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id_1048	0	Reserved on 25th August 2022 and pronounced on 26th August 2022. The petition is presented through Ms. Anusuya Salwan, Mr. Bankim Garg, Mr. Shakaib Khan, Mr. Rachit Wadhwa and Ms. Nikita Salwan, Advocates, versus the respondents. The respondents are represented through Mr. Chetan Sharma, Additional Solicitor General with Mr. Rupesh Kumar, Ms. Pankhuri Shrivastava, Mr. Amit Gupta, Mr. Saurabh Tripathi, Mr. Rishav Dubey, Mr. Sahaj Garg and Ms. Neelam Sharma, Advocates for the Respondent; Mr. Rajesh Gogna, Chief General Secretary with Mr. Devvrat Yadav, Mr. Vidit Jain, Mr. Digvijay and Ms. Priya Singh, Advocates for the Union of India., The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner assailing the Class XII Board results declared by the Central Board of Secondary Education on 22nd July 2022, praying inter alia to issue a writ of mandamus directing the respondents to declare the result of the petitioner in terms of Circular No. ACAD‑51/21 dated 5 July 2021, factoring in the Special Scheme of Assessment which mandates equal weightage of the theory papers for Term I and Term II while computing the result; and to issue a writ of certiorari quashing Circular No. CBSE/CE/PPS/2022 dated 23 July 2022 which stipulates 30 percent weightage to Term I and 70 percent weightage to Term II for computing the results., The petitioner is an 18‑year‑old student who was studying at Delhi Public School, Vasant Kunj and appeared in the Class XII CBSE Board Examination for the academic session 2021‑2022. Respondent No. 1 is the Central Board of Secondary Education represented through its Chairperson and Respondent No. 2 is the Union of India represented through its Secretary. On 5 July 2021, the CBSE issued Circular No. Acad‑51/2021 introducing a Special Scheme of Assessment for Board Examinations of Classes X and XII for the session 2021‑22, announcing that the examinations would be conducted in two terms, Term I and Term II, with equal weightage of 50 percent each for theory marks. The scheme detailed four scenarios and the corresponding mode and weightage of the term examinations. It further provided that if the pandemic situation improved and students could attend schools or centres, the Board would conduct both terms at schools/centres and distribute theory marks equally between the two exams. On 14 October 2021, the CBSE issued a circular (No. CBSE/CE/EXAM‑2021‑22) notifying that all examinations, both Term I and Term II, would be conducted in offline mode. Term I examinations for Class XII were held in schools/centres in a phased manner from 16 November 2021 to 30 December 2021. On 19 March 2022, the result of Term I was declared and the CBSE issued Circular No. CBSE/CE/2021 stating that the weightage of Term I and Term II would be decided at the time of declaration of the Term II result and the final performance would be calculated accordingly. On 5 April 2022, the CBSE, through its verified Twitter handle @cbseindia, declared a notification purported to be issued by the Board as fake; the notification described a weightage of 30 percent from Term I and 70 percent from Term II for the final result. Term II examinations for Class XII were held in schools/centres in a phased manner from 26 April 2022 to 15 June 2022. On 22 July 2022, the CBSE declared the results for Class XII Board Examinations, specifying that the competent committee of the Board had fixed a weightage of 30 percent for Term I and 70 percent for Term II in theory for calculation of the result. On 23 July 2022, another letter was issued by the CBSE to the principals of affiliated schools reiterating the 30 percent‑70 percent weightage while computing the result., The petitioner applied for admission to engineering colleges and appeared in the Birla Institute of Technology and Science Admission Test 2022 (BITSAT 2022) for admission to the Birla Institute of Technology and Science, Pilani. The petitioner qualified the BITSAT 2022 entrance examination but, due to the changed weightage formula for calculation of 12th Board marks, failed to meet the criterion of a minimum of 75 percent marks in the three subjects Physics, Chemistry and Mathematics (PCM). Consequently, the petitioner is unable to secure admission to BITS Pilani., Ms. Anusuya Salwan, learned counsel appearing on behalf of the petitioner, submitted that the petitioner, Devasri Bali, was a student of Delhi Public School, Vasant Kunj, New Delhi and had appeared for the Class XII Board examinations conducted by the Central Board of Secondary Education in the academic session 2021‑22. The results were declared on 22 July 2022 by the Board in discordance with the Special Scheme of Assessment dated 5 July 2021. The Scheme of Assessment was notified prior to the Term I and Term II examinations and specified contingencies regarding conduct of examinations due to the pandemic and the respective weightage of marks. The circular highlighted that the evaluation scheme was based on extensive deliberations and consultations with schools and stakeholders across the country. Clause 6 of the circular provided that if the pandemic situation improved and students could attend schools or centres, the Board would conduct both terms at schools/centres and distribute theory marks equally between the two exams. Since both Term I and Term II examinations were held at schools/centres, equal weightage ought to have been given to both terms in compliance with the Special Scheme of Assessment., The petitioner alleges that the arbitrary and unlawful change in the scheme of assessment and the computation of result has prevented her from meeting the minimum percentage criterion of seventy‑five percent in PCM, despite having cleared the qualifying BITSAT 2022 entrance examination. She contends that the change violates her legitimate expectation that the evaluation would be conducted in accordance with the circular dated 5 July 2021, thereby infringing rights under Articles 14 and 21 of the Constitution of India, and that the Board is estopped from changing its stance after the examinations were conducted under the original scheme. The petitioner relies on precedents such as Maharashtra State Road Transport Corporation and Others v. Rajendra Bhimrao Mandve and Others, Madan Mohan Sharma and Others v. State of Rajasthan and Others, and K. Manjusree v. State of Andhra Pradesh and Others. Newspaper clippings from July 2022 show that heads of schools and principals were shocked at the arbitrary and retrospective change in weightage. The circular dated 19 March 2022, which stated that the weightage of Term I and Term II marks would be decided at the time of result, is described as arbitrary because deciding weightage at the time of result is akin to fixing marks for an examination after the examination has concluded. The 19 March 2022 circular does not annul or expressly supersede the earlier circular of 5 July 2021 which promulgated the 50‑percent‑50‑percent weightage formula. Moreover, the Board’s advisory on 5 April 2022, issued via its Twitter handle, declared a circular stipulating reduced weightage of Term I to 30 percent as fake, thereby reinforcing the legitimate expectation of the original scheme. The Board later formed a Committee of Experts which, on 21 May 2022, recommended a weightage of 30 percent for Term I (theory) and 70 percent for Term II (theory), keeping practical marks equally weighted. The Board accepted these recommendations and declared the Class XII result on 22 July 2022 based on the new weightage. The petitioner argues that the improvement examination held on 23 August 2022 does not serve her purpose because results would be declared in September 2022, by which time college admissions would be closed. She further submits that while many students across India have been adversely impacted, the argument that granting relief to her would have a catastrophic effect on lakhs of students is exaggerated. Admission to undergraduate courses in medicine, engineering, law and other streams is generally based on competitive entrance examinations such as NEET, JEE, CLAT and CUET, and the 75 percent board mark requirement does not apply in most cases. The petitioner seeks a judgment in personam allowing her relief without adversely affecting other students. She also points out that both term examinations covered equal portions of the syllabus, but Term I students had nine months of preparation while Term II students had only three months and were simultaneously preparing for competitive examinations, making the increased weightage of Term II arbitrary and unfair. On compassionate and equitable grounds, the petitioner requests that the Board be directed to prepare her result using the original 50‑percent‑50‑percent weightage and upload the amended mark sheet on DigiLocker to enable her admission to BITS Pilani., Per Contra, learned Additional Solicitor General appearing on behalf of the respondents vehemently opposed the prayers made by the petitioner and submitted that the Central Board of Secondary Education is an autonomous organisation under the Ministry of Education, Government of India, tasked with supervision and regulation of education and conducting examinations across affiliated schools, with more than 26,000 schools in India and affiliations in over 25 countries. In view of the impact of the unprecedented COVID‑19 pandemic on the credibility of the Board’s assessment, stakeholders deliberated on alternative ways to conduct the examinations for the academic session 2021‑22. Accordingly, the Board issued a special scheme through Circular No. Acad‑51 dated 5 July 2021, deciding to conduct examinations in two terms, each covering 50 percent of the syllabus. Clause 6 of the circular provided that if the pandemic situation improved, the Board would conduct both terms at schools/centres and distribute theory marks equally. Since the pandemic situation eased, the Board successfully conducted both terms. After the Term I examination, principals of many schools reported difficulties with the objective‑type assessment and suggested that the Term I weightage be reduced. The Board issued a circular dated 19 March 2022 stating that marks secured in Term I would be communicated and that the weightage of Term I and Term II would be decided at the time of declaration of the Term II result, as reproduced in clauses 6 and 7 of that circular. The respondents argue that this provision indicates no legitimate expectation or estoppel arises. Even if a legitimate expectation were claimed, it does not give rise to a fundamental right, as the Supreme Court has upheld the Board’s autonomy in assessment matters. The respondents note that the clarification regarding a fake circular on social media pertained only to the issuance of such a circular and not its contents. A Committee of Experts convened on 21 May 2022 recommended a weightage of 30 percent for Term I (theory) and 70 percent for Term II (theory), with equal weightage for practical marks. The Board accepted these recommendations and, on that basis, declared the Class XII result on 22 July 2022. The respondents contend that there is no arbitrariness or discrimination in this process., The respondents further submit that the petition relies on a judgment in Sukriti which is inapplicable, as that case involved a different assessment policy for private students. A harmonious reading of the three circulars dated 5 July 2021, 19 March 2022 and 22 July 2022 demonstrates that the revised weightage formula is valid and reasonable. Policy cannot be cast in stone in a dynamic situation, and the Board modified the weightage in the interest of students based on representations received from principals across the country. An opportunity was provided to the petitioner to appear in the improvement examination held on 23 August 2022, which she did not avail. The Board, being a nationally and internationally recognised assessment authority, declared results for 21,09,208 students in Class X and 14,44,341 students in Class XII, and media reports indicate general satisfaction with the results. No other student has approached the Court for similar relief, indicating that the Board’s decision is correct and in the larger interest of students. Interfering with the results would constitute an extraordinary and unprecedented ordeal leading to a catastrophic effect on lakhs of students, and equity demands that the larger public interest be considered. Accordingly, the respondents submit that the instant petition is devoid of merit and should be dismissed., The Supreme Court of India heard learned counsels for both parties, perused the record and noted that the petitioner is aggrieved by the modification of the earlier announced 50‑percent‑50‑percent weightage formula to a 30‑percent‑70‑percent weightage for theory marks in Term I and Term II for the 12th CBSE Board examinations. The petitioner claims that under the original formula she would have met the 75 percent requirement in Physics, Chemistry and Mathematics, whereas under the new formula she fell short, thereby losing admission to BITS Pilani. The principal question for consideration is whether a legitimate expectation arose from the circulars issued by the Board and, if so, what remedy can be granted for breach of such expectation. The doctrine of legitimate expectation, originating in European law and articulated by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, may arise when a public authority creates an expectation of a benefit that is later withdrawn without rational justification. The Supreme Court has held that the doctrine is rooted in fairness and equity, and that a public body must not retract from a prima facie legitimate expectation absent a compelling public interest. Recent judgments, including State of Bihar and Others v. Shyama Nandan Mishra (2022) and State of Jharkhand v. Brahmputra Metallics Ltd. (2020), reaffirm that the doctrine is a facet of Article 14 of the Constitution and that abuse of power in retracting an expectation is impermissible. Since the circulars were issued by the Board as an autonomous organisation under the Ministry of Education in discharge of its public function, the doctrine of legitimate expectation is attracted. The Court must now examine the facts in light of this doctrine., The Court notes that on 5 July 2021 the Board issued a Special Scheme of Assessment for the academic session 2021‑22, dividing the session into two terms with approximately 50 percent of the syllabus in each term, rationalising the syllabus, and intending to conduct examinations at the end of each term. This marked a departure from previous practice by conducting the 2022 examinations in two terms, Term I and Term II. The petition seeks relief on compassionate and equitable grounds to have the result prepared using the original 50‑percent‑50‑percent weightage and to have the amended mark sheet uploaded on DigiLocker.
