.
198; Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli, AIR 1943 Bom.
145 and Kochuponchi Varughese vs Quseph Lonan, AIR 1952 Travancore Cochin 467, approved.
Mohinder Singh & Anr.
vs Nanak Singh & Anr., AIR 1971 Pb. & Haryana 381, overruled.
The sale in the instant case would not thus be subject to the attachment.
The purchaser would get good title de spite attachment.
[833F, 834D]
|
ivil Appeal No. 2998 of 1980.
From the Judgment and Order dated 17.11.1980 of the Aliahabad High Court in S.A. No. 2954 of 1979.
M.S. Gujral and Mohan Pandey for the Appellant.
Satish Chandra, Praveen Swarup and Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by 801 THOMMEN, J.
This appeal by special leave arises from the judgment of the Allahabad High Court in Second Appeal No. 2954 of 1979 whereby the learned Judges of the High Court, allowing the defendants ' appeal set aside the decrees of the courts below.
The High Court held that the suit was barred by reason of Section 49 of the U.P. Consolidation of Hold ings Act, 1953 (hereinafter referred to as 'the Act ').
Hence the present appeal by the plaintiff.
The plaintiff is an illiterate person.
Her daughter Rameshwari Devi is the wife of the 6th defendant, Yogendra Prasad Singh.
Arjun Singh and Janardan Singh, defendant Nos. 3 and 4, are the brothers of the 6th defendant.
Defendants Nos. 3 and 4 had gained the confidence of the plaintiff and she confided in them her desire to make a gift of her entire properties in favour of her daughter.
Defendant Nos. 3 and 4 readily agreed to make arangements to execute and register the necessary deed.
On 18.9.1971, these defendants took the plaintiff to the Office of the Sub Registrar.
The plaintiff paid the amount needed for expenses.
The defendants pur chased stamp papers in the name of the plaintiff.
On two deeds, which had been prepared at the instance of the de fendants, the plaintiff was made to put her thumb impres sions.
Being an illiterate person, she could not read the contents of the documents or understand their character.
She had been told, and she honestly believed, that she was executing a gift deed in favour of her daughter, as desired by her, in respect of her properties.
She had in fact exe cuted two deeds, one of which was a gift in favour of her daughter and the other a sale deed in favour of all the defendants.
The consideration for the sale shown in the document was Rs. 14,000.
This was a clear case of fraud practised upon her by the defendants.
The defendants and the Sub Registrar as well as the document writer had all con spired together to perpetrate the fraud.
The plaintiff did not know that she had executed a sale deed in favour of the defendants in respect of her property until 25th June, 1974 when she found defendant Nos. 3 and 4 interfering with her possession of the property.
They told her that she had executed a sale deed in their favour.
It was only on 2nd July, 1974 that she came to know of the full facts.
Accord ingly, she filed a suit for cancellation of the sale deed.
The suit was decreed by the trial court and that decree was confirmed in appeal by the first appellate court.
Setting aside the decree in the defendant 's second appeal, the High Court held that the plaintiff was totally deceived as to the character of the document which she executed and the docu ment was, therefore, void and of no effect whatsoever.
Accordingly, the suit was barred under section 49 of the Act under which consolidation proceedings had been pending at the time of the 802 institution of the suit in respect of the property in ques tion.
The facts are not in dispute.
It is not disputed that the documents in question came to be executed in the manner alleged by the plaintiff.
The appellant, however, contends that since it was a case of the document having been vitiat ed by fraud, the transaction was viodable, but not void, and, therefore, the suit to set aside the sale was rightly instituted by her and the bar of section 49 was not attract ed.
The appellant contends that the suit is perfectly main tainable and the High Court was wrong in holding to the contrary.
Mr. Satish Chandra, appearing for the respondents, rightly, in our view, submits that two principles enunciated by this Court in Gorakh Nath Dube vs Hari Narain Singh & Ors., ; and Ningawwa vs Byrappa & 3 Ors.; , squarely apply to the facts of this case and the document in question evidenced a void transaction, and not a mere voidable transaction, and no suit was, there fore, maintainable in view of the bar contained in section 49 of the Act.
In Gorakh Nath Dube, (supra), this Court held that the object of the relevant provision of the Act was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent author ity under the Act during the consolidation proceedings.
Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities.
The Court, however, drew a dis tinction between void and voidable documents and said a voidable document was one which remained in force until set aside, and such a document could be set aside only by a competent civil court, and a suit for that purpose would, therefore, be maintainable.
On the other hand, a claim that a transaction was void was a matter which could be adjudi cated upon by the consolidation courts.
This is what this Court stated: "We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect.
An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid.
An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in 803 land which are the subject matter of consolidation proceed ings.
The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to de clare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.
In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void.
Such a claim could be adjudicated upon by consolidation courts." (emphasis supplied) In Ningawwa vs Byrappa & 3 Ors., (supra), this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defraud ed.
The transaction remains valid until it was avoided.
This Court then said: "The legal position will be different if there is a fraudu lent misrepresentation not merely as to the contents of the document but as to its character.
The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresenta tion as to the contents thereof.
With reference to the form er, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.
In Foster vs Mackinon, , the action was by the endorsee of a bill of exchange.
The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee.
In holding that such a plea was admissible, the Court observed: It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the 804 contract to which his name is appended . .
The defendant never intended to sign that contract or any such contract.
He never intended to put his name to any instrument that then was or thereafter might become negotiable.
He was deceived, not merely as to the legal effect, but as to the 'actual contents ' of the instrument." (emphasis supplied) From the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiffappellant was totally ignorant of the mischief played upon her.
She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter.
She believed that the thumb impressions taken from her were in respect of that single document.
She did not know that she executed two documents, one of which alone was the gift deed, but the other Was a sale of the property in favour of all the defendants.
This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect.
The plaintiff appellant never intended to sign what she did sign.
She never intended to enter into the contract to which she unknowingly became a party.
Her mind did not accompany her thumb impressions.
This is a case that fails within the principle enunciated in Ningawwa vs Byrappa & 3 Ors., (supra) and it was, therefore, a totally void transaction.
Accordingly, as stated in Gorakh Nath Dube (supra), the suit is not maintainable by reason of the bar contained in the Act.
The High Court has, in our view, rightly held that the remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief.
In the circumstances, we see no merit in this appeal.
It is, ac cordingly, dismissed, but we make no order as to costs.
P.S.S. Appeal dismissed.
|
Section 49 of the U.P. Consolidation of Holdings Act, 1953 puts a bar on the civil and revenue courts in respect of disputes in regard to which proceedings could or ought to have been taken under the Act.
The plaintiff appellant, an illiterate lady, wanted to make a gift of her properties in favour of her daughter.
Defendant Nos. 3 and 4, who undertook to make arrangements to execute and register the necessary deed, however, prac tised a fraud on her.
They made her put her thumb impression on two documents which she had been told and she honestly believed were the gift deed in favour of her daughter.
She had in fact executed two deeds, one of which was a gift in favour of her daughter and the other a sale deed in favour of the defendants.
Later when she tame to know of the facts, she filed a suit for cancellation of the sale deed.
Consoli dation proceedings were then pending in respect of the property in question.
The suit was decreed by the trim court and that decree was confirmed in appeal by the First Appellate Court.
The High Court, however, found that the plaintiff was totally deceived as to the character of the document which she had executed and the document was, therefore, void and of no effect whatsoever.
Accordingly, it held that the suit was barred by reason of section 49 of the Act.
In the appeal by special leave it was contended for the appellant that since it was a case of the document having been vitiated by fraud, the transaction was voidable but not void and, therefore, the bar of section 49 of the Act was not attracted.
Dismissing the appeal, the Court, HELD: 1.1 A voidable document is one which remains in force 800 until set aside and such a document can be set aside only by a competent civil court.
A suit for that purpose would, therefore, be maintainable.
A claim that a transaction is void is, however, a matter which can be adjudicated upon by the consolidation authorities.
[802E F] Gorakh Nath Dube vs Hari Narain Singh & Ors., ; , referred to. 1.2 In the instant case, the plaintiff appellant was totally ignorant of the mischief played upon her.
She hon estly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter.
She believed that the thumb impressions taken from her were in respect of that single document.
She did not know that she had executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of the defendants.
This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect.
The plaintiff appellant never intended to sign what she did sign.
She never intended to enter into the contract to which she unknowingly became a party.
Her mind did not accompany her thumb impressions.
It was thus a totally void transaction.
[804C E] Ningawwa vs Byrappa & Ors., ; , applied.
No suit was, therefore, maintainable by reason of the bar contained in section 49 of the Act.
[804E] 2.
The remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it is open to the parties to approach them for appropriate relief.
[804F]
|
Petition Nos.
464 & 617 of 1977.
(Under Article 32 of the Constitution of India. ) K. Parasaran, Attorney General, Shanti Bhushan, Ashwani Kumar, K.G. Bhagat, L.N. Sinha, Raja Ram Aggarwal, S.P. Gupta, H.K. Puri, V. Parthasarthy, T.C. Sharma, P.P. Singh, Ms. A. Subhashini, Mrs. Sushma Suri, G. Gopalakrishnan, O.P. Rana, A.V. Rangam and Shartha Raju for the appearing par ties.
F.S. Nariman, K.K. Venugopal, A.K. Verma, D.N. Mishra and section Kachawa for the intervener in W.P. No. 464/77.
The Judgment of the Court was delivered by THOMMEN, J.
The petitioners are owners of sugar mills operating in the State of Uttar Pradesh in areas classified for the purpose of determining the price of levy sugar as West and East Zones.
They challenge the validity of notifi cations dated 28th November, 1974 and 11th July, 1975 (Annexures 8 & 9) issued by the Central Government in exer cise of its power under sub section (3 C) of section 3 of the (Act No. 10 of 1955), as amended to date (hereinafter referred to as the 'Act ').
The petitioners do not, and cannot, challenge the validity of the subsection by reason of Article 3 lB of the Constitution of India.
By the impugned orders, the Central Government fixed the prices of levy sugar for 1974 75 production.
For the purpose of determining the prices, the country is divid ed into 16 zones, and the prices fixed for various grades of sugar in terms of section 3 (3 C) of the Act vary from ' zone to zone.
Prices are determined with reference to the geographical cum agro economic considerations and the aver age cost profiles of factories located in their respective zones.
Each State for this purpose constitutes a separate zone, while U.P. is divided into 3 zones and Bihar into 2 zones.
The petitioners contend that these orders are ultra vires the Act and violative of their fundamental fights as the prices of levy sugar have been determined arbitrarily with reference to the average cost profiles of factories grouped together in zones without regard to their individual capacity and cost characteristics.
Such prices do not re flect the actual manufacturing cost of sugar incurred by producers like the petitioners or secure to them reasonable returns on the capital employed by them.
Geographical zon ing, for the purpose of price fixation, they point out, is an irrational ' and discriminatory system of (1) Published in the Gazette of India Extraordinary dated 28.11.1974 and 11.7.1975.
919 averaging wide cost disparities amongst producers of widely varying capacity.
Cost of manufacture of sugar depends on a number of factors, such as recoveries from the sugarcanes, duration of the crushing season, crushing capacity of the plant, the sugarcane price paid and the capital employed in the manufacture of sugar.
These factors vary from factory to factory.
Fixation of the levy sugar prices on zonal basis without regard to these divergent factors and the compara tive cost profiles gives the owners of bigger factories an undue advantage over producers like the petitioners whose factories are comparatively of lower crushing capacity and whose manufacturing cost is consequently higher.
Clubbing of the petitioners ' factories with dissimilar factories in the same zones for the purpose of price fixation is discrimina tory, arbitrary and unreasonable.
The petitioners point out that the system of geographical zoning for the purpose of price determination has been severely criticised by the Bureau of Industrial Costs & Prices (The "BICP") who have strongly recommended the division of the sugar industry into groups of units having similar cost characteristics with particular reference to recovery, duration, size and age of the unit and capital cost per tonne of output, and irrespec tive of their location.
The respondents, on the other hand, contend that the classification of sugar industry into 15 zones (now 16) was upheld by a Constitution Bench of this Court in Anakapalle Co operative Agricultural & Industrial Society Ltd. etc.
vs Union of India & Ors.
, ; The conten tion that the zonal system was discriminatory and violative of constitutional principles was pointedly urged, but cate gorically rejected by this 'Court.
The method adopted by the Government in fixing the price of levy sugar is fully sup ported by the recommendations of various expert bodies.
The Tariff Commission in its 1973 Report recommended division of the country into 16 zones for this purpose.
The price of sugar is fixed with reference to the Cost Schedule recom mended by that body.
These recommendations are based on various factors such as cost and output of individual la bour, cane price (accounting for about 70 per cent of the cost of sugar production), quality of sugarcane, taxes on sugarcane, cost of other material, transport charges, cost of storing the sugar produced, cane development charges and other overhead expenses, selling expenses etc.
These factors are almost identical for the entire zone.
The cost of manufacturing sugar, the respondents con tend, depends not only on recovery from the sugarcane, duration of crushing season, crushing capacity of the plant, the sugarcane price paid and the capital employed, as stated by the petitioners, but also to a consider 920 able extent on the condition of the plant and machinery, quality of management, investment policy, relations with cane growers and labour, financial reputation etc.
They say: "It is evident from the Tariff Commission Report of 1959, as also the Official Directory of the Bombay Stock Exchange, that the petitioner Company has been consistently diverting huge amounts for investments running into several lakhs elsewhere instead of ploughing back the same into the peti tioner 's sugar industry in question.
Thus, the petitioner Company has been neglecting the sugar factory and for such neglect of their own they cannot blame the Zonal System." Mr. Shanti Bhushan, appearing for the petitioners, does not object to the factories being grouped together on the basis of factors common to them with a view to fixing the prices applicable to them as a class of producers.
He does not advocate fixation of price separately for each unit.
He says that the sugar factories must be grouped together, not on the basis of their geographical location, but similarity in cost characteristics.
He relies upon the 1976 Report of the BICP.
The present system of fixing prices according to the regions, where the factories are located, he says, is based on "averaging wide cost disparities" as a result of which manufacturers like the petitioners incurring a high cost of production and others incurring a low cost of pro duction are treated alike.
Such a system works to the disad vantage of the former and to the advantage of the latter.
This, Mr. Shanti Bhushan contends, is an unreasonable and invalid classification and violative of constitutional principles.
While this line of argument is supported by Mr. Raja Ram Agarwal, Mr. S.P. Gupta appearing for the interven er in Civil Writ Petition No. 464 of 1977 advocates aboli tion of zonal classification or grouping of any kind and supports fixation of price for each individual factory with reference to its cost and regardless of any other considera tion.
Such unit wise determination alone, according to him, satisfies the requirements of Section 3(3 C).
Any system of zoning or grouping for determination of price, he contends, will fail to meet the norms of that sub section.
Mr. M .M. Abdul Khader, on the other hand, submits that while averag ing and costing with reference to a representative cross section may ordinarily be an appropriate method for deter mining the fair price, such a method is inappropriate for a small zone like Kerala where there are only three manufac turing units.
In respect of such a zone, he says, unit wise fixation of price is the only just and proper method.
921 Mr. K.K. Venugopal, counsel for Indian Sugar Mills ' Association (ISMA), on the other hand, supports the zoning system.
He says that, except for a few producers like the petitioners, all the rest of them in the country have ac cepted the principle of zoning.
In his written submissions, Mr. Venugopal states as follows: "As was seen during the course of hearing only 2 or 3 per sons have come forward challenging zoning.
There are 389 sugar factories in the country and the present intervener has 166 members.
Besides there are 220 members with the cooperative sector.
Their Association being National Federa tion of Cooperative Sugar Factories Ltd., has also inter vened in these petitions and have adopted the arguments of ISMA.
Hence almost the entire industry has supported zoning and only a handful of people who also factually are not high cost units have opposed zoning." Mr. Venugopal submits that the present case is squarely covered by the decisions of this Court in Anakapalle Cooper ative Agricultural & Industrial Society Ltd. etc.
vs Union of India & Ors.
, ; and The Panipat Cooperative Sugar Mills vs The Union of India, [1973] 2 SCR 860.
He says that the petitioners have not made out a case for reconsideration of these two decisions.
He refers to T. Govindaraja Mudaliar etc.
vs The State of Tamil Nadu & Ors., ; at 228 to 230 and submits that this Court would not reexamine an earlier decision merely because certain aspects of the question had not been noticed in that decision.
Mr. Venugopal, however, advocates neutralisation of the high cost incurred by the old units having lower crushing capacity by giving them an incremental levy price as recommended by the High Level Committee in 1980.
Before we examine the provisions of section 3(3 C) in the context of the general scheme of the Act, we shall briefly refer to the observations of this Court in Anaka palle; , and Panipat, [1973] 2 SCR 860.
Grover, J. speaking for the Bench in Anakapalle (supra) states ': "The system of fixing the prices, according to certain regions or zones, is not a new one.
The Tariff Commission in 1959 favoured the formation of four zones.
In the report of the Sugar Enquiry Commission 1965 it was pointed out that the Government had actually fixed the prices for 22 922 zones which meant that from four zones the number had been increased to twenty two or more.
The Commission was of the view that there should be five zones only in addition to Assam.
The Tariff Commission, 1969 however recommended the constitution of fifteen zones largely on State wise basis with an exception only in case of Uttar Pradesh and Bihar.
Uttar Pradesh was divided into three zones and Bihar into two.
The Tariff Commission had been specifically requested to inquire into the working of the zonal system, the main point for inquiry being the zones into which the sugar producers should be grouped having regard to the basis of classification to be recommended by the Commission.
The view of the Commission was that on the whole the number of price zones should be fifteen which would reduce, though not eliminate, the inter se anomalies in the cost structure without resorting to the extreme of the fixation of price for each unit or a single or at the most two, one for the sub tropical and other for the tropical one.
The Tariff Commission hoped that in the course of time conditions would be created making the operation of the second alternative feasible." Rejecting the contention that it was the zonal system that caused the losses allegedly incurred by some of the sugar producers, Grover, J. says that ordinarily these units ought to have made profits.
The reasons for incurring losses can be many, such as inefficiency, failure to pursue the right policy, poor management and planning etc., but these reasons have no relation to the zonal system.
That system by and large has led to efficiency and provides an incentive to cut down the cost.
Healthy competition among the units in the same zone should in the normal.
course result in reduc tion of cost and greater efficiency in the operation of the units.
It is proper management and planning that would lead to the success of any commercial venture.
The contention of the producers that they have been incurring losses on ac count of the zonal system is opposed to the evidence pro duced by them.
The Court has rejected the extreme contention that prices should be fixed unitwise, i.e., on the basis of actual cost incurred by each unit.
Referring to this conten tion, this Court observes: "Apart from the impracticability of fixing the prices for each unit in the whole country, the entire object and pur pose of controlling prices would be defeated by the adoption of such a system.
" 923 Grover, J. states that, during the earlier period of price control, it was on an all India basis that the price was fixed.
That is still the objective.
If such an objective is achieved, it would undoubtedly be conducive to conferring proper benefit on the consumers.
The objective of the Tariff Commission is to have only two regions for the whole coun try, viz., sub tropical and tropical.
The Court has rejected as baseless the criticism against the principle of weighted average adopted in the fixation of price in each zone.
Such a principle is well recognised and acted upon by various Sugar Enquiry Commissions.
A proper cost study is intended to do justice to the weak and strong alike.
There is abundant justification for continuing and sustaining the zonal system.
The varying climatic conditions of each State have been taken into account.
For the same reason, Bihar is divided into 2 zones and U.P. into 3 zones, while, in the case of many other States, each State is treated as a single zone.
This system of zoning is thus adopted with special reference to climatic and agro economic conditions.
Rejecting the contention that the zonal system has resulted in discriminatory treatment, this Court states: "We are unable to hold that while classifying zones on geographical cum agro economic consideration, any discrimi nation was made or that the price fixation according to each zone taking into account all the relevant factors would give rise to such discrimination as would attract Article 14 of the Constitution.
" Even if there is no price control, the uneconomic units would be at a great disadvantage.
The Court states: "Even if there is no price control each unit will have to compete in the market and those units which are uneconomic and whose cost is unduly high will have to compete with others which are more efficient and the cost of which is much lower.
It may be that uneconomic units may suffer losses but what they cannot achieve in the open market they cannot insist on where price has to be fixed by the govern ment.
The Sugar Enquiry Commission in its 1965 report ex pressed the view that "cost plus" basis of price fixation perpetuates inefficiency in the industry and is, therefore, against the long term interest of the country.
" Considering the general principle involved in price fixa tion, the Court states: 924 "It is not therefore possible to say that the principles which the Tariff Commission followed in fixing the prices for different zones are either not recognised as valid principles for fixing prices or that simply because in case of some factories the actual cost was higher than the one fixed for the zone in which that factory was situate the fixation of price became illegal and was not in accordance with the provisions of sub section (3 C).
It has not been denied that the majority of sugar producers have made prof its on the whole and have not suffered losses.
It is only some of them which assert that their actual cost is far in excess of the price fixed.
That can hardly be a ground for striking down the price fixed for the entire zone provided it has been done in accordance with the accepted principles . . ".
The Court concludes: "When prices have to be fixed not for each unit but for a particular region or zone the method employed by the Commis sion was the only practical one and even if some units because of circumstances peculiar to them suffered a loss the price could not be so fixed as to cover their loss.
That cannot possibly be the intention of the Parliament while enacting sub section (3 C) of section 3 of the Act.
If that were so the price fixation on zonal or regional basis would have to be completely eliminated.
In other words, the entire system of price control which is contemplated wilt break down because fixation of price for each unit apart from being impractical would have no meaning whatsoever and would not be conducive to the interest of the consumer. ' ' This Court has thus in Anakapalle (supra) rejected the argument that the alleged loss incurred by certain sugar producers is attributable to fixation of price on a zonal basis; or the zonal system has led to inefficiency or lack of incentive, or it has resulted in unequal or unfair treat ment.
On the other hand, the zonal system has encouraged a healthy competition amongst the units in the same zone.
Unit wise fixation is impracticable.
The Tariff Commission is the best judge in selecting units for cost study to determine the average cost.
The fair price has to be deter mined with reference to the conditions of a representative cross section of the industry.
For all these reasons, there is ample justification in continuing and sustaining the zonal system for 925 the purpose of price fixation.
Price has to be fixed for each zone and necessarily it varies from zone to zone.
There is no discrimination in the classification of zones on a geographical cum agro economic consideration and any such classification is perfectly consistent with the principle of equality.
In Panipat, [1973] 2 SCR 860, Shelat, J. speaking for the same Constitution Bench that has decided Anakapalle; , , referes to the norms adopted in sub sec tion (3 C), viz., (a) determination by the Government of the "price of sugar", and (b) payment of "an amount" to the manufacturer, and states that the concept of fair price which is what is referred to in sub section (3 C) as "price of sugar" does not by any account mean the actual cost of production of every individual manufacturer.
Such price has to be arrived at by a process of costing with reference to a representative cross section of the manufacturing units.
He states: "The basis of a fair price would have to be built on a reasonably efficient and economic representative crosssec tion on whose workings cost schedules would have been worked out and the price to be determined by Government under sub section (3 C) would have to be built." So stating, Shelat, J. rejects the contention that such price has to be determined unit wise.
Any such fixation of price, he points out, would be contrary to the concept of partial control postulated by the subsection and would perpetuate inefficiency and mismanagement.
But, of course, any such price, he hastens to add, has to be fixed reasona bly and on relevant considerations.
Referring to the policy of partial control, Shelat, J. states: " . . the Central Government was confronted with two main problems (a) deterioration in the sugar industry, and (b) the conflicting interests of the manufacturer, the consumer and the cane grower.
The floor price of cane fixed by Government was intended to protect the farmer from ex ploitation, but that was found not to be an incentive enough to induce him to increase his acreage.
A device had to be found under which a price higher than the minimum could be paid by the manufacturer of sugar.
The consumer, on the other hand, had also to be protected against the spiralling of sugar price and his needs, growing as they were, had to be satisfied at some reasonable price.
" 926 Shelat, J. emphasises the need to modernise the factories which alone would yield a reasonable return.
This is what he states: 'Both these and a larger production of sugar would not be possible unless there was a reasonable return which would ensure expansion, which again would not be possible unless new machinery for such expansion was brought in and facto ries, particularly in U.P. and Bihar, were modernised and renovated.
A fair price for sugar, therefore, had to be such as would harmonise and satisfy at least to a reasonable extent these conflicting interests.
" Significantly, the BICP 's recommendation to group indi vidual units having homogenity in cost, irrespective of their location, was not accepted by the Central Government, particularly because the Tariff Commission itself had con sidered the question and reached the conclusion that geo graphical cum agro economic considerations demanded the grouping of factories with reference to State zones, or subzones as in the case of U.P. and Bihar.
To group them on the basis of their location in various regions of the coun try for the purpose of price fixation is a rational method reflecting economic realities.
This is particularly so as conditions generally vary from State to State as regards the availability and quality of sugarcane, labour conditions and other factors, whereas within the same region like facili ties are generally available to all factories.
If the cost structure varies from factory to factory, such variation is not necessarily caused by the non availability, or the poor quality of raw material, or the labour conditions, but probably for reasons unconnected with them, such as the age of the plant, availability of finance, management ability, etc.
There is great force in the submission of the respond ents that to group together factories having a high cost profile and to determine a price specially applicable to them is, as recognised by this Court in Panipat (supra) and Anakapalle (supra), to put a premium on incompetence, if not mismanagement.
The history of control over sugar has been set out at length in Panipat (supra) and we do not wish to burden this judgment with a narration of the circumstances which have led to the introduction of partial control under which 60% of the output of sugar is acquired and the balance left for free sale.
It is in implementation of this policy that sub section (3 C) of section 3 was inserted2 Before we examine the 2.
For an illuminating discussion of this aspect, See A.M. Khusro, Price Policy, Lancer International (1987), p. 62 63: 927 provisions of that sub section under which the impugned notification have been issued, we shall refer to the statu tory scheme.
The Act was, as stated in the preamble, enacted by Parliament "to provide, in the interest of the general public, for the control of the production, supply and dis tribution of, and trade and commerce in, certain commodi ties".
The entire Act is devoted to the cause of the general public with a view to achieving equitable distribution of essential commodities at fair prices.
Section 3 of the Act confers wide power upon the Central Government to control production, supply, distribution, etc., of essential commodities.
It reads: "3.
Powers to control production, supply, distribution, etc., of essential commodities (1) If the Central Govern ment is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regu lating or prohibiting the production, supply and distribu tion thereof and trade and commerce therein.
" Sub section (2) of section 3 says that, without preju dice to the generality of the powers conferred by sub sec tion (1), an order made "After many years of adverse experience a new strategy of dual pricing was introduced in sugar.
The mills were asked to deliver to the public distribution system about 60 per cent of their output say at Rs.2 per Kg.
and were allowed to sell the balance of 40 per cent in the free market at say Rs.6 per kg.
The mills were delighted to do so as they got very much enhanced receipts from their flee market sales.
With larger receipts they offered in the following season a higher price to the farmer (the sugarcane grower) who, in turn, grew and offered more cane.
In other words, the law of supply which had been held captive, as it were, was freed from bondage.
With a higher price offer from the mills, the cane growers brought more land under sugar cane, diverted land from other crops to cane, used more inputs, produced and delivered to the mills more cane and in fact diverted cane deliveries from the open pan system to the mill system.
Having thus obtained much more cane, the mills produced much more sugar and sold 30 40 per cent of it in the free market.
Within a year or two, the free market price of sugar fell from Rs.6 to Rs.3 or even Rs.2.50.
At this rate consumers began to buy more in the free market, millions of ration cards remained unused and the demands on the public distribution declined substantially.
Prolonged shortages of sugar got converted into a relative abundance.
" 928 under that sub section may provide for the matters specified in subsection (2).
One of them is what is contained in clause (f) of sub . section (2) which empowers the Central Government to require any person dealing in any essential commodity to sell the whole or a specified part of such commodity to the Central Government or the State Government or to a nominee of such Government.
It reads: "(2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (a). . . . . . . . . . . . . . . . . . (f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling of any essential commodity , (a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or (b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a speci fied part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.
" The power contained in sub section (1) or sub section (2) is exercisable by an order.
An 'order ' is defined under section 2 to include a direction issued thereunder.
Any order made under section 3 by the Central Government or by an officer or authority of the Central Government is re quired by sub section (6) of section 3 to be laid before both Houses of Parliament, as soon as may be, after it is made.
Any order made under section 3 which is of a general nature or affecting a class of persons has to be notified in the official gazette.
[Subsection (5) of section 3].
929 Sub section (3) of section 3 provides that where any person has sold any essential commodity (sugar being such a commodity) in compliance with an order made with reference to clause (f) of sub section (2), he shall be paid the price of the goods purchased from him as provided under clauses (a), (b) and (c) of sub section (3).
This subsection oper ates only where an order has been made under sub section (1) with reference to clause (f) of sub section (2).
While clause (a) of the sub section postulates an agreed price, consistently with the controlled price, if any, clause (b) speaks of a price calculated with reference to the con trolled price, if any, when no agreement is reached.
Where neither clause (a) nor clause (b) applies, either because there is no agreement or because there is no controlled price, the seller has to be paid, as per clause (c), a price calculated at the market rate prevailing in the locality at the date of the sale.
Sub section (3 A) empowers the Central Government to regulate in accordance with the provisions of the sub sec tion the price of any foodstuff sold in a locality in com pliance with an order made with reference to clause (f) of sub section (2).
This power is exercisable by a direction which has to be duly notified in the official Gazette.
The power to issue the direction is notwithstanding anything contained in sub section (3).
Before issuing the notifica tion, the Central Government has to form an opinion that the price of any foodstuff (including sugar) has to be regulated for the purpose of cotrolling the rise in its prices or preventing its hoarding in any locality.
Any such notifica tion will remain in force for any specified period not exceeding 3 months.
The price payable in such cases is either the agreed price consistently with the controlled price, if any, or where no such agreement is possible, the price calculated with reference to the controlled price, if any, or where neither of these two methods is applicable, the price calculated with reference to the average market rate prevailing in the locality during the period of 3 months immediately prior to the date of the notification.
The average market rate will be determined by an officer authorised by the Central Government and the rate so deter mined by him is not liable to be questioned in any court.
Sub section (3 C) which is the crucial provision, was inserted in 1967.
It reads: "(3 C).
Where any producer is required by an order made with reference to clause (f) of sub section (2) to sell any kind of sugar (whether to the Central Government or a State Government or to an officer or agent of such Govern 930 ment or to any other person or class of persons) and either no notification in respect of such sugar has been issued under sub section (3 A) or any such notification, having been issued, has ceased to remain in force by efflux ot time, then, notwithstanding, anything contained in sub section (3), there shall be paid to that producer an amount therefore which shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to (a) the minimum price, if any, fixed for sugarcane by the Central Government under this section; (b) the manufacturing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar, and different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar.
Explanation For the purposes of this sub section, "produc er" means a person carrying on the business of manufacturing sugar." (emphasis supplied) Sub Section (3 C) is attracted whenever any producer is required to sell sugar by an order made with reference to sub section (2)(f) and no notification has been issued under sub section (3 A) or any such notification, having been issued, has ceased to be in force.
Whenever sub section (3 C) is attracted, it operates notwithstanding anything con tained in sub section (3).
This means the compensation payable to the seller in the circumstances attracting sub section (3 C) is not the price postulated in sub section (3).
Nor is it the price mentioned under sub section (3A), for that sub section cannot be in operation when sub section (3 C) is attracted.
What is payable under sub sectin (3 C) is an "amount" calculated with reference to the "price of sugar" determined in the manner indicated in that sub sec tion.
931 Construing sub section (3 C), this Court in Panipat [1973] 2 SCR 860,870 says: "Sub section 3C, with which we are presently concerned was inserted in sec.
3 by sec.
3 of Act 36 of 1967.
The sub section lays down two conditions which must exist before it applies.
The first is that there must be an order made with reference to sub section 2 cl.
(f), and the second is that there is no notification under sub section 3A or if any such notification has been issued it is no longer in force owing to efflux of time.
Next, the words "notwithstanding anything contained in sub section" suggest that the amount payable to the person required to sell his stock of sugar would be with reference to the price fixed under the subsection and not the agreed price or the market price in the absence of any controlled price under sub sec.
The sub section then lays down two things; firstly, that where a producer is required by an order with reference to sub sec.
2(f) to sell any kind of sugar, there shall be paid to that producer ' an amount therefore, that is for such stock of sugar as is required to be sold, and secondly, that such amount shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to the four factors set out in cls.
(a), (b), (c) and (d).
Unlike the preceding three sub sections under which the amount payable is either the agreed price, or the controlled price, or where neither of these prices is applicable at the market or average market price, the amount in respect of sugar required to be sold is to be calculated at the price determined by th Central Government . " What is specially significant is that sub section (3 C) postulates payment of an amount to the producer who has been required to sell sugar in the circumstances mentioned there in.
What is required to be paid to him is not the price of sugar, but only an amount.
That amount has to be calculated with reference to the price of sugar.
The "price" is deter mined by the Central Government by means of an order which, as required by sub sections (5) and (6), has to be notified in the official gazette and laid before both Houses of Parliament.
The order notifying the "price of sugar" is of general application and it is the rate at which the actual "amount" payable to each seller is calculated.
The price of sugar must be determined by the Central Govern 932 ment having regard to the factors mentioned in clauses (a) to (d) of sub section (3~C).
This is done with reference to the industry as a whole and not with reference to any indi vidual seller.
In contradistinction to the "price of sugar", the "amount" is calculated with reference to the particular seller.
The Central Government is authorised to determine different prices for different areas or for different facto ries or for different kinds of sugar.
Whether factories are required to be grouped together for a rational determination of the prices according to their location or their size, age and capacity or by any other standard is a matter for deci sion by the Central Government on the basis of relevant material.
What is contemplated by the legislature in dele gating such wide discretion to the Central Government is that it must apply its mind to the manifold questions rele vant to the determination of prices and with due regard to the norms laid down in the sub section.
What is required by sub section (3 C) is the adoption of a valid classification of factories having a rational nexus to the object sought to be achieved, viz., determination of a fair price of sugar with reference to which the actual amounts payable to the producers, in the circumstances attracting the sub section, are calculated.
Referring to the legislative background of sub section (3 C), this Court in Panipat (supra) observes: "In order to appreciate the meaning of cls.
(a), (b), (c) and (d), it must be remembered that ever since control on sugar was imposed, Government had set up expert committees to work out cost schedules and fairprices.
Starting in the beginning with an All India cost schedule worked out on the basis of the total production of sugar, the factories were later grouped together into zones or regions and different cost schedules for different zones or regions were con structed on the basis of which fair prices were worked out at which sugar was distributed and sold.
The Tariff Commis sion in 1958 and the Sugar Enquiry Commission in 1965 had worked out the zonal cost schedules on the basis of averaged recovery and duration, the minimum and not the actual price of cane, the averaged conversion costs and recommended a reasonable return on the capital employed by the industry in the business of manufacturing sugar.
This experience was before the legislature at the time when subsec.
3C was inserted in the Act.
The legislature therefore incorporated the same formula in the new sub section as the basis for working out the price.
The purpose behind 933 enacting the new sub section was three fold, to provide an incentive to increase production of sugar, encourage expan sion of the industry, to devise a means by which the cane producer could get a share in the profits of the industry through prices for his cane higher than the minimum price fixed and secure to the consumer distribution of at least a reasonable quantity of sugar at a fair price. ' ' Clauses (a) to (d) of sub section (3 C) postulate that the price of sugar must be determined having regard to the minimum price, if any, fixed for sugarcane by the Central Government, the manufacturing cost of sugar, the duty or tax applicable in the zone, and the securing of a reasonable return on the capital employed in the business of manufac turing sugar.
Referring to clause (d) of sub section (3 C), this Court observes in Panipat (supra): "It is clear from the reports of the Tariff Commission that a reasonable return recommended by that body at a fixed amount of Rs. 10.50 per quintal which worked out in 196667 at 12.5% per annum was not in respect of levy sugar only but on the whole, so that even if such a return was not obtain able on levy sugar but was obtainable on the whole, it would meet the requirement of cl.
In this conclusion we derive a two fold support, firstly, from the language used in cl.
(d) itself, viz., a reasonable return on the capital employed in the business of manufacturing sugar, which must mean the business as a whole and not the business of manu facturing levy sugar only, and secondly, from the fact of the Commission having all along used the same phraseology while recommending Rs. 10.50 per quintal as an addition by way of a reasonable return on the capital employed in the industry.
The cost schedules prepared by these bodies were for determining a fair price in relation to the entire sugar produced by the industry and the return which should be granted to it on the capital employed in the industry and not with respect to that stock only required to be sold under sub sec.
This is clear from the heading of Ch.
9 of the Tariff Commission 's report, 1969, "Cost Structure and Price Fixation".
" The petitioners contend that although the Government has the discretion to fix different prices for different areas or for different 934 factories, or for different kinds of sugar, such wide dis cretion has to be reasonably exercised.
It is, of course, a well accepted principle that any discretion conferred on the executive has to be reasonably exercised.
Nevertheless, it is a discretion which the Court will not curtail unless the exercise of it is impeachable on well accepted grounds such as 'ultra vires ' or 'unreasonableness '.
The petitioners further contend that the Act requires the Government to have regard to clauses (a) to (d) and, therefore, it is mandatory on the part of the Government to act strictly in compliance with the provisions of those clauses in determining the prices.
According to them, "having regard to" is a mandatory requirement demanding strict compliance with the provisions to which reference is made by the legislature.
They say that the ingredients of clauses (a) to (d) must be examined with reference to each producer as a condition precedent to the determination of the price of sugar.
We may in this connection point out that the petitioners have not furnished any data to show that the prices deter mined by the Government would have been different had the ingredients of clauses (a) to (d) of the sub section been examined with reference to each individual producer instead of a representative cross section of manufacturing units.
Be that as it may, the expression "having regard to" must be understood in the context in which it is used in the stat ute.
See Union of India vs Kamlabhai Harjiwandas Parekh & Ors., ; at 471.
These words do not mean that the Government cannot, after taking into account the matters mentioned in clauses (a) to (d), consider any other matter which may be relevant.
The expression is not "having regard only to" but "having regard to".
These words are not a fetter; they are not words of limitation, but of general guidance to make an estimate.
The Government must, of course, address itself to the questions to which it must have regard, and, having done so, it is for the Government to determine what it is empowered to determine with refer ence to what it reasonably consider to be relevant for the purpose.
The Judicial Committee in Commissioner of Income Tax vs Williamson Diamonds Ltd., , 49 observed with reference to the expression "having regard to": "The form of words used no doubt lends itself to the sugges tion that regard should be paid only to the two matters mentioned, but it appears to their Lordships that it is impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other 935 relevant factors.
Moreover, the statute does not say "having regard only" to losses previously incurred by the company and to the smallness of the profits made.
No answer, which can be said to be in any measure adequate, can be given to the question of "unreasonableness" by considering these two matters alone . " See Commissioner of Income tax, West Bengal, Calcutta vs Gungadhar Banerjee and Co. (P) Ltd., ; at 444 45.
See also Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , at 959.
In State of Karna taka and Anr. etc.
vs Shri Ranganatha Reddy & Anr.
; , at 657 58 this Court stated: "The content and purport of the expressions "having regard to" and "shall have regard to" have been the subject matter of consideration in various decisions of the Courts in England as also in this country.
We may refer only to a few.
In Illingworth vs Welmsley, it was held by the Court of Appeal, to quote a few words from the judgment of Romer C.J. at page 144: "All that clause 2 means is that the tribunal assessing the compensation is to bear in mind and have regard to the average weekly wages earned before and after the accident respectively.
Beating that in mind, a limit is placed on the amount of compensation that may be awarded . . "In another decision of the Court of Appeal in Perry vs Wright (etc. etc.), Cozens Hardy M.R. observed at page 451: "No mandatory words are there used; the phrase is simply "regard may be had".
The sentence is not grammatical, but I think the meaning is this: Where you cannot compute you must estimate, as best as you can, the rate per week at which the workman was being remunerated, and to assist you in making an estimate you may have regard to analogous cases.
" It is worthwhile to quote a few words from the judgment of Fletcher Moulton L.J. at page 458.
Under the phrase "Regard may be had to" the facts which the Court may thus take cognizance of are to be "a guide, and not a fetter".
This Court speaking through one of us (Beg, J., as he then was), has expressed the same opinion in the case of Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , Says the learned Judge at page 959: "The expression "having regard to" only obliges the Government to consider as relevant data material to which it must have regard".
" 936 In State of U.P. & Ors.
vs Renusagar Power Co., ; , one of us (Mukharji, J., as he then was) observed: "The expression "having regard to" only obliges the govern ment to consider as relevant data material to which it must have regard . . ".
In O 'May and Ors.
vs City of London Real Property Co. Ltd., at 665 (H.L.), Lord Hailsham stated: "A certain amount of discussion took place in argument as to the meaning of 'having regard to ' in section 35.
Despite the fact that the phrase has only just been used by the draftsman of section 34 in an almost mandatory sense, I do not in any way suggest that the court is intended or should in any way attempt to bind the parties to the terms of the current tenancy in any permanent form . . ".
The words "having regard to" in the sub section are the legislative instruction for the general guidance of the Government in determining the price of sugar.
They are not strictly mandatory, but in essence directory.
The reasona bleness of the order made by the Government in exercise of its power under sub section (3 C) will, of course, be tested by asking the question whether or not the matters mentioned in clauses (a) to (d) have been generally considered by the Government in making its estimate of the price, but the Court will not strictly scrutinise the extent to which those matters or any other matters have been taken into account.
There is sufficient compliance with the sub section, if the Government has addressed its mind to the factors mentioned in clauses (a) to (d), amongst other factors which the Government may reasonably consider to be relevant and has come to a conclusion, which any reasonable person, placed in the position of the Government, would have come to.
On such determination of the price of sugar, which, as stated in Panipat (supra) is the fair price, the sub section postu lates the calculation of an amount, with reference to such price, for payment to each producer who has complied with an order made with reference to sub section (2)(f).
The "price of sugar", unlike the "amount" is arrived at by a process of costing in respect of a representative cross section of manufacturing units, beating, of course, in mind the legis lative instruction contained in clauses (a) to (d).
The Attorney General submits that orders determining the 937 prices of sugar in terms of the sub section are of general application and, therefore, legislative in character.
Omis sion, if any, to consider the peculiar problems of individu al producers is not a ground for judicial review.
The peti tioners ' counsel as well as Mr. Venugopal appearing for the intervener (ISMA), do not agree.
They submit that the sub section contemplates only administrative or quasi judicial orders of particular application and the impugned orders are not legislative.
They rely upon a certain observation of this Court in Union of India & Anr.
vs Cynamide India Ltd. & Anr., [1987] 2 SCC 720.
Mr. Venugopal, however, hastens to add that his client does not seek personal heating before prices are determined.
Mr. B.R.L. Iyengar, supporting the contentions of the petitioners, points out that the expres sion 'determine ' used in sub section (3 C) indicates that the order to which that expression refers is quasi judicial.
Judicial decisions are made according to law while administrative decisions emanate from administrative policy.
Quasi judicial decisions are also administrative decisions, but they are subject to some measure of judicial procedure, such as rules of natural justice.
To distinguish clearly legislative and administrative functions is "difficult in theory and impossible in practice".3 Referring to these two functions, Wade says: 'They are easy enough to distinguish at the extremities of the .spectrum: an Act of Parliament is legislative and a deportation order is administrative.
But in between is a wide area where either label could be used according to taste, for example where ministers make orders or regula tions affecting large numbers of people . . ,, .4
Wade points out that legislative power is the power to prescribe the law for people in general, while administra tive power is the power to prescribe the law for them, or apply the law to them, in particular situations.
A scheme for centralising the electricity supply undertakings may be called administrative, but it might be just as well legisla tive.
Same is the case with ministerial orders establishing new towns or airports etc.
He asks: "And what of 'directions of a general character ' given by a minister to a nationa lised industry? Are these various orders legislative or administrative?" Wade says that the correct (3) Comd. 4060 (1932), p. 73; see H.W.R. Wade Adminis trative Law, 6th ed., p. 47 (4) Ibid p. 848.
938 answer would be that they are both.
He says:" . . there is an infinite series of gradations, with a large area of overlap, between what is plainly legislation and what is plainly administration".5 Courts, nevertheless, for practi cal reasons, have distinguished legislative orders from the rest of the orders by reference to the principle that the former is of general application.
They are made formally by publication and for general guidance with reference to which individual decisions are taken in particular situations.
According to Griffith and Street, an instruction may be treated as legislative even when they are not issued formal ly),, but by a circular or a letter or the like.
What mat ters is the substance and not the form, or the name.
The learned authors say: ".
. where a Minister (or other authority) is given power in a statute or an instrument to exercise executive, as opposed to legislative, powers as, for example, to requisition property or to issue a licence and delegates those powers generally, then any instructions which he gives to his delegates may be legisla tive".6 Where an authority to whom power is delegated is entitled to sub delegate his power, be it legislative, executive or judicial, then such authority may also give instructions to his delegates and these instructions may be regarded as legislative.
However, as pointed out by Denning, L.J., (as he then was) a judicial tribunal cannot delegate its functions except when it is authorised to do so express ly or by necessary implication ' see Bernard and Ors.
vs National Dock Labour Board and Ors., ; at 40.
Kenneth Culp Davis says: "What distinguishes legislation from adjudication is that the former affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely touched by it; while adjudica tion operates concretely upon individuals in their individu al capacity".7 Justice Holmes ' definition, which is what is called the "time test" and which Davis describes as one which has produced many unsatisfactory practical results, reads: "A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.
That is its purpose and end.
Legislation, on the other hand, looks to the future and (5) Ibid.
(6) Principles of Administrative Law, 5th ed.
, p. 65 (7) Administrative Law Text, 3rd ed., p. 123 24.
939 changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.
The establishment of a rate is the making of a rule for the future, and therefore is an act legislative, not judicial .
Prentis vs Atlantic Cost Line Co., ; ,226.
The element of general application is often cited as a distinct feature of legislative activity.
In the words of Chief Justice Burger, "rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class"? Bernard Schwarts says: "an adjudication, on the other hand, applies to specific individuals or situations.
Rule making affects the fights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely affected; adjudication operates concretely upon individuals in their individual capacity ' '9 According to Schwartz, the "time test" and the "applicability test" are workable in most cases although in certain situations distinctions are indeed difficult to draw.
A statutory instrument (such as a rule, order or regula tion) emanates from the exercise of delegated legislative power which is the part of the administrative process resem bling enactment of law by the legislature.
A quasi judicial order emanates from adjudication which is the part of the administrative process resembling a judicial decision by a court of law.
This analogy is imperfect and perhaps unhelp ful in classifying borderline or mixed cases which are better left unclassified .10
If a particular function is termed legislative rather than judicial, practical results may follow as far as the parties are concerned.
When the function is treated as legislative, a party affected by the order has no fight to notice and heating, unless, of course, the statute so re quires.
It being of general application engulfing a wide sweep of powers, applicable to all persons and situations of a broadly identifiable class, the legislative order may not be vulnerable to challenge merely by reason of its omission to take into account individual peculiarities and differ ences amongst those falling within the class.
(8) Quoted by Bernard Schwartz in 'Administrative Law ' (1976), p. 144.
(9) Ibid (10) See Davis, Administrative Law Text, p. 123 940 In Union of India & Anr.
vs Cynamide India Ltd. & Anr., [1987] 2 SCC 720 at 734 35, Chinnappa Reddy, J. referring to the earlier decisions of this Court states: " . . legislative action, plenary or subordinate, is not subject to .rules of natural justice.
In the case of Parlia mentary legislation, the proposition is self evident.
In the case of subordinate legislation, it may happen that Parlia ment may itself provide for a notice and for a hearing . .
But where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity . .
It is true that, with the proliferation of delegated legislation, there is a tendency for the line between legislation and administration to vanish into an illusion.
Administrative, quasi judicial decisions tend to merge in legislative activity and, con versely, legislative activity tends to fade into and present an appearance of an administrative or quasi judicial activi ty".
Stating that rule making is of general application to all members of a broadly identifiable class while adjudication is applicable to specific individuals or situations, the learned Judge observes: "A price fixation measure does not concern itself with the interests of an individual manufacturer or producer.
It is generally in relation to a particular commodity or class of commodities or transactions.
It is a direction of a general character, not directed against a particular situation.
It is intended to operate in the future.
It is conceived in the interests of the general consumer public.
The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligations of the producer to charge no more than the price fixed.
Viewed from whatever angle, the angle of general application, the prospectiveness of its effect, the public interest served, and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legisla tive activity".
The learned Judge emphasises: 941 "Price fixation may occasionally assume an administrative or quasi judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals.
Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the government or its nominee and the price to be paid is directed by the legislature to be determined accord ing to the statutory guidelines laid down by it.
In such situations the determination of price may acquire a quasiju dicial character".
These observations have been cited with approval by one of uS (Sabyasachi Mukharji, J., as he then was) in Renusagar (supra).
In Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , at 961, this Court states: "Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material.
It could not, there fore, give rise to a complaint that a rule of natural jus tice has not been followed in fixing the price".
In Prag Ice & Oil Mills & Anr. etc.
vs Union of India; , at 317, Chandrachud, J., as he then was, speaks for the majority: "We think that unless, by the terms of a particular statute, or order.
price fixation is made a quasi judicial function for specified purposes or cases, it is really legislative in character in the type of control order which is now before us because it satisfies the tests of legislation.
A legisla tive measure does not concern itself with the facts of an individual case.
It is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class".
See also the observation of Megarry, J., as he then was, in Bates vs Lord Hailsham of St. Marylebone & Ors., at 1024.
The impugned orders, duly published in the official gazettes notifying the prices determined for sugar of var ious grades and pro 942 duced in various zones, and applicable to all producers of such sugar, can, in our view, be legitimately characterised as legislative.
These orders are required by Sub section (6) to be laid before both Houses of Parliament.
The notified prices are applicable without exception to all persons falling within well defined groups.
The prices are deter mined in accordance with the norms postulated in the sub section.
It is with reference to such predetermined prices of sugar that the "amount" payable to each producer, who has sold sugar in compliance with an order made with reference to clause (f) of sub section (2), is calculated.
The calcu lation of such amount is, in contradistinction to the deter mination of "price of sugar", a non legislative act.
Thus, while individual consideration is relevant to the calculation of the "amount", it is not so for the determina tion of the "price of sugar" which is the rate at which the amount is calculated.
That price, as stated in Panipat (supra) is to be arrived at by a process of costing with reference to a reasonably efficient and economic representa tive cross section of manufacturing units.
In this connection, we must point out that at first blush a certain observation of Chinnappa Reddy, J. in Cyna mide, [1987] 2 SCC 720 at 741, on which much reliance is placed by the petitioners ' counsel, appears to be inconsist ent with what we have now stated.
The learned Judge says: "The Order made under Section 3(2)(c), which is not in respect of a single transaction, nor directed to a particu lar individual is clearly a legislative act, while an Order made under Section 3(3 C) which is in respect of a particu lar transaction of compulsory sale from a specific individu al is a non legislative act".
It would appear that what the learned Judge had in mind was an order by which the "amount" was calculated in terms of sub section (3 C) in respect of each individual producer and not an order determining the "price of sugar".
While the former is non legislative, the latter, by the very test adopted by the learned Judge, is legislative in character.
We, therefore, understand the observation of the learned Judge on this point as applicable only to the individual order fixing the "amount" in terms of the sub section and not to orders determining the "price of sugar" which are what the impugned orders are.
Any other construction of the sub section would conflict with what was adopted by the Constitution Bench in Panipat (supra) and would, therefore, be unsustainable.
943 The individual orders, calculating the "amounts" payable to the individual producers, being administrative, orders rounded on the machanics of price fixation, they must be left to the better instructed judgment of the executive, and in regard to them the principle of audi alteram partem is not applicable.
All that is required is reasonableness and fair play which are in essence emanations from the doctrine of natural justice as explained by this Court in A.K. Krai pak & Ors. etc.
vs Union of India & Ors., See also the observation of Mukharji, J., as he then was, in Renusagar, , 105.
Price fixation is in the nature of a legislative action even when it is based on objective criteria rounded on relevant material.
No rule at natural justice is applicable to any such order.
It is nevertheless imperative that the action of the authority should be inspired by reason.
Saras wati Industrial Syndicate Ltd.; , , 961, 962.
The Government cannot fix any arbitrary price.
It cannot fix prices on extraneous considerations: Renusagar, (supra).
Any arbitrary action, whether in the nature of a legis lative or administrative or quasi judicial exercise of power, is liable to attract the prohibition of Article 14 of the Constitution.
As stated in E.P. Royappa vs State of Tamil Nadu & Anr., ; , "equality and arbi trariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
" Unguided and unrestricted power is af fected by the vice of discrimination: Mrs. Maneka Gandhi vs Union of India & Anr., [1978] 1 SCC 248 at 293 294.
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive, or quasi judicial: Ramana Dayaram 'Shetty vs The International Airport Authority of India & Ors., ; at 1042; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors. ; and D.S. Nakara & Ors.
vs Union of India, ; Power delegated by statute is limited by its terms and subordinate to its objects.
The delegate must act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts.
All his decisions, whether characterised as legislative or administrative or quasi judicial, must be in harmony with the Constitution and other laws of the land.
They must be "reasonably related to the purposes of the enabling legislation".
See Leila Mourn ing vs Family Publications Service; , , If they are manifestly unjust or oppressive or outra geous or directed to an unauthorised end or do not tend in some degree to the accomplishment of 944 the objects of delegation, courts might well say, "Parlia ment never intended to give authority to make such rules; they are unreasonable and ultra vires".
per Lord Russel of Killowen, C.J. in Kruse vs Johnson, [1988] 2 Q.B. 91, 99.
The doctrine of judicial review implies that the reposi tory of power acts within the bounds of the power delegated and he does not abuse his power.
He must act reasonably and in good faith.
It is not only sufficient that an instrument is intra vires the parent Act, but it must also be consist ent with the constitutional principles: Maneka Gandhi vs Union of India, [1978] 1 SCC 248, 314 315.
Where a question of law is at issue, the Court may determine the rightness of the impugned decision on its own independent judgment.
If the decision of the authority does not agree with that which the Court considers to be the right one, the finding of law by the authority is liable to be upset.
Where it is a finding of fact, the Court examines only the reasonableness of the finding.
When that finding is found to be rational and reasonably based on evidence, in the sense that all relevant material has been taken into account and no irrelevant material has influenced the deci sion, and the decision is one which any reasonably minded person acting on such evidence, would have come to, then judicial review is exhausted even though the finding may not necessarily be what the Court would have come to as a trier of fact.
Whether an order is characterised as legislative or administrative or quasi judicial, or, whether it is a deter mination or law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is found to have "wanant in the record" and a rational basis in law: See Rochester Tel.
Corp. vs United States, ; , See also Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; As stated by Lord Hailsham of St. Marylebone L.C., (H.L.) in Chief Constable of the North Wales Police vs Evans; , at 1160 61: "The function of the court is to see that lawful authority is not abused by unfair treatment and not tO attempt itself the task entrusted to that authority by the law . .
The purpose of judicial review is to ensure that the indi vidual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter 945 which it is authorised by law to decide for itself a conclu sion which is correct in the eyes of the court".
In the same case Lord Brightman says: "Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made".
A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissi ble purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness.
See Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; In the words of Lord Mac naghten in Westminster Corporation vs London and North Western ' Railway, , 430: " . .
It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its pow ers.
It must keep within the limits of the authority commit ted to it.
It must act in good faith.
And it must act rea sonably.
The last proposition is involved in the second, if not in the first. .".
In The Barium Chemicals Ltd. & Anr.
vs The Company Law Board & Ors., [1966] Supp.
SCR 311, this Court states: " . .
Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extra neous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation.
In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts".
In Renusagar; , , 104, Mukharji, J., as he then was, states: 946 "The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
Similarly, if the power has been exercised on a non consideration or non application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous.
If a power (whether legislative or administra tive) is exercised on the oasis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated".
The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it The impugned orders are undoubtedly based on an exhaus tive study by experts.
They are fully supported by the recommendations of the Tariff Commission in 1969 and 1973.
It is true that these recommendations in some respects were the subject matter of criticism by a subsequently appointed expert body, viz., the BICP.
Apart from the fact that the BICP 's criticism has not been accepted by the Government, that criticism is not relevant in so far as the impugned orders are concerned because the latter are in regard to an earlier period.
These orders are fully supported by the relevant material on record.
The conclusions reached by the Central Government in exercise of its statutory power are expert conclusions which are not shown to be either discrim inatory or unreasonable or arbitrary or ultra vires.
The (11) See the observation of Lord Russel in Kruse vs Johnson, and that of Lord Greene, M.R. in Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; ; See also Mixnam Properties Ltd. vs Chertsey U.D.C., ; Commissioners of Customs and Excise vs Cure and DeeIcy Ltd. [1962] 1 Q.B. 340; McEldowney vs Forde, [1971] AC 632 (H.L.); Carltona Ltd. vs Commissioners of Works, , 564; Point of Ayr.
Collieries Ltd. vs Lloyd George, ; Scott vs Glasgow Corporation, , 492; Robert Baird L.D.v.
City of Glasgow, , 42; Manhattan General Equipment Co. vs Commissioner, ; , 134; Yates (Arthur) & Co. Pty. Ltd. vs Vegetable Seeds Committee, ; ; Bailey vs Conole, ; ; Boyd Builders Ltd. vs City of Ottawa, ; Re Burns and Township of Haldimand, 14 and Lynch vs Tilden Produce Co. 15,320 322.
947 material brought to our notice by the petitioners does not support the arguments at the bar that the Central Government has not applied its mind to the relevant questions to which they are expected to have regard in terms of the statute.
That the sugar factories for the purpose of determining the price of sugar in terms of sub section (3 C) should be grouped on the basis of their geographical location is a policy decision based on exhaustive expert conclusions.
Factories are classified with due regard to geographi cal cumagro economic considerations.
Fair prices for differ ent grades of sugar are determined for each zone with refer ence to a reasonably efficient and economic representative cross section of the manufacturing units.
Such classifica tion, as held in Panipat (supra) and Anakapalle (supra) cannot, in the absence of evidence to the contrary, be characterised as arbitrary or unreasonable or not rounded on an intelligible differentia having a rational nexus with the object sought to be achieved by subsection (3 C).
The person assailing such classification "carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences" Federal Power Commission vs Hope Gas Co., ; , 602 (1944).
If the petitioners nevertheless incur losses, such losses need not necessarily have arisen by reason of geographical zoning, but for reasons totally unconnected with it, such as the condition of the plant and machinery, quality of management, investment policy, labour relations, etc.
These are matters on which the petitioners have not furnished data, and, in any event judicial review is hardly appropriate for their consideration.
In this connection we would recall the observations of Chinnappa Reddy, J. in Union of India and Anr.
vs Cynamide India Ltd. andAnr., [1987] 2 SCC 720 at p. 736: "We do not agree with the basic premises that price fixation primarily affects manufacturers and producers.
Those who are most vitally affected are the consumer public.
It is for their protection that price fixation is resorted to and any increase in price affects them as seriously as any decrease does a manufacturer, if not more." In M/s. Gupta Sugar Works vs State of U.P. and Ors., [1987] Supp.
SCC 476 at p. 48 1 one of us (Jagannatha Shetty, J .) stated: "In this view of the matter, the primary consideration in the fixation of price would be the interest of consumers 948 rather than that of the producers." The Court has neither the means nor the knowledge to reevaluate the factual basis of the impugned orders.
The Court, in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence.
In the words of Justice Frankfurter of the U.S. Supreme Court in Railroad Commission of Texas vs Rowan & Nichols Oil Company, 311 US 570 577, 85 L. ed.
358,362: "Nothing in the Constitution warrants a rejection of these expert conclusions.
Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen state authorities . .
When we consider the limit ing conditions of litigation the adaptability of the judi cial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses".
This observation is of even greater significance in the absence of a Due Process Clause.
Judicial review is not concerned with matters of econom ic policy.
The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either.
The Court does not supplant the "feel of the expert" by its own views.
When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonable~ ness.
In all such cases, judicial in quiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land.
As rated by Jagannatha Shetty, J. in M/s. Gupta Sugar Works, (supra): "the court does not act like a chartered accountant nor acts like an income tax officer.
The court is not concerned with any individual case or any particular problem.
The court 949 only examines whether the price determined was with due regard to considerations provided by the statute.
And wheth er extraneous matters have been excluded from determination." Price fixation is not within the province of the courts.
Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclu sions reached by the concerned authority.
As stated by Justice Cardozo in Mississippi Valley Barge Line Company vs United States of America; , 292 US 282 290, , 1265: "The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commis sion by training and experience is qualified to form . .
It is not the province of a court to absorb this function to itself . .
The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body".
It is a matter of policy and planning for the Central Government to decide whether it would be on adoption of a system of partial control, in the best economic interest of the sugar industry and the general public that the sugar factories are grouped together with reference to geographi cal cum agro economic factors for the purpose of determining the price of levy sugar.
Sufficient power has been delegated to the Central Government to formulate and implement its policy decision by means of statutory instruments and execu tive orders.
Whether the policy should be altered to divide the sugar industry into groups of units with similar cost characteristics with particular reference to recovery, duration, size and age of the units and capital cost per tonne of output, without regard to their location, as recom mended by the BICP, is again a matter for the Central Gov ernment to decide.
What is best for the sugar industry and in what manner the policy should be formulated and imple mented, bearing in mind the fundamental object of the stat ute, viz., supply and equitable distribution of essential commodity at fair prices in the best interest of the general public, is a matter for decision exclusively within the province of the Central Government.
Such matters do not ordinarily attract the power of judicial review.
We would, in this connection, recall the words of Jus tice Frankfurter in Secretary of Agriculture, etc.
vs Cen tral Roig Refining Com 950 pany, etc.
, , "Congress was . . confronted with the formula tion of policy peculiarly with its wide swath of discretion.
It would be a singular intrusion of the judiciary into the legislative process to extrapolate restrictions upon the formulation of such an economic policy from those deeply rooted notions of justice which the Due Process Clause expresses . . ".
"Suffice it to say that since Congress fixed the quotas on a historical basis it is not for this Court to reweigh the relevant factors and, perchance, substitute its notion of expediency and fairness for that of Congress.
This is so even though the quotas thus fixed may demonstrably be disadvantageous to certain areas or persons.
This Court is not a tribunal for relief from the crudities and inequities of complicated experimental economic legislation".
It is important to remember that the division of the industry on a zonal basis for the purpose of price determi nation has been accepted without question by almost all the producers with the exception of a few like the petitioners.
Even if it is true that the petitioners as individuals are at a disadvantage and have suffered losses on account of the present system an assertion which has not been established and which by its very nature is incapable of determination by judicial review that is not sufficient ground for inter ference with the impugned orders.
We are not satisfied that the decisions of this Court in Anakapalle; , and Panipat, [1973] 2 SCR 860 require reconsideration in any respect.
We see no merit in the challenge against the im pugned orders.
The civil writ petitions are, in the circum stances, dismissed.
However, we do not make any order as to costs.
P.S.S. Petitions dismissed.
|
Clause (f) of sub section
(2) of the empowers the Central Government to require any person dealing in any essential commodity to sell the whole or specified part of such commodity to it or the State Government or to a nominee of such Government.
Sub section (3) provides for payment to such a seller (a) the price agreed upon consistently with the controlled price, if any, fixed under the section; (b) the price calculated with reference to the controlled price, if any; and (c) where none of these applies, a price calculated at 910 the market rate prevailing in the locality at the date of the sale.
Subsection (3 A) deals with orders made with a view to controlling the rise in prices or preventing the hoarding of any foodstuff in any locality and determination of price for payment to the seller, notwithstanding anything contained in sub s.(3).
Sub section (3 C) lays down that where any producer is required by an order made with refer ence to cl.
(f) of sub section
(2) to sell any kind of sugar and either no notification in respect of such sugar has been issued under sub section
(3 A) or any such notification having been issued has ceased to remain in force by efflux of time, then notwithstanding anything contained in sub section
(3), there shall be paid to that producer an amount therefore which shall be calculated with reference to such price of sugar as the Central Government may, by order, determine having regard to (a) the minimum price, if any, fixed for sugarcane by Central Government under this section; (b) the manufac turing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar, and different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar.
The Central Government by notifications dated 28th November, 1974 and 11th July, 1975 issued in exercise of the power under sub section
(3 C) of section 3 of the Act fixed the prices of levy sugar for 1974 75 production.
The petitioners, owners of sugar mills operating in the State of Uttar Pradesh in areas classified for the purpose of determining the price of levy sugar as West and East zones, challenged the validity of the said orders on the grounds that they were ultra vires the Act and violative of their fundamental rights as the prices of levy sugar had been determined arbitrarily with reference to the average cost profiles of factories grouped together in zones without regard to their individual capacity and cost characteris tics; that although the Government has the discretion to fix different prices for different areas or for different facto ries, or for different kinds of sugar, such wide discretion has to be reasonably exercised, that the words 'having regard to ' occurring in sub section
(3 C) is a mandatory require ment demanding strict compliance with clauses (a) to (d); that the ingredients of the said clauses should, therefore, have been examined with reference to each producer as a condition precedent to the determination of the price of sugar; that the Central Government had not applied its mind to the relevant questions to which they were expected to have regard to in terms of thesub section; and that the expression 'determine ' used in sub section (3 C) indicates 911 that the order to which that expression referred to is quasi judicial amenable to judicial review.
For the inter veners it was contended that the cost incurred by units having lower crushing capacity should be neutralised by giving them an incremental levy price.
For the respondents it was contended that the division of the country into zones and the method adopted by the Government in fixing price of levy sugar was fully supported by the recommendations of various expert bodies and the Tariff Commission and was upheld in Anakapalle Co op.
Agri cultural & Industrial Society Ltd. Etc.
vs Union of India & Ors.
, ; and the Panipat Co op.
Sugar Mills".
The Union of India, [1973] 2 SCR 860; that the cost of manufacturing sugar depends not only on recovery from the sugarcane, duration of crushing season, crushing capacity of the plant, the sugarcane price paid and the capital em ployed, but also to a considerable extent on the conditions of the plant and machinery, quality of management, invest ment policy, relations with cane growers and labour, finan cial reputation etc.; that to group together factories having a high cost profile and to determine a price special ly applicable to them is to put a premium on incompetence, if not mismanagement; and that the orders determining the price of sugar in terms of sub section (3 C) were of general application and, therefore, legislative in character and the omission, if any, to consider the peculiar problems of individual producers was not a ground of judicial review.
Dismissing the writ petitions, the Court HELD: 1.
The notifications dated 28th November, 1974 and 11th July, 1975 issued under sub section
(3 C) of section 3 of the are intra rites the Act.
There is no merit in the challenge.
[950F, 918F G] 2.1 Sub section (3 C) is attracted whenever any producer is required to sell sugar by an order made with reference to sub section
(2)(f) and no notification has been issued under sub section
(3 A) or any such notification, having been issued, has ceased to be in force.
It operates notwithstanding anything contained in sub section
This means the compensa tion payable to the seller in the circumstances attracting sub section
(3 C) is not the price postulated in sub section
Nor is it the price mentioned under sub section
(3 A), for that sub section cannot be in operation when sub section
(3 C) is attract ed.
What is payable under sub section
(3 C) is an amount calcu lated with reference to the price of sugar.
[930F H] 912 The Panipat Cooperative Sugar Mills vs The Union of India, [1973] 2 SCR 860, referred to.
2.2 The price of sugar is determined by the Central Government having regard to the factors mentioned in cls.
(a) to (d) of sub section
(3 C).
This is done with reference to the industry as a whole by a process of costing in respect of a representative cross section of manufacturing units and not with reference to any individual seller.
The order notifying the price is required by sub sections
(5) and (6), to be notified in official gazette and laid before both Houses of Parliament.
[931H, 932A, 936G, 931G] 3.
The words 'having regard to ' in sub section
(3 C) are the legislative instruction for the general guidance of the Government in determining the price of sugar.
They are not strictly mandatory, but in essence directory.
They do not mean that the Government cannot, after taking into account the matters mentioned in cls.
(a) to (d), consider any other matter which may be relevant.
The expression is not "having regard only to" but "having regard to".
These words are not a fetter, they are not words of limitation.
[936D, 934E] Union of India vs Kamlabhai Harjiwandas Parekh & Ors., ; ; Commissioner of Income Tax vs Williamson Diamonds Ltd., ; Commissioner of Income Tax, West Bengal, Calcutta vs Gungadhar Banerjee & Co. (P) Ltd., ; ; Saraswati Industrial Syndicate Ltd. etc '.
vs Union of India; , ; State of Karnata ka & Anr. etc.
vs Shri Ranganatha Reddy & Anr.
; , ; State of U. P. & Ors.
vs Renusagar Power Co., ; and O 'May & Ors.
vs City of London Real Property Co. Ltd., , referred to.
4.1 In considering the reasonableness of the order made by the Government ' in exercise of its power under sub section
(3 C) the Court will not strictly scrutinise the extent to which matters mentioned in cls.
(a) to (d), or any other matters have been taken into account by the Government in making its estimate of the price.
There is sufficient com pliance with the sub section if the Government has addressed its mind to the factors which it may reasonably consider to be relevant, and has come to a conclusion, which any reason able person placed in the position of the Government, would have come to.
[936E F] 4.2 In the instant case, the material brought to the notice of the Court does not support the arguments at the bar that the Central Government had not applied its mind to the relevant questions to which 913 they were expected to have regard in terms of the statute.
Nor any data has been furnished to show that the prices determined by the Government would have been different had the ingredients of cls.
(a) to (d) of the sub section been examined with reference to each individual producer instead of a representative cross section of manufacturing units.
[947A, 934D] 5.1 Judicial decisions are made according to law while administrative decisions emanate from administrative policy.
Quasi judicial decisions are also administrative decisions emanating from adjudication but they are subject to some measure of judicial procedure, such as rules of natural justice.
Legislative orders can be distinguished from rest of orders by reference to the principle that the former are of general application.
They are made formally by publica tion and for general guidance with reference to which indi vidual decisions are taken in particular situations, [937C, 939E, 938A B] H.W.R. Wade. ' Administrative Law, 6th ed., 47, referred to.
5.2 An instruction may be treated as legislative even when it is not issued formally but by circular or a letter or the like.
What matters is the substance and not the form, or the name.
Where an authority to whom power is delegated is entitled to sub delegate his power, be it legislative, executive or judicial, then such authority may also give instructions to his delegates and these instructions may be regarded as legislative.
However, a judicial tribunal cannot delegate its functions except when it is authorised to do so expressly or by necessary implication.
[938B C, D E] Griffith and Street. ' Principles of Administrative Law, 5th ed., p. 65 and Bernard & Ors.
vs National Dock Labour Board & Ors., ; at 40, referred to.
5.3 What distinguishes legislation from adjudication is that the former affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely touched by it; while adjudication operates con cretely upon individuals in their individual capacity.
[938F] Davis. ' Administrative Law Text, 3rd ed., p. 123, referred to.
5.4 A statutory instrument such as a rule, order or regulation emanates from the exercise of delegated legisla tive power which is a 914 part of the administrative process resembling enactment of law by the legislature.
It affects the rights of individuals in the abstract.
[939D E, C] Bernard Schwartz. ' Administrative Law [1976] p. 144 and Davis: Administrative Law Text, p. 123, referred to.
5.5 When the function is treated as legislative, a party affected by the order has no right to notice and bearing unless, of course, the statute so requires.
It is neverthe less imperative that the action of the authority should be inspired by reason.
It being of general application engulf ing a wide sweep of powers, applicable to all persons and situations of a broadly identifiable class, the legislative order may not be vulnerable to challenge merely by reasons of its omission to take into account individual peculiari ties and differences amongst those failing within the class.
[939F, 943C, 939F G] Union of India & Anr.
vs Cynamide India Ltd. & Ant., [1987] 2 SCC 720 and Saraswati Industrial Syndicate Ltd., vs Union of India; , , referred to.
5.6 The orders in the instant case, duly published in the official gazettes notifying the prices determined for sugar of various grades and produced in various zones, and applicable without exception to all producers failing within well defined groups can be legitimately characterised as legislative.
No rule of natural justice is applicable to any such order.