id_1048	1	Regarding the Assessment/Examination as per different situations, the relevant portion of the circular is extracted below: \6. Assessment / Examination as per different situations A. In case the situation of the pandemic improves and students are able to come to schools or centres for taking the exams. Board would conduct Term I and Term II examinations at schools/centres and the theory marks will be distributed equally between the two exams.\, The said scheme inter alia provided for Assessment/Examination as per different situations wherein four different scenarios were detailed and the consequent mode/manner and weightage of Term I and Term II examinations were notified. It was stated therein that in case the situation of the pandemic improved and students were able to come to schools or centres for taking the exams, then the Board would conduct Term I and Term II examinations at schools/centres and the theory marks will be distributed equally between the two exams for preparation of the results., On 14 October 2021, the Central Board of Secondary Education issued a circular bearing no. CBSE/CE/EXAM-2021-22 notifying that all examinations (Term I and Term II) will be conducted in an offline mode. Accordingly, the Term I examinations for Class XII Board were held in schools/centres from 16 November 2021 to 30 December 2021., The Central Board of Secondary Education on 19 March 2022 issued a circular bearing no. CBSE/CE/2021 regarding the performance of the students of Class XII in Term I exams. The circular inter alia stated that the weightage of Term I and Term II would be decided at the time of declaration of the Term II result and accordingly, the final performance would be calculated. The relevant portion of the circular is extracted hereunder: \(6) Being Term I only, no Marks Sheet cum Passing Certificate is being issued now. Only one Mark Sheet cum Passing Certificate will be issued after the Term II examination to have parity with the previous results. This will comprise of only total marks of both the Terms as per weightage decided of Term I and Term II examinations. (7) The weightage of Term I and Term II will be decided at the time of declaration of the Term II result and accordingly, the final performance will be calculated.\, This was followed by another clarification issued on 5 April 2022 by the Central Board of Secondary Education from its official verified Twitter handle (CBSE HQ @cbseindia29) wherein it declared a notification, purported to be issued by the Board, as fake. The said notification, described as being fake, inter alia mentioned that the result would be calculated by taking 30 per cent from Term I exams and 70 per cent from Term II exams., Term II examinations for Class XII Board were held in schools/centres in a phased manner from 26 April 2022 to 15 June 2022. On 22 July 2022, the Central Board of Secondary Education declared the results for Class XII Board examinations. This was followed by a press release bearing Ref. No. CBSE/CE/RESULTS-XII/2022 titled \Declaration of Results of Class XII, 2022\, wherein it was specified that the competent committee of the Board had fixed 30 per cent weightage of Term I and 70 per cent weightage of Term II in theory for calculation of result., It is stated that a Committee of Experts was constituted to obtain the views on the weightage to be given for both the Terms I and II. The meeting of the Committee was convened on 21 May 2022 at the Central Board of Secondary Education headquarters, and after detailed deliberations, the majority of the members recommended that the weightage for Term I (theory) should be around 30 per cent and Term II (theory) 70 per cent respectively., As per the Central Board of Secondary Education, the meeting of the Result Committee was held on 21 July 2022 at 3:30 p.m., wherein after detailed deliberations, the recommendations made were accepted., Officer of the Central Board of Secondary Education was present during the hearings before the Supreme Court of India and assisted the Supreme Court of India. On the query made by the Supreme Court of India qua the approval of the minutes of the Result Committee meeting, which has been placed on record, the concerned officer responded that the same has been approved by the competent authority of the Board. Upon not finding any formal order by the competent authority enforcing the recommendation regarding the new weightage formula, the Supreme Court of India was constrained to summon the original file, which was furnished by the concerned officer present in the Court. However, it was disappointing to see that only two green coloured sheets containing the notes of the Controller of Examinations were present, and no such order made by the Chairperson or competent authority accepting, enforcing and notifying the recommendation regarding the new weightage formula was present in the file produced. Even the officer present was unable to satisfactorily answer the query of the Court in this regard., In view of the above, the Supreme Court of India has come to the conclusion that there is nothing on record to suggest that any such order has been passed by the Chairperson or competent authority accepting, enforcing and notifying the recommendation regarding the new weightage formula. Accordingly, merely on the basis of the recommendation of the Committee, the competent authority decided to prepare the final result for Class XII and Class X by giving the weightage to Term I at 30 per cent (for theory papers) and to Term II at 70 per cent (for theory papers). In a matter of hours, the result of lakhs of students was prepared and published the very next day, that is on 22 July 2022., The factum of the recommendation and its acceptance was kept a secret from the public and students at large, until the far end and on the very date the results were declared, it was disclosed to the students. This clearly shows the arbitrariness and lapse on the part of the Board to keep the students in the dark about the weightage formula adopted for preparation of final result. This tantamounts to changing the rules of the race after the race has ended and as such is outrageously arbitrary., Upon perusal of the record as produced by Respondent No.1, the Central Board of Secondary Education, it is evident that there are glaring lapses and a lackadaisical approach adopted by the Central Board of Secondary Education., All of this does not paint a glossy picture. This state of affairs at the Central Board of Secondary Education is nothing but worrisome. Manifest arbitrariness at such a large scale cannot be allowed to go on unfettered. By its conduct and representations in public by way of circulars, the Central Board of Secondary Education has violated the legitimate expectation of the students, including the petitioner., The Central Board of Secondary Education has a rich and glorious past. Since its humble beginning in 1929, the sapling has now grown into a gigantic banyan tree with a number of milestones, and its outreach not only in India but also across more than 25 countries worldwide. CBSE affiliated schools today include Kendriya Vidyalayas, Navodaya Vidyalayas, government schools, as well as private schools. These affiliated schools have produced outstanding luminaries in various fields, who have contributed significantly to the cause of nation building. The Board's dedication and efforts to undertake continuous and comprehensive reforms and innovations in education is commendable. Given such a bright history, the responsibility vested and the trust reposed in the Board is also magnified. Therefore, a greater degree of care and caution, as well as due diligence, is required on the part of the functionaries and office bearers to ensure that due process is not violated at the higher echelons while taking decisions that affect the lives of lakhs of students., The petitioner has not pressed the prayer for setting aside the revised scheme of weightage of Term I and Term II exams dated 23 July 2022. In the course of arguments, reliance has also been placed by the learned counsel for the petitioner on various judgments including Sukriti & Ors. v. National Testing Agency & Anr. (MANU/SCOR/67056/2022) to request that a judgment in personam be passed to allow the relief to the petitioner, thereby obliterating any probability of adverse impact on the marks of other students., In view of the aforesaid, I am inclined to partly allow the instant petition. Accordingly, the prayer for issuance of a writ of mandamus directing the respondents to declare the result of the petitioner in terms of Circular No. ACAD-51/21 dated 5 July 2021 providing for the special scheme of assessment which mandates equal weightage to theory papers for Term I and Term II while computing the result is allowed., The Central Board of Secondary Education is accordingly directed to calculate and declare the result of the petitioner as per the formula declared in the original scheme dated 5 July 2021. The revised result/mark sheet thus prepared shall be uploaded, as expeditiously as possible, preferably within two working days from the date of this judgment, on DigiLocker for ensuring access to the petitioner., As goes the popular saying, justice should not only be done, but also be seen to be done. In the academic session 2021-22, around 14 lakh students appeared for the Central Board of Secondary Education Class XII board examinations, whose results have been prepared and declared in accordance with the revised weightage formula. Therefore, in the greater interest of the students at large and to ensure that justice does not in itself become an agent of chaos, as well as in light of the fact that the petitioner has not pressed its prayer for setting aside the impugned circular of revised weightage formula, the Supreme Court of India is not interfering with the revised scheme of weightage of Term I and Term II exams dated 23 July 2022. It is also made clear that the petition has been partly allowed in the peculiar facts and circumstances of the case and shall not operate as a precedent., The instant petition is partly allowed in the aforesaid terms and accordingly stands disposed of., The judgment be uploaded on the website forthwith.
id_1049	0	Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria? Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions? Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the Socially and Educationally Backward Classes, Other Backward Classes, Scheduled Castes and Scheduled Tribes from the scope of Economically Weaker Sections reservation? Whether the cap of 50 percent referred to in earlier decisions of the Supreme Court of India can be considered to be a part of the basic structure of the Constitution? If so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?, 7 September 2022, New Delhi. Advocate on Record for the Union of India, Attorney General. Suggested issues on behalf of Respondent No. 1 in Transfer Petition (Civil) No. 2715 of 2019 (State of Karnataka & Another v. N. Puttana Njaiah & Another) by Sanjay Parikh, Senior Advocate. Whether the concept of reservation as envisaged in the Constitution and debated by the Constitution makers can include economic criteria alone? Whether the Constitution (103rd Amendment) Act, 2019 breaches the Equality Code which is a basic feature of the Constitution? Whether the Constitution (103rd Amendment) Act, 2019 removes the basis of Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217 to the extent that the latter prohibited reservation on a purely economic basis? Whether the Constitution (103rd Amendment) Act, 2019 breaches the constitutionally permissible 50 percent ceiling for reservations by permitting Economically Weaker Sections reservation up to 10 percent over and above the existing reservation? Whether the benefits provided under Article 46 of the Constitution can be given the colour of reservations under Articles 15 and 16? Whether the Constitution (103rd Amendment) Act, 2019 attempts to restore and further the historic hegemony to the exclusion of the Scheduled Castes, Scheduled Tribes and Other Backward Classes which the prevalent reservation sought to remedy, thereby violating the democratic principles which form the basic feature of the Constitution? Whether the imposition of Economically Weaker Sections reservation on private unaided institutions violates the basic structure of the Constitution? Whether reservation in favour of Economically Weaker Sections could have been done by the Constitution (103rd Amendment) Act, 2019 without there being any data showing their backwardness, inadequacy of representation, effect on overall efficiency of administration as held by this Supreme Court of India in M. Nagaraj & Others v. Union of India & Others, (2006) 8 SCC 212?, Additional questions of law submitted on behalf of Ms Meenakshi Arora, Senior Advocate. Whether the 103rd Amendment, in departing from the principle that affirmative action is a remedy tailored to addressing social and institutional disadvantage, violates the scheme of the Equality Code, and thereby the basic structure? Whether reservations made independent of the criteria of backwardness and the requirement of less representation are in conformity with the Equality Code? Whether reservations can extend to sections rather than to classes? Whether the exclusion of the backward classes from the criteria of Economically Weaker Sections is discriminatory and in violation of the Equality Code? Whether reservations made without any guardrails such as backwardness, inequality of representation, definable class, efficiency are in conformity with the Equality Code?, Meenakshi Arora. Writ Petition (Civil) No. 133 of 2019, Ryaga Krishnaiah and another versus Union of India and others. Writ Petition (Civil) No. 168 of 2019, G. Karunanidhi versus Union of India and others. Writ Petition (Civil) No. 343 of 2019, P. V. Ramakrishna versus Union of India and others. Kali Poongundran versus Union of India and others., The 103rd Constitutional Amendment Act violates the basic structure of the Constitution for the following reasons: a) Disqualifies more than 80 percent of the population for the posts and seats covered by the amendment. b) Economically Weaker Sections is a vertical reservation based on caste resulting in invidious discrimination. c) Militates against the requirement of backwardness, inadequacy of representation and efficiency of administration to provide reservation. d) Economically Weaker Sections favors only individuals and not any classes while excluding backward classes. e) Economically Weaker Sections empowers the very people whose preponderance necessitated provisions under Articles 15(3), 15(4) and 16(4)., Advocate for Petitioners. Whether the 103rd Constitution Amendment Act, 2019 violates the basic structure of the Constitution inasmuch as it permits reservation of seats in educational institutions and employment under the State on the basis of economic criteria alone? Whether reservations, being exceptions to the rule of equality under Article 14 and non‑discrimination under Article 15(1) and Article 16(1), are permissible only in favour of socially backward classes, Scheduled Castes and Scheduled Tribes? Whether granting reservations to forward castes (Economically Weaker Sections or otherwise) is impermissible in view of the law laid down by this Supreme Court of India in Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1? Whether granting reservations on the basis of economic criteria alone is permissible in view of the dictum laid down by this Supreme Court of India in the case of Indra Sawhney v. Union of India, 1992 Supp (2) SCC 217? Whether the material basis of the judgment is Articles 14, 15(1) and 16(1) and the same have not been removed? Can the impugned amendment breach the 50 percent cap on reservations placed by a series of judgments of this Supreme Court of India, when the amendment is not placed in the Ninth Schedule? Whether the Economically Weaker Sections category is a reasonable classification? Whether the impugned amendments fail the width of power and guided power tests laid down by this Supreme Court of India in M. Nagaraj v. Union of India (2006) 8 SCC 212? Whether the States have been given unguided power to classify the Economically Weaker Sections category? Does the 103rd Amendment protect and promote equality, including in public employment, as required by the basic structure? Or does it destroy it?, Issue 1: Does the 103rd Amendment meet the basic structure norm of equality that all provisions of the Constitution must respect, protect, fulfil and promote substantive equality, i.e., no provision in the Constitution or our law can result in or promote inequality? Very short explanation: A preference in public employment has been created for Scheduled Tribes, Scheduled Castes and socially and educationally backward classes over forward classes so that the relative inequality between these two groups may be reduced (see Article 38(2) which calls for elimination of inequality amongst groups). By giving the exact same preference to members of forward communities, the 103rd Amendment neutralizes and nullifies the constitutional scheme to reduce and eliminate the relative inequality between backward and forward classes. If the goal of the 103rd Amendment is to reduce inequalities within forward communities, such a preference must operate against the creamy layer of the same group, within the group concerned, not against other groups. The amendment does not attempt to reduce intra‑forward class inequality. In any case, the basic structure does not enter the issue of elimination of inequalities within groups; it is left to groups to strive for that., Issue 2: Does the class created by the 103rd Amendment correspond to the class identified in Article 46? Or is it a different class not intended to be protected under Article 46? Does Article 46 direct or permit the State to provide preference in appointment to public employment and admission to educational institutions to socially and educationally forward sections? Would Economically Weaker Sections eligibility based on caste or religion membership alone (subject to exclusion of a creamy layer as per the economic criteria) be violative of the basic structure norm of equality, including in public employment? Very short explanation: The Statement of Objects and Reasons of the 124th Amendment Act says, “With a view to fulfil the mandate of Article 46, it has been decided to amend the Constitution of India.” Article 46 directs the State to promote with special care the educational and economic interests of a very specific class of people: weaker sections of the people who are actively suffering from, and therefore need protection from social injustice and exploitation, especially the Scheduled Castes and Scheduled Tribes. On the other hand, the 103rd Amendment creates a preference in promotion and education for a very different class: socially and educationally forward sections subject to a creamy layer exception, i.e., those who do not have financial incapacity to compete with the persons who are economically more privileged., Issue 3: Does the reference in Article 15(6) and Article 16(6) that Economically Weaker Sections reservations shall be provided to citizens other than the classes mentioned in Article 15(4) and (5) and Article 16(4) mean (i) that all individuals who belong to Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes shall be excluded from Economically Weaker Sections reservation, or (ii) that the eligibility criteria for Economically Weaker Sections shall be other than the eligibility criteria set out in Article 15(4), Article 15(5) and Article 16(4)? Does Economically Weaker Sections make eligibility for vertical reservations a basis for exclusion from Economically Weaker Sections but not eligibility for horizontal reservations? Does this selective exclusion of only those eligible for Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes reservations violate the basic structure principle of equality? Is such selective exclusion arbitrary, discriminatory against Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes, and violative of the essence of equality that pervades the basic structure? Is an opt‑out from the Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes categories possible for those who meet the criteria for economic weakness? If not, is it a denial to them of the basic structure norm of equal citizenship free of social identities imposed by the State? Very short explanation: Does the 103rd Amendment make Other Backward Classes, Scheduled Castes, Scheduled Tribes an overarching personal social identity that is always attached to citizens born into communities that are included by the State in these categories? Or are these categories operative only in the context of claiming and obtaining benefits available to Other Backward Classes, Scheduled Castes, Scheduled Tribes? If the latter, outside that context of claiming benefits, do individuals remain Indian citizens free of these identities? Is the classification into those eligible for reservations and others arbitrary and violative of the basic structure?, Issue 4: Does the classification in the 103rd Amendment into (i) those fulfilling the prescribed financial criteria and belonging to classes not eligible for reservation under Article 15(4), Article 15(5) and Article 16(4), and (ii) others, meet established constitutional criteria for reasonable classification? What constitutional basic structure objectives can the instrument of reservations be used for?, Issue 5: Can reservations be used for purposes other than promoting social equality and securing representative democratic government? Can reservations, which provide preference to groups that are socially discriminated against and are unrepresented democratically, be used to selectively promote competitiveness of members of forward social communities? Very short explanation: The purpose of reservation has always been presented by privileged communities as a limited‑duration measure for the social and educational uplift of backward social groups. Since the Constituent Assembly and the long history of reservations starting in the 19th century, it has been viewed by excluded communities as a permanent safeguard for representative government to counter oligarchy and monarchy. Discriminatory preference in public employment, education and membership of legislative and local self‑government institutions through reservations therefore aims to ensure representation of classes of citizens who are not adequately represented in order not only to promote equality in a highly stratified and unequal society but also to secure democratic government which is representative of all sections of the people, and thereby to prevent India from being ruled by an oligarchy. What is the essential character of the 103rd Amendment? Is it in reality social reservations for non‑creamy‑layer forward communities which violates the basic structure? Or reservations for the weaker sections?, Issue 6: Can social criteria such as caste or religion be mixed into economic reservations? To be a reservation for Economically Weaker Sections as it claims to be, should Economically Weaker Sections be provided to all those who meet economic criteria irrespective of caste and creed? Should the eligibility criteria for Economically Weaker Sections (not financially weaker sections) be economic (multidimensional such as poverty) rather than financial? Very short explanation: Eligibility for Scheduled Castes, Scheduled Tribes, Socially and Educationally Backward Classes reservations is open to all social identities. All social communities will be duly considered and included in these categories if they meet specific, multidimensional indicia of social and educational exclusion. Indeed, there are several self‑styled forward castes who are included in Other Backward Classes because they have been found to meet such criteria. The 103rd Amendment, on the other hand, is provided only to forward social communities excluding a creamy layer amongst them based on financial criteria. Is then the 103rd Amendment in reality the first caste/social identity based reservation in India? Is this violative of the basic structure of equality?, Suggested additional issues proposed by Dr. M. P. Raju, Advocate, arguing counsel on behalf of the petitioners. Whether exclusion of classes mentioned in clauses 4 and 5 for the benefit under the 103rd Constitutional Amendment Act discriminates against economically weaker sections of those classes as the existing reservation in favour of those classes is not up to the percentage of their population in the country, more particularly for the Other Backward Classes which have more than 50 percent of the population but are getting only 27 percent of reservation? Whether the 103rd Amendment does not introduce a classification based on caste and race ex facie and, at least in direct and inevitable effect, discriminates between on the one side Scheduled Castes, Scheduled Tribes and Other Backward Classes (the classes mentioned in clauses (4) and (5) of Article 15 and in clause (4) of Article 16), and on the other side the sections of citizens other than these, though restricting the reservation further to economically weaker sections of those sections, which classification runs counter to the constitutional ideal of a caste‑less society, nation and republic and thus destroys the basic structure of the Constitution including secularism? Whether the 103rd Amendment is not destructive of the basic constitutional structure of diversity, pluralism, composite culture and democracy by introducing reservations and special provisions for sections of Indian society who are already adequately represented and already advanced socially and educationally even if such reservations and special provisions are limited to those of the said sections who are below the economic criteria to be fixed by the State? Whether the 103rd Amendment is not destructive of the constitutional value of dignity of the individual with regard to the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes communities and also violative of their inalienable and inherent right to life, including the one under Article 21, by keeping them untouchable to the 10 percent of the seats and posts solely because they belong to these categories, which in addition denies them both liberty and equality of status and opportunity? Whether the 103rd Amendment does not create a new kind of group right in the Constitution of India in favour of the sections of citizens other than the classes mentioned in clauses (4) and (5) of Article 15 and in clause (4) of Article 16, which is against the constitutional morality having the foundation of promoting fraternity, assuring the dignity of the individual and the unity and integrity of the nation? Whether the 103rd Constitutional Amendment Act violates the basic structure of the Constitution for the following reasons: a) Disqualifies more than 80 percent of the population for the posts and seats covered by the amendment. b) Economically Weaker Sections is a vertical reservation based on caste resulting in invidious discrimination. c) Militates against the requirement of backwardness, inadequacy of representation and efficiency of administration to provide reservation. d) Economically Weaker Sections favors only individuals and not any classes while excluding backward classes. e) Economically Weaker Sections empowers the very people whose preponderance necessitated provisions under Articles 15(3), 15(4) and 16(4)., Additional issue to be added: Whether the 103rd Amendment is absolutely in accordance with the judgments of this Supreme Court of India from 1951 onwards and in view of the ground realities, coupled with constitutional provisions especially Articles 14, 19 and 21? For respondent No. 2 (Economically Weaker Sections), in Writ Petition (Civil) No. 55/2019, Lawyers Chambers, Supreme Court of India, New Delhi 110001. Email: bijuvkaor@gmail.com. Mobile: 9650939333, 9868234336. VK Biju.
id_105	0	Criminal Appeal No. 2136 of 2010 Jagtar Singh Appellant Versus State of Punjab Respondent Rajesh Bindal, J. The appellant has challenged his conviction under the Prevention of Corruption Act, 1988. He was convicted by the Trial Court vide judgment dated 5 August 2005. His conviction was upheld by the High Court of Punjab and Haryana vide judgment dated 2 March 2010. The facts, as are evident from the paper book, are that a demand of Rs 500 was made as illegal gratification and the appellant accepted a sum of Rs 300 for supplying a copy of the death certificate of Maghar Singh (deceased)., In the complaint, it was alleged that for getting the death certificate of Maghar Singh son of Hari Singh, who expired on 6 March 2003, Ranjit Singh, his son, requested his cousin Jit Singh to collect the same. On 17 October 2003, Jit Singh (complainant) met the appellant in connection with supply of death certificate, who demanded Rs 500 as illegal gratification. Final settlement was for payment of Rs 300. As Ajit Singh was reluctant to pay the illegal gratification, he contacted Chamkaur Singh, ex‑Member Panchayat and on his suggestion went to the Office of Deputy Superintendent of Police, Vigilance, Faridkot and got his statement recorded, on the basis of which FIR was registered. The complainant handed over three currency notes of Rs 100 each to the Deputy Superintendent of Police, Vigilance, who after coating the same with phenolphthalein powder recorded their numbers in the memo and handed over the same again to Jit Singh. Chamkaur Singh was made the shadow witness. It was alleged that the appellant was arrested red‑handed while accepting the illegal gratification., During the course of trial, Jit Singh (complainant, PW‑1) and Chamkaur Singh (PW‑2) did not support the prosecution version and were declared hostile. Usha Kumari, a computer operator in the office of the Civil Surgeon (PW‑3) deposed that the appellant was working in the office as a cleaner but could be deputed for other duties in emergencies. The death certificate bearing number 1241787 pertaining to late Maghar Singh was prepared in the handwriting of Class IV employee Basant Singh and was signed by the Additional District Registrar, Birth and Deaths, Faridkot. She also stated that sometimes the certificates are dispatched to the applicants and sometimes they are given by hand. The death certificate in question was prepared on 17 October 2003. The appellant was deputed to prepare death certificates on 20 October 2003, meaning the death certificate had been prepared prior to the date on which the appellant was assigned the duty. He was otherwise not responsible for that job as he was merely working as a cleaner in the office., High Court Kirpal Singh (PW‑4), High Court Parsan Singh (PW‑6) and C. Surinderjit Singh (PW‑7) were the formal witnesses whereas Harbans Kaur, Clerk of the Civil Surgeon, Faridkot (PW‑5) proved certain official record and sanction of prosecution in the case of the appellant. Gurjinder Singh (PW‑8), District Social Security Officer, Faridkot, stated that he recovered Rs 300 from the appellant. These were the same currency notes which were coated with phenolphthalein powder. In his statement recorded under Section 313 of the Criminal Procedure Code, the appellant submitted that he has been falsely implicated in the case., The argument raised by the learned counsel for the appellant, relying upon the Constitution Bench judgment of this Court in Neeraj Dutta v. State (Government of National Capital Territory of Delhi) (2022) SCC Online SC 1724, is that the demand and recovery both must be proved to sustain conviction under the Act. In the case in hand, at most it can be said that recovery has been proved though that is also seriously doubtful. There is no evidence of demand of illegal gratification. He further submitted that the appellant was merely working as a cleaner in the office and had no authority either to prepare or deliver the death certificates. Admittedly, he was assigned the duty to prepare the death certificates on 20 October 2003 and in the case in hand the death certificate had been prepared on 17 October 2003., On the other hand, learned counsel for the State submitted that the fact that the phenolphthalein coated currency notes with the same serial numbers were recovered from the appellant in the presence of independent witnesses allows an inference that there was a demand and that is why he accepted the illegal gratification; hence, the conviction of the appellant deserves to be upheld., The court heard learned counsel for the parties and perused the material on record., Paragraph 74 of the Constitution Bench judgment summarises the law: (a) Proof of demand and acceptance of illegal gratification by a public servant is a sine qua non to establish guilt under Sections 7 and 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988. (b) The prosecution must first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact, either by direct oral or documentary evidence, or by circumstantial evidence in the absence of direct evidence. (c) To prove the fact, the following aspects must be borne in mind: (i) If there is an offer to pay by the bribe giver without any demand from the public servant and the public servant simply accepts the offer, it is a case of acceptance under Section 7; a prior demand is not required. (ii) If the public servant makes a demand and the bribe giver accepts and tenders the demanded gratification which is received by the public servant, it is a case of obtainment under Section 13(1)(d)(i) and (ii). (iii) In both cases, the offer by the bribe giver and the demand by the public servant must be proved by the prosecution as a fact in issue. Mere acceptance or receipt of an illegal gratification without more would not make it an offence under Section 7 or Section 13(1)(d). (d) The presumption of fact regarding demand and acceptance or obtainment may be drawn by the court only when foundational facts have been proved by relevant oral and documentary evidence; it is subject to rebuttal by the accused. (e) If the complainant turns hostile, dies, or is unavailable, demand of illegal gratification can be proved by evidence of any other witness or by circumstantial evidence; the trial does not abate nor result in acquittal. (f) On proof of the facts in issue, Section 20 mandates the court to raise a presumption that illegal gratification was for the purpose of a motive or reward as mentioned in that section; this is a legal presumption and is subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii). (g) The presumption in law under Section 20 is distinct from the presumption of fact referred to in (d); the former is mandatory and the latter discretionary., Paragraph 76 of the same judgment states: In the absence of evidence of the complainant (direct primary oral or documentary evidence), it is permissible to draw an inferential deduction of culpability of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution., In the case in hand, Jit Singh, the complainant, and Chamkaur Singh, the shadow witness, have turned hostile. The Trial Court specifically held that there is no evidence on record to prove the demand of illegal gratification. It is not a case where the demand was reiterated when the money was allegedly paid. Gurjinder Singh (PW‑8) is only a witness who stated that he recovered the money from the appellant. The High Court passed its judgment on the assumption that the recovery of money from the appellant implied a demand of illegal gratification. This is not a case where there was circumstantial evidence to prove the demand., If the evidence produced by the prosecution is examined in the light of the law laid down by the Constitution Bench in Neeraj Dutta v. State (Government of NCT of Delhi), the conviction and sentence of the appellant cannot be legally sustained. The appeal is accordingly allowed. The impugned orders of the High Court and the Trial Court are set aside. The appellant is acquitted of the charges and his bail bond stands discharged.