[941H, 942A, 943B C] Union of India & Anr.
vs Cynamide India Ltd. & Anr., [1987] 2 SCC 720; State of U.P. & Ors.
vs Renusagar Power Co., ; ; Saraswati Industrial Syndicate Ltd. etc.
vs Union of India; , ; Prag Ice & Oil Mills & Anr. etc.
vs Union of India; , and Bates vs Lord Hailsham of St. Marylebone & Ors., , referred to.
It is with reference to predetermined prices of sugar that subsection (3 C) postulates the calculation of the amount payable to each producer who has sold sugar in compliance with an order made with reference to cl.
(f) of sub section
The calculation of such amount is in contradis tinction to the determination of price of sugar, a non legislative act.
The individual orders to that effect being administrative orders rounded on the mechanics of price fixation, they must be left to the better instructed judg ment of the executive, and in regard to them the principle of audi alteram partem is not applicable All that is 915 required is reasonableness and fair play which are in es sence emanations from the doctrine of natural justice.
[942B, 936F G, 943A B] The Panipat Cooperative Sugar Mills vs The Union of India, [1973] 2 SCR 860; A.K. Kraipak & Ors.
vs Union of India & Ors., and State of U.P. & Ors.
vs Renusagar Power Co.; , , referred to.
Union of India & Anr.
vs Cynamide India Ltd. & Anr., [1987] 2 SCC 720, distinguished.
7.1 Any Act of the repository of power, whether legisla tive or administrative or quasi judicial, is open to chal lenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.
[946C] E.P. Royappa vs State of TamilNadu & Anr.
, ; ; State of U.P. & Ors.
vs Renusagar Power Co., ; ; Saraswati Industrial Syndicate Ltd. vs Union of India, ; ; Mrs. Maneka Gandhi vs Union of India & Anr., [1978] 1 SCC 248; Ramana Dayaram Shetry vs The International Airport Authority of India & Ors., ; ; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., ; ; D.S. Nakara & Ors.
vs Union of India, ; ; The Barium Chemicals Ltd. & Ant.
vs The Company Law Board & Ors., [1966] Supp.
SCR 311; Leila Mourning vs Family Publications Service, ; , 36 L. Ed.
2d 318; Kruse vs Johnson, [1988] 2 Q.B. 91; Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; ; Westminster Corporation vs London and North Western Railway, ; Mixnam Properties Ltd. vs Chertsey U.D.C., ; Commissioners of Customs ney vs Forde, [1971] AC 632 (H.L.); Carltona Ltd. vs Commis sioners of Works, ; Point of Ayr.
Col lieries Ltd. vs Lloyd George, ; Scott vs Glasgow Corporation, ; Robert Baird L.D.v.
City of Glasgow, ; Manhattan General Equipment Co. vs Commissioner, ; ; Yates (Arthur) & Co. Pty Ltd. vs Vegetable Seeds Committee, ; ; Bailey vs Conole, ; ; Boyd Builders Ltd. vs City of Ottawa, ; Re Burns & Township of Haldimand, and Lynch vs Tilden Produce Co., ; , referred to.
916 7.2 Where a question of law is at issue, the Court may determine the rightness of the decision of the authority on its own independent judgment.
If the decision does not agree with that which the Court considers to be the right one, the finding of law by the authority is liable to be upset.
Where it is a finding of fact, the Court examines only the reason ableness of the findings.
When the finding is found to be rational and reasonably based on evidence then judicial review is exhausted even though the finding may not neces sarily be what the Court would have come to as a trier of fact.
[944C E] 7.3 Whether an order is characterised as legislative or administrative or quasi judicial, or, whether it is a deter mination of law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is found to have warrant in the record and a rational basis in law.
[944E F] Rochester Tel. Corp. vs United States, [1939] 307 U.S. 125, ; Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, ; and Chief Constable of the North Wales Police vs Evans, ; at 1160, referred to.
7.4 The orders, in the instant case, are undoubtedly based on an exhaustive study by experts.
They are fully supported by the recommendations of the Tariff Commission in 1969 and 1973 and are not shown to be either discriminatory or unreasonable or arbitrary or ultra vires.
[946D E] 8.1 Judicial review is not concerned with matters of economic policy.
Nor is price fixation within the province of the Courts.
The Court does not substitute its judgment for that of the legislature or its agents as to matters within the province of either.
The Court does not supplant the "feel of the experts" by its own views.
When the legis lature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness and are consistent with the laws of the land.
[948F, 949B, 948F G] M/s. Gupta Sugar Works vs State of U.P. & Ors., [1987] Supp.
SCC 476; Railroad Commission of Texas vs Rowan & Nichols Oil Company, 311 US 570 577, 85 L. ed.
358 and Mississippi Valley Barge Line Company vs United States of America, 2.92 US 282 290; , , referred to.
917 8.2 In the instant case, sufficient power has been delegated to the Central Government by sub section
(3 C) to formulate and implement its policy decisions by means of statutory instruments and executive orders.
Classification of sugar factories with due regard to geographical cum agro economic considerations for the purpose of determining the price of sugar in terms of the said sub section is a policy decision based on exhaustive expert conclusions.
Such clas sification, cannot, in the absence of evidence to the con trary, be characterised as arbitrary or unreasonable or not rounded on an intelligible differentia having a rational nexus with the object sought to be achieved by sub section (3 C).
[949E, 947B D] The Panipat Cooperative Sugar Mills vs The Union of India, [1973] 2 SCR 860 and T. Govindaraja Mudaliar etc.
vs The State of TamilNadu & Ors., ; , applied.
Federal Power Commission vs Hope Gas Co., ; ; Union of India & Anr.
vs Cynamide India Ltd. &Anr., [1987] 2 SCC 720 and M/s. Gupta Sugar Works vs State of U.P. & Ors., [1987] Supp.
SCC 476, referred to.
8.3 If the petitioners nevertheless incur losses, such losses need not necessarily have arisen by reason of geo graphical zoning, but for reasons totally unconnected with it, such as the condition of the plant and machinery, quali ty of management, investment policy, labour relations, etc.
These are matters on which they have not furnished data.
The decisions in Anakapalle; , and Panipat, [1973] 2 SCR 860 do not require reconsideration.
[947D E, 950E F] 8.4 Whether the policy should be altered to divide the sugar industry into groups of units with similar cost char acteristics with particular reference to recovery from sugarcane, duration of the crushing season, size and age of units and capital cost per tonne of output, without regard to their location, is a matter for the Central Government to decide.
What is best for the sugar industry and in what manner the policy should be formulated and implemented, bearing in mind the fundamental object of the statute, is again a matter for decision exclusively within the province of the Central Government.
Such matters do not ordinarily attract the power of judicial review.
[949E G] Secretary of Agriculture, etc.
vs Central Roig Refining Company etc., , 94 L. ed.
391 392, referred to.
|
Special Leave Petition (Civil) Nos. 4973/89 and 12763/89.
From the Judgment and Order dated 31.1.1989 of the Kerala High Court in O.P. No. 3218/88 and dated 25.3.82 of the Income Tax Appellate Tribunal, Cochin in I.T.A. No. 302/Coch/1977 78.
K.K. Venugopal and K.R. Nambiar for the Petitioner.
Soli J. Sorabjee, Attorney General, section Ganesh and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is a petition under arti cle 136 of the Constitution for leave to appeal against the orders of the tribunal and the High Court.
The High Court vide its order dated 31st January, 1989 had dismissed the application for reference.
There is also an order of the tribunal refusing to make a reference under section 256(1) of the Income Tax Act, 1961 (hereinafter called 'the Act ').
This petition also seeks leave to appeal directly from the said order of the tribunal.
7 However, in order to appreciate the controversy in this case the facts reiterated by the High court of Kerala in its said judgment and order are important, it had observed as follows: "For the assessment year 1969 70 the petitioner filed a return declaring a total income of Rs.9,571.
In completing the assessment the assessing authority proceeded on the basis that the assessee was the owner of the gold seized on 9.11.68 and confiscated by the Customs authorities worth Rs.20 lakhs and accordingly the Income tax Officer treated the sum of Rs.20 lakhs as income from undisclosed source applying the provisions of Section 69 A of the Income tax Act, 1961.
On appeal, the Appellate Assistant Commissioner held that the assessee was not the owner of the contraband gold seized by the Central Excise Authority and therefore reduced the assessee 's total income by Rs.20 lakhs.
The Revenue filed a second appeal before the Appellate Tribunal, Cochin Bench.
After going through the evidence the Tribunal came to the conclusion that the car belonged to the assessee and the special places of concealment had been provided by design in the car.
Further the assessee himself was driving the car in which the gold was found.
The assessee also has not attributed the ownership to anybody else.
The assesee also has not established that the gold was given to him by any third party.
In view of all these, the addition of Rs.20 lakhs made by the Incometax Officer but deleted by the Appellate Asstt.
Commissioner was restored.
The additional ground raised by the Revenue that the appeal is not main tainable before the Appellate Asstt.
Commissioner was re jected.
The assessee thereafter filed a Miscellaneous Peti tion for rectification of the order of the Tribunal.
The rectification sought to be made are : (1) Business loss to the tune of Rs.20,00,000 incurred by the assessee due to investment in gold and the confiscation of the gold by the Customs authorities be allowed for the assessment year 1969 70, in view of the decision of the Supreme Court in CIT vs Piara Singh, decided on 8 5 1980 and reported in , (2) the income tax and special surcharge amounting to Rs. 16, 19,395, Rs.20,00,000 and 8 (3) as the tax has already been collected from the amount of Rs. 20,00,000 no interest was payable.
" The High Court noted that the tribunal could not accede to the requests of the petitioner as these could not be considered as mistakes apparent from records.
The points had not been raised by way of cross appeal or cross objections.
Thereafter, the assessee filed a petition u/s 256 of the Act seeking reference of the following questions of law: "1.
Whether the Tribunal is right in law in its view that the right to file an application under Section 254(2) of the Income tax Act, 1961 is open to be exercised only by the applicant and not by the respondent in the appeal before it? 2. Whether the Tribunal is right in law in rejecting the application under Section 254(2) on the ground that the applicant was not the appellant before it and that he had also not filed any memo of Cross objections in the appeal against him? 3.
Whether on the facts and in the circumstances of the case the assessee was bound to raise before the Tribunal, at the stage when he was only supporting the order appealed against him, of his case for deduction which he was legally entitled to claim in case of allowance of the appeal against him? 4.
Whether on facts and circumstances of the case the Tribu nal was right in law in holding that the claim of loss on account of confiscation of the gold was not the subject matter of the appeal?" The tribunal dismissed the petition holding that none of the questions sought to be raised was decided by the tribu nal and as such did not arise out of the order of the tribu nal.
Aggrieved by these two orders, one being refusal by the tribunal to refer the question as aforesaid u/s 256(1) and the other of the High Court directing the tribunal to refer the questions and state the case to the High Court, the petitioner has come up to this Court.
We find that it can legitimately be argued in the facts and the circumstances of the case that the question which essentially arose, which had to be borne in mind and which 9 was argued before the tribunal was, whether the sum of Rs.20 lakhs could be subject to taxation in the context as found by the tribunal as the income of the assessee.
The asses see 's further contention was that in view of the decision of this Court in C.I.T. Patiala vs Piara Singh, even if Rs.20 lakhs could be treated as the income of the asses see inasmuch as this has been ordered to be confiscated, there was a business loss as held in the said decision of this Court.
Therefore, this question should have been gone into which was sought to be raised by a MiscellaneOus Appli cation before the tribunal after disposal of the appeal by the tribunal.
The principle by which this should be determined has been fairly laid down by this Court in C.I.T., Bombay vs Scindia Steam Navigation Co. Ltd.; , wherein this Court at page 612 had observed as follows: "Section 56(1) speaks of a question of law that arises out of the order of the Tribunal.
Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, trenching over an area with approaches leading to different points therein.
Such a question might involve more than one aspect, requiring to be tackled from different standpoints.
All that section 66(1) requires is that the question of law which is referred to the court for decision and which the court is to decide must be the question which was in issue before the Tribunal.
Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal.
It will be an over refinement of the position to hold that each aspect of a question is itself a distinct question for the purpose of section 66(1) of the Act.
That was the view taken by this Court in Commissioner of Income tax vs Ogale Glass Works Ltd., and in Zoraster & Co. vs Commissioner of Income tax, , and we agree with it.
As the question on which the parties were at issue, which was referred to the court under section 66(1), and decided by it under section 66(5) is whether the sum of Rs.9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it.
10 It is argued for the appellant that this view would have the effect of doing away with limitations which the Legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised.
It is no doubt true ' that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue.
In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case.
In this connec tion, it is necessary to emphasise that, in flaming ques tions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised.
Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those conten tions can be argued in support of it which had been raised before the Tribunal.
In our opinion, it is competent to the court in such a case to allow a new contention to be ad vanced, provided it is within the framework of the question as referred." Mr. Venugopal, appearing for the petitioner, drew our attention to the observations of Justice Shah, as the learned Chief Justice then was, at p. 617 which are to the following effect: "The source of the question must be the order of the Tribu nal; but of the question it is not predicated that the Tribunal must have been asked to decide it at the hearing of the appeal.
It may very well happen and frequently cases arise in which the question of law arises for the first time out of the order of the Tribunal.
The Tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found.
These are only illustrative case: analogous cases may easily be multiplied.
It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the Tribunal and to refuse to take cognisance of question which arise out of the order of the Tribunal, but which were not argued, because they could not (in the absence of any indication as to what the 11 Tribunal was going to decide be argued." As mentioned hereinbefore, this is an application for leave to appeal from the decisions of the tribunal and the High Court under Article 136 of the Constitution.
The real and substantial question posed and canvassed before the tribunal in its appellate order and in the appeal, as is manifest from the facts stated before, was, whether a sum of Rs.20 lakhs could in the facts and the circumstances be considered as part of the income of the assessee and as such suffer taxation.
Now the question sought to be raised is, whether in view of the decision of this Court in Piara Singh 's case (supra) the amount of Rs.20 lakhs could be treated as legitimate business loss of the assessee.
It is possible to take the view that this is substan tially a different question, namely, whether an amount is a business loss even assuming that it was the income.
It is possible and conceivable to consider two different ques tions, namely, whether a certain sum of money is the income of the assessee, and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act.
It is possible to take the view that these are substantially different questions and not merely different aspects of the same question.
Considerations which go into determination of whether an amount should be treated as income and the considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent.
The question in this form was not canvassed before the tribunal at any point of time in the alternative.
It may be reiterated that the Central Excise Officers at Valayar check post seized gold weighing 16,000 gms.
from Car No. MYX 9432, which was being driven by the petitioner along with the documents and took the petitioner into custody.
The Collector of Central Excise, Madras had confiscated the gold in question and found that the petitioner was in possession of the gold.
The assessment of the petitioner for the year in question was originally completed at a total income of Rs. 1,571.
Subsequent to the completion of the original assessment, the petitioner filed a return declaring a total income of Rs.9,57 1.
The Income Tax Officer issued notice under section 148 of the Act.
The Tribunal ultimately had accepted the revenue 's contention, restored the addition of Rs.20 lakhs made by the assessing authority, inter alia, holding that the onus was on the petitioner to prove that the 12 gold was not owned by him which onus the petitioner had failed to discharge.
The Tribunal had gone into and adjudi cated the question substantially raised by the petitioner that the confiscated gold could not be treated as the income of the petitioner.
The Tribunal rejected the application of the petitioner on the ground that the claim of loss on account of the confiscation of the gold was not the subject matter of the appeal.
The principles of law have been discussed by this Court in Scindia Steam Navigation Co. Ltd 's case (supra).
In the facts and the circumstances of the case, the Tribunal and the High Courts have taken the view that wheth er certain sum of money can be treated as the income of an assessee and whether that sum of money could be deducted as loss are different question of law and not different aspects of the same question.
The Tribunal and the High Court have taken a particular view.
They have borne in mind the correct principles that are applicable in the light of the law laid down by this Court in Scindia Steam Navigation 's case (supra).
In the background of the facts and the circumstances of the case, as mentioned hereinbefore, if the aforesaid view of the Tribunal and the High Courts is a possible view, we are not inclined to interfere with that view under Article 136 of the Constitution in the light of the facts and the circumstances of this case.
We are not prepared to say that injustice has been done to the petitioner.
The view taken by the Tribunal and the High Courts is a possible view.
The Tribunal and the High Courts have borne in mind the princi ples of law laid down by this Court.
In the aforesaid view of the matter, ' in the facts and the circumstances of the case, this application is rejected and accordingly dismissed.
R.N.J. Petition dismissed.
|
On November 11, 1968 the Petitioner was apprehended carrying contraband gold in a Maruti Car driven by him.
He was taken into custody and the seized gold was confiscated.
For the assessment year 1960 70 the Petitioner had filed a return declaring total income of Rs.9,571.
In finalising the assessment the Income Tax Officer added Rs.20 Lakhs being the price of the confiscated gold as income from undisclosed source.
The Petitioner went in appeal before the Appellate Assistant Commissioner who reduced the income by that amount holding that the assessee was not the owner of the confis cated gold.
On second appeal by the revenue the Tribunal restored the order of the I.T.O.
The Petitioner then moved a Misc.
Application under section 254(1) for amendment for treating Rs.20 Lakhs as business loss which was rejected by the Tribunal.
The Petitioner then moved a Petition u/s 256(1) of the Income Tax Act seeking reference to the High Court raising certain questions, which was turned down by the Tribunal holding that none of the questions sought to be raised was decided by the Tribunal and ' as such did not arise from its order.
The High Court also declined the application to direct the Tribunal to refer the questions and to state the case to it.
Hence this special leave petition directed against both the order of the Tribunal as well as the High Court.
Dis missing the Special Leave Petition, the Court, HELD: The real and substantial question posed and can vassed before the Tribunal in its appellate order and in the appeal was whether the sum of Rs.20 Lakhs be considered as part of the income of the 6 assessee and as such suffer taxation.
The question sought to be raised is whether in view of the decision of the Court in Piara Singh 's case this amount could be treated as legiti mate business loss of the assessee.
It is possible to take the view that this is substantially a different question, family whether an amount is a business loss even assuming that it was he income.
It is possible and conceivable to consider two different questions, namely whether a certain sum of money is the income of the assessee and secondly, whether even assuming that such was the income, was that income liable to be deducted in view of the provisions of the Act.
Considerations which go into determination whether an amount should be treated as income and considerations which are relevant to determine whether even assuming that, that was the income the amount was deductible, are differ ent.
The question in this form was not canvassed before the Tribunal.
The view taken by the Tribunal and the High Court is a possible view and they have borne in mind the princi ples of law laid down by the Court in Scindia Steam Naviga tion 's case.
[1 lB E; 12E] C.I.T., Patiala vs Piara Singh, 2 and C.I.T., Bombay Scindia Steam Navigation Co. Ltd., , referred to.
|
Special Leave Petition (Civil) No. 7914 of 1989.
From the Judgment and Order dated 26.5.1989 of Delhi High Court in S.A.O. No. 296 of 1984.
V.M. Tarkunde and S.K. Gupta for the petitioner.
Dr. Y.S. Chitale, Ramji Srinivasan, P.K. Jain and Ra vinder Nath for the respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Tenant inducted in 1979, for three years, 2by the landlord under a written agreement, in C 4/33, Saf darjang Development Area, New Delhi, with permission of Controller under Section 21 of Delhi Rent Control Act (for brevity the 'Act ') seeks leave of this Court on limited question of law if proceedings for recovery of possession under Section 21 of the Act could be initiated and continued by legal representatives of the landlord who had obtained permission but who died before expiry of period of tenancy.
Answer of it shall depend, primarily, on construction of word 'landlord ' used in Section 21, a provision held to be self contained code in Shiv Chand Kapoor vs Amar Bose, ; and also the purpose and objective of its enactment as provision of short duration tenancy or periodi cal tenancy in Rent Control Act of Delhi right from 1952, is unique amongst such legislations and is probably non exist ent in any other State.
It reads as under: 28 21.
"Recovery of possession in case of tenancies for limited period: (1) Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as a residence for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, or an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evict ing the tenant and every other person who may be in occupa tion of such premises.
(2) while making an order under sub section (1), the Con troller may award to the landlord such damages for the use or occupation of the premises at such rates as he considers proper in the circumstances of the case for the period from the date of such order till the date of actual vacation by the tenant.
" What it, undoubtedly, projects is the legislative aware ness of acute crisis of houses in the State.
To resolve the paucity of accommodation, on one hand, due to enormous influx of office personnel and business class as a result of rapid growth of social, economic and political activity and apprehension of house owners, on other, bulk of whom hail from middle class or service class, of loosing their houses if not for good then for substantial period due to develop ment of strange phenomenon in big cities that allotted or rented houses are more economical than, even, own the legis lature which is the best judge of need of its people carved out an exception to usual rent control provisions of pro tecting tenants from eviction What was unique of it was not short duration tenancy but a fresh look on eviction.
Vacant possession was ensured, statutorily, without any notice, or termination of tenancy or the hazard of establishing bona fide need and comparative hardship etc.
Since sec.
21 is an exception to Section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
Intensity of it can be appreciated better if its language, is compared 29 with other provisions of recovery of possession even though those provisions, namely, secs.
14A, 14B, 14C and 14D, were introduced later.
They also provide speedy remedy to recover possession.
But the landlord cannot succeed unless he is able to prove circumstances mentioned in it.
More than this the tenant has been given right to contest under Section 25B. Import of Section 21 on the other hand is altogether different.
It enjoins Controller to place landlord in vacant possession after expiry of time without any right to tenant to contest it except to the limited extent that permission was vitiated by fraud as held in S.B. Noronah vs Prem Kumari Khanna, ; or misuse of the provision by land lord taking advantage of helpless situation of the tenant as held in V.S. Rahe vs Smt.
Rem Chambeh, ; or the permission really did not create genuine tenancy as held in Shiv Chand Kapoor vs Amar Bose, supra.
Recovery of pos session under Section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of those exceptions which have been carved out by courts, obviously, to uphold fairness and honesty the core of our jurispru dence.
Right to get vacant possession is, thus absolute.
Purpose and objective of the Section having been ascer tained, it may now be examined if the word "landlord" used in the second part of the Section which empowers landlord to make an application for recovery of possession is to be understood as the same landlord who made the application or his legal representatives as well.
In other words, is there any justification for construing the word "landlord" in a narrow sense so as to restrict it, only, to the person who made the application and obtained permission.
"Landlord" has been defined in Section 2(e) as under: "2(e). 'landlord ' means a person who, for the time being is receiving, or is entitled to receive, the rent of any prem ises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.
" Expression, "for the time being" makes it clear, that land lord has to be understood in praesentii.
That is anyone entitled to receive rent is the landlord.
It does not visua lise, past or future landlord.
Therefore, the word "land lord".
on plain reading of Section 21 does not warrant construction of the word in any other manner.
Basis for submission, however, that landlord in second part of Section 21 entitling him to 30 claim vacant possession should be confined to the person who obtained permission was rounded on use of expression, "who does not require the whole or any part of the premises for a particular period.
" Attempt was made to personalise eviction proceedings by linking it with the person, due to whose non requirement the permission was granted resulting in automatic exclusion of legal representatives.
To put it interpretationally the word "landlord", in second part was urged to be understood in a manner different than it is defined in Section 2(e).
Can it be said that context or setting of Section 21 is such that the word "landlord" in second part of it should be understood in a different sense than that in definition clause? Not on prima facie reading of it which has already been adverted to.
Neither on close analysis.
What is visualised is occasion for short duration tenancy due to non requirement of whole or part of premises by landlord for time being; method of its creation by writ ten agreement entered with tenant, statutory status to it by permission obtained from Controller and execution by resto ration of vacant possession if the tenant does not vacate after expiry of period.
All condensed in one.
Construction ally it is in two parts one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate independently.
Non requirement of premises for time being furnishes basis for entering into agreement for periodical tenancy.
Truth of it on its genu ineness are relevant considerations for granting permission.
But it exhausts thereafter except to the limited extent pointed out in decisions referred earlier.
And the permis sion granted continues unabated, unaffected irrespective of variation in requirement.
Necessity of landlord, again, does not entitle him to seek its revocation.
Even his death cannot shorten the period.
Similarly once period expires the agreement, the permission all cease to operate by operation of law.
Nothing further is required.
Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then the landlord may approach Con troller for putting him in vacant possession.
Which land lord? Obviously whosoever is the landlord at the time of afflux of tenancy.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affected.
Use of expression notwithstanding any other law render it obligatory on tenant to vacate without questioning au thority of landlord.
Any other construction, may, as rightly observed by the High Court lead to disastrous consequences.
Even on principles of civil law the provision for recovery of possession being in nature of execution it could not be successfully resisted on the death of landlord due to whose non requirement the permission was granted.
Such narrow and 31 unreaIistic construction of the word 'landlord ' shall frus trate entire purpose of Section 21.
Maxim of actio personalies mortiur cum personna cannot apply, either, on principle or on facts.
In Supreme Bank vs
P.A. Tendulkar; , this Court while dis cussing applicability of the maxim held "whatever view one may take of the justice of the principle it was clear that it would not be applicable to actions based on contract or where tort feasers ' Estate had benefitted from a wrong done.
Its applicability was generally confined to actions for damages for defamation, seduction inducing a spouse to remain apart from the other and adultery." In Phool Rani vs Naubat Rai, ; a decision which was relied by petitioner in support of submission that an application filed for eviction of a tenant on bona fide need lapses on the death of landlord and it could not be continued by his legal representatives overruled in Shanti Lal Thakur Das and Ors.
vs Chaman Lal Maganlal Telwala, it was observed that doctrine of actio personalis moritur cum personna, did not apply to Rent Control Acts.
Even otherwise an action for eviction abates only if the cause of action does not survive.
What is the cause of action for an application for vacant possession in Section 21 death of landlord or expiry of time for which tenancy was created.
Obviously the latter, the failure ' of tenant to honour his commitment to vacate the premises after expiry of time for which he was inducted with permission of Control ler.
The death of the person who obtained the permission has nothing to do with it.
Permission was obtained because the landlord did not require the premises on the date when it was let out to tenant.
That does not continue on the date when the tenant does not vacate the premises.
The necessity of not requiring the premises, for some time, or for the duration the tenant was inducted was confined to the date when the permission was granted.
It could not be taken further to the time when the question of vacation arose.
The cause of action for granting permission was the non require ment by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
Even on facts permission was applied for by the landlord as, premises was surplus to his need for a limited period of 3 years due to the reason that his son had gone abroad and he was expected to return 32 after three years.
Permission was granted for this reason on statement of parties.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidate permission.
Therefore death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
In the result this petition for special leave fails and is dismissed.
In the circumstances of the case the tenant is directed to suffer costs which we quantify at Rs.5,000.
R.S.S. Petition dismissed.
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The petitioner tenant was let out the demised premises by the landlord for a period of three years, with permission of Controller under section 21 of the Delhi Rent Control Act, the landlord died before the expiry of period of tenan cy.
After the expiry of the period, his legal representa tives made an application for recovery of possession.
This application was resisted by the tenant on the ground that proceedings for recovery of possession under section 21 could not be initiated and continued by legal representa tives of the landlord who had obtained permission.
Having failed before the High Court, the petitioner has filed petition for special leave.
It was contended on his behalf that 'landlord ' in second part of section 21, enti tling him to claim vacant possession, should be confined to the person who had obtained permission on the premise that he "does not require the whole or any part of the premises for a particular period.
" Dismissing the special leave petition, this Court, HELD: (1) Section 21 is a self contained code.
The purpose and objective of its enactment as provision of short duration tenancy or periodical tenancy in Rent Control Act of Delhi is unique amongst such legislations.
What was unique of it was not short duration tenancy but a fresh look on eviction.
[27G; 28G] Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(2) Since section 21 is an exception to section 14 and it mandates restoration of possession, "notwithstanding any other law" it has to be construed strictly and against any attempt to frustrate it.
[28G] 26 (3) Recovery of possession under section 21 is not hedged, by any inquiry or opportunity, if permission is not challenged on any of the exceptions which have been carved out by courts, obviously to uphold fairness and honesty the core of our jurisprudence.
Right to get vacant possession is thus absolute.
[29D] S.B. Noronah vs Prem Kumari Khanna, ; ; V.S. Rahe vs Smt.
Rem Chamben, ; Shiv Chand Kapoor vs Amar Bose, ; , referred to.
(4) The expression "for the time being" in section 2(e) makes it clear that landlord has to be understood in presen ti.
That is anyone entitled to receive rent is the landlord.
It does not visualise, past or future landlord.
Therefore, the word "landlord" on plain reading of Section 21 does not warrant construction of the word in any other manner.
[29G] (5) Constructionally, Section 21 is in two parts: one creation of short term tenancy and other its execution after expiry of time.
Both stand on their own and operate inde pendently.
Non requirement of premises for time being fur nishes basis for entering into agreement for periodical tenancy.
Truth of it or its genuineness are relevant consid erations for granting permission.
And the permission granted continues unabated, unaffected irrespective of variation in requirement.
[30D E] (6) Vacation is not linked with landlord but with time.
Expiry of it obliges tenant to vacate.
If he does not then whosoever is the landlord at the time of afflux of tenancy may approach Controller for putting him in vacant posses sion.
Death of landlord does not either shorten or enlarge period nor the consequences envisaged are altered or affect ed.
[30F] (7) The doctrine of actio personalies moritur cum per sonna does not apply to Rent Control Acts.
Its applicability was generally confined to actions for damages for defama tion, seduction, inducing a spouse to remain apart from the other and adultery.
[31D C] Supreme Bank vs
P.A. Tindulcar; , ; Shanti Lal Thakur Das & Ors.
vs Chaman Lal Magan Lal Lala, Phool Rani vs Naubat Rai, , referred to.
(8) An action for eviction abates only if the cause of action does 27 not survive.
The cause of action for granting permission was the nonrequirement by the landlord of the premises for the time mentioned in the agreement whereas cause of action for eviction is non vacation by the tenant after the expiry of period.
Therefore, it is immaterial who is the landlord at the time when the action for vacation arose.
[31F G] (9) Permission in the instant case was granted on state ment of parties in regard to their necessity or non require ment of the premises.
Such necessity to let out or non requirement by the landlord could not be brought into those exceptions which invalidated permission.
Therefore, death of the landlord was immaterial as even the reason for letting out did not die with death of landlord.
[32A B]
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tition No. 215 of 1989.
(Under Article 32 of the Constitution of India.) M.S. Gujral, Ms. Kirti Misra and B .B. Sawhney for the Petitioners.
G.B. Pari, O.C. Mathur, Ms. Meera and section Sukumaran for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This writ petition under article 32 filed on behalf of about 450 erstwhile employees of M/s. Burmah Shell retired between May 1, 1979 and December 1984, is for a mandamus or direction to the respondents to restore full pension (which had been commuted) to the petitioner Nos. 2 to 5 and others similarly situated upon the expiry of 12 1/2 years from date of retirement in case of those retired prior to April 1985 and after 11 1/3 years to those retired prior to April 1, 1985 from their respective dates of retirement.
They claim that though in their previous Writ Petition No. 590/87 disposed of by a Division Bench of this Court on May 11, 1988 of which one of us (Ranganath Misra, J.) was a member, a hike in the pension effective from May 1, 1988 was granted.
Consideration of the present relief had been left over for a later period.
Admittedly, the petitioners in Writ Petition No. 590/87 sought two reliefs, namely, (i) restora tion of the commuted portion of the pension, and (ii) en hancement of pension or par with the pensioners of the Hindustan Petroleum Corporation Limited, for short 'HPCL '.
During the course of hearing, claim for the 964 first relief was given up and submission was confined to the second relief.
This Court accepted the contentions of the petitioners and ordered a seizeable hike in the pension.
The relief in this writ petition squarely covers relief No. 1 of Writ Petition No. 590/87.
But the ground on which the peti tioners have again come before the Court within a short spell is that their hope of the respondent 's sister concern, namely, HPCL, restoring commuted portion of pension to its pensioners has been smashed as it has deferred its decision on the issue till 1992.
Their learned counsel contends that in Common Cause & Ors.
vs Union of India, ; this Court upheld the 15 years formula and directed that the commuted portion of the pension should be restored to all the civil servants as well as the armed forces personnel of the Central Government effective from April 1, 1985.
It is maintained that as principle the same would be applicable to the petitioners as well.
The respondents, it is claimed, have to bear an additional liability of only a sum of Rs.1,02,41,635 out of its huge profits without in any manner affecting its functioning.
When the employees of the Central Govt.
and other Public Sector Undertakings are receiving the same benefits, the denial thereof to the petitioners is arbitrary, unjust and unfair and offends article 14 of the Constitution.
There is no scheme in vouge in other Public Sector Undertakings like commuted pension scheme except in HPCI.
Though HPCL has postponed action in this regard till 1992, the petitioners are not precluded to approach this Court for redressal and the previous decision does not operate as res judicata.
This Court having accorded in equity benefits of pension, which is a legal right of the petitioner, the relief also may be granted to the petition ers.
Shri Pai, learned counsel for the respondents, has resisted all these contentions.
The short question is wheth er it is a fit case for interference and issue of a direc tion to the respondents to give the relief as prayed for.
Admittedly, the petitioners claimed this relief in Writ Petition No. 590/87.
This Court after appropriate considera tion held that a sizeable hike in pension would meet the ends of justice.
Admittedly, Burmah Shell has a unique scheme known as "Burmah Shell India Pension Fund" with its own rules.
This Court held that the retired personnel would be entitled to a hike in pension at par with pensioners of HPCL.
Admittedly, HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, in our considered view, it is not desirable to enter tain the claim for restoration of commuted pen 965 sion.
Admittedly, the petitioners are governed by a special scheme, which is not at par with Government employees or the other Public Sector Undertakings.
In all fairness Shri Pai also has stated that as and when HPCL revises its scheme the petitioners would be entitled to the same benefits.
Grant or ' the relief at this stage would create disparity between the personnel who receive pension from HPCL and the re spondents.
We find sufficient justification in the conten tion of Shri Pai.
So we do not feel justified that it would be appropriate to interfere and grant the relief as prayed for.
The writ petition is accordingly dismissed, but without costs.
G.N. Petition dismissed.
|
Some of the erstwhile employees of Burmah Shell, in an earlier writ petition, claimed restoration of the commuted portion of pension and enhancement of pension on par with the pensioners of Hindustan Petroleum Corporation Limited, (HPCL).
At the time of hearing, the claim for restoration of the commuted portion of pension was given up.
This Court accepted the claim of the petitioners as regards enhancement of pension and ordered a sizeable hike in the pension.
The present writ petition claims the same relief which was given up at the time of hearing of the earlier writ petition, viz., restoration of commuted portion of pension.
Admitted ly, HPCL had deferred its decision till 1992 in this regard.
On behalf of the petitioners it was contended that though, HPCL has deferred its decision till 1992, the peti tioners were not precluded from approaching this Court and that the earlier decision did not operate as res judicata.
On behalf of the respondents it was contended that as soon as HPCL revises its scheme the petitioners would also be entitled to the benefit thereof and that grant of the relief earlier would create disparity between the persons who receive pension from HPCL and those from the Respondent.
Dismissing the writ petition, this Court, HELD: 1.1.
It would be inappropriate to interfere and grant the relief as prayed for at this stage since that would create disparity between the personnel who receive pension from Hindustan Petroleum Corporation Ltd. and the respondent Corporation.
[965B] 963 1.2.
This Court has already held that the retired per sonnel of Burmah Shell would be entitled to a hike in pen sion at par with pensioners of HPCL.
(W.P. No. 590/87 decid ed on 11.5.
1988).
HPCL has not accorded to its pensioners the relief of restoration of the commuted portion of pension after the expiry of 15 years.
The order passed by this Court is as recent as May 11, 1988.
After such a short time lag and in the absence of any substantial change in the posi tion, it is not desirable to entertain the claim for resto ration of commuted pension.
The petitioners are governed by a special scheme, which is not at par with Government em ployees or the other Public Sector Undertakings.
[964G H; 965A] Common Cause & Ors.
vs Union of India, ; , referred to.
|
vil Appeal Nos. 4180 and 4181 of 1989.
From the Judgment and Order dated 20/21/22 7 1988 and 18/298 1988 of the Bombay High Court in Writ Petition Nos.
3313 and 3417 of 1987.
N.N. Keshwani and R.N. Keshwani for the Appellants.
383 A.B. Rohatgi, Mrs. Gool Barucha, M.J. Paul, Kailash Vasdev, R. Karanjawala, Mrs.M Karanjawala (NP) and H.S. Anand for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
Special leave granted.
These civil appeals have been preferred against a common judgment of the Bombay High Court dismissing writ petition No. 33 13/87 filed by Arjun Khiamal Makhijani who is the appellant in one of these appeals and writ petition No. 3417/87 by Prithdayal Chetandas and others who are the appellants in the other civil appeal.
Jamnadas C. Tuliani who is respondent No. 1 in both these appeals is the owner and tile landlord of the suit premises comprising two bed rooms flat together with a garage on the ground floor and a store room on Bhulabhai Desai Road in the city of Bombay.
A suit was instituted by him for ejectment from the said premises against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which they had not paid in spite of a notice of demand having been served on them as contemplated by sub section (2) of Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section (3)(a) of the Act as it then stood.
Two other grounds were pleaded by the re spondent No. 1 namely that the tenants had changed the user of the suit premises and that they had committed breach of terms and conditions of the tenancy.
Subsequently, Arjun Khiamal Makhijani aforesaid was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sublet a portion of the suit premises namely the garage to him and were consequently liable to be evicted on this ground also.
The suit was contested both by the tenants as well as by defendant No. 6.
The Trial Court recorded find ings in favour of the landlord in so far as the pleas of default in payment of rent and illegal sub tenancy are concerned.
The other two pleas namely that the tenants had changed the user of the suit premises and had also committed breach of terms and conditions of the tenancy were decided against the landlord.
On the basis of the findings on the pleas of default in payment of rent and illegal subletting, the suit was decreed.
Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by defendant No. 6.
Both these appeals were dismissed and the tenants and defendant No. 6 aggrieved by the said decree filed two writ petitions in the High Court.
384 Against the common judgment of the High Court dismissing these writ petitions, the present civil appeals have been preferred.
Before dealing with the respective submissions made by learned counsel for the parties it may be pointed out that even though the finding that the tenants were defaulters in payment of rent has been upheld by the High Court, the other finding namely that the tenants had illegally sublet the garage of the suit premises to defendant No. 6 has been set aside and it has been held accepting the case of the tenants that the defendant No. 6 was a trespasser.
The tenants had also claimed before the High Court the benefit of sub sec tion (3) of Section 12 of the Act as substituted by Amend ment Act 18 of 1987 which came into force on 1st October 1987.
This plea too was repelled.
The defendant No. 6 before the High Court on the other hand took up the plea that in view of the finding in the suit that he was an illegal sub tenant of the garage since 1967, he was entitled to the benefit of sub section (2) of Section 15 of the Act as amended by the aforesaid Amendment Act 18 of 1987.
The High Court repelled this plea on the finding that he was not a sub tenant but a trespasser and also on the ground that he was not in possession on 1st February 1973, the relevant date mentioned in the said sub section.
The High Court also held that benefit of subsection (2) of Section 15 as amend ed, could not be given to defendant No. 6 in a writ peti tion, the same being not a proceeding contemplated by Sec tion 25 of the Amendment Act.
In order to appreciate the submissions made by learned counsel for the parties, it will be useful to extract sub section (3) as it stood at the time when the suit was instituted and sub section (3) as it stands after its amendment.
Subsection (3) as it stood when the suit was instituted reads as hereunder: "3(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court.
shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court max fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to 385 pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court.
" After its amendment as aforesaid, it reads: "(3) No decree for eviction shall be passed by the Court in any suit for recovery of posses sion on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permit ted increases till the suit is finally decided and also pays costs of the suit as directed by the Court; Provided that, the relief provided under this sub section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant." Sub section (2) of Section 15, on the other hand, after its amendment as aforesaid runs thus: "(2) The prohibition against the sub letting of the whole of any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in subsection (1), shall, subject to the provisions of this subsection, be deemed to have had to effect before the 1st day of February 1973, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything con tained in any contract or in the judgment, decree or order of a Court, any such sublease, assignment or transfer of any such purported sublease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in subsection (1), as purported sub lessee, assignee or transferee and has continued in a possession on the date aforesaid shall be deemed to be valid and effectual for all purposes, 386 and any tenant who has sub let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of Section 13.
The provisions aforesaid of this sub section shall not affect in any manner the operation of sub section (1) after the date aforesaid." Since considerable emphasis has been placed on Section 25 of the Amendment Act 18 of 1987, the same may also be usefully quoted.
It reads: 25.
Nothing contained in the principal Act, as amended by this Act, shall be deemed to autho rise the re opening of any suit or proceeding for the eviction of any person from any prem ises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act.
Explanation For the purposes of this section, suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding, as the case may be, had not expired before the com mencement of this Act.
" It has been urged by the learned counsel for the tenants that 14th November 1967 was the first day of hearing of the suit and since in pursuance of an order passed by the Trial Court on that day, the tenants had deposited the entire arrears of rent on 9th January 1968 within the time granted by the Court and continued to deposit the monthly rent thereafter they could not be treated as defaulters in pay ment of rent even if the amendment made in sub section (3) of Section 12 by the Amendment Act 18 of 1987 was ignored.
We, however, find it difficult to agree with this submis sion.
It is not denied that the arrears of rent which were for a period of more than six months and in respect of which a notice of demand had been served on the tenants under sub section (2) of Section 12 of the Act had not been paid by the tenants to the landlord within one month of the service of the notice.
It is also not denied that during the said period of one month, no dispute regarding the amount of standard rent or permitted 387 increases was raised by the tenants.
On a plain reading of clause (a) of sub section (3) of Section 12 of the Act as it stood at the relevant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed.
Clause (b) of sub section (3) on the face of it was not attracted inasmuch.
as the said clause applied only to a case not covered by clause (a).
This is amply borne out by the use of the opening words "In any other case" of clause (b).
In Harbanslal Jagmohandas and Anr.
vs Prabhudas Shiv lal, [1977] 1 S.C.C. page 576, these clauses (a) and (b) of sub section (3) of Section 12 of the Act came up for consid eration and it was held that the tenant can claim protection from the operation of the Section 12(3)(a) of the Act only if he makes an application raising a dispute as to standard rent within one month of the service of the notice terminat ing the tenancy.
In the instant case this had not admittedly been done by the tenants.
The consequence of non payment of arrears of rent claimed in the notice of demand was, there fore, inevitable.
In Jaywant section Kulkarni and Others vs Minochar Dosabhai Shroff and Others, [1988] 4 S.C.C.p.108, clauses (a) and (b) of sub section 3 of Section 12 again came up for consideration.
It was held: "Sub section (3)(a) of Section 12 categorical ly provided that where the rent was payable by the month and there was no dispute regarding the amount of standard rent or permitted increases, if such rent or increases were in arrears for a period of six months or more and the tenant neglected to make payment thereof until the expiration of the period of one month after notice referred to in subsection (2), the court shall pass a decree for evic tion in any such suit for recovery of posses sion.
In the instant case, as has been found by the court, the rent is payable month by month.
There is no dispute regarding the amount of standard rent or permitted in creases.
Such rent or increases are in arrears for a period of six months or more.
The tenant had neglected to make payment until the expi ration of the period of one month after notice referred to in subsection (2).
The Court was bound to pass a decree for eviction in any such suit for recovery of possession." Faced with this difficulty, learned counsel for the tenants urged that since the Act was a beneficial legisla tion the tenants having deposited the arrears of rent within the time granted by the Trial Court and having continued to deposit future rent thereafter the decree for 388 their eviction deserves to be reversed by this Court.
In so far as this submission is concerned, it may be pointed out that in Ganpat Ram Sharma and others vs Gayatri Devi, [1987] 3 SCC page 576, while dealing with almost a similar Rent Control Legislation it was held: "But quite apart from the suit being barred by lapse of time, this is a beneficial legisla tion, beneficial to both the landlord and the tenant.
It protects the tenant against unrea sonable eviction and exorbitant rent.
It also ensures certain limited rights to the landlord to recover possession on stated contingencies.
In Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 SCC page 73 while dealing with the scope of clauses (a) and (b) of sub section (3) of Section 12 of the Act, it was held: "It is clear to us that the Act interferes with the landlord 's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord 's power to evict them, in these days of scarcity of accommodation, by assert ing his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants.
The object was not to deprive the landlord altogether of his rights in property which have also to be respected.
Another object was to make possible eviction of tenants who fail to carry out their obligation to pay rent to the landlord despite opportunities given by law in that behalf.
Thus Section 12(3)(a) of the Act makes it obligatory for the Court to pass a decree when its conditions are satisfied as was pointed out by one of us (Bhagwati, J.) in Ratilal Balabhai Nazar vs Ranchhodbhai Shan kerbhai Patel, AIR 1968 Guj 172.
If there is statutory default or neglect on the part of the tenant, whatever may be its cause, the landlord acquires a right under Section 12(3)(a) to get a decree for eviction.
But where the conditions of Section 12(3)(a) are not satisfied, there is a further opportunity given to the tenant to protect himself against eviction.
He can comply with the conditions set out in section 12(3)(b) and defeat the landlord 's claim for eviction.
If, however, he does not fulfil those conditions, he cannot claim the protection of Section 12(3)(b) and in that event, there being no other protection available to him, a decree for eviction would have to go against him.
It is difficult to 389 see how by any judicial valour discretion exercisable in favour of the tenant can be found in Section 12(3)(b) even where the conditions laid down by it are satisfied to be strictly confined within the limits prescribed for their operation." (Emphasis supplied).
When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fall under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants.
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose.
It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs
R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles.
Reliance was placed by learned counsel for the tenants on Vatan Mal vs Kailash Nath, [1989] 3 SCC page 79.
In that case provisions of Amending Ordinance No. 26 of 1975 whereby Section 13(a) was inserted in the Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950, came up for considera tion.
After pointing Out that the object of inserting Sec tion 13(a) was to confer benefit on all tenants against whom suits for eviction on ground of default in payment of rent were pending and to achieve that object, the said Section had been given overriding effect, it was held that the interpretation of Section 13(a) must conform to the legisla tive intent and the courts should not take narrow restricted view which will defeat the purpose of the Act.
In our opin ion, in view of the mandatory provisions contained in Sec tion 12(3)(a) of the Act, the decision in the case of Vatan Mal, (supra) is not at all attracted to the facts of the instant case.
Clauses (a) and (b) of sub section (3) of Section 12 of Act are calculated to meet entirely different situations and the object of clause (b) was not to defeat the mandatory requirement of clause (a) scope of which has already been discussed above.
For the same reason, the decision of this Court in B.P. Khemka Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 SCR page 559 on which too reliance has been placed by the learned counsel for the tenants is of no assistance to them.
390 It was then urged by the learned counsel for the tenants that notwithstanding the provisions contained in Section 12(3)(a) of the Act, this Court can still grant relief to the tenants in view of the power conferred on it under Article 142 of the Constitution "for doing complete justice" in the case.
Reliance in support of this submission has been placed on Smt.
Kamala Devi Budhia and others vs Hem Prabha Ganguli and Others, [1989] 3 SCC page 145.
This submission ignores the basic concept that Article 142 does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provision.
In the case of Smt.
Kamala Devi Budhia, (supra), the question arose as to wheth er an application under Section 12 of the Bihar Buildings (Lease, Rent and Eviction) Control Act was competent or in the circumstances of the case only a suit under Section 11 thereof could be filed.
It was pointed out that it is the same Court before which both a suit under Section 11 and an application under Section 12 are to be filed and it was in this background that it was held: "If it is assumed that an application under Section 12 of the Act is not maintainable in the facts and circumstances of the present case, in our opinion, the proceeding has to be treated as a suit and the judgment of the learned Munsif as a decree therein.
A further question may arise as to the effect of the Judicial Commissioner, Ranchi declining to pass a formal decree of eviction and directing the appellants to make an application under Section 12(3) of the Act for that purpose.
Can this Court restore the decree of the trial court in absence of an appeal by the appel lants before the High Court? We think.that we can and we should. the question does not affect the substantive right of the parties as the controversy was concluded by the first appellate court in favour of the appellants.
What was left was only procedural in nature and inconsistent with our decision to treat the proceeding as a suit.
The occasion for filing an application under Section 12(3) can arise only where the matter is covered by Section 12, and as we have made an assumption in favour of the respondents that Section 12 has no application to the present case, there is no point in asking the appellants to file such an application.
As mentioned in Article 142 of the Constitution of India, this Court may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, 391 and the present case is a most appropriate one for exercise of such power." (Emphasis supplied) The said decision apparently cannot be applied to the facts of the instant case.
Learned counsel for the tenants then urged, relying on Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 SCR page 950, that at all events the tenants were entitled to be relieved against forfeiture for non payment of rent under Section 114 of the Transfer of Property Act benefit of which could be given if deposit of rent was made at any stage of the hearing of the suit.
In our opinion, there is no substance in this submission either inasmuch as Section 114 of the Transfer of Property Act cannot be applied to a case where the suit for eviction of a tenant has been insti tuted not on the basis of forfeiture of lease under the Transfer of Property Act but on the basis of statutory provision dealing specifically with the rights and obliga tions of the landlords and tenants such as Section 12 of the Act.
In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and (3)(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction.
Such removal of bar is not in any sense forfeiture of any rights under lease which the tenant held.
Section 114 of the Transfer of Property Act which provides relief against forfeiture for non payment of rent applies to a case where a lease of immovable property has determined by forfeiture for non payment of rent.
Section 111 of the Transfer of Property Act deals with various contingencies whereunder a lease of an immovable property determines.
Clause (g) contains one.of such contingencies being by forfeiture inter alia in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter.
In a case where forfeiture of lease is claimed for non payment of rent, it would, therefore, have to be established that one of the express conditions of the lease provided that on breach of that condition namely on nonpayment of rent the lessor was entitled to re enter.
It is only in those cases where such an express condition is contained in the lease and the lessee breaks the said condition and the lessor on his part gives notice in writing to the lessee of his intention to determine the lease that a lease of immovable property determines by forfeiture for non payment of rent.
In the instant case, the suit was not based on any such forfeiture of lease under the Transfer of Property Act but was filed for the 392 enforcement of the statutory right conferred on the landlord by subsections (2) and (3)(a) of Section 12 of the Act.
Lastly, it was urged by the learned counsel for the tenants that after clauses (a) and (b) of sub section (3) of Section 12 were substituted by the consolidated sub section (3) of the Amendment Act 18 of 1987, the tenants should have been given the benefit of the deposit of arrears of rent on the first day of hearing in pursuance of the order of the Trial Court dated 14th November, 1967, and of the deposits of future rent thereafter and at all events they were enti tled to make the necessary deposit after the commencement of the Amendment Act 18 of 1987.
In our opinion, the tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inasmuch as on a plain reading of the sub section it is not possible to give it a retrospective operation.
In this connection, it will be useful to notice that while amending sub section (2) of Section 15 of the Act, it was provided by the Amendment Act 18 of 1987 that the provisions which were substituted in the said sub section, shall be deemed to have been substituted on the 1st day of February 1973.
No such provision was made with regard to the substitution of sub section (3) of Sec tion 12 of the Act.
Sub section (3) uses the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix".
If the deposit of arrears of rent on 9th January 1968 is pleaded as compliance of the deposit contemplated by the amended sub section (3) and even if for the sake of argument this plea is accepted, the said deposit would still not confer on the tenants the benefit of sub section (3) for the obvious reason that the said sub section contemplates not only the deposit of standard rent and permitted increases then due but also of simple interest on the amount of arrears of such rent and permitted in creases at the rate of nine per cent per annum.
Such amount of interest was admittedly not deposited by the tenants either on 9th January 1968 or on any date thereafter.
We owe turn to the submission of the learned counsel for the ten ants that the tenants were entitled to make the deposit contemplated by sub section (3) "on the first day of the hearing of the suit or on such other day as the Court may fix" after sub section (3) being substituted by the Amend ment Act 18 of 1987.
This argument ignores the difference between the terms "at the hearing of the suit" as used in Section 114 of the Transfer of Property Act and the term "on the first day of the hearing of the suit".
In the case of former, it may be possible to argue that the deposit can be made at any hearing of the suit either in the Trial Court or the Appellate Court, an appeal being a continuation of the suit but the said argument is not available in the latter case where the words used are "on the first day 393 of the hearing of the suit".
In the very nature of things it is not possible to contemplate numerous dates all of which may fulfil the requirement of being "the first day of the hearing of the suit".
In this connection, it would be useful to notice that the words "on the first day of the hearing of the suit or on or before such other day as the Court may fix" occurring in sub section (3) of Section 12 of the Act after its amendment by the Amendment Act 18 of 1987 occurred in clause (b) of the unamended sub section (3) also.
In S.D. Chagan Lal vs Dalichand Virchand Shroff and Others, [1968] 3 S.C.R. page 346 while dealing with the clauses (a) and (b) of the unamended sub section (3) of the Section 12 of the Act, it was held that the date fixed for settlement of issues was September 3, 1956 which can be taken to be the date of the first hearing of the suit for the purpose of the Act.
The same meaning obviously has to be given to the aforesaid words when they have been repeated in the amended sub section (3) of Section 12 of the Act.
The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal.
The words "on or before such other dates as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in subsection (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit.
A deposit made on or before such extended date would also meet the requirement of the subsection.
Even Section 25 of the Amendment Act 18 of 1987 would be of no assistance in so far as the interpreta tion of Section 12(3) of the Act is concerned.
The said Section provides for certain exceptions in which a suit or proceeding for the eviction of any person may be reopened.
A provision containing exceptions cannot be interpreted so as to enlarge the scope of sub section (3) of Section 12 of the Act.
The said Section 25 may be applicable to sub section (2) of Section 15 as amended by the Amendment Act 18 of 1987, the amendments whereunder were given retrospective effect as indicated earlier or also to a similar provision.
Clause (a) of the unamended sub section (3) of the Section 12 of the Act conferred a substantive right on the landlord to have a decree for eviction in his favour as held by this Court in the case of Ganpat Ladha, (supra) and such a right could be taken away only by a provision which either ex pressly took away that fight or could be interpreted to have taken away that right by necessary inendment We do not find any such indication either in the amended sub section (3) of Section 12 of the Act or even in Section 25 of the Amendment Act 18 of 1987.
By taking recourse to the process of reopen ing of proceedings one cannot put the hands of the clock back and create an artificial 394 date as the "first day of the heating of the suit".
No other point has been urged by learned counsel for the tenants and consequently we find no merit in the appeal filed on behalf of the tenants.
We now turn to the appeal filed by defendant No. 6 to whom the garage was found by the courts below to have been illegally sub let but who has been found to be a trespasser by the High Court.
As seen above, the High Court in its judgment under appeal repelled the claim of defendant No. 6 that he was entitled to the benefit of the amended sub section (2) of Section 15 of the Act on three grounds (i) that he was a trespasser and not a person to whom the garage had been illegally sub let, (ii) that he was not in posses sion on the relevant date namely 1st February, 1973 and (iii) that the said benefit could be extended only in a suit or proceeding under the Act and not in a writ petition which did not constitute a continuation of a suit or proceeding under the Act but was an independent proceeding under the Constitution.
It has been urged by learned counsel for defendant No. 6 that since the finding of the Courts below that the garage had been illegally sub let to the defendant No. 6 was in consonance with the pleading of the landlord in this behalf, the said finding could not be reversed in a. writ petition first, because it was not within the competence of the High Court to reverse that finding either under Article 227 or even under Article 226 of the Constitution and .secondly, that the landlord was bound by his admission in the plead ing.
In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagin das Ramdas vs Dalpatram Ichharam, [1974] 1 SCC page 242 but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission.
The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions.
The scope of this provision did not fall for consideration in the case of Nagain Das (supra).
Reverting to the facts of the instant case it would be seen that there was a triangu lar dispute in this case.
After getting the plaint amended the landlord no doubt set up the case that the tenants had illegally sub let the garage to the defendant No. 6.
The case of the tenants, on the other hand, was that defendant No. 6 was a trespasser and they had never sub let the garage to him.
In so far as the defendant No. 6 is 395 concerned, the plea set up by him was that he came into possession of the garage in pursuance of an agreement en tered into between him and Daulat, son of one of the ten ants, for a period of six months.
As pointed out by the High Court in its judgment under appeal no positive plea of sub tenancy, whether lawful or unlawful was raised by defendant No. 6 in the Trial Court.
It is in this background that the controversy on the question as to whether the garage had been illegally sub let by the tenants to the defendant No. 6 had to be resolved.
First, since the defendant No. 6 himself had disputed the contention of the landlord that the garage had been illegally sub let to him by the tenants and had set up the agreement with Daulat who apparently had no interest whatsoever in the garage apart from being the son of one of the tenants, a finding that the garage had been sub let to the defendant No. 6 illegally could obviously not be given simply on the basis of the case set up by the landlord in this behalf.
Even if defendant No. 6 was permitted to take a somersault and set up a plea contrary to his pleadings, admitting the case of the landlord, any finding given on the basis of such admission would not be binding on the tenants who were contesting the plea of the landlord and had set up a case that defendant No. 6 was a trespasser and that the garage had never been sub let by them to him.
Such a finding as aforesaid vis a vis tenants would be a finding based on the admission of the landlord in his own favour.
To resolve the controversy as between the landlord and the tenants in this behalf, therefore, an independent finding on merits based on evidence and not on the basis of the plea raised by the landlord had to be given.
These are the peculiar facts of this case on account of which the proviso to Section 58 of the Evidence Act was clearly attracted and the parties had to be required to prove their respective cases by adduc ing evidence de hors the admission of the landlord in his plaint.
In so far as the submission made by learned counsel for defendant No. 6 that a finding of fact could not be inter fered with in a writ petition by the High Court is con cerned, by and large no exception can be taken thereto.
The rule in this behalf, however, is not inflexible but has exceptions recognised by judicial decisions which being well known are not necessary to be recapitulated.
For in stance this rule will not apply if a finding is arbitrary or based on no evidence or is such that no one properly in structed in law could have given it the same being in the teeth of some statutory provision or in ignorance of binding precedents.
In our opinion, the instant case is one which falls within the exception to the said rule.
It is true that the landlord by getting his plaint subsequently amended set up the plea that the garage had been illegally sub let by the tenants to defendant No. 6.
It is, 396 however, equally true that the said plea was categorically denied by the tenants and it was specifically asserted by them that they had never sub let the garage to defendant No. 6 and that the defendant No. 6 was a trespasser.
As regards the defendant No. 6 himself he pleaded to have come into possession of the garage for a period of six months on the basis of an agreement entered into between him and Daulat, the son of one of the tenants.
In the life time of his father Daulat could not have the status of a joint tenant and in the eye of law he had no interest in the garage, apart from using it in his capacity as the son of one of the tenants.
He was not in a position either to sub let the garage or even to grant a licence thereof.
As seen above, the High Court has emphasised in its judgment under appeal that no positive plea of sub tenancy, whether lawful or unlawful, was raised by defendant No. 6 in the Trial Court.
That apart, defendant No. 6 in unequivocal terms admitted in his deposition also before the Trial Court that he came in possession by virtue of the agreement with Daulat, the son of defendant No. 1.
He further admitted that he did not know that the defendant Nos. 1 to 5 were the tenants of the flat, store room and garage and that he did not make enquiry as to who were the tenants.
This being the situation there was no scope for even drawing an inference that taking of posses sion of the garage for six months by defendant No. 6 in pursuance of the agreement entered into between him and Daulat may have been with the tacit approval of the tenants namely defendant Nos. 1 to 5.
Nothing has been brought to our notice to indicate that the case of the landlord was that the tenants had sub let the garage to defendant No. 6 in his presence and he had personal knowledge about the transaction of sub letting.
The High Court has also pointed out in paragraph 25 of its judgment under appeal that in support of their plea that defendant No. 6 was a trespasser defendant Nos. 1 to 5 had led evidence and that the lower court had no justification to ignore that evidence.
It was apparently, therefore, a case where no one properly in structed in law could have come to the conclusion that the tenants had illegally sub let the garage to defendant No. 6.
In this state of affairs it cannot obviously be said that the High Court committed any error in holding that defendant No. 6 was a trespasser.
This being so, defendant No. 6 indisputably could not derive any benefit out of the amended subsection (2) of Section 15 of the Act.
The finding of the High Court that defendant No. 6 was not in possession on the relevant date namely 1st February, 1973 was based on the circumstance that on that date admit tedly the garage was in possession of a receiver appointed by the Court and not in possession of defendant No. 6.
It has been urged by learned counsel for defendant 397 No. 6 that possession of the receiver would enure to the benefit of defendant No. 6.
This proposition has been con tested by the learned counsel for the landlord.
We, however, do not find it necessary to go into this question in view of our conclusion that the finding of the High Court that the garage had not illegally been sub let to defendant No. 6 and that the said defendant was a trespasser is unassailable.
Even if the submission of learned counsel for defendant No. 6 in this behalf is accepted the nature of possession of defendant No. 6 on 1st February 1973 would be in no way better than of a trespasser.
For the same reason, we find it unnecessary to go into the correctness or otherwise of the view of the High Court that a writ petition being an inde pendent proceeding was not a proceeding in relation to a suit or proceeding under the Act.
It was lastly urged by learned counsel for defendant No. 6 that after the judgment had been delivered by the High Court on 22 July 1988 dismissing the two writ petitions it was not open to the High Court to reopen and hear the writ petitions on 18 August 1988 and 29 August 1988.
So far as this submission is concerned it may be pointed out that the very first sentence of the order of the High Court dated 18 August 1988 indicates that the judgment had not been deliv ered earlier but had only been dictated and the transcript was ready.
Listing the matter again for further hearing became necessary inasmuch as while dictating the judgment a factual position was noticed that defendant No. 4 had died and there was nothing to show that his heirs had been brought on record.
Learned counsel for the parties appeared on that date and an affidavit was taken on record.
They prayed for time to make submissions on the said question.
The matter was ordered to stand over till 29 August 1988 and in the meantime an affidavit in reply to the affidavit taken on record as aforesaid was permitted to be filed.
Time given to defendant No. 1 to file affidavit in support of the undertaking given by him earlier was also extended to 29 August 1988.
This submission also made by learned counsel for defendant No. 6 has, therefore, no substance.
In view of the foregoing discussion, there is no merit even in the appeal filed by defendant No.6.
In the result, both the appeals fail and are dismissed.
In the circumstances of the case, however, there shall be no order as to costs.
R.N.J. Appeals dismissed.
|
Jamunadas C. Tuliani is the owner and the landlord of the suit premises.
He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates, Control Act, 1947 (hereinafter referred to as the Act) and were consequently liable for eviction under sub section 3(a) of the Act as it then stood.
Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy.
Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No. 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also.
The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting.
The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord.
Two appeals were preferred against the judgment of the Trial Court, one by the tenants and the other by the defend ant No. 6 and both these appeals were dismissed.
Aggrieved by the said decree the tenants and defendant No. 6 filed two writ petitions in the High Court.
Against the common judg ment of the High Court dismissing these writ petitions, the present civil appeals have been preferred.
381 Dismissing both the appeals, the Court, HELD: (i) On a plain reading of clause (a) of sub sec tion (3) of section 12 of the Act as it stood at the rele vant time, the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed.
Clause (b) of sub section (3) of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause (a).
This is amply borne out by the use of the opening words "In any other case" of clause (b).
[387A B] (ii) Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions.
[390B] (iii) In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections (2) and 3(a) of Section 12 of the Act, bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction.
Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held.
In the instant case, the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections (2) and 3(a) of Section 12 of the Act.
[391D; 391H;392A] (iv) The tenants are not entitled even to the benefit of the amended sub section (3) of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation.
[392C ] The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal.
[393C] The words "on or before such other date as the Court may fix" occurring after the words "on the first day of the hearing of the suit" in sub section (3) of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit.
[393D] 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the "first day of the hearing of the suit." [393H; 394A] (v) Interpretation of statutes: "When the Act contains provisions, some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord, the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants.
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose.
It is difficult to countenance the sentimental approach made by learned counsel for the tenants, for the simple reason that as pointed out in Latham vs R. Johnson and Nephew Ltd., (408) sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles." [389B D] Harbanslal Jagmohandas and Anr.
vs Prabhudas Sivlal, [1977] 1 SCC page 576; Jaywant section Kulkarni & Ors.
vs Mino char Dosabhai Shroff & Ors., [1988] 4 SCC P. 108; Ganpat Ram Sharma & Ors.
vs Gayatri Devi, [1987] 3 SCC P. 576; Ganpat Ladha vs Sashikant Vishnu Shinde, [1978] 2 S.C.C.P. 573; Latham vs R. Johnson & Newhew Ltd., (408); Vatan Mal vs Kailash Nath, [1989] 3 S.C.C.P. 79; B.P. Khemda Pvt. Ltd. vs Birendra Kumar Bhowmick & Anr., [1987] 2 S.C.R.P. 559; Smt.
Kamala Devi Budhia & Ors.
vs Hem Prabha Ganguli & Ors., [1989] 3 S.C.C.P. 145; Praduman Kumar vs Virendra Goyal (Dead) by L.Rs., [1969] 3 S.C.R.P. 950; S.D. Chagan Lal vs Dalichand Virchand Shroff & Ors., [1968] 3 S.C.R.P. 346 and Nagindas Ramdas vs Dalpatram Ichharam, [1974] 1 S.C.C.P. 242, referred to.
|
Civil Appeal Nos.
4291 4292 of 1984 etc.
From the Judgment and Order dated 18.4.1984 of the Madras High Court in W.A. Nos.
561 and 562 of 1983.
K.N. Bhatt, V.C. Mahajan, Ms. R. Vegai, Mr. N.G.R. Prasad, C.S. Vaidyanathan, Ravinder Bhatt, K.V. Mohan, S.R. Setia, Raj Birbal, Ambrish Kumar, R.P. Kapoor, Vijay Kumar Verma, G.N. Rao, K. Ram Kumar, M.A. Firoz, P.K. Pillai, C.V. Subba Rao, M. Satyanarain Rao and G. Narasihamalu for the appearing parties.
The Judgment of the Court was delivered by OJHA, J.
These appeals raise an identical question and are as such being decided by a common judgment.
Before coming to the question involved in these appeals it would be necessary to give in brief the facts of each of these cases to indicate the circumstances in which the said question arises.
Civil Appeal Nos.
4291 4292 of 1984 have been preferred against the judgment dated 18th April, 1984 of the Madras High Court in Writ Appeal Nos.
561 and 562 of 1983.
C.V. Raman, the appellant in these two appeals was an employee in the Bank of India which is a Nationalised Bank.
He was dismissed from service in pursuance of disciplinary action for certain charges framed against him.
Aggrieved, he preferred an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (hereinafter referred to as the Tamil Nadu Shops Act).
A preliminary objection was raised on behalf of the Bank of India to the effect that the Tamil 668 Nadu Shops Act was not applicable to the Bank in view of the provisions contained in Section 4(1)(c) thereof which exempted inter alia an establishment under the Central Government from the purview of that Act.
The Appellate Authority, however, took the view that it was a case where the preliminary objection may be decided along with the appeal.
The Bank of India thereupon filed two writ petitions in the High Court being Writ Petition Nos.
2013 and 2014 of 1979.
The prayer contained in Writ Petition No. 2013 of 1979 was for the issue of a writ of mandamus directing the Appellate Authority to dispose of the preliminary objection before taking up the appeal for hearing on merits.
In Writ Petition No. 2014 of 1979 on the other hand a prayer was made for the issue of a writ of prohibition directing the Appellate Authority not to proceed with the appeal.
Both these writ petitions were allowed by a learned Single Judge of the Madras High Court accepting the plea raised by the Bank of India that it was an establishment under the Central Government and consequently the provisions of the Tamil Nadu Shops Act were not applicable to it in view of the exemption contained in this behalf in Section 4(1)(c).
The two writ appeals referred to above were filed by the appellant against the decision in the aforesaid writ petitions which, however, were dismissed by a Division Bench of the High Court by the judgment which is under appeal in these two civil appeals.
By the same judgment a Division Bench of the High Court also dismissed Writ Petition No. 1550 of 1981.
The petitioners of the said writ petition who were employees of the State Bank of India made an application under Section 51 of the Tamil Nadu Shops Act before the Commissioner of Labour with a request to hold that all the provisions of that Act would apply to them as persons employed in the State Bank of India.
A preliminary objection was raised on behalf of the State Bank of India that it was an establishment under the Central Government within the meaning of Section 4(1)(c) of the Tamil Nadu Shops Act and consequently the provisions of that Act were not applicable to it.
The Commissioner of Labour, however, rejected the plea of the State Bank of India and held that the provisions of the Act were applicable to it.
It is this order of the Commissioner of Labour which was sought to be quashed by a writ of certiorari in Writ Petition No. 1550 of 1981.
On the view that the State Bank of India was also an establishment under the Central Government the writ petition was allowed.
Civil Appeal No. 4329 of 1984 has been preferred against the said judgment by the State Bank 's Staff Union whereas Civil Appeal No. 4735 of 1984 has been preferred by the employees concerned.
Civil Appeal No. 1120 of 1976 has been preferred against the 669 judgment of the Andhra Pradesh High Court dated 3rd February, 1976 in Writ Appeal No. 268 of 1975 upholding the order of a learned Single Judge dated 14th November, 1974 in Writ Petition No. 5973 of 1973.
section Rama Moorthy who is Respondent No. 3 in this appeal was an employee of the appellant, Syndicate Bank which is a Nationalised Bank.
His services were terminated and an appeal was preferred by Respondent No. 3 before the Labour Officer under the Andhra Pradesh Shops and Establishment Act, 1966 (hereinafter referred to as the Andhra Pradesh Shops Act).
The Labour officer allowed the said appeal which was confirmed in a second appeal by the Labour Court.
Aggrieved by these orders the appellant Bank filed writ petition No. 5973 or 1973 for quashing of these orders.
One of the pleas raised in the writ petition by the appellant was that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act the provisions of that Act including the provisions of appeal were not applicable to it in view of the exemption contained in this behalf and consequently the orders passed in the appeals by the Labour officer and the Labour Court were without jurisdiction.
This plea, however, did not find favour with the learned Single Judge who decided the writ petition and the writ petition was consequently dismissed.
The Writ Appeal No. 268 of 1975 preferred by the appellant Bank against that judgment was dismissed by a Division Bench of the High Court by the judgment which is the subject matter of this civil appeal.
Civil Appeal No. 1042 of 1979 has been preferred against the judgment of the Andhra Pradesh High Court dated 24th January, 1979 in Writ Petition No. 86 of 1979.
N. Satyanarayan Murthy who is Respondent No. 3 in this appeal was an employee of the appellant Syndicate Bank which is a Nationalised bank and was dismissed after being found guilty of certain changes in disciplinary proceedings initiated against him.
He preferred an appeal which was allowed.
The Bank preferred a second appeal before the Labour Court which was dismissed.
Thereafter the appellant Bank filed the aforesaid Writ Petition No. 86 of 1979 before the High Court and urged that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act the provisions of that Act were not applicable to it in view of the exemption contained in this behalf.
Relying on the judgment in Writ Appeal No. 268 of 1975 which is the subject matter of Civil Appeal No. 1120 of 1976 this writ petition was dismissed by the judgment which is under appeal in this civil appeal.
670 Civil Appeal No. 837 of 1984 has been preferred against the judgment dated 8.4.1981 of the Kerala High Court in a writ petition being original Petition No. 1419 of 1978.
P.A. Stalin, Respondent No. 1 in this appeal who was an employee of the Bank of India, a Nationalised Bank, preferred an appeal under Section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (hereinafter referred to as the Kerala Shops Act) against an order passed by the Bank discharging him from service after conducting a domestic inquiry.
A preliminary objection was raised by the appellant Bank with regard to the maintainability of the appeal on the ground that it being an establishment under the Central Government within the meaning of Section 3(1)(c) of that Act, the provisions thereof including Section 18 under which the appeal had been preferred were not applicable to it.
This objection was, however, overruled by the Appellate Authority and original Petition No. 1419 of 1978 was filed by the Bank in the High Court challenging the order of the Appellate Authority.
The High Court did not agree with the contention of the appellant Bank and dismissed the original Petition aforesaid by its judgment dated 8.4.1981 and it is this judgment which is under appeal, as seen above, in this civil appeal.
The common question which arises for consideration in all these appeals is as to whether the Nationalised Banks and the State Bank of India are establishments under the Central Government within the meaning of the Acts referred to above and consequently the provisions of the said Acts are not applicable to these Banks in view of the exemption contained in this behalf therein.
In view of the definition of the term "establishment" read with that of "commercial establishment" contained in the Acts referred to above it has not been disputed even by the learned counsel for the various banks that a bank is an establishment.
Consequently unless exempted the provisions of the said Acts shall apply to the State Bank of India and the nationalised banks also.
Tamil Nadu Shops Act which is of the year 1947 and which really seems to be the precursor and foundation of the Kerala Shops Act and the Andhra Pradesh Shops Act which are of the years 1960 and 1966 respectively contains exemptions in Section 4.
Sub section (1) of Section 4 starts with the words "Nothing contained in this Act shall apply to ".
Thereafter it contains clauses (a) to (f) which describe the persons and establishments who are exempted from the operation of the Act.
Clauses (c) and (f) read as hereunder: 671 "(c) establishments under the Central and State Governments, local authorities, the Reserve Bank of India, a railway administration operating any railway as defined in clause (20) of Article 366 of the Constitution and cantonment authorities; (f) establishments which, not being factories within the meaning of the , are, in respect of matters dealt with in this Act, governed by a separate law for the time being in force in the State.
" What has to be considered is as to whether the State Bank of India and the nationalised banks can be said to be establishments under the Central Government as contemplated by clause (c) aforesaid.
What does the word "under" in the said clause mean in the context in which it appears? That is the crucial question which arises for consideration in these cases.
The said word 'under ' not having been defined in the concerned Acts, recourse may be had to its dictionary meanings.
Some of them are as follows: "In or into a condition of subjugation, regulation or subordination. " (Webster 's Third New International) "Subordinate or lower rank or position".
"In senses denoting subordination or subjugation, with abstract or other subject, denoting the authority or control, direction, case, examination restraint, etc." "In or into a position or state of subjugation or submission." (Shorter oxford English Dictionary) "Subordinate subjected to." (The Compact Edition of the oxford Dictionary) "Subject to the authority, rule, control of" "subject to the supervision instruction or influence of" (The Grolier International Dictionary) "In a position of inferiority or subordination to, subject to the rule, government, direction guidance, instruction, or influence of, as, he is under my care, I served under his father " 672 "In a state of liability, obligation." "Lower in authority, position,, power etc., subordinate." "held in control or restraint, used predicatively." (Webster 's Dictionary of the English Language Encyclopaedia) "The term sometimes used in its literal sense of 'below in position ' but more frequently in its secondary meaning of 'inferior ' or subordinate." (Boviar 's Law Dictionary) "Inferior, subordinate of lower rank or position (10) Denoting subordination to; or control by, a person or persons having or exercising, recognising authority or command." "with abstract or other subs.
denoting authority or control, with or without specification of the person or persons exercising it." (The Compact Edition of the oxford English Dictionary) "Under has the same significance as 'by virtue of ' by or through the authority of" (In Venkataramiya 's Law Lixicon) "The word "under" may be used in statute in its literal sense as indicating condition of inferiority or subservience or as meaning subject to or in conformity with, denoting curtailment or restriction of, but nevertheless agreement or congruity with, something else to which it is made applicable.
Alsop vs pierce, , 802, and Phrases Permanent Edition) We may now advert to the composition and constitution of the State Bank of India and the nationalised banks.
The preamble of the (hereinafter referred to as Act No. 23 of 1955) reads as under: "Whereas for the extension of banking facilities on a large scale, more particularly in the rural and semi urban areas, and for diverse other public purposes it is expedient to constitute a State Bank for India, and to transfer to it the 673 undertaking of the Imperial Bank of India and to provide for other matters connected therewith or incidental thereto." Section 3 provides that a bank to be called the State Bank of India shall be constituted to carry on the business of a banking and other business in accordance with the provisions of the Act and for the purpose of taking over the undertaking of the Imperial Bank.
It further provides that the Reserve Bank together with such other persons as may from time to time become shareholders in the State Bank in accordance with the provisions of this Act, shall, so long as they are shareholders in the State Bank, constitute a body corporate with perpetual succession and a common seal under the name of the State Bank of India and shall sue and be sued in that name.
It shall have power to acquire and hold property, whether movable or immovable for the purposes for which it is constituted to dispose of the same.
According to Section 4 the authorised capital of the State bank is to be twenty crores of rupees divided into twenty lakhs of fully paid up shares of one hundred rupees each.
The Central Government, however has been given the power to increase or reduce the authorised capital as it thinks fit so, however that the shares in all the cases shall be fully paid up shares of one hundred rupees each.
Likewise the Central Government under Section 5(2) has been given the power from time to time to increase issued capital in the manner stated therein.
Sub section (3) contemplates that no increase in the issued capital beyond twelve crores and fifty lakhs of rupees shall be made without the previous sanction of Central Government.
Section 6 contemplates that all shares in the capital of the Imperial Bank shall be transferred to and shall vest in the Reserve Bank free of all trusts, liabilities and encumbrances and the undertaking of the Imperial Bank shall be transferred to and shall vest in the State bank subject to the other conditions laid down therein.
Under sub section (2) of Section 7 the power to determine as to whether persons mentioned therein have observed the conditions contemplated by the said sub section has been given to the Central Government and its decision has been made final.
Sub section (3) of Section 7 contemplates that the appointment, promotion or increment contemplated by the said sub section as have been confirmed by the Central Government shall have effect or be payable or claimable.
Likewise, the continued grant of the pension, allowance or other benefit, as the case may be, has been made subject to the direction of the Central Government in this behalf.
Section 8 contemplates that for the persons who immediately before the appointed day were the trustees of the funds mentioned therein, there shall be substituted as trustees such persons 674 as the Central Government may by general or special order specify.
Sub section (1) of Section 16 contemplates that the Central office of the State Bank shall be at Bombay.
The Central Government, however, has been conferred with the power to provide otherwise by Notification in the official Gazette.
Sub section (5) of Section 16 provides that notwithstanding anything contained in sub section (4) the State Bank shall establish not less than four hundred branches in addition to the branches referred to in sub section (3) within five years of the appointed day, or such extended period as the Central Government may specify in this behalf and the places where such additional branches are to be established shall be determined in accordance with any such programme as may be drawn up by the Central Government from time to time in consultation with the Reserve bank and the State Bank.
Even though in view of Section 17 the general superintendence and direction of the affairs and business of the State Bank have been entrusted to the Central Board, Section 18 contemplates that in the discharge of its functions the State Bank shall be guided by such directions in matters of policy involving public interest as the Central Government may in consultation with the Governor of the Reserve Bank and the Chairman of the State Bank, give to it and that if any question arises whether the direction relates to a matter of policy involving public interest, the decision of the Central Government thereon is to be final.
Section 19 deals with the composition of the Central Board.
Clauses (a), (b), (c), (ca), (cb) and (e) of sub section (1), sub sections (1A), (2) and (3A) indicate that the Central Government has been given extensive power in the matter of composition of the Central Board.
Section 45 provides that no provision of law relating to the winding up of companies shall apply to the State Bank and the State Bank shall not be placed in liquidation save by order of the Central Government and in such manner as it may direct.
This Section, therefore, entitles the Central Government even to liquidate the State Bank.
Section 49 confers power on the Central Government in consultation with the Reserve Bank to make rules to provide for all matters mentioned therein.
The power given under section 50 to the Central Board to make regulations has been made subject to the previous sanction of the Central Government.
These provisions indicate that the Central Government has a deep and pervasive control over the State Bank of India.
Almost similar is the position with regard to the nationalised banks also.
The (hereinafter referred to as Act No. 5 of 1970) was enacted to provide for acquisition and transfer of the undertakings 675 of certain banking companies having regard to their size, resources, coverage and organisation, in order to control the heights of the economy and to meet progressively and serve better the needs of development of the economy in conformity with national policy and objectives and for matters connected therewith or incidental thereto.
Clauses (d) and (f) of Section 2 of this Act define "corresponding new banks" and "existing banks".
First Schedule to the Act in column 1 enumerates the names of the existing banks whereas in column 2 the names of the corresponding new banks.
Sections 3 and 4 indicate that the corresponding new banks which are constituted on the commencement of this Act have taken over the undertakings of the concerned existing banks.
Section 6 contemplates that every existing bank shall be given by the Central Government such compensation in respect of transfer under Section 4 to the corresponding new banks of the undertakings of the existing banks as is specified against each such bank in the Second Schedule.
Section 7 provides that the Head officer of each corresponding new bank shall be at such place as the Central Government may by Notification in the official Gazette specify in this behalf.
The general superintendence, direction and management of the affairs and business of a corresponding new bank are to vest in a Board of Directors and it is the Central Journeymen which in consultation with the Reserve Bank has been given the power under sub section (3) to constitute the first Board of Directors consisting of not more than seven persons to be appointed by the Central Journeymen.
The proviso to the said sub section authorises the Central Government if it is of opinion that it is necessary in the interests of the corresponding new bank so to do to remove a person from the membership of the first Board of Directors and appoint any other person.
in his place.
The proviso to sub section (5) to Section 7 contemplates that the Central Journeymen may if the Chairman of an existing bank declines to become or to continue the function as a Custodian of the corresponding new bank or it is of opinion that it is necessary in the interests of the corresponding new bank, so to do, appoint any other person as the Custodian of a corresponding new bank and the Custodian so appointed shall receive such emoluments as the Central Journeymen may specify in this behalf.
According to sub section (6) thereof the Custodian is to hold office during the pleasure of the Central Journeymen.
Section 8 on the other hand contemplates that every corresponding new bank shall in the discharge of its functions be guided by such directions in regard to matters of policy involving public interest as the Central Government may after consultation with the Governor of the Reserve Bank give.
Sub section (1) of Section 9 of this Act confers power on the Central Journeymen to make a scheme for carry 676 ing out the provisions of this Act after consultation with the Reserve Bank.
Sub section (2) of Section 9 provides that in particular and without prejudice to the generality of the power contained in sub section (1) of the scheme may provide for the capital structure of the corresponding new bank, the constitution of the Board of Directors by whatever name called of the corresponding new bank and all such matters in connection therewith or incidental thereto as the Central Government may consider to be necessary or expedient, the reconstitution of any corresponding new bank into two or more corporations, the amalgamation of any corresponding new bank with any other corresponding new bank or with another banking institution, the transfer of the whole or any part of the undertaking of a corresponding new bank to any other banking institution or the transfer of the whole or any part of the undertaking of any other banking institution to a corresponding new bank and such incidental, consequential and supplemental matters as may be necessary to carry out the provisions of this Act.
Sub section (4) entitles the Central Government in consultation with the Reserve Bank to make a scheme to amend or vary any scheme made under sub section (1).
Sub section (5) inter alia contemplates that the scheme so prepared by the Central Government shall be binding on the corresponding new banks or corporation or banking institutions and also on all other persons mentioned therein.
Section 10 deals with closure of accounts and disposal of profits.
Sub section (2) thereof contemplates that the remuneration payable to every auditor of a corresponding new bank shall be such as the Reserve Bank may fix in consultation with the Central Government.
Under subsection (4) every auditor of a corresponding new bank has to make a report to the Central Government upon the annual balance sheet and accounts and such report shall contain what is provided for in clauses (a) to (e).
Sub section (7) contemplates that after making provision for monies specified therein a corresponding new bank shall transfer the balance of profits to the Central Government.
Sub section (7A) makes it obligatory on every corresponding new bank to furnish to the Central Government the annual balance sheet, the profit and loss account and the auditor 's report and a report by its Board of Directors on the working and activities of the bank during the period covered by the accounts.
In view of sub section (8) the Central Government shall cause every auditor 's report and report on the working and activities of each corresponding new bank to be laid before each House of Parliament.
Sub section (9) without prejudice to the provisions contained earlier authorises the Central Government, at any time, to appoint such number of auditors as it thinks fit to examine and report on the accounts of a corresponding new bank.
Sub section (3) of Section 12 677 contemplates that for the persons who immediately before the commencement of this Act were the trustees for any pension, provident, gratuity or other life fund constituted for the officers or other employees of an existing bank there shall be substituted as trustees such persons as the Central Government may by general or special order specify.
Section 18 of this Act is in pari materia with Section 45 of the .
It provides that no provision of law relating to winding up of corporations shall apply to a corresponding new bank and no corresponding new bank shall be placed in liquidation save by order of the Central Government and in such manner as it may direct.
A nationalised bank also can, therefore, like the State Bank of India, be liquidated by the Central Government.
Under Section 19 the power of the Board of Directors of a corresponding new bank to make regulations is subject to obtaining the previous sanction of the Central Government.
A conspectus of the provisions of Act No. 23 of 1955 and Act No. 5 of 1970 read with the meanings of the term "under" referred to above leaves no manner of doubt that the State Bank of India and the nationalised banks are clearly establishments under the Central Government For the employees of these banks it was urged by their learned counsel that these banks are autonomous corporations having distinct juristic entity with a corporate structure of their own and cannot as such be treated to be owned by the Central Government.
According to learned counsel the word "under" used in the expression "under the Central Government" connotes complete control in the sense of being owned by the Central Government.
We find it difficult to agree with this submission.
We shall shortly deal with the legal position with regard to an autonomous corporation having distinct juristic entity with a corporate structure.
Suffice it to say at this place that to uphold the submission of learned counsel for the employees the word "under" will have to be substituted by the word "of" in the relevant subsection.
It is obvious that the word "under" 'cannot be taken to have the same meaning as word "of" which may bring in the notion of ownership.
Had that been the intention of the Legislature we find no cogent reason as to why the word "of" was not used in place of the word "under" in the relevant sub section.
Indeed the concept of "under" can be relevant only when there are two entities one of which may be under the other.
A department of the Government strictly speaking is a part of the Government and can only loosely be termed as under the Government.
Consequently the mere fact that the State 678 Bank of India and the nationalised banks are different entities as corporate bodies for certain purposes cannot by itself be a circumstance from which it may be deduced that they cannot be establishments under the Central Government.
Some of the cases on which reliance was placed by the High Court of Madras in taking the view that these banks were establishments under the Central Government had been rendered with reference to Article 12 of the Constitution.
It was urged by learned counsel for the employees that since Article 12 of the Constitution defining the term "State" so as to include authorities under the control of the Government of India occurs in Part III of the Constitution dealing with fundamental rights, the decisions in the cases dealing with Article 12 could not be made the basis for the decision that the State Bank of India and the nationalised banks were establishments under the Central Government within the meaning of the Acts referred to above with regard to shops and commercial establishments.
Even though that be so, it cannot be gainsaid that the salient principles which have been laid down in those cases with regard to the authorities having a corporate structure and exercising autonomy in certain spheres will certainly be useful for determining as to whether the State Bank of India and the nationalised banks are establishments under the Central Government.
Ajay Hasia etc.
vs Khalid Mujib Sehravardi & Ors.
, [1981] 2 S.C.R. Page 79 is a decision of a Constitution Bench of this Court.
The question which came up for consideration in that case was whether Jammu and Kashmir Regional Engineering College, Srinagar registered as a society under the Jammu and Kashmir Registration of Societies Act, 1898 was a "State" under Article 12 of the Constitution and as such amenable to writ jurisdiction.
It was held: "But as the tasks of the Government multiplied with the advent of the welfare State, it began to be increasingly felt that the framework of civil service was not sufficient to handle the new tasks which were often specialised and highly technical in character and which called for flexibility of approach and quick decision making.
The inadequacy of the civil service to deal with these new problems came to be realised and it became necessary to forge a new instrumentality or administrative device for handling these new problems.
It was in these circumstances and with a view to supplying this administrative need that the corporation came into being as the third arm of the Government and over the years it has been increasingly utilised by the Government for setting up and running public enterprises 679 and carrying out other public functions.
Today with increasing assumption by the government of commercial ventures and economic projects, the corporation has become an effective legal contrivance in the hands of the Government for carrying out its activities, for it is found that this legal facility of corporate instrument provides considerable flexibility and elasticity and facilitates proper and efficient management with professional skills and on business principles and it is blissfully free from "departmental rigidity, slow motion procedure and hierarchy of officers".
The government in many of its commercial ventures and public enterprises is resorting to more and more frequently to this resourceful legal contrivance of a corporation because it has many practical advantages and at the same time does not involve the slightest diminution in its ownership and control of the undertaking.
In such cases "the true owner is the State, the real operator is the State and the effective controllorate is the State and accountability for its actions to the community and to Parliament is of the State".
It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles with a certain amount off autonomy which is necessary as well as useful from the point of view of effective business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government.
It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliberate the true nature of the reality behind which is the Government." (Emphasis supplied) If the criteria laid down above is applied to the facts of the instant cases it is obvious that even though the State Bank of India and the nationalised banks may not be owned as such by the Central Government and its employees may not be the employees of the Central Government they certainly will fall within the purview of the expression "under the Central Government", in view of the existence of deep and pervasive control of the Central Government over these banks.
680 Learned counsel for the employees placed reliance on the decision of this Court in Heavy Engineering Mazdoor Union vs The State of Bihar & Ors., [1969] 3 S.C.R. Page 995 where at page 998 it was held that the words "under the authority of" mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master and that the same obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association and which has a separate existence recognised as a juristic person.
In our opinion that decision is clearly distinguishable.
The question which came up for consideration in that case was whether an industry carried on by a company incorporated under the Companies Act was an industry carried on "under the authority of" the Central Government so that the Central Government may be the appropriate Government for making a reference under the .
In the instant cases we are not concerned with the question as to whether the various banks referred to above are carried on "under the authority of" the Central Government.
The question, as seen above, which falls in these cases for consideration is whether in view of the existence of deep and pervasive control of the Central Government over these banks they are establishments under the Central Government for purposes of the Acts aforesaid dealing with Shops and Commercial Establishments.
Reliance was also placed by learned counsel on Hindustan Aeronautics Ltd. vs The Workmen and Ors.
, ; where again in the context of the the same view was taken relying on the earlier decision in the case of Heavy Engineering Mazdoor Union (supra).
In this connection it may be noticed that even in the case of Heavy Engineering Mazdoor Union (supra) it was observed that the question whether a corporation is an agent of the State would depend upon the facts of each case.
After referring to the decision in Graham vs Public Works Commissioner, it was observed that where a State setting up a corporation so provided such a corporation could be easily identified as the agent of the State.
This distinction was noticed in a subsequent decision of this Court in Regional Provident Fund Commissioner, Karnataka vs Workmen represented by the General Secretary, Karnataka, [1984] II L.L.J. Page 503 Provident Fund Employees ' Union and Another.
Reliance was then placed by learned counsel for the employees on the following observations in the case of Western Coalfields Ltd. vs Special Area Development Authority, Korba and Anr., [1982] 2 S.C.R. Page 1: 681 "The third contention of the Attorney General flows from the provisions of article 285(1) of the Constitution which says that the property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State.
Section 127A(2) of the Madhya Pradesh Municipalities Act and Section 136 of the Madhya Pradesh Municipal Corporation Act also provide that the property tax shall not be leviable, inter alia, on "buildings and lands owned by or vesting in the Union Government".
Relying on these provisions, it is contended by the Attorney General that since the appellant companies are wholly owned by the Government of India, the lands and buildings owned by the companies cannot be subjected to property tax.
The short answer to this contention is that even though the entire share capital of the appellant companies has been subscribed by the Government of India, it cannot be predicated that the companies themselves are owned by the Government of India.
The companies, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India.
The lands and buildings are vested in and owned by the companies; the Government of India only owns the share capital.
" In our opinion this decision too is hardly of any assistance inasmuch as in the instant cases the Banks are not asserting that they are owned by the Central Government.
The other case on which the learned counsel for the employees relied on is Rashtriya Mill Mazdoor Sangh, Nagpur vs The Modal Mills, Nagpur and another, [1985] 1 S.C.R. Page 751.
That case again is distinguishable.
The question which came up for consideration in that case was with regard to the consequence that ensued on the issue of a notified order appointing authorised Controller under Section 18A of the Industries (Development & Regulation) Act, 1951.
It was pointed out that the consequence of such a notified order being issued is to divert the management from the present managers and to vest it in the authorised Controller.
It could not be said that on the issue of such an order the industrial undertaking is engaged in the industry carried on under the authority of the department of the Central Government inasmuch as the expression "under the authority of any department of the Central Government" in ordinary parlance means that the department is directly responsible for the management of the industrial undertaking.
It was further pointed out that the power to regulate the management or control the management is entirely 682 distinguishable from the power to run the industry under the authority of the department of the Central Government.
As seen above, no such question arises in the instant cases while determining the point as to whether the banks referred to above are establishments under the Central Government.
Union of India and others vs N. Hargopal and others, [1987] 1 L.L.J. Page 545 on which reliance was next placed was a case where the question arose as to whether establishments in public sector were covered by the provisions of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959.
In the context of certain executive instructions issued by the Government of India it was held that while the Government was at perfect liberty to issue instructions to its own departments and organisations provided the instructions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authority of a statute.
This decision also obviously is of no assistance in deciding the point which has been raised in the instant cases.
Learned counsel for the employees also referred to the decision of this Court in Thote Bhaskara Rao vs The A.P. Public Service Commission and others, Judgment Today 1987 (4) S.C.C. Page 464 where it was held that employees in Hindustan Shipyard which was a Government owned undertaking could not be equated with the employees of the Government.
Since in the instant cases the employees of the State Bank of India or the nationalised banks are not asked to be treated as employees of the Central Government this decision too is of no assistance.
As pointed out by this Court in Bihari Lal Dobray vs Roshan Lal Dobray ; the true test of determination of the question whether a statutory corporation is independent of the Government depends upon the degree of control.
In this view of the matter we are of opinion that no exception can be taken to the view of the Madras High Court in its judgments which are the subject matter of Civil Appeal Nos. 4291 4292 of 1984, 4735 of 1984 and 4329 of 1984.
As regards the judgment of the Full Bench of the Kerala High Court which is the subject matteer of Civil Appeal No. 837 of 1984 and the judgments of the Andhra Pradesh High Court which are the subject matter of Civil Appeal Nos.
1042 of 1979 and 1120 of 1976 it may be pointed out that what has weighed with the learned Judges who decided these cases is: (1) that the decisions dealing with the term "other authorities" within the meaning of Article 12 of the Constitution were not of much assistance; 683 (2) that the Central Government exercises control over the nationalised banks only to a limited extent and that there was nothing to enable such banks to identify with the Central Government particularly when as a legal person these banks have got a right to hold and acquire property and have almost full freedom in the matter of day to dayadministration (3) Even though in the relevant clause containing exemption the Reserve Bank of India had been mentioned there was no such mention with regard to nationalised banks.
As regards the first reason referred to above we have already pointed out that even if the decisions dealing with Article 12 of the Constitution are not made the foundation for deciding the point in issue, the principles enumerated therein referred to above particularly with regard to deep and pervasive control are relevant for deciding the point in issue.
As regards the second reason referred to above suffice it to point out that for holding that the State Bank of India and the nationalised banks are establishments under the Central Government which have a corporate structure and have freedom in the matter of day to day administration it is not necessary that these banks should be owned by the Central Government or be under its absolute control in the sense of a department of the Government.
With regard to the last reason namely the circumstance that even though Reserve Bank of India is mentioned specifically in the relevant clause containing exemption neither State Bank of India nor the nationalised banks are so mentioned, it may be pointed out that the Reserve Bank of India was established as Shareholders ' Bank under Act 2 of 1934.
As seen above, the Kerala Shops Act and the Andhra Pradesh Shops Act which are of the years 1960 and 1966 respectively were modelled almost on the pattern of the Tamil Nadu Shops Act which is of the year 1947.
When Section 4(1)(c) of this Act referred to the Reserve bank of India in 1947 it obviously referred to it as Shareholders ' Bank.
The Reserve Bank Transfer to Public Ownership Act (Act 82 of 1948) came into force on 1st January, 1949 and it was thereafter that the shares in the capital of the Reserve Bank came to belong to the Central Government.
In this background no undue emphasis can be placed on the circumstance that the State Bank of India or the nationalised banks did not find mention in the provision containing exemption even though Reserve Bank of India was specifically mentioned therein.
For the reasons stated above the aforesaid decisions of the Kerala High Court and the Andhra Pradesh High Court deserve to be set aside.
684 On the view which we have taken namely that the State Bank of India and the nationalised banks are establishments under the Central Government we do not find it necessary to consider the question as to whether these banks are establishments which not being factories within the meaning of the are, in respect of matters dealt with in the Tamil Nadu Shops Act governed by a separate law far the time being in force in the State so as to be entitled to claim exemption under clause (f) of sub section (1) of Section 4 of the said Act or of the corresponding provisions in the Kerala Shops Act and the Andhra Pradesh Shops Act.
In the result, Civil Appeal Nos.
4291 4292 of 1984, 4329 of 1984 and 4735 of 1984 are dismissed.
Civil Appeal No. 1120 of 1976 is allowed and the judgment of the Division Bench of the High Court dated 3rd February, 1976 in Writ Appeal No. 268 of 1975 as also the judgment of the learned Single Judge dated 14th November, 1974 in Writ Petition No. 5973 of 1973 as well as the orders of the Labour Officer in the appeal filed by Respondent No. 3 and of the Second Appellate Authority in the second appeal filed by the appellant bank under the provisions of the Andhra Pradesh Shops Act are set aside.
Civil Appeal No. 1042 of 1979 is also allowed and the judgment of the Andhra Pradesh High Court dated 24th January, 1979 in Writ Petition No. 86 of 1979 as also orders passed by the first and second appellate authorities in the apeals preferred by Respondent No. 3 and the bank respectively under the Andhra Pradesh Shops Act are set aside.
Civil Appeal No. 837 of 1984 is also allowed and the judgment of Kerala High Court in Writ Petition No. 1419 of 1978 is set aside.
The preliminary objection raised on behalf of the bank before the Appellate Authority in the appeal filed by Respondent No. 1 under Section 18 of the Kerala Shops Act to the effect that the said appeal was not maintainable is upheld.
With the result that if the said appeal is still pending it shall be disposed of as not maintainable and in case it has been decided the said decision shall be treated as without jurisdiction.
The various employees whose appeals preferred under the Kerala Shops Act or the Andhra Pradesh Shops Act preferred to above have been hold to be not maintainable and the orders passed therein have been set aside shall be at liberty to take recourse to such other remedies as may be available to them in law.
In the circumstances of the case, however, there shall be no order as to costs in any of these appeals.
S.L. Civil Appeal Nos.
4291 4292,4329 & 4735/84 dismissed and C.A. Nos.
1120/76, 1042/79 & 837/84 allowed.
|
These appeals raised an identical question.
Civil Appeals Nos 4291 and 4292 of 1984 were preferred against the judgment of the Madras High Court in Writ Appeals Nos.
561 and 562 of 1983.
The appellant in these two appeals, an employee in the Bank of India, which is a Nationalised Bank, was dismissed.
Aggrieved, he preferred an appeal under section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 (the Tamil Nadu Shops Act).
A preliminary objection was raised by the Bank to the effect that the Tamil Nadu Shops Act was not applicable to the Bank in view of the exemption contained in Section 4(1)(c) thereof.
The Appellate Authority held that the preliminary objection might be decided along with the appeal.
The bank thereupon filed two writ petitions in the High Court, one for a direction to the Appellate Authority to dispose of the preliminary objection before disposing of the appeal on merits, and the other, for a direction to the Appellate Authority not to proceed with the appeal.
Both the Writ Petitions were allowed by a Single Judge of the High Court on the ground that the Bank was an establishment under the Central Government and consequently the provisions of the Tamil Nadu Shops Act were not applicable to it in view of the exemption contained in this behalf in section 4(1)(c).
Against that decision, two writ appeals aforementioned were filed, which were dismissed by a Division Bench of the High Court by the Judgment under appeal in these two appeals.
The same judgment of the High Court had disposed of Writ Petition No. 1550 of 1981 also, which had arisen out of an application under section 51 of the Tamil Nadu Shops Act made by the employees of the State Bank of India before the Commissioner of Labour for a direction that all the provisions of that Act would apply to them, being employed in the State Bank.
The State Rank had contended that it was an establishment under the Central 663 Government within the meaning of Section 4(1)(c) of the Tamil Nadu Shops Act and consequently the provisions of that Act were not applicable to it.
The Commissioner of labour had rejected the plea of the State Bank and held that the provisions of the Act were applicable to it.
Civil Appeal No. 4329 of 1984 was preferred against the said Judgment by the State Bank 's Staff Union and Civil Appeal No. 4735 of 1984 was preferred by the employees concerned.
Civil Appeal No. 1120 of 1976 was preferred by Syndicate Bank, a Nationalised Bank, against the judgment of the Andhra Pradesh High Court (Division Bench), dismissing the Writ Appeal No. 268 of 1975 and upholding the order of a Single Judge dismissing the Writ Petition No. 5973 of 1973 filed by the appellant Syndicate Bank.
The services of Respondent No. 3 in the appeal had been terminated by the appellant Syndicate Bank.
An appeal was preferred by the said respondent before the Labour officer under the Andhra Pradesh Shops and Establishment Act, 1966 (the Andhra Pradesh Shops Act).
The Labour officer allowed the appeal which was confirmed in a second appeal by the Labour Court.
Aggrieved by these orders, the Bank filed the Writ Petition above said.
It was urged by the appellant Bank that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act, the provisions of that Act including the provisions of appeal were not applicable to it in view of the exemption contained in this behalf.
Civil Appeal No. 1042 was preferred by the Syndicate Bank against the judgment of the Andhra Pradesh High Court, dismissing the Writ Petition No. 86 of 1979.
Respondent No. 3 in the appeal had been dismissed by the appellant bank.
He preferred an appeal which was allowed.
The Bank preferred a second appeal before the Labour Court, which was dismissed.
The Bank filed the aforesaid writ Petition before the High Court and urged that it being an establishment under the Central Government within the meaning of Section 64(1)(b) of the Andhra Pradesh Shops Act, the provisions of that Act were not applicable to it in view of the exemption contained in this behalf.
The High Court dismissed the Writ Petition.
Civil Appeal No. 837 of 1984 was preferred by the Bank of India a nationalised bank, against the judgment of the Kerala High Court dismissing the Writ Petition No. 1419 of 1978.
Respondent No. 1 in the appeal had preferred an appeal under section 18 of the Kerala Shops and Commercial Establishments Act, 1960 (the Kerala shops Act) against an order passed by the appellant Bank, discharging him from service.
A preliminary objection was raised by the Bank with regard to the maintainability of the appeal on the ground that it being an establish 664 ment under the Central Government within the meaning of section 3(1)(c) of that Act, the provisions thereof including section 18 above said were not applicable to it.
The objection was overruled by the appellate authority.
The Bank filed the original Petition abovementioned in the High Court which dismissed the same.
Dismissing the Civil Appeals Nos . 4291 and 4292 of 1984, 4329 of 1984 and 4735 of 1984, and allowing the Civil Appeal Nos. 1120 of 1976, 1042 of 1979 and 837 of 1984, the Court, ^ HELD: The common question which arose for consideration in all these appeals was as to whether the Nationalised Banks and the State Bank of India were establishments under the Central Government within the meaning of the Acts above said and consequently the provisions of the said Acts were not applicable to these Banks in view of the exemption contained therein in this behalf.
[670E] In view of the definition of the term "establishment" read with that of "commercial establishment" contained in the said Acts, it was not disputed even by counsel for the banks, that a bank is an establishment.
Consequently, unless exempted, the provisions of the said Acts would apply to the State Bank of India and the nationalised banks also.
[670F G] A conspectus of the provisions of the (Act No. 23 of 1955) and the (Act No. 5 of 1970), read with the dictionary meaning of the term "under" leaves no manner of doubt that the State Bank of India and the nationalised banks are clearly establishments under the Central Government.[677D] For the employees of these banks, it was urged that these banks were autonomous corporations having distinct juristic entity with a corporate structure of their own and could not as such be treated to be owned by the Central Government.
According to counsel, the word "under" used in the expression "under the Central Government" con noted complete control in the sense of being owned by the Central Government.
Disagreeing with that submission it was held that the mere fact that the State Bank of India and the nationalised banks are different entities as corporate bodies for certain purposes cannot by itself be a circumstance from which it may be deduced that they cannot be establishments under the Central Government.
[677E F; 678A] 665 If the criteria laid down in Ajay Hasia, etc.
vs Khalid Mujib Sehravardi & Ors. etc.
; , decided by a Constitution Bench of this Court, was applied to the facts of these cases, it is obvious that even though the State Bank of India and the nationalised banks may not be owned as such by the Central Government and their employees may not be the employees of the Central Government, they certainly will fall within the purview of the expression "under the Central Government", in view of the existence of deep and pervasive control of the Central Government over these banks.
As pointed out by this Court in Biharilal Dobray vs Roshan Lal Dobray; , , the true test of determination of the question whether a statutory corporation is independent of the Government depends upon the degree of control.
[679G H;682E F] In view of these considerations, no exception could be taken to the view of the Madras High Court in its judgments which were the subjectmatter of the Civil Appeal Nos. 4291 and 4292 of 1984, 4375 of 1984 and 4329 of 1984.
As regards the judgment of the Kerala High Court and the judgment of the Andhra Pradesh High Court under appeal even if the decisions dealing with Article 12 of the Constitution are not made the foundation for deciding the point in issue, the principles enumerated therein particularly with regard to deep and pervasive control are relevant for deciding the point in issue, and also it was sufficient to point out that for holding that the State Bank of India and the nationalised banks are establishments under the Central Government which have a corporate structure and have freedom in the matter of day to day administration, it is not necessary that these banks should be owned by the Central Government or be under its absolute control in the sense of a department of the Government.
As regards the circumstances that even though the Reserve Bank of India is mentioned specifically in the relevant clause containing exemption, neither the State Bank of India nor the nationalised banks are so mentioned, it is to be pointed out that the Reserve Bank of India was established as shareholders ' Bank under Act 2 of 1934.
The Kerala Shops Act and the Andhra Pradesh shops Act, of the years 1960 and 1966, were modelled almost on the pattern of the Tamil Nadu Shops Act, which is of the year 1947.
When section 4(1)(c) of this Act referred to the Reserve Bank of India in 1947, it obviously referred to it as the Shareholders ' Bank.
The Reserve Bank Transfer to Public ownership Act (Act 82 of 1948) came into force on 1st January, 1949, and it was thereafter that the shares in the capital of the Reserve Bank came to belong to the Central Government.
In this background, no undue emphasis could be placed on the circumstances that the State Bank of India or the nationalised banks did 666 not find mention in the provision containing exemption even though the Reserve Bank of India was specially mentioned therein.
For the response stated above, the aforesaid decisions of the Kerala High Court and the Andhra Pradesh High Court deserved to be set aside.[683C H] On the view the Court had taken that the State Bank of India and the nationalised banks are establishments under the Central Government, the Court did not consider the question as to whether these banks were establishment, which not being factories within the meaning of the , were, in respect of matters deal with in the Tamil Nadu Shops Act, governed by a separate law for the time being in force in the State so as to be entitled to claim exemption under clause (f) of sub section (1) of section 4 of the said Act or of the corresponding provisions in the Kerala Shops Act and the Andhra Pradesh Shops Act.
[684A B] Civil Appeals Nos.
4291 and 4292 of 1984, 4329 of 1984 and 4735 of 1984 were dismissed.
Civil Appeal No. 1120 of 1976 was allowed and the judgment of the High Court in Writ Appeal No. 268 of 1975 as also the Judgment of the Single judgement the Writ Petition No. 5973 of 1973 as well as the orders of the Labour officer in the appeal filed by respondent No. 3 and of the Second Appellate Authority m the second appeal filed by the appellant Bank under the provisions of the Andhra Pradesh Shops Act were set aside.
Civil Appeal No. 1042 of 1979 was allowed and the judgment of the Andhra Pradesh High Court in the Writ Petition No. 86 of 1979 as also the orders passed by the first and second appellate authorities in the appeals preferred by respondent No. 3 and the bank under the Andhra Pradesh Shops Act were set aside.
Civil Appeal No. 837 of 1984 was allowed and the judgment of the Kerala High Court in Writ Petition No. 1419 of 1978 was set aside.
The preliminary objection raised by the bank before the Appellate Authority in the appeal filed by respondent No. I under section 18 of the Kerala Shops Act to the effect that the said appeal was not maintainable was upheld, with the result that if the said appeal was still pending would be disposed of as not maintainable and in case it had been decided, the said decision should be treated as without jurisdiction.[684C F] The various employees whose appeals preferred under the Kerala Shops Act or the Andhra Pradesh Shops Act referred to above had been held to be not maintainable and the orders passed therein had been set aside, would be at liberty to take recourse to such other remedies as might be available to them in law.
[684G] 667 Ajay Hasia, etc.
vs Khalid Mujib Sehravardi & etc.
; , ; Heavy Engineering Mazdoor Union vs The State of Bihar & Ors., ; Hindustan Aeronautics Ltd. vs The Workmen and Ors., ; ; Graham vs Public Works Commissioner, ; Regional Provident Fund Commissioner, Karnataka vs Workmen represented by the General Secretary, Karnataka Provident Fund Employees ' Union and Another, [1984] II L.L.J. 503; Western Coalfields Ltd. vs Special Area Development Authority, Korba and Anr., ; ; Rashriva Mill Mazdoor Sangh, Nagpur vs The Model Mills, Nagpur and Anr., ; ; Union of India & Ors.
vs N. Hargopal and Ors., ; Thote Bhaskara Rao vs The A.P. Public Service Commission and Ors., Judgment Today and Biharilal Dobray vs Roshan Lal Dobray, ; , referred to.
|
ivil Appeal No. 1369 of 1990.
From the Judgment and Order dated 16.6.1989 of the Bombay High Court in W.P. No. 2513 of 1989.
Anil B. Diwan, Y.R. Naik, section Thananjayan and K.R. Choud hary for the Appellant.
Dr. Y.S. Chitale, Y.T. John, C.V. Francies, C.V. Rappai, 3.
Prakash and V.K. Purwani for the respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
Can a licensee occupying a flat in a tenant co partner ship society be evicted therefrom under Sub Section (1) of Section 91 of the Maharashtra Co operative Societies Act, 1960 (Act No. XXIV of 1961), hereinafter called 'the Socie ties Act ', notwithstanding the protection extended by Sec tion 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 ( 'Act No. LVII of 1947), hereinafter called 'the Rent Act ', as amended by Act XVII of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act? That is the question which arises for our determination in he context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society.
The actual matrix in which this question needs to be answered may be briefly stated as under: The Vishwa Co operative Housing Society Ltd., respondent No. 1, hereinafter called 'the Society ', was registered sometime in 1948 ruder the provisions of the Bombay Co operative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act.
On 2nd March, 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted Flat 865 No. 25 of the multi storeyed building known as 'Vishwa Mahal ' situate on "C" Road, Churchgate, Bombay 20.
The said Laxmi Devi gifted her interest as the allottee member of the society to her brother Ambica Prasad Sharma of Udaipur.
One D.P. Kejriwal who was looking after this flat inducted the appellant therein w.e.f.
1st June, 1957 under a leave and licence agreement on a licence fee of Rs.400 per month.
While the appellant was in actual occupation of the flat, the allottee member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma, respond ent No. 2, sometime in July 1967.
The said respondent was admitted to the membership of the society on 15th July, 1967.
It appears that even after this transfer D.P. Kejriwal continued in management of the flat and collected and re ceived the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2 claim ing onwership of the flat.
The appellant then filed an interpleader suit in the Court of Small Causes, Bombay, seeking a direction to whom he should pay the rent for the flat occupied by him.
This interpleader suit was disposed of on 21st June, 1983.
Immediately thereafter respondent No. 2 deposited Rs.5,500 on 28th June, 1983 with respondent No. 1 society towards the society 's cost to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
Two days later the respondent No. 2 filed a suit for the eviction of the appel lant from the flat in the Court of Small Causes, Bombay.
After respondent No. 2 deposited Rs.5,500, the society passed a resolution on 5th July, 1983 to initiate proceed ings under Section 91(1) of the Societies Act for the evic tion of the appellant from the flat in question.
Thereupon the society served the appellant with a notice to quit dated 11th July, 1983 and thereafter instituted the action under Section 91(1) of the Societies Act.
The appellant raised several defences, two of which may be noticed.
He firstly contended that the so called document of leave and licence in fact created a lease and, therefore, the proceeding under Section 91(1) of the Societies Act was not competent.
Secondly he contended that even if it is assumed that the relationship was of a licensor and a licen see under the deed, since he was in actual occupation and possession of the flat in question under a subsisting li cence right from 1957 to 1st February, 1973 he was a statu tory tenant under Section 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Sections 12 or 13 of the Rent Act.
He, therefore, contended that the Cooperative Court had no jurisdiction under Section 91(1) of the Societies Act and the proper court to approach was 866 the one under Section 28 of the Rent Act, which the respond ent No. 2 had in fact approached.
The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee.
On the question of tenancy under Section 15A the Court concluded as under: "So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1.
He has further stated that he filed the case in the Small Causes Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case.
He has also stated that he accepted Opponent No. 2 as his tenant because after 1.2.1973 there is change in law and so he had to accept opponent No. 2 as his tenant.
In view of this evidence I have to give a finding in the affirmative in respect of part of the issue whether opponent No. 2 proves that he is a tenant of opponent No. 1".
In other words the Cooperative Court came to the conclusion that the appellant was a tenant of respondent No. 2 under Section 15A of the Rent Act since he was in occupation of the flat on 1st February, 1973.
After finding the appellant to be a tenant of respondent No. 2 under section 15A, the Cooperative Court proceeded to observe as under: "Now regarding the effect of findings on the parts of issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non member occupant could at best be regarded as tenant of member, he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act".
The Cooperative Court, therefore, came to the conclusion that the society could maintain an action under Section 91(1) of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act qua the member allottee.
In this view, the 867 Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof.
The appellant feeling aggrieved by this order filed an appeal under Section 97 of the Societies Act to the Maha rashtra State Cooperative Appellate Court, Bombay, being Appeal No. 206 of 1988.
The said appeal was dismissed with costs on 22nd December, 1988.
The appellate court also took the view that regardless of the relations between the occu pant of the flat and the member allottee, the society was entitled to maintain an action under Section 91(1) of the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society and the occupant.
It accordingly confirmed the order passed by the Cooperative Court.
Feeling aggrieved by the concurrent findings recorded by the said two courts, the appellant preferred writ petition No. 25 13 of 1989 in the High Court of Judicature at Bombay.
The said writ petition was summarily dismissed on 16th June, 1989 but by a speaking order.
The learned Singe Judge while dismissing the writ petition observed as under: "It has now been repeatedly held by the Supreme Court that the protection even though available to the occupier against member of the cooperative society, such protection cannot be claimed against a housing society.
A reference to the deci sion in O.N. Bhatnagar vs Rukibai Narsindas, reported in ; , is sufficient".
The decision of this Court in Hindustan Petroleum Corpora tion Limited vs Shyam Cooperative Housing Society, ; was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society.
So stating the learned Judge dismissed the writ petition.
That is how the appellant is before us by special leave.
Section 91(1) of the Societies Act insofar as relevant for our purposes reads as under: "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu 868 tion, . . . management or business of a Society shall be referred by any of the parties to the dispute . . to the Cooperative Court if both the parties thereto are one or other of the following: (a) a society . . (b) a member, past member or a person claiming through a member, past member or a deceased member of the society Sub section (3) reads as under: "Save as otherwise provided under sub section (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)" Sub section (2) of Section 93 lays down that: "Notwithstanding contained in this Act the Cooperative Court may, if it thinks fit suspend any proceedings in respect of any dispute, if the question at issue is one involving complicated questions of law and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society".
Sub section (1) of Section 99 which begins with a non ob stante clause gets attracted if there arises any dispute touching the business of a society.
Such a dispute can be referred to a Cooperative Court if both parties to the dispute are one or other of those enumerated in clauses (a) to (e) thereof.
These include a society, a member or a person claiming through a member or a past member or a deceased member.
The dispute in the present case is between the society, its member and appellant, a person stated to be one claiming through the present member or the past member.
The crucial question which arises is whether the dispute or controversy between the parties can be said to be one touch ing the business of the society.
If yes, the Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub section (3) of Section 91 except for the limited purpose stated in sub section (2) of Section 93 of the Societies Act.
869 Under bye law No. 2 the objects of the society are inter alia to carry on trade of building, buying, selling, hiring, letting and developing land on cooperative principles.
Regulation 4 in Form A provides that no tenant member shall assign, under let, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society.
Bye law 7A lays down that an outsid er non member can be allowed to take advantage of the mem ber 's flat only on production of a written confirmation of the member before the society and on the society thereupon admitting such member as a 'nominal ' member of the society.
Admittedly in the present case no written permission of the society was obtained either by the member or by the appel lant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal member.
It was, therefore, con tended on behalf of the society that the entry of the appel lant in the flat in question was clearly in violation of Regulation 4 and bye law 7A adverted to above and, there fore, the dispute was clearly one touching the business of the society attracting Section 91(1) of the Societies Act.
The appellant 's challenge as pointed out earlier can be said to be two fold, namely, (1) the dispute between the appel lant and the society cannot be said to be in any manner related to the business of the society and (2) since the jural relationship between the member and the appellant was admittedly of landlord and tenant, the jurisdiction of the Cooperative Court under the Societies Act was clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord tenant relationship.
The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions and also to control the charges for licence of premises, etc.
Section 15A which was inserted by amending Act 17 of 1973 provides as under: "15A(1) Notwithstanding anything contained in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become for the purposes of this Act, the tenant of the landlord, in respect of the premises or any part thereof, in his occupation".
The expression 'licensee ' is defined in sub section (4A) of Section 5 as under: 870 '5(4A) licensee ', in respect of any premises or any part thereof.
means the person who is in occupation of the prem ises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co operative housing society registered or deemed to be regis tered under the Maharashtra Co operative Societies Act, 1960); but does not include a paying guest, a member of a family residing together, a person in the service or employ ment of the licensor, or a person conducting a running business belonging to the licensor, for a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home, hospital or sanatorium, for a person having any accommoda tion in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of the exigen cies of service or provision of a residence attached to his or her post or office is temporarily not occupying the prem ises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises, and any additional sum for services supplied with such premises, or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or insti tution; and the expressions 'licence ', 'licensor ' and 'pre mises given on licence ' shall be construed accordingly".
The definition of a 'landlord ' in Section 5(3) includes in respect of a licensee deemed to be a tenant by Section 15A, the licensor who has given such licence.
Similarly the expression 'tenant ' as defined by Section 5(11) includes such licensees as are deemed to be tenants by Section 15A. Section 14(2) may also be noticed which reads as under: "Where the interest of a licensor who is a tenant of any 871 premises is determined for any reason, the licensee, who by .
Section 15A is deemed to be a tenant, shall, subject to the provision of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agree ment consistent with the provisions of this Act".
The Courts below have come to the conclusion that the appel lant was a tenant of respondent No. 2 by virtue of Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973.
Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and the occupant appellant, the courts below took the view that as there was no such jural relationship between the society and the occupant, the society was entitled to evict the occupant from the flat in question by taking recourse to Section 91(1) of the Societies Act as the dispute between the society, its member and the occupant claiming through the member was essentially one touching the business of the society.
In other words according to the courts below while the member could not evict the occupant except through proceedings initiated under the Rent Act, the society was free to evict the occupant, without dis continuing the membership of the licensor, by virtue of Section 91(1) of the Societies Act.
There is, according to the courts below, no conflict between Section 91(1) of the Societies Act and Section 28 of the Rent Act because in order to attract the latter provision it must be shown that the relationship between the society and the occupant is that of a landlord and a tenant or a licensor and a licensee who is entitled to the benefit of Section 15A of the.
Rent Act.
Unless such a relationship is established, the society cannot be precluded from initiating eviction action under Section 91(1) of the Societies Act against an occupant with whom it has no privi ty of contract, notwithstanding the fact that he was induct ed in the flat by the member allottee, albeit contrary to the regulations and bye laws of the society, and by passage of time a relationship of landlord and tenant has developed between the two by virtue of Section 15A of the Rent Act.
What impelled the legislature to introduce Section 15A and the related provisions on the statute book by Act XVII of 1973? The acute paucity of accommodation, particularly in urban and metropolitan centres, is of common knowledge.
Section 15 of the Rent Act initially prohibited sub letting.
Despite this prohibition sub letting took place on a large scale because of non availability of rented premises.
The legislature had to face this hard reality and was required to extend protection to such sub tenants when they were threatened with evic 872 tion by enacting the Bombay Rents, Hotels & Lodging Houses Rates Control Act (Amendment) Ordinance, 1959.
Thereafter also the acute shortage of accommodation continued and to circumvent the prohibition of sub letting in Section 15 increasing use of inducting third parties in rented premises through the expedient of leave and licence agreements was made.
This becomes evident from the Objects and Reasons for Act No. XVII of 1973, which read as under: "It is now notorious that the Bombay Rents, Hotel and Lodg ing House Rates Control Act, 1947, is being avoided by the expedient of giving premises on leave and licence for some months at a time; often renewing from time to time at.
a higher licence fee.
Licensees are thus charged excessive licence fees; in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee.
It is necessary to make provision to bring licensees within the purview of the aforesaid Act.
It is therefore provided by Clause 14 in the Bill that persons in occupation on the 1st day of Febru ary, 1973 (being a suitable anterior date) under subsisting licences, shall for the purposes of the Act, be treated as statutory tenants, and will have all the protection that a statutory tenant has, under the Act.
It is further provided in Clause 8 that in the case of other licences, the charge shall not be more than a sum equivalent to standard rent and permitted increases, and a reasonable amount for amenities and services.
It is also provided that no person shall claim or receive anything more as licence fee or charge, than the standard rent and permitted increases, and if he does re ceive any such amounts, they should be recoverable from the licensor".
The legislative policy is evident from the opening words of Section 15A Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract which convey in no uncertain terms that the legislature desired to protect licensees who were in actual occupation of any premises on 1st February, 1973 from eviction by conferring on them the status of a tenant and thereby bringing them within the purview of the Rent Act regardless of the other provisions of the said enactment or any other enactment or contract to the contrary.
A sweeping overriding effect is given over all laws and other provisions of the Rent Act as well as con tract providing to the contrary thereby placing the 873 question of status of licensees in occupation of any prem ises on 1st February, 1973 beyond the pale of doubt.
To make matters clear corresponding changes were simultaneously made, in the preamble of the Rent Act and the definitions of 'landlord ' and 'tenant ' and a new definition ' of 'licensee ' was inserted on the statute book.
Not only did the legisla ture desire to confer the status of a tenant on such licen sees but it went a step further by providing in Section 14(2) that on the determination of the licenser 's interest in the premises such a statutory tenant under Section 15A will become the tenant of the landlord, thereby establishing a jural relationship of landlord and tenant through statute as distinguished from contract.
It, therefore, seems crystal clear to us that the legislative policy was to extend the protective umbrella of the Rent Act to licensees who were in occupation of any premises on 1st February, 1973 by fiction ally conferring on them the status of a tenant, overriding all other provisions of the statute itself, all other stat utes and contracts providing to the contrary.
Therefore, every other provision of the Rent Act, every provision of any other law and every covenant of a contract which runs counter to the legislative policy engrafted in Section 15A, meaning thereby which provides to the contrary, must yield to Section 15A read with Section 14(2) of the Rent Act.
That is why this Court while overruling the decision of the Full Bench of the Bombay High Court in Ratanlal Chandiprasad vs Raniram Darkhand, writ petition No. 76 of 1980 decided on 18th October, 1985 observed in paragraph 69 of its judgment in Chandavarkar Sita Ratna Rao vs Ashalata section Gurnatn, ; at 478 as under: ".
. it must be held that all licensees created by landlords or by the tenant before February 1, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on February 1, 1973 would be the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting crea tion of such tenancy or licences or not they would become tenant and enjoy the fights granted under the Act specially those mentioned in Section 14(2) of the Act".
Therefore, this Court held that a licensee under a licence created by a tenant, be he a statutory tenant or a contrac tual tenant, whether or not his tenancy agreement permitted the creation of such licence, was entitled to the protection of Section 15A of the Rent Act.
In other words no statutory bar or contractual bar operated against the conferment of the statutory tenancy on the licensee in occupation of any 874 premises on 1st February, 1973 under Section 15A of the Rent Act.
That takes us to the next question whether or not a member of a co partnership type of a co operative society has such interest in the premises allotted to him as would entitle him to give the same on leave and licencee basis to a non member.
In a tenant co partnership type of society the members are shareholders; but the title to the property vests in the society which in turn rents the tenements or flats to its members.
The cost of construction of dwellings is met from deposits and loans besides the share money.
The rental is usually determined on long term basis so calculat ed as to meet the cost of construction and upkeep of the building and to guarantee perpetuity of occupation on repay ment of the whole value of the tenement or flat.
At the end of the period the member is credited with additional shares equal to the amount paid by him; the interest on these shares generally matches the rental payable by him to the society.
Thus on full payment the member becomes entitled to occupy the tenement or flat free of charge as the rental he has to pay to the society is almost met from the interest received from shares held by him.
Thus a member has more than a mere fight to occupy the flat.
A similar question came up for consideration before this Court in Ramesh Himmatlal Shah vs Harsukh.
Jadhavji Joshi, ; in the context of whether or not the mem ber 's right in the flat was liable to attachment and sale under Section 60 of the Code of Civil Procedure.
This Court after analysing the various provisions of the Societies Act, the bye laws and the regulations framed thereunder, came to the conclusion that the member 's right or interest to occupy is a species of property.
Proceeding further this Court made the following observations in paragraph 18 to 20 of the Judgment: "There is no absolute prohibition in the Act or in the Rules or in the bye laws against transfer of interest of a member in the property belonging to the Society.
The only transfer which is void under the Act is one made in contravention off sub section (2) of Section 47 [See Section 47(3)].
We have not been able to find any other provision anywhere to the same effect.
In the Scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society.
While Section 29(2) refers to transfer of a member 's share or his interest in the capital or property of any Society, Section 31 in contrast speaks of 'the share or interest of a member in the capital of a So 875 ciety '.
The Act, therefore, makes a clear distinction be tween the share or interest in the capital and share or interest in property of the Society.
We have also noticed that the Act does not recognise interest in the immovable property of the society as well [See section 41(1)(b)].
We have seen the qualifications for membership.
There is no reason to suppose that if the qualification under the bye laws are fulfilled an application for membership may be rejected".
After pointing out that the right or interest to occupy is a species of property this Court went on to add as under: "We, therefore, unhesitatingly come to the conclusion that this species of property, namely, the right to occupy a flat of this type, assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce.
We have seen no fetter under any of the legal provisions against such a conclusion.
The attachment and sale of the property in this case in execu tion of the decree are valid under the law.
XXXXXXXXXXXXXXXXXXXXXXXXX In absence of clear and unambiguous legal provisions to the contrary, it will not be in public interest or in the inter est of commerce to impose a bar on saleability of these flats by a tortuous process of reasoning.
The prohibition, if intended by the Legislature must be in express terms.
We have failed to find one".
It becomes clear from this decision that the member 's right to occupy the flat is a species of property liable to at tachment and sale.
It is more than a mere right to occupy.
It is transferable and if the transferee answers the quali fications under the bye laws for being admitted to the membership of the Society, the Society would be precluded from unreasonably withholding such admittance.
There can, therefore, be no doubt that a member allottee has a right to transfer his interest in the flat to a third party and, therefore, the right to induct a third party on leave and licence basis.
It was contended by the learned counsel for the appel lant that Section 15A was inserted in the Rent Act to serve a dual purpose namely (1) to curb exploitation of licensee and (2) to provide security 876 of tenure.
If the view taken by the Courts below in the name of maintenance of the 'distinctive mutuality ' principle is endorsed, the very purpose of the amendment, argued counsel, would be defeated.
He pointed out that in the State of Maharashtra the cooperative movement had taken rapid strides and the legislature was aware that a large number of licen sees were in occupation of flats situate in Cooperative Societies.
It must, therefore, be assumed that the legisla ture desired to extend the protection of the Rent Act to such licensees also by bringing them within the scope of Section 15A of the Act.
In support of this contention he placed strong reliance on the decision of this Court in Hindustan Petroleum Corporation Limited (supra).
This sub mission was countered by the learned counsel for the society and the member on the plea that the Courts below had rightly concluded that the jurisdiction of the Cooperative Court under Section 91(1) of the Societies Act was not ousted because there was no jural relationship of landlord and tenant between the society and the appellant.
According to them if non members could be inducted in tenements or flats belonging to a Cooperative Housing Society of the present type, the entire housing movement would become redundant and the object of forming such cooperative housing societies would be totally defeated.
Therefore.
submitted the learned counsel, even if it is assumed that the appellant had ac quired the status of a tenant by virtue of Section 15A of the Rent Act, the protection extended by the said provision would extend to the licenser member only and not to the society.
In this connection strong reliance was placed on the decision of this Court in O.N. Bhatnagar 's case (supra) which has been referred to and relied on in four subsequent decisions namely, M/s A.V.R. And Co. & Others vs Fairfield Cooperative Housing Society & Others, ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Co operative Housing Society and Another, ; ; Hindustan Thompson Associates Ltd. vs Mrs. Maya Inderson Israni & Others, ; and Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani and Others, ; Five decisions were rendered by a Division Bench of this Court (A.P. Sen & B.C. Ray, JJ.) on a single day i.e. 19th September, 1988 on the question of applicability of Section 91(1) of the Societies Act.
In four of those cases, namely, A.V.R. & Co. & Others; Sardar Mohan Singh Ahluwalia; Hindu stan Thompson Associates Ltd. and Smt.
Krishna Ralpal Bha tia, this Court on facts took the view that the applicabili ty of Section 91(1) of the Societies Act could not be as sailed.
In all those four cases the Court came to the con clusion that the licence was terminated before 1st February, 1973 and, therefore, 877 the occupant could not be said to be in occupation of the flat under a subsisting licence on 1st February, 1973 and hence Section 15A of the Rent Act had no application.
In such a fact situation this Court rightly took the view that Section 28 of the Rent Act was not attracted and hence the society was entitled to seek eviction under Section 91(1) of the Societies Act.
In Bhatnagar 's case the occupant was inducted in the flat on leave and licence basis after the Society had accepted him as a nominal member.
But his li cence was terminated by a notice dated 31st March, 1965 and thereafter his occupation was no more under a subsisting licence to entitle him to the protection of Section 15A of the Act.
In the case of A.V.R. & Co. also the licensee 's claim for deemed tenancy was rejected on the ground that the licence had expired long before 1st February, 1973 and had not been renewed since then.
The Court, therefore, came to the conclusion that the licence was not in occupation of the flat under a subsisting licence on 1st February, 1973 and, therefore, the benefit of Section lSA could not be extended to him.
In the case of Sardar Mohan Singh Ahluwalia also the Court found that as a matter of fact there was no subsisting licence on 1st February, 1973 to attract the application of Section 15A of the Rent Act.
In Hindustan Thompson Associ ates Ltd. the facts disclosed that the licence was terminat ed by the member on 1st October, 1972 and the occupant was called upon tO vacate the premises.
It was, therefore, held that since the subsequent occupation of the flat by the occupant was not under a subsisting licence his occupation was in the nature of a trespasser and hence Section 15A had no application.
The Court, therefore, concluded that evic tion proceedings could be commenced against him under Sec tion 91(1) of the Societies Act.
In the last mentioned case of Srnt.
Krishna Rajpal Bhatia the court found that the agreement in question created the relationship of a licensor and a licensee and the licence had in fact been terminated by a notice dated 21st May, 1969 and, therefore, the occu pant was a mere trespasser when the action was commenced under Section 91(1) of the Societies Act and was not enti tled to the benefit of Section 15A of the Rent Act.
It can, therefore, be seen that the aforesaid 5 decisions on which considerable reliance was placed by the learned counsel for the Society and its member can be distinguished on facts inasmuch as in all those cases the finding of fact recorded throughout was that the licensee was not in occupation of the premises in question under a subsisting licence on 1st February, 1973 to invoke the protection of Section 15A of the Rent Act.
However, in the case of Hindustan Petroleum Corporation Limited (supra) the Esso Easter Inc., a company, had taken flat No. 35 878 in Block No. 8 in Sham Niwas on leave and licence basis for a period of one year in terms of a written agreement dated November 26, 1968 from Smt.
Nanki M. Malkani.
On December 4, 1968 the Society passed a resolution admitting one T.J. Mansukani, an employee of the company, as a nominal member of the society since he was to occupy the flat.
The licence agreement was extended from time to time under the renewal clause incorporated in the agreement.
After the company was taken over under the Esso (Acquisition of Undertakings in India) Act, 1974 Smt.
Nanki M. Malkani sent a communication affirming the terms and conditions of the licence and again confirmed the same on 24th March, 1976.
It will be seen from these facts that the licence was subsisting on 1st February, 1973.
On 11th September, 1980 the Society passed a resolu tion calling upon the appellant corporation to vacate the said premises and directed its member Smt.
Nanki M. Malkani to occupy the same herself.
Upon the appellant corporation failing to vacate the premises the Society commenced pro ceedings under Section 91(1) of the Societies Act on 15th September, 1980 for eviction of the appellant corporation and its employee from the flat.
The Cooperative Bank Bombay, after considering the evidence adduced by the parties, dismissed the claim of the Society holding that the appel lant corporation was entitled to the benefit of Section 15A of the Rent Act and the said protection could not be taken away by the Society seeking eviction under Section 91(1) of the Societies Act.
The Society preferred an appeal which came to be allowed on 17th March, 1984 whereupon the appel lant corporation approached the High Court under Article 226 of the Constitution, but in vain.
The appellant corporation obtained special leave to appeal to this Court.
This court raised three questions for decision, two of which are relevant for our purpose.
The first question was whether the appellant corporation as successor in interest of Esso Eastern Inc., the licensee, was entitled to the protection of Section 15A of the Rent Act having regard to the fact that Esso Eastern Inc. was in occupation of the flat in dispute under a subsisting licence on 1st February, 1973 and whether the society 's action for ejectment of the occupant of the flat could be said to be a dispute touching the business of the society within the meaning of Section 91(1) of the Societies Act.
After referring to the relevant statutory provisions of both the Societies Act and the Rent Act, this Court observed that the finding of the appellate court that the appellant corporation was not entitled to the protection of Section 15A the Rent Act could not be sustained.
This Court concluded in paragraph 14 at page 758 as under: 879 "In the premises, petitioner 1 Hindustan Petroleum Corpora tion Ltd., is clearly protected under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
In that view of the matter, we do not think it neces sary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co operative Societies Act, 1960.
All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down therein".
This Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occu pant of a flat in a cooperative housing society who has been put in possession thereof by the member under a leave and licence agreement, is a 'dispute touching the business of the society ' within the meaning of Section 91(1) of the Societies Act, because in its view it was already covered by Bhatnagar 's case.
To put it differently the Division Bench accepted the ratio of Bhatnagar 's case as laying down the correct law and did not see the need to restate the same.
While in Bhatnagar 's case this Court on facts came to the conclusion that the requirements of Section 15A were not satisfied and, therefore, action under Section 91(1) of the Societies Act was maintainable, it repelled the apprehension that such a view would throw out all licensees of residen tial flats in multi storeyed buildings belonging to Coopera tive Housing Societies in the following words: "The apprehension, if we may say so, appear to be wholly unfounded.
The legislature was fully aware of the acute paucity of housing accommodation in the metropolitan cities of Greater Bombay and other urban areas in the State, and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with no protec tion.
The legislature, therefore, stepped in and by Maha rashtra Act 17 of 1973 the following provisions were insert ed in the Rent Act".
After referring Section 15A(1) and Section 5(4A) of the Rent Act this Court proceeded to observe as under: 880 "As a result of the introduction of Section 15A and Section 5(4A) of the Rent Act by Maharashtra Act 17 of 1973, the licensee of any premises or any part thereof in a building vesting in or leased to a cooperative housing society regis tered or deemed to be registered under the Act, who was in occupation of such premises under a subsisting licence as on 1.2.
1973, is by a legal fiction, deemed to be a tenant and thus has the protection of Rent Act.
In such a case the dispute between a licensor and licensee relating to posses sion of the premises of a fiat would attract Section 28 read with Section 15A and 5(4A) of the Rent Act and would fail outside the purview of the Registrar 's jurisdiction to adjudicate upon such dispute under Section 91(1) of the Act.
Once this aspect is kept in view, there need be no apprehen sion as expressed by learned counsel for the appellant . . . ,,.
Indubitably the flat in question fails within the defi nition of 'premises ' in Section 5(8) of the Rent Act.
The appellant, a licensee under Section 5(4A), is a deemed tenant under Section 15A and, therefore, falls within the definition of 'tenant ' under Clause (bb) of Section 5(11) of the Rent Act.
Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in his occupation except as provided by the said Act.
To hold otherwise would be to render the status conferred on licen sees in actual occupation on 1st February, 1973, under a subsisting licence, nugatory.
The appellant was put in possession of the flat in question by the tenant co partner member of the Society and was accepted as such by the suc cessormembers also.
As pointed out earlier a member of a tenant copartnership type of Society is under an obligation to pay a fixed rental every month to the Society.
This rental is, no doubt.
determined on the basis of the member 's financial obligations incurred on account of the cost of construction, price of land or lease rent, as the case may be, interest on borrowings, etc.
The primary object of such a society is to provide residential accommodation to its members on easy payment basis.
That is why in Bhatnagar 's case this Court stated that 'it is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its busi ness, to ensure that the flats are in occupation of its members, in accordance with bye laws framed by it, rather than of a person in an unauthorised occupation, as it is the concern of the member, who lets it out to another under an agreement of leave and licence and wants to secure posses sion of the premises for his own use after the termination 881 of the licence '.
Therefore, this Court held that ejectment of an occupant, whose licence is terminated and who does not have the protection of law, such as the Rent Act, can be secured under Section 91(1) of the Societies Act.
But what happens when competing provisions vesting jurisdiction under different laws open with a non obstante clause and invest jurisdiction in different Courts? The Societies Act under Section 91(1) confers jurisdiction on the Cooperative Court while Section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
This Court observed in Deccan Merchants Cooperative Bank, Limited vs Dali Chand Jugraj Jain, [1969] 1 SCR 887 that 'the two Acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply '.
This view was approved in Bhatnagar 's case also.
In Co operative Central Bank, Ltd. vs Additional Industrial Tribunal, Andhra Pra desh, also this Court was required to harmonise the competing provisions in Section 61 of the A.P. Co operative Societies Act, which is substantially the same as Section 91(1) of the Societies Act, and Section 10(1)(d) of the Industrial Disputes Act.
This Court applying the test laid down on Deccan Merchants Co operative Bank 's case held that a dispute relating to the service condition of an employee of the society would properly be governed by the Industrial Disputes Act.
It was, however, submitted by the learned counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled lex posterior derogate priori.
But the Rent Act is special law extending protection to tenants, just as the Industrial Disputes Act which makes provision for the benefit of the workmen.
Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant.
That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply.
In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read with Section 5(4A) and 5(11)(bb) of the Rent Act.
The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right.
882 The submission that the appellant cannot seek protection against the Society as his entry into the flat was in viola tion of the Bye laws would have been valid had the statute not intervened.
To take such a view would tantamount to carving out an exception in Section 15A of the Rent Act that the said provision would not apply to licensees in occupa tion of flats owned by tenant co partnership societies.
The language of Section 15A read with Section 5(4A) of the Rent Act does not warrant such a construction.
The mere fact that there was a violation of the Bye laws would not make any difference for it is not unknown that even in cases of breach of statute, the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant e.g., sub letting was prohibited by Section 15 but when the legislature realised the need to protect the sub tenants it did so by an ordinance promulgated in 1959.
Similarly when the legislature felt the need to protect licensees in occupation on 1st February, 1973, it intervened by enacting Section 15A.
The legislative policy is quite evident from Section 15A and the protection given to licen sees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye laws.
If the occupant licensee who is a protected tenant under Section 15A 'can be evicted by the society on the plea of absence of privity between the society and the protected tenant, it would render the protection of Section 15A redun dant.
The situation is more or less similar to the case of an owner landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by Section 15A of the Rent Act.
In such a case notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant, the latter cannot be evicted except in accordance with the provisions of the Rent Act.
We, therefore, do not see any merit in the contention that notwithstanding the protection given by Section 15A, the society can proceed to evict him under Section 91(1) of the Societies Act on the plea that such protection is not available against the society.
Such a view would defeat the legislative object of Section 15A of the Rent Act.
But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party.
For example, if the plaintiff goes to court alleging that the defendant is a trespasser, the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy.
If, however, the defendant succeeds in proving that he is a tenant in respect of premises, possession whereof is sought, the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the 883 jurisdictional fact that the defendant was a trespasser.
Here also the claim was lodged by the society in the Cooper ative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespass er.
On facts it is now found that the appellant was and is a protected tenant under Section 15A of the Rent Act.
The proceedings initiated under Section 91(1) of the Societies Act cannot, in the circumstances, succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction.
If the society fails to prove that the appellant has no right to the occu pation of the flat since he is a mere trespasser, the suit must obviously fail.
That is why even in the case of Hindu stan Petroleum Corporation Limited this Court did not con sider it necessary to deal with the contention based on Section 91(1) of the Societies Act in detail and felt con tent by observing that the point stood covered by the deci sion in Bhatnagar 's case.
For the reasons afore stated, we are of the view that the impugned Judgment of the Bombay High Court cannot be allowed to stand.
We allow this appeal, set aside the Judg ments of all the Courts below and direct that the claim application filed under Section 91(1) of the Societies Act shall stand dismissed.
However, in the facts and circum stances of the case we make no order as to costs.
R.N.J. Appeal allowed.
|
The question for determination is, can a licensee occu pying a flat in a tenant co partnership society be evicted therefrom under subsection (1) of section 91 of the Maha rashtra Cooperative Societies Act, 1960 notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 as amended by Act XVII of 1973 or whether such proceedings would be gov erned by Section 28 of the Rent Act? The appellant licensee was in actual possession of the fiat on 1st February 1973 under a license without the ex press permission of the Society.
He was let in, in 1957 by one D.P. Kejriwal who was looking after the flat originally allotted to one Laxmi Devi Kejriwal in 1949.
She gifted her interest as allottee member to her brother who in turn transferred his interest therein to his brother Hari Kumar Sharma, respondent No. 2, in July 1967.
Even after this transfer D.P. Kejriwal continued in management of the flat till 1979 when he received a letter from Respondent No. 2 claiming ownership of the flat.
The appellant thereafter filed an interpleader suit.
On disposal of the said suit Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No. 1, the Society, towards the cost of the Society to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.
The appellant contended that the proceeding under section 91(1) was not competent as the document of leave and licence in fact created a lease.
Alternatively, as he was in actual possession under a subsisting license right from 1957 to 1st February 1973, he was a statutory tenant under section 15A of Bombay Rent Act and the Cooperative Court had no juris diction under section 91(1) of the Societies Act and the proper court was one under section 28 of the Rent Act which the Respondent No. 2 had in fact approached.
863 The Co operative Court passed an ejectment order against the appellant.
The appellant filed an appeal under section 97 of the Societies Act to the State Co operative Appellate Court, Bombay.
The appellate court dismissed the appeal and confirmed the order of the Co operative Court.
Feeling aggrieved by the concurrent findings of the two courts the appellant preferred a Writ Petition in the High Court of Bombay.
The Writ Petition was also dismissed.
While allowing the appeal and setting aside the judg ments of all the Courts below and directing that the claim application filed under section 91(1) of the Societies Act shall stand dismissed, this Court, HELD: The appellant was and is a protected tenant under section 15A of the Rent Act.
The proceedings initiated under section 91(1) of the Societies Act cannot in the circum stances succeed as the Society has failed to prove the fact of trespass which constituted the foundation for jurisdic tion.
if the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fall.
[883B C] The Societies Act, section 91(1), confers jurisdiction on the Cooperative Court while section 28 of the Rent Act confers jurisdiction on the Court of Small Causes, Bombay.
[881B] The Status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees.
Rights which do not flow from contracts but are conferred by law such as the Rent Act must be deter mined by the machinery, if any, provided by the law confer ring the right.
[881G H] Notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant the latter cannot be evicted except in accordance with the provisions of the Rent Act.