id_1051	0	The petitioner, who is working as a Senior Executive Engineer at the fourth respondent – Semiconductor Technology and Applied Research Centre (STARC), is before the Supreme Court of India aggrieved by the communication dated 07-08-2021 at Annexure CC and the communication dated 27-11-2021 at Annexure GG. She is seeking directions to the fourth respondent to consider her representations dated 06-07-2021 and 12-07-2021 for sanction of Child Care Leave with retrospective effect, to regularise her salary and to release the salary withheld from 24-05-2021. A prayer is also made seeking directions to the respondents to reimburse the medical bills furnished by the petitioner., The petitioner delivered a baby girl on 19-08-2020. She was on maternity leave from 19-08-2020 to 14-02-2021 and thereafter availed personal leave from 15-02-2021 to 26-04-2021. During the second wave of COVID-19 and the lockdown announced by the Government of Karnataka, the petitioner, along with other employees, was given the benefit to work from home. The respondent-Organisation does not deny that the petitioner’s attendance was regularised up to 23-05-2021. When the petitioner did not join duty after the sanctioned leave was exhausted, the impugned communication dated 07-08-2021 was issued stating that she was staying away from duty without sanction of leave and that the overstay would be treated as unauthorized absence. She was informed that she would not be entitled to leave salary for the unauthorized period and that disciplinary action could be initiated for willful absence after expiry of the sanctioned leave period., The petitioner responded to the communication, pointing out the benefits required to be provided to a woman under the Maternity Benefit Act, 1961, and the two Official Memoranda dated 29-09-2008 and 06-05-2021 issued by the Ministry of Personnel, Public Grievances & Pensions (Department of Personnel and Training), Government of India, which provide for grant of child care leave to women employees having minor children below the age of 18 years. The petitioner had also approached the Central Administrative Tribunal at Bengaluru seeking similar relief. The fourth respondent thereafter sent another communication dated 27-11-2021 noting that the application filed by the petitioner was dismissed as withdrawn by order dated 16-11-2021. The petitioner was again called upon to join duties immediately and regularise the absence from 24-05-2021., Learned counsel for the petitioner submits that the provisions of the Maternity Benefit Act, 1961 (hereinafter referred to as the Act) are applicable to the petitioner, who is an employee of the fourth respondent-Organisation, a fully funded organisation controlled by the Government of India. It is also contended that the fourth respondent does not dispute that the leave benefits available to the employees of the Defence Research and Development Organisation (DRDO) are made applicable to the employees of the fourth respondent-Organisation. Counsel draws the attention of the Supreme Court of India to Section 5(5) of the Act to contend that the petitioner should be allowed to work from home after availing the maternity benefit, as provided under the Act. Counsel further contends that notifications have been issued by the Central Government directing all Public Sector Undertakings, including the respondent-Organisation, to ensure that, as far as possible, provisions should be made for lactating mothers to work from home in view of the COVID-19 pandemic., It is submitted that, in terms of the directions issued by the Government of India, it is the duty of the respondent-Organisation to provide for Child Care Leave and to permit the petitioner to work from home until such time as the Central Government or the State Government declares that there is no need for its employees to work from home. Counsel has placed reliance on a decision of the Central Administrative Tribunal, Principal Bench at New Delhi, in the case of Saphla Rani v. Chairman-cum-Managing Director, RITES Limited., Learned counsel for the respondents submits that the benefit of the Act, as applicable to the respondent-Organisation, has been granted to the petitioner. However, the third respondent is a Society registered under the Societies Registration Act and is an autonomous body with its own Rules, Regulations and HR policy concerning maternity leave and other service benefits. It is admitted by the respondents in the statement of objections that, in matters of leave and leave concessions, they have adopted the policy of the Defence Research and Development Organisation and made it applicable to their employees., In respect of Child Care Leave, a meeting of the 14th STARC Employees Meet held on 31-03-2018 considered requests made by employees, especially female employees, for additional benefits such as child care leave and flexible timings. It was decided that providing crèche and Day Care facilities as per the Maternity Benefit Act, 2017, was an option, but creation of such facilities within the premises was not advisable due to the sensitive and risky processes involving chemicals and toxic gases. It was further decided that, if some employees are interested, the matter could be taken up with the Centre for Artificial Intelligence and Robotics for availing crèche facilities., During the argument, when the Supreme Court of India probed the third respondent as to whether crèche facilities were made available, the Deputy Manager – P & A, on behalf of the respondent-Organisation, stated that consequent to the resolution passed on 31-03-2018, no requests were made by employees seeking establishment of a crèche facility within the premises. Nevertheless, it was stated that arrangements could be made at the adjacent ITI Complex, which already has facilities such as crèche, quarters, hospital, ambulance, etc. The respondent-Organisation is already availing other facilities such as quarters, hospital and ambulance from the ITI. Therefore, the communication indicated that a facility would be made for the petitioner’s child to use the crèche facility available in the ITI premises. It was further stated that if women employees of the respondent-Organisation continue to seek establishment of a crèche in its premises, appropriate financial sanction would have to be obtained from the competent authority, and the facility would be provided when finances are provided., Learned counsel for the respondents submits that the respondent-Organisation cannot be equated to the Government of India and that facilities available to Central Government employees, such as maternity leave, Child Care Leave and other facilities, cannot be automatically adopted by the respondent-Organisation. Material placed with the statement of objections at Annexure R7, issued by the Department of Personnel and Training (DOPT), Government of India, answers the query as to whether women employees of Public Sector Undertakings/bodies are entitled to Child Care Leave, stating that the orders issued by the DOPT are not automatically applicable to employees of Central Public Sector Undertakings or autonomous bodies. The DOPT has clarified that it is for the PSUs/autonomous bodies to decide the applicability of the rules/instructions issued for Central Government employees to their employees in consultation with their Administrative Ministries. Consequent to the DOPT instructions, a resolution was passed by the Board of Governors of the third respondent-Society on 22-09-2021 regarding implementation of Child Care Leave in the units of the third respondent. It was resolved that the third respondent will not implement Child Care Leave for its employees at its units and foundries involved in production and implementation, as such facilities would affect production schedules and delivery timelines., The learned counsel for the petitioner, learned counsel for the respondents were heard and the petition papers were perused., The petitioner's contentions in respect of grant of Child Care Leave proceed on the footing that all employees of STARC, like employees of the Government of India, are eligible for the facility. Though reference is made to Section 5(5) of the Act, it is evident that maternity benefits such as work from home after availing the maternity benefit can be given only where the nature of work assigned to the woman is such that it is possible for her to work from home. In this regard, a specific decision was taken by the fourth respondent-Organisation in its meeting held on 31-03-2018, recorded at Annexure R9, paragraph-26, that the premises of the fourth respondent-Organisation are sensitive and involve risk due to usage of chemicals and toxic gases. Employees work on research that is both sensitive and complicated, intended for the benefit of the Government of India in defence fields, and the research will not be divulged to the public. This proves that the nature of work assigned to the petitioner cannot be carried out from home. The respondents are also on record, in their statement of objections, that even during the period of lockdown, senior officials such as Deputy Managers have been functioning from the premises itself., Insofar as Child Care Leave is concerned, as rightly pointed out by the respondents' counsel, the advisory given by the Department of Personnel and Training regarding applicability of the Child Care Leave facility to employees of Central/Public Sector Undertakings or autonomous bodies allows decisions to be taken by the PSUs/autonomous bodies in consultation with their Administrative Ministries. Accordingly, the Board of Governors of the third respondent-Society specifically resolved on 22-09-2021 that they would not implement the Child Care Leave facility in the organisation as it would affect production schedules and delivery timelines., It is therefore clear that the petitioner has not pointed out any specific provision of law or rule that would mandate the fourth respondent-Organisation to grant Child Care Leave as is available to Central Government employees to the employees of STARC., During the proceedings, the Supreme Court of India noted that the impugned communications issued by the fourth respondent-Organisation warned the petitioner about unauthorized absence and the consequences of willful disobedience, and that she would be liable for recovery and remittance in accordance with law. However, having regard to the peculiar facts and circumstances where the petitioner has been on leave commencing from 19-08-2020 and has exhausted the leave sanctioned in her account, the Court cannot lose sight of the fact that during the period of delivery and post-delivery there were two serious waves of the COVID-19 pandemic, the first commencing in March 2020 with a prolonged lockdown announced by the State Government, and the second wave commencing in April 2021. The Court also takes judicial notice of a third wave that began in November-December 2021. Therefore, if the petitioner was unable to join duties, the fourth respondent-Organisation is required to adopt a sympathetic view towards the petitioner. During the argument, counsel for the petitioner pleaded that the petitioner is ready and willing to join duty, provided child care facility is provided for the newborn., The learned counsel for the third respondent submitted a statement, together with a communication issued by the Deputy Manager on behalf of the respondent, that a crèche facility will be made available for the petitioner’s child in the adjacent ITI premises., Although counsel for the fourth respondent pointed out that another woman of the organisation who also took maternity leave similar to the petitioner joined duty from 02-04-2021, the Court is of the considered opinion that parity cannot be drawn in such cases. The difficulties of the mother may be different in each case and therefore the outcome depends on the facts and circumstances of each case., For the foregoing reasons, the Supreme Court of India is of the considered opinion that, although the prayer made by the petitioner regarding grant of Child Care Leave cannot be granted, liberty is reserved to the petitioner to make fresh representations regarding the unauthorized absence and seek regularisation of the same. As and when such representations are given by the petitioner after she joins duty, the fourth respondent-Organisation shall consider them sympathetically and pass orders in the light of the observations made hereinabove. This writ petition is accordingly disposed of. No order as to costs.