[882B] Chandavarkar Sita Ratna Rao vs Ashalata section Gum am; , at 478; Ramesh Himmatlal Shah vs Harsukh Jadhavji Joshi, ; ; Hindustan Petroleum Corpo ration Ltd. vs Shyam Cooperative Housing Society, ; 1989 SC 295; O.N. Bhatnagar vs Rukibai Narsim das; , ; M/s. AVR & Co. & Ors.
vs Fairfield Cooperative Housing Society & Ors., ; ; Sardar Mohan Singh Ahluwalia vs Maitrai Park Cooperative Housing Society & Anr., ; ; Hindustan Thompson Associ ates Ltd. vs Mrs. Maya Inderson Israni & Ors. 864 ; ; Smt.
Krishna Rajpal Bhatia vs Miss Leela H. Advani & Ors., ; ; Deccan Merchant Cooperative Bank Ltd. vs Pali Chand Jugraj Jain, [1969] 1 SCR 887 and Co operative Central Bank Ltd. vs Additional Industrial Tribunal, Andhra Pradesh, , referred to.
|
vil Appeal Nos. 16 16 17 of 1990.
From the Judgment and Order dated 22.5.1989 of the Allahabad High Court in Writ Petition No. 2777/78 & dated 5.7.89 Review Petition No. 68(W)/89 in W.P. No. 2777/78.
K. Parasaran, Amitabh Misra, section Murlidhar and M.S. Ganesh for the Appellant.
P.P. Rao, Raja Ram Aggarwal, E.C. Aggarwala, Atul Shar ma, Ms. Purnima Bhatt, Mrs. Shobha Dikshit, Lokesh Kumar, R.D. Kewalramani and M.K. Garg for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
Special Leave granted.
The Chancellor of the Lucknow University while exercis ing power under Section 31(8)(a) of the Uttar Pradesh State Universities Act, 1973 ("The Act") has directed that Km.
Neeliam Misra, the appellant herein should be appointed as Reader in Psychology in the University.
That order has been quashed by the High Court of Allahabad, Lucknow Bench in Writ Petition No. 2777 of 1978 ,at the instance of Dr. Harinder Kaur Paintal, respondent (1).
This appeal is from that judgment of the High Court.
90 The background of the case in the barest outline may be stated as under.
The Lucknow University invited applications for appoint ment of Reader in Psychology from candidates who possessed the prescribed qualifications.
In response to the advertise ment, several candidates filed their applications.
The appellant and respondents I to 5 were some of them who offered themselves as candidates.
The Committee which was constituted for selection of candidates called them for interview along with some others.
After considering their qualifications, experience and relative performance in the interview, the Selection Committee graded them as follows: "All the candidates who appeared for the interview possess a Ph. D. degree.
Neelima Misra does not possess a Ph. D. degree.
Her thesis is nearing 'completion.
Her thesis work alongwith her publication were scrutinised and it was found that she satisfies the condition of published work of a high standard in the subject, provided as an alternative to Ph. D. degree.
All the candidates have a consistently good academic record and more than 54% marks in the M.A. Examina tions, except Dr. C.B. Dwivedi, who has a 3rd Division in the High School, Dr. Ratan Singh who has 3rd Division in High School and B.A. 2.
All the candidates possess the requisite teaching experi ence of post graduate classes.
And the basis of the research work, publications, experi ence and performance at the interview, the Committee graded the candidates as follows: 1.
Ms. Neelima Misra 2.
Dr. (Km.) Mukta Rani Rastogi 3.
Dr. (Smt.) Harinder Kaur Paintal 4.
Dr. S.N. Rai The rest of the candidates were found unsuitable.
The view of the above Committee recommended that Km Neelima Misra be appointed to the post of Reader in Psychology." 91 Km.
Neelinia Misra was found to have to her credit a published work of high standard in the subject of Psychology though she had no Ph. D. degree.
Besides she was considered to be more suitable on the basis of research work, publica tion, experience and performance at the interview.
The Selection Committee, therefore, recommended her for appoint ment to the post of Reader in Psychology.
That recommendation came before the Executive Council.
The Executive Council, by a split majority disagreed with the recommendation and preferred the appointment of respond ent (5) Dr. (Km) M.R. Rastogi.
It has expressed the view that the appellant did not possess the essential qualifica tions prescribed for the post of Reader and therefore, not suitable for appointment.
The opinion expressed by the Executive Council is as under: perusal of the bio data of Km.
Neelima Misra shows that she does not possess Ph.D. degree nor has she submitted her thesis so far.
Yet it is strange to say that her pub lished work is of a high standard.
Thus she does not fulfil requirement of essential qualifications and not suitable for the post.
The bio data of Dr. (Km) M.R. Rastogi shows that she possesses 11 years teaching experience of post graduate classes.
She has a consistently good academic record and should be appointed Reader in Psychology as she has been graded No. 2 by the Selection Committee.
Dr. (Smt.) Harmder Kaur Paintal is a Lecturer since November 1972 and has also a consistently good academic record and is suitable for the post.
As a consequence there is no question of relaxa tion of essential qualification as candidate of requisite merit are available.
" When there is thus disagreement with the recommendation of the Selection Committee, the matter must be referred to the Chancellor for his decision.
That is the mandatory requirement of Section 31(8)(a) of the Act.
Accordingly, the Executive Council referred the matter to the Chancellor.
The Chancellor, however, by order dated August 16, 1978 did not approve of the Executive Council 's opinion to appoint Dr. (Km) M.R. Rastogi.
The Chancellor rejected the opinion of the Executive Council and accepted the recommendation of the 92 Selection Committee and directed that the appellant should be appointed as Reader.
The Chancellor observed: "The Selection Committee has unanimously recommended that Km.
Neelima Misra be appointed to the post of Reader in Psychology.
Instead of accepting this recommendation, the Executive Council held by a majority of 6:5 votes that Kumari Neelima Misra does not fulfil the requirement of essential qualifications and is not suitable for the post.
It was of opinion that Dr. (Km) M.R. Rastogi who has been graded No. 2 by the Selection Committee should be appointed and that Dr. (Smt) H.K. Paintal is also suitable for the post.
Neelima Misra does not possess a Doctorate in the subject of study, but the Selection Committee has re corded that her thesis alongwith her publications were scrutinised and it was found that she satisfies the condi tion of published work of a high standard on the subject, which is an alternative to the Doctorate degree, as provided in Statute 11.01 read with Statute 11.02 of the First Stat utes of Lucknow University.
Thus Km.
Neelima Misra possess the essential prescribed minimum qualification.
She has also been adjudged to be the most suitable candidate on the basis of research work, publications and experience and perform ance at interview, among all the candidates, by the Selec tion Committee which was in a better position to Judge the merits of the suitability of the appointment.
After considering all the facts and circumstances of the case, I approve the report of the Selection Committee and direct that the appointment order be issued accordingly.
Sd/ G.D. Tapase, Chancellor" As per the decision of the Chancellor, the appellant was appointed as Reader in Psychology.
Dr. (Smt) Harmder Kaur Paintal, respondent 1, moved the High Court under Article 226 of the Constitution challenging the Chancellor 's order.
The Writ Petition was filed on 17 August 1978 before the Lucknow Bench of the Allahabad High Court and it was admitted on 93 30 March 1979.
Ten years later i.e. on 3 May 1989 the writ petition was listed for hearing before the Division Bench of the High Court.
On 22 May 1989, the judgment was delivered by allowing the writ petition and quashing the Chancellor 's order with d direction to reconsider the matter.
It seems that learned Judges had little discretion in the matter in view of an earlier decision of the High Court on the nature and scope of the Chancellor 's power under Section 31(8)(a) of the Act.
In L.N. Mathur vs The chancellor, Lucknow Uni versity, Lucknow & Ors.
, , the Full Bench of the High Court by majority, inter alia, has held that the Chancellor must state explicitly the reasons for his deci sion.
The Chancellor in order to arrive at a decision has to make a judicial approach to the question and he is enjoined by the Act to act quasi judicially.
To reach that conclu sion, the Full Bench has relied upon the observations in the Division Bench judgment in Dr. U.N. Roy vs His Excellency Sr.
G.D. Tapase, (The Ex Governor, State of Uttar Pradesh), Chancellor Allahabad University (1981 UPLBEC 309.) Following those authorities, the learned Judges in the present case have set aside the Chancellor 's order making some more observations: "When difference of opinion between the Selection Committee and Executive Council is referred to the Chancellor, his position is that of an Arbitrator and there is a sort of 'lis ' before him and in case the Chancellor has to agree with the Selection Committee with which the Executive Coun cil has differed assigning particular reason, the Chancellor has to assign reasons as to why he has agreed with the recommendation made by the Selection Committee.
The dispute having been raised, was to be decided atleast like a dis pute" At this point, we may interrupt the narration and ana lyse Section 1 of the Act which provides procedure for selection of University eachers.
Omitting unnecessary clauses, the Section reads: "31(1) Subject to the provisions of the Act, the teachers of the University and the teachers of an affiliated or associ ated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or the Management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee in the manner hereinafter provided.
XXXX XXXXX XXXXX 94 (4)(a)The Selection Committee for the appointment of a teacher of the University (other than the Director of an Institute and the Principal of a constituent college) shall consist of (i) the Vice Chancellor who shall be the Chairman thereof,; (ii)the head of the Department concerned: XXX XXX XXX (iii) in the case of a Professor or Reader, three experts, and in any other case, two experts be nominated by the Chancellor; XXX XXX XXX (6) No recommendation made by a Selection Committee referred to in sub section (4) shall be considered to be valid unless one of the experts had agreed to such selection.
XXX XXX XXX (7 A) It shall be open to the Selection Committee to recom mend one or more but not more than three names for each post.
(8)(a) In the case of appointment of a teacher of the Uni versity, if the Executive Council does not agree with the recommendation made by the Selection Committee, the Execu tive Council shall refer the matter to the Chancellor along with the reasons of such disagreement, and his decision shall be final.
Provided that if the Executive Council does not take a decision on the recommendations of the Selection Committee within a period of four months from the date of meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" Three authorities are involved in the selection of University teachers; (i) Selection Committee, (ii) Executive Council and (iii) Chancellor. 95 The Selection Committee for appointment of University teachers is a recommendatory body the composition of which has been prescribed under section 31(4)(a).
It is a high power Committee of which the Vice Chancellor shall be the Chairman.
The Head of the department concerned shall be a member.
There shall also be expert members in the particular subject.
The experts shall be drawn from outside the Univer sity and the Chancellor must nominate them.
In the case of appointment of Professor or Reader, there shall be three experts and in any other case two experts in the Selection Committee.
In the case of selection of teachers of the University, the recommendation of the Selection Committee shall not be valid unless atleast one of the experts agrees to such selection.
The Selection Committee has the liberty to recommend one or more candidates but not more than three names for each post.
The Executive Council is the principal executive body of the University whose powers and duties are provided under Section 21 of the Act.
Subject to the provisions of the Act, the Executive Council has power to appoint officers, teach ers and other employees of the University.
The appointment shall be made on the basis of recommendation made by the Selection Committee, which means in the order of merit of candidates arranged by the Selection Committee.
The Selec tion Committee has expert members and it has thus the exper tise to judge the relative suitability of competing candi dates.
The Executive Council has no such experts on the subject for selection.
Therefore, the Executive Council shall make appointments as per the position or ranking obtained in the recommendation, unless any other rule re quires otherwise.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recom mendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to over ride the recommendation and appoint a candidates of its own choice.
It may disagree, but should give reasons for disa greement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The nature of the Chancellor 's power located under Section 31(8)(a) is now to be considered.
The High Court has held that the Chancellor 's power is quasi judicial.
There is a 'lis ' before the Chancellor for determination and he has to decide the dispute as an arbitrator.
96 The suggested analogy with the position of an arbitrator was not even supported by counsel for the respondents.
The essence of the attack of Mr. Parasaran, learned counsel for the appellant is that there is no legal or equitable fight of parties or any dispute relating thereto for determination by the Chancellor and therefore, there is no duty to act judicially.
The Chancellor has only to consider the recom mendation of the Selection Committee in the light of disa greement if any, expressed by the Executive Council and direct appointment of a candidate in the select list.
The order of the Chancellor, and his function, it was argued, are purely administrative in nature.
Mr. K.P. Rao for re spondent (3) was indeed very fair in his submission.
He did not say that there is a 'lis ' before the Chancellor for determination.
He urged that the Chancellor is required to exercise his powers properly and not improperly even though there is no 'lis ' before him for adjudication.
The argument of Mr. Agarwal for the respondent No. 5, however, ranged a good deal under than his counter part appears to have done in the High Court.
The power of the Chancellor, he contend ed, is quasijudicial and he must determine the issue that is referred to him with reasons in support of his conclusion.
The question raised is of considerable importance and it has general application in Universities governed by similar pattern of statutory provisions.
Reference may be made to some of such enactments.
Section 27(4) of the provides that if the Executive Council is unable to accept any recommendation made by Selection Committee, it may remit the same for reconsidera tion and if the difference is not resolved, it shall record its reasons and submit the case to the Visitor for orders.
Similar are the provisions under the Calcutta University Act, 1979.
Section 32(2) therein provides that if the Syndi cate does not accept the recommendation of the Selection Committee it shall refer back the matter for reconsideration and if the Syndicate does not accept the reconsidered views, the matter shall be referred to the Chancellor whose deci sion shall be final.
Section 57(2)(e) of the Bombay Univer sity Act, 1974 is almost parallel and it states that if the Executive Council does not choose to appoint from amongst the persons recommended by the Selection Committee, it shall for reasons recorded refer to the Chancellor whose decision shall be final.
The by Section 27(5) also provides that if the Executive Council is unable to accept the recommendations made by the Selection Committee, it shall record its reasons and submit the case to the Visitor for final orders.
Section 49(2) of the M.P. Vishwavidhayalaya Adhiniyam, 1973 likewise requires where the Executive Council pro 97 poses to make the appointment otherwise than in accordance with the order of merit arranged by the Select Committee it shall record its reasons and submit its proposal for sanc tion of the Kuladhipati.
The pattern in the Kerala University Act, 1974 is slightly different.
The First Statute under that Act empow ers the Syndicate to make appointments contrary to recommen dation of the Committee but With the sanction of the Chan cellor.
The First Statute under the Delhi University Act, 1922 by clause 6 provides that the Executive Council shall appoint from time to time Professors and Readers etc.
on the recommendations of the Selection Committee constituted for the purpose.
Under the Act and Statute with which we are concerned, the Executive Council has no power to ask the Selection Committee to reconsider the recommendation.
It must for reasons recorded refer the matter under Section 31(8)(a) to the Chancellor for decision.
The Full Bench of the Allahabad High Court in L.N. Mathur, case (supra) had analysed the concept of quasi judicial function with reference to the power of the Chan cellor under Section 31(8)(a) and expressed the view that the reference to the Chancellor showed the existence of a disagreement between two University Authorities with respect to the claims of competing candidates.
The Chancellor has to decide the issue by examining the reasons given by the Executive Council and the records of the candidate.
The decision of the Chancellor is final and not subject to any appeal/revision and his power is quasi judicial.
The fact that the Chancellor is not required to follow any set proce dure or sit in public or take evidence does not make his function administrative.
Such are the reasonings for the conclusion of the High Court to hold that the Chancellor must act as a quasi judicial authority.
We find it difficult to accept the reasoning underlying the aforesaid view.
Before we consider the correctness of the proposition laid down by the High Court we must, at the expense of some space, analyse the distinctions between quasi judicial and administrative functions.
An administra tive function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation.
the decision is called 'purely administrative ' and there is no third category.
This is what was meant by Lord Reid in Ridge vs Baldwin, ; , 75 76: 98 "In cases of the kind with which I have been dealing the Board of Works . . was dealing with a single isolated case.
It was not deciding, like a judge in a law suit, what were the rights of the persons before it.
But it was decid ing how he should be treated something analogous to a judge 's duty in imposing a penalty . " "So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natu ral justice.
Sometimes the functions of a minister or de partment may also be of that character and then the rules of natural justice can apply in much the same way . " Subba Rao, J., as he then was, speaking for this Court in G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, 19 put it on a different empha sis (at 353): "The concept of a quasi judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its execu tive power . " Prof. Wade says "A judicial decision is made according to law.
An administrative decision is made according to administrative policy.
A quasi judicial function is an administrative function which the law requires to be exer cised in some respects as if it were judicial.
A quasi judicial decision is, therefore, an administrative decision which is subject to some measure of judicial procedure, such as the principles of natural justice." (Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47).
An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
It means that the decision maker should afford to any party to a dispute an opportunity to present his case.
A large number of authori ties are on this point and we will not travel over the field of authorities.
What is now not in dispute.is that the person concerned must be informed of the case against him and the evidence support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
Ridge vs Baldwin, (supra) and state of 99 Orissa vs Dr. Binapani Dei & Ors., ; The shift now is to a broader notion of "fairness" of "fair procedure" in the administrative action.
As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly (See: Keshva Mills Co. Ltd. v: Union of India; , at 30; Mohinder Singh Gill vs Chief Election Commissioner, ; at 434; Swadeshi Cotton Mills vs Union of India, and Management of M/s M.S. Nally Bharat Engineering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on February 9, 1990.
For this concept of fairness, adjudicative settings are not necessary, not it is necessary to have lis inter partes.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter partes.
The duty to act judicially or to act fairly may arise in widely differing circumstances.
It may arise expressly or impliedly depending upon the context and considerations.
All these types of non adjudicative administrative decision making are now covered under the general rubric of fairness in the administration.
But then even such an administrative deci sion unless it affects one 's personal rights or one 's property rights, or the loss of or prejudicially affects something which would juridically be called atleast a privi lege does not involve the duty to act fairly consistently with the rules of natural justice.
We cannot discover any principle contrary to this concept.
In the light of these considerations, we revert to the central issue, that is with regard to the nature of the Chancellor 's power under Section 31(8)(a).
It may be noted that the Chancellor is one of the three authorities in the Statutory Scheme for selecting and appointing the best among the eligible candidates in the academic field.
The Chancel lor is not an appellate authority in matters of appointment.
He is asked to take a decision, because the Executive Coun cil who is the appointing authority has no power to reject the recommendation of the Selection Committee and take a decision deviating therefrom.
The Chancellor 's decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to the Chancellor under Section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
What is referred to the Chancellor is the recommendation of the Selection Committee with the opinion, if any, recorded thereon by the Executive Council.
In fact, even without any opinion of the Executive Council, the matter stands automat ically 100 remitted to the Chancellor if the Executive Council delays its decision on the recommendation of the Selection Commit tee.
The proviso to Section 31(8)(a) provides for this contingency.
It reads: "Section 31(8)(a) xxxxx xxxxx Proviso: Provided that if the Executive Council does not take a decision on the recommendation of the Selection Committee within a period of four months from the date of the meeting of such Committee, then also the matter shall stand referred to the Chancellor, and his decision shall be final.
" The matter thus goes to the Chancellor for decision since the Executive Council could not take a decision on the recommendation of the Selection Committee.
The Chancellor in the circumstances has to examine whether the recommendation of the Selection Committee should be accepted or not.
If any opinion by way of disagreement has been recorded by the Executive Council on that recommendation, the Chancellor has also to consider it.
He must take a decision as to who should be appointed.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statu tory authorities.
Such a decision appears to be of an admin istrative character much the same way as the decision of the Executive Council with regard to appointment.
In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
In the instant case, that require ment has been complied with by the Selection Committee.
There is no further right with the candidates to make repre sentation to the Executive Council and much less to the Chancellor.
Reference however, was made to the observation of this Court in Dr. G. Sarana vs University of Lucknow and Ors., ; at 592.
While dismissing the writ petition challenging the recommendation made by the Selec tion Committee of the Lucknow University for appointment of a candidate as Professor, it was observed that "the ag grieved candidate has remedy by way of representation to the Executive Council and an application for re 101 ference under Section 68 of the Act to the Chancellor".
We have carefully perused the decision and that observation.
We find that it is of little assistance to the present case.
We are concerned with the scope of Section 31(8)(a) of the Act which was not considered in that case.
Apart from that, Section 31 confers no such right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The material in respect of every candidate has already been collected and collated by the Selection Commit tee.
Every material is on the record and the Chancellor has no power to take further evidence.
The Chancellor is autho rised to take a decision and he must take it on the avail able records since the Executive Council has not taken a decision on the recommendation of the Selection Committee.
The decision of the Chancellor in the exercise of this Statutory function does not, in our opinion, expressly or impliedly require the application of the principles of natural justice.
See also the observations of K.N. Singh, J., in R.S. Dass vs Union of India, at 633.
It has been argued that the order of the Chancellor becomes final and binding which is one of the features of judicial power.
It is true that the conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But it must be added that the order made by a statutory authority even it is given finali ty does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
Prof. De Smith makes a similar point in his book 'Judicial Review of Administrative Action ' (4th Edition p. 82).
Taking all these factors into consideration, we would sum up our opinion m this way.
The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasi judicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
The function of the Chancellor is to consider and direct appointment of a candidate on the basis of the relative performance assessed by the Expert Selection Committee and in the light of the opinion, if any, expressed by the Executive Council.
His decision nonetheless is a decision on the recommendation of the Selection Committee.
Such a power cannot be considered as a quasi judicial power.
And we see nothing in that to justify our thinking 102 that it must conform to the principles of natural justice.
The contention urged to the contrary is, therefore, unac ceptable to us.
We also do not agree with the contrary view taken by the High Court in the Full Bench decision in L.N. Mathur, case (supra).
The Chancellor, however, has to not properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal, irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
As stated in E.P. Royappa vs State of Tamil Nadu & Anr., ; "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch".
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative executive, or quasijudicial.
See Mrs. Maneka Gandhi vs Union of India & Anr., [1978] 1 SCC 248 at 283 84; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., ; at 740 41 and Som Raj & Ors.
vs State of Haryana, JT 1990 1SC 286 at 290.
The order of the Chancellor impugned in this case indi cates very clearly that he has considered the recommendation of the Selection Committee and the opinion expressed by the Executive Council.
He has stated and in our opinion, very rightly that the appellant possesses the prescribed qualifi cation for appointment as Reader.
The decision of the Chan cellor gets support from the Statute 11.01 of the First Statute.
The Statute 11.01 is in these terms: "11.01.
(1) In the case of the Faculties of Arts, Commerce and Science, the following shall be the minimum qualifica tions for the post of Lecturer in the University, namely (a) a Doctorate in the subject of study concerned or a published work of a high standard in that subject; and (b) Consistently good academic record (that is to say, the overall record of all assessment throughout the academic career of a candidate), with first class of high second class (that is to say, with an aggregate of more than 54% marks Master 's Degree in the subject concerned or equivalent Degree of a foreign University in such subject .) 103 (2) Where the selection committee is of the opinion that the research work of a candidate, as evidenced either by his thesis or by his published work, is of a very high standard, it may relax any of the qualifications specified in sub:clause of clause (1).
" The minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant then was found to have an alternate qualification though not a Doc torate in the subject.
The Selection Committee has accepted the alternate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Executive Council appears to have committed an error in stating that the appellant has lacked the essential qualifi cation and the Selection Committee has relaxed the essential qualification.
The Chancellor was, therefore, justified in rejecting the opinion of the Executive Council.
It is not unimportant to point out that in matters of appointment in the academic field the Court generally does not interfere.
In the University of Mysore & Ant.
C.D. Govind Rao, , this Court observed that the Courts should be slow to interfere with the opinion ex pressed by the experts in the absence of mala fide alleged 2against the experts.
When appointments based on recommenda tions of experts nominated by the Universities, the High Court has got only to see whether the appointment had con travened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
See also the decisions in Dr. J.P. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors., ; at 912 and Dalpat Abasahed Solunke vs
B.S. Mahajan, at 309 310.
In the result, tile appeals are allowed, the judgment of the High Court is set aside.
We also set aside the conse quential order dated June 16, 1989 made by the Registrar of the University reverting the appellant to her substantive post of Lecturer in Psychology.
Needless to state that her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all the conse quential benefits.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeals allowed.
|
The appellant and the respondents applied for the post of Reader in Psychology in Lucknow University.
Under the University Statute, the minimum qualification for the post was a Doctorate degree or a published work of high standard in the subject.
The respondents possessed Ph.D. degree, while the appellant 's thesis was nearing completion.
On the basis of her experience, performance at the interview and published work, which was found to be of high standard on the subject, the Selection Committee recommended the appellant 's appointment by grading her No. 1. 85 By a split of the majority, the Executive Council disa greed with the recommendation of the Selection Committee on the ground that the appellant did not possess the essential qualification for the post of Reader and it preferred the appointment of respondent No. 2.
In view of the Council 's disagreement, the matter was referred to the Chancellor for his decision under Section 31(8)(a) of the U.P. State Universities Act, 1973.
The Chancellor rejected the opinion of Executive Council and accepted the recommendations of the Selection Committee and directed that the appellant should be appointed as a Reader.
Respondent No. 1 challenged the Chancellor 's order by filing a writ petition in the High Court, which following its earlier Full Bench decision wherein it was held that the Chancellor must explicitly state the reasons for his deci sion and was enjoined by the Act to act quasijudicially quashed the Chancellor 's order with a direction to reconsid er the matter.
In the appeal to this Court on the question of the nature of the Chancellor 's power under Section 31(8)(a) of the U.P. State Universities Act, 1973: Allowing the appeal and setting aside the order of the High Court, this Court, HELD: 1.
Three authorities are involved in the Selection of University teachers ' (i) Selection Committee, (ii) Execu tive Council and (iii) The Chancellor.
The Selection Commit tee for appointment of University teachers is a recommenda tory body the composition of which has been prescribed under section 31(4)(a).
The Executive Council is the principle executive body of the University.
Subject to the provisions of the Act, it has power to appoint officers, teachers and other employees of the University.
Section 31(8)(a) seems to suggest that if the Executive Council wants to agree with the recommendation and appoint candidates in the order of merits, no reasons are to be given.
But if it wants to disagree with the recommendations made by the Selection Committee, it must give reasons for disagreement.
It has however, no power to override the recommendation and appoint a candidate of its own choice.
It may disagree, but should give reasons for disagreement and refer the matter under section 31(8)(a) to the Chancellor.
Then the decision of the Chancellor shall be binding on the Executive Council.
The Chancellor is not an appellate authority in matters of appointment.
His decision is called for when the Executive Council disagree with the recommendation of the Selection Committee.
What is referred to him 86 under section 31(8)(a) of the Act, is therefore, not a dispute between the Selection Committee and the Executive Council on any issue.
Nor it is a dispute between two rival candidates on any controversy.
It is indeed a decision with regard to appointment of a particular person or persons in the light of the recommendation and opinion if any, of the two statutory authorities.
[94H; 95A, IL F G; 99F H] 1.1 The power of the Chancellor under Section 31(8)(a) is purely of administrative character and is not in the nature of judicial or quasijudicial power.
No judicial or quasi judicial duty is imposed on the Chancellor and any reference to judicial duty, seems to be irrelevant in the exercise of his function.
Such a power cannot be considered as quasi judicial power.
[101 F H] L.N. Malhur vs The Chancellor, Lucknow University, Lucknow & Ors., ; Dr. U.N. Roy vs
G.D Tapase, [1981] UPLBEC, 309, disapproved.
Section 31 confers no right to make representation to the Executive Council or to the Chancellor against the recommendation of the Selection Committee.
There is no provision in the Section for hearing any candidate or the Executive Council.
There is also no provision for receiving evidence.
The decision of the Chancellor in the exercise of this statutory function does not expressly or impliedly require the application of the principle of natural justice.
[ I 01 B 1)] Dr. G. Sarana vs University of Lucknow and Ors., ; ; held inapplicable.
R.S. Dass vs Union of India.
[1966] (Supp.) SCC 617; re ferred to.
2.1 The Chancellor, however, has to act properly for the purpose for which the power is conferred.
He must take a decision in accordance with the provisions of the Act and the Statutes.
He must not be guided by extraneous or irrele vant consideration.
He must not act illegally, irrationally or arbitrarily.
Any such illegal.
irrational or arbitrary action or decision, whether in the nature of a legislative, administrative or quasi judicial exercise of power is liable to be quashed being violative of Article 14 of the Constitu tion.
[102B C] 2.2 The order of the Chancellor impugned in this case indicates very clearly that he has considered the recommen dation of the question Committee and the opinion expressed by the Executive Council.
The 87 minimum qualification prescribed for the post is a Doctorate in the subject of study concerned or a published work of high standard in the subject.
The appellant was found to have an alternate qualification though not a Doctorate in the subject.
The Selection Committee has accepted the alter nate qualification as sufficient and did not relax the essential qualification prescribed for the post.
The Execu tive Council appears to have committed an error in stating that the appellant has lacked the essential qualification and the Selection Committee has relaxed the essential quali fication.
The Chancellor was, therefore, justified in re jecting the opinion of the Executive Council.
His decision gets support from the Statute I 1.01 of the First Statute of the Lucknow University.
Accordingly the judgment of the High Court and the consequential order made by the Registrar of the University reverting the appellant to her substantive post of Lecturer are set aside.
Her original appointment as Reader pursuant to the decision of the Chancellor shall remain undisturbed with all consequential benefits.
[102E, 103B C, G] 3.
An administrative function is called quasi judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation, the decision is called 'purely administrative ' and there is no third category.
197G H] Ridge vs Baldwin, ; ; G. Nageshwara Rao vs Andhra Pradesh State Transport Corporation, ; Administrative Law by H.W.R. Wade 6th Ed.
p. 46 47, referred to.
3.1 The conclusiveness of the decision without the need for confirmation or adoption by any other authority is generally regarded as one of the features of judicial power.
But the order made by a statutory authority even it is given finality does not thereby acquire judicial quality if no other characteristic of judicial power is present.
Power to make orders that are binding and conclusive is not, by itself a decisive factor to hold that the power is judicial.
[101 E F] Prof. Desmith, 'Judicial Review of Administrative Ac tion ' 4th Ed., p. 82; referred to.
3.2 An administrative order which involves civil conse quences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem.
The person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken.
[98G H] 88 State of Orissa vs Dr. Binapani Dei & Ors., ; ; Ridge vs Baldwin, ; ; referred to.
3.3 So far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
For this concept of fairness, adjudicative settings are not necessary, nor it is necessary to have lis inter parties.
There need not be any struggle between two opposing parties giving rise to a 'lis '.
There need not be resolution of lis inter parties.
The duty to act judically or to act fairly may arise in widely different circumstances.
It may arise expressly or impliedly depending upon the context and con siderations.
All these types of non adjudicative administra tive decision making are now covered under the general rubric of fairness in the administration.
But then.even such an administrative decision unless it affects one 's personal rights or one 's property rights, or the loss of or prejudi cially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistance with the rules of natural justice.
[99A E] Keshva Mills Co. Ltd. vs Union of India, ; ; Mohinder Singh Gill vs Chief Election Commissioner. ; ; Swadeshi Cotton Mills vs Union of India, ; Management of M/s M.S. Nally Bharat Engi neering Co. Ltd. vs The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on 9.2.1990; ' referred to.
In matters of appointment in the academic field the Court generally does not interfere.
The Courts should be slow to interfere with the opinion expressed by the experts in the absence of mala fide alleged against the experts.
When appointments are based on recommendations of experts nominated by the Universities, the High Court has got only to see whether the appointment had contravened any statutory or binding rule or ordinance.
The High Court should show due regard to the opinion expressed by the experts constituting the Selection Committee and its recommendation on which the Chancellor has acted.
[103D E] University of Mysore & Anr.
C.D. Govinda Rao, ; Dr. J.B. Kulshreshtha & Ors.
vs Chancellor, Allahabad University, Raj Bhavan & Ors.
, ; ; Dalpat Abasaheb Soluke vs
B.S. Mahajan, ; followed.
The principle of equality enshrined in Article 14 must guide every state action, whether it be legislative, executive or quasi judicial.
[102C D] 89 E.P. Royappa vs State of Tamil Nadu & Anr., ; ; Mrs. Maneka Gandhi vs Union of India & Ant., [1978] 1 SCC 248; Ajay Hasia & Ors.
vs Khalid Mujib Sehravardi & Ors., [1981] I SCC 722; Som Raj & Ors.
vs State Of Haryana, JT ; referred 5.1 In matters relating to public employment whether by promotion or direct recruitment, only requirement to be complied with is the mandate of Articles 14 and 16 of the Constitution.
There shall be equality of opportunity and no discrimination only on ground of religion, race, caste, sex, dissent, place of birth or residence or any of them.
The eligible candidate has a right to have his case considered in accordance with law.
[100F]
|
Civil Appeal No. 577 of 1961.
Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No. 448 of 1952.
Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants.
C. B. Agarwala, and J. P. Goyal, for the respondent No. I. 1963.
May 3: The judgement of the Court was delivered by RAGHBAR DAYAL J.
The facts leading to this appeal, by special leave, are these.
Nine 551 persons, including Kedar Nath, instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No. I was the tenant inchief who had sub let the premises to defendant No. 2.
The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No. 1.
On appeal by defendant No. 2 the District judge set aside the decree for ejectment against defendant No. 2 and confirmed the rest of the decree against defendant No. 1.
It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952.
Kedar Nath, appellant No. 3, died on September 8, 1955.
In view of rr. 3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, the appeal abated so far as Kedar Nath was concerned as no application for bringing his legal representatives on the record was made within the prescribed time.
On October 1, 1956, two applications were filed in the High Court One was an application under section 5 of the Limitation Act for the condonation of the delay in filing the application for substitution of the heirs in placec of Kedar Nath.
The other was the application for substitution in which it was prayed that Bithal Das and Banarsi Das, the sons of Kedar Nath, deceased, be substituted in place of the deceased appellant as they were his heirs and representatives.
These two applications were dismissed on May 1, 1957, with the result that the appeal stood abated as against Kedar Nath.
Bhagwati Prasad, appellant No. 9 also died on July 2,1956.
His widow, Remeshwari Devi, was brought on the record in his place.
When the appeals of the appellants other than Kedar Nath came up for hearing on September 1, 1958, a preliminary objection was taken for the, 552 respondent that the entire appeal had abated.
Mr. jagdish Swarup, learned counsel appearing for the appellants, contended that the deceased belonged to a joint Hindu family and other members of the family were already on the record and that it was not necessary to bring on record any other person.
He further stated that the appeal could not be said to have abated in the particular circumstances.
The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hindu family and other relevant facts.
On September 8, 1958, an affidavit was filed by Suraj Prasad Misra pairokar of the appellants.
Para 9 of the Affidavit stated that Lala Ram Chandra Prasad, appellant No. 8, managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was 'already on the record.
A counter affidavit was filed stating that the allegations in para 9 of the affidavit were misleading, that there was no allegation in the affidavit that the family was a joint Hindu family and that the true facts were that the family of the plaintiffsappellants was not a joint family, that the members were separated, that Lala Ram Chandra Prasad was not karta of the joint Hindu family, that the plaintiffs were assessed to income tax separately and that the property in dispute was not joint family property or even joint property.
A rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the counteraffidavit were misleading and irrelevant and re affirming that Ram Chandra Prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family.
553 At the hearing of the appeal of the surviving appellants, the only point which was urged for consideration seems to have been that the surviving appellants were competent to continue the appeal in view of O.XLI, r. 4, C. P. C.
This contention was repelled in view of the full Bench decision of the Allahabad High Court reported in Baij Nath vs Ram Bharose (1), as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and contradictory decrees.
It accordingly dismissed the appeal.
It is against this decree that this appeal has been filed after obtaining special leave.
Mr. Sarjoo Prasad, learned counsel for the appellants, has raised two points.
One is that the provision of r. 2 of O. XXII and not of r. 3 of that Order apply to the facts of this case as the nine appellants constitute a joint Hindu family and the surviving plaintiffs could continue the appeal.
The second point is that if the provisions of r. 3 of O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4 of O.XLI have not been correctly construed in Baij Nath vs Ram Bharose (1) and Ramphal Sahu vs Babu Satdeo Jha (2).
We see no force in the first contention.
We have already referred to the contents of the various affidavits filed by the parties subsequent to the point being raised that Kedar Nath, the deceased appellant and the surviving appellants constituted a joint Hindu family.
They clearly indicate that the affidavits filed on behalf of the appellants made no averment that Kedar Nath and the surviving appellants formed a joint Hindu family, even though time had been given to them for filing an affidavit stating such a fact.
The inference is obvious, and (1) I.L.R. [1953) All, Pat, 870, 554 is that these people did not form a joint Hindu family as alleged by the respondents.
It is further of significance that the application made on October 1, 1956, for substituting the sons of Kedar Nath in his place stated that they were his heirs and legal representatives.
The application was on the basis that Kedar Nath was not a member of the joint Hindu family.
We are, therefore, of opinion that it is not proved that Kedar Nath, deceased, and the other appellants constituted a joint Hindu family that the right to appeal survived to the surviving appellants alone and that they could have continued their appeal in view of r. 2 of of XXII of the Code.
The second contention really is that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of O. XLI, r. 4 of the Code, that they were, therefore, competent to continue the appeal even after the death of Kedar Nath and the abatement of the appeal so far as he was concerned, that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief 'with respect to the rights and interests of Kedar Nath as well.
We do not agree with this contention Rule 4 of O.XLI reads: "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and there upon the appellate Court may reverse or vary the decree in the favour of all the plaintiffs,or defendants, as the case may be." These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire 555 decree.
The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of r. 4 O.XLI could apply.
The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was concerned.
If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal.
At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath.
The legal representatives could not have taken advantage of r. 4 of O. XLI.
It follows that r. 4 of O. XLI would not be available to the surviving plaintiffs at that time.
Further, the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an.
appeal, represents all the other non appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them.
Kedar Nath was alive when the appeal was filed and was actually one of the appellants.
The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath.
Kedar Nath 's appeal has abated and the decree in favour of the respondents has become final against his legal representatives.
His legal representatives cannot eject the defendants from the premises in suit.
It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the 556 deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final.
This Court said in State ' of Punjab vs Nathu Ram(1).
"The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly.
The reason is plain.
It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree.
It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken." No question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises.
The two deal with different stages of the appeal and provide for different contingencies.
Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances.
He can take advantage of this provision, but he may not.
Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable.
Order XXII operates during the pendency of an appeal and not at its institution.
If some party dies during the ' pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation.
If that is not done, the appeal by the deceased appellant abates and does not proceed any further.
There is thus no inconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and provide for (1) [1962] 2 S.C. R. 636 557 different contingencies.
There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.
We do not consider it necessary to discuss the cases referred to at the hearing.
Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r. 3.
See : Ramphal Sahu vs Babu Satdeo Jha (1); Amin Chand vs Baldeo Sahai Ganga Sahai(2), Baij Nath vs Ram Bharose (3); Nanak vs Ahmad Ali (4); Pyarelal vs Sikhar Chand (5); Raghu Sutar vs Nrusingha Nath (6); Venkata Ram Rao vs Narayana (7); Sonahar Ali vs Mukbul Ali (8).
The Bombay,, Calcutta and Madras High Courts have taken a differentview : see Shripad Balwant vs Nagu KushebaSatulal Bhattachariya vs Asiruddin ShaikhSomasundaram Chettiar vs Vaithilinga Mudaliar OrderXLI, r. 33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well.
This rule reads : "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an( this power may be exer cised by the Court notwithstanding that the (1) I.L.R. [1953] 2 All.
Lah.667 (3) I.L.R. [1953] 2 All.
(6) A.I.R. 1959 Orissa 148.
(7) A.I.R. 1963 A.P. 168 (8) A I.R. (9) I.R.R. (10) I.L.R. (11) I.L.R. 558 appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
" This rule is under the sub heading 'judgment in appeal '.
Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied.
Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly.
The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled.
The decree therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled.
Rule 33 really provides as to what the Appellate Court can find the appellant entitled to.
It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant.
It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require.
The Court is thus given wide discretion to pass such decrees and Orders as 559 the interests of justice demand.
Such a power is to be exercised in exceptional cases when its non exercise will lead to difficulties in the adjustment of rights of the various parties.
A case like the present is not a case of such a kind.
When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party.
The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned.
In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned.
This is always avoided.
Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versa arises.
In Mahomed Khaleel Shirazi & Sons vs Los Panneries Lyonnaises (1) it was held that O. XLI, r. 33 was not intended to apply to an appeal which was not a competent appeal against a party under the Code or under the Letters Patent 'of the High Court.
This principle applies with equal force in the present case.
The appeal by the surviving appellants is not competent in the circumstances of the case and, therefore, the provisions of 0.
XLI, r. 33 are not applicable to it.
We are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had (1) 53 I.A 84 560 abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them.
The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him.
It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant.
We, therefore, dismiss the appeal with costs.
Appeal dismissed.
|
Nine persons including K instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree, but on appeal, the District judge set aside the decree against defendant No. 2.
The plaintiffs then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K died on September 8, 1955.
No application for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned.
When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees.
The appellants claimed that the appeal was maint.
ainable on the grounds that the surviving appellants could have filed the appeal against the entire decree in view of the provisions of O. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well.
Held (1) that the provisions of r. 4 of 0.
41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and the surviving appel 550 lants could not be said to have filed the appeal as representing K. (2) that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm.
on to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, r. 3.
Ramphal Sahu vs Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Chand vs Baldeo Sahai Ganga Sahai, I.L.R. ; Baij Nath vs Ram Bharose, I.L.R. 1953 (2) All. 434; Nanak vs Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal vs Sikhar, Chand, I.L.R. 1957 M.P. 21; Raghu Sutar vs Narusingha Nath, A.I.R. 1959 Orissa 148 ; Venkata Ran Rao vs Narayana, A. I.R. and Sonahar Ali vs Mukbul Ali, A.I.R. 1956 Assam 164, approved.
Shripad Balwant vs Nagu Kusheba, I.L.R. ; Satula Bhattachariya vs Asiruddin Shaikh, I.L.R. and Somasundaram Chettiar vs Vaithilinga Mudaliar, I.L.R. , disapproved.
(3) that the provisions of O. 41, r. 33 were 'not applicable since the appeal by the surviving appellants was not competent in the circumstances of the case.
Mohomed KhaleeJ Shirazi & Sons vs Lee Tanneries 53 I.A. 84, relied on.
|
ivil Appeal No. 931 of 1986.
From the Judgment and Order dated 3.10.1985 of the Madhya Pradesh High Court in Civil Misc.
W.P. No. 15 10 of 1981.
P.N. Lekhi, M.K. Garg, Aman Lekhi and Lokesh Kumar for the appellants.
R.B. Datar, Sakesh Kumar, Uma Nath Singh, Satish K. Agnihotri and Ashok Singh for the respondents.
The Judgment of the Court was delivered by 133 SAWANT, J.
The two appellants in this case had joined the service in the Public Works Department of the respond ent Madhya Pradesh State, as Overseers.
They were thereafter appointed as Junior Engineers by direct recruitment the first appellant on August 29, 1969 and the second appellant on September 12, 1969.
Although the High Court in its im pugned judgment has stated that they were promoted as Junior Engineers from the posts of Overseers, it appears that that statement is not correct since their orders of appointment to the post of Junior Engineer which are Annexures P 1 and P 2 to the writ petition filed in the High Court show that their appointments as Junior Engineers were not by way of promotion.
This, however, makes no difference to the issues involved in the present appeal.
We have stated it to keep the record straight.
The grievance of the appellants is with regard to their seniority in the next promotional post, viz., that of Assistant Engineer.
The Recruitment Rules which govern the said promo tional post are known as Madhya Pradesh P.W.D. (Gazetted) Recruitment Rules, 1969 (hereinafter referred to as the 'Rules ').
According to these Rules, Junior Engineers, Over seers, Head Draftsmen and Draftsmen are eligible to be considered for promotion to the post of Assistant Engineer on their securing the requisite experience.
Each of these categories further has a fixed quota of its own.
The Depart mental Promotion Committee, D.P.C. to be short, whose con stitution is also prescribed in these Rules, is required to consider the names of all the eligible candidates on merits, and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates ordinarily in the order of their seniority unless a junior is exceptionally merito rious in which case, of course, he is given a higher number in the selection list.
This list is then sent through the State Government to the Public Service Commission for its consideration and approval.
The list as approved by the Commission then becomes the select list, and promotions are made from this list in the same order as is arranged in the list.
However, in case of an administrative exigency, the State Government is given power to appoint anyone not in cluded in the said list if the vacancy is not likely to last for more than three months.
Under the Rules, to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
It appears that the State Government wanted a certain 134 number of Assistant Engineers, but enough number of Junior Engineers with requisite qualifying service were not avail able at the relevant time.
Admittedly the appellants were two of such unqualified Junior Engineers since they had not completed their two years ' qualified service as Junior Engineers at the relevant time.
Hence, taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the said Rules, the Government promoted some Junior Engineers including both the appellants as Assistant Engineers on July 22, 1971 on purely ad hoc basis.
In the order appointing then, it was stated as follows: "Since adequate number of Junior Engineers with requisite qualify ing service are not available for appointment as Assistant Engineers, and but for these promotions large number of Assistant Engineers ' posts would remain vacant adversely affecting the construction work . . . . .
These appointments will not be deemed to determine seniority as Assistant Engineer for any purpose whatsoever.
It is not disputed that on July 22, 1971 when the appellants were so appointed as Assistant Engineers on ad hoc basis, appellant No. 1 was short of 'two years ' qualify ing service period by one month and appellant No. 2, by two months.
They became qualified on August 22, 1971 and on September 11, 1971 respectively.
It appears that while the appellants continued to act as Assistant Engineers on ad hoc basis, on August 7, 1972.
respondents 40 to 63 were appointed as Assistant Engineers by direct recruitment.
Thereafter, on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date, the State Government issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at Serial No. 14 and appellant No. 2 at Serial No. 28.
The State Government thereafter prepared a seniority list of Assistant Engineers which reflected the seniority of appellants as having been appointed on and from November 22, 1972 and as per the ranking given in the said order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a writ petition.
Although it appears the appellants had also joined to the petition, those Junior Engineers who were promoted as Assistant Engi neers along with the appellants by the same order and whose seniority in the list had reflected their placement in the order of appointment, the challenge to the seniority of those Junior Engineers was given up at the time of the arguments before the High Court, and it was confined to the seniority of respondents 2 to 39 who were Overseers and were selected by the D.P.C. 135 from their own quota as Assistant Engineers along with the appellants, and to the seniority of respondents 40 to 63 who were appointed by direct recruitment on August 7, 1972.
The first challenge common to the seniority of all the respondents 2 to 63 was based on the contention that the appellants ' ad hoc service as Assistant Engineers from July 22, 1971, when they were promoted on ad hoc basis, to Novem ber, 22, 1972, on which date they were selected as regular appointees, was not taken into account.
The second challenge was confined to the seniority given to respondents 2 to 39 by giving them a weightage of their experience as Overseers.
The High Court negatived both the challenges and dismissed the writ petition.
Hence the present appeal.
The same contentions which were advanced before the High Court was advanced before us.
We will, therefore, first examine the grievance that the ad hoc service of the appel lants was not counted for the purpose of the appellants ' seniority.
A heavy reliance is placed on behalf of the appellants on the decision of this Court reported in Balesh war Dass & Ors.
vs State of U.P. & Ors. etc.
, [1981] 1 S.C.R. 449 in support of the contention that ad hoc officia tion is entitled to be counted for the purpose of seniority.
The ratio of the said decision however is not applicable to the present case.
In that case there was no dispute that the temporary appointees to the posts, who were claiming benefit of their temporary appointment or officiation were qualified to be appointed to the posts when they were initially ap pointed.
, All the procedural formalities of their appoint ments were also followed, namely, they had completed their probationary period, the Public Service Commission had given its approval and they had also been medically examined and found it.
No rule was breached in making their appointment.
The vacancies to which they were appointed were also sub stantive vacancies.
Their appointments, however, had contin ued for a number of years although there was no obstacle whatsoever in making them regular or permanent.
All that had remained to be done was the issuance of a format order of regularisation of the appointment which for unexplained reasons, the Govt.
had failed to do for a number of years.
The Court therefore observed that "a post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for 10 or more years under the head "temporary" for budgetary or other technical reasons.
Those who are appointed and hold tempo rary posts of the latter category are also members of the service provided they have been appointed substantively to that temporary post".
A 136 little later, the Court made further observations in this connection, as follows: "Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary.
If it is not, the further point to notice is as to whether the appointments are regular and not in viola tion of any rule, whether the Public Service Commission 's approval has been obtained and whether probation, medical fitness etc., are complete.
Once these formalities are complete, the incumbents can be taken as holding posts in substantive capacities and the entire officiating service can be considered for seniority.
For other purposes they may remain temporary . . .
The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. ' ' (Emphasis supplied) It will thus be seen that in that case the appointments to the substantive vacancies were made according to rules after complying with the procedure for regular appointment.
There was no requirement of the Recruitment Rules which was left to be complied with.
In our case unless the D.P.C. makes the selection, none can be appointed as Assistant Engineer regularly.
Similar were the facts in the case of G.P. Doral & Ors.
vs Chief Secretary, Government of U. P. & Ors., ; in that case the petitioners were temporarily appointed as Khandsari Inspectors having been selected in the departmental competitive test and interview.
Their appointments were however "subject to final selection by Public Service Commission at a later date".
Some of the respondents 137 were also appointed to the same posts subsequently in the same manner.
The names of these recruits were later forward ed to the Public Service Commission which accorded its approval to their appointments.
The Department drew up a provisional seniority list on the basis of the recommenda tions of the said Commission by taking the date of approval/selection by the Commission in respect of each candidate as the basis for determining the length of contin uous officiation.
The Department supported its action on the ground that it had prepared the list by reckoning seniority from the date of their "substantive appointments" in accord ance with an earlier Government Order of 1940 which pre scribed certain guidelines or model rules for framing rules governing conditions of service.
The model set out in the order suggested two independent principles for determining seniority, namely, (i) the date of substantive appointment and (ii) the date of the order of first appointment, if such appointment is followed by confirmation.
In the seniority list, the petitioners were placed below the respondents though they were initially appointed prior to the respond ents.
This Court quashed the seniority list holding that the question as to from what date the service is to be reckoned will depend upon the facts and circumstances of each case.
It was observed there that: "Where officiating appointment is followed by confirmation, unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, then in the absence of the contrary rule, the approval which means confirmation by the authority which had the authority, power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made . . .
If a stopgap ap pointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated." (emphasis ours) The Court also found there that the earlier order of 1940 had not prescribed any binding rule of seniority and assum ing that it did, the 138 seniority list did not conform to the model.
The model set out in the Government Order prescribed two different start ing points for reckoning seniority and it was difficult to assume that the department adopted one and rejected the other without making a specific rule in that behalf.
It will thus be clear that the Court was dealing with an altogether different situation in both the aforesaid cases.
There was no dispute in those cases that except for the terminology and nomenclature there was no distinction be tween a temporary and permanent appointment and all that remained to be done in those cases was the formalisation of the appointments.
That is not the situation in the present case.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifically under the power given to the Government to make ad hoc appointments for administrative exigency.
The ap pointment orders made it clear that the appointments were in the said special circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
There is further no dispute that no appointments could be made as Assistant Engineers except by way of either direct recruitment through the Public Service Commission or promo tion through the selection made by the D.P.C. as per the quota assigned to different categories.
The first D.P.C. which met for selection, after the appellants became quali fied for being promoted, was held on October 12, 1972.
It is in this meeting that the appellants were selected along with the other qualified promotees, namely, respondents 2 to 39.
The D.P.C. further had the power also to arrange the senior ity of the promotees according to merits.
For all purposes, therefore, the appointment of the appellants on July 22, 1971 was ad hoc and not according to rules.
Their selection/appointment on November 22, 1972 by the D.P.C was further not a mere formality or a process undertaken only for formalisation of their earlier appointment.
In the circumstances, their appointment on November 22, 1972 could not relate back to July 22, 1971 and hence they were not entitled to claim their officiation between July 22, 1971 and November 22, 1972 for being counted for the purposes of their seniority for placing them either above respondents 40 to 63, who were directly recruited on August 7, 1972 or above respondents 2 to 39, who were promoted by the D.P.C. along with them, on November 22, 1972, and who happened to be senior to them even as Junior Engineers.
The other leg of the aforesaid contention was that the appellants were appointed under Rule 7(4) of the said Rules and not under 139 the proviso to Rule 19 of the Rules inasmuch as under the latter provision, their appointments could not have been made.
The argument was that the latter provision permitted appointments for an administrative exigency only in vacan cies which did not last for more than three months.
Since the appellants continued in the post for more than a year before they were selected on November 22, 1972, it should be held that their appointment was under Rule 7(4) of the Rules.
As has been pointed out by the High Court, the re course to Rule 7(4) is unwarranted because that provision deals with the method of recruitment and permits the State Government to adopt any method other than those provided there.
One of the methods permitted by that provision admit tedly is promotion, and since the appellants were admittedly promoted, though they were not qualified on that date, their case would not be covered by the third method of recruitment which is other than the one prescribed there.
Therefore, the argument that they should be considered to have been re cruited to the post of Assistant Engineer by a method other than that expressly provided by the said Rule 7(4) is only to be stated to be rejected.
Once it is held that they were promoted on ad hoc basis, what comes in the play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appointments for purely administrative exigen cies.
It was then contended that since the proviso to Rule 19(1) permitted appointments in vacancies which were to last for more than three months, it should be held that after the appellants became eligible during the first three months of their appointment, their further continuation was on regular basis.
This argument has also no substance in it, for as pointed out earlier, for being selected for appointment as Assistant Engineers, the appellants had to face the D.P.C. and the Government had no power to make regular appointments to the said post unless the D.P.C. had selected the candi dates for the posts.
Secondly, the proviso to Rule 19(1) has to be read liberally.
The said provision has to be inter preted to mean that the appointments under the said provi sion can be made for three months at a time.
Thus there was nothing to prevent the State Government from renewing the appointment of the appellants every three months.
The second contention is directed against the senior ity of respondents 2 to 39 and proceeds on the ground that the weightage given to them is illegal.
This contention must also fail for the following reasons.
Admittedly the Rules of Recruitment prescribe appointments to the post of Assistant Engineer from two sources, namely, (i) by direct recruitment and (ii) by promotion in the proportion of 50 50. 140 The promotional posts are further required to be filled in from three different cadres in the following proportion: '(i) 25% from Junior Engineers (ii) 20% from Overseers (iii) 5% from Head Draftsmen/Draftsmen.
Under the Madhya Pradesh P.W.D. (non gazetted) Recruitment Rules of 1972 (hereinafter referred to as 1972 Rules), the Overseers who acquire an Engineering degree or qualify for A.M.I.E. become eligible for promotion to the post of Junior Engineers as soon as the vacancy arises.
The inter se sen iority between the Overseers and the Junior Engineers in the cadre of Junior Engineers is to be fixed in accordance with Rule 14(3) of the said Rules by giving weightage of two months for every year of their service to the Overseers.
When the D.P.C. met on October 12, 1972 and considered the cases both of the appellants and the respondents, the Com mittee had submitted the names of the selected candidates cadre wise, i.e. separately of Junior Engineers, Overseers, Head Draftsmen/Draftsmen.
The General Administration Depart ment thereafter considered the matter.
Under the Rules, the Overseers were required to obtain an Engineering degree or qualify for A.M.I.E. and were also required to serve for 12 years as Overseers to become eligible for being considered for appointment as Assistant Engineers.
As against this, the Junior Engineers who were degree holders were required to serve only for two years to become eligible for being con sidered to the said post.
Taking these aspects into consid eration their inter se seniority, namely, the interse sen iority of the appellants and the Overseers promotee respon deets was fixed by the Government according to the following formula which was in vogue for a number of years: (a) In the cadre of Junior Engineers, Overseers so promoted were given weightage as per Rules of 1972, and promotional dates for seniority in the cadre were fixed accordingly.
(b) In the cadre of Assistant Engineers, the date of reckon ing of seniority was the one on which Junior Engineer or Overseer or Head Draftsman/Draftsman completed the respec tive span of service for eligibility.
Hence, when seniority was fixed as per the impugned seniori ty list of 141 the cadre of Assistant Engineers, when admittedly the Rules of 1972 were in vogue, it was fixed according to the afore said formula.
There is no dispute that according to the said formula, which can hardly be faulted, respondents 2 to 39 who were senior as Junior Engineers, were entitled to sen iority over the appellants.
It may further be pointed out that the Rules of 1972 were not challenged either before the High Court or before us.
All that was challenged before the High Court was that these Rules were restricted in their application only to the promotions made to the post of Junior Engineers and were not applicable to the promotions made to the post of Assistant Engineers.
On the face of it, such a challenge is meaningless because Rule 14 of the said Rules is clearly meant for the promotions to the post of Assistant Engineers.
Otherwise the seniority given to the Overseers etc.
in the seniority list of Junior Engineers on the basis of the their service as Overseers, is meaningless.
For all these reasons, we find no substance in this conten tion either.
We, therefore, confirm the decision of the High Court and dismiss the appeal.
There will, however, be no order as to costs.
R. N.J. Appeal dismissed.
|
The two appellants had joined as overseers in the P.W.D. of the respondent Madhya Pradesh State.
Thereafter they were appointed as Junior Engineers.
The grievance of the appel lants is with regard to their seniority in the next promo tional post viz, that of Assistant Engineer.
Recruitment Rules which govern the promotional post lay down that the Departmental promotion Committee is required to consider the names of all eligible candidates on merits and judge their suitability in all respects on merit cum seniority basis.
The D.P.C. is also required to arrange the names of all the selected candidates in the order of their merit.
In the case of exceptionally meritorious junior he is given a higher number in the selection list.
This list is sent to Public Service Commission for its approval.
After approval the list becomes the select list and the promotions are made from this list serial wise.
Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experi ence of two years as Junior Engineer.
As the State Govt.
wanted a certain number of Assistant Engineers but enough number with requisite qualifying serv ice were not available so taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 19(1) of the Rules the Govt.
promoted some Junior Engineers including both the appellants is Assistant Engineers on July 22, 1971 on purely ad hoc basis.
On August 7, 1972 respond ents 40 to 63 were appointed as Assistant Engineers by direct recruitment and on November 22, 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the D.P.C.
On the same date the State Govt.
issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No. 1 was shown at 132 serial No. 14 and appellant No. 2 at serial No. 28.
The State Govt.
thereafter prepared a seniority list of Assist ant Engineers as per the order of November 22, 1972.
The appellants challenged the seniority list before the High Court by a Writ Petition.
The High Court dismissed the Writ Petition.
Hence the present appeal.
Dismissing the appeal, this Court, HELD: Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer, a Junior Engineer has to have an experience of two years as Junior Engineer.
[133G] In the instant case, unless the D.P.C. makes the selec tion, none can be appointed as Assistant Engineer regularly.
The appellants were ineligible to be appointed as Assistant Engineers initially.
Their appointments were made specifi cally under the power given to the Government to make ad hoc appointments for administrative exigency.
The appointment orders made it clear that the appointments were in the said Special Circumstances and that they will not be deemed to determine seniority for any purpose whatsoever.
[138C D] Once it is held that the appellants were appointed on ad hoc basis, what comes into play is the proviso to Rule 19(1) which permitted the Government to make such ad hoc appoint ments for purely administrative exigencies.
[139D] Baleshwar Dass & Ors.
vs State of U.P. & Ors etc.
, [1981] 1 S.C.R. 449 and G.P. Doval & Ors.
vs Chief Secre tary, Government of U.P. & Ors., ; , re ferred to.
|
Appeal No. 891 of 1988.
From the Judgment and Order dated 30.7.1987 of the Orissa High Court in O.J .C.
No. 162 1 of 1987.
Govind Das and J.R. Das for the Appellant.
P.N. Misra, A.K. Jha and P.K. Jena for the Respondents.
The following Judgments of the Court were delivered SAWANT, J. This is an appeal by special leave against the order dated 30th July, 1987 of the High Court of Orissa.
The appellant passed his M.A. examination in July 1981 securing in the aggregate 364 marks out of 900 marks, i.e., more than 40 per cent of the total marks.
In 1983, he secured admission in Ganjam Law College for three year Law Course.
There is no dispute that at the time he took admis sion, he had submitted his marks sheet along with his M.A. degree certificate.
The appellant completed his first year course known as the "Pre Law Course" and in 1984 was promot ed to the second year course known as the "Intermediate Law Course".
In 1985, he appeared for the Pre Law and Inter Law examinations held by the Berhampur University to which the Ganjam Law College is affiliated.
He gave the said examina tion and in the same year he was admitted to the Final Law course in the same College.
It appears that although he was admitted to the Final Law classes, his results for the Pre Law and Inter Law examinations were not declared.
The appellant made represen tations to the Bar Council 275 of India and the Administrator of the Berhampur University, on February 12, 1986.
On October 30, 1986, the University replied that since the appellant had secured less than 39.5 per cent marks in his M.A. degree examination, he was not eligible for admission to the Law Course.
On November 11, 1986, the appellant made a representation pointing out that he had secured more than 40 per cent marks in the said examination and, therefore, he was entitled to be admitted to the Law course.
On November 14, 1986, the Chairman of the Board of Studies also wrote to the Deputy Registrar of the University pointing out that the Board of Studies in its meeting held on October 29, 1986 had recommended that those students who had passed their M.A. examination and had secured more than 40 per cent of the total marks should be considered eligible for admission to the Law course even though they had secured less than 20 per cent marks in any one of the papers in the said examinations.
In spite of this, the University did not take any step to announce the appellant 's results.
Hence, the appel lant approached the Orissa High Court by a writ petition on May 11, 1987 challenging the non declaration of his results and the University 's refusal to permit the appellant to appear in the Final Law examination.
The writ petition was dismissed by the High Court by the impugned order of July 30, 1987.
Against the said decision the present appeal was filed.
By an interim order of March 15, 1988.
the appellant was permitted to continue his Final Law course and to appear in the examination of the said course.
It was also directed that the results of the examinations in which the appellant had appeared should be declared in due course.
On these facts, the question that falls for consider ation is whether the appellant was eligible to be admitted to the Law course.
The University has objected to the appel lant 's admission on the ground that the University Regula tion 1 in Chapter VIII relating to the Bachelor of Laws Examination (Three Year Course) read with Regulation 10 in Chapter V of the University Regulations relating to the Master 's Degree Examination requires that if the student has secured less than 25 per cent marks in any of the papers for M.A. examination, he should have on the aggregate more than 39.5 per cent marks in the said examination.
Admittedly, the appellant has obtained in the aggregate 364 marks out of 900 marks, i.e., more than 40 per cent marks, but in one paper in Group II, he has secured only 13 marks out of 100 which were less than 25 per cent.
It is, therefore, the Universi ty 's contention that in view of the said Regulations, he was not qualified to be admitted to the Law course and since he was admitted wrongly, he 276 was not entitled to appear for the examination and, there fore, for the declaration of his results in the said exami nation.
Regulation 1 of Chapter VIII which lays down qualifi cation for admission to the Law course is as follows: "1.
Any registered candidate may be admitted to the degree of Bachelor of Laws, if (a) he passes the examination for the degree of Bachelor of Arts, Bachelor of Science, Bache lor of Commerce, Bachelor of Oriental Learning, Bachelor of Medicine and Bachelor of Surgery, Bachelor of Science (Engineering), Bachelor of Science (Agriculture), Bachelor of Veterinary Science and Animal Husbandary, B. Pharma or any other examination recognised by the Bar Council of India and the Academic Council as equivalent thereto securing 40% or more than 39.5% of marks in the aggregate of such exami nation or any other higher degree examination passed after graduation.
Provided that relaxation to the extent of 5% of marks in the qualifying examination be allowed to the Sched uled Caste and Scheduled Tribe candidates.
Provided further that in case of physically or the paedically handicapped candidates, relaxation upto 5% of marks in the qualifying examination may be given on produc tion of a certificate of.disability from any Government Medical Officer to the satisfaction of the authority con cerned .
The first paragraph of Regulation 1 on which reliance is placed by the University shows that the requirement of 40 per cent or more than 39.5 per cent marks in the aggregate, is meant only for graduates such as of Bachelors of Arts etc.
That requirement does not apply to those candidates who pass any higher degree examination after graduation.
There fore, on a plain reading of the said paragraph, a postgradu ate student like the appellant who has passed his M.A. examination is not required to satisfy further that in the said post graduate examination he has secured 40 per cent or more than 39.5 per cent marks in the aggregate.
It is enough if he has passed his post graduate examination.
277 7.
What is further, Regulation 10 in Chapter V of the Regulations which prescribes marks for passing M.A., M.Com.
and M.Sc.
examinations states that the minimum marks re quired for a student to pass the said examinations is 36 per cent in the aggregate of all the theory papers taken togeth er in case of M.A. and M.Com.
examinations, and in the case of M.Sc.
examination, 36 per cent in the aggregate of all the theory papers taken together and 40 percent in the aggregate of all the practical papers taken together.
I am not concerned here with the marks of M.Sc.
examination.
The proviso to the said Regulation 10, further states that no minimum pass marks shall be required in any paper.
But if in any paper a candidate obtains less than 25 per cent of marks, those marks shall not be included in the aggregate.
In other words, in the case of the appellant, who has ob tained 364 marks out of 900 on the aggregate, his 13 marks in one of the papers being less than 25 per cent have to be excluded.
His aggregate marks, therefore, come to 35 1 out of 900 marks according to this Regulation.
They are admit tedly more than 36 per cent as required by the said Regula tion for passing the M.A. examination.
I may reproduce the said Regulation here: "10.
The minimum marks that a candidate shall obtain to have passed shall be thirty six per cent in the aggregate of all the theory papers taken together in the case of M.A./ M.Com.
and in the case of M.Sc.
thirty six per cent in the aggre gate of all the theory papers taken together and forty per cent in the aggregate of all the practical papers taken together.
Provided further that no minimum pass marks shall be required in any paper but if in any paper a candidate obtains less than twenty five per cent of marks then these shall not be included in the aggregate.
Even though, therefore, for admission to the Law course there is no requirement of any particular marks for post graduate students like the appellant, and the appellant is entitled to be admitted under Regulation 1 in Chapter VIII of the said Regulations quoted earlier, the appellant satisfies the other qualification as well, viz., he has passed the M.A. examination with 36 per cent in the aggre gate deducting 13 marks in one of the papers and is, there fore, duly qualified to be admitted to the Law course.
Mr. Misra appearing for the respondents, however, conten 278 ded firstly that the qualifying marks for admission as per Regulation 1 of Chapter VIII even for post graduate students was 40 per cent or more than 39.5 per cent and since the appellant admittedly did not secure more than 39.5 per cent marks after deducting from the aggregate 13 marks secured in one of the papers, he was not eligible for being admitted to the Law course.
I have pointed out herein after that the plain reading of the said Regulation shows that the qualify ing marks laid down there do not apply to the post gradu ates.
They apply only to graduates.
As far as the post graduates are concerned, it is enough that they have passed their examination.
Secondly, he has also obtained the marks as required by the said Regulation 10 of Chapter V which is applicable to the appellant, viz., 39 per cent when the minimum marks laid down by the said Regulation is only 36 per cent.
Mr. Misra then relied upon the prospectus of the Ganjam Law College which had laid down as follows: "1. . . . 2. . . . 3.
Eligibility for admission.
(1) Pre law class.
(a) An aggregate of 40 per cent and above, in the B .A., B.Sc, B.Com, or any other university Degree of Higher Uni versity examination recognised by Berhampur University . . ".
and contended that even if a candidate has a higher degree than B .A., B.Sc., B.Com., he has to have an aggregate of 40 per cent minimum marks.
As I read the said prospectus, I find that it is on par with the qualification for admission given in University Regulation 1 in Chapter VIII quoted above.
The aggregate of 40 per cent and above marks is required only for graduates and there is no requirement of any percentage of marks prescribed for the post graduates.
Resolution No. 123/1984 of the Bar Council of India passed on October 30, 1984 and which is Annexure 'K ' to the re spondent University 's counteraffidavit also shows that for admission to three year Law course the qualification of minimum of 39.5 per cent marks is meant only for graduates.
That Resolution does not speak of the requirement of marks for examination at post graduate level.
I am also of the view that this distinction between graduates and post gradu ates made in the 279 matter of the qualifying marks is as it ought to be, since graduates and post graduates cannot be treated equally.
A post graduate student has a minimum of two years more of academic pursuit to his credit than the graduate before he seeks admission to the Law course.
Obviously, therefore, they cannot be treated equally, and that is what the Univer sity and the Bar Council of India have rightly done.
It is the interpretation placed by the University on its own Regulations and the Resolution of the Bar Council of India which is at fault and not the Regulations or the Resolution.
This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission.
The Law College had admitted him.
He had pursued his studies for two years.
The University had also granted him the admission card for the Pre Law and Intermediate Law examinations.
He was per mitted to appear in the said examinations.
He was also admitted to the Final year of the course.
It is only at the stage of the declaration of his results of the Pre Law and Inter Law examinations that the University raised the objec tion to his so called ineligibility to be admitted to the Law course.
The University is, therefore, clearly estopped from refusing to declare the results of the appellant 's examination or from preventing him from pursuing his final year course.
For all these reasons, I am of the view that the University is not justified in refusing to declare the appellant 's results of the PreLaw and Intermediate Law examinations.
The appeal, therefore, succeeds.
The respond ent University is directed to declare the said results as well as the result of the Final examination if the appellant has appeared for the same.
The appeal is allowed according ly.
In the circumstances of the case, there will be no order as to costs.
SHARMA, J.: 12.
I agree that the appeal should be allowed as indi cated by my learned Brother.
The learned counsel for the appellant contended that the respondent University having issued the admit card and permitted the appellant to appear at parts I and II of Law Examination, should not have later refused to publish his result.
If there was any irregularity in the admission of the appellant for the Law course, the University authorities ought to have scrutinised the position before permitting 280 him to take the examination.
It was pointed out that in identical circumstances the same High Court had earlier in the same year allowed the case of another candidate in O.J.C. No. 2619 of 1986 by a judgment, which also was by a Division Bench.
Mr. P.N. Misra, the learned counsel for the respond ent, contended that the University had informed the Colleges about the necessary condition for admission to the Law course which, it appears, was not respected by the College.
When the applications by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to send the marks of the candidates for the purpose of verification.
but the Principal did not comply.
The letters Annexures 'F ' and 'G ' to the counter affidavit have been relied upon for the purpose.
The learned counsel pointed out that instead, the Principal sent a letter Annexure '1 ' stating that the marks list would be sent in a few days for "your kind reference and verifica tion" which was never sent.
The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible.
In these circum stances, the argument is.
that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination.
1 am afraid, the stand of the respondent cannot be accepted as correct.
From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself.
In that situation it cannot punish the student for the negligence of the Principal or the Universi ty authorities.
It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody.
He had pro duced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation.
The interpretation of the rule on the basis of which the University asserts that the appel lant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as cor rect.
In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candida ture of the appellant for the examination in question.
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.
Before parting I would like to impress upon the University authorities to frame the rules in such clear terms that it may not 281 require great skill for understanding them.
It is a serious matter if a student who acts upon one interpretation of a rule and spends a considerable period of his youth, is later threatened by a possible alternative construction, which may cost him several years of his life.
In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy.
Y. Lal Appeal allowed.
|
After passing his M.A. examination securing more than 40 per cent marks (364 out of 900), the appellant secured admission in 1983 to three years law course in Ganjam Law College.
Along with his form seeking admission he had sub mitted the mark sheet with his M.A. degree certificate.
He completed his first year course 'Pre Law course ' in 1984 and was promoted to the "Intermediate Law course".
In 1985, he appeared for the 'pre law ' and 'inter law ' examinations.
He gave the said examination and in the same year was admitted to the Final Law course.
However his results for the Pre Law and Intermediate Law course were not declared by the Univer sity on the ground that in view of the Regulations of the University, he was not qualified to be admitted to the law course.
His admission being improper, he was not eligible to sit at the examinations aforesaid.
The appellant made repre sentations to the Bar Council of India and the Administrator of the University but to no avail.
When his representations and even the communication from the Chairman of the Board of Studies to the University did not yield the desired result, the appellant approached the Orissa High Court by means of writ petition on 11.5.87 challenging the non declaration of his results and the University 's refusal to permit the appellant to appear in the final examination.
The writ petition having been dismissed by the High Court, he has filed this appeal by special leave.
The question that falls for determination by this Court is whether the appellant was eligible to be admitted to Law Course.