id_1052	0	Mahesh Kariman Tirki, age about 22 years, occupation Agriculturist, resident of Murewada, Taluka Etapalli, District Gadchiroli. Pandu Pora Narote, age about 27 years, occupation Agriculturist, resident of Murewada, Taluka Etapalli, District Gadchiroli. Hem Keshavdatta Mishra, age about 32 years, occupation Education, resident of Kunjbargal, Post Nagarkhan, District Almora (Uttarakhand). Prashant Rahi Narayan Sanglikar, age about 54 years, occupation Journalist, resident of 87, Chandrashekhar Nagar, Krushikesh, Dehradun, Uttarakhand. Vijay Nan Tirki, age about 30 years, occupation Labour, resident of Beloda, Post P.V. 92, Dharampur, Taluka Pakhanjoor, District Kanker, State of Maharashtra, through PSO Aheri, Gadchiroli. G.N. Saibaba, aged about 47 years, occupation Service (suspended), resident of 100, B-Block, Hill View Apartments, Vasant Vihar, near PVR Cinema, State of Maharashtra, through PSO Aheri, Gadchiroli., Mr. Pradeep Mandhyan with Mr. Barunkumar and Mr. H.P. Lingayat, advocates for appellant Nos. 1 to 3 (Appeal No. 136/2017). Mr. Trideep Pais, Senior Advocate with Mr. Barunkumar and Mr. H.P. Lingayat, advocates for appellant Nos. 4 and 5 (Appeal No. 136/2017). Mr. S.P. Dharmadhikari, Senior Advocate with Mr. N.B. Rathod, advocate for appellant (Criminal Appeal No. 137/2017). Mr. Aabad Ponda, Senior Advocate, Mr. H.S. Chitale and Mr. Jugal Kanani, advocates for the State, Mr. P.K. Sathinathan, Special Counsel for the State. Heard., Common judgment and order of conviction dated 07.03.2017 in Sessions Cases Nos. 13/2014 and 130/2015 under the provisions of the Unlawful Activities (Prevention) Act, 1967 and Section 120-B of the Indian Penal Code led convicted accused to challenge the judgment and order by filing two separate appeals., On 22.08.2013, Crime No. 3017/2013 was initially registered with the Police Station Aheri, District Gadchiroli against the appellant Mahesh Tirki (accused No.1), Pandu Narote (accused No.2), and Hem Mishra (accused No.3). During the course of investigation, the role of Prashant Sanglikar (accused No.4), Vijay Tirki (accused No.5) and G.N. Saibaba (accused No.6) was revealed. On completion of investigation, a charge-sheet was filed and numbered as Sessions Case No. 13/2014. It was followed by filing of a supplementary charge-sheet on 31.10.2015 numbered as Sessions Case No. 130/2015., After ensuring compliance with Section 208 of the Code of Criminal Procedure, the Trial Court framed charges on 21.02.2015 against all six accused for offences punishable under Sections 10, 13, 20, 38, 39 read with Section 18 of the Unlawful Activities (Prevention) Act and under Section 120-B of the Indian Penal Code. The prosecution examined 25 witnesses to establish the guilt of the accused and relied upon certain documents. Upon completion of evidence, statements of the accused were recorded in terms of Section 313 of the Code to seek their explanation on incriminating material. The defence of the accused is of total denial and false implication. The accused denied seizure of incriminating material from their possession, claiming it to be planted and fabricated. The accused did not examine any witnesses in defence. On assessment of oral and documentary evidence, the Trial Court recorded a finding of guilt against all the accused and convicted them for different offences, imposing punishment along with fine., Accused 1 Mahesh Kariman Tirki, Accused 2 Pandu Pora Narote, Accused 3 Hem Keshavdatta Mishra, Accused 4 Prashant Rahi Narayan Sanglikar and Accused 6 G.N. Saibaba were convicted under Section 13 of the Unlawful Activities (Prevention) Act read with Section 120-B of the Indian Penal Code and sentenced to rigorous imprisonment for seven years each and to pay a fine of Rs.1000, or in default rigorous imprisonment for six months each. Accused 5 Vijay Nan Tirki was convicted under Section 13 of the Unlawful Activities (Prevention) Act read with Section 120-B of the Indian Penal Code and sentenced to rigorous imprisonment for four years and to pay a fine of Rs.1000, or in default rigorous imprisonment for six months., Being aggrieved by the aforesaid common judgment and order of conviction, accused Nos. 1 to 5 preferred Criminal Appeal No. 136/2017 whilst accused No.6 preferred Criminal Appeal No. 137/2017 before the High Court. Both appeals were heard by the High Court and by common judgment and order dated 14.10.2022, the High Court principally held that the proceedings of Sessions Cases No. 13/2014 and 130/2015 were null and void for want of valid sanction in terms of Section 45(1) of the Unlawful Activities (Prevention) Act and accordingly set aside the order of conviction. During the pendency of the appeal, accused No.2 Pandu Narote died, however the High Court observed that his appeal does not abate., The High Court dealt with the issue of sanction for accused Nos. 1 to 5 and accused No.6 G.N. Saibaba separately and recorded the following conclusions: (i) The proceedings in Sessions Trials No. 13/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the Unlawful Activities (Prevention) Act, and the common judgment impugned is set aside. (ii) In view of the decision of the Supreme Court in Ramesan (Dead) through L.R. Girija v. State of Kerala, AIR 2020 SC 559, rendered on the basis of the provisions of Section 394 of the Code of Criminal Procedure, the appeal preferred by accused 2 Pandu Pora Narote does not abate. (iii) The prosecution submitted that if the appeal is decided only on the point of sanction, liberty may be granted to obtain proper sanction and try the accused; the rule against double jeopardy does not apply where the trial is vitiated due to invalidity or absence of sanction. (iv) Accused 5 Vijay Nan Tirki is on bail, his bail bond stands discharged. (v) Accused 1 Mahesh Kariman Tirki, accused 3 Hem Keshavdatta Mishra, accused 4 Prashant Rahi Narayan Sanglikar and accused 6 G.N. Saibaba are to be released from custody forthwith unless their custody is required in any other case. (vi) The appellants shall execute a bond of Rs.50,000 (Rupees Fifty Thousand) each with surety of like amount, to the satisfaction of the Trial Court, in compliance with the provisions of Section 437-A of the Code of Criminal Procedure. (vii) The appeals are disposed of in the aforesaid terms., Aggrieved with the judgment and order of the High Court dated 14.10.2022, the State preferred Criminal Appeals Nos. 1184/1185 of 2023 arising out of SLP (Criminal) Nos. 11072-11073/2022 before the Supreme Court. By consent of the parties, the judgment and order of the High Court dated 14.10.2022 was set aside and the matters were remitted to the High Court for fresh decision on merits as well as on the question of validity of the sanction. The Supreme Court order dated 19.04.2023 observed that the impugned common judgments and orders passed by the High Court in Criminal Appeals Nos. 136 and 137 of 2017 are set aside and the matters are remitted back to the High Court to decide the appeals afresh in accordance with law and on its own merits, including the question of sanction., The High Court is requested to decide and dispose of the appeals on merits at the earliest, preferably within four months from the date of receipt of the present order. It is observed that propriety demands that, on remand, the appeals be placed before another bench to avoid further apprehensions. Accordingly, the Honorable Chief Justice of the High Court is requested to see that the appeals are placed for final hearing before a bench other than the bench which passed the impugned judgments and orders. The present appeals are accordingly allowed., The learned Acting Chief Justice of the High Court, by order dated 19.05.2023, assigned both appeals to the bench headed by Justice Vinay Joshi. As per convenience of the learned counsels appearing for different accused and the learned special prosecutor, the appeals were heard extensively, including through video conferencing. Both sides canvassed various issues and relied on several decisions in support of their respective contentions. They also filed written notes of arguments with charts indicating the factual chronology and events. With this prologue, we proceed to decide the appeals., The judgment and order under challenge concerns offences punishable under a special statute, namely the Unlawful Activities (Prevention) Act. The Act was introduced with the aim of providing a more effective mechanism for prevention of certain unlawful activities of individuals and organisations and for matters connected therewith. A special mechanism and procedure has been introduced from the stage of investigation, containing various checks and balances., The present case relates to acts of terrorism or related activities covered under the Unlawful Activities (Prevention) Act. Initial arrest on suspicion revealed the involvement of the accused in acts of terrorism covered under the provisions of the Act. After completing all formalities of investigation, a charge-sheet was filed, which was followed by filing a supplementary charge-sheet with sanction to prosecute accused No.6 G.N. Saibaba., At the relevant time, the informant, Assistant Police Inspector Atul Awhad, attached to the Special Branch, Gadchiroli, received secret information that accused No.1 Mahesh Tirki and accused No.2 Pandu Narote were involved with a banned terrorist organisation CPI (Maoist) and its frontal organisation Rashtriya Dalit Front (RDF). They were active members of the said banned terrorist organisation and its frontal organisation, supplying material to underground Naxalites, providing protection, and facilitating travel of members. In pursuance of the information, Assistant Police Inspector Awhad and his team kept watch on the movements of accused No.1 and accused No.2 in the Naxal‑affected areas of Etapalli, Aheri and Murewada. He also received information that both, with unknown associates, were transmitting secret information to the banned terrorist organisation and its frontal organisation. The information led the team to keep them under surveillance., On 22.08.2013 at around 06.00 p.m., both accused No.1 Mahesh Tirki and accused No.2 Pandu Narote were found standing in suspicious conditions at a secluded place near Aheri Bus Stand. By around 06.15 p.m. a person wearing a white cap approached them and they were conversing. Assistant Police Inspector Awhad accosted them and made necessary inquiries, to which they gave evasive answers, strengthening his suspicions. He took the three accused to the Police Station at Aheri. The Police Station in‑charge Narendra Dube made a station diary entry No. 29/2013 at around 06.35 p.m. Two panch witnesses were summoned. In their presence, accused No.1 Mahesh Tirki and accused No.2 Pandu Narote disclosed their names whilst the third person (accused No.3) disclosed his name as Hem Mishra. Police Inspector Anil Badgujar made further inquiries but did not obtain any response. In the presence of the panch witnesses, a personal search of all three accused was conducted., The search of accused No.1 Mahesh Tirki revealed three pamphlets of the banned terrorist organisation CPI (Maoist) and its frontal organisation RDF, one purse containing cash of Rs.60, a platform ticket of Ballarshah Railway Station dated 28‑05‑2013, an identity card and a Micromax mobile phone, all of which were seized. The search of accused No.2 Pandu Narote yielded a Samsung mobile phone, a purse containing cash of Rs.1,480, a platform ticket of Delhi Railway Station dated 28‑05‑2013, a PAN card and an identity card. The search of accused No.3 Hem Mishra yielded a 16 GB memory card of Sandisk, a purse containing cash of Rs.7,700, a railway ticket of Delhi to Ballarshah dated 19‑08‑2013, a camera with charger, a PAN card, an identity card and a cloth bag. All the articles were seized in the presence of the panch witnesses and taken into custody by Police Inspector Anil Badgujar., Based on the seized material, Assistant Police Inspector Awhad lodged a report containing the details of the seizure and official information regarding the material collected. He concluded that accused No.1 Mahesh Tirki, accused No.2 Pandu Narote and accused No.3 Hem Mishra were involved with the banned terrorist organisation CPI (Maoist) and its frontal organisation RDF. The Officer in‑charge of Police Station Aheri, Narendra Dube, registered a crime vide Crime No. 3017/2013 against them for offences punishable under Sections 13, 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act read with Section 120-B of the Indian Penal Code and made a station diary entry to that effect., Since the crime was registered under the provisions of the Unlawful Activities (Prevention) Act, the investigation was handed over to Sub‑Divisional Police Officer Suhas Bawche. The apprehended accused were produced before the Magistrate on the following day and were remanded to police custody for investigation. During interrogation, it was revealed that a lady named Narmadakka, a Naxalite belonging to the banned terrorist organisation CPI (Maoist) and its frontal organisation RDF, had assigned the job to accused No.1 Mahesh Tirki and accused No.2 Pandu Narote to receive accused No.3 Hem Mishra, who was arriving from Delhi, and safely escort him to Murewad forest area. During interrogation of accused No.3 Hem Mishra, it was revealed that a person from Delhi, accused No.6 G.N. Saibaba, was an active member of the banned terrorist organisation and had given a memory card to accused No.3 Hem Mishra, wrapped in paper with a direction to deliver it to Naxalite Narmadakka., Further interrogation of accused No.3 Hem Mishra uncovered the involvement of accused No.4 Prashant Rahi Narayan Sanglikar. The investigating officer learned that accused No.4 was about to visit Raipur or Deori. On 01.09.2013, Police Inspector Rajendrakumar Tiwari found accused No.4 Prashant Rahi and accused No.5 Vijay Tirki at Chichgarh T‑point, Deori, under suspicious circumstances, and they were brought to Aheri Police Station on 02.09.2013 around 05.00 a.m. The investigating officer effected the arrest of accused No.4 and accused No.5 under arrest panchnama. A personal search of accused No.4 yielded a purse containing cash of Rs.8,800, a visiting card, a driving licence, a Yatri card, a newspaper Dainik Bhaskar and eight papers containing Naxal literature along with typewritten papers pertaining to the under‑trial Maoist leader Narayan Sanyal. The personal search of accused No.5 Vijay Tirki yielded a silver‑coloured mobile phone, cash of Rs.5,000, four pieces of paper on which certain phone numbers were written and a newspaper Dainik Bhaskar., During investigation, accused No.5 Vijay Tirki revealed that he was assigned a job by one Ramdar, an active member of the banned terrorist organisation CPI (Maoist) and its frontal organisation RDF, to receive accused No.4 Prashant Rahi and escort him safely to Abuzmad forest area to meet a senior Maoist cadre. Investigation further revealed that accused No.3 Hem Mishra, accused No.4 Prashant Rahi and accused No.6 G.N. Saibaba entered into a criminal conspiracy, whereby accused No.6 arranged a meeting of accused No.3 and accused No.4 with underground members of the banned terrorist organisation in Abuzmad forest area. Accused No.6 handed over a 16 GB Sandisk memory card containing vital Maoist communications to accused No.3 and accused No.4 with instructions to deliver it to the Naxalites, furthering the activities of the banned terrorist organisation., It is the prosecution’s case that on 26.08.2013 accused No.3 Hem Mishra was using his Facebook account for these activities. The investigating officer called two panch witnesses and, in their presence, opened the Facebook account of accused No.3 on the laptop of Aheri Police Station. Screenshots and printouts were taken, the process was videographed and a panchnama was prepared. The material collected from the Facebook account was seized. The 16 GB memory card seized from accused No.3 was sent to the Central Forensic Science Laboratory, Mumbai. Scientific expert Bhavesh Nikam examined the material and submitted his report, and certified hard copies printed from the data were annexed along with the report., On completing the investigation, sanction under Section 45(1) of the Unlawful Activities (Prevention) Act was sought. Dr. Amitab Ranjan accorded sanction by order dated 15.02.2014 for the prosecution of accused Nos. 1 to 5 only. After obtaining sanction, the final report in terms of Section 173(2) of the Code was filed in the Court of Judicial Magistrate First Class, Aheri on 16.02.2014. The case was committed to the Sessions Court on 26.02.2014 and registered as Sessions Case No. 13/2014., During investigation and interrogation of accused No.3 Hem Mishra and accused No.4 Prashant Rahi, involvement of accused No.6 G.N. Saibaba was revealed. Investigating Officer Suhas Bawche sought a search warrant from the Judicial Magistrate First Class, Aheri on 07.09.2013 for the house of accused No.6 G.N. Saibaba at New Delhi. The search was conducted on 09.09.2013 with assistance from the local police of Maurice Nagar Police Station, New Delhi. During the house search, a compact disc, digital versatile disc, pen drive, hard disk, three mobile phones, two SIM cards, books, magazines and other articles were seized. The electronic gadgets were sent to the Central Forensic Science Laboratory, Mumbai for forensic analysis. Bhavesh Nikam performed the forensic analysis and submitted a report along with cloned copies of the data., Investigating Officer Suhas Bawche attempted to arrest accused No.6 G.N. Saibaba, but members of the banned terrorist organisation protested. Consequently, an arrest warrant was obtained from the Judicial Magistrate First Class, Aheri on 26.02.2014 and the arrest was effected on 09.05.2014. A personal search of accused No.6 yielded one mobile phone, a vehicle registration certificate and cash of Rs.320. He was brought from Delhi and produced before the Judicial Magistrate First Class, Aheri, who remanded him to judicial custody., The sanction for prosecution under Section 45(1) of the Unlawful Activities (Prevention) Act pertaining to accused No.6 G.N. Saibaba was applied for. The sanctioning authority, K.P. Bakshi, accorded sanction by order dated 06.04.2015, which led to filing of the supplementary charge-sheet registered as Sessions Case No. 130/2015. Since both Sessions Cases No. 13/2014 and No. 130/2015 arose out of the same incident, the learned Sessions Judge directed a joint trial of both cases., The learned counsels for the appellants adopted two arguments: the validity of the sanction under Section 45(1) of the Unlawful Activities (Prevention) Act was challenged, and thereafter the veracity of the evidence was attacked. It is made clear that although accused No.2 Pandu died, his appeal survives., It is advantageous to advert first to the contentions relating to validity of the sanction, an important facet of criminal prosecution under the Unlawful Activities (Prevention) Act. Legality of sanction has been seriously challenged by the learned counsels appearing for different accused. For convenience, the issue of sanction for accused Nos. 1 to 5 is dealt with separately from the challenge to the sanction for accused No.6 G.N. Saibaba. Except the ground of non‑application of mind by the sanctioning authority, the grounds for challenges are distinct., Both sides argued the point of prior sanction for the Special Court to take cognizance under Section 45(1) of the Unlawful Activities (Prevention) Act. The learned special prosecutor submitted that sanction for accused Nos. 1 to 5 is a valid sanction issued by the competent authority after due application of mind. He submitted that sanction as regards accused No.6, though issued post taking cognizance, does not vitiate the proceeding for two reasons: the specific challenge was not raised at the initial stage, and it is a curable defect under Section 465 of the Code of Criminal Procedure. Per contra, the learned defence counsel attacked the validity of sanction, emphasizing that the provisions of the Act are stringent, providing harsh punishment even for preparatory acts, and that the amendment Act 35 of 2008 introduced further stringent provisions. Section 45(2) of the Act provides a two‑tier filter to protect personal liberty, which must be strictly complied with., The following dates are noted: 11.02.2014 – recommendation of reviewing authority received; 15.02.2014 – sanction for prosecution against accused Nos. 1 to 5; 16.02.2014 – charge‑sheet against all six accused; 13.06.2014 – validity of sanction challenged in bail application; 21.02.2015 – charge framed against all accused; 04.03.2015 – recommendation of reviewing authority on accused No.6 received; 06.04.2015 – sanction as regards accused No.6; 27.10.2015 – first prosecution witness examined; 30.11.2015 – supplementary charge‑sheet against accused No.6 with sanction order; 05.01.2016 – recall of PW‑1., Mr. Ponda, learned senior counsel for the State, raised the questions framed by the Supreme Court in its order dated 15.10.2022: (1) Whether, considering Section 465 of the Criminal Procedure Code, after the conclusion of the trial and conviction on merits, the appellate court is justified in discharging the accused on the ground of irregular sanction, if any? (2) In a case where the trial court has convicted the accused on merits and thereafter found the accused guilty for the offences, whether the appellate court is justified in discharging the accused on the ground of want of sanction or irregular sanction, particularly when the objection was not specifically raised during the trial? (3) What are the consequences of not raising the dispute with respect to sanction during the trial and thereafter permitting the trial court to proceed further, despite opportunities given to the accused at the stage of recording further statement under Section 313 of the Criminal Procedure Code when no objection to the want of sanction was taken?, The prosecution endeavoured to establish that sanction for accused Nos. 1 to 5 issued by Dr. Amitabh Ranjan was legal and valid. It further submitted that sanction for accused No.6 G.N. Saibaba, though granted post‑cognizance, is a curable defect under Section 465 of the Code., Section 465 of the Code of Criminal Procedure provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in any sanction for the prosecution unless, in the opinion of that court, a failure of justice has in fact been occasioned thereby.
id_1052	1	In determining whether any error, omission or irregularity in any proceeding under the Code of Criminal Procedure, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Special Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings., It is argued that the provisions of the Code of Criminal Procedure would squarely apply to the prosecution under the Unlawful Activities (Prevention) Act. In particular, it is submitted that Section 45 of the Unlawful Activities (Prevention) Act does not open with a non-obstante clause, meaning thereby the general provisions of the Code would apply with full force. Our attention is specifically drawn to Sub‑clause (2) to Section 465 of the Code to contend that while determining the question as to whether there was any error, irregularity or omission in grant of any sanction, the Special Court shall consider whether the objection has been raised at the earliest stage of the proceedings. According to the prosecution, the accused did not raise any specific challenge at various stages of the case – at the time of taking cognizance, framing of charge, recording of evidence, during cross‑examination, during recording of statement under Section 313 of the Code and while advancing final arguments in the Trial Court. It is submitted that the accused have neither claimed discharge nor invoked the inherent powers of this Special Court in terms of Section 482 of the Code to question the tenability of prosecution on account of irregularity, omission or invalidity of the sanction. It is contended that the accused cannot raise the issue of sanction for the first time in appeal, that too in re‑joinder, and no such specific ground was raised in the appeal memorandum., It is contended that the irregularity of sanction cannot determine the competence of the Special Court to try the matter once the trial has been faced and the opportunity of cross‑examination availed. After issuance of sanction to accused No. 6 G.N. Saibaba dated 06‑04‑2015, Prosecution Witness 1 was recalled as well as cross‑examined. Full opportunity was given in the Trial Court and thus it is not a case of failure of justice., Mr. Ponda would submit that accused Nos. 1 to 5 have not challenged the validity of sanction by initiating substantive proceedings. Even if the order is void, it is required to be set aside by a competent court of law and such order cannot be declared void in collateral proceedings. Accused Nos. 1 to 5 have not challenged the validity of sanction during cross‑examination. Full opportunity was given in the Trial Court to inspect the original sanction file. There is no substance in the contention that the entire material was not placed before the Reviewing Authority or the Sanctioning Authority., According to Mr. Ponda, Section 45 of the Unlawful Activities (Prevention) Act does not prescribe the recording of reasons nor provides a format in which sanction, opinion or recommendation is to be made. The accused cannot challenge the independence of the Reviewing Authority. The act of making recommendations is an executive or administrative order which is not amenable to an appeal. Moreover, legislative debates cannot be relied upon for the purpose of interpreting statutory provisions. Mr. Ponda relied on various decisions which will be adverted to shortly., Mr. Mandhyan, learned counsel appearing for accused Nos. 1 to 3, has seriously challenged the legality of sanction. He submits that sanction was accorded without considering an independent review by the authority appointed by the Government. The intention of the legislature in mandating sanction is to prevent misuse of the stringent provisions. The recommendation for sanction was given in the absence of part of the material which was later produced as evidence, and without any application of mind. He would submit that in the absence of an independent opinion by the Reviewing Authority, the sanction is defective and tantamount to an absence of sanction, which is an incurable defect. In the absence of a valid sanction, the Special Court is not empowered in law to take cognizance. He has attacked the legality of the sanction based upon total non‑application of mind by an independent reviewing authority as well as the sanctioning authority, relying on several decisions., Mr. Pais, learned senior counsel appearing for accused Nos. 4 and 5, has on similar lines challenged the legality of the sanction by making exhaustive submissions backed by several reported decisions. He would submit that Section 386(b)(i) of the Code applies only after a full‑fledged trial and thus the Appellate Court is well within its competence to discharge the accused. When the entire trial is without jurisdiction, the accused are entitled to discharge. The pre‑condition of previous sanction under the Unlawful Activities (Prevention) Act is done in a more specific and stringent manner than under other laws because the consequences are serious. Though no particular form has been prescribed for recommendation, it requires to reflect due application of mind., Mr. Pais would further submit that Section 45(1) of the Unlawful Activities (Prevention) Act bars a court from taking cognizance of any offence in the absence of a valid sanction. The sanction has to be accorded only after consideration of the report of an independent authority which reviews the evidence and the material available on record. Valid sanction is essential to lift the statutory bar, and in its absence the Special Court lacks jurisdiction to take cognizance. A fundamentally invalid sanction amounts to no sanction and goes to the root of the jurisdiction of the Special Court, being an incurable defect. The effect of an invalid sanction would be as if the Special Court had tried the matter without jurisdiction. Mere formal order of sanction without due application of mind would not automatically render the sanction valid nor could it be cured with the aid of Section 465 of the Code. The sanction dated 15‑02‑2014 to accused Nos. 1 to 5 is only for prosecution of acts under Section 45(1)(ii) of Chapter IV and VI of the Unlawful Activities (Prevention) Act; there was no sanction for the offence falling under Chapter III. The sanction order is devoid of reasons as to how each specific charged offence applies to each accused against whom sanction has been accorded and is criticized as a reproduction of the draft sanction order provided by the Investigating Officer., In order to emphasize the importance of sanction under the Unlawful Activities (Prevention) Act, it is submitted that the Act is a stringent statute and an extraordinary piece of legislation. The statute itself provides a safeguard against its misapplication or misuse. The legislature thought that mere executive sanction is not enough, hence a two‑layer filter has been specifically provided. Every sanction must be preceded by review of the entire material by an independent authority. The authority issuing the recommendation shall independently apply its mind to the material concerning each accused. The recommendation is bereft of reasons or anything from which it could be perceived that there was due application of mind. Consequently, the Sanctioning Authority was deprived of considering an independent review report mandated by law., Mr. Pais submitted that the objection as to validity of sanction was taken at the earliest possible opportunity. While applying bail for accused No. 6 G.N. Saibaba in Bail Application No. 96/2014, the legality of the sanction dated 15‑02‑2014 to accused Nos. 1 to 5 was challenged, however the Trial Court kept these objections pending till examination of the Sanctioning Authority. The cross‑examination of relevant witnesses and arguments advanced before the Trial Court equally suggest that the objection to the legality of sanction was taken. In sum and substance, the entire proceeding would stand vitiated in the absence of a valid sanction in view of the specific statutory mandate provided., Mr. S.P. Dharmadhikari, senior counsel appearing for accused No. 6 G.N. Saibaba, while challenging the legality of sanction, traced the background of the introduction of the Unlawful Activities (Prevention) Act and the objects and reasons for the amendments. He emphasized that the provisions of the Act are stringent, hence the statute itself has provided various safeguards in the shape of powers to arrest and search, procedure for arrest and seizure, modified application of certain provisions of the Code, presumption as to the offences under Section 15, obligation to furnish information and, most importantly, the necessity of prior sanction in the manner required under Section 45 of the Unlawful Activities (Prevention) Act. According to him, Section 45 is a unique provision adding a very important pre‑cognizance, pre‑sanction filter. The Act departs from the general procedure at every stage, provides a presumption as well as stringent punishment, and incorporates a two‑layer filter at the pre‑cognizance stage. Even before the grant of sanction, a review of the entire material by an independent authority is contemplated. Section 45(2) creates a statutory bar on grant of sanction unless an independent authority reviews the evidence gathered and gives its recommendation in a time‑bound manner. Recommendations of an independent authority are not an empty formality., On facts, it is submitted that the Trial Court framed charge against accused No. 6 G.N. Saibaba on 21‑02‑2015 whilst sanction to accused No. 6 G.N. Saibaba was accorded on 06‑04‑2015 and filed in the Court with a supplementary charge‑sheet on 30‑11‑2015. Prior to sanction, cognizance as against accused No. 6 had already been taken, charge was framed and evidence had commenced., It is strenuously argued that Section 465 of the Code would cure the error or irregularity in grant of sanction, but does not cover omission or total absence of sanction. With the aid of Section 465 of the Code, cognizance taken by the Special Court in violation of the mandatory provisions of Section 45(1) of the Unlawful Activities (Prevention) Act cannot be cured. Absence of sanction is an illegality, rendering the whole trial vitiated. Only a valid sanction would confer jurisdiction on the Special Court to take cognizance, and in the absence of the same all acts are vitiated. Departure from the statutory provision amounts to deprivation of the fundamental right of freedom and liberty violating Article 21 of the Constitution of India., The genesis of the Unlawful Activities (Prevention) Act 1967 lies in the recommendations of the Committee on National Integration and Regionalism set up by the National Integration Council to look, inter alia, into the aspect of putting reasonable restrictions on certain freedoms in the interests of the sovereignty and integrity of India. As reflected in the Statement of Objects and Reasons of the Act, it was pursuant to the recommendations of the said committee that Parliament enacted the Constitution (Sixteenth Amendment) Act 1963 to impose reasonable restrictions in the interest of sovereignty and integrity of India on freedom of speech and expression, the right to assemble peacefully and without arms, and the right to form associations and unions., Subsequently, the Unlawful Activities (Prevention) Bill was introduced in Parliament to make powers available for dealing with activities directed against the sovereignty and integrity of India, which bill became the Unlawful Activities (Prevention) Act 1967 (UAPA) with effect from 30‑12‑1967. The Preamble originally read: “An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith.” In 2004 the Preamble was amended to bring terrorist activities within its fold, reading: “An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations, and dealing with terrorist activities and for matters connected therewith.”, In order to give effect to certain United Nations Security Council resolutions and the Prevention and Suppression of Terrorism (Implementation of Security Council Resolution) Order 2007, the Act was further amended in 2008 by substituting the then existing Section 15 relating to terrorist act with effect from 31‑12‑2008. Further amendments were made by Act 3 of 2013 and the Amendment Act No. 28 of 2019. The legislative history shows that the Act has been periodically amended to tackle emerging challenges of unlawful activities and terrorism., For the sake of convenience, Section 45 of the Unlawful Activities (Prevention) Act as it stands after the 2008 amendment reads: “Cognizance of offences (1) No court shall take cognizance of any offence (i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf; (ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government. (2) Sanction for prosecution under sub‑section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.”, Before insertion of Sub‑clause (2), the original Section 45 precluded the court from taking cognizance of the offence without previous sanction as contemplated under Sub‑clause (i) and (ii). The legislature, in its wisdom, added an additional safeguard in Sub‑clause (2) to ensure that an independent authority reviews the material before sanction is granted. The Statement of Objects and Reasons of Amendment Act 35 of 2008 explains that the additional filter was introduced to prevent misuse of the stringent provisions and to protect fundamental rights while ensuring speedy investigation, prosecution and trial of terrorism‑related offences., Mr. Ponda has strenuously argued that the sanction orders meet the requirement of law and are in tune with Section 45(2) of the Unlawful Activities (Prevention) Act. He points out that even if there is any error in the process of sanction, the same is a curable defect under Section 465 of the Code. Much emphasis is laid on the fact that the defence has not challenged the validity of sanction at any earlier point of time and therefore cannot challenge it at a later stage, especially after conviction recorded by the First Court., The statute itself provides twin safeguards against misuse of a stringent law. It engrafts an additional filter of review by an independent authority before granting the conventional executive sanction contained in other Acts. It is argued that although the independent authority has submitted its report, it is nothing but a sheer formality without application of mind, frustrating the legislative object. The report of the Reviewing Authority (Director of Prosecution) merely lists documents perused and concludes prima facie evidence, without indicating the basis for its recommendation. Consequently, the report cannot be treated as a report in terms of Section 45(2) of the Unlawful Activities (Prevention) Act; it is a cryptic communication that fails to provide the independent opinion required by law.