Allowing the appeal, this Court, HELD: (Per Sawant, J.) The requirement of 40 per cent marks in the aggregate, is meant 273 only for graduates such as of Bachelor of articles etc.
That requirement does not apply to those candidates who pass any higher degree examination after graduation.
For admission to the Law Course there is no requirement of any particular marks for post graduate students like the appellant, and the appellant is entitled to be admitted under Reg. 1 in Chapter VIII of the said Regulations.
The appellant satisfies the other qualification as well, viz., he has passed the M.A. examination with 36 per cent marks in the aggregate deduct ing 13 marks in one of the papers and is therefore, duly qualified to be admitted to the Law course.
[277G; 278F G] Resolution No. 123/1984 of the Bar Council of India does not speak of the requirement of marks for examination at post graduate level.
[279G] The distinction between graduates and post graduates made in the matter of the qualifying marks is as it ought to be, since graduates and post graduates cannot be treated equally.
The appellant while securing his admission in the Law College had admittedly submitted his marks sheet along with the application for admission.
The Law College had admitted him.
He had pursued his studies for two years.
The Universi ty had also granted him the admission card for the Pre law and Intermediate Law examinations.
He was permitted to appear in 'the said examinations.
He was also admitted to the Final year of the course.
It is only at the stage of the declaration of his results of the Pre law and Inter law examinations that the University raised the objection to his so called ineligibility to be admitted to the Law course.
The University is therefore clearly estopped from refusing to declare the results of the appellant 's examination or from preventing him from pursuing his final year course.
[280C E] (Per Sharma, J. ) From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself.
In that situa tion it cannot punish the student for the negligence of the Principal or the University authorities.
It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody.
He had produced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation.
[281D F] 274 Assuming the construction of the rule as contended by the University is correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question.
It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so, it cannot refuse to publish his results.
[281F G] It is impressed upon the University authorities to frame the rules in such clear terms that it may not require great skill for understanding them.
In order to achieve clarity, it does not matter, if the rule, instead of being concise, is elaborate and lengthy.
[281H; 282A]
|
ivil Appeal No. 698 of 1980.
From the Judgment dated the 2.5.1979 of the Kerala High Court in M.F.A. 346 of 1978.
M.M. Abdul Khader, Darshan Singh and Praveen Kumar for the Appellant.
P.S. Poti, P.K. Pillai (N.P.), T.T. Kunnhikannan and Ms. Malini Poduval for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by leave from a Full Bench judgment of the Kerala High Court raises a short question of construction of the plain words of a term 'private forest ' as defined in a statutory enactment called "The Kerala Private Forest (Vesting and Assignment) Act, 197 1 (called shortly "The Vesting Act").
The High Court has decided the question in favour of the State and against the appellant.
The judgment of the High Court has since been reported in AIR 1980 Kerala 137.
The view expressed by the High Court has been subsequently affirmed by another Full Bench in State of Kerala vs Malayalam Plantation Ltd., AIR 1981 Kerala 1 and reiterated by a larger Bench of five Judges in State of Kerala vs
K.C. Moosa Haji & Ors., , Losing the construction argument, the appellant has appealed to this Court.
The facts of the case are immaterial for the purpose of this judgment, save to state in the barest outline that the appellant is the Rayon Silk Manufacturing Company registered in the State of Madhya Pradesh.
One of its industrial under takings is located in Bilakootam, Mavoor in Kozhikode Dis trict, Kerala State.
This establishment pro 405 duces Rayon Grade Pulp, using Bamboo Eucalyptus and other species of wood as basic raw material.
It has a large euca lyptus plantation coveting thousands of acres, maintained as captive raw material for use in the factory.
The State says that as a consequence of the Vesting Act, the eucalyptus 8plantation being a private forest and not excluded there from is vested in the State with no fight, title and inter est subsisting with the company.
The claim of the company, however, is that the term 'private forest ' as defined under the Vesting Act, excludes the eucalyptus plantation. 'Private forest ' has been defined in the Vesting Act as well as under the Kerala Land Reforms Act (Act 1 of 1964) as amended by Amendment Act 35 of 1969 ("The KLR Act").
Since counsel for the appellant largely depends upon the judicial construction of the definition of 'private forest ' in the KLR Act, it is necessary that we should set out hereunder both the definitions placed alongside with each other: THE KERALA PRIVATE FORESTS THE KERALA LAND REFORMS (VESTING AND ASSIGNMENT) ACT (ACT 1 OF 1964) AS ACT, 1971 AMENDED BY THE KERALA LAND REFORMS (AMENDME NT ACT 35/1969) (Act 26 of 1971) (AS AMENDED BY ACT 5 OF 2.
Definitions.
In this 1978) Act unless the context otherwise requires 2.
Definitions: In this Act (47) 'private forest ' unless the context otherwise means a forest which is requires not owned by the Govern ment but does not inclu de (f) 'private forest ' means (1) in relation to the Mala (i) areas which are waste bar district referred to in and are not enclaves sub section (2) of Section within wooded areas; 5 of the (ii) areas which are gardens or nilams; (Central Act 37 of 1956) (i) any land to which the (iii) areas which are Madras Preservation of Pri planted with tea, coffee, vate Forests Act, 1949 (Madras cocoa, rubber, cardomom Act XXVIII of 1949) applied or cinnamon; and immediately (iv) other areas which are culti 406 before the appointed day excluding vated with (A) Lands which are gardens or pepper, arecanut coco nilams as defined in the Kerala nut, cashew or other Land Reforms Act, 1963 (1 of fruit bearing trees or 1964) are cultivated with any other agricultural crop;.
(B) Lands which are used princi pally for the cultivation of tea, coffee, cocoa, rubber, cardomom, or cinnamom and lands used for any purpose ancillary to the cultiva tion of such crops or for the pre paration of the smae for the market.
Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are princi pally cultivated with any other agricultural crop; (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, inclu ding waste lands which are encla ves within wooded areas.
407 (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a lane shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" We may first examine the scope of the definition of 'private forest ' under Section 2(47) of the KLR Act.
It means a forest which is not owned by the Government, excluding thereby four kinds of areas specified under sub clauses (i) to (iv).
The latter part of sub clause (iv) contains the words" . .
Other areas cultivated with any other agricultural crop".
The terms 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal trees, casuarina plantations, tendu leaves, horranuts etc.
(See: Commis sioner of Income Tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, ; at 156.
Of course there must be present all throughout the basic idea that there must be cultiva tion of land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
In Malankara Rubber and Produce Co. vs State of Kerala & Ors., ; , this Court while examining the scheme of KLR Act with particular reference to Chapter III therein observed that 'lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands, but not lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest. ' This is the wider concept of agricultural crop, perhaps attributed to the latter part of sub clause (iv) of the definition under Section 2(47) of the KLR Act.
The latter part of sub clause (iv) of Section 2(47) of the KLR 408 Act, counsel for the appellant contended, is practically the same as the second limb of sub clause (C) of Section 2(f)(1)(i) of the Vesting Act.
It was claimed that since eucalyptus plantation is covered by the expression 'any other agricultural crop ' in Section 2(47) sub clause (iv) of the KLR Act, Section 2(f)(1)(i) sub clause (C) of the Vest ing Act with similar words must also carry the same meaning.
It was emphasised that the KLR Act and the Vesting Act constitute a Code of agrarian reform and they are cognate legislations with the Vesting Act as supplementary to the KLR Act.
The expression 'any other agricultural crop ' used in both the enactments while defining 'private forest ' must therefore, receive the same meaning as otherwise, it would lead to anomalies.
This is the line of argument for the appellant.
This whole line of arguments with respect, is hard to accept.
As Felix Frankfurter, J. said: "Legislation is a form of literary composition.
But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained.
The nature of the composition demands awareness of certain presuppositions .
And so, the significance of an enactment, its antecedents as well .,as .its later history, its relation to other enactments, all may be rele vant to the construction of words for one purpose and in one setting but not for another.
Some words are confined to their history; some are starting points for history. 'Words are intellectual and moral currency.
They come from the legislative mint with some intrinsic meaning.
Sometimes it remains unchanged.
Like currency, words sometimes appreciate or depreciate in value".
The learned Judge further stated: "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government.
That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose.
That is what the Judge must seek and effectuate.
" (See: Courts, Judges and Politics by Walter F. Murphy: 'Some Reflections of the Reading of Statutes ' by Felix Frankfurter).
Judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the Statutes are pari materia legislations.
In the present case, the aim and object of the two legislations are not similar in the first place.
Secondly, the definition of 'private forest ' in the KLR Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast differ ence in between the two.
The object of the Vesting Act was to provide for the Vesting in the Government 409 of private forest in the State of Kerala for the assignment thereof to the agriculturists and agricultural labourers for cultivation.
The preamble of the Act provides that such agricultural lands should be so utilised as to increase the agricultural production in the State and to promote the welfare of the agricultural population in the State.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Private Forests Act, 1949 ( 'The MPPF Act ') applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub clauses (A) to (D).
This significant reference to MPPF Act in the definition of 'priVate forest ' in the Vesting Act makes all the difference in the case.
The MPPF Act was a special enactment.
It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District.
The Scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act,came into force, it would continue to be a forest, even if there was subsequent replantation.
(See: State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs K.C. Moosa Haji, (supra) (FB) AIR at 154 155.) It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971.
In Malankara case (supra), this Court was not con cerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh re plantation.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the KLR Act to the Vesting Act.
That wide concept cannot fit into the new legal source.
In State of Kerala vs Gwalior Rayon Sm.
(Wvg.) Co. Ltd.; , 1, this Court while upholding the constitutional validity of the Vesting Act has observed that the Forest Lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting a large agricultural plantations.
That much is clear from the following observa tions (at 683): "It is therefore, manifest that when the legislature stated in 410 the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably ex ploited for agricultural purposes.
" There is thus a judicial recognition of the distinction between private forest in Travancore Cochin area in Kerala State and the private forest in Malabar district.
This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant.
Look at the definition.
Sub clause (A) refers to gardens or nilams as defined in the KLR Act. 'Garden ' means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same. 'Nilam ' means lands adapted for the cultivation of paddy.
Sub clause (B) deals with what may be called plantation crops, cultiva tion of which in the general sense would be cultivation of agricultural crops.
Such agricultural crops are by name specified.
Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder.
Next follows sub clause (C).
It first refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It thus refers to only the fruit beating trees.
It next refers to 'lands which are principally cultivated with any other agricultural crop.
If the legislature had intended to use the term 'agricultur al crop ' in a wide sense so as to take within its fold all species of trees fruit beating or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit beating trees.
It may be significant to note that the Legislature in each sub clause (A) to (C) has used the words to identify the different categories of crops or trees.
The words used in every sub clause too have "associa tions, echoes and overtones".
While construing such words, judges must, as Felix Frankfurter, J., said "retain the associations, hear the echoes and capture the overtones" (supra p. 414).
When so examined and construed, we do not discover any indication that the words in sub clause (C) "any other agricultural crop" are quite wide enough to comprehend all species of trees including eucalyptus planta tions.
It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legis lature but also listen attentatively to what the legislature does not say.
Let us compare the wordings in Section 3 with those of sub clause (C).
Under Section 3 sub section (1), private forests vest in Government.
Sub clause (2) however, excludes from such vesting lands within the ceiling limits 411 applicable to an owner if they are under his personal culti vation.
Cultivation for this purpose "includes cultivation of trees or plants of any species".
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under Section 3 sub section (2).
The legislature has thus excluded from vesting under Section 3 sub section (2) the trees of every variety.
But while providing for exclusion under sub clause (C), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
If the inten tion was otherwise, the sub clause(C) would have been in a different language.
In our view as a matter of pure construction untram melled by authority, the words used in the latter part of sub clause (C) could not take within its fold all varieties of trees and it could exclude only fruit bearing trees.
This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subse quent two decisions; Malayalam Plantation Limited and K.C. Maosa Haji cases (supra).
In the result the appeal fails and is dismissed.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeal dis missed.
|
The appellant company was maintaining a large eucalyptus plantation for captive consumption in its production of Rayon Grade Pulp.
The State of Kerala claimed that as a consequence of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the eucalyptus plantation being a 'private forest ' stood transferred to and vested in it.
The company resisted the State 's claim on the ground that the term 'private forest ' excludes the eucalyptus plantation.
The High Court decided the question in favour of the State and against the appellant.
402 In the appeal to this Court, it was contended on behalf of the appellant that since the eucalyptus plantation was covered by the expression 'any other agricultural crop ' in section 2(47)(iv) of the Kerala Land Reforms Act, 1963 the similar expression used in section 2(f)(1)(i)(C) of the Vesting Act, 1971 must also carry the same meaning.
Dismissing the appeal, this Court.
HELD: 1.
Judicial interpretation given to the words defined in one statute does not afford a guide to construc tion of the same words in another statute unless the stat utes are pari materia legislations.
[408G] 1.1 The definition of 'private forest ' in the Kerala Land Reforms Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast difference between the two.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Pri vate Forests Act, 1949 applied immediately before the ap pointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the Madras Preservation of Private Forests Act ap plied, and exempts there from lands described under sub clauses (A) to (D).
This significant reference to this Act in the definition of 'private forest ' in the Vesting Act makes all the difference in the case.
The scheme of this Act appears to be that if the land is shown to be private forest on the date on which the Act came into force, it would continue to be a forest, even if there was subsequent re plantation.
[408H; 409A D] 1.2 The lands involved in this appeal were all forests as defined in the Madras Preservation of Private Forests Act and continued to be so when the Vesting Act came into force.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the Kerala Land Reforms Act to the Vesting Act.
[409E F] State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs
K.C. Moosa Haji, A.I.R. referred to.
Malankara Rubber and Produce Co. vs State of Kerala & Ors.
, ; , Held inapplicable.
403 State of Kerala vs Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd.; , , referred to.
The term 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal, trees, casuarina plantations, tendu leaves, coconuts etc.
Of course there must be present all throughout the basic idea that there must be cultivation of the land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
[407D F] Commissioner of 1.
T. West Bengal vs Raja Benoy Kumar Sahas Roy, ; , referred to.
2.1 Under Section 3(1), private forests vest in Govern ment.
Subsection (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation.
Cultivation for this purpose 'includes cultivation of trees or plants of any species '.
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under section 3 sub section (2).
The legislature has thus excluded from vesting under section 3 sub section (2) the trees of every variety.
But while pro viding for exclusion under sub clause (C) of section 2(f)(1)(i), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
Sub clause (C) refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It next refers to lands which are principally cultivated with any other agri cultural crop.
If the legislature had intended to ' use the term 'agricultural crop ' in a wide sense so as to take within its fold all species of trees fruit bearing or other wise, it would be unnecessary to have the first limb denot ing only the cashew or other fruit bearing trees.
Therefore, there is no indication that the words 'any other agricultur al crop ' in sub clause (C) are quite wide enough to compre hend all species of trees including eucalyptus plantations.
These words exclude only fruit bearing trees.
[410H; 41 1A D] State of Kerala vs Amalgamated Malabar Estates, A.I.R. 1980 404 Ker. 137; State of Kerala vs Malayalam Plantation Ltd., A.I.R. 1981 Ker. 1 and State of Kerala vs
K.C. Moosa Haji & Ors., A.I.R. , approved.
In seeking legislative intention, judges not only listen to the voice of the legislature but also listen atten tively to what the legislature does not say.
[410G H]
|
vil Appeals Nos.
4885 91 of 1989.
From the Judgment and Order dated 21.9.
1989 & 6.10.1989 of the Punjab & Haryana High Court in C.W.P. No. 11218/89 and 12519, 12520, 12521, 12593, 12868 & 12463 of 1989.
P.H. Parekh, Manoj Swarup and J.P. Pathak for the Appellant.
Krishan Kumar and Mehta Dave & Co. for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
These appeals are directed against two Orders of the Punjab & Haryana High Court by which the High Court has directed the appellant Institute to admit respondent students 1 to 8B to its B .E. course irrespective of their merits.
The relevant admitted facts are that on May 24 and 25, 1989, respondent No. 9 Punjab University held a Com bined Entrance Test (C.E.T.) for admission to B.E. course (Session 1989 90) conducted by 4 different institutes in cluding the appellant Institute.
On June 26, 1989, the University declared the merit list of students who appeared in C.E.T. June 30, 1989 was the last date fixed for submit ting applications by students to individual institutes.
The students were given choice of the institutions and they were required to state their choice in order of preference.
The representatives from the 4 institutes met together at Chand igarh from 24th to 27th July 1989 to finalise the admissions tO the 4 institutes.
The meeting of the representatives of the 4 institutes was necessary to ensure that the students were given the institutes of their choice in the order of merit, subject, of course, to the students applying to the particular institutes and that the student did not get admission at more than one institute at a time.
The Commit tee of representatives interviewed the students and awarded them the institutes of their choice in the order of their respective merits.
Accordingly, the appellant Institute drew up its merit list of candidates.
Interviews were held in the respective institutes including the appellant Institute for filling up the reserved seats other than those 397 reserved for Scheduled Castes and Scheduled Tribes and also for filling up seats in general category which fell vacant subsequentIy as a result of the students leaving the appel lant Institute.
On August 14, 1989, a second round of inter views was held in all the institutes including the appel lant Institute for filling seats which fell vacant as a result of the students leaving the appellant Institute subsequently.
Incidentally, this was also the last date of admission to B.E. course as was notified in the prospectus of the appellant Institute.
However, the last date was extended to 25th August, 1989 by an advertisement in the newspaper, namely, Tribune published on August 19, 1989 wherein it was clearly mentioned that the admission to the course will be closed on August 25, 1989.
The advertisement was repeated in another newspaper, namely, the Times of India on August 20, 1989.
The appellantInstitute closed the admissions at 5.00 p.m. on August 25, 1989.
On this day, the position of the appellant Institute was that the last stu dent who was admitted to the B .E.
Course was at serial number 1127 in the merit list prepared by the University as per the results of the C.E.T 3.
On August 30, 1989, respondents 1 to 4 filed a Writ Petition No. 112 18/89 before the Punjab & Haryana High Court for a direction to the appellant Institute to extend its last date of admission and to admit them to the B.E. course in the appellant Institute alleging that six seats were lying vacant in the Institute.
In the meanwhile, as usual, the first test of the B.E. course was held by the appellant Institute after six weeks of the commencement of the course.
On September 19, 1989, the appellant Institute filed its written statement to the writ petition objecting to the maintainability of the petition against the appellant Institute as it was not a State within the meaning of Article 12 of the Constitution of India.
It was also pointed out in the written statement that since the past experience showed that some students left the Institute as soon as they got admission in the other institutes, the appellant Institute had admitted 10 additional students to the B.E. course.
The total seats available in the B.E. course in the appellant Institute were 180 and students at numbers 181 190 were admitted to meet this contingency.
It was also pointed out in the written statement that the last date of admission to the course was fixed by the appellant Institute taking into account the said past experience as well as to put a seal of finality on the process of admission which would otherwise continue indefinitely.
On September 20, 1989, the appellant Institute also filed a short affidavit in the writ petition stating therein that the admissions to the B.E. course had closed on 25th August, 1989 and no student had been 398 admitted thereafter.
It was also pointed out that regular classes had begun, and the first terminal examination had been held from 4th September, 1989 to 9th September, 1989 which carried weightage of about 30% marks.
Hence, the students admitted at the belated stage would not be able to cover up lecture attendance and no seat in excess of the total seats could be filled up.
On September 21, 1989, the High Court allowed the writ petition by proceeding on the assumption that more than half a dozen seats were lying vacant with the appellant Institute.
The High Court held that belated admissions were something that the students seeking such admissions would worry about rather than the appellant Institute.
The appel lant Institute was also directed to grant admissions to respondents 1 to 4 in the B.E. course forthwith.
As pointed out by the appellant Institute, on that day the factual position with regard to seats in the course was that out of 190 students who were granted admission, 12 students had left leaving a total strength of 178 students.
Since the last date for admission was August 25, 1989, 178 students had continued in the course with regular instructions and tests one of which was already held as stated earlier be tween 4th and 9th September, 1989, six weeks after the commencement of the course.
A further batch of Writ Petitions, namely, Writ Petitions Nos.
125 19, 12520, 1252 1, 12593, 12868, 12463 all of 1989 filed by respondents 5 to 8B respectively were allowed by the High Court on October 6, 1989 directing the appellant Institute to admit the respective respondents to the said course.
It also further appears that three other similar writ petitions filed by other students seeking admission to the course in the appellant Institute are pending before the High Court for preliminary hearing.
The appellant Institute further points out that the second test of the said course was scheduled to be held from 23rd to 28th October, 1989.
It is not disputed before us that whereas the last student admitted on merit in the appellant Institute was at serial number 1127 in the merit list prepared by the Univer sity as per the Combined Entrance Test, the respondent students were at the serial numbers in the said merit list, as follows: respondent No. 1 (1145), No. 2 (1147), No. 3 (116 1), No. 4 (1277), No. 5 (1259), No. 6 (1112), No. 7 (1266), No. 8 (1218), No. 8A (1189) and No. 8B (1245).
Thus it will be seen that except for respondent No. 6 who had not earlier applied for being admitted to the appellant Insti tute and had opted for some other Institute, all the re spondents had secured lower numbers in the merit list.
399 What is further, the students who were at a higher serial number of merit list were still waiting for admission to the appellant Institute, when the High Court directed the appel lant Institute to admit the respondent students.
What is more, even in their writ petitions before the High Court the respondent students had claimed no further relief than that they should be directed to be admitted to the appellantIn stitute according to their merit.
The relief claimed in Writ Petition No. 112 18/89 may be reproduced here by way of illustration: "this Hon 'ble Court may please to issue a Writ of Mandamus directing the respondents to extend the date of admission and to admit the petitioners in the B.E. course as per their merits;".
(emphasis supplied) The High Court further not only ignored the fact which was specifically pointed out in the appellant Institute 's affi davit in reply before it, that there were no seats available in the appellant Institute whose capacity was only 180 seats but also the fact that there were more meritorious students than the respondents as per the C.E.T. who could not secure admission and who were waiting to be admitted to the appel lant Institute.
The respondent students could get admission to the appellant Institute only if their comparative merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
There was further nothing wrong in the appellant Institute admitting 10 more students in the circumstances pointed out above.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission they had admitted, as they do every year, 10 more students.
As it turned out, 12 of the students left leaving 178 students on the roll, with only 2 vacan cies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious, to be admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellantInstitute as well as to the students who stood higher in merit than almost all the respondent students except respondent No. 6.
We refrain from making any further comments on the impugned order.
400 8.
Since the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, we do not propose to interfere with their pursuit of the course.
It is for this reason that we are dismissing the appeals.
In the circumstances, the appeals stand dismissed, but with no order as to costs.
G.N. Appeals dismissed.
|
For admission to B.E. Course (1989 90 Session) in the appellant Institute and 3 other institutes, there was a Combined Entrance Test held by the Punjab University.
The results were declared, and students allotted to the respec tive institutes of their choice.
The appellantInstitute drew up merit list of candidates allotted to it and gave admis sions in that order.
To fill up the vacant seats as a result of some students leaving the Institute, the appellant Institute held inter views on 14.8.1989, which incidentally was the last date for admission to B.E. Course.
However, the last date was extend ed up to 25.5.1989.
When admission was closed on that day, the last student admitted was at section No. 1127 in the merit list prepared by the University.
Respondents 1 to 4 filed a writ petition before the High Court on 30.8.1989, alleging that six seats were vacant and the appellantInstitute be directed to admit them.
The High Court on 21.9.1989 allowed the writ petition on the assump tion that six seats were vacant, whereas only 2 seats were available, according to the appellantInstitute.
Respondents 5 to 8B also approached the High Court by way of writ petitions and the High Court directed the appel lant Institute to admit the six Respondents also in the B.E. Course.
Further, three other similar writ petitions were pending before the High Court.
395 Against the above said orders of the High Court, the appellantInstitute has preferred these appeals contending that the last candidate admitted was at section No. 1127 in the merit list and admittedly all the Respondents except Re spondent No. 6 were less meritorious, while candidates with higher merits were still waiting for admission.
It was contended that while there were only 2 vacant seats, the High Court has directed the appellant Institute to admit as many as ten candidates, that too long after the course started and the First Terminal Exams were over.
Dismissing the appeals, this Court, HELD: 1.1 The High Court not only ignored the fact which was specifically pointed out in the appellant Institute 's affidavit that there were no seats available in the appel lant Institute whose capacity was only 180 seats, but also the fact that there were more meritorious students than the Respondents as per the Combined Entrance Test, who could not secure admission and who were waiting to he admitted to the appellant Institute.
The Respondent students could get admission to the appellant Institute only if theft compara tive merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
In fact, in their writ petitions before the High Court, the respondent students had claimed no further relief than that they should be directed to be admitted according to their merit.
[399B E] 1.2 There was nothing wrong in the appellant Institute admitting 10 more students in B.E. Course.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission the appellant Institute had admitted 10 more students as has been done every year.
As it turned out, 12 of the students left leav ing 178 students on the roll, with only 2 vacancies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious to he admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellant Institute as well as to the students who stood higher in merit than almost all the respondentstudents except Respondent No. 6.[399E H] 396 2.
Since, however, the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, their pursuit of the course is not interfered with.
[400A]
|
ivil Appeal No. 1778 of 1990.
From the Judgment and Order dated 5.7.1988 of the Bombay High Court in Contempt Petition No. 106 of 1987.
P. Chidambaram, Ms. Raian Karanjawala, Mrs. Manish Karanjawala and Mrs. Meenakshi Arora for the Appellant.
K.S. Cooper, K. Parasaran, Anil B. Divan, A.S. Bhasme, P.H. Parekh, Sunil Dogra, Gopal Subramaniam, Ms. Indu Malho tra for the Respondents.
383 The Judgment of the Court was delivered by KANIA, J.
Leave granted.
The appeal is taken up for final hearing.
Counsel heard.
The short facts necessary for the disposal of the appeal are as follows: The appellant is the owner of a Bungalow known as "Villa Hormazd" at 8 A, Carmichel Road, Bombay.
The suit premises, comprising two floors of the said bungalow, were leased to Mayer Mills Ltd. under a lease deed dated April 16, 1948 for a period of three years from November 1, 1947.
At that time, the bungalow belonged to the father of the appellant.
On the death of the father of the appellant in 1949, the appellant became the landlady of the said bungalow.
Respondent No. 1, B .R.
Cotton Mills.
Ltd., is the successor in interest of Mayer Mills Ltd. and at the relevant time was in possession of the suit premises as a tenant.
Respondent No. 2 is the Chairman of respondent No. 1 and the other respondents are some of the Directors of respondent No. 1.
The appellant filed a suit being R.A.E. No. 763/ 6563 of 1966 in the Small Causes Court at Bombay for eviction of respondent No. 1 from the suit premises and for possession on the ground of rea sonable and bona fide requirement.
During the pendency of this suit, another suit for eviction was also filed by the appellant against respondent No. 1 for eviction on the ground of default in the payment of rent for a period of more than six months.
The Trial Court by its judgment dated September 13, 1975 decreed the aforesaid eviction suit R.A.E. No. 763/6563 of 1966 (hereinafter referred to as "the said suit") but the other suit for eviction filed by the appellant was dismissed in view of the eviction decree passed in the said suit.
Respondents nos.
1 and 2 filed an appeal against the decree for eviction but the said appeal was dismissed.
In February, 1986, the husband of the appel lant died and after that the appellant is the landlady of the said bungalow.
On the other hand, the appeal of the appellant against the dismissal of her other suit, for eviction on the ground of default in payment of rent was allowed and that suit was also decreed against respondent No. 1.
The respondent then filed a writ petition in the High Court at Bombay challenging the decrees for eviction passed by the Court of Small Causes as aforestated.
On February 27, 1987, respondent No. 2 filed a suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the suit premises and was not bound by the decrees of eviction passed in respect of the suit premises against the tenant, namely, respondent No. 1.
The said Writ Petition 384 No. 1066 of 1987 filed by respondent No. 1 challenging the decrees for eviction passed against respondent No. 1 in the said suits and confirmed in appeal came up for hearing before a learned Single Judge of the Bombay High Court on March 5, 1983.
The learned Judge by his judgment and order of the same date, dismissed the said writ petition.
The relevant part of the order of the learned Judge reads as follows: "The petitioner requests for time of eight weeks to vacate the premises.
He is granted the said time subject to execut ing written undertaking that he shall not part with the possession of the suit premises or create third party inter ests in the suit premises in the meantime in any manner whatsoever. ' ' On March 11, 1987, the matter was brought up again before the learned Single Judge by learned counsel for the appellant for pointing out that respondent No. 1 had not filed the requisite undertaking as directed under the order dated 5.3.
It appears that at that stage it was point ed out to the Court by Mr. Dalvi, learned counsel for the appellant that respondent No. 2 had filed a declaratory suit in the Court of Small Causes as aforestated claiming to be the sub tenant of the suit premises.
The order of the learned Judge dated March 11, 1987 shows that the learned Judge stated that he did not wish to take any action at that time on the conduct of respondent No. 1 but, as a last chance, granted respondent No. 1 time upto March 17, 1987 for furnishing the undertaking as ordered failing which it would be deemed that the condition was not fulfilled.
Re spondent No. 3, as a Director of respondent No. 1, by his affidavit, affirmed on March 17, 1987, gave an undertaking merely stating that respondent No. 1 would not commit any act contrary to or in breach of the order dated March 5, 1987.
It was pointed out by the appellant that this under taking was not in compliance with the orders passed by the learned Single Judge.
After some correspondence, respondent No. 3, by his affidavit affirmed on March 25, 1987 filed an undertaking on behalf of respondent No. 1 inter alia stating that respondent No. 1 would not part with the possession of suit premises or create any third party interest in the suit premises in any manner whatsoever.
The undertaking did not state that respondent No. 1 had not, before the undertaking was given parted with the possession of the suit premises or created any third party interest therein.
When the matter came up on March 31, 1987 before the learned Single Judge who had given time to respondent no 1 to vacate as afore stated, it was pointed out by learned counsel for the appel lant that the undertaking was objected to as it did not state that 385 respondent No. 1 was in possession.
Thereupon Shri R.J. Joshi, learned counsel for respondent No. 1 Company, stated that the undertaking spoke for itself and when it stated that respondent "shall not part with possession" it meant that respondent No. 1 company was in possession.
In view of this, the learned Judge did not give any further clarifica tion.
Respondent No. 1 preferred a special leave petition to this court against the judgment of the learned Judge dis missing the said writ petition but the said special leave petition was dismissed.
Thereafter the suit filed by re spondent No. 2 in the Court of Small Causes for a declara tion that he was the lawful sub tenant of the suit premises was dismissed but he preferred an appeal against the said decision and in that appeal obtained an interim injunction restraining the appellant from interfering with his posses sion of the suit premises.
In view of this, the decree for eviction could not be executed.
Thereafter in June 1987, the appellant filed Contempt Petition No. 106 of 1987 in the Bombay High Court setting out the facts and praying that the respondents should be punished under the provisions of the .
It has been inter alia alleged in the contempt petition by the appellant that in spite of the said undertaking, respondent No. 2 had filed a suit, being suit no.2911 of 1987 in the City Civil Court at Bombay claiming a declaration that the decree for possession was a nullity and for an injunction restraining the appellant from executing the decree and obtained an ad interim injunction a few days after the summary dismissal of the special leave petitions filed by the respondents in this Court as afore stated.
The said suit was thereafter dismissed for non prosecution but, in the meantime, respondent No. 2 filed the suit in the Court of Small Causes for a declaration that he was the lawful sub tenant of the premises as aforestated.
It was submitted by the appellant in the contempt petition that the said undertaking given by respondent No. 1 clearly implied that on the date of the undertaking, respondent No. 1 was in possession of the suit premises and in order to defeat the decree for possession, respondent No. 1 had set up its Chairman, respondent No. 2, to file the aforesaid suit in the Court of Small Causes claiming sub tenancy.
It was further submitted by the appellant that although re spondent No. 1 continued to be in possession of the suit premises it had set up respondent No. 2 to file the suit on the ground that he was in possession of the suit premises as a sub tenant in his own right and continued to be in posses sion thereof.
The learned Judge before whom the said con tempt petition came up for hearing took the view that in the order of the learned Single Judge dated March 5, 1987, he was unable to read any direction to file an undertaking to give possession.
He took the view that the aforesaid under taking given on behalf of respondent No. 1, that it would not with possession or create any third party interest in the suit premises, did not imply that respondent No. 1 was in actual physical possession of the suit premises and that the fact that respondent No. 2 was claiming an independent title in himself as a sub tenant by virtue of a Resolution of respondent No. 1 was not sufficient to hold that respondent No. 1 or the other respondents were guilty of contempt.
He took the view that there was no undertaking by respondent No. 1 to deliver possession of the suit premises and on the basis of these conclusions, he rejected the contempt peti tion.
At the same time the learned Judge did observe that respondent No. 1 may have indulged in sharp practices but held that it was not guilty of contempt.
The present appeal is directed against this order.
It was submitted by Mr. Chidambaram, learned counsel for the appellant that respondent No. 1 and respondent No. 2 were guilty of contempt and the learned Single Judge was in error when he took the view that no contempt was established in the matter against the respondents.
It was submitted by learned counsel that on 5th March, 1987 when the writ peti tion preferred by respondent No. 1 was summarily rejected by Justice Puranik of the Bombay High Court, learned counsel for respondent No. 1, on instructions, made an application to the learned Judge to grant respondent No. 1 time for eight weeks to vacate the suit premises.
This time was granted subject to respondent No. 1 executing an undertaking that he would not part with the possession of the premises or create third party interests therein as set out earlier.
After delaying the matter for some time, respondent No. 3 filed on March 25, 1987, an affidavit, as a director of respondent No. 1 wherein he set out inter alia that respond ent No. 1 agreed to give an undertaking as set out earlier as respondent No. 1 was desirous of approaching the Supreme Court to challenge the order of the learned Judge dismissing the writ petition.
It was submitted by Mr. Chidambaram that this undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over the vacant and peaceful possession of the suit premises after eight weeks, if the special leave petitions preferred by respondent No. 1 were dismissed or no interim relief was obtained thereunder.
This undertaking was taken note of by Justice Puranik when the case reached before him on March 31, 1987.
It appears that an objection was taken to the language of the said undertaking on the ground that it did not state that respondent No. 1 was in possession of the suit premises and thereupon, Mr. R.J. Joshi, learned counsel for respondent No. 1, stated that the undertaking spoke for itself and that when it stated that respondent No. 1 shall not part with the possession of the suit premises it 387 meant that respondent No. 1 was in possession of the prem ises.
It was submitted that this statement must have been made after taking proper instructions and that, by instruct ing its counsel to make the statement, respondent No. 1 had clearly attempted to mislead the Court and the appellant.
It was urged that, m any event, this undertaking clearly im plied that if no interim order was obtained by respondent No. 1 from this Court, respondent No. 1 would hand over the possession of the premises to the appellant.
This assurance/undertaking was false to the knowledge of the appellant, as by that time, respondent No. 2 had already filed a suit in the Court of Small Causes claiming sub tenancy from respondent No. 1 and had obtained an interim ex parte injunction restraining the appellant from executing the decree in her favour.
It was submitted that the record discloses that respondent Nos. 1 and 2 were acting in collu sion with a view to defeat the decree obtained by the appel lant and to prevent the execution of the decree.
It was contended on behalf of the appellant that the resolution of respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was, on the other hand, contended by Mr. Cooper, learned counsel for respondent No. 1 that no contempt was made out by the appellant in the matter.
He vehemently argued that the case for taking action in contempt, set up by the appellant, was one of civil contempt.
Under the provisions of sub clause (b) of section 2 of the , in order to establish civil contempt, the alleged contemner must be proved to be guilty of wilful disobedience to any judgment, decree direction, order writ or other process of a Court or wilful breach of an undertak ing given to a court.
He drew our attention to the statement contained in Halsbury 's Laws of England, Volume 9 IVth Edition, at para 66 (page 40) that the court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous, that the defendant has proper.
notice of the terms and that breach of the injunction has been proved beyond reasonable doubt.
It was further submitted by him that there is no such thing in law as an implied contempt.
Learned counsel urged that, in the present case, there was no mandatory injunction or order given by the court to the effect that respondent No. 1 must vacate the premises after eight weeks from 5th March when the undertaking was agreed to be given.
It was submitted that even if a view was taken that, in these circumstances, respondent No. 1 must be held to have given an undertaking to give possession of the said suit premises to the appellant after the said period of eight weeks, there was no wilful breach on the part of respondent No. 1 in not complying with that undertaking as 388 it was respondent No. 2 who was claiming to be in possession of the said premises in his independent right as a lawful sub tenant and it was he who had obtained an interim injunc tion from the Small Causes Court.
It was urged by learned counsel that so far as respondent No. 2 was concerned he had not given any personal undertaking to the court.
It was submitted by learned counsel for all the respondents that before a court could take any action for contempt it must be strictly established that the contempt had been proved beyond reasonable doubt as an action for contempt was in the nature of a criminal proceeding.
Mr. Cooper drew our attention to the decision of this Court in The Aligarh Municipal Board & Ors.
vs Ekka Tonga Mazdoor Union and Others, [1970] 3 SCC p. 98 wherein it has been held that "In order to bring home a charge of contempt of Court for disobeying orders of Courts those who assert that the alleged contemners had knowledge of the order must prove that fact beyond reasonable doubt.
In case of doubt, however, benefit ought to go to the person charged." He further relied upon the decision of this Court in Babu Ram Gupta vs Sudhir Bhasin & Anr., [1979] 3 SCR p. 685 wherein a Bench of two learned Judges of this Court held that "it is not open to the Court to assume an implied undertaking when there is none on the record.
" We now propose to examine the facts appearing on the record in the light of the aforesaid submissions and deci sions.
What we do find on the record is that when the writ petitions filed by respondent No. 1 in the High Court were dismissed by Puranik, J. by his order dated 5th March, 1987, learned counsel for respondent No. 1 applied for time for eight weeks to vacate the premises and the learned Judge gave the said time to respondent No. 1 to vacate the prem ises subject to its filing a written undertaking that it would not part with the possession of the suit premises or create third party interest in the suit premises.
It may be that time to vacate was applied for as respondent No. 1 desired to file an appeal to the Supreme Court.
The fact, however, remains that, if the claim of respondent No. 2 is correct, on that day he was already a lawful sub tenant of the suit premises and occupying the same.
Respondent No. 2 was none other than the Chairman of respondent No. 1 compa ny.
It is, therefore, inconceivable that respondent No. 1 could have been unaware of the claim of respondent No. 2.
It is, therefore, apparent that respondent No. 1 clearly tried to mislead the court when it gave instructions through its officers to learned counsel appearing for respondent No. 1 to apply for time to vacate the premises and remained silent when time was given on the condition that a written under taking as aforestated would be filed, suppressing from the 389 court the fact that respondent No. 2 claimed to be the sub tenant of the said premises and we have no doubt that re spondent No. 2 must have been a party to this course of action.
After some hesitation, the written undertaking was filed as aforestated which clearly implied that respondent No. 1 was in possession of the suit premises and in a posi tion to hand over possession of the suit premises to the appellant after the period of eight weeks expired.
Respond ents Nos. 1 and 2 knew fully well that this was not possible unless respondent No. 2 gave up his claim which he had no intention of doing.
Further, on March 31, 1987 learned counsel for respondent No. 1 appeared in court and stated that the undertaking spoke for itself and when it stated that respondent No. 1 would not part with the possession of the premises it meant that respondent No. 1 was in fact in possession thereof.
As we have already pointed out respond ent No. 2 was and continued to be the Chairman of respondent No. 1; his nephew, Prem Kumar Gupta, who was residing in the said premises in 1973, according to the evidence given by him in the Court of Small Causes, was a Director of respond ent no,. 1 company.
After all, respondent No. 1 is a company and it can have no knowledge or intention other than .the knowledge and intention of the people who control it.
We have no doubt at all that it was respondent No. 2 who, along with some of his family members, was in full charge of the affairs of respondent No. 1 company.
In these circumstances, it appears clear to us that all the actions taken by the legal advisors and counsel of respondent No. 1 including, in particular, the giving of the aforesaid undertaking as well as the clarification given by learned counsel regarding the meaning of that undertaking as aforestated were with the fullest knowledge and consent of respondent No. 2.
It is impossible to maintain this dichotomy, for the purposes of the contempt petition, between respondent No. 1 and respond ent No. 2.
Respondent No. 2 knew fully well when he autho rised the giving of the undertaking on behalf of respondent No. 1 or consented to its being given that respondent No. 1 was in no position to hand over possession of the suit premises in execution of the decree because respondent No. 2 claimed to be in possession of the said premises and claimed subtenancy rights in the same and had no intention whatsoev er of giving up the claim.
In fact, the entire course of conduct adopted on behalf of respondent No. 1 was only with one aim in view and that was to frustrate or to at least delay indefinitely the execution of the decree which the appellant had obtained after the lapse of many years and after such sustained and lengthy legal proceedings which must have caused the appellant considerable expenses and anguish.
It is significant that till Mr. R.J. Joshi, the learned counsel, who gave the clarification in respect of the said undertaking was alive, no contention was ever 390 raised that the clarification was given by him without taking instructions or that respondent No. 1 or respondent No. 2 were not aware of the same.
It was only after the sudden demise of the learned counsel that this contention was first raised by respondent No. 1.
This conduct speaks volumes for the dishonest attitude adopted by respondents nos.
1 and 2.
Raising this contention after the death of Mr. R.J. Joshi can only be regarded as one more of the tricks which respondents nos.
1 and 2 have played throughout the case in order to defeat and delay the execution of the decree for possession against respondent No. 1.
In the circumstances set out earlier, although the learned Judge of the High Court might have felt constrained by what he considered to be the limits of his jurisdiction in a contempt proceeding, we feel that our hands are not so tied and, where there is patent dishonesty on the part of respondents Nos. 1 and 2 writ large on the face of the record, the law does not require that we should sit back with folded hands and fail to take any action in the matter.
We find that under clause (1) of Article 142 of the Constitution, it is provided that this court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it and any decree so passed or order so made shall be enforced throughout the territory of India in the manner set out therein.
In the circumstances which we have already set out earlier, we are of the view that re spondent No. 1 is guilty of misconduct amounting to contempt and must be held to have committed contempt by giving the said undertaking and instructing its counsel to give the clarification of the meaning of the said undertaking as aforestated knowing fully well that it was not in possession of the suit premises and was not in a position to give possession of the suit premises to the appellant in execu tion of the decree in favour of the appellant or otherwise.
It is significant that the claim of sub tenancy set up by respondent No. 2 is pursuant to an alleged resolution of respondent No. 1.
We have also no doubt that respondent No. 2 was a party to this breach of the undertaking being com mitted and, in fact, it was he at whose instance respondent No. 1 committed the breach of the undertaking as aforestat ed.
We are, of course, quite conscious of the fact that the proceedings in the contempt are quasi criminal in nature, that the law of contempt has to be strictly interpreted and that the requirements of that law must be strictly complied with before any person can be committed for contempt.
Howev er, as we have pointed out, respondent No. 1 gave an under taking based on an implication or assumption which was false to its knowledge and to the knowledge of respondent 391 No. 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the learned counsel for respondent No. 1 as set out earlier.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, we fail to see how it can be said that they are not guilty of contempt.
Even assuming that a view were to be taken that no contempt has been technically established against respondents Nos 1 and 2 (with which view we do not agree), we cannot allow the matter to rest there and fail to take any action and, in particular, we cannot allow respondents Nos. 1 and 2 to thwart the execution of the decree in this manner at this stage and continue to remain in possession of the suit premises.
We find some support for the course of action which we are taking from the decision of this Court in Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and others, J.T. where, on facts which bear some similarity to the facts of this case, a Division Bench of this Court held that "it is settled law that breach of an injunction or breach of an undertaking given to a court by a person in a civil proceeding on the faith of which the court sanctions a particular course of action is misconduct amounting to contempt.
" At the same time, we are conscious of the fact that we cannot altogether foreclose the claim set up by respondent No. 2 in the declaratory suit filed by him in the Court of Small Causes to establish that he is a sub tenant of the suit premises and entitled to the protection of the Bombay Rents, Hotel Lodging House Rates (Control) Act, 1947.
However, we are firmly of the view that by reason of any interim order obtained in that suit and till that claim is finally established, the appellant can no longer be deprived of the possession of the said premises pursuant to the decree for eviction obtained by her.
All the necessary parties to that suit are before us and have had and adequate opportunity to be heard.
In these circumstances, we allow the appeal and set aside the impugned order passed by the High Court and pass in its place the following order: The Court Receiver, High Court of Bombay who has already been appointed by our order dated January 25, 1990 shall take possession of the suit premises from the present agent and shall appoint the appellant as his agent in respect of the suit premises and hand over possession to the appellant of the suit premises on such terms and conditions as the Court Receiver may think fit but with the limitation 392 that the royalty for use and occupation of the suit premises shall be limited to the actual outgoings plus a sum of Rs.200 per month in order to meet unforeseen contingencies.
This order shall be complied with within a period of eight weeks from a copy of this order being served on the Court Receiver.
It is clarified that the possession of the prem ises will be taken from whoever might be in possession thereof and, if the Court Receiver finds any difficulty in obtaining possession, he shall take the necessary assistance from the police authorities.
It is further clarified that this order shall supersede any interim orders which might have been passed by the Court of Small Causes or the Bombay City Civil Court or any other Court excepting this Court.
In the event of respondent No. 2 being able to finally estab lish his right to the sub tenancy of the suit premises as claimed by him in the declaratory suit in the Court of Small Causes, it shall be open to him to apply for vacation or variation of this order as he may be advised.
Respondents Nos. 1 and 2 to pay the appellant the costs of this appeal fixed at Rs.20,000 the liability for the payment of the said aggregate amount being joint and several as between respond ents Nos. 1 and 2.
As far as respondent No. 3 is concerned, we do not propose to take any action against him.
N.P.V. Appeal allowed.
|
The appellant landlord obtained a decree of eviction of respondent No. 1 company from the suit premises.
Aggrieved, respondent No. 1 filed a Writ Petition before the High Court.
Dismissing the Petition, the High Court granted eight weeks ' time to respondent No. 1 for vacating the suit prem ises, subject to the filing of an undertaking that it will not part with the possession of, or create third party interest in, the suit premises in any manner whatsoever.
After some correspondence respondent No. 3, by an affidavit, filed the required undertaking on behalf of respondent No. 1 but without mentioning that the respondent No. 1 had not already parted with possession of the suit premises or created any third party interest therein.
Later, counsel for respondent No. 1 clarified that when the undertaking stated that respondent No. I would not part with possession it meant that respondent No. 1 was in possession.
But, in the meantime, respondent No. 2 Chairman of respondent No. 1 Company filed a suit claiming a declaration that he was the lawful sub tenant and the decree for possession was a nulli ty and obtained an injunction, thus preventing the appellant from executing the decree.
Thereupon, the appellant filed a petition for contempt before the High Court praying that the respondents should be punished under the provisions of the Contempt of Courts Act, 1972.
The High Court rejected the petition.
381 In the appeal before this Court, it was contended on behalf of the landlord appellant that the High Court was in error in holding that no contempt was established against the respondents, that the undertaking clearly implied that respondent No. 1 was in possession of the premises and was in a position to hand over vacant and peaceful possession of the same after eight weeks, which was also made clear from the clarification given by counsel for respondent No. 1 that this assurance/undertaking was false, as by that time re spondent No. 2, had already filed a suit claiming sub tenan cy from respondent, that the record disclosed that respond ents No. 1 and 2, were acting in collusion with a view to defeat the decree obtained by the appellant and to prevent the execution of the decree and that the resolution of the respondent No. 1 under which respondent No. 2 was claiming sub tenancy was fabricated and antedated.
It was submitted on behalf of the respondent that before a Court could take any action for contempt, it must be strictly established that the contempt had been proved beyond reasonable doubt, as an action for contempt was in the nature of a criminal proceeding.
Allowing the appeal, this Court, HELD: .
I The Proceedings in the contempt are quasi criminal in nature, and law of contempt has to be strictly interpreted, and the requirements of that law must be strictly complied with before any person can be committed for contempt.
However, where there is patent dishonesty writ large on the face of the record, the law does not require that this Court should sit back with folded hands and fail to take any action in the matter.
In exercise of its juris diction under clause (1) of Article 142 of the Constitution, this Court may pass such decree or make such order as is necessary for doing complete justice in any case or matter pending before it.
[391G H; C D] 1.2 In the instant case, respondent No. 1 gave an under taking based on an implication or assumption which was false in its knowledge and to the knowledge of respondent No 2.
Respondent No. 2 was equally instrumental in the giving of this undertaking.
This implication or assumption was made explicit by the clarification given by the counsel for respondent No. 1.
Respondent No. 2 was equally responsible for instructing counsel to give this clarification which was false to the knowledge of both, respondents Nos. 1 and 2.
Both respondent No. 1 and respondent No. 2 have tried to deceive the Court and the appellant.
In view of this, it cannot be said that they are not guilty of contempt.
382 Respondent No. 1 is guilty of misconduct amounting to con tempt and must be held to have committed contempt by giving the undertaking and instructing its counsel to give the clarification of the meaning of the undertaking knowing fully well that it was not in possession of the suit prem ises, and was not in a position to give possession of the suit premises, to the appellant in execution of the decree in favour of the appellant or otherwise.
There is no doubt that respondent No. 2 was a party to this breach of the undertaking being committed and, in fact, it was at his instance that respondent No. 1 committed the breach of the undertaking.
[391H, 392A B, 391E F] 1.3 Respondents No. 1 and 2 cannot be allowed to thwart the execution of the decree and continue to remain in pos session of the suit premises.
No doubt, the claim set up by respondent No. 2 in the declaratory suit filed by him to establish that he is a sub tenant of the suit premises and entitled to protection of the Bombay Rents, Hotel and Lodg ing House Rates (Control) Act, 1947 cannot be foreclosed.
However, by reason of any interim order obtained in that suit, the appellant can no longer be deprived of the posses sion of the said premises pursuant to the decree obtained by her, till the claim in the declaratory suit is established.
[392C, E] 1.4 The Court Receiver.
High Court, who has already been appointed should appoint the appellant as his agent in place of the existing agent, and hand over possession of the suit premises to her on such terms and conditions as he may think fit.
It would be open to respondent No. 2 to apply for vacation or variation of the order, in the event of his being able to establish his right to sub tenancy.
[392G, 393C] Noorali Babul Thanewala vs Sh.
K.M.M. Shetty and Ors.
, J.T. , relied on.
|
Appeal No. 91 of 1957.
Appeal from the judgment and order dated March 29, 1956, of the Saurashtra High Court at Rajkot in Civil Reference No. I of 1955.
Shankarlal G. Bajaj and P. C. Aggarwal, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 9.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises from the assessment proceedings taken against the appellant, Rajputana Agencies Ltd., Lavanpur, for its income for the assessment year 1952 53, the accounting period being the corresponding Marwadi Year ending in October, 1951.
The appellant is a ' private limited company and it was assessed to income tax and super tax by the Income tax Officer, Morvi Circle, Morvi, on a total income of Rs. 26,385.
The appellant had declared dividend of Rs. 30,000.
The Income tax Officer held that out of the said amount of dividend, Rs. 15,159 was excess dividend.
On this basis the Income tax Officer determined the additional income tax payable by the appellant at the rate of forty four pies in a rupee on the said excess dividend.
The additional income tax payable by the appellant in that behalf was computed at Rs. 3,473 15 0.
This order was passed on November 25, 1952.
The appellant filed an appeal against this order before the Appellate Assistant Commissioner of Income tax at Rajkot.
The appellate authority determined the additional income tax payable by the appellant at Rs. 2,084 12 0 on August 29, 1953.
An appeal was preferred by the appellant against the appellate order before the Income tax Appellate Tribunal, Bombay, but the appellate tribunal confirmed the order under appeal on November 27, 1954.
The 144 appellant then moved the appellate tribunal under section 66(1) of the Income tax Act and the appellate tribunal, by its order passed on April 25, 1955, referred two questions to the High Court at Saurashtra for its opinion.
In the present appeal, we are concerned with ,the second of the said two questions.
This question as framed by the tribunal was: Whether the expression " at the rate applicable to the total income of the company " as appearing in sub cl.
(b) of el.
(ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1952, means the rate at which a company 's total income is actually assessed or the rate prescribed by the respective Finance Act without taking into consideration the rebate allowed in the respective years in accordance with the provisions of the Part ' B ' States (Taxation Concessions) Order, 1950 (hereinafter called the Order).
Section 2 of the Finance Act, 1952, provides that the provisions of section 2 of, and the First Schedule to the Finance Act, 1951, shall apply in relation to income tax and super tax for the financial year 1952 53 as they apply in relation to the income tax and super tax for the financial year 1951 52 with the modification that, in the said provisions for the figures 1950, 1951 and 1952 wherever they occur, the figures 1951, 1952 and 1953 shall be respectively substituted ; and so in the present case we are really concerned with the material provisions of the Finance Act, 1951 (herein.
after called the Act).
By its judgment delivered on March 29, 1956, the High Court answered this question against the appellant and held that the expression " at the rate applicable to the total income of the company " means the rate at which the company 's total income is actually assessed.
The appellant then applied for and obtained a certificate from the High Court under article 133(1)(c) of the Constitution read with section 66A(2) of the Income tax Act that the case is a fit one for appeal to this Court.
It is with this certificate that the present appeal has been brought to this Court; and the only point which it raises for our decision relates to the construction of the expression " at the rate applicable 145 to the total income of the company " appearing in the relevant provision of the Act.
The appellant does not dispute its liability to pay additional income tax under cl.
(ii) of the proviso to paragraph B of Part I of the First Schedule to the Act.
The dispute between the parties is in regard to the rate at which the additional income tax has to be charged.
I The appellant has paid income tax on its total income in the relevant assessment year at the rate of sixteen pies in a rupee in accordance with the computation prescribed by para.
6 of the Order; and it is urged on its behalf, that the rebate to which it is entitled under the provisions of the said Order is irrelevant in determining the rate at which the additional income tax can be computed against it.
On the other hand, the respondent contends that the additional income tax has to be computed at the rate at which the appellant 's income has been actually assessed and so the rebate granted to the appellant under the said Order must be taken into account in determining the said rate of the additional tax.
It would be relevant, at this stage, to refer to the provisions of the Order under which the appellant has admittedly obtained rebate as a company carrying on its business in Saurashtra.
By the Order, the Central Government made exemptions, reductions in the rate of tax and modifications specified in the Order in exercise of the powers conferred by section 60A of the Income tax Act.
This Order applied to Part 'B ' states which included all Part 'B ' States other than the State of Jammu and Kashmir.
Paragraph 5 of the Order deals with income of a previous year chargeable in the Part 'B ' States in 1949 50.
Sub clause (3) of paragraph 5 shows that the State assessment year 1949 50 means the assessment year which commences on any date between April 1, 1949 and December 31, 1949.
We are not concerned with the provisions of this paragraph.
Paragraph 6(iii) applies to the present case.
The effect of para.
6(1), (ii) and (iii) is that in respect of so much of the income, profits and gains included in the total income as accrue or arise in any State other 19 146 than the States of Patiala and East Punjab States Union and Travancore Cochin (i) the tax shall be computed (a) at the Indian rate of tax; and (b) at the State rate of tax in force immediately before the appointed day; (ii) where the amount of tax computed under subclause (a) of clause, (1) is less than or is equal to the amount of tax computed under sub clause (b) of clause (1) the amount of the first mentioned tax shall be the tax payable; (iii) where the amount of tax computed under subclause (a) of clause (1) exceeds the tax computed.
under sub clause (b) of clause (1), the excess shall be allowed as a rebate from the first mentioned tax and the amount of the first mentioned tax as so reduced shall be the tax payable.
Thus under el.
(iii) the amount of income tax levied against the appellant is not the amount computed at the Indian rate; it represents the difference between the amounts calculated at the Indian rate of tax and that calculated at the State rate of tax.
The excess of the first amount over the second is allowed as a rebate.
In other words, the Indian rate of tax prescribed by the relevant provisions of the Act does not by itself determine the amount of tax payable by the appellant for the relevant year.
It is well known that when different Part ' B ' States merged with the adjoining States or Provinces and were made taxable territories under the Income tax Act, the operation of the Indian rate of tax was introduced by phases and rebates on a graduated scale were allowed to the assessees under the provisions of this Order.
As we have already mentioned, it is common ground that the appellant was entitled to and has obtained rebate under sub cl.
(iii) of paragraph 6 of 'the Order, with the result that his total income has been taxed to income tax at the rate of sixteen pies in a rupee.
The point for determination is whether this rebate is relevant in determining the rate at which the additional income tax has to ' be levied against the appellant under the relevant provisions of the Act.
147 Let us now consider the relevant provisions of the Act.
Section 3 of the Income tax Act which is the charging section provides that " where any Central Act enacts that income tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of the ' assessee ".
Thus, when levying income tax against the total income of the assessee, the rate at which the tax has to be levied is prescribed by the Act for the relevant year.
Section 2 of the Act provides that, subject to the provisions of sub sections
(3), (4) and (5), income tax shall be charged at the rates specified in Part I of the First Schedule; and sub section
(7) provides that " for the purpose of this section, and of the rates of tax imposed thereby, the expression " total income " means total income as determined for the purposes of income tax or super tax, as the case may be, in accordance with the provisions of the Act ".
So we must turn to the First Schedule to the Act to find the rate at which the appellant can be assessed.
Paragraph B of the said Schedule deals with companies and it provides that, in the case of every company, on the whole of total income the tax is leviable at the rate of four annas in the rupee.
There is a proviso to this paragraph and the clause which calls for our construction in the present appeal occurs in the explanation to el.
(ii) of this proviso.
This proviso deals with the case of a company which in respect of its profits liable to tax under the Act for the relevant year has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of Jammu and Kashmir of the dividends payable out of such profits and has deducted the super tax from the dividends in accordance with the provisions of sub section
(3D) or (3E) of section 18 of that Act; and in that connection, it provides: (1) where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income tax exceeds the amount of any dividends (including dividends payable at a fixed rate) declared 148 in respect of the whole or, part of the previous year for the assessment for the year ending on the 31st day of March, 1951, and no order has been made under subsection (1) of section 23A of the Income tax Act,, a rebate shall be allowed, at the rate of one anna per rupee on the amount of such excess (ii) where the amount of dividends referred to in clause (1i) above exceeds the total income as reduced by seven annas in the rupee and by the amount, if, any, exempt from income tax, there shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.
It would thus be seen that the object of the legislature in enacting this proviso is to encourage companies to plough back some of their profits into the industry not to distribute unduly large portions of their.
profits to their shareholders by declaring unreasonably high or excessive dividends.
In order to give effect to this intention the legislature has offered an inducement to the companies by giving them a certain rebate.
If a company does not distribute as dividends more than roughly nine annas of its profits which is specified as distributable, then the rebate of one anna is given to the company to the extent that the dividend paid by it was less than the distributable dividend.
If the company pays more than the distributable amount of dividend then it was not entitled to claim any rebate; but, on the contrary, it becomes liable to pay an additional income tax as provided in cl.
(ii) of the proviso.
In other words, the intention of the legislature appears to be that companies should no doubt declare reason able dividend and thereby invite the investment of capital in business; but they should not declare an excessive dividend and should plough back part of their profits into the industry.
It is with this object that the provision for rebate has been made.
It would be noticed that,, in addition to the rebate received by the appellant under the relevant provisions of the 149 Order, it would have been entitled to receive the rebate under el.
(1) of the proviso to paragraph B if the dividend declared by it had not exceeded the specified distributable amount.
In fact the dividend declared by the appellant has exceeded the said amount and the appellant has thus become liable to pay additional income tax in respect of the excess dividend under cl, (ii) of the proviso to paragraph B.
Under this clause, " the appellant shall be charged on the total income an additional income tax equal to the sum, if any, by which the aggregate amount of income tax actually borne by such excess (hereinafter referred to as " the excess dividend ") falls short of the amount calculated at the rate of five annas per rupee on the excess dividend ".
This provision raises the problem of determining the aggregate amount of income tax actually borne by the excess dividend; and it is to help the solution of this problem that an explanation has been added which says, inter alia, that " for the purposes of cl.
(ii) of the above proviso the aggre gate amount of income tax actually borne by the excess dividend shall be determined as follows: (i) the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profit,% of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year; (ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax(a) if an order has been made under sub section (1) of section 23A of the Income tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and (b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebate, if any, was allowed on the undistributed profits.
" Clause (1). explains what shall be deemed to be the 150 excess dividend and how it, should be ascertained.
Clause (ii) lays down how the portion of the excess dividend as is deemed to be out of the undistributed profits of each of the years mentioned in cl.
(ii) of the proviso shall be deemed to have borne tax.
clause (a) of cl.
(ii) is concerned with cases where an order has been made under section 23A (1) in respect of the undistributed profits of that year at the rate of five annas in a rupee.
We are not concerned with this clause in the present appeal.
It is sub cl.
(b) of el.
(ii) of the explanation to the proviso to paragraph B that falls for consideration in the present appeal.
The appellant 's case is that the expression " at the rate applicable to the total income " means the rate prescribed by paragraph B of the Act and not the rate at which income tax has actually and in fact been levied.
This contention has been rejected by the High Court and the appellant urges that the High Court was in error in rejecting its case.
The argument is that the words " at the rate applicable to the total income of the company " must be strictly and literally construed and reliance is placed on the principle that fiscal statutes must be strictly construed.
On the other hand, as observed by Maxwell " the tendency of modern decisions upon the whole is to narrow materially the difference between what is called a strict and beneficial construction (1) ".
Now the words " the rate applicable " may mean either the rate prescribed by paragraph B or the rate actually applied in the light of the relevant statutory provisions.
"Applicable", according to its plain grammatical meaning, means capable of being applied or appropriate; and appropriateness of the rate can be determined only after considering all the relevant statutory provisions.
In this sense it would mean the rate actually applied.
In the present case, if sub cl.
(b) is read as a whole, and all the material words used are given their plain grammatical meaning, its construction would present no serious difficulty.
When the clause refers to the rate applicable, it is necessary to remember that it refers to the rate applicable to the total income of the company for (1) Maxwell on " Interpretation of Statutes ", 10th Ed.
p. 284.
151 that year.
In other words, the clause clearly refers to the specific or definite rate which is determined to be applicable to the taxable income of the company for the specific year; and it is not the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
The result is that, for determining the aggregate amount of income tax actually borne by the excess dividend, the department must take into account the rate at which the income of the company for the specific year has in fact been applied or levied.
Besides, in construing the words "I the rate applicable " we must bear in mind the context in which they are used.
The context shows that the said words are intended to explain what should.
be taken to be " the tax actually borne ".
If the legislation had intended that the tax actually borne should in all, cases be determined merely by the application of the rate prescribed for companies in general, the explanation given by the material clause would really not have been necessary.
That is why in our opinion, the context justifies the construction which we are inclined to place on the words " the rate applicable ".
The same position is made clear by the further provision in sub cl.
(b) itself which requires that the relevant rate has to be reduced by the rate at which the rebate, if any, has been allowed on the undistributed profits; which means that, for determining the rate in sub cl.
(b), it is necessary to take into account the rebate which may have been allowed to the company under el.
(1) of the proviso to paragraph B, so that in such a case the rate applicable cannot be the rate prescribed in paragraph B of the Act; it must be the rate so prescribed reduced by the rate at which the rebate has been granted under cl.
(1) of the proviso to paragraph B.
It is thus clear that the words " rate applicable in such cases mean the rate determined after deducting from the rate prescribed by paragraph B the rate of rebate allowed by el.
(1) of the proviso to the said paragraph.
Therefore, at least in these cases, the material words mean the rate actually applied.
If that be the true position, the rate applicable must in 152 all cases mean the rate actually applied.
The same words cannot have two different meaning,% in the same clause.
Incidentally we may point out that the provision of the Act in regard to the payment of additional income tax appears to be intended to impose a penalty for distributing dividends beyond the distributable.limit mentioned by the statute.
The method prescribed for determining the amount of this additional income tax is this.
Calculate the amount at the rate of five annas per rupee on the excess dividend and deduct from the amount so determined the aggregate amount of income tax actually borne by such excess dividend; the balance is the amount of additional income tax leviable against the company.
In adopting this method, if rebate admissible under cl.
(1) of the proviso to para.
graph B has to be deducted from the rate prescribed, it is difficult to understand why a rebate granted under paragraph 6(iii) of the Order should not likewise be deducted.
We accordingly hold that the rate applicable in sub cl.
(b) of cl.
(ii) of the explanation read with cl.
(ii) of the proviso to paragraph B of Schedule I of the Act means the, rate actually applied in a given case.
On, this construction the rate at which the appellant is liable to pay the additional income tax would be the difference between the rate of five annas and the rate of sixteen pies in a rupee at which the appellant has in fact paid income tax in the relevant year.
That is to say, the additional income tax is leviable at the rate of forty four pies in a rupee.
In its judgment, the High Court of Saurashtra has referred with approval to the decision of the Bombay High Court in Elphinstone Spinning and Weaving Mills Co., Ltd. vs Commissioner of Income tax, Bombay City(1).
In this case, Chagla C. J. and Tendolkar J. have held that if a company has no taxable income at all for the assessment year 1951 52 and in that year it pays dividends out of the profits earned in the preceding year or years, additional income tax cannot be levied on the company by reason of the fact that it has paid an excess dividend within the meaning of that 153 expression in, the proviso to paragraph B of Part I of the Act.
We are not concerned with this aspect of the matter in the present appeal.
However, in dealing with the question raised before them, the learned judges have incidentally construed the relevant words " rate applicable" as meaning the rate actually applied; and their observations do support the view taken by the Saurashtra High Court in the present case.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.
|
The assessee, a private limited company in Saurashtra, was assessed for the assessment year 1952 53 on a total income of Rs. 26,385.
It was assessable at the rate of four annas per rupee but in view of the provisions of the Part B States (Taxation Concession) Order, 1950, it was actually assessed at the rate of sixteen pies per rupee.
The assessee had declared dividend of Rs. 30,000 out of which Rs. 15,159 was found to be excess dividend.
On this excess dividend the assessee was liable to pay additional income tax and the dispute was regarding the rate at which tax was to be computed.
Clause (ii) of the proviso to para.
B of Part.
I of the First Schedule to the Finance Act, 1951, which applied to the case, provided that the additional income tax was to be equal to the sum by which the aggregate amount of income tax actually borne by the excess amount fell short of the amount Calculated at the rate of five annas per rupee on the excess dividend.
Sub clause (b) of cl.
(ii) to the second explanation to proviso to para.
B provided that the aggregate amount of income tax actually borne by the excess dividend was to be determined at the rate applicable to the total income of the company.
The assessee contended that the words 'at the rate applicable to the total income of the company ' meant the rate prescribed by para.
8 of the Act, i.e. four annas per rupee, and not the rate as reduced by the Order at which the income tax had actually and in fact been levied and that consequently it was liable to pay additional income tax on the excess dividend at the rate of one anna per rupee only.
Held, that the expression 'rate applicable to the total income of the company ' meant the rate actually applied and that the assessee was rightly charged at the rate of forty four pies per rupee being the rate by which the rate at which the assessee was actually assessed fell short of the rate of five annas per rupee.
The clause referred to the specific or definite rate which was determined to be applicable to the taxable income of the company for that specific year and not to the rate prescribed by the Act for the relevant year generally in reference to incomes of companies.
143 Elphinstone Spinning and Weaving Mills Co. Ltd. vs Commis sioner of Income tax, Bombay City, , con sidered.
|
ivil Appeal No. 1837 of 1990.
From the Judgment and Order dated 17.1.1989 of the Patna High Court in C.W.J.C. No. 4276 of 1988, A. Sharan for the Appellants.
Pankaj Kalra and Pramod Swarup for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Delay condoned.
Special leave granted.
This appeal arises out of the decision of the Patna High Court 470 whereby it struck down the selection made for appointments in the junior teaching posts in medical colleges in the State and directed a fresh selection list to be prepared after shifting the last date for receipt of applications to 30th June, 1988.
The facts giving rise to this appeal, briefly stated, are as under.
The State of Bihar published an advertisement inviting applications for appointment to the posts of (i) Assistant Professor (clinical subject); (ii) Registrar; (iii) Assist ant Clinical Pathologist; (iv) Anesthetist; (v) Resident Medical Officer and (vi) Demonstrator (Tutor) in non clini cal subject for different Medical Colleges and Medical College Hospitals in the State of Bihar.
For the post of Assistant Professor only such officers who had worked as Resident or Registrar in Medical Hospital recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of the application was fixed as 31st January, 1988.
Pursuant to the said adver tisement applications were received from eligible candidates and the select list or panel was prepared for appointments to the respective posts.
The respondents and some interven ors who held appointments as junior teachers in one or the other Medical Colleges in the State questioned the validity of the State 's action of inviting applications for prepara tion of a list for appointments to the advertised posts mainly on the ground that the last date for receipt of applications fixed as 31st January, 1988 (hereinafter called 'the cut off date ') deprived them of the opportunity to compete for the posts as they did not complete the requisite experience criterion of three years by that time.
It was contended that this cut off date was arbitrarily fixed and was, therefore, violative of Article 14 of the Constitution.
The High Court took the view that the State Government had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
This is clear from the following observation made by the High Court: " . . advertisement in the past including one in the year 1983 (Annexure 1) always fixed 31st June as the date " . (Emphasis supplied) The use of the word 'always ' indicates that the High Court was under the impression that in the past the cut off date was always fixed as 31st June (it should be 30th June) for the preparation of the panel for appointments to the posts in question.
Elsewhere also in the judgment there are obser vations which disclose that the High Court laboured 471 under the belief that the cut off date was always fixed as 30th of June of the relevant year.
This becomes obvious from the following criticism also: "If the State is determined to achieve such a goal and is ready to make its activity predictable it is a welcome sign but such desired predictability can equally be achieved by adhering to the schedule of the past and maintaining 30th June of the years as the last date for the application.
If they had not followed any rule in the past and they propose to follow a rule in this regard in future, they can do so without causing any violation to any legal right of any incumbent by at least showing adherence to the reckoning date which until now had been the last date of the month of June of the year." (Emphasis supplied) On this line of reasoning the High Court came to the conclu sion 'that the State Govermnent had acted arbitrarily in fixing the last date fox receipt of applications as 31st January, 1988 under the advertisement published on 29th December, 1987.
The High Court while upholding the conten tion based on Article 14 further observed "we would have ignored the arbitrariness in taking 31st January of the year as the reckoning date had we not taken notice of recalci trance of the, respondents in taking no step in the years intervening the selection in the year 1983 and the present selection".
The High Court, therefore, felt satisfied that there was no rationale in departing from the past practice and selecting 31st January, 1988 as the last date.
It is felt that in all fairness 30th of June of the year would be 'the .preferable date ' for reckoning the eligibility of the candidates.
The State Government was, therefore, directed to shift the last date for receipt of the applications from 3 1st January 1988 to 30th June, 1988 and to prepare a fresh panel thereafter and make appointments to the posts in question therefrom.
The State of Bihar feeling aggrieved by this order has approached this Court by special leave.
The learned counsel for the State submitted that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
In order to dispel this assumption made by the High Court without examining the past advertisements the State Government has placed before us the advertisements issued from 1974 to 1980 which shows that different cut off dates were fixed under these different advertisements and at no time in the past between 1974 and 1980 was 30th of June fixed as the 472 relevant date.
It is true that the High Court did not have the benefit of the earlier advertisements but it is equally true that there was no material on the record of the High Court for concluding that in the past the cut off date was 'always ' fixed as 30th of June of the relevant year.
From the copies of the advertisements from 1974 to 1980 it tran spires that generally the cut off date was fixed between one to one and a half months after the date of issuance of the advertisement.
In the year 1983 for the first time the cut off date was fixed as 30th June, 1983.
On some occasions in the past the cut off date was extended, depending on the facts and circumstances obtaining at the relevant point of time.
It, therefore, becomes obvious from this documentary evidence that the factual premise on which the High Court has based its judgment is clearly erroneous.
The High Court was in error in thinking that in the past the cut off date was always fixed as 30th of June of the relevant year.
In fact except for a solitary occasion in 1983 when the cut off date was fixed as 30th June, 1983, at no other time in the past was that date fixed as the last date for receipt of the applications.
No advertisements were admittedly issued after 1983 and before the advertisement in question.
The present advertisement was published on 29th December, 1987 and the last date for receipt of applications was fixed thereunder as 3 ist January, 1988 leaving a time gap of a little over a month.
As pointed out earlier, on a perusal of the adver tisements issued from 1974 to 1980 it becomes obvious that normally the cut off date was fixed one or one and a half months after the date of advertisement.
It was, therefore, not the uniform practice of the State Government to fix the cut off date for eligibility purposes as 30th of June of the relevant year as was assumed by the High Court.
Once it is found that the High Court has based its decision on an erroneous assumption of fact, the decision cannot be allowed to stand.
It was, however, argued by the learned counsel for the respondents that the State Government should not be permit ted to introduce new facts in the form of advertisements issued from 1974 to 1980.
We do not think that such a tech nical approach would be justified for the simple reason that the assumption of fact made by the High Court is not borne out from record.
No material was placed before the High Court to justify the conclusion that 30th of June of the relevant year was 'always ' fixed as the cut off date in the past.
The High Court 's assumption of fact is, therefore, based on no evidence at all.
We have, therefore, thought it fit to permit the State Government to place material on record to justify its contention that the High Court had committed a grave error in assuming that in the past the cut off date was always fixed as 30th of June of the rele vant year.
473 It was next contended that this Court should not inter fere in exercise of its extra ordinary Jurisdiction under Article 136 of the Constitution.
In support of this conten tion reliance was placed on the observations of this Court in Municipal Board.
Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., wherein this Court while correcting an error of law refused to interfere with the decision of the High Court directing reinstatement of the workman on the finding that the termination order was in valid.
That was, however, a case where the Court came to the conclusion that the employee was a capable hand and his services were actually needed by the appellant Municipal Board.
It was in those special circumstances that this Court while correcting the error refused to interfere with the order of reinstatement.
The decision, therefore, turned on the special facts of that case.
The appellant invited our attention to two decisions of this Court, namely, Union of India & Anr.
vs M/s. Pararnes waran Match Works & Ors., [1975]1 SCC 305 and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitikaran Abhiyan Samiti, Varanasi vs State of U.P. & Ors.
in sup port of its contention that the High Court was in error in holding that the State had acted arbitrarily in fixing the cut off date.
In the first mentioned case by Notification No. 162 dated 21st July, 1967, which superseded the earlier notifications, provision was made that if a manufacturer gave a declaration that the total clearance from the factory will not exceed 75 million matches during a financial year, he would be entitled to a concessional rate of duty.
This Notification was amended by Notification No.205 dated 4th September, 1967, clause (b) whereof confined the concession, inter alia to factories whose total clearance of matches during the financial year 1967 68, as per declaration made by the manufacturer before 4th September, 1967, was not estimated to exceed 75 million matches.
Thus, the conces sional rate of duty could be availed of only by those who made the declaration before 4th September, 1967.
The re spondent was not a manufacturer before 4th September, 1967 as he had sought for a licence on 5th September, 1967 and was therefore, in no position to made the declaration before 4th September, 1967.
The respondent, therefore, challenged the cut off date of 4th September, 1967 as arbitrary.
Deal ing with the contention, this Court observed as under: "In the matter of granting concession or exemption from tax, the Government has a wide latitude of discretion.
1t need not give exemption or concession to everyone in order 474 that it may grant the same to some.
As we said, the object of granting the concessional rate of duty was to protect the smaller units in the industry from the competition by the larger ones and that object would have been frustrated, if, by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty.
" While pointing out that a classification could be rounded on a particular date and yet be reasonable, this Court observed that the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless the circum stances show it to be capricious or whimsical.
When it is necessary for the legislature or the authorities to fix a line or a date and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or authority must be accepted unless it is shown to be capri cious or whimsical or wide off the reasonable mark.
In the second mentioned case this Court, while upholding the con stitutional validity of section 31 B of the U.P.Higher Educational Service Commission Act, 1980, answered two contentions, namely, (1) adoption of the cut off date in the said section as 3rd January, 1984 for the purposes of regu larisation of the services of ad hoc teachers appointed by the management of the affiliated colleges was arbitrary and irrational and violative of Article 14 inasmuch as equals were treated as unequals, and (ii) the Legislature could not arbitrarily adopt 3rd January, 1984 as the cut off date for regularisation of the services of ad hoc teachers merely because that was the date on which the 1983 order expired.
Agreeing with the High Court that the fixation of the date for the purposes of regularisation was not arbitrary or irrational, this Court observed that the object of section 3 I B was to regularise the services of ad hoc teachers ap pointed under the 1983 order till 3rd January, 1984.Ad hoc teachers who had been appointed prior to that date had legal sanction and therefore they constituted a distinct class.
This Court, therefore, felt that the legislature could not have adopted any other basis for purposes of regularisation and refused to interfere with the High Court 's order.
In the present case as pointed out earlier the past practice was to fix the last date for receipt of applica tions a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State Government fixed the last date for re ceipt of applications as 31st January 1988.
Those who had . the required experience of three years by that date were, therefore, eligible to apply for the posts in question.
The respondents and some 475 of the intervenors who were not completing the required experience by that date, therefore, challenged the fixation of the last date as arbitrary and violative of Article 14 of the Constitution.
It is obvious that in fixing the last date as 31st January, 1988 the State Government had only followed the past practice and if the High Court 's attention had been invited to this fact it would perhaps have refused to inter fere since its interference is based on the erroneous belief that the past practice was to fix 30th of June of the rele vant year as the last date for receipt of applications.
Except for leaning on a past practice the High Court has not assigned any reasons for its choice of the date.
As pointed out by this Court the choice of date cannot be dubbed as arbitrary even if no particular reason is forthcoming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of the date for advertising the posts had to depend on several factors, e.g., the number of vacancies in different disciplines, the need to fill up the posts, the availability of candidates, etc.
It is not the case of any one that experienced candi dates were not available in sufficient numbers on the cut off date.
Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January, 1988 to 30th June, 1988 is no reason for dubbing the earlier date as arbitrary or irrational.
We are, therefore, of the opinion that the High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of applications as 31st January, 1988 as arbitrary.
It was lastly contended that the State Government had given an undertaking to the High Court that 'no appointment shall be made from any previous panel and that, as decided by this Court, if the panel, which is likely to be prepared pursuant to the advertisement in question, is allowed, appointments shall be made from the same panel or if that panel is not allowed and a new panel is required to be prepared, as directed by this Court, appointments shall be made from the same panel '.
This undertaking, in our opinion, cannot preclude the State from challenging the decision of the High Court.
In the result, this appeal succeeds.
The impugned deci sion of the High Court is set aside and the Writ Petition which has given rise to this appeal will stand dismissed with no order as to costs throughout.
Y. Lal Appeal allowed.
|
The State of Bihar published an advertisement inviting applications for appointments to the junior teaching posts in medical colleges in the State of Bihar.
For the post of Assistant Professor.
only such officers who had worked as Resident or Registrar in Medical Hospitals recognised for imparting M.B.B.S. studies by the Medical Council of India and having three years experience of such post were consid ered eligible.
The last date for receipt of applications was fixed as 31st January 1988.
Pursuant to the said advertise ment.
applications from eligible candidates were received and a select list or panel was prepared for appointments to the respective posts.
The respondents and some other inter venors who were working then in the Medical colleges as junior teachers challenged the State action in fixing the 3 1st of January 1988 as the cut off date for receipt of applications for the advertised posts.
as they had by then not completed three years which was prescribed as the requi site experience.
It was contended by them that the cut off date was arbitrarily fixed and was therefore violative of Article 14 of the Constitution.
The High Court took the view that the State Government in fixing the 31st January 1988 as the cut off date.
had deviated from its usual practice of fixing the cut off date as 30th of June of the relevant year.
Hence this appeal by the State of Bihar by special leave.
It is contended by the State that the decision of the High Court was based on an erroneous premise that the cut off date for eligibility purposes was 'always ' fixed as 30th of June of the relevant year in the past.
Allowing the appeal, this Court.
HELD: The past practice was to fix the last date for receipt of applications a month or one and a half months after the date of actual publication of the advertisement.
Following the past practice the State 469 Government fixed the last date for receipt of applications as 31st January 1988.
These who had completed the required experience of three years by that date were.
therefore.
eligible to apply for the posts in question.
[474G H] The choice of date cannot be dubbed as arbitrary even if no particular reason is forth coming for the same unless it is shown to be capricious or whimsical or wide off the reasonable mark.
The choice of 'the date for advertising the post had to depend on several factors, e.g. the number of vacancies in different disciplines.
the need to fill up the posts.
the availability of candidates etc., [475C D] Merely because the respondents and some others would qualify for appointment if the last date for receipt of applications is shifted from 31st January 1988 to 30th June 1988.
is no reason for dubbing the earlier date as arbitrary or irrational.
[475D] The High Court was clearly in error in striking down the Government 's action of fixing the last date for receipt of application as 31st January 1988 as arbitrary.
[475E] Municipal Board, Pratabgarh & Anr.
vs Mahendra Singh Chawla & Ors., ; Union of India & Anr.
vs M/s. Parameswaran Match Works & Ors., ; and Uttar Pradesh Mahavidyalaya Tadarth Shikshak Niyamitika ran Abhiyan Samiti, Varanasi vs State of Uttar Pradesh & Ors., , referred to.
|
Special Leave Petition (Civil) No. 1008 of 1986.
From the Judgment and Order dated 25.11.1985 of the Madhya Pradesh High Court in Misc.
Petition No. 551 of 1981.
Dr. N.M. Ghatate and S.V. Deshpande for the Petitioners.
Kuldip Singh, Additional Solicitor General, B.B. Ahuja and Miss. A Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition for leave to appeal under Article 136 of the Constitution of India directed against the judgment and order dated 25th November, 1985 of the High Court of Madhya Pradesh at Jabalpur.
The petitioner herein had challenged by a petition under Article 226 of the Constitution the order dated 26th December, 1975 passed by the Collector of Central Excise, Nagpur, directing confiscation of 565 wrist watches seized from the petitioner 's possession on 12th May, 1973 under Section 111 of the (hereinafter called 'the Act ') and the imposition of penalty of Rs.2,00,000 under section 112 of the Act and as well as the order dated 10th August, 1979 passed by the Central Board of Excise and Customs dismissing the petitioner 's appeal and thereafter the order dated 8th January, 1981 passed by the Government of India dismissing the petitioner 's revision.
It appears that the petitioner along with his father and brothers migrated to India from Pakistan.
It is stated that the petitioner started business of cutlery in Indira Market Durg and has got this separate business from other two brothers.
The petitioner further asserted that he was not also associated in any business with his cousin Hariram or 800 business of his father.
He stated that he lives separately from his brother and father.
In or about April, 1966, the petitioner purchased a piece of land for Rs.6250 from one Yeshwant Ram under the registered sale deed in respect of the plot bearing Khasra No. 1167 admeasuring about 182 sq.
Similarly his brothers had also purchased plot adjoining the plot of the petitioner.
Since 1973, the petitioner stated that he was living in two temporary rooms constructed by his brothers and petitioner 's plot was lying vacant.
On or about 12th May, 1973 Superintendent of Central Excise Raipur issued search warrant under section 105 of the Act authorising one L.B. Tiwari Inspector, Central Excise to search the residential premises of the petitioner.
They searched the residential premises at Durg and it was alleged that the house belonged to the petitioner.
On 1st April, 1974, the petitioner was detained under the (hereinafter called 'COFEPOSA ').
On or about 22nd March, 1975, the petitioner while in jail received the letter issued by the Collector for the purpose of extension of six months ' time for the issuance of show cause notice under section 110(2) of the Act under which the period was extended upto 14.11.74.
The petitioner alleged that this letter was never received by him.
There was another order on or about 5th January, 1976 passed by the Collector, Central Excise under which it was held that the petitioner had acquired the possession of the wrist watches and these were smuggled goods and imposed a penalty of Rs.2,00,000.
The High Court noted the facts as below: "On 12.5.1973 in a search made of the petitioner 's bed room at Durg, a total of 565 wrist watches of foreign mark valued at Rs.87,455 were seized from a suit case, a secret cavity in a locked steel almirah, and behind the almirah concealed in a bundle of waste paper from the petitioner 's possession during his presence.
A panchnama was prepared at the same time mentioning these facts.
The petitioner found himself unable to make any statement at that time on account of which recording of his statement was deferred.
However, the petitioner went out of station on 14.5.1973.
His statement was then recorded on 30.5.1973, as soon as he was available for this purpose.
In his statement Annexure R III duly signed by him, he admitted these facts and merely denied knowledge of the manner in which the watches came to be in his house.
the 801 petitioner was also given a notice to show cause why the period of six months fixed by section 110(2) of the should not be extended but no reply was given by him till 10.11.1973 or even thereafter, therefore, by an order dated 10.11.1973 before expiry of the period of six months ' time was extended by the collector of customs for a further period of six months for giving a notice as required by section 124(a) of the Act.
Within proviso to sub section (2) of section 110, a show cause notice specifying the requisite particulars was given to the petitioner on 4.5.1974.
In reply the petitioner made a general denial.
The enquiry was fixed for giving a personal hearing to the petitioner on 31.10.1975 when the petitioner 's counsel appeared and sought an adjournment to 20.11.75 which was granted.
However, on 20.11.1975 the petitioner 's counsel stated that the petitioner did not want to avail the opportunity of personal hearing or to even cross examine the witnesses in whose presence the panchnama the time of the seizure of the watches was made.
In the above circumstances and on the basis of facts alleged in the show cause notice which the petitioner did not even care to refute by availing the opportunity given to him at the enquiry, the Collector of Central Excise passed the order dated 26.12.1975, as aforesaid.
This order has been affirmed on appeal by the Board and thereafter in revision by the Government of India.
" It was contended before the High Court by the petitioner 's counsel that the notice dated 4th May, 1974 issued under section 124(a) of the Act was issued beyond the period of six months of the seizure of goods made on 12.5.1973 and as such the entire proceedings were invalid for this reason.
It was also contended that the extension of the period of six months by another period of six months in accordance with the proviso to sub section (2) of section 110 could not be made ex parte without notice to the petitioner.
Reliance was placed on the decision of this Court in Asstt.
Collector of Customs vs Charan Das Malhotra, ; The High Court found that this contention had not been urged before the lower authorities.
However, the High Court noted that the Collector 's order dated 26th December 1975 had specifically mentioned that a show cause notice was issued to the petitioner for extension of the period for issue of notice in accordance with section 110(2) of the Act by another six months but no reply was 802 given by the petitioner and the Collector, therefore, extended the period by another six months by his order.
This order coupled with the petitioner 's failure to even raise this point at an earlier stage was sufficient, according to the High Court, to indicate that the order extended the period by another six months under the proviso to subsection (2) of section 110 was made after giving an opportunity to the petitioner which he had failed to avail.
Sub section (2) of section 110 stipulates as follows: "Where any goods are seized under sub section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months.
" Extension of time takes away a valuable right of a party whose goods are proposed to be seized.
Such deprivation of the valuable right must be upon notice otherwise it violates the principles of natural justice.
In the aforesaid decision of this Court in Asstt.
Collector of Customs vs Charandas Malhotra, (supra), this Court affirmed the view of the Calcutta High Court that the power under the proviso was quasi judicial, or at any rate, one requiring a judicial approach.
This Court reiterated that the right to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure.
Therefore, according to this Court an ex parte determination by the collectorwould expose his decision to be one sided and perhaps one based on an incorrect statement of facts.
How then can it be said that his determination that a sufficient cause exists is just and fair if he has done it before by one sided picture without any means to check it unless there is an opportunity to the other side to correct or controvert it? But in the facts of this case a notice has been given and it has been so found from the records as well as the inference drawn from in absence of pleading, which inference drawn by the High Court in the facts of this case was not an improper inference.
In our opinion, the order was passed not in violation of the principles of natural justice.
It must be reiterated whether a notice was given or not within a stipulated time for extension as contenplated under section 110(2) is a 803 question of fact.
It is also true that the onus that the order was passed without notice, was on the person who asserts it to be so and this is a question of fact.
There was an assertion to this effect in the collector 's order, the assertion remained uncontroverted by any specific evidence and also by failure to urge this point.
In that view of the matter, the inference drawn by the High Court that such notice was given as contemplated under section 110(2), in our opinion, was not unwarranted.
The next contention that was raised before the High Court was that there was no evidence to determine the value of the watches so that the quantum of penalty could not be determined for want of such evidence.
It was contended that determination of quantum was arbitrary.
It appears, however, as the High Court noted that the value of the watches was mentioned as one of the particulars in the show cause notice given to the petitioner and this value was not refuted by the petitioner in his reply.
The petitioner did not avail himself of the opportunity at any stage to oppose the extention of time or to refute the allegations made in the show cause notice given thereafter.
Furthermore, these facts must be considered in conjunction with the fact that there was a statement by the petitioner recorded on 30th May, 1973.
Section 123 of the Act provides as follows: "123(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be (a) in a case where such seizure is made from the possession of any person (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; "(b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.
(2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of 804 goods which the Central Government may by notification in the Official Gazette specify." (Emphasis supplied) This provision had been substituted by the Act 36 of 1973 and would be applicable in the instant case.
The petitioner failed to discharge the burden of proof of trust on him by the aforesaid section.
The next question which was canvassed before the High Court was that the quantification of the penalty was very high.
The High Court however, noted that the liability was incurred by the petitioner in 1973 and the collector made the order in 1975.
Admittedly, for about ten years even after the collector 's order imposing the penalty, the amount of penalty had not been paid by the petitioner.
The value of the smuggled goods was Rs.87,455 even at that time.
On that there is no dispute.
The penalty permissible is upto five times the value of the goods.
The High Court noted that the benefit derived by the petitioner by nonpayment of the amount of Rs.2,00,000 at least for ten years is sufficient indication that the penalty could not be treated as arbitrary.
That of course, by itself in our opinion is not always a safe guide.
But in the facts and circumstances of this case, the penalty was not heavy and the High Court was right.
It is true that this Court in Malhotra 's case (supra) had laid down that the penalty could not be arbitrary and excessive.
But in the facts of this case, it was not so.
As far as the value of the wrist watches is Rs.87,455 it was not arbitrary because it was not denied even though it was so stated in the show cause notice.
In that view of the matter, the High Court was right in not entertaining the petition under Article 226 of the Constitution.
We decline to interfere in this case under Article 136 of the Constitution.
The special leave petition is rejected.
N.V.K. Petition dismissed.
|
On or about 12th May, 1973 the Superintendent of Central Excise issued search warrant under section 105 of the authorising an Inspector of Central Excise to search the residential premises of the petitioner.
A search was made and 565 foreign wrist watches were recovered from the premises.
The petitioner was given a notice to showcause why the period of six months fixed by section 110(2) should not be extended.
On December 26, 1975 the Collector of Central Excise passed an order directing confiscation of 565 wrist watches seized from the petitioner 's possession on May 12, 1973 under Section 111, and the imposition of penalty of Rs.2 lacs under section 112 of the Act.
The petitioner 's appeal to the Central Board of Excise and Customs, and revision to the Government of India having been dismissed, the petitioner challenged the order of the Collector in a writ petition to the High Court.
The High Court dismissed the writ petition, on the ground that the Collector was justified in passing the order of confiscation of the watches and imposing a penalty of Rs.2 lacs, as the petitioner had not refuted the facts alleged in the show cause notice by availing of the opportunity given to him at the enquiry.
In the Special Leave Petition to this Court it was contended that: (1) the notice dated May 4, 1974 issued under section 124 of the Act was issued beyond the period of six months of the seizure of the goods and as such the entire proceedings were invalid for this reason; and that the 798 extension of the period of six months by another period of six months in accordance with the proviso to section 110(2) could not be made ex parte without notice to the petitioner, (2) there was no evidence to determine the value of watches, so the quantum of penalty could not be determined for want of such evidence, and (3) the quantification of the penalty was very high.
Dismissing the Special Leave Petition, this Court, ^ HELD: 1(i) Extension of time takes away a valuable right of a party whose goods are proposed to be seized.
Such deprivation of the valuable right must be upon notice, otherwise it violates the principles of natural justice.[802D E] (ii) An ex parte determination by the Collector would expose his decision to be one sided and perhaps one based on an incorrect statement of facts.
[802F] (iii) Whether a notice was given or not within a stipulated time for extension as contemplated under section 110(2) is a question of fact.
The onus that the order was passed without notice is on the person who asserts it to be so and this is a question of fact.
[802H;803A] In the instant case, a notice has been given.
There was an assertion to this effect in the Collector 's order.
The assertion remained uncontroverted by any specific evidence and also by failure to urge this point.
In that view of the matter, the inference drawn by the High Court that such notice was given as contemplated under section 110(2), was not unwarranted.
[803A B] 2.
The value of the watches was mentioned as one of the particulars in the show cause notice given to the petitioner and this value was not refuted by the petitioner in his reply.
The petitioner did not avail himself of the opportunity at any stage to oppose the extension of time or to refute the allegations made in the show cause notice given thereafter.
The petitioner thus failed to discharge the burden of proof cast on him by section 123 of the Act.
[803C D] 3.
The quantum of penalty should not be arbitrary or excessive.
[804E] In the instant case, the value of the smuggled goods was Rs.87,455.
The penalty permissible is upto five times the value of the goods.
The Collector imposed the penalty of Rs.2 lacs by his order in 799 1975.
Admittedly, for about ten years, the amount of penalty had not been paid by the petitioner.
The High Court noted that the benefit derived by the petitioner by non payment of the penalty for ten years indicates that the penalty could not be treated as arbitrary.
That by itself is not always a safe guide.
In the facts and circumstances of this case, the penalty was not heavy.
[804C E] Asstt.
Collector of Customs vs Charan Das Malhotra ; , referred to.
|
.L.P. (Civil) No. 8896 of 1985.
From the Judgment and Order dated 18.12.
1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983.
WITH C.M.P. No. 28592 of 1988.
488 R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner.
T.S. Krishnamurthy Iyer and Mrs. section Dikshit for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
We have heard both the sides and the matter is being disposed of at the admission stage.
This petition is directed against the order of a learned Single Judge of the Madras High Court confirming the order passed by the Subordinate Judge, Nilgiris.
The matter arises under the ( 'Act ' for short) and the facts that give rise to the petition are as follows: The testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the eldest son of one John Browne.
The testatrix had a daughter of the name of Zoe Enid Browne and she died on 8.10.1977.
The respondent claiming to be the beneficiary to the estate of Mary Aline Browne who died on 28.3.1972 under the terms of a will said to have been exe cuted by her on 12.3.
1962 filed an application for letters of Administration with a copy of the will annexed in the Sub Court, Nilgiris.
The same is numbered as O.S. No. 23 of 1980.
Alongwith the application the respondent also filed an affidavit of an attestor of the Will.
In that proceeding, the petitioner and her deceased husband lodged a caveat on the ground that the said Mary Aline Browne did not execute any will and the will propounded by the respondent was a fictitious and forged one, intended to disentitle Zoe Enid Browne, daughter of the testatrix from claiming interest in the estate of her mother.
The petitioner also claimed that Zoe Enid Browne executed a will dated 23.6.1975 in favour of the petitioner and that she also executed a gift deed in her favour.
The petitioner also claimed that she was a trustee of John Browne Trust and that therefore, the peti tioner has caveatable interest.
Thus they opposed the pro bate of the will.
Before the Sub Court, several documents were filed.
The respondent herein contested the caveat stating that the petitioner herein has no interest in the estate.
The learned Subordinate Judge held that the peti tioner is not in any manner related either to Mary Aline Browne or Zoe Enid Browne.
The learned Single Judge of the High Court in an elaborate order having considered the rival contentions dismissed the Civil Revision Petition holding that the 489 petitioner cannot claim to be a person who has a caveatable interest in the estate of the deceased testatrix Mary Aline Browne.
We are told that the will has subsequently been probated and the letters of Administration have been grant ed.
The learned counsel for the petitioner contended that both the courts below have erred in holding that the peti tioner has no caveatable interest.
It is submitted that the petitioner is executor and legatee of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a registered gift deed dated 29.3.1974 in respect of the second item of the estate and that the petitioner was also appointed a trustee of John Browne Trust on 11.6.1975 and therefore, in law the petitioner has an interest in the property which is the subject matter of the will and thus have caveatable interest.
Under Section 283 of the , the District Judge or District Delegate may, if he thinks proper, issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
Section 284 provides for lodging caveat against grant of probate or administration.
Section 285 lays down that no proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered until the notice has been given to the caveator.
Section 286 deals with the power of a District Delegate and lays down that he shall not grant probate or letters of administration in any case in which there is "contention" as to the grant, or in which it otherwise appears to him that probate or letters of administration, ought not to be granted in this Court.
Under Section 288 where there is contention or where the District Delegate thinks that probate or letters of administration should be refused, the documents shall be returned to the applicant.
In the instant case the Sub Judge comes within the meaning of the District Delegate and the necessary powers were conferred on him by a notification which is not in dispute.
According to the learned counsel the petitioner duly lodged a caveat against the grant of probate and that both the courts below have not properly appreciated the effect of such a contention and erred in striking off the petitioner 's caveat.
In Nabin Chandra Guha vs Nibaran Chandra Biswas and Ors., AIR 1932 Calcutta 734, the Division Bench held that a person who has a real interest in the estate which is or is likely to be prejudicially 490 affected or adversely affected by the will can oppose the grant of probate or letters of administration.
In Gourishan kar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner therein who was related to the deceased through a common ancestor, can be said to have interest in opposing the application for probate.
In Shanti Devi Aggarwalla vs Kusum Kumari Sarkar & Ors., , Justice Ranganath Misra, as he then was, held that the vendor legatee is entitled to enter caveat and the purchaser having stepped into the shoes of vendor is also entitled to enter the caveat.
In Narayan Sah vs Smt.
Davaki, AIR 1978 Patna 220, considering the locus standi of a person to oppose grant, it is held that any interest, however, slight and even a bare possibility of an interest is suffi cient to entitle a person to enter caveat in a probate proceeding.
Relying on these decisions the learned counsel urged that the petitioner in the instant case has substantial interest in the estate.
The learned counsel for the respond ent did not dispute the legal position.
He, however, con tended that there was absolutely no material before the Courts below to substantiate the alleged interest of the petitioner in the estate.
It is submitted that the so called will said to have been executed by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline Browne has not been filed.
Likewise, the gift deed also was not filed.
Coming to the trust of John Browne it is submitted that the trust does not exist and got extinguished.
The learned counsel for the respondent further submitted that except mentioning these three aspects in a bare manner no other material was placed before the Court.
Having gone through both the orders we are reclined to agree with the learned counsel for the respond ent that the petitioner did not establish her caveatable interest.
We have perused the entire order of the trial court in this context.
Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed.
Now coming to the trust, it is in the evidence of P.W. 1 that John Browne Trust has come to an end in March, 1972 and the same was not in existence.
The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Likewise the registered gift deed or a copy of it has not been filed.
Before the learned Single Judge of the High Court also same contentions were put forward.
The learned Judge observed that from the objections filed by the caveator she desires the Court in the probate proceedings to uphold her title on the strength of a gift deed and the Trust deed.
It is observed: "Equally, the petitioner has not placed before the Court 491 the will dated 23.6.
1975 stated to have been executed by Zoe Enid Browne to establish that under the will dated 12.3.
1962 stated to have been executed by Mary Aline Browne some interest given to the petitioner under the will dated 23.6.1975 of Zoe Enid Browne, is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12.3.1962 stated to have been executed by Mary Aline Browne." Accordingly the learned Judge held that the petitioner has not established that she has a caveatable interest justify ing her opposition to the probate proceedings for grant of letters of administration.
In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.
Learned counsel, however, submitted that the will exe cuted by Zoe Enid Browne on 23.6.1975 in favour of the petitioner though not filed but was subsequently probated in the year 1989 and the fact that probate is granted can be taken into consideration by this Court as a subsequent happening, as the appeal before this Court, is only a re hearing or the continuation of the matter.
Reliance is placed on Section 227 of the which reads thus: "Effect of Probate Probate of a will when granted estab lishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.
" It is submitted that since the will executed by Zoe Enid Browne in favour of the petitioner is probated it must be deemed that it was existing since the death of the testatrix namely Miss. Zoe Enid Browne and that validates all interme diary acts.
According to the learned counsel, the effect of such a probate is that the petitioner 's interest in the estate gets established even on the date of entering caveat.
We are unable to see any force in this submission.
The said probate, admittedly, took place in a court in the Madras City.
We do not know whether the citations were issued to all the persons interested.
This probate also admittedly was granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceeding.
Under these circumstances, exercising our juris diction under Article 136 we do not see that it is expedient to acknowledge this probate proceeding and re open the matter.
492 Lastly an attempt was made to show that the Sub Court has no jurisdiction but we find that there a necessary notification issued by the High Court conferring powers on the Sub Court.
We see no force in any one of these submis sions.
The learned counsel, however, lastly submitted that the petitioner inspite of having substantial interest in the estate is losing her right, to prove that the alleged will by Miss Zoe Enid Browne is not a genuine one and that it is a fictitious one.
We must point out that by granting a probate, the court is not deciding the disputes to the title.
Even with regard to a probate granted, it can be revoked as provided under Section 263 of the in any one of the cases mentioned therein.
But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner 's way in seeking revocation of the grant of probate.
It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of grant ing of probate.
But they cannot deprive his right, if he has any, to invoke Section 263 of the and it is upto the petitioner to satisfy the Court.
With these observations, the special leave petition is dismissed.
T.N.A. Petition dismissed.
|
The respondent, claiming to be the beneficiary to the estate of deceased 'M ' under a will executed by her, filed an application in the Sub Court for Letters of Administra tion.
The petitioner lodged a caveat and opposed the probate of the will on the ground that the will propounded by the respondent was a fictitious one intended to disentitle 'Z ', daughter of 'M ', from claiming interest in the estate of her mother 'M '.
The petitioner based her caveatable interest on the basis of membership of the Trust, a gift deed and a will executed by 'Z ' which was subsequently probated in her favour.
The Subordinate Judge struck off the petitioner 's caveat on the ground that she has no caveatable interest.
The petitioner filed a Civil Revision Petition in the High Court and a Single Judge of the High Court confirmed the order of the Subordinate Judge.
In the special leave to this Court it was contended on behalf of the petitioner that the courts below have erred (i) in holding that she has no caveatable interest and in striking off her caveat; (ii) that Z 's will in her favour which was subsequently probated established her interest in the estate on the date of entering the caveat.
487 Dismissing the petition, this Court, HELD: 1.
By granting a probate the Court does not decide the disputes to the title.
A probate granted can be revoked under Section 263 of the .
[492C] 1.1 In the instant case the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate.
But they cannot deprive her right to invoke section 263 of the Act.
[492D] 2.
The order of the Trial Court shows that admittedly neither the original nor a copy of the will said to have been executed by 'Z ' was filed.
Likewise the registered gift deed or a copy thereof was not filed.
It is also evi dent that the Trust has come to an end and the same was not in existence.
The Trial Court has considered both the docu mentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust.
Accordingly, it cannot be held that the petitioner has caveatable interest.
[490F G; 491C] 3.
In the instant case it is not known whether the citations were issued to all the persons interested before the grant of the probate.
The probate was also granted when the special leave petition was pending in this Court yet the respondent had no notice about this probate proceedings.
Under these circumstances it is not expedient to acknowledge this probate proceeding and re open the matter.
[491 G H] Nabin Chandra Guha vs Nibaren Chandra Biswas and Ors., AIR 1932 Cal.
734; Gourishankar Chattoraj vs Smt.
Satyabati Debi, AIR 1931 Cal.
470; Shanti Devi Aggarwala vs Kusum Kumari Sarkar & Ors., and Narayan Sah vs Smt.
Devaki, AIR 1978 Patna 220, referred to.
|
ivil Appeal No. 1924 of 1990.
From the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15 of 1979.
543 K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for the Appellants.
T.S. Krishnamoorthy Iyer, P.S. Poti, section Balakrishnan, Deepak Nargoalkar, E.M.S. Anam, R.M. Keshwani, M.K.D. Nam boodiri and Irfan Ahmed for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
Special leave granted.
The unsuccessful appellants herein have preferred this appeal against the judgment of the High Court of Kerala dated 6.8.1985 passed in E.S.A. (Execution Second Appeal) No. 15 of 1979 whereby the High Court dismissed the said appeal filed by the appellants.
The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows: Othayath Gopalan Nambiar (since dead) and Othayath Lekshmy Amma (who is the first appellant herein) filed an Execution Application No. 556 of 1970 in Original Suit No. 817 of 1943 in the court of the Munsiff of Badagara under Section 13(B) of the Land Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to as the 'Act ') for restoration of possession of the properties mentioned in the schedule of the application, which were sold in court auction for arrears of rent in pursuance of the decree made in O.S. No. 817 of 1943.1t seems that during the pendency of the proceedings before the Munsiff, Othayath Gopalan Nambiar died and thereafter the first appellant 's son claiming to be the karnavan of the tavazhi got himself impleaded as the third petitioner in the said Execution Application, who is figuring as the second appellant herein.
In order to decide the questions that arise for consid eration, certain salient and material facts may be recapitu lated.
The suit, O.S. 'No. 817 of 1943 was filed for recov ery of arrears of rent of Rs.815 for the Malayalam years 1116 to 1118, corresponding to English era 1941 to 1943.
There were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant were the defendants 2 and 3.
A preliminary decree was passed on 26.5.1944 followed by the final decree on 29.11.
The decree holder assigned the decree to another member of his family, who in turn assigned it to one Kunhikannan.
The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the 544 property to sale.
The sale took place on 26.11.
One Thekkayil Kanaran who was the first Respondent in the Execu tion Application, i.e. the third Respondent herein purchased the property in the Court auction held on 26.11.1962, which sale was confirmed on 14.8.
1964 and consequently obtained delivery of the disputed scheduled property extending to 8.70 acres of double crop wet land through court on 9.1.
1965 from the possession of the appellants.
exhibit C 3 is the delivery account and report submitted by the Amin.
The remaining extent of the property was in the possession of the sub tenants in respect of which there was resistence with which we are not concerned here.
After the delivery has been effected, Gopalan Nambiar and the first appellant herein trespassed into the suit property.
Therefore, the Court auction purchaser filed O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession.
The suit was decreed as per the judgment exhibit B 16 dated 27.7.1966.
exhibit B 15 is the decree.
Ex B 49 dated 25.8.1966 and exhibit B 50 dated 22.8.1966 are the respective certified copies of the delivery account submit ted by the Amin and the delivery warrant issued to Amin in O.S. No. 6 of 1966.
The auction purchaser, i.e. third re spondent in this appeal assigned portions of the property under sale deeds Exts.
A2 and A3 dated 5.12.1966 to the 5th and 6th respondents in the Execution Application, who are the first and second respondent in this appeal.
1t is stated that while the first respondent is stranger, the second respondent is none other than the wife of the fourth re spondent.
As we have pointed out earlier, this fourth re spondent is among the three respondents on whom the rights of Kunhikannan devolved.
While it is so, Act 9 of 1967 came into force.
So Gopa lan Nambiar and the first appellant filed Execution Applica tion No. 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit.
While this E.A. was pending, Act 35 of 1969 tame into force (Kerala Land Reforms Amendment Act) repealing Act 9 of 1967.
So the appellants filed E.A. 556/70 under Section 13 B of the Act for restoration of possession with a prayer that earlier deposit made under Act 9 of 1967 be treated as a deposit under Act 35 of 1969 and also under took to pay the balance, if any, as would be found by the Court.
The third respondent (court auction purchaser) and his assignees Respondents 1 and 2 contended that the appellants have no interest in the properties and the delivery of the property had already been taken.
The appellants attacked the validity of exhibit A2 and A3 contending that the assignments in favour of Respondents 1 and 2 were made without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran, Respondent No. 3 was only a benamidar of the decree holder in the matter of the Court auction purchase.
This application (E.A. 556/70) was stoutly opposed by the respondents inter alia contending that the properties did not belong to the Tavazhi of the appellants and the appellants have no right to the suit properties and are not entitled to apply for restoration of possession.
According to the respondents, there is no valid deposit and after the delivery of the property has been effected, Gopa lan Nambiar trespassed into the properties and he was eject ed by recourse to a suit and thereafter the properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the strength of the said sale deeds.
The Trial Court held that the appellants were the tenants of the properties when they were dispossessed and the deposit made by the appel lants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration.
On the said finding it allowed E .A. 556/70 and set aside the sale.
Aggrieved by the order of the Trial Court, the Respond ents 1 and 2 filed A.S. 49/74 before the Sub Court, Badaga ra, which for deciding the appeal posed the following four points for its consideration, namely: 1.
Are the Petitioners entitled to maintain the application? 2.
Is the deposit sufficient? 3.
Are the appellants bona fide purchaser for consideration? 4.
Whether the court sale is liable to be set aside and the restoration of possession claimed allowable? If so, are the petitioners liable to pay anything by way of value of improvements? The learned Judge answered the first point "that the petitioners are competent to maintain the applica tion," and the second point holding " . . that the deposit when it was made is sufficient.
However the interest accrued till date of the present appli cation will be directed to be deposited in case the peti tioners are found entitled to restoration of possession.
" 546 Coming to the third point it has been held thus "The first respondent (third respondent in S.L.P.) had absolutely no necessity to execute any sham documents.
The fact that respondents 5 and 6 (Respondents 1 and 2 in the SLP) came into possession and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and pay ment of consideration spoken to by both the vendor and vendee are sufficient to hold that they are bona fide pur chasers for consideration.
" Under the fourth point, the relief claimed by the appellants was held to be rejected.
In the result, the order of the Trial Court was set aside and the appeal was allowed dis missing E.A. 556/70.
The learned Subordinate Judge has also expressed his opinion in his judgment that in summary proceedings under Section 13B of the Act, the plea of the appellants that the third respondent was a benamidar of the fourth respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code.
On being dissatisfied with the judgment of the Subordi nate Judge, the appellants preferred E.S.A. No. 15/79.
The respondents filed their cross objections.
Though the High Court admitted the appeal on being satisfied that the appeal involves as many as 11 substantial questions of law, it disposed the appeal on a short ground that the documents and the evidence adduced by the respondents 1 and 2 (Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in ques tion for consideration and the plea of benami put forth by the appellants has to be negatived.
The contentions in the cross objections were that for filing an application under Section 13(B)(1) of the Act, a deposit of the purchase money together with the interest at the rate of 6 per cent per annum in the court is a condition precedent and that the finding of the lower Appellate Court that the earlier depos it made under Act 9 of 1967 was sufficient and the interest accrued till the date of the Execution Application under Act 35 of 1969 would be directed to be deposited in case the appellants were found entitled to restoration of possession of the property is erroneous.
The High Court disposed the contentions in the main appeal observing thus: "It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the 547 lower appellate Court on other grounds.
I only indicate that the respondents ' counsel thought to sustain the conclusion of the lower appellate court on other grounds as well.
" In the result, the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs.
So far as the cross objections are concerned, the High Court passed the following order: "There is no need to dispose of the cross objections on the merits.
It is ordered accordingly.
" Hence the appellants by this appeal are impunging the judg ment of the High Court.
Mr. K.K. Venugopal, Sr.
Counsel appearing on behalf of the appellants, Mr. T.S. Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on behalf of the first and second respondents respectively took us very meticulous ly and scrupulously through the judgments of all the three courts and put forth the case of their respective parties.
Having heard the learned counsel on either side for a considerable length of time, we are clearly of the view on a conspectus of the relevant Section 13(B) of the Act and on the factual matrix of the case that the result of the case would depend upon the decision of two substantial questions involved, they being (1) Whether respondents 1 and 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration entitling to the benefit of the proviso to Section 13(B)(1)? (2) Whether the appellants are entitled to the benefit of subSection (1) of Section 13(B) of the Act? Before making a more detailed and searching analysis on different aspects of the case, it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Section 13(B)(1) of the Act, on the pivotal of which both the questions revolve.
Section 13B: There is no requirement in any of the clauses 548 that an offer of readiness to comply with any order for deposit of costs must be expressed in any judgment, decree or order of court, where any holding has been sold in execu tion of any decree for arrears of rent, and the tenant has been dispossessed of the holding after the 1st day of April, 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding, subject to the provisions of this Section; Provided that nothing in this sub Section shall apply in any case where the holding has been sold to a bona fide purchas er for Consideration after the date of such dispossession and before the date of publication of the Kerala Land Re forms (Amendment) Bill, 1968 in the Gazette.
If the answer to the first question is in the affirma tive, then there is no need to consider the second question as it would be only academic.
We, therefore, shall now address ourselves in the first instance whether the concur rent finding of facts by both the Appellate Courts relating to the first question warrant interference.
Before the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A 1 to A22, the respondents examined RWs 1 to 4 and marked Exhibits B. 1 to B .58.
Besides, exhibit X 1, X 2, X 3, X 5 and X 6 and C. 1 to C.4 were also exhibited.
The Respondents 4 to 6 admittedly are brothers.
Though at the initial stage, Mr. Krishnamurthy Iyer did not accept the relationship of the third Respondent with Respondents 4 to 6 on the ground of lack of evidence, subsequently no serious dispute was raised about the said relationship.
The Trial Court has proceeded on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan in whose favour the decree had been assigned.
However, it is admitted during the course of hearing of this appeal that the third Respondent is not a direct brother of Respondents 4 to 6, but son of the step mother of Respondents 4 to 6.
The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth Respondent Krishnan.
The first Respondent Govindan Nair is a stranger.
The third Respondent, the Court auction purchaser sold the property extending 4.35 acres in favour of the first Respondent and the remaining half in favour of the second Respondent under sale deeds Exts.
A.2 and A.3 dated 549 5.12.
Consideration mentioned in each of the sale deeds Exts.
A.2 and A.3 is Rs.3,000.
Out of Rs.3,000 shown as consideration for A.2 a sum of Rs.2,500 is said to have been left with the first Respondent for payment of arrears of rent.
In exhibit A.3, it is recited that the third respondent is said to have already received Rs.2,000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting O.S. No. 6/66.
The said sum of Rs.2,000 is stated to have been adjusted towards the consideration under exhibit A3.
The first Respondent has produced a receipt (exhibit B28) showing that out of the amount of Rs.2,500 left with him he had paid a sum of Rs. 100.
There is no other document evi dencing the discharge of the entire alleged arrears of rent out of Rs.2,400.
When the third Respondent was questioned about the promissory note on the strength of which he is stated to have borrowed a sum of Rs.2,000, he has stated that he had returned the promissory note.
This evidence as rightly pointed out by Mr. Venugopal is highly unacceptable because in usual practice whenever a debt, borrowed on a promissory note is discharged that promissory note is re turned to the borrower and never left with the lender.
Moreover, the evidence of the third Respondent is contra dicted by RW. 3, the son of the second Respondent.
According to RW.
3, when exhibit A.3 was executed, the promissory note was returned to the third Respondent.
According to Mr. Venugo pal, this contradictory version betwixt the evidence of the first Respondent and RW.
3 clearly shows that the recital regarding payment of consideration to the extent of Rs.2,000 in exhibit A.3 is not genuine and acceptable and that exhibit A.3 is not fully supported by consideration.
As per the recitals of consideration under Exhibits A.2 and A.3 the total cash consideration received by the third Respondent was only Rs. 1,500 i.e. Rs.500 from the first Respondent and Rs.1000 from the second Respondent.
It is vehemently urged on behalf of the appellants that the third Respondent after purchasing the property for Rs.815 in 1962 would not have parted with it after fighting several litigations for a cash considera tion of Rs.1,500 only.
The evidence of the third Respondent that he left a sum of Rs.2,500 with the first Respondent for discharging arrears of rent and earlier received a sum of Rs.2,000 from the second Respondent on a promissory note is not credit worthy in the absence of any supporting contempo rary documentary evidence.
His assertion that he paid the amount for the Court auction purchase in the year 1962 out of the money in his possession as well as from borrowings shows that he was a man of slender means.
When he was con fronted from whom he borrowed that amount, his answer was that he did not remember from whom and how much he borrowed.
The 550 Trial Court has rightly pointed out in paragraph 19 of its Order that the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present property.
Mr. Venugopal drew out attention to another piece of evidence of RW3, deposing that his father was never consult ed with regard to exhibit A3 and assailed his evidence as in credible and bereft of truthfulness and trust worthiness.
Coming to the sale deed, exhibit A2 it is stated that the first Respondent is residing about 11 miles away from Palayed Amson where the property is situated.
He has no other property in Amson.
The reason given by him for purchasing this property which was already riddled with litigation is not at all convincing.
The first appellate Court while perfunctorily rejecting the reasoning of the Trial Court with regard to the consid eration part of exhibit A2 and A3 disposed of that contention in a summary manner holding: "The apparent inadequacy is no ground to think that there is no consideration . .
I don 't think that the recitals in Exhibits A2 and A3 can be overlooked for this or the other reasons stated by the learned Munsiff." Then relying on Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded: "that the Respondents 1 and 2 came into possession of the properties and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and payment of considera tion spoken to by both the vendor and vendee and as such they are bona fide purchasers for consideration." The High Court accepting the reasons given by the sub Judge held thus: "Most of these documents are public records or registers kept in the respective village office and proceedings in courts.
There is no more of law in placing reliance on such documents.
The finding entered by the learned Subordinate Judge that respondents 5 and 6 are bona fide purchasers for consideration is based on substantial evidence.
It cannot be said to be arbitrary or unreasonable or perverse. ' ' 551 But both the Appellate Courts have conveniently ignored even the relationship of the parties which assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching a satisfactory conclusion and seem to have summari ly disposed of the case of the appellants.
The question is not the mere inadequacy of consideration as pointed by the lower appellate Court, but lack of evi dence in substantiating the recitals of both the documents.
The next contention advanced by Mr. Venugopal is that though the High Court has formulated as many as 11 substantial questions of law.
it has not dealt with any of them enumer ated as (a) to (e) and examined the question No. (f) in the proper perspective.
Further the important question No. (g) reading "rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not a bona .fide purchaser for value" is not at all dealt with.
It may be noted in this connection that the 6th re spondent and the 2nd respondent referred to in that question are Ambrolil Ammalu (2nd respondent herein) and Krishnan (4th respondent herein).
As pointed out supra the High Court itself has expressed that it was inclined to dispose of the appeal 'on a short ground '.
The bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti is that it is not open to the appellants to reagitate the matter and request this Court to disturb the concurrent finding of facts arrived at by both the appellate Courts which had rendered their findings on the proper evaluation of the evidence and there can be no justification to review or re appreciate the evidence to take a contrary view in the absence of any contemporaneous document in support of the plea of the appellants.
In addition to the above, Mr. Poti urged that the appellants have not properly and satisfacto rily discharged the onus of proof cast upon them and the concurrent findings based on voluminous documents, the copies of which are not annexed to the SLP for perusal of this Court, do not call for interference.
In reply to the above arguments, Mr. Venugopal has pointed out that none of the documents referred to in the judgments of the appellate Courts would either improve the case of the respondents or deny the claims of the appel lants.
Of the documents relied upon by the appellate Courts, exhibit B 17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book.
exhibit B28 is a rent receipt dated 23.2.1969 issued by the receiver appointed in O.S. 1/64 on the file of the Sub Court (lower appellate Court).
B. 42 is a true extract 552 from the Foodgrains Cultivation Register and B.46 is a true extract from the Peringathor Village Account.
exhibit
B.41 to B.45 are the levy notices and revenue receipts for the years 1967, 1968.
1969 and 1973.
Exhibits B.55 to B.59 are copies of orders in M.C. No. 3/71.
As rightly pointed out by Mr. Venugopal, it is but natural that the receipt for the pay ment of tax, rent receipt, revenue receipt etc., are in the names of the persons in whose names the properties stand and therefore those documents cannot by themselves dispel the claim of the appellants.
Besides, urging with aH emphasis that Exhibits A2 and A3 are only sham and nominal documents, it has been incidentally urged by Mr. Venugopal that the transaction under these two sale deeds is benami in nature.
This argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in favour of respondents 5 and 6 on the ground of fraud etc.
, the plea of benami transaction cannot be counte nanced.
He also cited the decision in Mithilesh Kutnari and Another vs Prem Behari Khare, ; But Mr. Venugopal explained his argument that he has not advanced that argument to set aside the sale deeds on the ground of benami transaction, but only for scrutinising the circum stances of the transaction in examining the validity of the sale deeds.
However, as the plea of benami transaction is not pressed into service, it need not detain us any more.
We shah now examine whether this Court would be justi fied in interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India.
In a recent decision in Dipak Banerjee vs Lilabati Chakraborty, ; it has been observed thus: "That jurisdiction (under Article 136 of the Constitution of India) has to be exercised sparingly.
But, that cannot mean thai injustice must be perpetuated because it has been done two or three times in a case.
The burden of showing that a concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellant.
But once that burden is discharged, it is not only the right but the duty of the Supreme Court to remedy the injustice." No doubt, this discretionary power has to be exercised sparingly; Out when there are exceptional and special cir cumstances justifying the exercise of the discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or 553 excluding material evidence resulting in unduly excessive hardships, this Court will be justified in stepping in and interfering with the concurrent finding of facts in the interest of justice and it is also the duty of this Court to remedy the injustice, so resulted.
Vide Basudev Hazra vs Meutiar Rahaman Mandal; , and Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others, at pages 385 and 386.
The present case, in our view, suffers from the infirmi ty of excluding, ignoring and overlooking the abundant materials and the evidence, which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the appellate Courts.
The relation ship of the parties inter se has been completely and conven iently ignored and excluded from consideration.
In fact, the High Court has not rendered any finding on question No. (g) which is one of the eleven substantial questions of law formulated in paragraph 3 of its judgment.
The lack of evidence in support of the recital in regard to the consid eration is completely overlooked.
Therefore, in view of the above exceptional and special circumstances appearing in this case, this Court will not be justified in refusing to exercise its discretionary powers merely on the ground that the conclusion of both the Courts is concurrent.
For the discussions made above, we are of the view that the conclusion arrived at by both the appellate Courts is only backed by assertions rather than by acceptable reason ing based on the proper evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of the proper ties in dispute for consideration.
On the other hand, we hold that the evidence and circumstances of the case coupled with the evidence on record do establish that the respond ents 1 and 2 are not bona fide purchasers for consideration.
In the result, we hold that the respondents 1 and 2 are not entitled to the benefit of the proviso to sub Section (1) of Section 13(B) of the Act and answer the first ques tion against the respondents and in favour of the appel lants.
We shall now pass on to the next question whether the appellants are entitled to the benefit of Section 13(B)(1) of the Act.
The Kerala Land Reforms Act of 1963 came into force on 1.4.1964.
Amended Act 9 of 1967 was a temporary enactment which 554 remained in force till 31.12.
Thereafter, Act 35 of 1969 came into force from, 1.1.1970 containing Section 13(B) which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded.
To invoke this benevo lent provision, the satisfaction of two primary conditions are sine qua non.
Those conditions are: (1) Any "holding" to which a tenant is entitled to resto ration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the "holding" after the first day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969.
If these two essential conditions are fulfilled, then the sale in execution of any decree for arrears of rent shall stand set aside notwithstanding anything to the con trary contained in any law or in any judgment, decree or order of court and the tenant shall be entitled to restora tion of possession of such holding, but subject to the provisions of this Section 13B.
The only bar for the resto ration of possession under this Section 13(B)(1) is the sale of the holding to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazette.
For invoking the benefit of sub Section (1) of section 13(B) the person entitled to restoration of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969 deposit the purchase money together with interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding.
Once these legal formalities are satisfactorily complied with then the Court by holding a summary enquiry shall set aside the sale and restore the applicant to possession of his holding.
The explanation to that section says that the term 'holding ' includes a part of holding.
The expression "holding" is defined in Section 2(17) of the Act.
The language of Section 13(B) is plain, clear and unam biguous representing the real intention of the legislature as reflected not only from the clear words deployed but also from the very purpose of the vesting of rights on the dis placed tenants.
To construe the provisions of a statute especially of a benevolent provision like the one in ques tion, we have to take into consideration the dominant pur pose of the statute, the intention of the legislature and the policy underlying.
Vide 555 P. Rami Reddy & Others vs State of Andhra Pradesh & Others, ; ; Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan & Others, [1987] 2 SCC 654 and M/s Doypack Systems Pvt. Ltd. vs Union of India & Others, ; Admittedly, the third respondent obtained delivery of the property in question through court on 29.1.1965 from the possession of the appellants, who were the tenants of the said property which was sold for arrears of rent and there after the appellants preferred a petition for restoration of possession of their holdings in Execution Application No. 1711/67 under Section 6 of Act 9 of 1967 after depositing the sale amount of Rs.815 and the interest of Rs.255.
Thus the appellants have satisfied the conditions for entitlement of the possession of the property.
While this proceeding was pending, Act 35 of 1969 came into force repealing Act 9 of 1967.
Therefore, the appellants filed the Execution Applica tion No. 566/70 in O.S. 817/43 praying that the present application should be treated as a proceeding in continua tion of the earlier Execution Application and the amount deposited already in the previous Execution Application should be treated as deposit for the present application with an undertaking to deposit the balance, if any.
Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the time of the dispossession, both the Trial Court as well as the first appellate Court have concurrently found that the appellants were holding the property as tenants and they were dispossessed.
Before the High Court, it was contended that at the time of dispossession of the holding, the appel lants were not tenants but only trespassers, that the dis possesion was only pursuant to the decree in O.S. No. 6/66 and that both the lower Courts have not applied their minds to these salient and vital facts.
The learned Judge of the High Court has answered this contention in the penultimate paragraph of his judgment observing thus: " This is a serious legal error.
It is not necessary for me to examine this question and finally adjudicate it, since I have upheld the decision of the lower appellate court on other grounds.
" Suffice to mention here that the High Court has not specifi cally dislodged the findings of the lower Courts that the appellants were tenants at the time of the dispossession.
However, we will deal with this question presently.
The main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that the appellants are not entitled to restoration of the possession of their 'holding ' because of an intervening cause, that being, that the third respondent, got the pos session of the property which is now sought to be disturbed not in execution of the decree for arrears of rent, but by filing a suit subsequent to 'the court auction purchase.
That intervening cause is explained by the learned counsel 'stating that after the property was delivered over to the third respondent on 29.1.1965, Gopalan Nambiar (since dead) and the first appellant trespassed into the land which necessitated the third respondent to institute a suit O.S. No. 6/66 in the Sub Court of Badagara which was decreed on 27.7.
1966 as evidenced by the judgment (exhibit B16).
He con tinues to state that the third respondent, only in pursuance of the execution of this decree in O.S. 6/66 obtained pos session of the property on 23.8.
1966 and therefore Section 13(B)(1) in view of the said intervening cause cannot be availed of since the third respondent though 'got possession earlier by the auction purchase was dispossessed by the subsequent event of trespass by the appellants and got possession by instituting the suit O.S. 6/66.
One other argument of the learned ' counsel is that as the sales under Exhibits A2 and A3 are only subsequent to the decree in O.S. No. 6/66, these transactions cannot be brought into the dragnet of Section 13(B) and the said provision will have no application to the facts of the present case.
We are afraid, we cannot permit this inconceivable argument to be advanced.
Admittedly, the third respondent purchased the property in court auction sale in pursuance of the decree for arrears of rent in O.S. No. 817/43 and obtained the possession by dispossessing the tenants, namely, the appellants.
It was only thereafter there was trespass by the appellants.
There fore, the subsequent event of obtaining possession of the property in pursuance of the decree in O.S. No. 6/66 will not in any way alter the position that the appellants had been dispossessed in pursuance of the decree for arrears of rent.
The decree in O.S. No. 6/66 for obtaining possession from the trespassers does not confer any new right or title over the property in favour of the third respondent.
Mr. Venugopal countered this argument stating that this new plea should not be allowed to be raised because this plea was never taken both before the trial and the first appellate Courts.
The reply given by Mr. Krishnamurthy Iyer is that since it is a question of law, it is permissible to raise this question even at this stage.
As we have said earlier, even assuming that this plea could be raised, it has no substance in any way affecting the claim of the appellants for the reasons stated supra.
Mr. Poti after giving a brief note about the legislative history that Act 4 of 1961 was declared as void on 5.12.
1961 in respect of certain 557 provisions and that thereafter Act 1 of 1964 was enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961 advanced a hesitant argument that the application is liable to be dismissed as the entire amount has not been deposited in compliance with sub Section (2) of Section 13(B) which is a condition precedent to claim the restora tion of the possession of the property.
Admittedly the appellants filed an application in the year 1967 for resto ration of the possession of the property under Section 6 of Act.
9 of 1967 and during the pendency of that application, Act 35 of 1969 came into force.
The applicant who had al ready deposited the purchase amount together with interest has made the request to treat that application as the one in continuation of the later proceeding and undertook to pay the deficiency of the amount, if any.
The lower appellate Court in paragraph 6 of its judgment found that the deposit already made was sufficient and that the interest accrued thereafter would be directed to be deposited in case the appellants were found entitled to restoration of possession.
This finding of the first appellate Court concurring with the Trial Court has not been dislodged by the High Court.
It may not be out of place to mention that on account of cer tain divergent views expressed by Judges of the Kerala High Court on this point the question was referred to a Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab vs Mohar Singh, ; observing: "The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them." and agreeing with the view expressed by Krishnamurthy Iyer, J (as he then was and who is now appearing before us for the first respondent in different capacity) in Civil Revision Petition Nos. 1090 and 109 1 of 1972 wherein this precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending on the date of the commencement of the Act 35 of 1969 was liable to be continued and dealt with under the provisions of the earlier Act, untrammelled by the provisions of the later Act.
We approve the view taken in the above Parameswa ran Narnbudiri 's case and hold that the deposit made in the earlier application under Section 6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969 was liable to be continued uneffected by the provisions of the later Act.
558 In Summation: We, for the aforementioned discussion, disagree with the findings of the High Court, set aside the impugned judgment and restore the judgment of the Trial Court holding that the sale of the 'holdings ' of the appellants was in execution of the decree in O.S. No. 817/43 for arrears of rent and the appellants who are tenants were dispossessed of the holdings after 1.4.64 and before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 and the respondents 1 and 2 are not bona fide purchasers for consideration.
In view of our above conclusion the appellants are entitled to recover possession of the properties in dispute, but without preju dice to the rights, if any, of the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and who have got themselves impleaded as parties to the present proceed ings.
The amount under deposit made by the appellants is permitted to be withdrawn by the respondents 1 to 3.
In the result, the appeal is allowed with costs.
S.B. Appeal al lowed.
|
The appellants fried an Execution Application in 1970 in the Court of Munsiff under Section 13(B) of the Land Reforms Act 1969 for the restoration of the possession of the properties which were sold in Court auction in pursuance of a decree for arrears of rent.
The decree holder and Court auction purchasers were close relatives.
The sale took place on 26.11.
1962 and was confirmed on 14.8.1964.
It is the 3rd Respondent a stranger in the present appeal who purchased the property in the Court auction and got the possession of the same on 9.1.1965 from the appellants.
The appellants trespassed into the suit property again and were ejected in 1966 pursuant to a decree in a suit.
Thereafter the 3rd Respondent i.e. the auction purchaser assigned the property in favour of Respondents No. 1 & 2 who were the close rela tives vide sale deeds dated 5.12.1966 (Exts A2 and A3).
The appellants had already filed Execution Application, for restoration of possession after making necessary deposit for the purchase money under section 6 of Act 9 of 1967.
The same was pending when Act 35 of 1969 came into force and so the appellants made an application with a prayer that the earlier deposit be treated as a deposit under section 13(B) of 1969 Act.
The Court auction purchaser i.e. 3rd Respondent and his assignees Respondents No. 1 & 2 strongly contended that appellants have no interest in the properties.
The appel lants attacked the validity of the sale deeds being made without consideration.
The trial Court held that the appel lants were tenants when they were dispossessed and also held that the deposit made by the appellants was sufficient for restoration of possession, and Respondents No. 1 & 2 are not bona fide purchasers for consideration, and hence set aside the sale.
The Respondents No. 1 & 2 made application before the sub court 540 and the court held the petitioners were competent to main tain the application and were bona fide purchasers as per records such as revenue and tax receipts plus the admission of the vendor and vendee as to the payment of consideration.
As to the deposit made by the appellants it was considered to be sufficient in case they were found entitled for resto ration of possession; set aside the Trial Court order and allowed the appeal.
The appellants therefore filed E.S.A. in the High Court and the High Court upheld that the decision and the decree of the lower Appellate Court as per evidence, and as circum stances of the case complied with public records establish ing that Respondents 1 & 2 are the bona fide purchasers for consideration.
But the first appellate court concurred with the Trial Court regarding the deposit already made to be sufficient and the interest accrued would be directed to be deposited if the appellants were found entitled to restora tion of possession.
The said finding has not been dislodged by the High Court.
Allowing the Special Leave Petition, this Court, HELD: In the instant case, two substantial questions are involved i.e. (1) whether respondents 1 & 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration and thereby entitled to the benefit of the proviso inserted vide Act 35 of 1969 to sec.
13(B)(1).
[547F] (2) Whether the appellants are entitled to the benefit of subsection (1) of section 13(B) of the Act.
[547F G] As per section 13(B) where any holding has been sold in execution of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before the commencement of the Kerala Land Reforms (Amendment) Act 1969, such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding subject to the provisions of this section.
[558 B C] Provided that nothing in this sub section shah apply in any case where the holding has been sold to a bona fide purchaser for consideration after the date of such dispos session and before the date of the publication of Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
[554D E] 541 The concurrent finding of facts by both the appellate courts that Respondents No. 1 & 2 are bona fide purchasers for consideration warrant interference because both the appellate courts have conveniently ignored and excluded from consideration even the relationship of the parties inter se i.e. the decree bolder, court auction purchaser are close relatives and have assigned the property in favour of their close relatives and a stranger This assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching satis factory conclusion.
The court has failed to render any finding on substantial question of Law.
The lack of recitals with regard to the consideration has also been completely ignored It seemed to have disposed of the case summarily.
[553B D] It is not merely the inadequacy of consideration as pointed out by the lower appellate court but there is lack of evidence in substantiating the recitals of the documents that Respondents No. 1 & 2 are bona fide purchasers.
The receipts for the payment of tax, rent or revenue are by themselves cannot dispel the claims of the appellants.
[545C] The conclusion arrived at by both the courts is only backed by assertions rather than by acceptable reasoning based on the proper evaluation of evidence.
So the evidence and circumstances of the case coupled with the evidence on record do establish that the Respondents 1 & 2 are not bona fide purchasers for consideration.
[553E F] Discretionary powers under Article 136 has to be exer cised sparingly but when there are exceptional and special circumstances justifying the exercise of discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or excluding material evidence resulting in undue hardships, this Court will be justified in stepping in and interfering with the concurrent findings of facts in the interest of justice and it is also the duty of this Court to remedy the injustice so resulted.
Dipak Baneriee vs Lilabatichakraborty, ; , relied on.
[552H; 553A B] On the question whether the appellants are entitled to the benefit of section 13(B)(1) of the Act, it was held: [553G] The Kerala Land Reforms Act of 1963 came into force on 1.4.1964, Act 9 of 1967 was a temporary Act and remained in force till 31.12.1969, Act 35 of 1969 came into force from 1.1.1970 and section 13(B) is substantially on the same terms as section 6 of 1967 Act with a 542 proviso super added.
To invoke section 13(B) two conditions are sine qua non.
(1) Any holding to which a tenant is entitled to restoration of possession should have been sold in execution of any decree for arrears of rent.
(2) The tenant should have been dispossessed of the holding after 1.4.1964 and before the commencement of 1969 Act.
[553H; 554A C] Thus the tenant shall be entitled to restoration of possession under section 13(B) provided the holding is not sold to a bona fide purchaser for consideration, after the date of dispossession and before the publication of the Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
The appellants are entitled to have the benefit of sub section (1) of section 13(B) only if they have made the deposit of the purchase money together with interest at the rate of 6% Per Annum in the Court and applied to the Court for setting aside the sale and for restoration of the hold ing.
The appellants in the instant case had already made deposit under 1967 Act and it was pending when Act 35 of 1969 came into force.
So the appellants made an application with a prayer to treat the said deposites continuation unaffected by the provisions of 1969 Act.
[554D F] The Language of section 13(B) is plain, clear and unam biguous and the very purpose of the section is to vest rights on the displaced tenants, which is the dominant purpose of the statute, which should be considered.
[554G H] P. Rami Reddy & Ors.
vs State of Andhra Pradesh & Ors.
, ; Skandia Insurance Co. Ltd. vs
Kokilaben Chandravadan & Ors., [1987] 2 SCC 654 and M/s. Doypack Systems Pvt. Ltd. vs Union of India & Ors., ; relied on.
The sale of holdings of the appellants was in execution of the decree for arrears of rent in O.S. No. 817 of 1943, and appellants are tenants who were dispossessed of the holdings after 1.4.1964 and before the commencement of 1969 Act.
They are therefore entitled to restoration of posses sion of the properties in dispute but without prejudice of the rights if any of the Respondents Nos. 7 to 10 who are the wife and children of Gopalan Nambiar.
The amount under deposit made by the appellants is permitted to be withdrawn by respondents 1 to 3.
[558B C]
|
Criminal Appeal No. 27 1 of 1990.
From the Judgment and Order dated 16.1.1989 of the Delhi High Court in Criminal Writ No. 34 of 1989.
K.V. Vishwanathan and S.R. Setia for the Appellant.
T.T. Kunhikanna, Udai Lalit and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
519 This is an appeal seeking a writ of habeas corpus.
The appellant who has been detained under Section 3(1)(i) and 3(1)(iii) of the COFEPOSA Act, 1974, has challenged the detention order.
The appellant is a native of Panakkad, Malapuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Jeddah he landed in Bombay on 15.9.87.
Then he started by a bus to go to his native place.
On 17.9.87 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign marking were found and they were duly recovered.
Further some incriminat ing documents were also recovered.
The gold was valued at Rs.4,64,951 and it was found to be smuggled gold.
The appel lant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded.
He confessed that he was introduced to a person who promised to give him remuneration provided he carries the gold to India and appellant agreed and carried these gold biscuits.
Criminal proceedings were initiated.
However, the detaining authori ty, the Home Secretary to Government of Kerala being satis fied passed the detention order dated 21.9.88 against the appellant with a view to preventing him from smuggling activities.
The grounds also were served within time and in the grounds all the above mentioned details are mentioned.
In the grounds the appellant also is informed that if he desires to make a representation to the Advisory Board, he may address it to the Chairman, Advisory Board and that he can also make a representation to the detaining authority or the Central Government.
Questioning the same the present appeal is filed.
It is submitted that the representation was made on 27.9.88 to the Central Government and it was disposed of on 2.11.88.
Therefore there was enormous delay by the Central Government in rejecting the representation and the delay amounts to violation of Article 22(5) of the Constitution of India.
The next submission is that though the alleged smug gling of gold is said to have been taken place on 17.9.87, the detention order was passed on 21.5.88 i.e. after a lapse of eight months and that too it was a solitary instance and because of the delay, the same has become stale and there is no other material to establish any nexus or live connection between the alleged date of smuggling and the date of deten tion.
The next submission is that there was delay in the execution of the detention order which was executed only on 6.8.88 though passed on 21.5.88 and that there is no allega tion that the appellant was absconding.
It is also submitted that the appellant was not given an effective opportunity to represent his case before the 520 Advisory Board inasmuch as the appellant was not permitted to be represented by an advocate or by his next friend.
In the counter affidavit it is stated that the Collector of Customs furnished proposals for the detention of the appellant on 24.3.1988 and the detention order was passed on 21.5.1988 and the appellant was detained on 6.8.1988.
The appellant made a representation to the detaining authority on 27.9.1988 and it was rejected by the State Government on 1.10.1988 and the Central Government rejected the same on 2.11.1988.
Therefore in the counter affidavit it is admitted that there is a delay of one month and five days in consid ering and rejecting the representation by the Central Gov ernment.
It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal.
Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the au thority making the order shall, as soon as may be, communi cate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
It is well settled that this Clause confers a valuable fight upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay.
Therefore the right under this Clause is two fold, namely that the authority making the order must communicate to the detenu the grounds on which the order has been made, as soon as the order is made and secondly that the detenu must also be afforded the earliest opportunity of making a representation against the order.
Article 22(5) itself does not say to whom the represen tation is made or who will consider the representation.
By virtue of provisions of the statute under which he has been detained, the appropriate Government is legally obliged to comply with these requirements.
It is obligatory on the appropriate Government to consider the detenu 's representa tion separate from the consideration of the detenu 's case by the Advisory Board.
But what the learned counsel submits is that the Central Government which has the power to revoke the detention order passed by the State authority, is also under legal obligation to dispose of the representation without delay.
Learned counsel relied on some of the deci sions of this Court.
In Khudiram Das vs The State of 521 West Bengal and Others, ; this Court held that one of the basic requirement of clause (5) of Article 22 is that the authority making the order must afford the detenu the earliest opportunity of making a representation against the order and this requirement will be ineffective unless there is a corresponding obligation to consider the repre sentation of the detenu as early as possible.
It may not be necessary for us to refer to all those decisions which deal with the delay caused by the appropriate Government in considering the representation inasmuch as in the instant case there is no delay in considering the representation by the State Government which is the detaining authority.
Section 11 of the COFEPOSA Act, 1974 deals with the revo cation of detention orders and under Section 11(b) the Cen tral Government may, at any time, revoke or modify an order made by the State Government.
Though strictly speaking the Central Government is not the detaining authority within the meaning of Article 22(5) yet they are under legal obligation to dispose of the representation as early as possible but the question is whether such delay by the Central Government also should be subjected to such a rigorous scrutiny as is done in the case of a delay caused by the appropriate Gov ernment.
namely the detaining authority.
In Tara Chand vs The State of Rajasthan, , this Court held that: "Once a representation is made to the Central Government, it is duty bound to consider the same in order to exercise its discretion either in rejecting or accepting it.if there is inordinate delay in considering the representation that would clearly amount to violation of Article 22(5) so as to render the detention unconstitutional and void." In Shyam Ambalal Siroya vs Union of India and Ors., ; it is held that: "The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power.
Any petition for revocation of an order of detention should be dealt with reasonable expe dition . .
It may be permissible for the Central Govern ment to take reasonable time for disposing any revocation petition.
But it would not be justified in 522 ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government.
It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the peti tion, declining to order for revocation." In Sabir Ahmed vs Union of India and Ors., ; dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exer cise of its power of detention by the detaining authority or the State Government and that the Central Government should consider the same with reasonable expedition and that what is reasonable expedition depends upon the circumstances of the particular case.
No hard and fast rule as to the measure of reasonable time can be laid down.
It is also observed that it certainly does not cover the delay due to negli gence, callous inaction, avoidable red tapism and unduly protracted procrastination.
In Sabir Ahmed 's case as well as in Shyam Ambalal Si roya 's case the representation made by the detenu to the Central Government has been ignored and left unattended for a period of about four months and under those circumstances it was held that there was violation of Article 22(5).
In Rama Dhondu Borade vs
V.K. Saraf, Commissioner of Police and Others, the detenu made a repre sentation to the Central Government on 26.9.1988 and the decision of the Central Government rejecting the representa tion was communicated to the appellant on 31.10.1988.
The explanation submitted by the Central Government was not accepted on the ground that it is not satisfactory.
In T.A. Abdul Rahman vs State of Kerala and Others, ; there was a delay of 72 days and it was observed that the representation of the detenu has not been given prompt and expeditious consideration and was allowed to lie without being properly attended to.
Bearing these principles in mind we shall examine wheth er the Central Government has expeditiously considered the representation or not.
We have already noted that the repre sentation was made on 27.9.88 and disposed of by the Central Government on 2.11.88, i.e. within a month and five days.
In the counter affidavit filed on behalf of the Central Govern ment it is stated that the representation dated 27.9.88 was received in the COFEPOSA Section of the Ministry of Finance on 10.10.88 and the representation was in Malayalam.
It is also 523 stated that there were some allegations regarding the non placement of certain documents and non supply of certain, documents to him.
Therefore a copy of the representation was sent to the sponsoring authority i.e. Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated 25.10.88 were received in the COFEPOSA Section on 27.10.88 and that the Additional Secre tary examined them and with his comments, they were forward ed to the Minister of State for Revenue on 31.10.88, since 29th and 30th October, 1988 were holidays.