id_1052	2	Having regard to the language used under Sub-clause (2), though the reasons are not required, but the independent authority is certainly expected to at least communicate in brief as to what prompted the authority to make the recommendation. It was an important facet of the process of sanction which has to be passed to the Sanctioning Authority to enable it to take an appropriate decision. We do agree that statute has not prescribed any format or a form in which the report is to be made. However, it was the minimum expectation from the Authority that the report would convey due application of mind. The very purpose was to provide assistance to the Sanctioning Authority. In turn, besides a go ahead signal of the authority, there is nothing before the Sanctioning Authority for its consideration while granting sanction. As such the legislative object has been completely frustrated by said communication which was not in tune with the additional filter provided by the statute., Mr. Ponda not only adhered to the legality of sanction, but also endeavoured to impress that even if there happens to be an error or irregularity, it is a curable defect in terms of Section 465 of the Code of Criminal Procedure. He would submit that an irregularity in the process of sanction cannot be capitalized on to stifle the genuine prosecutions. To avoid failure of genuine prosecution, Section 465 of the Code is to be taken into consideration. It is emphasized that Section 465 of the Code is meant for Appellate Courts and Revisional Courts to condone the irregularity in sanction unless failure of justice has occasioned thereby. Moreover, it is strenuously argued that in terms of Sub‑clause (2) to Section 465 of the Code unless the objection to the validity of sanction has been raised at an earlier stage, the same cannot be entertained in appeal, that too after the accused is held guilty., On the other hand, the learned defence counsel would submit that though ideally objection to the sanction was to be raised at an initial stage, however it can be raised at any stage even in appeal. The central theme of the submission is that it is not a case of mere error or omission, but the sanction is totally invalid, resulting in the Court lacking jurisdiction to take cognizance, which goes to the root of the case. Therefore, even if the validity of sanction has been challenged at a subsequent stage, the objection has to be entertained., Section 465 of the Code of Criminal Procedure is undoubtedly meant for the Appellate Court to save the prosecution from its failure on mere error or irregularity. Sub‑clause (2) to Section 465 conveys that objection to the sanction should be raised at an earlier stage, however the statute itself provides that it is one of the considerations for the assessment. Sub‑clause (2) never precludes the Appellate Court from entertaining an objection if raised at a belated stage, but the Court shall have regard to the stage of objection., Since the stage of raising objection to the validity of sanction is a major factor for consideration, we have examined the said aspect in great detail. The learned Special Prosecutor emphasized that the validity of sanction has not been challenged during the entire trial. It is submitted that neither the accused have claimed discharge nor argued the aspect of sanction in the final submissions, nor during recording their statement under Section 313 of the Code. Rather, it is submitted that the accused gave no objection to frame the charge. It is submitted that though after framing of charge, sanction to prosecute accused No.6 G. N. Saibaba was tendered, the prosecution has recalled PW‑1 Santosh Bawne to which accused No.6 G. N. Saibaba gave no objection and thus, there was no challenge to the legality of sanction during trial. Mr. Ponda would submit that the accused could have claimed discharge on account of invalidity of sanction or applied for quashing of the prosecution in terms of Section 482 of the Code, but they did not. In substance, he would submit that post conviction, the said objection cannot be entertained in terms of Section 465(2) of the Code., Mr. Ponda relied on the decision of the Supreme Court of India in the case of Lal Singh v. State of Gujarat and another, (1998) 5 SCC 529 to contend that the objection pertaining to the validity of sanction shall be raised at the earliest occasion. In this decision it has been observed that in view of Sub‑clause (2) to Section 465 of the Code, the objection could and should have been raised at an earliest stage and if not, mere error or irregularity in sanction becomes ignorable. The said decision was later distinguished by the Supreme Court of India in the case of Ashrafkhan., In response, Mr. Pais would submit that though ideally the objection to the validity of sanction should be raised at the initial stage, however it can also be raised at different stages of trial i.e. at the time of taking cognizance, framing of charge, final argument and even in appeal. In support, reliance is placed on the decision in the case of State of Karnataka, Lokayukta Police v. S. Subbegowda, 2023 SCC Online SC 911 which reads: Having regard to the afore‑stated provisions contained in Section 19 of the said Act, there remains no shadow of doubt that the statute forbids taking of cognizance by the Trial Court against a public servant except with the previous sanction of the Government or authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). It is also a well‑settled proposition of law that the question with regard to the validity of such sanction should be raised at the earliest stage of the proceedings, however it could be raised at a subsequent stage of the trial also. In our opinion, the stages of proceedings at which an accused could raise the issue with regard to the validity of the sanction would be the stage when the Trial Court takes cognizance of the offence, the stage when the charge is to be framed by the Trial Court or at the stage when the trial is complete i.e., at the stage of final arguments in the trial. Such issue could be raised before the Appellate Court in appeal, revision or confirmation, however the powers of such court would be subject to sub‑section (3) and sub‑section (4) of Section 19 of the said Act. It is also significant to note that the competence of the court trying the accused also would be dependent upon the existence of the validity of sanction, and therefore it is always desirable to raise the issue of validity of sanction at the earliest point of time. It cannot be gainsaid that in case the sanction is found to be invalid, the trial court can discharge the accused and relegate the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with the law., In order to buttress the submission that the objection regarding proper sanction can be considered at a later stage, reliance is also placed on the decision of State of Karnataka through Central Bureau of Investigation v. C. Nagarajaswamy, (2005) 8 SCC 370 with special reference to paragraph 16 of the decision which is quoted: But, even if a cognizance of the offence is taken erroneously and the same comes to the appropriate court's notice at a later stage a finding to that effect is permissible. Even such a plea can be taken for the first time before an appellate court. (See B. Saha and Others v. M. S. Kochar, (1979) 4 SCC 177, paragraph 13 and K. Kalimuthu v. State, (2005) 4 SCC 512)., The learned counsel appearing for the defence denied the submission of Mr. Ponda by stating that at each and every stage, the validity of sanction was challenged in the proceedings before the Trial Court. To impress that the objection to the validity of sanction was very much raised at the initial stage, the defence heavily relied on the objection to the sanction raised in the bail application itself. The order of rejection of bail dated 13.06.2014 passed by the Trial Court in Miscellaneous Criminal Bail Application 96/2014 reflects that the validity of sanction was challenged with specific objection that the sanction was not issued after taking into consideration the report of the Advisory Committee. The order states: The learned advocate appearing for the applicant accused also submitted that the sanction to prosecute the accused under the provisions of the Unlawful Activities (Prevention) Act is not legal and valid as the same was not issued after taking into consideration the report of the Advisory Committee. Hence he submitted that the sanction order produced on record is invalid and cannot be considered against the accused. He submitted that in absence of the same, the Trial Court cannot take cognizance of the offence punishable under the Unlawful Activities (Prevention) Act against the accused. For all these reasons he submitted that there is no evidence against the applicant accused to prosecute him under the provisions of the Unlawful Activities (Prevention) Act. The sanction accorded to prosecute the accused under the provisions of the Unlawful Activities (Prevention) Act is invalid. The cognizance of the offences under the provisions of the Unlawful Activities (Prevention) Act cannot be taken against the accused. The learned advocate appearing for the accused also contested that the sanction given by the State Government to prosecute the accused under the provisions of the Unlawful Activities (Prevention) Act is invalid. Hence he submitted that the Trial Court cannot take cognizance of the offence punishable under the Unlawful Activities (Prevention) Act against the applicant accused. For that purpose he submitted that the State Government had not considered the report of the authorised officer before granting sanction. On perusal of the record it has become clear that the State Government had accorded sanction within the period of limitation to prosecute the accused persons under the provisions of the Unlawful Activities (Prevention) Act. At this stage, it will have to be presumed that the sanction was given following due process of law by the State Government. There is nothing on record to show that due process of law was not followed by the State Government while granting sanction. It is the opinion that the same will be decided on merit when the sanction authority is examined. However, at this stage, it will have to be considered that sanction was accorded after following due process of law by the State Government., The above order makes it abundantly clear that at the inception before framing of charge, the validity of sanction was challenged, but the Trial Court has postponed its consideration. It is a matter for consideration as to whether the accused are expected to challenge the sanction midway when the Trial Court has postponed the objections till the conclusion of recording of the evidence., Defence submitted that the line of cross‑examination as well as the arguments advanced before the Trial Court indicates that validity of sanction has been challenged and was the subject matter of scrutiny by the Trial Court. In this regard, we have been taken through the suggestions put in the cross‑examination of PW‑11 Suhas Bawche (Investigating Officer), PW‑18 Mr. K. P. Bakshi, and PW‑19 Dr. Amitabh Ranjan (Sanctioning Authority). Moreover, it is submitted that the Trial Court has exhaustively dealt with the objection to the validity of sanction by spending as many as 58 pages which itself demonstrates that the validity of sanction was very much under challenge before the Trial Court., We have also gone through the cross‑examination of PW‑19 Dr. Amitabh Ranjan who has accorded sanction to accused Nos. 1 to 5. It is evident from the cross‑examination that the process of sanction has been challenged. During cross‑examination, it was suggested that there was no due application of mind. The conclusions were reached without supporting material and thus, sanction was accorded without application of mind. We have also gone through the cross‑examination of PW‑18 Mr. K. P. Bakshi who has accorded sanction as regards accused No. 6 G. N. Saibaba. He was also subjected to lengthy cross‑examination giving various suggestions indicating that the entire material was not produced and the sanction was mechanically accorded without application of mind., After recording of evidence, the accused were examined in terms of Section 313 of the Code. It was one of the arguments advanced by the State that during recording of his statement, the point of sanction was not challenged. We have gone through the statements of the accused to that extent. The accused have specifically denied suggestions to that effect by stating that the evidence is false. For ready reference, the answers given by the accused to sanction‑related questions are as follows: Accused No.1 Mahesh Kariman Tirki – denied, stating to be false. Accused No.2 Pandu Pora Narote – denied, stating to be false. Accused No.3 Hem Keshavdatta Mishra – denied, stating to be false. Accused No.4 Prashant Rahi Narayan Sanglikar – shown ignorance to certain questions and denied, stating to be false. Accused No.5 Vijay Nan Tirki – shown ignorance, stating I do not know. Accused No.6 G. N. Saibaba – denied, stating to be false and a case of false implication., The accused Nos. 1 to 6 have filed point‑wise written notes of arguments (Exhibit 489) in the Trial Court making final submissions on various aspects, and particularly on the validity of the first sanction dated 14.02.2014 which was challenged under a separate caption. The relevant portion of the written notes of argument is extracted: 21.2. Non‑application of mind by Dr. Amitabh Ranjan in granting the sanction dated 15.02.2014. 21.3. Non‑application of mind by the Director of Prosecution in performing the independent review while recommending the sanction. 21.4. Possibility of prior consultation of Dr. Amitabh Ranjan with the interested party before his deposition in the court: prejudice caused to the accused., Likewise, the second sanction order dated 06.04.2015 for accused No.6 G. N. Saibaba was challenged under the following caption: 22.1. Admissions made by Mr. K. P. Bakshi in his cross‑examination causing prejudice to the accused. 22.3. No independent review by the Director of Prosecution. 22.4. Delay in granting sanction which goes beyond the statutory time limit makes the sanction orders invalid and bad in law; no explanation given by the prosecution for the delay, prejudice caused to the accused. 