The Minister of State for Revenue with this comments forwarded the represen tation on the same day i.e. 31.10.88 to the Finance Minis ter.
The Finance Minister considered and rejected the repre sentation on 1.11.88 and the file was received in the Office on 2.11.88 and on the same day, a memorandum rejecting the representation was sent to the detenu.
From the explanation it can be seen that the representation was considered most expeditiously and there is no "negligence or callous inac tion or avoidable red tapism".
For these reasons we are unable to accept this contention of the learned counsel.
The next submission of the learned counsel is that the date of search was 17.9.87 and the detention order was passed on 21.5.88 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority.
The learned counsel submits that there was no live existing connection between the incident and the detention.
In Lakshman Khatik vs The State of West Bengal, it is observed that mere delay in passing a detention order is not conclusive but the type of grounds given have to be seen and then consider whether such grounds could really weigh with an officer after such delay in coming to the conclusion that it was necessary to detain the detenu.
In Rajendrakumar Natvarlal Shah vs State of Gujarat and Others, ; it is held that the mere delay in passing the detention order is not fatal unless the court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the detention.
In Abdul Rahman 's case seizure of the gold biscuits was on 30.11.86 and the detention order was passed 11 months thereafter.
On the ground that there was no satisfactory explanation for this undue, unreasonable and unexplained delay, it was held that the delay throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.
In the counter affidavit, in the instant case, filed on behalf of the detaining authority it is stated that the case records relating to the 524 petitioner were received at the office of the sponsoring authority on 1.2.88 and they were processed in the Office and the show cause notice under the Customs Act was issued on 9.2.88 and the proposals were sent for COFEPOSA action on 24.3.88 and they were received by the State Government on 2.4.88.
The matter was considered by the Screening Committee which met on 28.4.88 and thereafter submitted the proposals to the detaining authority.
On 2.5.88 the detaining authori ty ordered to ascertain the reasons for the delay in spon soring the case and accordingly the sponsoring authority at Cochin was addressed on 2.5.88.
He was reminded on 7.5.88 and 12.5.88.
His reply was received on 16.5.88 and thereaf ter the order was passed on 21.5.88.
In our view, the delay has been reasonably explained.
The courts have not laid down that on mere such delay the detention has to be struck down.
In Yogendra Murari vs State of U.P., , it is held that: "It is not right to assume that an order of detention has to be mechanically struck down if passed after some delay . .
It is necessary to consider the circumstances in each indi vidual case to find out whether the delay has been satisfac torily explained or not.
" That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory.
In appreciating such a contention.
the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same.
It is this potentiality in him that has to be taken into con sideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground.
In Hemla ta Kantilal Shah vs State of Maharashtra, ; it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person.
For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.
Yet another ground urged by the learned counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order.
In the counter affidavit it is stated that after the detention order was passed, it was sent to the Superintendent of Police, Malappuram on 23.5.88 for 525 immediate execution and they were passed on to Circle In spector, Malappuram.
On 29.6.88, it was reported that the Circle Inspector had made due enquiries but the detenu could not be apprehended.
Thereupon a special squad was deputed as per the directions of the Superintendent of Police and thereafter he was detained on 6.8.88.
It is further submit ted in the counter affidavit that the delay in execution of the order is caused due to detenu 's deliberate attempt to make himself scarce.
That apart there is no decision where a court has gone to the extent of holding that a mere delay in arresting the accused renders the detention invalid.
In the instant case, the delay, if at all, is only about 2/1/2 months and the explanation offered for the delay is reasona ble.
The learned counsel, however, relied on Abdul Rahman 's case.
In that case the detention order was passed on 7.10.87 and the detenu was arrested on 18.1.88.
The court found that there was no reasonable explanation for the delay in the counter affidavit at all.
This ground was taken into consid eration alongwith the other important grounds in quashing the detention.
In SK.
Serajul vs State of West Bengal, it is observed that: "There was delay, both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction.
But this must not be misunderstood to mean that whenever there is delay in making an order of detention or in arrest ing the detenu pursuant to the order of detention, the sub .
jective satisfaction of the detaining authority must be held to be not genuine or colourable.
Each case must depend on its own peculiar facts and circumstances.
The detaining authority may have a reasonable explanation for the and that might be sufficient to dispel the inference that its satisfaction was not genuine.
" It can therefore be seen that on the mere delay in arresting me detenu; pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine.
Each case.
depends on its own facts and circum stances.
The Court has to see whether the delay is explained reasonably.
As mentioned above, in the instant case, we are satisfied with the explanation for the delay in arresting the detenu.
Therefore this contention is also liable to be rejected.
For all the above mentioned reasons, the appeal is dismissed.
Y. Lal Appeal dismissed.
|
The appellant after his Haj pilgrimage had been to Jeddah and from Jeddah he landed in Bombay on 15.9.1987.
Thereafter he boarded a bus to go to his native place in Kerala.
On 17.9.1987, the Custom authorities intercepted the bus wherein the petitioner was travelling and in the presence of the panch witnesses, searched his person and the chappals worn by him.
On opening the chappals about 13 gold ingots with foreign markings were found and they were duly recovered.
The appellant confessed that he was introduced to a person who promised to give him remuneration for carrying the gold to India and that is how he brought those gold biscuits.
The detaining authority passed the detention order against the appellant on 21.9.1988, and grounds of detention were served on him within time and he was informed that if he so desired he could make a representation to the Advisory Board, and also that he could make a representation to the detaining authority or the Central Government.
The appellant challenged his detention by means of a writ petition in the High Court and the same having been dismissed, he has filed this appeal after obtaining special leave.
The appellant urged: (i) that the delay in making the detention order and the disposal of his representation by the Central Government are fatal and violative of Article 22(5) of the Constitution of India; and (ii) that the delay in arresting him pursuant to the detention order casts a doubt on the genuineness of the subjective satisfaction of the detaining authority.
Dismissing the appeal, this Court, HELD: Delay ipso facto in passing an order of detention after an 518 incident is not fatal to the detention of a person.
In this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.
[524G] From the explanation it can be seen that the representa tion was considered most expeditiously and there is no "negligence or callous inaction or avoidable red tapism ' '.
[523C] It can therefore be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine.
Each case depends on its own facts and circumstances.
The Court has to see whether the delay is explained reasonably.
In the instant case, this Court is satisfied with the explanation for the delay in arresting the detenu.
[525G H] Khudiram Das vs The State of West Bengal & Ors.
, ; ; Tara Chand vs State of Rajasthan, ; Shyam Ambalal Siroya vs Union of India & Ors., ; ; Sabir Ahmed vs Union of India & Ors., ; ; Rama Dhondu Borade vs
V.K. Saraf, Commis sioner of Police & Ors., ; T.A. Abdul Rahman vs State of Kerala & Ors.
, ; ; Lakshman Khatik vs The State of West Bengal, [1974] 4 S.C.C. 1; Rajendrakumar Natvarlal Shah vs State of Gujarat & Ors., ; ; Yogendra Murari vs State of UP.
, ; Hemlata Kantilal Shah vs State of Maharashtra, ; and SK.
Serajul vs State of West Bengal, ; , referred to.
|
ivil Appeal Nos.
188 89 of 1987.
From the Judgment and Order dated 21.11.
1986 of the Punjab & Haryana High Court in First Appeal Order Nos.
620 & 619 of 1986.
571 K.K. Jain and Pramod Dayal for the Appellant.
Meera Chhabra and Ms. Pani Chhabra for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave challenging the reversing common decision of the Punjab & Haryana High Court holding the insurer liable for compensa tion under the of 1939.
The insurer repudiated its liability by maintaining that the policy had been taken after the accident and, therefore, it had no liability to meet the award of compensation against the owner.
The Tribunal accepted this stand and rejected the claim against the insurer.
In appeal, the High Court took the view relying upon certain decisions that the insurance policy obtained on the date of the accident became operative from the commencement of the date of insurance i.e. from the previous mid night and since the accident took place on the date of the policy the insurer became liable.
Apart from the judgment under appeal, we find that this view is supported by two judgments of the Madras High Court and an earlier decision of the Punjab & Haryana High Court Two Division Benches of the Madras High Court have taken the view after discussing the law at length that the policy taken during any part of the day becomes operative from the commencement of that day.
Besides these judgments a Division Bench decision of the Allahabad High Court in Jaddoo Singh & Anr.
vs Smt.
Malti Devi & Anr., AIR 1983 All. 87 supports this view on principle.
There is evidence in this case that the vehicle was insured earlier upto 31.8.
1984 and the same was available to be renewed but instead of obtaining renewal, a fresh insurance was taken from 28th of September, 1984, which is the date of the accident.
We are inclined to agree with the view indicated in these decisions that when a policy is taken on a particular date its effectiveness is from the commencement of the date and, therefore, the High Court, in our opinion, was right in holding that the insurer was liable in terms of the Act to meet the inability of the owner under the award.
As pointed out in Stroud 's judicial Dictionary 'Date ' means day, so that where a cover not providing for temporary insurance of a motor 572 car expires 15 days after date of commencement, it runs for the full 15 days after the day on which it was to commence.
" Similarly it has been stated in Stroud that "a bill of exchange, or note, is of the date expressed on its face, not the time when it is actually issued." 'To the same effect is the decision in Re F & B Warren, where it has been held that a judicial act will be referred to the first moment of the day on which it is done.
A payment made by a bankrupt in the morning of a day is, therefore, not made, within section 45 of the Bank ruptcy Act, 1914 before the date of a receiving order made later in the same day.
The ratio of these also supports the view we have taken.
The appeals fails and are dismissed.
There would, howev er, be no order for costs.
N.P.V. Appeals dis missed.
|
In a claim for compensation, the Motor Accident Claims Tribunal held that the insurer was not liable to meet the award of compensation against the owner of the vehicle, as the policy had been taken after the accident.
On appeal, the High Court held that the insurance policy obtained on the date of accident became operative from the commencement of the date of insurance, i.e. from the previous mid night, and since the accident took place on the date of the policy, the insurer became liable.
Dismissing the appeals by the insurer, this Court.
HELD: When a policy is taken on a particular date, its effectiveness is from the commencement of the date.
In the instant case, the insurance was taken from 28th September, 1984, which is the date of the accident.
The High Court was, therefore, right in holding that the insurer was liable in terms of the Act to meet the liability of the owner under the award.
[571F G] Jaddoo Singh & Anr.
vs Smt.
Malti Devi & Anr., AIR 1983 All. 87, approved.
In re.
F.B. Warren, , referred to.
Stroud 's Judicial Dictionary, referred to.
|
vil Appeal Nos.977 & 978 of 1988.
From the Judgment and Order dated 17.12.1987 Tribunal, Bangalore of the Karnataka Administrative in Application No. 4743 of 1986(T).
P.P. Rao, R.B. Datar, S.R. Bhat, P. Chowdhary, P.R Ramasesh and R.P. Wadhwani for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave, the first one by Nagaraja, the main contestant, and the second by the State of Karnataka challenging the decision of the Karnataka State Administrative Tribunal by which the Tribunal accepted the claim of inter se seniority of re spondent No. 1.
In the Directorate of Youth Services of the State, there are posts of Assistant and Deputy Directors.
Appellant Nagaraja joined service under the State Government as a Lecturer on 6.9.1966 and came on deputation as Editor of 'Youth Karnataka ' from 18th of August, 1976.
While working as such Editor he was confirmed as an Assistant Director in the Youth Directorate.
On 27th of March, 1978, Nagaraja was temporarily promoted as the Deputy Director for a period of six months.
On 20th of October, 1978, an order was made promoting 697 Nagaraja regularly as Deputy Director and on 22.12.1978 his appointment was made on regular basis with effect from 27.3.
Gudodagi, respondent No. 1, was recruited directly as Deputy Director on 28.7.1978.
He joined on 7.8.1978 and was confirmed in the said post on 7.8.1980.
The draft Gradation List was published on 25.1.1983 wherein Nagaraja was shown just above Gudodagi.
Accordingly he represented against this placement by claiming seniority over Nagaraja and when that was not accepted and the final Gradation List was published on 14th of December, 1983 maintaining the position shown in the draft list, Gudodagi filed a writ petition before the Karnataka High Court which, on the constitution of the State Administrative Tribunal, was transferred to it.
The Tribunal on heating parties has held that Gudodagi was senior to Nagaraja as the promotion of 27th of March.
1978, in favour of Nagaraja was a temporary measure and after the six months expired, Nagaraja was really not con tinuing as Deputy Director.
The order of December, 1978, could not provide a regular retrospective promotion in view of the special Rules obtaining in the State.
Accordingly, the Tribunal directed re drawing up of the seniority list by showing Nagaraja below Gudodagi.
Thereupon, these two ap peals have been filed one by Nagaraja and the other by State of Karnataka.
The promotional order of 27th March, 1978, read thus: "Pending consultation with the Karnataka Public Service Commission, Shri N. Nagaraja, Assistant Director, Youth Services is temporarily promoted to officiate as Deputy Director, Youth Services in the grade Rs.900 1750 in the Department of Youth Services for a period of six months with immediate effect from the date of taking over charge of the post or until further orders, whichever is earlier." The Tribunal has found that Nagaraja had taken over charge as Deputy Director on 13th of April, 1978, and the six month period had expired on 13th of October, 1978.
His regular promotion was notified on 20th of October, 1978.
Therefore, the Tribunal has not accepted Nagaraja as Deputy Director between 13th of October and 20th of October.
To meet that situation the notification of 22nd December, 1978.
had been made, which read thus: "In continuation of Government Notification . . dated 698 27.3.1978, Sri N. Nagaraja, Assistant Director of Youth Services is regularly promoted to officiate as Deputy Direc tor of Youth Services with effect from 27th March, 1978 (i.e. date from which he was promoted to officiate against the post) . " The Tribunal has found that under Karnataka State Civil Services (Regulation of Promotion, Pay & Pension) Act, 1973, no retrospective promotion is admissible unless the situa tion comes within the various clauses of rule 2.
The in stant case, according to the Tribunal, was not covered by rule 2 and, therefore, the order of 22nd of December, 1978, giving a retrospective promotion from 27.3.1978 was not justified.
Once that notification goes, Gudodagi being a direct recruit from 7.8.1978 would be entitled to seniority.
We have analytically examined the judgment of the Tribu nal with reference to the submissions made at the Bar.
We have also seen the provisions of the 1973 Act, referred to above and see no justification to take a view different from what has been taken by the Tribunal.
From the sequence of events with reference to the dates, an impression is avail able to be formed that attempt was made to place Nagaraja above Gudodagi by making shifting orders between 27.3.1978 and 22.12.1978.
Nagaraja was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director.
Taking the broad aspects of the matter into consideration we are satisfied that the conclusion reached by the Tribunal can not be said to be wrong and, therefore, does not call for any interference.
The appeals are dismissed.
There would be no order as to costs.
N.V.K. Appeals dis missed.
|
The appellant joined service under the State Government as a Lecturer.
Later he was deputed to the Directorate of Youth Services as an Assistant Director and subsequently confirmed in the said post.
On 27th of March, 1978, he was temporarily promoted as Deputy Director for a period of six months, and an order was made on 20th December, 1978 ap pointing him on a regular basis with effect from 27th March, 1978.
Respondent No. 1 was recruited directly as Deputy Director on 28.7.1978, joined service on 7.8.1978 and was confirmed on 7.8.1980.
A draft Gradation List was published on 25th January, 1983 wherein the appellant was shown above respondent No. 1, and he represented against this placement by claiming sen iority over the appellant.
This was not accepted, and a final Gradation List was published on 14th September, 1983 maintaining the position shown in the draft list.
Respondent No. 1 filed a writ petition before the High Court which was transferred to the State Administrative Tribunal.
The Tribunal held that respondent No. 1 was senior to the appellant as the promotion of 27th March, 1978 in favour of the appellant was a temporarily measure and after the six months period expired, the appellant was really not continuing as Deputy Director, and that the order of 20th December, 1978 issued by the Government could not, there fore, provide a regular retrospective promotion in view of the special Rules obtaining in the State.
It therefore, directed the redrawing of the seniority list by showing the appellant below respondent No. 1.
Aggrieved by the aforesaid order of the Tribunal, the appellant as well as the State Government filed appeals to this Court.
696 Dismissing the appeals, this Court, HELD: 1.
The Tribunal has found that under Karnataka State Civil Services (Regulation of Promotion, Pay & Pen sion) Rules 1973 no retrospective promotion is admissible unless the situation comes within the various clauses of rule 2, and that the instant case was not covered by rule 2 and, therefore, the order of 22nd December, 1978 giving a retrospective promotion from 27.3.1978 was not justified.
[698B C] 2.
Attempt was made to place the appellant above re spondent No. 1 by making shifting orders between 27.3.78 and 22.12.1978.
The appellant was Editor of Youth Karnataka even when he was confirmed as Assistant Director and the Tribunal has recorded that he never worked as Assistant Director.
The conclusion reached by the Tribunal cannot be said to be wrong.
Its order, therefore, does not call for any interfer ence.
[698D E]
|
: Criminal Appeal Nos.
375 77 of 1987.
From the Judgment and Order dated 22.10.1984 in the Allahabad High Court in Crl.
A. Nos. 1925, 1808 of 1981 and Government Appeal No. 2599 of 1981.
R.K. Garg, Prith Raj, U.R. Lalit, R.L. Kohli, Shivpujan Singh, Manoj Prashad, Dalveer Bhandari, T. Sridharan (N.P.) and B.S. Chauhan for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
On 29.5.
1981 at about 8 A.M. a grave rioting took place in the village of Tirro in Varanasi District.
1n the course of the said rioting two persons Mahendra Singh and Virendra Singh deceased Nos. 1 and 2 were killed and Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and one Kailash Singh 577 received injuries.
In respect of these offences 14 accused were tried under Sections 148 and 302 read with Sec.
149 I.P.C. Chirkut Singh, Accused No. 6 was tried for offence punishable under Section 307 I.P.C. for attempting to commit the murder of P.W. 1 and the remaining accused under Section 307 read with Sec.
149 I.P.C. for causing injuries to Uma Shankar Singh, P.W. 2 and Kailash Singh.
It is alleged that the material prosecution witnesses, deceased persons and the accused belong to the same village.
Since 1972 there have been disputes between these two rival groups.
A number of cases were also pending in the courts.
On the day of occur rence at 8 A.M.P.W. 1 went to his pumping set.
P.W. 2 Uma Shankar Singh and his relation Kailash Singh were also at the pumping set.
Deceased Nos. 1 and 2 were proceeding alongwith the rasta towards the pumping set for taking bath.
When they reached near the Khandhar (old building) of Vijay Pratap Singh Accused No. 5 Lallan Singh exhorted the other accused who were all lying in wait to kill them.
All the 14 accused emerged out of the Khandar.
Out of them Accused Nos. 1, 3, 4 and 6 (accused Nos.
are being referred to as arrayed before the trial court) were armed with guns and the rest were armed with lathis.
They advanced towards deceased Nos. 1 and 2.
Accused No. 1 fired a shot which hit deceased No. 1 and he was immediately also shot at by accused No. 3 Ranjit Singh and he fell down.
In the meanwhile Accused No. 4 Ram Briksh Singh fired at Deceased No. 2 Virendra Singh who fell down and both deceased died on the spot.
The other accused carrying lathis advanced towards P.W. 1 who ducked and escaped unhurt.
Then the lathis wielding accused assaulted P.W. 1 Vijay Narain Singh, P.W. 2 Uma Shankar Singh and Kailash Singh.
P.W. 1 managed to escape and ran away.
The trial court relying on the evidence of P.Ws. 1 and 2, who are the main eye witnesses, convicted all the 14 accused of the offences for which they were charged and the substantial sentence awarded is imprisonment for life under Section 302 I.P.C. read with Section 149 I.P.C.
The convict ed accused preferred appeals.
The State also filed appeal for enhancement of the sentence.
A Division Bench of the Allahabad High Court consisting of Justice Katju and Justice Agrawal heard the appeals.
Justice ' Katju allowed the ap peals filed by the accused and dismissed the appeal filed by the State but the other learned Judge disagreed and dis missed all the appeals concurring with the trial court.
The matter came up before a third Judge Seth, J. He took the view that only such of those accused to whom specific overt acts were attributed could be convicted and the other should be given benefit of doubt.
In that view of the matter he confirmed the convic 578 tion of Accused Nos. 1, 3, 4 and 6 and acquitted the rest of the accused.
Accused Nos. 1, 3, 4 and 6 applied for special leave which was granted by this Court and theft appeals are numbered as Criminal Appeal Nos. 375 77/87 and the State has preferred appeals against the acquittal of the other remaining 10 accused which are numbered as Criminal Appeal Nos. 372 74/87.
It is contended on behalf of the State that the occur rence has taken place in broad day light and merely because the witnesses are interested their evidence cannot be re jected and that the view taken by Justice Seth is incorrect and the view taken by the trial court as well as by Justice Agrawal has to be accepted.
On the other hand, the counsel appearing for the accused submitted that witnesses who were partisans and were highly interested have made omnibus allegations and it is highly dangerous to accept their evidence because there is every likelihood of innocent persons having been falsely implicated.
It is also their further submission that the prosecution has not come forward with the whole truth; and that the origin of the occurrence has been suppressed in as much as injuries to some of the accused persons have not been explained and consequently it must be held that occurrence did not take place in the manner alleged by the prosecution and that under these circumstances the truth from falsehood cannot be separated and therefore, none of the accused could be convicted.
Before we consider these rival contentions some of the facts which are not indispute may be noted.
There was a longstanding rivalry between the two groups.
The time and place of occurrence are not in controversy.
That the two deceased persons died of gun shots injuries also is not in dispute.
P.Ws. 1 and 2 also received injuries during the course of this occurrence.
The prosecution in support of its case examined P.Ws 1 to 11.
P.W. 7 the Doctor examined P.W. 2 at about 11.40 A.M. on the same day and found 10 injuries.
All of them were contusions and he opined that they might have been caused by a blunt object like lathi.
On the same day, he examined P.W. 1 and on his person he found four contusions which could have been caused by Lathis.
The Doctor also examined Kailash Singh, who was not examined as a witness.
and found two contusions.
P.W. 4 another Doctor who conducted postmortem on deceased No. 2 Virendra Singh found two gun shots wounds on the cranial cavity.
Injury No. 1 is an entry wound and injury No. 2 is an exist wound.
Then he conducted the autop sy on the dead body of deceased No. 1.
He found two in juries, the first one is on 579 the left nipple which is an entry wound and injury No. 2 is on the left palm.
On internal examination he found a bullet embedded and the same was recovered.
P.W. 5 is the Investi gating Officer.
After registration of the crime he undertook the investigation, went to the scene of occurrence, held the inquest of the two dead bodies and recorded the statement of the witnesses.
He also found two live cartridges one of 16 bore and another of 12 bore.
P.W. 3 is another eye witness.
He deposed that Accused Nos. 1, 3, 4 and 6 were armed with guns and the other were armed with lathis.
Accused No. 1 fired at the deceased No. 1 and Accused No. 3 also fired at him as a result of which he fell down and when deceased No. 2 tried to move, Accused No. 4 shot at him and deceased No. 2 also fell down.
When P.Ws 1, 2 and Kailash Singh rushed towards the place, accused No. 6 fired at P.W. 1 but he escaped.
Then the lathi wielding persons beat P.Ws 1 and 2 and Kailash Singh.
To the same effect is the evidence of P .Ws 1 and 2 also.
Under Section 3 13 Cr.
P.C. all the circumstances appearing against the accused were put to them.
They in general denied the offence.
However, among them, accused Nos. 6, 7, 8, 9, 11, 13 and 14 admitted their presence at the scene of occurrence.
Accused No. 6 in par ticular stated that P.W. 1 and others armed with guns, spears and lathis tried to do fishing in the pond in which accused No. 6 had a share.
Accused No. 6 and others went to the pond for fishing.
P.W. 1 and other challenged and they chased accused No. 6 and others and accused No. 13 was shot at by P.W. 1 and others and he and accused No. 14 were beaten with lathis and in defence he fired two gun shots hitting deceased Nos. 1 and 2.
He then went to the police station and lodged a report and deposited his gun and that P.W. 1 has falsely implicated him.
As regards this report which is purported to have been given by accused No. 6, P.W. 5 the Investigating Officer was questioned.
He admitted that when he returned to the Police Station on 30th May, 1980 he came to know that, accused No. 6 has surrendered his gun.
He also admitted in the cross examination that the crime was registered on the basis of the report given by Chirkut Singh and the same was also investigating but it appears that no action was taken.
Investigating Officer also admitted that when he saw accused Nos. 13 and 14 he found injuries on them.
The other circumstance strongly relied upon by the defence is that there were gun shots injuries on accused No. 13.
It may be noted that the same has not been explained by the prosecution.
P.W. 7 the Doctor admitted that he examined Accused No. 14 and found on him a skindeep 12" x 2" lacerat ed wound on the left thigh and a wound certificate was issued.
He also admitted that he examined accused No. 13 and he found five tiny abrasions in the area of 4cm x 4cm on outer surface of right thigh just above knee joint and the injured was refer 580 red to the radiologist.
P.W. 7, however, stated that he has not seen the report of the radiologist.
The defence examined Dr. S.K. Singh as D.W. 1.
He deposed that he took the X ray of the right thigh of the accused No. 13 Mahendra Kahar and the report was marked as an exhibit.
He further deposed that the shadows in the X ray go to show that there were 10 radio opaque round shadows and these shadows may very well corre spond to the pallets fired by some fire arms and the same appear to have pierced upto muscles and bone.
His examina tion further showed that the pallets remained embedded in the thigh.
Before the trial court as well as before the High Court, firstly it was contended on behalf of the accused that the eye witnesses are highly interested and therefore, their evidence cannot be accepted and even otherwise they have not come out with the whole truth and the injuries found on two of the accused would go to show that the accused.
acted in fight of self defence.
Relying on the presence of gun shots injuries on accused No. 13 it was strongly contended that the prosecution party have also used fire arms and, there fore, the accused were entitled to the fight of private defence.
The trial court accepted the evidence of all the three witnesses holding that their evidence is consistent and does not suffer from any serious infirmity.
So far as the plea of self defence is concerned, the trial court held that the plea taken by accused No. 6 was to be rejected mainly on the ground that there was no material to show that at the pond the fishing operations were going on.
As regards the presence of injuries on the accused persons, learned Sessions Judge having regard to the nature and size of the injuries found on accused Nos. 13 and 14 took the view that they are simple and that it is not proved that these in juries were received during the occurrence.
Regarding the presence of the alleged gun shots injuries on accused No. 13 he pointed out that the medical evidence is inconclusive on the point whether those injuries were caused at the time when this incident took place.
In the appeal before the High Court, Justice Katju took the view that the theory that the injuries on accused Nos. 13 and 14 were self inflicted cannot be accepted and that the plea taken by accused No. 6 appears to be probable in view of the fact that the bullet found in the dead body of deceased No. 2 was fired by a 16 Bore gun and that as admitted by the Investigating Officer, P.W. 5, it was accused No. 6 only in that area who had a licence for 16 Bore gun which was deposited by him in the police station after the occurrence.
Coming to the injuries found on accused Nos. 13 and 14 Justice Katju took the view that they received injuries during the course of the same occurrence and that the three eye witnesses have not fur nished any explanation regarding those injuries and that these 581 witnesses have falsely implicated some of the accused due to enmity and, therefore, their evidence cannot be relied upon and accordingly ordered total acquittal.
As already men tioned Justice Agrawal, on the other hand, agreed with the trial court completely.
Justice Seth, to whom the case was referred because of the difference of opinion took a third view and convicted only accused Nos. 1, 3, 4 and 6 to whom specifically overt acts were attributed.
Dealing with the plea of self defence Justice Seth held that lacerated injury on accused No. 14 was a simple one and he could have re ceived that even subsequent to the occurrence.
With regard to the gun shots injuries found on accused No. 13 Mahendra Kahar, the learned Judge himself examined accused No. 13 who was present in the Court when the appeal was being heard and found that hard substance were palpable underneath the flesh round about the location of his injury.
In the circumstances it does appear that fire arm shots to exist underneath the location of injury found on the person of accused Mahendra Kahar.
But he ultimately held that in all probability the pallets found in the leg of accused No. 13 Mahendra Kahar must have been there long before the incident, as in the view of the learned Judge it was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions.
Seth, J. accordingly rejected the plea of self defence.
Before we advert to the above contentions it becomes necessary to consider whether the accused No. 13 Mahendra Kahar and accused No. 14 Sant Singh received the injuries during the course of occurrence.
P.W. 7 the Doctor examined accused No. 13 Mahendra Kahar on 30.5.
1980 at about 6 A.M. and he found the following injuries.
Five tiny abrasions in the area of 4cm x 4cm on outer surface of fight thigh just above knee joint.
The injured complained of pain in the right thumb and left forearm.
In respect of injury No. 1 the Doctor advised X ray with a view to ascertain whether or not there were pallets, and pending the same he reserved his opinion.
P.W. 7 also opined that injuries appeared to have been caused within 24 hours preceding the medical examination which correspond to the time of occurrence, namely, 8 A.M. on 29.5.
P.W. 7, however, stated that the X ray report was not shown to him.
The evidence of P.W. 7 makes it clear that accused No. 13 Mahendra Kahar received these injuries during the course of the 582 occurrence.
D.W. 1 is the Doctor who took the X ray.
He deposed that on 5.6.80 he took the X ray of the fight thigh of the undertrial prisoner Mahendra Kahar accused No. 13 and the same is marked as Ex Kha 12.
On the basis of the X ray plate he opined that he noticed 10 radio opaque round shad ows in the injured and they correspond to the pallets fired by some fire arm.
Justice Seth considered the evidence of these two Doctors.
He also examined the accused in the Court and he found that hard substance were palpable underneath the flesh.
As already mentioned he was of the view that these appeared to be pallets but according to him they must have been there long before the incident.
The learned Judge took this view because he was doubtful that those pallets could have entered the body through the external injuries which are described as tiny abrasions.
Having given our careful consideration we are unable to agree with the view taken by Seth, J.P.W. 7 the Doctor 's evidence makes it clear that the external injuries were caused during this occur rence only and underneath the same these pallets were found by the radiologist D.W. 1.
The injuries are not self in flicted.
Therefore, there is no basis whatsoever to presume that the pallets under the flesh must have been there al ready even before this occurrence took place.
As a matter of fact accused No. 13 Mahendra Kahar was referred to the Doctor P.W. 7 since there was an injury.
P.W. 7 having examined him found that there were 10 ' radio opaque round shadows underneath the injury and it was only for that reason he referred the injured to the radiologist and D.W. 1 the radiologist after taking the X ray concluded that under neath the injury pallets discharged from a fire arm were embedded in the flesh.
Therefore, the only view that is possible is that accused No. 13 Mahendra Kahar received gun shot injuries during the course of this occurrence only.
P.W. 7 also examined accused No. 14 Sant Singh on the same day.
He found a skin deep 12 ' x2 ' lacerated wound vertically inflicted on the front and outer surface of left thigh from which blood was oozing and the injured complained of pain.
The Doctor pointed out that the injury was simple and could have been caused by blunt weapon like a lathi.
The injury was also stitched.
It is suggested by the prosecution that this could have been a self inflicted one but again there is no basis for such presumption.
The Investigating Officer said that on finding the injury on him he was sent for medical examination.
As a matter of fact accused No. 6 in his statement under Section 313 stated that accused Nos. 13 and 14 received injuries and he also went to the police station and lodged a report to that effect.
It, therefore, emerges that accused No. 13 received gun shot injuries and accused No. 14 received lacerated injury during the course of the same occurrence and these injuries must have been caused by some member 583 belonging to the prosecution party.
Now the question is whether the prosecution has ex plained these injuries and if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automat ically be rejected, without any further probe.
He placed considerable reliance on some of the judgments of this Court.
In Mohar Rai & Bharath ' Rai vs The State of Bihar, ; , it is observed: "Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabi lised.
Under these circumstances the prosecution had a duty to explain those injuries.
The evidence of Dr. Bishnu Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves.
Under these circum stances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries.
In our judgment, the failure of the prosecu tion to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the inci dent is not true or at any rate not wholly true.
Further those injuries probabilise the plea taken by the appellants.
" In another important case Lakshmi Singh and Ors.
vs State of Bihar, , after referring to the ratio laid down in Mohar Rai 's case, this Court observed: "Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is un true; and that the injuries probabilise the plea taken by the appellants.
It was further observed that: "In a murder case, the non explanation of the injuries sustained by the accused at about the time of the occur 584 rence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable.
(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
" Relying on these two cases the learned counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected.
We are unable to agree.
In Mohar Rai 's case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true.
Likewise in Lakshmi Singh 's case also it is observed that any non expla nation of the injuries on the accused by the prosecution may affect the prosecution case.
But such a non explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution.
But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case.
Much depends on the facts and circumstances of each case.
In the instant case, the trial court as well as the two learned Judges of the High Court accepted the prosecu tion case as put forward by P.Ws 1 to 3 in their evidence.
The presence of these three witnesses could not be doubted at all.
P.Ws 1 and 585 2 are the injured witnesses and P.W. 1 gave a report giving all the details.
However, he attributed specific overt acts to accused Nos. 1, 3, 4 and 6 and made an omnibus allegation against the remaining accused.
It is for this reason that Justice Seth found it to be safe to convict only accused Nos. 1, 3, 4 and 6 who are the appellants before us.
P.Ws 1, 2 and 3 are the eye witnesses.
We have carefully considered their evidence and nothing material is elicited in the cross examination which renders their evidence wholly untrustwor thy.
No doubt they have not explained the injuries found on accused Nos. 13 and 14.
From this alone it cannot be said that the prosecution has suppressed the genesis and the origin of the occurrence and has not presented a true ver sion.
Though they are interested, we find that their evi dence is clear, cogent and convincing.
The only reasonable inference that can be drawn is that the two accused persons received the injuries during the course of the occurrence which were inflicted on them by some members of the prosecu tion party.
As discussed above we are satisfied in this case that nonexplanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non explanation of injuries found on these two accused is that the accused could have had a right of pri vate defence or at any rate a reasonable doubt arises in this regard.
The learned counsel for the defence, however, submits that if for any reason the prosecution case in its entirety is not rejected because of the non explanation of the in juries found on these two accused, yet the right of private defence of the accused cannot be denied and that on that score also these four convicted accused are entitled to an acquittal.
It is also their submission that a careful exami nation of the provisions of Sections 96, 99 and 102 I.P.C. would show that on a reasonable apprehension of grievous hurt or death the accused had a right even to the extent of causing the death of the assailants and they cannot be expected to modulate this right in such a situation and that in the instant case these four appellants were justified even to the extent of causing death of the two deceased by inflicting gun shot wounds.
In this ' context it is also submitted that the plea taken by accused No. 6, Chirkut Singh that he shot at the two deceased persons in self defence cannot be brushed aside.
We should at this juncture point out that the plea taken by accused No. 6, Chirkut Singh does not commend itself.
The same 586 appears to be an after thought.
The observation report and other circumstances in the case would show that there were no fishing operations in the pond.
Therefore, the plea of accused No. 6, Chirkut Singh that fishing operations were going on in the pond and that he and some of the other accused went there and that was the genesis and the origin of the occurrence, has no basis whatsoever.
On the other hand, the evidence of the eye witnesses regarding the time, place and manner of occurrence in general, as put forward by the prosecution, cannot be doubted at all.
We shall now consider the submission whether the accused had the right of self defence.
Learned counsel for the State contended that if the accused want to claim the benefit of the general or special exception of the right of private defence then they should plead and discharge the burden by establishing that they are entitled to the benefit of excep tion as provided under Section 105 of the Evidence Act.
In other words, the submission is that the burden of proof of the existence of such a right is on the accused and that in the instant case the accused have not discharged the burden and that mere presence of simple injuries on the accused cannot necessarily lead to an inference that they had a right of self defence.
We have already held that having regard to the facts and circumstances of the case, mere non explanation of these injuries by the prosecution cannot render the whole case unacceptable.
We have also held that those injuries on one of the accused No. 13, Mahendra Kahar were inflicted by a fire arm during the same occurrence.
Under these circumstances, the important question that we have to consider is whether the accused should be denied the benefit of an exception on the ground that the accused have not discharged the necessary burden of establishing their right to the benefit of the exception beyond all reasonable doubt just like the prosecution is bound under Section 102 of the Evidence Act, or if upon a consideration of the evidence as a whole and the surrounding facts and circum stances of the case, a reasonable doubt is created in the mind of the court about the existence of such a right wheth er the accused, in such a situation, is entitled to the benefit of the said exception, i.e. the right of private defence.
If so, whether they have exceeded the same? The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for consid erable time the opinions of the Courts were not uniform.
As a matter of fact, in Partap vs State of U.P., ; , this Court noted "that the question 587 of law that arises here seems to have troubled several High Courts.
" The phrase "burden of proof" is not defined in the Act.
In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts.
This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
Section 105 of the Evidence Act is in the following terms: "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
" The Section to some extent places the onus of proving any exception in a penal statute on the accused.
The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him.
The Section further lays down that the Court shall presume non existence of circumstances bringing the case within an exception.
" The words "the burden of proving the existence of circumstances" occuring in the Section are very signifi cant.
It is wellsettled that "this burden" which rests on the accused does not absolve the prosecution from discharg ing its initial burden of establishing the case beyond all reasonable doubts.
It is also well settled that the accused need not set up a specific plea of his offence and adduce evidence.
That being so the question is: what is the nature of burden that lies on the accused under Section 105 if benefit of the general exception of private defence is claimed and how it can be discharged? In Woolmington vs The Director of Public Prosecutions, [1935] Appeal Cases 462, Viscount Sankey, L.C. observed: "When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked.
If the jury are either satisfied with his explanation or, upon a review of all, the evidence are left in reasonable doubt whether, even if his explanation be not accepted, ' the act was unintentional or 588 provoked, the prisoner is entitled to be acquitted.
" It is further observed: "Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt.
In either case, he is enti tled to the benefit of the doubt.
But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence .
Through out the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner 's guilt subject to what I have already said as to the defence of insanity and subject also to any stationary exception.
If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner as to wheth er the prisoner killed the deceased with a malicious inten tion, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
No matter what the charge or where the trial, the principle that the prosecu tion must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
" Emperor vs
U. Dampala, AIR 1937 Rangoon 83 a full Bench of the Rangoon High Court following the Woolmington 's case held that the ratio therein is not in any way inconsistent with the law in British India, and that indeed the princi ples there laid down from valuable guide to the correct interpretation of Section 105 of the Evidence Act and the full Bench laid down that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception or exceptions plead ed, the accused is entitled to be acquitted if upon a con sideration of the evidence as a whole the court is left in a state of reasonable doubt as to whether the accused is or is not entitled to the benefit of the exception pleaded.
We have noticed that Section 105 requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any pan of the Penal Code is 589 on him and the Court shall presume the absence of such circumstances.
This presumption is rebuttable.
In Parbhoo and Ors.
vs Emperor, AIR 1941 Allahabad 402, a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act.
The majority agreed with the view taken by the Full Bench in Dampala 's case.
In Parbhoo 's case Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prose cution and never: shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt.
"The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow therefrom that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case.
" In Dampala 's case Dunkley, J. while concurring with the majori ty view after discussing the law on the subject observed: "The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evi dence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circum stances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evi dence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence." This case has been followed subsequently by a number of High Courts.
In K.M. Nanavati vs State of Maharashtra, [1962] Suppl.
1 SCR 567 it is observed that: "In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution ' to prove 'the guilt of the accused.
But when an accused relies upon the General Excep tions in the Indian Penal Code or on any special 590 exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presump tion.
Under that Section the Courts shall presume the ab sence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the nonexistence of such circumstances as proved till they are disproved.
This presumption may also be rebutted by admissions made or circumstances elicited by the evidence led by the prosecu tion or by the combined effect of such circumstances and the evidence adduced by the accused.
But the section does not in any way affect the burden that lies on the prosecution to prove all the ingredients, of the offence with which the accused is charged; that burden never shifts.
The alleged conflict between the general burden which lies on the prose cution and the special burden imposed on the accused under Section 105 of the Evidence Act is more imaginary then real.
Indeed, there is no conflict at all." In Dahyabhai Chhaganbhai Thakkar vs State of Gujarat, ; it is observed: "It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.
The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code.
The general burden never shifts and it always rests on the prosecution.
But, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shah presume the absence of such circumstances.
Under Section 105 of the Evidence Act, read with the definition of "shall presume" in Section 4 thereof, the Court 591 shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed Or their existence was so probable that a prudent man ought, under the circum stances of the particular case, to act upon the supposition that they did exist.
To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court suffi cient to make it consider the existence of the said Circum stances so probable that a prudent man would act upon them.
The accused has to satisfy the standard of a "prudent man".
If the material placed before the Court such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of "prudent man", the accused will have discharged his burden.
The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasona ble doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code.
" A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parb hoo 's case.
However, in Rishi Kesh Singh & Ors.
vs The State, AIR 1970 Allahabad 51, the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo 's case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt.
A majority of seven Judges approved the principle laid down in Parbhoo 's case.
The Larger Bench also referred to various subsequent decisions of the Supreme Court also including the Nanavati 's case; Bhikari vs State of Uttar Pradesh, ; and Dahyabhai 's case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati 's case; Bhikari 's ease; Dahyabhai 's case and Mohar Rai & Bharath Rai 's case, held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo 's case.
After analysing the view expressed by the Surpeme Court in the several above mentioned decisions, Beg, J. observed: 592 "After a close scrutiny of every part of each of the seven opinions in Parbhoo 's case [1941] All LJ 619=AIR 1941 All 402 (FB).
I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court have not been affected in the slightest degree by these decisions.
These propositions are; firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved.
his plea fully; secondly, that the obligatory .presumption at.the end of Sec. 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and, thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the accused is charged, the accused would be entitled to an acquittal.
As I read the answer of the majority in Parbhoo 's case [1941] All LJ 619=AIR 1941 All 402 (FB).
I find it based on these three propositions which provide the ratio decidendi and this is all that needs t6 be clarified.
" "The practical result of the three propositions stated above is that an accused 's plea or an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard Of a prudent man weighing or balancing probabilities carefully.
These stages are; first ly, a lifting of the initial obligatory presumption given at the end of Sec. 105 of the Act; secondly the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by "a preponderance of probability", which covers even a slight tilt of the balance of probability in favour .of the ac cused 's plea.
The accused is not entitled to an acquittal if his plea does not get beyond the first stage.
At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt.
At the third stage, he is undoubtedly entitled to an acquittal.
This, in my opinion, is the effect of the majority view in Parbhoo 's case which directly re lates 593 tO first two stages only.
The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice.
" Mathur, J., with whom five Judges agreed, while holding that ratio laid down by the majority in Parbhoo 's case is in conformity with law, however, observed that the reasoning in support of the conclusions is erroneous.
Beg, J. was not prepared to go to that extent.
The majority speaking through Shri Mathut, J. laid ' down that the dictum in Parbhoo 's case which is still a good law, can, however, be modified as follows: "In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused persons and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said excep tion; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more the ingre dients of the offence, the accused person shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence." Learned counsel for the State, however, submitted that if the view taken by the Allahabad High Court is to be accepted then it would amount to throwing the burden on the prosecution not only to establish the guilt of the accused beyond all reasonable doubt but also that the accused is not entitled to benefit of any exception and if such a principle is laid down then Section 105 of the Evidence Act would be rendered otiose and there would be inconsistency between Sections 102 ' and 105.
This very question has been answered by the Supreme Court in Nanavati 's case and it has been held that the general burden of proving the ingredients of the offence is always on the prosecution but the burden of proving the circumstances attracting the exception lies on the accused.
But the failure on the part of the accused to establish all the circumstances bringing his case under the exception 594 does not absolve the prosecution to prove the ingredients of the offence and the evidence relied upon by the accused in support of his claim for the benefit of the exception though insufficient to establish the exception may be sufficient to negative one or other of the ingredients of the offence and thus throw a reasonable doubt on the essential ingredients of the offence of murder.
The accused for the purpose of discharging this burden under Section 105 can rely also on the probabilities.
As observed in Dahyabhai 's case "the accused will have to rebut the presumption that such circum stances did not exist" by placing material before the court which satisfies the standard of a prudent man and the mate rial may consist of oral and documentary evidence, presump tions, admissions or even the prosecution evidence and the material so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
Therefore there is no such infirmity in the view taken in these cases about the scope and effect of Sections 102 and 105 of the Evidence Act.
We have not come across any case of the Supreme Court where the ratio laid down in Parbhoo 's case and which was subsequently approved by a larger Bench in Rishi Kesh Singh 's case has been considered comprehensively.
However, in Behram Khurshed Pesikaka vs The State of Bombay, [1955] 1 SCR 6 13 there is a specific reference to Parbhoo 's case and Woolmington 's case while considering the scope and the manner of the expression 'burden of proof ', in the judgment of Hon ' Venkatarama Ayyar, J.
But the learned Judge was not prepared to go into this question in an appeal under Article 136 but only noted that the Bombay High Court in Government of Bombay vs Sakur, AIR 1947 Bombay 38 has taken a different view.
In State of U.P.v. Ram Swarup; , a Bench consisting of M.H. Beg, J., as he then was, Y.V. Chandrachud and V.R. Krishna lyer, JJ., while considering the right of private defence put forward by the accused to some extent went into the question of burden of proof under Section 105 and a reference is made to a decision of the larger Bench in Rishi Kesh Singh 's case.
Chandrachud, J. who spoke for the Bench, observed thus: "The judgment in Rishikesh Singh vs State, AIR 1970 All 51 explains the true nature and effect of the different types 595 of presumptions arising under Section 105 of the Evidence Act.
As stated is that judgment, while the initial presump tion regarding the absence of circumstances bringing the case within an exception may be met by showing the existence of appropriate facts, the burden to establish a plea of private defence by a balance of probabilities is a more difficult burden to discharge.
The judgment points out that despite this position there may be cases where, though the plea of private defence is not established by an accused on a balance of probabilities, yet the totality of facts and circumstances may still throw a reasonable doubt on the existence of "mensrea" which normally is an essential ingre dient of an offence.
The present is not a case of this latter kind.
" We may also refer to a judgment of a Bench of three Judges consisting of M.H. Beg, P.N. Bhagwati and R.S. Sarkaria, JJ.
in Partap 's case.
Sarkaria, J. speaking for himself and Bhagwati, J. observed: "We have carefully scrutinised the judgments of the courts below.
In our opinion, their finding in regard to the plea of self defence is clearly erroneous.
They appear to have overlooked the distinction between the nature of burden that rests on an accused under Sec.
105, Evidence Act to estab lish a plea of self defence and the one cast on the prosecu tion by Section 101 to prove its case.
It is wellsettled that the burden on the accused is not as onerous as that which lies on the prosecution.
While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere pre ponderance of probability.
" Beg, J., however in a separate judgment felt a doubt about the veracity of the defence case and the evidence found in support of it to be able to hold that it is proved on a balance of probabilities.
But in his view what transpires from a consideration of the whole evidence is enough to entitle the accused to a benefit of doubt.
Beg, J. referred to the judgments of the Full Bench in Parbhoo 's case; Nana vati 's case and the larger Bench decision in Rishi Kesh Singh 's case and applying the principles of benefit of doubt laid in the above three cases to the facts of the case before them observed: "Applying the principle of benefit of doubt as I had exp 596 lained above, to the plea of private defence of person in the instant case.
I think that, even if the appellant did not fully establish his plea, yet, there is sufficient evidence, both direct and circumstantial, to justify the finding that the prosecution has not established its case beyond reasonable doubt against Partap on an essential ingredient of the offence of murder; the required mensrea.
After examining all the facts and circumstances revealed by the prosecution evidence itself and the defence evidence and considering the effect of non production of the better evidence available which, for some unexplained reason, was not produced.
I am not satisfied that the plea of private defence of person can be reasonably ruled out here.
This is enough, in my opinion, to entitle the appellant to get the benefit of doubt. ' ' In Mohd. Ramzani vs State of Delhi, AIR 1980 SC 134 1 Sar karia, J., who spoke for the Bench, observed that the onus which rests on the accused person under Section 105, Evi dence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prose cution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt.
There fore, the contrary view taken by the Bombay High Court in Sakur 's case and in State vs Bhima Devraj, AIR 1956 Sau. 77 that the burden is entirely on the accused to establish that he is entitled to the benefit of the exception, does not lay down the correct law.
At this stage it becomes necessary to consider the meaning of the words "the Court shall presume the absence of such circumstances" occurring in Section 105 of the Evidence Act.
Section 4 of the Act explains the meaning of the term "shall presume" as to mean that the Court shall regard the fact as proved unless and until it is disproved. 'From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved.
In Section 3 of the Act meaning of the terms "proved", "disproved" and "not proved" are given.
As per this provision, 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.
A fact is said to be "disproved" when, after consid ering the matters before it, the Court either believes 597 that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be "not proved" when it is neither "proved" nor "disproved.
" The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances.
In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also.
But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of "not proved" and the Court may presume the absence of such circumstances.
In this background we have to examine the meaning of the words "the Court shall presume the absence of such circumstances" bearing in mind the general principle of criminal jurisprudence that the prose cution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.
It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect.
In Phipson on Evidence, 13th edn.
page 44, a passage reads as follows: "The burden is upon the prosecution of proving a defendant 's guilt beyond reasonable doubt before he is convicted.
Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes.
If on the whole case the jury have such a doubt the defendant is entitled to be acquitted." Another passage at page 48 reads as follows: ' "In criminal cases the prosecution discharge their eviden tial burden by adducing sufficient evidence to raise a prima facie case against the accused.
If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive 598 burden by proving its case beyond a reasonable doubt.
In the absence of any defence evidence, the chances that the prose cution has so succeeded fare greater.
Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case.
Discharge of the eviden tial burden by defence is not a pre requisite to an acquit tal.
The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner . .No matter what the charge . . the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be enter tained.
XX XX XX XX XX XX In many cases, however, the accused 's defence will involve introducing new issues, for example, automatism, provoca tion, self defence, duress, etc.
Once there is any evidence to support such "explanations" the onus of disproving them rests upon the prosecution.
The accused, either by cross examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury.
But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury 's minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence.
" Dealing with the presumptions of law, the author has noted on page 60, thus: "Generally in criminal cases (unless otherwise directed by statute and subject to 4 15 ante) the presumption of inno cence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein.
Thus, in cases of murder, the burden 599 of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution.
On charges of rape, etc.
the burden of proving non consent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant 's knowledge that his or her spouse was alive within the seven years last past." Wigmore on evidence, dealing with the "Legal Effect of a presumption" (3rd ed., Vol.
IX p. 289) explains: "It must be kept in mind that the peculiar effect of a presumption 'of law ' (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion 'in the absence of evidence to the contrary ' from the opponent.
If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge 's requirement of some evidence), the presumption disappears as a rule of Taylor in his 'Treatise on the Law of Evidence ' ( 12th Edn.
1 page 259) points out: "On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prison er, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, to convict, he must necessarily have recourse to negative evidence.
Thus, if a statute, in the direct description of an offence, and not by way of proviso (a), contain negative matter, the indictment or information must also contain a negative allegation, which must in general be supported by prima facie evidence.
" Dealing with the presumptions, the author says: "The proper direction as to onus of proof where prima facie evidence has been given on the part of the prosecution which, if unanswered, would raise a presumption upon which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presump tion, is that if they accepted the explanation given 600 by and on behalf of the prisoner, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him as the onus of proof that he was guilty still lay upon the prosecution.
If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them.
" It is held in Nanavati 's case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall regard the non existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to sup port his plea of accident in the circumstances mentioned therein.
This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused.
Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed: "An illustration may bring out the meaning.
The prosecution has to prove that the accused shot dead the deceased inten tionally and thereby committed the offence of murder within the meaning of section 300 of the Indian Penal Code; the prosecu tion has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentional ly shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn under section 105 of the Evidence Act that the shooting was not by accident in the circumstances men tioned in section 80 of the Indian Penal Code, may adduce evi dence to rebut that presumption.
That evidence may not be sufficient to prove all the ingredients of section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertance, i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of section 300 Indian Penal Code.
or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.
In that event, though the accused failed to bring his case 601 within the terms of section 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused.
In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused.
The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.
" In Dahyabhai 's case as already noted, the relevant portion reads thus: "The evidence so placed may not be sufficient to discharge the burden under section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself.
It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in section 299 of the Penal Code.
" The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence.in criminal cases.
Section 105 places 'burden of proof ' on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable.
Therefore, taking the Section as a whole the 'burden of proof ' and the presumption have to be considered together.
It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises.
But where the accused introduces material to dis place the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt.
The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised.
More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, pro 602 babilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence.
In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused.
The accused may also show on the basis of the material a prepon derance of probability in favour of his plea.
If there are absolutely no circumstances at all in favour of the exist ence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised.
But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.
From what has been discussed above it emerges that the presumption regarding the absence of existence of circum stances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above.
If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same.
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence.
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
It can be argued that the concept of 'reasonable doubt ' is vague in nature and the standard of 'burden of proof ' contemplated under Section/05 should be somewhat specific, therefore, it is difficult to reconcile both.
But the gener al principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reason able doubt, are to be borne in mind.
The 'reasonable doubt ' is one which occurs to a prudent and reasonable man.
Section 3 while explaining the meaning of the words "proved", "disproved" and "not proved" lays down the standard of proof, namely, about the existence or nonexistence of the circumstances from the point of view of a prudent man.
The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, "believe it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assump 603 tion of its existence.
The Act while adopting the require ment of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability.
It is this degree of cer tainty to be arrived where the circumstances before a fact can be said to be proved.
A fact is said to be disproved when the Court believes that it does not exist or considers its non existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved.
It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal dis putes.
It is something different from moral conviction and it is also different from a suspicion.
It is the result of a process of keen examination of the entire material on record by 'a prudent man '.
There is a difference between a flimsy or fantastic plea which is to be rejected altogether.
But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds.
The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind.
It must be the doubt of the prudent man who assumed to possess the capacity to "separate the chaff from the grain".
It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence.
It is not a doubt which occurs to a wavering mind.
Lord Denning, J. in Miller vs Minister of Pensions, while examining the degree of proof required in criminal cases stated: "That degree is well settled.
It need not reach certainty but it must reach a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond rea sonable doubt.
" Regarding the concept of benefit of reasonable doubt Lord Du Paraq, in another context observed thus: 604 "All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief.
It does not demand from the Judge a resolute and impenetrable incredulity.
He is never required to close his mind to the truth.
" Now, let us examine the types of cases to which these principles underlined under Section 105 can be applied and to what extent? The Section deals with the burden of proof in respect of the general exceptions, special exceptions and proviso contained in the Penal Code or in any part of the same code, or in any law defining the offence.
It is already noted that the doctrine of burden of proof has to be the general law and the same remains always upon the prosecu tion.
However, in respect of the cases where the statute wholly places the burden of proof on the accused himself, then the burden is more onerous on him.
As already noted in Rishi Kesh Singh 's case Mathur, J. speaking for the majori ty, while affirming the view taken in Parbhoo 's case ob served that in a case where any such exception is pleaded and the evidence led in support of such plea, judged by the test of preponderance of probability, fails to displace the presumption arising from Section 105 of the Evidence Act; yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused shall be entitled to the benefit of the reasonable doubt as to his guilt.
In C.S.D. Swami vs The State, ; the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act from proof.of certain facts "unless the contrary is proved" was considered and it was held there that the exception laid down by statute was "a complete departure from the estab lished principle of the criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt.
" V.D. Jhin gan vs State of U.P.; , also is a case deal ing with the presumption under Section 4 of the Prevention of Corruption Act under which the accused was under an obligation to disprove his guilt by adducing such evidence by which the preponderance of probabilities prove the de fence case.
An examination of these cases would reveal that the statutory exception which modifies the operation of the general principle that the prosecution must prove all ingre dients of the offence with which the accused is charged, to some extent stands on a different 605 However, Beg, J. in his separate judgment, in Rishi Kesh Singh 's case observed thus: "It covers every tilt or preponderance of the balance of probability whether slight or overwhelming.
In fact, the dividing line between a case of mere "preponderance of probability" by a slight tilt only of the balance of proba bility and a case of reasonable doubt is very thin indeed although it is there.
A case of reasonable doubt which must necessarily be one of which, on a balancing of probabili ties, two views are possible.
What may appear to one reason able individual to be a case not fully proved may appear.to another to be so proved on a balancing of probabilities.
Such a case and only such a case would, in my opinion, be one of reasonable doubt.
A mere preponderance of probability in favour of the exception pleaded by an accused would, however, constitute a "complete" proof of the exception for the accused but a state of reasonable doubt would not.
" Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh vs State of Punjab, ; After citing Woolmington 's case it is therein held that "The principle of common law is part of the crimi nal law of the country.
That is not to say that if an excep tion is pleaded by an accused person he is not required to.
justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.
The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil proceedings the ' Court which tries an issue makes its decision by adopt ing the test of probabilities, So must a criminal court hold the ' plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.
" It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a considera tion of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence.
Therefore, in a case where the prosecution has discharged.
its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance 606 of probabilities or he may carry his plea further and suc ceed in creating a reasonable doubt about an ingredient of an offence.
Consequently in respect of the general excep tions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contem plated under Section 105 but in cases of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt.
At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi.
There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions.
Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily.
Likewise in the case where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge.
However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act.
We also make it clear that the principles laid down by us are only in respect of the said provision only.
As we think that it would be appro priate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows: The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden.
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case.
He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indi rectly introduce such circumstances by way of cross examina tion and also rely on the probabilities and the other cir cumstances.
Then the initial presumption against the accused regarding the non existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused.
The 607 accused can also discharge the burden under Sec. 105 by preponderance of probabilities in favour of his plea.
In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be enti tled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accord ingly.
In the instant case we are concerned with the exception of right of private defence.
In the instant case a plea of right of private defence is raised.
As noted above one of the accused received a 12 'x2 ' lacerated wound and other accused received gun shot injuries.
The plea that the non explanation of these injuries by the prosecution warrants rejection of the prosecution case, is rejected as the evi dence of the material witnesses even otherwise found to be cogent, convincing and acceptable but from the circumstances these two accused particularly one of them had received gun shot injuries during the course of the same occurrence is established.
The accused have also adduced defence evi dence namely that of a Doctor in support of their plea.
This material though by itself is not sufficient to establish the General Exception under Section 96 or the special exception No. 2 to Section 300 IPC but creates a reasonable doubt about the existence of such a right.
The accused have proved the infliction of injuries on them by the complainant party in the course of the occurrence.
Therefore, the obligatory initial presumption against them is removed and their plea appears to be reasonably true and consequently they are entitled to the right of self defence.
The next question is whether they have exceeded this right.
Learned counsel submits that the accused is not expected to modulate his right of self defence and that in the instant case it cannot with certainty be said that they have exceeded this right and therefore, they are entitled to an acquittal.
In Amjad Khan vs The State, ; , on the facts and circumstances of the case it was held that the accused was entitled to a right of private defence of the body even to the extent of causing death as there was no time to have recourse to the authorities and had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family.
These things could not be weighed in too fine a set of scales or "in golden scales.
" In 608 Puran Singh and Ors.
vs State of Punjab, ; it is observed that the right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised.
A mere reasonable apprehension is enough to put the right of private defence into opera tion.
It is also observed that the question whether a person having a right of private defence has used more force than is necessary would depend on the facts and circumstances of a particular case.
In the case before us as per the evidence of the materi al witnesses the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath.
Even in the plea set up by Chirkut Singh, accused No. 6, it is not stated specifically that deceased Nos. 1 and 2 were armed with any deadly weapons.
Therefore, the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries.
Therefore, the offence com mitted by them would be one punishable under Section 304 Part 1 I.P.C.
We accordingly set aside the conviction of the.
appel lantsaccused Nos. 1, 3, 4 and 6, Vijayee Singh, Ranjit Singh, Ram Briksh Singh and Chirkut Singh respectively for an offence punishable under Section 302/149 I.P.C. and the sentence of imprisonment for life awarded thereunder.
In stead they are convicted under Section 304 Part I read with Section 34 I.P.C. and sentenced each of them to undergo 10 years imprisonment.
The other sentences/convictions awarded to them are confirmed.
The sentences shall run concurrently.
Criminal Appeal Nos.
375 77 of 1987 are allowed to this extent only and Criminal Appeal Nos. 372 74/87 are dis missed.
R.N.J. Crl.
A. Nos. 375 77/87 are allowed and Crl.
A. Nos.
372 74/87 are dismissed.
|
14 accused were tried for offences under section 148 and 302 read with Section 149 of I.P.C. for the murder of two persons named Mahendra Singh and Virendra Singh and injuries to 3 others named Vijay Narain Singh, P.W. 1, Uma Shankar Singh, P.W. 2 and Kailash Singh.
Accused No. 6 Chirkut Singh was further tried under Section 307 I.P.C. for attempting to murder P.W. 1 and all the remaining accused under section 307 read with Section 149 I.P.C. for causing injuries to Uma Shankar and Kailash Singh.
The trial court relying on the evidence of P.Ws 1 and 2 who were the main eye witnesses convicted all the 14 accused under section 302 I.P.C. read with Section 149 I.P.C. and awarded them life imprisonment.
The convicted accused preferred appeals to the High Court and the State filed appeals for enhancement of their sen tence.
A Division Bench of the Allahabad High Court consist ing of Justice Katju and Aggarwal heard the appeals.
While Justice Katju allowed the appeals by the accused and dis missed the State appeals, Justice Aggarwal disagreeing with him, dismissed all the appeals, both by the accused and by the State.
Consequently the matter was referred to a third judge.
Justice Seth who confirmed the conviction and sen tence awarded to accused Nos. 1, 3, 4 and 6 only and acquit ted all the rest of the accused on the view taken by him that the specific overt acts were attributable to only these four accused and the rest should be given the benefit,of doubt.
Criminal Appeals Nos.
375 377 of 1987 by special leave were preferred by the convicted accused Nos. 1, 3, 4 and 6 and Criminal Appeals Nos.
372 374 of 1987 preferred by the State against the acquittal of other accused.
Accepting the plea of the accused to the right of selfdefence but holding that they had definitely exceeded this right when they went to the extent of intentionally shooting the deceased to death and therefore the offence committed was one punishable under section 574 304 Part I I.P.C. and not under Section 302 read with Sec tion 149 I.P.C. Accordingly in partly allowing the Appeals filed by the convicted accused and dismissing the State appeals, this Court, HELD: A fact is said to be "proved" when, after consid ering the matters before R, 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.
[596G H] A fact is said to be 'disproved ' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
A fact is said to be "not proved" when it is neither "proved" nor "disproved".
[596H; 597A] The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases.
[601E] Section 105 places "burden of proof ' on the accused in the first part and in the second part there is a presumption which the Court can draw regarding the absence of the cir cumstances, which presumption is always rebuttable.
Taking the section as a whole the "burden of proof" and the pre sumption have to be considered together.
It is exiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises.
But where the accused introduces material to displace the presumption which may affect the prosecution,case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt.
[601F G] The initial obligatory presumption regarding circum stances gets lifted when a plea of exception is raised.
More so when there are circumstances on the record, gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise creating a reasonable doubt about the existence of the ingredients of the offence.
In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused.
[601H; 602A] The presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by intro 575 ducing evidence.
If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same.
Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence.
In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.
[602C E] Section 3 is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of fact, in other words, "believes it to exist" and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence.
[602G H; 603A] The Evidence Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of proba bility or improbability.
It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved.
[603D] The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden.
The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case.
[606F G] In the instant case, as per the evidence of the material witnesses, the two deceased were only proceeding alongwith the rasta towards the pump set for taking bath.
Even in the plea set up by accused No. 6 it is not stated specifically that deceased Nos. 1 and 2 were armed with any deadly weap ons.
Therefore, the assailants had definitely exceeded the right of private defence when they went to the extent of intentionally shooting them to death by inflicting bullet injuries.
Therefore, the offence committed by them would be one punishable under Section 304 Part I I.P.C.
The convic tion of accused No. 1, 3, 4 and 6 under Section 302 read with Section 149 I.P.C. and the sentence of rigorous impris onment for life awarded thereunder is set aside and instead they are 576 convicted under Section 304 Part I read with Section 34 I.P.C. and each of them sentenced to undergo rigorous im prisonment for 10 years.
Their other convictions/sentences are confirmed the sentences to run concurrently.
[608C E] Mohar Rai & Bharath Rai vs The State of Bihar, ; ; Lakshmi Singh & Ors.
vs State of Bihar, ; Pratap vs State of Uttar Pradesh, AIR 1976 S.C. 966; Woolmington vs The Director of Public Prosecutions, [1935] Appeal Cases 462; Emperor vs U. Damapala, AIR 1937 Rangcon 83; Parbhoo & Ors.
vs Emperor, AIR 1941 Allahabad 402; K.M. Nanavati vs State of Maharashtra, [1962] Suppl.
1 SCR 567; Dahyabhai Chhaganbhai Thakkar vs State of Gujarat, ; ; Rishi Kesh Singh & Ors.
vs The State, AIR 1970 Allahabad 51; Bhikari vs State of Uttar Pradesh, ; ; Behram Khurshed Pesikaka vs The State of Bombay, ; Government of Bombay vs Sakur, AIR 1947 Bombay 38; State of Uttar Pradesh vs Ram Swarup, ; ; Mohd. Ramzani vs State of Delhi, AIR 1980 S.C. 1341; State vs Bhima Devraj, AIR 1956 Sau. 77; Miller vs Minister of Pensions, ; C.S.D. Swami vs The State, ; ; V.D. Jhingan vs State of Uttar Pradesh, ; ; Harbhaian Singh vs State of Punjab, ; ; Amjad Khan vs The State, ; and Puran Singh & Ors.
vs State of Punjab, ; , referred to
|
ivil Appeal Nos.
1936 & 1937 of 1990.
From the Judgment and Order dated 26.7.1989 of the Delhi High Court in C.W.P. No. 852 of 1989 and 2852 of 1988.
S.K.Mehta, Aman Vachhar and Atul Nanda for the Appellants.
S.C. Manohanda, Manoj Arora, V.K. Sharma and R.K. Maheshwari for the Respondents.
630 The Judgment of the Court was delivered by RANGANATHAN, J.
After hearing counsel for all parties, we grant special leave in these two petitions and proceed to dispose of the appeals finally by this common order as the point involved is a common one.
We are dealing with the matter at some length as it raises certain important aspects of the Stamp Act, 1899 and the which are likely to come up for consideration frequently.
Shanti Devi, the petitioner in SLP No. 15093 of 1989, was the highest bidder at an auction sale of house property bearing No. A 205, Defence Colony, New Delhi con ducted on 29.2.88 by the Tax Recovery Officer (T.R.O.) for realising the income tax dues of its owner.
Her bid was accepted and the sale confirmed on 13.4.1988.
On 14.4.1988 a certificate of sale was issued by the T.R.O. to the peti tioner.
Under the relevant rules, a copy of the certificate of sale should have been endorsed to the Sub Registrar but it was actually sent to the Sub Registrar on 12.5.1988.
The petitioner in SLP No. 138 of 1990 purchased property bearing No. 112 113, Gautam Nagar, Delhi at an auction conducted by the Income tax department.
A certificate of sale in their favour was issued on 23.5.1988.
A copy of the sale certifi cate was forwarded by the T.R.O. to the Sub Registrar.
The purchasers thereafter attempted to get the property registered by the Sub Registrar in their names.
The Sub Registrar and the Collector of Stamps did not accede to this request apparently on the ground that this could not be done unless stamp duty was paid on the certificate of sale.
On the petitioner 's request, the T.R.O. also addressed a couple of letters to the Sub Registrar and Collector which may be referred to here.
With his letter dated 12.5.1988 to the former, the T.R.O. enclosed an extract from the Tax Recovery Inspectors Manual issued by the Income Tax department which reads as follows: "After confirmation of sale of immovable property a certificate in form ITCP 20 will be issued.
The original of this sale certificate is liable for stamp duty and a further duty of Rs.4.50 is also chargeable on the copy of the sale certificate to be forwarded to the Sub Registrar.
These charges (which may vary from State to State) are to be borne by the auction purchaser.
The original sale certificate thus issued will be the title for the property and it has the same value as a sale deed and it does not require registra tion by the purchaser.
Thus the auction purchaser is saved expenses of 631 registration etc.
This office itself will send a copy of the sale certificate for registration to the concerned Sub Registrar for making necessary entries in his registers." (underlining ours) The Collector of Stamps was addressed directly by the T.R.O. on 29.9.1988 in relation to the Gautam Nagar property.
In that letter the T.R.O. stated that he had received legal advice that no stamp duty was payable on the certificate of sale.
The attention of the Collector was drawn to the fact that a copy of the sale certificate had been sent to the Sub Registrar as required under Rule 21 of the Income tax (Certificate Proceedings) Rules ITCP rules which runs as follows: "21.
Every Tax Recovery Officer granting a certificate of sale to the purchaser of immovable property sold under the second schedule shall send a copy of such certificate to the Registering Officer concerned under the Indian ( 18 of 1908) within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in the certificate is situate.
" The Collector was requested to inform the Sub Registrar accordingly to make necessary entries in the registers regarding the auction sale of the above immovable property on the basis of the copy of sale certificate sent to him.
Apparently, no further action was taken by the Sub Registrar or Collector in the matter and, hence, each of the petitioners applied to the Delhi High Court under Article 226 of the Constitution.
The T.R.O., the Collector, the Sub Registrar, Delhi Administration and the Municipal Corpo ration of Delhi were impleaded as respondents.
The petition er prayed for a writ of mandamus or any appropriate writ or order or direction to the respondents to register the cer tificate of sale and mutate the property in the name of the petitioner.
The Delhi Administration and the Municipal Corporation were added as parties since they did not respond to the petitioner 's request to effect mutation entries in the Corporation register, presumably on account of the petitioner 's failure to pay the "transfer fees" leviable as additional stamp duty under the Delhi Municipal Act.
The writ petition was dismissed at the stage of admission by the Delhi High Court.
The learned Judges passed a short order to the following effect: "Under section 29(f), read with Schedule I (Article 18) and section 3 632 of the Stamp Act, the liability to pay the Stamp Duty is of the purchaser, unless there is a specific contract to the contrary in this regard.
In this case the auction notice is silent as to who is to pay the Stamp Duty.
In other words, it does not create liability for the Government to pay the Stamp Duty.
Hence the general provisions of law which are quoted above would be applicable.
Dismissed.
" Each of the petitioners has thereupon, preferred this spe cial leave petition before this Court.
On the above facts, three different and separate ques tions arise for consideration: (1) What is the action to be taken by the SubRegistrar when the copy of a certificate of sale is forwarded to him by the T.R.O.? (2) Is the vendee in a sale by the T.R.O. entitled to ask the T.R.O. to make entries regarding the transfer in his records on the basis of the copy of the certificate of sale sent to him by the T.R.O.? (3) What is the procedure to be followed by the Sub Registrar when the original certificate of sale is produced before him by the vendee? The first of the above questions is directly answered by section 89 of the Indian .
This section provides for the procedure to be followed in certain situa tions; in particular, in cases where sales are effected either by courts under the Code of Civil Procedure or by revenue officers in pursuance of a revenue recovery certifi cate.
Under section 89(2), every court granting a certificate of sale of immovable property under the Code of Civil Proce dure, 1908, shall send a copy of such certificate to the registering officer within the local limits of whose juris diction the whole or any part of the immovable property comprised in such certificate is situate.
Sub section (4) of section 89 makes a similar provision in respect of immovable properties sold by public auction by a revenue officer who issues a certificate of sale in pursuance of the auction.
The sub sections further provide that when the copy of the certificate of sale is so received, such "registering offi cer snail file the copy or copies; the case may be, in his Book No. 1.
" So far as sales for recovery of income tax are concerned, rule 21 of the ITCP rules, quoted earlier, makes a like provision requiring the concerned T.R.O. to send a copy of :he certificate of sale to the registering officer concerned.
A doubt may arise whether the expression revenue officer ' in section 84 (4) of the includes a T.R.O.; and, if not, whether, without an appropriate amend ment of section 89 (2) or (4) of the , the mere framing of a rule by the Central Board of Direct Taxes under the Income tax Act, 1961 will be 633 sufficient to oblige the registration officer to file a copy of the certificate of sale sent to him by the T.R.O. in his Book No. 1.
In our opinion, there is no need to read the term 'revenue officer ' in any restricted sense and that it is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income tax demand.
We are therefore clear that, in the present case, the registration officer has to act in terms of section 89(4) of the Indian read with rule 21 of the ITCP rules.
This is to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.
This takes us to the second question as to whether filing of a copy of the certificate in Book No. 1 within the meaning of section 89 is tantamount to the registration of the document under the or it is a totally different concept.
The registration of a document under the Act is conditional on the fulfilment of several requirements (Ss. 32 to 35).
The document has to be presented for regis tration by a person competent to do so.
The persons execut ing the document should appear before the Sub Registrar and admit or deny execution of the document.
The Sub Registrar may conduct an enquiry, where needed, to satisfy himself as to the proper execution of the document.
He will decide to admit the document to registration only if he is satisfied on this.
What he has to do once he admits a document to registration is laid down in Ss. 51 to 67.
First, he is bound to endorse full particulars and details of the regis tration on the document presented to him and also obtain the signature of every person presenting the document.
He should then, without delay copy the entire document in the appro priate book maintained for the purpose (which, in respect of non testamentary instruments relating to immovable property, is Book No. 1).
The entries in each book nave to be consecu tively numbered year wise and corresponding entries should be contemporaneously made in current indices to be main tained in every office.
The officer should affix his signa tures to the endorsements made in his presence and then endorse a certificate on the document that it is registered together with the registration particulars which shall be signed, sealed and dated by him.
The document is then re turned to the person presenting it for registration.
The books and indices are available for public inspection and certified copies thereof are to be given to parties applying for them.
This, in brief, is the process of registration.
On the other hand, the process of filing that is contem plated under the Act is somewhat different though the Act does interchange 634 the two expressions in some places.
For instance, section 51(2) itself refers to all documents or memoranda registered under section 89 being entered or filed in Book No. 1.
But there appear to be vital differences between the two processes: (i) It is the original of a document that is registered whereas only copies or memoranda are filed; (ii) The executant of a document which is required to be registered, has to present it for registration and go through the attendant and subsequent processes described above.
A copy to be filed under section 89 or memoranda that are filed under Ss. 64 to 66 is simply transmitted to the con cerned Sub Registrar for being filed.
Apparently, the proce dure of presentation is dispensed with in regard to the latter because they are issued by public authorities dis charging their official duties.
(iii) Additional particulars relevant to a document admitted to registration need to be got endorsed thereon from time to time as contemplated in Ss. 58 and 59 but this rule does not apply to a copy or memorandum filed under the Act.
(iv) When a document is registered, the entirety of the document has to be copied out into the relevant book and the original document returned to the person who presents the document with necessary endorsements.
This requirement is absent in the case of a copy or memorandum which is just filed.
(v) Where a document is registered, a certificate of regis tration has to be issued which will be admissible to prove the due registration of the document.
There are thus some differences between the two pro ceedures and this aspect has been touched upon in some very early decisions under the Registration Act, 1877: vide, Fatteh Singh vs Daropadi, [1908] Punj.
Case No. 142; Siraj un nissa vs Jan Muhammad, ; Masarat un nissa vs Adit Ram, All. 568 (F.B.).
Refer ence may also be made to Premier Vegetable P. Ltd. vs State, AIR 1986 M.P. 258.
We need not, however, consider for the purposes of this case whether filing and registration mean one and the same thing for all purposes and ' what the legal effect of these differences is.
For, though the processes are different, the purchaser at a court or revenue sale is under no disadvantage because of the lack of 635 registration.
The certificate of sale itself not being a compulsorily registrable document: vide section 17(2)(xii), the transfer of title in his favour is not vitiated by the non registration of the certificate.
The copy of the certificate filed in Book No. 1 contains all the relevant details.
These details are reflected in the indices maintained under section 55 which are open to inspection to all persons.
(We may point out here that section 55(2) only refers to memoranda filed but it seems clear, particularly in the light of various State amendments, that the index to Book No. 1 should also contain the details of copies of document filed by him).
These requirements are sufficient to ensure that any person in tending to purchase or deal with the property is put on notice about the principal contents of the certificate of sale provided he inspects the relevant book and/or index.
It is sufficient to say, for the purposes of this case, that all that the Sub Registrar required to do is to file the copy of the certificate in Book No. 1 and no more.
He does not have to copy out the certificate or make any other entries in Book No. 1.
We now come to the last question and that is whether the certificate of sale is liable to stamp duty and, if so, what the consequences are.
The High Court has referred to section 3, section 29(f) and Article 18 of Schedule I to the Stamp Act.
This provision applies in the absence of a contract to the con trary.
Prima facie, therefore, the view taken by the High Court and there are other decisions also to the same ef fect is correct unless a contract to the contrary can be spelt out.
The auction notice did not promise any exemption from stamp duty.
The extract quoted earlier from the Depart mental Manual (viz. that both the certificate and copy are liable to stamp duty) also renders it unlikely that any promise was given by the TRO at the time of sale that no stamp duty will be payable.
However the T.R.O. 's letter to the Collector referring to the legal advice obtained by him strikes a somewhat inconsistent note.
Even if there had been any such mention by the TRO or the auctioneer, the question would arise whether it can be construed as a contract to the contrary binding on the Union for the purposes of section 29(f) of the Stamp Act.
Sri Mehta requests that we may not now go into these questions but leave the issue to be decided as and when the petitioners seek to have the certificate of registration registered or introduced in evidence before any court or authority entitled to take evidence which is at present a remote contingency.
There are two provisions in the Stamp Act which provide for the adjudication of stamp duty.
Under section 31, it is open to the executants of any document, at any stage but within the time limit set out in section 32, to produce a document before the Collector of Stamps and require him to 636 adjudicate on the question whether the document should bear any stamp duty.
The Collector thereupon may adjudicate the stamp duty himself or refer the matter to the Chief Control ling Revenue Authority of the State.
In turn, it is open to the Chief Controlling Revenue Authority to refer the matter to the High Court for an authoritative decision (Ss. 32 and 56).
This procedure could have been followed by the peti tioners if they wished to seek an answer to the question whether the certificate of sale is liable to stamp duty but they have not done it and the time limit under section 32 has run out.
The other provision that may become applicable is section 33.
Under this section, if any document (and this includes a certificate of sale) is presented to the Registrar for registration and the Registrar is of opinion that it is a document which should bear stamp duty but that it has not been stamped, it is his duty to impound the document and send it on to the Collector of Stamps for necessary adjudi cation (section 38).
This contingency has also not happened.
The third contingency, also provided for in section 33 is when a party wishes to rely upon the certificate of sale as a piece of evidence before a court or an authority entitled to take evidence.
Such court or authority will also have to impound the document and shall not admit the same in evidence unless the stamp duty chargeable and the stipulated penalty are paid.
This situation has not arisen so far but may arise at some time in future.
It is unnecessary to anticipate the same and decide the issue.
We shall therefore leave the issue of stamp duty to be adjudicated upon in the normal course, as and when found necessary, and express no views thereon at this stage.
We should, however, like to deal with a contention raised in the grounds that even if the certificate of regis tration is sought to be presented for registration by the petitioners, the Sub Registrar has no jurisdiction to refuse registration on the ground that the document is insuffi ciently stamped.
As already pointed out, section 17(2)(xii) of the Registration Act makes it clear that the certificate of sale issued in a court sale or by a revenue officer does not need registration.
(Though this provision, like section 89, relates only to a certificate of sale granted to the pur chaser of any property sold by public auction by a civil court or revenue officer, for the same reasons as have been set out earlier, we think that the certificate issued by the TRO is also covered by this provision).
It is, therefore, clear that it is not obligatory on the purchaser of property in a tax recovery sale to get the certificate of sale regis tered in order to perfect his title.
However, if he presents the original certificate of sale to the Registration Officer for registration, the Registration Officer will have to comply with the relevant statutory provisions in this re gard.
However this situation has not arisen as yet 637 and it is unnecessary to anticipate it and decide the point.
We therefore do not express any opinion thereon.
This leaves for consideration the question in regard to the municipal transfer fee.
No details have been placed before us on this issue.
The payability of the municipal transfer fee perhaps depends upon the payability of stamp duty but our attention has not been invited to the relevant statutory provisions or their interpretation.
The High Court has given no separate finding on this issue.
We also express no opinion particularly since we are not expressing any opinion on the question as to whether Stamp Duty is payable on the certificate of sale or not.
It will be open to the petitioners to contest this levy in other appropriate pro ceedings.
For the above reasons, we are of opinion that these appeals have to be allowed in part.
The Sub Registrar is directed to file the copy of the certificate of sale re ceived by him from the T.R.O. in his Book No. 1 as required by section 89(4) of the Act read with rule 21 of the Income tax (Certificate Proceedings) Rules, 1962.
The petitioners are entitled to ask for nothing more.
We express no opinion on the question as to whether any stamp duty or municipal transfer fees are payable in respect of the original certif icate of sale.
The appeals are accordingly disposed of.
There will be no order as to costs.
N.P.V. Appeals allowed partly.
|
The appellants purchased properties in auction sales conducted by the Tax Recovery Officer for recovery of income tax and were issued sale certificates.
Copies of certifi cates were also sent to the SubRegistrar, as required under Rule 21 of the Income Tax (Certificate) Proceedings Rules ITCP Rules.
The appellants approached the SubRegis trar for getting the properties registered in their names but the Sub Registrar and the Collector of Stamps refused to do so unless stamp duty was paid on the certificate of sale.
At the appellants ' request, the Tax Recovery Officer also addressed the two officers for getting the entries made in the Register on the basis of the copy of sale certificate.
He also informed the Collector of Stamps that according to the legal advice given to him no stamp duty was payable on the certificate of sale.
However, no action was taken by either of the officers.
The appellants ' request to Delhi Administration and Municipal Corporation to effect mutation entries in the Corporation Register, was also not acceded to on account of the appellants ' failure to pay the transfer fees, leviable as additional stamp duty under the Delhi Municipal Act.
Therefore, the appellants filed writ peti tions before the High Court praying for directions to the respondents to register the certificate of sale and mutate the property in the name of the appellants.
The High Court dismissed the petitions holding that, in the absence of specific contract to the contrary, the liability to pay the stamp duty was that of the purchaser.
628 Allowing the appeals by the purchasers, partly, this Court, HELD: 1.
Under section 89(4), every Revenue Officer, granting a certificate of sale of immovable property or public auction should send a copy of such certificate to the registering officer within the local limits of whose juris diction the whole or any part of the immovable property comprised in such certificate is situate, and such register ing officer shall file the copy or copies, as the case may be, in his Book No. 1.
So far as sales for recovery of income tax are concerned rule 21 of the ITCP Rules, makes a like provision requiring the concerned T.R.O. to send a copy of the certificate of sale to the registering officer con cerned.
[632E G] There is no need to read the term 'revenue officer ' in any restricted sense.
It is wide and comprehensive enough to include the T.R.O. who effects a compulsory sale for the recovery of an income tax demand.
The registration officer has to act in terms of section 89(4) of the Indian Registra tion Act read with Rule 21 of the ITCP Rules and file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1.
[633A B] 2.
Section 17(2)(xii) of the makes it clear that the certificate of sale issued in a court sale or by a revenue officer does not need registra tion.
Though this provision, like section 89, relates only to a certificate of sale granted to the purchaser of any property sold by public auction by a civil court or revenue officer, the certificate issued by the T.R.O. is also cov ered by this provision.
It is, therefore, not obligatory on the purchaser of property in a tax recovery sale to get the certificate of sale registered in order to perfect his title.
However, if he presents the original certificate of sale to the Registration Officer for registration, the Registration Officer will have to comply with the relevant statutory provision in this regard.
[636F H] 3.1 The Certificate of sale itself not being a compulso rily registerable document: vide section 17(2)(xii), the transfer of title in favour of the purchaser is not vitiated by the non registration of the certificate.
The copy of the certificate filed in Book No. 1 contains all the relevant details.
These details are reflected in the indices main tained under section 55 which are open to inspection to all persons.
These requirements are sufficient to ensure that any person intending to purchase or deal with the property is put on notice about the principal contents of the certif icate of sale provided he inspects the relevant book and/or index.
[635A C] 629 3.2 Therefore, in the instant case, all that the Sub Registrar is required to do is to file the copy of the certificate in Book No. 1 and no more.
He does not have to copy out the certificate or make any other entries in Book No. 1.
[635C] 4.1 Under Sections 3, 29(f) and Article 18 of Schedule I of the Stamp Act, 1899 the liability to pay stamp duty is of the purchaser to the contrary can be spelt out.
[635D] In the instant case, the auction notice did not promise any exemption from stamp duty.
The Tax Recovery Inspectors ' Manual which states that both the certificate and copies are liable to stamp duty, also renders it unlikely that any promise was given by T.R.O. at the time of sale that no stamp duty will be payable.
However, the T.R.O. 's letter to the Collector of stamps referring to the legal advice given to him strikes a some what inconsistent note.
However, the issue of stamp duty is felt to be adjudicated upon in the normal course, as and when found necessary.
[635E G] 4.2 The payability of municipal transfer fee depends upon the payability of stamp duty.
It will be open to the appellants to contest this levy in other appropriate pro ceedings.
[637B] 5.
The Sub Registrar is directed to file the copy of the certificate of sale received by him from the T.R.O. in his Book No. 1 as required by section 89(4) of the read with Rule 21 of the IncomeTax (Certificate Proceed ings) Rules, 1962.
[637D] Fatteh Singh vs
Daropadi, [1908] Punj.
Case No. 142; Sirajun nissa vs Jan Muhammad, ; Masarat un nissa vs Adit Ram, All. 568 (F.B.) and Premier Vegetable P. Ltd. vs State, AIR 1986 M.P. 258.
referred to.
|
Appeal No. 62 of 1990.
From the Judgment and Order dated 2.12.1989 of the Allahabad High Court in C.M.Appn.
No. 17984 (W) of 1989 in W.P. No. 5400 of 1989.
Mukul Mudgal for the Appellant.
Anil Dev Singh, G.L. Sanghi, Mrs. Shobha Dikshit, E.C. Agrawala, Atul Sharma and V.K. Pandita for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This appeal by special leave is against the Order of the Allahabad High Court, Lucknow Bench, in C.M. Application No. 17984 (W) of 1989 in Writ Petition No. 5400 of 1989.
The application for clarification and modification of the judgment in the Writ Petition was filed in the High Court by the appellant, though not a party to that proceed ing, on the ground that he was adversely affected by it.
The appellant was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh.
The appellant successfully completed his course of studies in Uttar Pradesh and secured the B.D.S. degree.
For that purpose he had stayed in that State for over a period of five years.
He later applied for admission to 671 the M.D.S. course at King George Medical College, Lucknow.
He secured admission to the course, but in a subject other than that of his choice.
The subject of his choice was Oral Surgery, but what was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice was that he had to step down in favour of others who had come within the rule of preference as per the Notification dated August 19, 1983 issued under section 28(5) of the U.P. State Universities Act, 1974 (U.P. Act No. 29 of 1974) providing for reservation of seats and prescribing a resi dence qualification for selection to the M.D.S. course.
By the impugned order, the High Court rejected the appellant 'S prayer for clarification and modification of its judgment in Writ Petition No. 5400 of 1989 and held that that judgment was rendered in accordance with the principle laid down in its earlier decision in Writ Petition No. 5325 of 1988 where the residence qualification prescribed by the Notification was so construed as to be applicable only to a person who was a resident in the State of Uttar Pradesh for reasons other than that of merely completing a course of studies.
In other words, the High Court refused to accept the appellant 's contention that the residence qualification should be so construed as to entitle to admission a person, like the appellant, who had come from outside the State strictly and solely for the purpose of undergoing a course of studies and returning to his own State upon completion of the course.
The High Court held that residence strictly for studies without more did not bring a person within the ambit of the Notification.
This is what the High Court stated in its judgment in Writ Petition No. 5400 of 1989, clarifica tion of which was sought by the appellant: "In other words those candidates who joined B.D.S. Course on the basis of nominations made by the Central Government or their own State and were not bona fide residents of the State of Uttar Pradesh prior to joining the B.D.S. Course will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State of Uttar Pradesh for five years or more for completion of the B.D.S. Course or housemanship." The appellant does not challenge the validity of the notified provisions.
The sole question which arises for consideration is as regards the construction of clause 4 of the said Notification.
Before reading that clause, it may be noticed that clause 1 of the Notification provides for reservation of seats in favour of candidates belonging to the 672 categories specified therein.
Clause 2 then provides: "2.
The remaining seats shall be filled up on the basis of merit by the candidates who have passed the B.D.S. examina tion from the K.G. Medical College, Lucknow, obtaining a minimum of 55% marks in the aggregate and who are bona fide residents of Uttar Pradesh.
(emphasis supplied) The High Court notices that clause 2 stipulates two conditions, namely (i) institutional; and (ii) residential.
The High Court observes that the appellant satisfies the first requirement the institutional, but does not fulfill the second requirement, namely, bona fide residence.
A bona fide resident is one who comes within the meaning of that expression in clause 4, which reads: "4.
For the purpose of this order the expression 'bona fide resident of Uttar Pradesh ' shall mean (a) a citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or (b) a citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pra desh for not less than five years at the time of making the application." (emphasis supplied) It is not disputed that the appellant is a citizen of India and is domiciled in India.
The question is whether he is a 'bona fide resident of Uttar Pradesh '.
The contention of the appellant before the High Court was that he had stayed in the State of Uttar Pradesh for more than five years for the purpose of completing his studies and was, therefore, fully qualified as a bona fide resident of that State.
The High Court found that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
The appellant was nominated by the State of Himachal Pradesh to undergo a course of studies in the State of Uttar Pradesh and he stayed in Uttar Pradesh for over five years solely for that purpose.
There is no evidence that he had any other object for staying for that length of time, as he did, in Uttar Pradesh.
There is no evidence that 673 he had any intention of indefinitely residing in that State.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of 'domicile ' is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
Domicile which is a private international law or con flict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
A domicile of origin is attributed to every person at birth by operation of law.
This domicile is not decided by his place of birth, or by the place of residence of his father or mother, but by the domicile of the appropriate parent at the time of his birth, according as he is legiti mate or illegitimate.
It is possible for the domicile of origin to be "transmitted through several generations no member of which has ever resided for any length of time in the country of the domicile of origin." (See Dicey & Morris, The Conflict of Laws, 10th ed.
I, Rule 9, p. 108).
The domicile of origin continues until he acquires a domicile of choice in another country.
Upon abandonment of a domicile of choice, he may acquire a new domicile of choice, or his domicile of origin, which remained in abeyance, revives.
The burden of proving a change of domicile is on him who asserts it.
The domicile of origin is more tenacious.
"Its character is more enduring, its hold stronger and less easily shaken off." Per Lord Macnaghten, Winans vs A.G., , 290.
The burden of proving that a domicile of origin is abandoned is needed much heavier than in the case of a domicile of choice.
No domicile of choice can be acquired by entering a country illegally.
The domicile of choice is a combination of residence and intention.
Residence which is a physical fact means "bodily presence as an 674 inhabitant" (Re Newcomb, ; (1908).
See Dicey, op.
Such residence must be combined with intention to reside permanently or for an unlimited time in a country.
It is such intention coupled with residence that acquires him a new domicile.
It is immaterial for this purpose that the residence is for a short duration, provided it is coupled with the requisite state of the mind, namely the intention to reside there permanently.
"If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency", Re Fuld 's Estate (No. 3) 1968 (P) 675.
such as, the end of his studies, he lacks the intention required by law.
His "tastes, habits, conduct, actions, ambitions, health, hopes, and projects" Casdagli vs Casdagli, , 178 are keys to his intention.
"That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary pur pose, but with a present intention of making it his perma nent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home".
Lord vs Colvin, [1859] 4 Drew 366 at 376.
We must, in this connection, hasten to add that 'domi cile ', being a private international law concept, is inappo site to the relevant provisions, having no foreign element, i.e., having no contact with any system of law other than Indian, unless that expression is understood in a less technical sense (see observations to this effect in Dr. Pradeep Jain and Others etc.
vs Union of India and Others etc.
, [1984] 3 SCC 654. 666 669).
An expression which has acquired a special and technical connotation, and developed as a rule of choice or connecting factor amongst the compet ing diverse legal systems as to the choice of law or forum, is, when employed out of context, in situations having no contact with any foreign system of law, apt to cloud the intended import of the statutory instrument.
When a person is referred to as domiciled in a country, the expression 'country ' is used in private international law as a term of art denoting, in the words of dicey, "the whole of a territory subject under one sovereign to one body of law".
See Dicey & Morris, The Conflict of Laws, Vol. 1, page 24.
But in a federation like the United States, Austra lia, or Canada, or in a composite State like the United Kingdom, different systems of law may prevail in different regions in respect of certain matters.
In such cases, each of the territories governed by a separate system of law is treated, for the purpose of private international law, as a 'country ', though in public international law or 675 constitutional law it is not a separate sovereign State.
As stated by Halsbury, "in federal states, some branches of law are within the competence of the federal authorities and for these purposes the whole federation will be subject to a single system of law, and an individual may be spoken of as domiciled in the federation as a whole; other branches of law are within the competence of the states or provinces of the federation, and the individual will be domiciled in one state or province only".
Halsbury 's Laws of England Vol. 8, para 422; See D.P. Joshi vs The state of Madhya Bharat and Another, 15.
This is, however, not the position in India.
Though a Union of States, and a federation in that sense, the whole country is governed by a single unified system of law, with a unified system of judicial administration, notwithstanding the constitutional distribution of legislative powers be tween the Centre and the States.
There is no State wise domicile within the territory of India.
A man who is domi ciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervad ing throughout the country.
He is 'domiciled ' in the whole of this country, even though his permanent home may be located in a particular spot within it.
Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, i18681 LR 1 Sc & Div 307, H.L. The expression, as understood in private international law, makes no sense in the context of Clause 4, for Indian domicile cannot be limited to any particular State within India.
The full import of 'domicile ' is, there fore, inapplicable to the construction of clause 4.
We would in this connection recall the words of this Court in Dr. Pradeep Jain & Ors.
vs Union of India & Ors.
, [1984] 3 SCC 654 at 668, See also D.P. Joshi vs The State of Madhya Bharat and Another, ; "It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the States have power to make laws.
The concept of 'domicile ' has no relevance to the applica bility of municipal laws, whether made by the Union of India or by the States.
It would not, therefore, in our opinion be right to say that a citizen of India is domiciled in one State or another forming part of the Union of India.
The domicile which he has is only one domicile, namely, domicile in the territory of India." 676 'Domicile ' for the purpose of clause 4 must, neverthe less, be understood and applied in a limited sense and in contradistinction to 'residence ', for that clause uses both the expressions and demands compliance with either of them with reference to the State of Uttar Pradesh.
Unlike 'resi dence ' which is only bodily presence, 'domicile ' in this context must necessarily mean physical residence coupled with the intention to settle down in Uttar Pradesh, al though, being confined to a particular region rather than the whole area of operation of the territorial legal system and lacking in any foreign complexion or unconcerned with any foreign element, the animus manendi required for the purpose of clause 4 is much less in quality and contents than what is required in Private International Law.
Sub clause (a) of Clause 4 prescribes no minimum length of residence or minimum degree of intention, and, however short or insignificant the two elements may be, their combination, in whatever proportion, is sufficient to constitute 'domi cile ' for the purpose of clause 4(a).
In the present case, the appellant came to the State of Uttar Pradesh with a predetermined mind, namely, to complete the chosen course of studies and return to the State which had nominated him for the purpose.
Having regard to the time and duration, the object and obligation, and the uncontro verted facts, the appellant was undoubtedly a bona fide student who resided in Uttar Pradesh for over five years, but whose residence did not acquire the attributes of 'domicile ' within the meaning of clause 4(a).
The question then is whether the appellant is a 'bona fide resident of Uttar Pradesh ' within the meaning of clause 4(b).
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence To insist on an element of volition is to confuse the features of 'resi dence ' with those of 'domicile '.
For an interesting discus sion on The Meaning of Residence, see J.D. McClean, Interna tional & Comparative Law Quarterly [1962] Vol.
II PP.
1153 et seq.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
Per Viscount Cave, Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioners of Inland Revenue; , 677 at p. 222.
A man may be ordinarily resident or habitually resident m more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary residence, although duration, past or prospective, is only one of the many relevant fac tors, and there is no requirement of any particular minimum period.
See Dicey & Morris; The Conflict of Laws, 10th ed., PP.
145 & 200 202.
See also Cheshire & North; Private International Law, 11th ed., PP.
171173; Halsbury 's Laws of England, 4th ed., Vol. 18 330.
In Reg vs Barnet L.B.C., Ex p. Shah, , the House of Lords held that a person was ordinarily resi dent in the United Kingdom, if he normally resided lawfully in that country from choice and for a settled purpose.
If a person resided there for the specific and limited purpose of education, he was ordinarily resident in that country, even if his permanent residence or real home was outside that country or his future intention or expectation was to live outside that country.
Residence must be voluntary.
"Enforced presence by reason of kidnaping or imprisonment, or a Robins 'on Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is".
Per Lord Scarman, Reg vs Barnet L.B.C., exhibit p. Shah, at 344.
Education, business, profession, employment, health, family, or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigration laws, his presence there does not constitute ordinary residence.
While residence and intention are the two essential elements constituting the 'domicile of choice ' residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is, as stated above, to mistake residence for domicile of choice, and that is the error which the High Court appears to have committed.
Where residence is pre scribed within a unified legal system as a qualifying condi tion, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony 678 with the guaranteed rights under the Constitution, and such a construction must necessarily be avoided.
Clause 2, which we have set out above, refers to a 'bonafide ' resident and such a person is defined under clause 4 to include a person who has resided in Uttar Pra desh for not less than five years at the time of making his application.
These two clauses indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona.fide.
The converse of bona.fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a 'bonafide resident '.
Any other construction of the clauses would, in our view, be unreasonably restrictive and thus conflict with the appellant 's constitutional rights.
Viewed in this light, we have no doubt that the con struction placed by the High Court upon sub clause (b) of clause 4 of the Notification is unsustainable.
In our opin ion, a person, such as the appellant, who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years, albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
In the circumstances, we set aside the impugned order of the High Court, and allow the appeal with the costs of the appellant here and in the High Court.
N.V.K. Appeal allowed.
|
The appellant who was nominated by the State of Himachal Pradesh to undergo the B.D.S. course in the State of Uttar Pradesh, successfully completed his course and secured the B.D.S. degree.
For this purpose he had stayed in that State for over a period of five years.
Later, he applied for admission to the M.D.S. course at King George Medical Col lege, Lucknow and the subject of his choice was Oral Sur gery.
He secured admission but the subject 'that was offered to him was Periodontics.
The reason for denying the appellant the subject of his choice, viz. Oral Surgery; was that he had to step down in favour of others who had come within the rule of preference provided for in the Notification dated August 19, 1983.
issued under Section 28(5) of the U.P. State Universities Act, 1974, providing for reservation of seats, and prescrib ing a residence qualification for selection to the M.D.S. course.
The High Court in its judgment in Writ Petition No. 5400 of 1989 following an earlier decision of the Court held that those candidates who joined B.D.S. course on the basis of nominations made by the 667 Central Government or their own State will not be treated to be bona fide residents of Uttar Pradesh merely because they have stayed in the State for five years for completion of the course.
The appellant who was not a party to the proceedings in the writ petition applied for clarification and modification on the said judgment as it had adversely affected him.
The High Court rejected the application, holding that clause 2 of Notification stipulates two conditions viz: (i) institu tional and (ii) residential: and that the appellant satis fies the first requirement, namely, institutional but does not fulfill the second requirement, viz 'bona fide resident '; that a 'bona fide resident ' is one who comes within the meaning of that expression in clause 4 of this Notification, and that residence merely for the purpose of studies would not satisfy the requirement of clause 4.
In the appeal to this Court on the question: Whether the appellant was a 'bona fide resident of Uttar Pradesh ' within the meaning of clause (b) of the Notification dated August 19, 1983.
Allowing the appeal, and setting aside the order of the High Court, this Court, HELD: 1.
A person is treated as a 'bona fide resident of Uttar Pradesh ' in terms of sub clauses (a) and (b) of Clause 4 by reason of either his 'domicile ' or 'residence ' in that State.
While sub clause (a) speaks of the domicile of the candidate and his father, sub clause (b) speaks of a person, whose father was not domiciled in the State and who himself has resided for not less than five years in the State.
The concept of domicile is irrelevant to the construction of sub clause (b) in respect of the residence qualification of the candidate.
All that it requires is his requisite resi dence.
[673A B] 2.
Clauses 2 and 4 indicate that a person should have resided in Uttar Pradesh for the requisite period lawfully and bona fide.
The convers of bona fide being mala fide, meaning lack of good faith, in the absence of any allegation that the appellant 's residence in that State was in any manner opposed to the law of the land, or tainted by lack of good faith, and in the light of the undisputed fact that his residence was neither casual nor fleeting, but in excess of the minimum period of five years, and for the definite purpose of education, he satisfies the definition of a ' bona fide resident. ' [678B C] 3.
The construction placed by the High Court upon sub clause (b) 668 of clause 4 of the Notification is unsustainable.
A person such as the appellant who resided in the State of Uttar Pradesh specifically for the purpose of undergoing a course of studies for not less than five years albeit with the intention of finally returning to his home State, also comes within the meaning of the expression 'bona fide resident ' as defined in the said clause.
[678D E] 4.
Domicile which is a private international law or conflict of laws concept identifies a person, in cases having a foreign element, with a territory subject to a single system of law, which is regarded as his personal law.
[673B C] 5.
A person is domiciled in the country in which he is considered to have his permanent home.
His domicile is of the whole country, being governed by common rules of law, and not confined to a part of it.
No one can be without a domicile and no one can have two domiciles.
[673C D] Re Fuld 's Estate (No. 3) 1968 (P) 675; Casdagli vs Casdagli. , 178 and Dicey & Morris, The Con flict of Laws, Vol.
I page 24, referred to.
Domicile being a private international law concept, is inapposite to the relevant provisions, having no foreign element i.e. having no contact with any system of law other than Indian.
unless that expression is understood in a less technical sense.
[674D E] Dr. Pradeep Jain and Others etc.
vs Union of India & Others etc.
, [1984] 3 SCC 654, 666 669, referred to.
An expression which has acquired a special and tech nical connotation and developed as a rule of choice or connecting factor amongst the competing diverse legal system as to the choice of law of forum is, when employed out of context, in situations having no contact with any foreign system of law.
apt to cloud the intended import of the statutory instrument.
[674E F] 8.
India though a Union of States, and a federation in that sense, the whole country is governed by a single uni fied system of law, with a unified system of judicial admin istration, notwithstanding the constitutional distribution of legislative powers between the Centre and the States.
1675B C] 9.
There is no State wise domicile within the territory of India.
A 669 man who is domiciled in India is domiciled in every State in India and is identified with a territorial system of legal rules pervading throughout the country.
He is domiciled in the whole of this country even though his permanent home may be located in a particular spot within it.
[675C D] Halsbury 's Laws of England, vol.
8 para 422; D.P. Joshi vs The State of Madhya Bharat and Another, ; ; Udny vs Udny, [1869] LR 1 Sc & Div 441, H.L.; Bell vs Kennedy, [1868] LR 1 Sc & Div 307, H.L. and D.P. Joshi vs The State of Madhya Bharat and Another, ; , referred to.
Education, business, profession, employment, health, family or merely love of the place are some of the reasons commonly regarded as sufficient for a choice of regular abode.
It is only lawful residence that can be taken into account.
If a man stays in a country in breach of immigra tion laws.
his presence there does not constitute ordinary residence.
[677E F] 11.
Residence is a physical fact.
No volition is needed to establish it.
Unlike in the case of a domicile of choice, animus manendi is not an essential requirement of residence.
Any period of physical presence, however short, may consti tute residence provided it is not transitory, fleeting or casual.
Intention is not relevant to prove the physical fact of residence except to the extent of showing that it is not a mere fleeting or transitory existence.
To insist on an element of volition is to confuse the feature of 'residence ' with those of 'domicile '.
[676E F] 12.
A person is ordinarily resident in a country if his residence there is not casual or uncertain, but is in the ordinary course of his life.
A man may be ordinarily resi dent or habitually resident in more than one place.
While 'ordinary residence ' is the physical residence in regard to which intention is irrelevant, except to show that the residence is not merely fleeting, 'habitual residence ' may denote a quality of endurance longer than ordinary resi dence, although duration, past or prospective, is only one of the many relevant factors, and there is no requirement of any particular minimum period.
[676H; 677A B] 13.
While residence and intention are the two essential elements constituting the 'domicile of choice ', residence in its own right is a connecting factor in a national legal system for purposes of taxation, jurisdiction, service of summons, voting etc.
To read into residence volition as a necessary element is to mistake residence for domicile of choice.
[677F] 670 14.
Where residence is prescribed within a unified legal system as a qualifying condition, it is essential that the expression is so understood as to have the widest room for the full enjoyment of the right of equality before the law.
Any construction which works to the disadvantage of the citizen lawfully seeking legitimate avenues of progress within the country will be out of harmony within the guaran teed rights under the Constitution, and such a construction must necessarily he avoided.
[677G H; 678A] J.D. McClean, International & Comparative Law Quarterly, [1962] Vol.
II pp.
1153 et seq; Commissioner of Inland Revenue vs Lysaght, ; Levene vs Commissioner of Inland Revenu, ; at p. 222 and Dicey & Morris; The Conflict of Laws, 10th ed., pp.
143 145 & 200 202.
Cheshire & North; Private International Law, 11th ed., pp. 171 173 and Halsbury 's Laws of England, 4th ed., vol.
318 330, referred to.
|
ivil Appeal No. 1280 & 1281 of 1988.
From the Judgment and Order dated 21.4.1987 of the Calcutta High Court in Appeal from Original Order No. 128 of 1985, Award Case No. 151 of 1987.
A.K. Sen, Dr. Shankar Ghosh, Ajay K. Jain, Praveen Kumar and Pramod Dayal for the Appellant.
M.K. Banerjee and G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These are cross appeals by M/s. Hind Builders (hereinafter referred to as 'the contractors ') and the Union of India.
from an order of Division Bench of the Calcutta High Court in an arbitration matter.
The contractors had been awarded a contract for the execution of certain civil works in connection with the Metro Railway Project in Calcutta.
Certain disputes arose between the Union and the contractors.
These disputes were referred for decision to two arbitrators appointed by the High Court of Calcutta.
The arbitrators entered upon the reference on 27th June.
The contractors had filed a claim before the arbitrators for a sum of Rs.2,05,67,554.
On 26.3.1984 the arbitrators awarded a sum of Rs.57,47,198 to the contractors.
The claim of the contractors filed before the arbitra tors was an itemised claim in respect of various items of works executed by them.
The body of the award made by the arbitrators reads as follows: "We . . make and publish our Award, as below: 642 (i) That the Respondent . . shall pay . . the Contractors a sum of Rs.57,47,198 . . only in full and final settlement of all their claims and dues under the above mentioned contract agreement.
In addi tion, the three Bank Guarantees . . issued by Vijaya Bank, Cuttack, on behalf of the contractors, in favour of Metro Railway, Cuttack, shall be released by the Respondent Railway, as detailed in the Annexure to this Award.
XXX XXX XXX The Award shall be complied with within 60 (Sixty) days from the date of publication of this Award, failing which simple interest @ 11 per cent per annum on the amount of the Award (excluding interest vide item (1) of the Annexure i.e. Rs.6,76,540) shall accrue till the date of payment or decree upon Award whichever is earlier.
" In the annexure to the award, the arbitrators tabulated the various items of the claim before them, the amount claimed against each item and the amount awarded against each item.
Under item (1) in the annexure, the arbitrators had awarded an interest of Rs.6,76,540 and that is why the direction regarding interest by the arbitrators excluded this amount from the principal amount which was to bear interest.
As stated earlier, the total amount awarded was Rs.57,47,198 in respect of items (a) to (q) of the award as against the claim of Rs.2,05,67,554 made by the contractors.
On an application being made to the High Court of Cal cutta on the Original Side for making the award a rule of court, the learned single Judge sitting on the Original Side confirmed the award except to the extent of Rs.5,20,000.
This is no longer in issue.
The learned Judge.
however, concluded his judgment with the following words: "The principal sum awarded stands reduced by Rs.5,20,000 as mentioned above.
The respondent will be entitled to interest at the rate of 11 per cent per annum from the date of refer ence till the date of the award.
" The Union of India preferred an appeal from the order of the learned single Judge.
The Division Bench was of the opinion that the arbitrators were not justified in awarding a sum of Rs.23,96,000 to the contractors (as against a claim of Rs.42,65,957 made by them) in respect of item (c)(xii) viz. "cost towards consolidation of earth by ramming and rolling" and that they could have awarded under the 643 contract only a sum of Rs.2,39,600 in respect of this item.
The amount awarded to the contractors was thus further reduced by the Division Bench by a sum of Rs.21,56,400 (Rs.23,96,000 Rs.2.39,600).
The Bench then observed that the principal sum to be awarded to the contractors would now stand at Rs.30,70,798 and directed that the respondent contractor should be entitled to interest at the rate of 11 per cent per annum on the said amount from the date of the reference till the date of the award.
The contractors have appealed from the order of the Division Bench being aggrieved by the reduction of the amount awarded under item (c)(xii) to Rs.2,39,600 from Rs.23,96,000.
The Union of India has preferred an appeal contending principally that, since the principal amount on which the arbitrator awarded interest was not Rs.57,47,198 but only Rs.50,70,658 (i.e. Rs.57,47,198 Rs.6,76,540), the contractors would be entitled to interest, after the judg ment of the Division Bench, not on Rs.30,70,798 as held by the Division Bench but only on Rs.23,94,258.
In addition, at the tune of the hearing before us, counsel for the Union of India raised two further points: (1) that the Division Bench erred in awarding inter est to the contractors from the date of the reference till the date of the award.
(2) That though the arbitrators had also awarded interest on the principal sum till the date of payment, the contractors should now be held entitled to interest only upto the date of the award because the learned single Judge and the Division Bench have held so and the contractors have preferred no appeal therefrom.
Taking up the contractor 's appeal first, the point raised falls within a very narrow compass and turns on the interpretation of item No. .09 of the annexure to the contract containing the schedule of rates.
This item reads as follows.
Item Brief description Approx Unit of Rate of No. of work imate payment payment in Qty.
"words" & "figures" Rs. P. 1 2 3 4 5 644 4.09 (a)Earthwork in open excava 235000 10 Rs.180 tion for forming garbage cubic cubic (Rupees tanks in all kinds and metres metres one conditions of soils upto hundred depth varying from 0 to 3 eighty 3 metres from the existing only) ground level and disposing of the spoils so as to raise land required for piling work, to fill up the existing low lying areas and ponds, to form embank ments for roads, etc of the Car Depot complex includ ing spreading in layers, breaking clods, levelling, dressing, all lifts/descents and all leads etc.
complete Note: No extra payments will be made if wet excavation is met with or for baling/ pumping out of water of all sorts including rain water.
(b) Extra over item (a) above, 135000 10 Rs.20 for consolidation of the Cubic Cubic (Rupees filled up areas or some of metres metres Twenty the top layers of the filled only).
up areas or road embank ment portions by watering and ramming/rolling as directed.
In respect of these items the statement of claim filed on behalf of the contractor was in the following terms: (b) Earthwork in excavation measured but not paid in full: That under agreement item No. 4.09 (a) the claimants as per instructions, specifications and agreement excavated 645 earthwork in open excavation for forming garbage tanks in all kinds of soil for a quantity of 2, 15,000 Cum and there after the contract was rescinded against which reduced quantity has been measured provisionally upto 17th CC bill for 2,09,523 Cum measured on 24.5.82 and as per the said measurements the claimants are yet to be paid for a quantity of 5,477 Cum over and above the payments already made upto 17th CC.
The claimants claim payment for 5,477 Cum of exca vation @ Rs. 18 per each Cum.
amounting to Rs.98,586.00.
CLAIM AMOUNT.
Rs. 98,586.00 (c)(xii) Cost towards consolidation of earth by ramming and rolling: That as per agreement item No. 4.09(b) the claimants are required to fill up the low lying areas etc., as specified under General Conditions of the Contract at para 3.05 with the excavated spoils obtained out of earthwork in excavation under agreement item No. 4.09(a).
The payment for earthwork in open excavation for work executed under agreement item No. 4.09(a) is to be made on sectional measurements calcu lated by level sections.
The excavated earth obtained from garbage excavation, a quantity of 2, 15,000 Cum as per provisions made in agreement item No. 4.09(b) was consoli dated in different areas as per instructions and approved plan.
The claimants claim payment for this quantity of consolidation at Rs.20 per Cum i.e. Rs.2 extra over Rs. 18 per Cum as specified in agreement item No. 4.09(a) & (b), amounting to Rs.43,00,000.00 against which payment has been made in CC bills for reduced quantity and amount of Rs.34,043.00.
The claimants claim payment for the balance amount of Rs.42,65,957.00 not paid for.
CLAIM AMOUNT Rs.42,65,957.00 In other words, the contractors claimed payment at the rate of Rs.18 per cubic metre in respect of the excavation work done by them under item No. 409(a).
Again, in respect of the same quantity.
of 2,15,000 cubic metres, the contractors made a claim at Rs.20 per cubic metre as the amount payable to them in respect of the consolidation of 646 excavated earth by ramming and rolling.
The Division Bench was of the view that under item No. 4.09(b), the contractors were entitled to an additional payment of Rs.2 only, since the contractors had already been paid at the rate of Rs.18 per cubic metre in respect of the excavation done by them.
The extra charges for ramming and rolling were payable only at the rate of Rs.2 per cubic metre instead of Rs.20 per cubic metre.
The Division Bench accordingly scaled down the amount awarded by the arbitrator in this regard to 1/10th of the amount awarded by him.
It is submitted on behalf of the contractors that the rate payable for the work under item 4.09(b) of the contract was not at all in dispute between the parties at any stage.
The Union had not raised any plea in this regard in its reply to the contractors ' claim, in the objections to the award filed in the High Court or in the arguments before the learned Single Judge.
Clearly, the Division Bench travelled beyond the limits permissible for the interference with an award by a court of law in reducing the amount awarded on this account.
It is pointed out that the award itself is a non speaking award.
The award does not refer to the terms of the contract or incorporate the details of the claims made by the contractors.
Though it is true that the arbitrators awarded a sum of Rs.23,96,000 against item (c)(xii), they have not given reasons therefore.
The award neither shows that the amount has been worked out at the rate of Rs.20 per cubic metre nor does it show the quantity in respect of which the amount has been worked out.
There is no reference to the terms of the contract or to item No. 4.09, clause (a) or (b).
No reasons have been given by the arbitrators for determining that a sum of Rs.23,96,000 has to be paid to the contractors under item (c)(xii).
It is therefore submitted that there was no error apparent on the face of the record.
Learned counsel vehemently contended that it is now settled law that an award cannot be said to suffer from a manifest error unless the error appears on the face of the award or of some document incorporated in the award.
Reference is made to the decisions of this Court in the following cases: Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., Indore, ; ; Allen Berry & Co. Pvt. Ltd. vs Union oflndia, [1971] 3 SCR287;N. Chellappan vs Secretary, Kerala State Electricity Board & Anr., ; ; Hindustan Tea Co. vs K. Shashi Kant Co. & Ant., ; Hindustan Steel Works Construction Ltd.
C. Rajasekhar Rao, [1987] 4 SCC 93 and Sudarsan Trading Co. vs Government of Kerala & Anr., ; According to the contractors, what the Division Bench has done is to give its own interpretation to item Nos.
4.09(a) & (b) of the contract, to read an erroneous interpretation 647 of the said item into the award made by the arbitrators and to substitute its opinion in the place of that given by the arbitrators.
Thus, it is submitted, runs quite contrary to the principles enunciated in the above decisions and should, therefore, be set aside.
On the other hand, Shri Milon Banerjee, learned counsel for the Union of India submitted that the award is really a speaking award in so far as it does specify the amount granted in respect of each item of claim.
He submitted that the present case falls within the principle enunciated in M/s Alopi Prashad & Sons, Ltd. vs Union of India, ; , which has been taken note of in the case of M/S Sudarsan Trading Co. vs Government of Kerala & Anr., ; at p. 54 that an award which overlooks or ignores the terms of the contract is bad.
He also made a reference to the decision of the Delhi High Court in Bhagat Trading Co. vs Union, AIR 1984 Delhi 358 in this context.
He also referred to a decision of the Punjab High Court in Union of India vs Bakshi Ram, [1957] LIX P.L.R. 572, holding that "when there are pleadings in an arbitration and they are specifically referred to in the award so that it cannot be understood without reference to them, then those pleadings are incorporated in the award and they must be included in the consideration whether there is any error apparent on the face of the award" and that "if a lump sum is awarded by an arbitrator and it appears on the face of the award or is proved by extrinsic evidence that in arriving at the lump sum matters were taken into account which the arbitrator had no jurisdiction to consider, the award is bad." The conten tion of Shri Banerjee is that the annexure to the award clearly incorporates the statement of claim made by the contractors.
Since in turn the statement of claim refers to the clauses of the contract, the contract should also have been treated as incorporated in the award.
It is also appar ent on the face of the award, insofar as it relates to item (c)(xii), that the arbitrators have awarded payment at Rs.20 per cubic metres under item 4.09(b) whereas it must obvious ly be at Rs.2 per cubic metre.
According to the learned counsel, the decisions relied upon by him clearly show that an award which ignores or overlooks the express terms of a contract suffers from an error apparent on the face of the record and can be set aside by this Court.
He submitted that the award, read with the annexure, brings out the reasoning of the arbitrators and that an error therein can be recti fied by the court.
The arbitrators had no power to travel beyond the authority of the contract and, in order to deter mine whether they had exceeded their authority, the contract can be looked into by the court.
In support of this conten tion, the learned counsel also referred to a passage at p. 42 1 in the Law of Arbitration by Bachawat (Second Edition).
648 We have considered the respective contentions of the parties and we are of the opinion that the Division Bench erred in setting aside the award insofar as it relate to the sum of Rs.25,96,000.
Though the annexure sets out the award of the arbitrators as against various items of claims, the mere enumeration of the heads of claims cannot be equated to an incorporation of the statement of claim by the contrac tors into the award.
At any rate, the award does not relate the claims to the various clauses of the contract and the mere fact that the statement of claim refers to various items in the schedule to the contract does not result in the contract itself being incorporated as part of the award.
No error can be found in the award unless one reads into it first the statement of claim and then the relevant clauses of the contract.
But this cannot be done unless these docu ments are treated as incorporated in the award.
This cannot be done.
That apart even if the contract can be read into the award, we doubt whether this case can be treated as one of an error on the face of the award.
All that the award has stated is that for the extra work involved in ramming and rolling, the contractors were to be paid a sum of Rs.23,96,000.
The award does not mention how this amount is arrived at.
There is no mention of the quantity in respect of which this is awarded nor the rate at which the payment has been calculated.
It is, however, pointed out that con tractors had claimed payment at the rate of Rs.20 per cubic metres in respect of 2,15,000 cubic metres and that, even if it is assumed that the ramming and rolling had been done in respect of the entire volume of 2,15,000 cubic metres, the contractors could have, on a proper construction of the contract, been awarded only a sum of Rs.4,30,000 and nothing more.
Obviously, the award is calculated at Rs.20 per cubic metres in respect of 1,19,800 cubic metre.
It is clear, says counsel for the Union, that the volume of the item for which payment has to be made has been cut down but the amount has been calculated at Rs.20 per cubic metre which exceeds the amount of Rs.2 stipulated in the contract and this is erro neous on the face of it.
We are afraid that, in putting forward this contention, the respondents are really trying to analyse the reasons of the arbitrator for making the award under this head when no such reasons have been stated in this award.
In fact, it does not necessarily follow that the payment has been di rected at the rate of Rs.20 per cubic metre in respect of 1, 19,800 cubic metre.
Theoretically, it could have been award ed, in respect of the entire volume of 2, 15,000 cubic metre, at the rate of Rs.11 and odd per cubic metre.
It is, however, clear that the payment has been granted at a rate in excess of Rs.2 per cubic metre.
We shall, however, take it that the arbitrators have awarded at the rate 649 of Rs.20 per cubic metre in respect of this item of work for, as pointed out by Dr. Ghosh, the Union of India had never put forward the case either before the arbitrator or before the learned single Judge that the contractors were not entitled to payment at the rate of Rs.20 per cubic metre as claimed and it was before the Division Bench for the first time that a question arose that the payment for the item should be at Rs.2 and not Rs.20 per cubic metre.
Wheth er the payment should be made at the rate of Rs.20 per cubic metre or at Rs.2 per cubic metre will depend upon a proper interpretation of the contract.
It is argued that the main item of work viz. excavation and distribution of the exca vated work has been paid for under item No. 4.09(a) and that item 4.09(b) envisages an additional payment of Rs.2 per cubic metre if the excavated soil, instead of being loosely distributed, is rammed and rolled by applying some pressure.
This seems, prima facie, a plausible interpretation of clause 4.09(b).
But we cannot assume, in the absence of any evidence or expert knowledge, that the ramming and rolling was not an independent, heavy or cumbersome piece of work and merely involved a minor addition to the work under item 4.09(a).
On the other hand, in the grounds of appeal filed by the contractors it is contended: "The High Court failed to appreciate that the process of ramming and rolling is a very expensive specialised process as it has to be done layer by layer not exceeding six inches at a time and requires watering, breaking of clods and use of specialised road rollers, bulldozers and other equipment.
The work of ramming and rolling is much more expensive than that of earth excavation provided for in item 4.09 (a).
The High Court further failed to appreciate that in its reply to the statement of claim of the petitioner, the respondent No. 1 had not disputed that the rate applicable for ramming and rolling was Rs.20 per cubic metre.
The respondent No. 1 had only raised a dispute with regard to the quantity of the ramming and rolling done by the petitioner.
The High Court misinterpreted the contract and erred in reducing the award for ramming and rolling by erroneously applying the rate of Rs.2 per cubic metre.
" This may be fight or wrong but this is also a plausible view.
Unfortunately, this was an aspect not urged before, or considered by, the arbitrators.
There was no evidence before the arbitrators or material adduced before the Court as to the nature of these operations.
It is difficult to say, by merely reading the terms of contract that the 650 arbitrators have erroneously interpreted the terms of the contract.
It is not without significance that the departmen tal officers did not dispute the rate of the claim.
Equally, the arbitrators were experienced engineers and would not have passed, what is now said to be, an astounding claim without thought.
It is difficult to assume that all these persons have overlooked that the contractor had already been paid at Rs.18 under item 4.09(a) especially when it is so stated on the face of the claim.
This, therefore.
is not a case where tile arbitrators can be said to have ignored or overlooked a term of the contract; on the contrary, they have acted upon a particular interpretation of certain clauses of the contract on which two views are possible.
This case certainly cannot be brought under the principle that the arbitrators have ex facie exceeded the authority or jurisdiction conferred on them by the Contract.
At worst, what can be said is that they may have committed an error in deciding the issue referred to them but the error is not apparent on the face of the award even if the contract is read as part of it both because the arbitrators have not given their reasoning and because the view taken by them of the relevant terms of the contract cannot be said to be clearly erroneous.
In a matter on which the contract is open to two equally plausible interpretations, it is legitimate for the arbitrators to accept ' one or the other of the available interpretations and, even if the Court may think that the other view is preferable, the Court will not and should not interfere.
This view is too well settled to need any reference to any precedent other than Sudershan Trading Co 's case referred to earlier.
That is why we think that this case does not fall within the principle referred to by Shri Banerjee and that Dr. Ghosh is right in his submission that the Division Bench exceeded its jurisdiction in inter fering with this part of the award.
Turning now to the appeal of the Union of India, there is really no dispute about the first contention regarding the amount on which interest is payable to the contractors.
The correct computation should stand as follows in the light of our findings in the contractors ' appeal: Compensation awarded 57,47,198 by arbitrator Less: Interest element therein [item (1)] 6,76,540 Net principal amount awarded 50,70,658 651 Less:Amount deleted by learned Single Judge 5,20,000 45,50,650 The contractors will be entitled to interest on this amount.
What is the period with reference to which interest would be payable on the above amount? The arbitrators had allowed interest on the amount awarded by them from 5.10.82 to 26.3.84 under item (1) and had also allowed interest from the date of the award till the date of payment or decree, whichever is earlier.
Of this, the learned Single Judge had deleted the interest for the period 5.10.82 to 6.5.83 and what remains is the award of interest from 6.5.83 till the date of payment.
There are two disputes as to this.
The first objection raised on behalf of the Union is that the contractors will not be entitled to any interest for the period from the date of reference to arbitration (6.5.1983) till the date of the award (26.3.1984).
On behalf of the contractors, Dr Ghosh refutes this contention.
He relies upon the decision of this Court in Executive Engineer vs Abhaduta Jena.
[1988] 1 SCC 418 and contends that, in all cases where, as in this case, arbitrators are appointed by Court and disputes referred to them for arbitration, pen dente lite interest can and should be awarded by the arbi trator.
He points out that, though initially in Seth Thawar das ' case some doubts were raised about the competence of the arbitrator to award interest, this Court has subsequently consistently held that an arbitrator can do this: vide, Nachiappa vs Subramaniam, ; ; Satinder vs Arnrao, ; ; Firm Madanlal vs Hukamchand Mills Ltd.; , ; Union vs Bungo Steel Furniture P. Ltd., ; ; Ashok Construc tion Co. Ltd. vs Union, and State vs Saith & Skelton P. Ltd., ; After referring to these and other cases, Chinnappa Reddy, J. in Abhaduta Jena, (supra) summed up the position thus: "15.
As a result of the discussion of the various cases, we see that Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ranjit, 65 IA 66; Union of India vs West Punjab Factories, ; and Union of India vs Watkins & Co., AIR 1966 SC 275 were cases of award of interest not by an arbitrator, but by the court.
It was laid down in those three cases that 652 interest could not be awarded for the period prior to the suit in the absence of an agreement for the payment of interest or any usage of trade having the force of law or any provision of the substantive law entitling the plaintiff to recover interest.
Interest could also be awarded by the court under the Interest Act if the amount claimed was a sum certain payable at a certain time by virtue of a written instrument.
In regard to pendente lite interest, the provi sions of the Civil Procedure Code governed the same.
The question of award of interest by an arbitrator was considered in the remaining cases to which we have referred earlier.
Nachiappa Chettiar vs Subramaniam Chettiar, ; ; Satinder Singh vs Amrao Singh, ; ; Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., ; ; Union of India vs Bungo Steel Furniture Pvt. Ltd., [1967] I SCR 324; Ashok Construction Co. vs Union of India, and State of Madhya Pradesh vs M/s. Saith & Skelton Pvt. Ltd., ; were all cases in which the reference to arbitration was made by the court, of all the disputes in the suit.
It was held that the arbitrator must be assumed in those circumstances to have the same power to award interest as the court.
It was on that basis that the award of pendente lite interest was made on the principle of Section 34 Civil Procedure Code in Nachiappa Chettiar vs Subramaniam Mills Ltd., (supra); Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd., (supra); Union of India vs Bungo Furniture Pvt. Ltd., (supra) and State of Madhya Pradesh vs M/s Saith & Skelton Pvt. Ltd., (supra).
In regard to interest prior to the suit, it was held in these cases that since the Interest Act, 1839, was not applicable, interest could be awarded if there was an agreement to pay interest or a usage of trade having the force of law or any other provision of substantive law entitling the claimant to recover interest.
Illustrations of the provisions of substantive law under which the arbitrator could award interest were also given in some of the cases.
It was said, for instance, where an owner was deprived of his property, the right to receive interest took the place of the right to retain possession, and the owner of immova ble property who lost possession of it was, therefore, entitled to claim interest in the place of right to retain possession.
It was further said 653 that it would be so whether possession of immovable property was taken away by private treaty or by compulsory acquisi tion.
Another instance where interest could be awarded was under Section 61(2) of the Sale of Goods Act which provided for the award of interest to the seller or the buyer, as the case may be, under the circumstances specified in that section.
XXX XXX XXX 18.
While this is the position in cases which arose prior to the coming into force of the , in cases arising after the coming into force of the Act, the position now is that though the award of pendente lite interest is still governed by the same principles, the award of interest prior to the suit is now governed by the .
Under the , an arbitrator is by defini tion, a court and may now award interest.
in all the cases to which the applies.
" Sri Milon Banerjee, appearing for the Union of India, however, contends that the above principle is applicable only in cases where an arbitrator is appointed on interven tion of count as contemplated in Chapter IV of the Arbitra tion Act.
It is only in these cases that the arbitration proceedings can be considered to be a continuation of the court proceedings, empowering the arbitrator to do all that the court could do.
For, even in cases arising after the , the award of pendente lite interest can only be in terms of the provisions of section 34 of the Code of Civil Procedure and this cannot be invoked in cases of arbitration except in cases falling under Chapter IV merely on the ground that the appointment of the arbitrator is made under section 8, 12 or 20 of the said Act.
Counsel submits that Chinnappa Reddy, J. has pointed out in Abhadhuta Jena 's case [ [1988] 1 SCC at pp.
434 5] that in all cases whether arising before or after the , the claimants would not be entitled to interest from the date of reference to the date of the award for the simple reason that "the arbitrator is not a court nor were the references to arbi tration made in the course of suits".
It is this principle that has been reiterated in Food Corporation of India vs Surendra, Devendra & Mohendra Transport Co., (at pp.
554 et seq) and Gujarat Water Supply & Sewage Board vs Unique Erectors, ; There is force in the contention urged by Sri Banerjee.
There are 654 passages in Abhaduta Jena which indicate that the grant of pendente lite interest would be justified only when the reference to arbitration is made in the course of a suit: vide, the last sentence on p. 428, the first sentence on p. 429, the emphasis added in the extracts from earlier judg ments on pp.
430 1, and the summings up at p. 433 and 435.
The principle indicated in these passages apparently is that since a Court has, under section 34, of the C.P.C., power to grant pendente lite interest in a suit, an arbitrator to whom a reference to arbitration is made in the course of the suit would be clothed with all the powers of the Court including the one to grant such interest.
This is how this Court has also looked at the matter in a subsequent case.
In State of Rajasthan vs Sharrna & Co., ; , the parties had entered into a compromise in certain proceedings in Court agreeing that their disputes would be settled by arbitration but the arbitrators were appointed subsequently by the parties themselves and a reference made to them.
A Bench of this Court (of which one of us was a member) re viewed the earlier cases and explained the decision in Abhaduta Jena thus: "12.
This was awarding interest pendente lite.
This is in violation of the principles enunciated by this Court in Executive Engineer (Irrigation), Balimela vs Abhaduta Jena.
Our attention was drawn by Shri Soli J. Sorabjee, counsel for the respondent, to the decision of this Court in Food Corporation of India vs M/s Surendra, Devendra & Mohendra Transport Co., where at pages 555 556 of the report, the Court referred to certain decisions cited by Chinnappa Reddy, J. in Executive Engineer (Irrigation) in which he had expressed the view that those were cases in which the refer ences to arbitration were made by the court or in court proceedings of the disputes in the suit.
In that context it was held in those cases that the arbitrator had power to grant interest.
It was contended before us that this was a similar case.
There was a court proceeding in this case regarding the appointment of the arbitrator and, as such, on the same analogy it should be treated that the arbitrator had power to grant interest.
We are unable to accept this.
What Mr. Justice O. Chinnappa Reddy meant to say by the latter judgment in Executive Engineer (Irrigation) case, referred to in Food Corporation of India was where the disputes regarding the merit of the case were pending in the court and such disputes instead of being decided by the 655 court, adjudication had been referred to an arbitrator by the court, in such cases the arbitrators deciding in the place of court, would have the same powers to grant interest pendente lite as the courts have under Section 34 of the Civil Procedure Code.
Instant case is not such a proceeding.
" This principle would logically be applicable, as rightly contended by Shri Banerjee, only to cases where the refer ence to arbitration arises in the course of a suit.
Dr. Ghosh, however, submits that, except for Nachiappa vs Subramaniam, ; and Hukumchand Mills; , , the other cases referred to by Chinnappa Reddy, J. were all only cases in which an arbitrator had been appointed under section 8 or 20 of the Arbitration Act.
The principle enunciated, he submits, was actually a little wider than that contended for by Shri Banerjee.
It is this that where an arbitrator is appointed by the Court and a reference is made to him, he has all the powers of the Court.
He invites attention to the observations in Hukum chand Mills, case ; , reiterated (in the context of post award interest) in Union vs Bungo Furniture Co., ; at p. 329) that it is "an implied term of the reference that the arbitrator will decide the dispute according to law and would give such relief with regard to pendente lite interest as a Court could give if it decided the dispute".
He urges that Abhaduta Jena related to a batch of cases, arising out of references made prior to, and later than, the commencement of the , but by the parties themselves under the terms of the contract, without reference to court and so it was held that pendente lite interest could not be granted.
But that is not so in the present case.
He says that this decision was simply followed in State vs Construction India, ; , in the Food Corporation case and in State vs Sharma and Co., ; The Gujarat Water Supply case [1989] ISCC 532 was, he urges, also a similar case (see para 5) though in that case there appear to have been some proceedings in Court earlier.
In short, he virtually submits that Abhaduta Jena and Sharma 's case have unduly restricted the grant of pendente lite interest and require reconsideration and that pendente lite interest should be awarded in all cases where the intervention of Court is sought for the appointment of arbitrators, directly or indirectly, at any stage.
Generally speaking, it would only seem reasonable that the power to grant interest pendente lite should be treated as ancillary to the award of damages or compensation which, but for the delay in the 656 litigation (whether in Court or by way of arbitration), the claimant should have received much earlier.
However, though pendente lite interest has been made available in Court proceedings, its extension to arbitration law appears to have acquired some technical limitations resulting in denial of pendente lite interest in most cases of arbitration.
Even if we accept the contention of Dr. Ghosh, pendente lite interest cannot still be awarded by an arbitrator appointed by the parties under a private agreement for which there may be no justification in equity.
These anomalies have arisen because formerly an arbitrator could not be treated as a Court to which the Code of Civil Procedure applied and because now the , while including arbitra tion proceedings within its ambit, has, apart from a refer ence to section 34, omitted to provide specifically for pendente lite interest.
This has been clearly brought out by Chinnap pa Reddy, J. We have earlier referred to passages from Abhaduta Jena which outline the principle the learned Judge had in mind for permitting pendente lite interest by an arbitrator.
It is interesting, in fact, to notice that the present contentions of Dr. Ghosh (based on certain earlier decisions of this Court) appear to have been advanced by him in the Food Corporation case to support a wider contention that pendente lite interest should be awarded even in an arbitration by private agreement (as in that case) so long as the terms of the arbitration agreement did not exclude the jurisdiction of the arbitrator to enter tain such a claim.
But the Court did not accept the conten tion and followed Abhaduta Jena.
Abhaduta Jena has been followed in later cases also and its scope has been recently explained in Sharma 's case ; We may point out that in the latter case, a specific point was raised that since the Court had been concerned with the appointment of the arbitrator at some stage it should be treated as a reference to arbitration by court warranting the grant of pendente lite interest but this contention was negatived and the principle confined only to cases where a reference to arbitration is made in the course of suits.
The position was similar in the Gujarat Water Supply case ; but pendente lite interest was denied.
In view of Abhaduta Jena and the clarification specifically set out in para 13 of Shartna 's case, we are unable to accede to the contention of Dr. Ghosh, attractive as it is an equitable proposition.
The Division Bench of the High Court had no occasion to consider the above recent pronouncements of this Court.
Further, it is seen that, before the Division Bench, the Union took an objection that under clause 16(2) of the general conditions of contract, the contractors could claim no interest on the amounts that may be determined as 657 payable to them.
The Division Bench met this contention by relying on a circular issued by the Government of India making the claim for interest entertainable in arbitration "if notice had been issued in this behalf by the arbitrator".
There is, however, no finding and nothing on record brought to our notice to show that any specific notice, claiming interest, had been given as contemplated by the contract.
Having regard to all these considerations, we are unable to uphold the order of the Division Bench on this issue.
This takes us to the second point urged on behalf of the Union in regard to interest.
The contention is that the learned Single Judge had restricted it to the date of the award, and that this has become final as the contractors have preferred no appeal therefrom.
The grounds of appeal before us by the Union are confined only to the mistake in not taking into account the sum of Rs.6,76,540 and do not raise any question regarding post award interest.
It is, therefore, not open to Shri Banerjee to raise this question.
That apart, on merits also the contention raised that post award interest has been declined by the High Court is not correct.
The contention overlooks the course of pleadings between the parties.
The arbitrators had, in the annexure to the award, computed interest from 5.10.82 to 26.3.84 i.e. from the date of the termination of the contract till the date of the award and in the award, had granted interest on the amount awarded from the date of award till the date of decree or payment.
A point had been raised before the High Court in the memo of objections that the arbitrators had erred in awarding interest in the manner mentioned in the award but the objection urged by the Union before the learned Single Judge was a different one viz. that the arbitrators ought not to have granted interest for the period prior to the date of reference without any agreement or right in law to claim such interest.
It is this conten tion that was accepted by the learned Single Judge who deleted the interest award prior to the date of the refer ence and held that the arbitrators had jurisdiction to award interest from the date of the reference till the date of the award.
This did not affect the arbitrator 's direction in the main part of the award, that interest will accrue on the amount of the award (if the said amount was not paid within 60 days) till the date of payment or decree, whichever is earlier.
This part of the award was not questioned.
In fact, the decree drawn up in consequence of the order of the learned Single Judge, specifically directs (a) interest on the awarded amount from 6.5.83 (date of reference) to 26.3.84 (date of the award ); (b) "thereafter, interest on the amount ' awarded at 11% from 27.3.84 to 11.12.84" (date of the decree); and (c) interest thereafter at 658 9% per annum.
The objection of the Union in the LPA on the question of interest was only that the arbitrators had erred in awarding interest from 6.5.1983 to 26.3.1984.
It is this contention that was accepted by the Division Bench.
The High Court had, therefore, not decided that the contractors were not entitled to interest beyond the date of the award.
This contention of the Union, therefore, fails and is rejected.
In the result C.A. 1280/88 is allowed and C.A. 128 1/88 is allowed in part.
There will be no order as to costs.
R.N.J. Appeals allowed.
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Certain disputes having arisen between the Union of India and the Contractors in respect of the Contract awarded to the letter for the execution of certain civil works pertaining to the Metro Railway Project in Calcutta, the same were referred for decision to two Arbitrators appointed by the High Court of Calcutta.
The Contractors filed their itemised claim before the Arbitrators for a total sum of Rs.2,05,67,554.
The Arbitrators awarded a sum of Rs.57.47,198 to the contractors in full and final settlement of all their claims which included a sum of Rs.6.76,540 as interest vide item (1).
They directed that the award shall be complied with within sixty days of its publication fail ing which simple interest @ 11 percent per annum shall accrue thereon (excluding interest amount of Rs.6.76,540) till the date of payment or decree upon award which ever is earlier.
On an application being made to the High Court for making the Award a rule of the Court.
the learned single judge confirmed the award except that the principal sum awarded was reduced by Rs.5,20,000 with the direction that the amount so awarded will carry interest @ 11% per annum from the date of reference till the date of the award.
639 The Union of India preferred an appeal to the Division Bench, which reduced the amount awarded under item (c)(xii) from Rs.23.96.000 to Rs.2.39,000.
Thus the principal amount to be awarded to the contractors was finally put at Rs.30.70,798 and this amount was directed to carry interest @ 11% per annum from the date of the reference till the date of the award.
Aggrieved by the order of the Division Bench reducing the amount awarded under item (c)(xii) from Rs.23,96,000 to 239,600 the contractors preferred an appeal to this Court.
The Union of Indian on the other hand preferred a cross appeal praying (i) that interest should not be payable on the amount of Rs.30,70,798 fixed by the High Court but only on Rs.23,94,258 left after deducting therefrom the amount of Rs.6,76,540 awarded by the Arbitrators in respect of item No. (L) and (ii) that.
though the arbitrators had also awarded interest on the principal sum till the date of payment or decree on award in case payment was not done within sixty days of the publication of the award.
the contractors should be held entitled to interest upto the date of the award only and not beyond it because both the learned single judge and the Division Bench have held so and the contractors have preferred no appeal therefrom.
Taking up the contractor 's appeal first, this Court came to the conclusion that the Division Bench had exceeded its jurisdiction in interfering with this part of the award and restored the amount awarded by the arbitrators under item (c)(xii).
Dealing with the appeal of the Union of India this Court ruled that there was really no dispute left about Union of India 's first contention as to what was the correct amount on which interest was payable to the contractors after its findings in the contractor 's appeal and placed the figure at Rs.45,50,658.
Dealing with the second contention as to what was the period with reference to which interest would be payable to the contractors on the above amount it was noticed that the arbitrators had allowed interest from 5.10.82 (date of termination of contract) to 26.3.84 (date of award) under item (L) and had also allowed interest from the date of the award till the date of payment or decree whichever is earli er.
The learned single judge had deleted the interest for the period 5.10.82 to 6.5.83 (date of reference) but held that the arbitrators had jurisdiction to award interest from the date of the reference till the date of award and also post award interest.
As the objection of the Union of India 640 before the Division Bench in the LPA on the question of interest was only that the arbitrators had erred in awarding interest from 6.5.1983 to 26.3.1984 the High Court had not decided that the contractors were not entitled to interest beyond the date of award and therefore this contention of the Union of India failed and was rejected.
The Court.
HELD: The grant of pendente lite interest would be justified only when reference to arbitration is made in the course of a suit.
The principle indicated is that since a court has.
under section 34 of power to grant pendente lite interest in a suit.
an arbitra tor to Whom a reference to arbitration is made in the course of the suit would be clothed with all the powers of the court including one to grant such interest.
Generally speak ing.
it would only seem reasonable that the power to grant interest pendente lite should be treated as ancillary to the award of damages or compensation which.
but for the delay in the litigation (Whether in court or by way of arbitration).
the claimant should have received much earlier.
However.
though pendente interest has been made available in court proceedings.
its extension to arbitration law appears to have acquired some technical limitations resulting in denial of pendente lite interest in most arbitration cases.
Pendent lite interest cannot still be awarded by an Arbitrator appointed by the parties under a private agreement for which there may be no justification in equity.
Anomalies have arisen because formerly an Arbitrator could not be treated as a court to which the code of civil procedure applied and because now the Interest act, 1978, while including arbitration proceed ings within its ambit, has, apart from a reference to section 34 omitted to provide specifically for pendente lite interest.
This has been clearly brought out by Chinnappa Reddy, J., in Abhaduta Jena which outline the principle the learned judge had in mind for permitting pendente lite interest by arbi trator.
Abhaduta Jena has been followed in later cases also and its scope has been recently explained in Sharma 's Case , and the Gujarat Water Supply case where pendente lite interest was denied.
[655H; 656A F] Gujarat Water Supply & Sewage Board vs Unique Erectors, ; ; Firm Madan Lal Roshan Lal Mahajan vs Hukumchand Mills Ltd., lndore; , ; Allen Berry & Co. Pvt. Ltd vs Union of India, ; N. Chellappan vs Secretary, Kerala State Electricity Board & Anr., ; ; Hindustan Tea Co. vs
K. Shashi Kant Co. & Anr., ; Hindustan Steel Works Construction Ltd. vs C. Rajasekhar Rao, [1987] 4 S.C.C. 93; Sudarsan Trading Co. vs Government off Kerala & Anr. ; M/s. Alppi Prashad & Sons, Ltd. vs 641 Union of India; , ; Bhagat Trading Co. vs Union of India, AIR 1984 Delhi 358; Union of India vs Bakshi Ram, [1957] LIX P.L.R. 572; Executive Engineer vs Abhaduta Jena, [1988] 1 S.C.C. 418; Nachiappa vs Subramaniam, ; Satinder vs Amrao, ; ; Union vs Bungo Steel Furniture P. Ltd., ; ; Ashok Construction Co. Ltd. vs Union, ; State vs Saith & Skelton P. Ltd., ; ; Food Corpora tion of India vs Surendra, Devendra & Mohendra Tansport Co., and State of Rajasthan vs Sharma & Co., ; , referred to.
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