22.5. The office of Director of Prosecution as well as the Director of Public Prosecution are the same: it casts doubt over the independent role to be played by the Director of Prosecution., The above exercise is a complete answer to the submission that the defence has not challenged the validity of sanction before the Trial Court. Rather, the Trial Court has devoted a total of 58 pages (Page Nos. 1772 to 1830 of the paper book) in dealing with the point of sanction. At the first instance, even before framing of charge, sanction was challenged in the bail application itself. The Trial Court specifically concluded that the point of sanction shall be considered after recording of evidence of the Sanctioning Authority. Thus, the objection regarding sanction was kept in abeyance by the Trial Court till the conclusion of evidence. The line of cross‑examination, answers given in the statements recorded under Section 313 of the Code and the written notes of arguments overwhelmingly point out that the sanction was very much challenged before the Trial Court., Needless to say that in the appeal before us, the point of sanction has been exhaustively argued, meaning thereby the question of sanction was one of the main issues in the challenge raised by the defence. Paragraph No. 36 of the appeal memo equally indicates the challenge to the sanction. Therefore, it is not a case to say that the validity of sanction was not challenged at the earliest point of time which is one of the factors for consideration while dealing with the aspect of sanction., Mr. Pais argued another dimension of this issue by bringing to our attention the powers of the Appellate Court in terms of Section 386(b)(i) of the Code of Criminal Procedure, which empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a re‑trial. He argued that the Appellate Court is well empowered to discharge the accused even after conviction, which is provided for in the procedural law itself. According to him, recording of conviction by the Trial Court would by no means foreclose the right of the accused to object to the legality of sanction in appeal and claim discharge., Though Sub‑clause (2) to Section 465 of the Code contemplates that the objection to the sanction shall be raised at an earlier stage, the Section itself postulates that the stage of objection is a factor for consideration but not a decisive one. In other words, Sub‑clause (2) conveys that ideally objection to lack of sanction shall be raised at an earlier stage and said would be considered while dealing with the objection. By no means would Sub‑clause (2) convey that objections to sanction, if raised at a belated stage, shall not be considered. Moreover, we have sufficiently demonstrated above that the validity of sanction was challenged in the Trial Court., Mr. Dharmadhikari, the learned senior counsel, took us through Sub‑clause (1) to Section 465 of the Code to contend that the language employed in the Section itself is specific and which cures procedural errors, omissions, or irregularity, but it does not speak about omission of sanction. Sub‑clause (1) states that any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or other proceedings under this Code are curable. As regards sanction, the section is specific that any error or irregularity in the sanction would be saved. Emphasis is laid on the later part of Sub‑clause (1) pertaining to sanction which only speaks about error or irregularity and not about omission., It is argued that the word omission, pertaining to the former part of the Section, is about other irregularities which do not cover sanction. Mr. Ponda responded that the former part about error, omission, and irregularity pertains to the proceedings before the Trial Court which, according to him, includes sanction. We are not in agreement with this submission because, if such an interpretation is accepted then there would be no reason to make a separate reference in the later part of the section pertaining to sanction, which speaks about error or irregularity and not the omission. The above submission assumes significance in the context of language employed in Section 465 of the Code which saves error or irregularity of sanction and not the omission which is the case relating to accused No.6 G. N. Saibaba., Mr. Chitale, learned counsel for the prosecution, would submit that this is not a case of omission of sanction concerning accused No.6 G. N. Saibaba, but it is a case of delayed sanction for accused No.6 G. N. Saibaba. Admittedly, when cognizance was taken and charge was framed, there was no sanction for prosecution of accused No.6 G. N. Saibaba and thus, under the colour of delayed sanction, we cannot assume that while taking cognizance, there was a valid sanction which was a mandate of law in terms of Section 45(1) of the Unlawful Activities (Prevention) Act. The negative language employed in the statute under Section 45(1) of the Unlawful Activities (Prevention) Act precludes the Court from taking cognizance in the absence of sanction and thus, it is a vital stage as there is a complete prohibition on the Court to take cognizance in the absence of sanction., Mr. Ponda relied on the decision of the Supreme Court of India in State of Madhya Pradesh v. Bhooraji and others, (2001) 7 SCC 679 to contend that a procedural irregularity does not vitiate the trial unless failure of justice has been demonstrated. The competent court would not cease having competence merely because there happens to be a procedural lapse. In that case, the long‑drawn trial for offences under the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act resulted in conviction. The Investigating Agency had directly filed a charge‑sheet in the special Court, which, after taking cognizance, ended the trial in conviction. The accused filed appeal before the High Court of Madhya Pradesh. During the pendency of the appeal, the Supreme Court, while deciding the case of Ganguli Ashok, held that committal proceedings are necessary for special Courts to take cognizance. Till that decision, the Full Bench decision of the Madhya Pradesh High Court in the case of Anand Swaroop was followed holding that, for proceedings under the Scheduled Castes and Scheduled Tribes Act, committal orders are not required. However, taking note of the change in legal position, the Madhya Pradesh High Court held that the trial without committal was without jurisdiction and thereby, quashed the entire trial and returned the charge‑sheet for re‑submission., In the aforesaid background, in the case of Bhooraji, the Supreme Court of India considered that there were demerits for the accused at the stage of committal prior to the introduction of the Code of 1973, however the Court noted that after the Code of 1973 came into operation, there are no disadvantages to the accused at the stage of committal. The Court held that the procedural irregularity does not make a validly constituted Court incompetent on account of such irregularity. The issue of sanction was not involved in the said decision., On the same line, the prosecution relied on the decision of the Supreme Court of India in the case of Rattiram and others v. State of Madhya Pradesh, (2012) 4 SCC 516, wherein the decision rendered in Bhooraji was held to be the correct position of law. In Rattiram, the trial under the provisions of the Scheduled Castes and Scheduled Tribes Act had commenced and concluded without committal of the case to the Court of Sessions. It was canvassed that by virtue of the bar created under Section 193 of the Code, the entire trial stood vitiated. The Court considered the substantive rights enjoyed by the accused prior to committal in context with the old Code of 1898. After the new Code of 1973, the Magistrate was only required to see whether the offence was exclusively triable by a Court of Sessions. The Court held that, since the accused did not have substantial rights at the time of committal under the new Code, there was no occasion for failure of justice. Considering the position in the light of Section 465 of the Code, it was observed that procedural lapses which do not vitiate the valuable rights of the accused would not frustrate the trial as there is no failure of justice. The issue of invalid sanction or no sanction was not considered in the context of Section 465 of the Code., Our attention has been invited to the decision of Kalpanath Rai v. State (through Central Bureau of Investigation), (1997) 8 SCC 732 to contend that the legislature purposefully introduced Sub‑clause (2) to Section 465 of the Code of 1973 to save failure of prosecution on mere error or irregularity in prosecution. Merely because an objection is raised at an earlier point of time, it does not invalidate the proceedings, but it is only one of the considerations to be weighed. The relevant observations are: When Parliament enacted the present Code they deliberately incorporated the words “any error or irregularity in any sanction for the prosecution” in Section 465 of the present Code as they wanted to prevent failure of prosecution on the mere ground of any error or irregularity in the sanction for prosecutions. An error or irregularity in a sanction may, nevertheless, vitiate the prosecution only if such error or irregularity has occasioned failure of justice. Sub‑section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of the irregularity of sanction if objection thereto was raised at the first instance itself. The subsection only says that “the Supreme Court of India shall have regard to the fact” that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does not mean that if objection was raised at the earlier stage, for that very reason the irregularity in the sanction would spoil the prosecution and transmute the proceedings into a void trial., Undisputedly, by virtue of Sub‑section (2) of Section 465 of the Code, error or irregularity in sanction is saved, unless failure of justice has occasioned. It is a question of fact whether, in the context of the given facts, the process of sanction can be termed as mere error or irregularity and if so, whether failure of justice has occasioned., Prosecution relied on the decision of the Supreme Court of India in the case of Girish Kumar Suneja v. Central Bureau of Investigation, (2017) 14 SCC 809 under the provisions of the Prevention of Corruption Act to contend that mere absence or error or irregularity in grant of sanction does not vitiate the proceeding in absence of raising objection at the initial stage. Moreover, after judicial scrutiny and the conclusion of guilt, the point of absence or error or omission would become inconsequential. The relevant observation made in paragraphs 67 and 77 are as follows: In CBI v. V. K. Sehgal, (1999) 8 SCC 501, it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the appropriate court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become surplusage. The necessity of a sanction is only as a filter to safeguard public servants from frivolous or mala fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential., In the said decision a note was taken of the specific provision of Section 19 of the Prevention of Corruption Act pertaining to the previous sanction for prosecution. Relying on the decision in the case of V. K. Sehgal, it has been observed that absence or error or omission or irregularity in grant of sanction would not ipso facto result in failure of justice. Moreover, if objection to the sanction has not been raised at the initial stage, post‑conviction such absence, error or irregularity would become surplusage. The term failure of justice has been explained as it cannot be equated to miscarriage of justice or a violation of law, but is much more than that.
id_1052	3	The decision was rendered in the context of the provisions of Section 19 of the Prevention of Corruption Act pertaining to previous sanction for prosecution. Notably, Sub‑clause (3) to Section 19 of the Prevention of Corruption Act is a specific provision to cure or save any error, omission or irregularity in the sanction. For convenience, clause (3) to Section 19 of the Prevention of Corruption Act is extracted below:\n\n(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),\n\n(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Supreme Court of India in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub‑section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;\n\n(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;\n\n(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (Emphasis supplied.), Clause (3) of Section 19 of the Prevention of Corruption Act gives overriding effect to the provisions of the Code of Criminal Procedure. It provides that the sanction does not vitiate the proceeding on the ground of absence of, or any error, omission or irregularity in the sanction unless, in the opinion of the Court, a failure of justice has been occasioned. The clause specifies the term omission, which is not the position in case of Section 465 of the Code pertaining to sanction, on which much emphasis is laid by the prosecution. Sub‑clause (1) of Section 465 of the Code saves procedural irregularities which are omissions, but the later portion pertaining to sanction only cures the error or irregularity in the sanction and does not speak about omission of sanction., The Prevention of Corruption Act has a specific in‑built provision under Section 19(3)(a) to save omission in sanction, which is not the position under Section 45 of the Unlawful Activities (Prevention) Act, which does not contain such an arrangement. Moreover, the Unlawful Activities (Prevention) Act being a special stringent statute, observations made in a different context cannot be applied in light of the specific requirements of Section 45(2) of the Unlawful Activities (Prevention) Act., Nishan Singh v. State of Punjab (2008) 17 SCC 505 was a case under Section 302 of the Indian Penal Code. The issue concerned non‑compliance with the provisions of Section 319(4)(a) of the Code, which provides that on addition of an accused the proceeding shall be commenced afresh and witnesses shall be reheard. In that context, the Supreme Court reiterated the principles enunciated in V. K. Sehgal. Being different on facts and issues, the decision is of no assistance to the prosecution., Mr. Ponda relied on the Supreme Court decision in Pradeep S. Wodeyar v. State of Karnataka (2021) SCC Online SC 1140 to contend that generally a finding or order is not reversible due to irregularity unless a failure of justice is proved. The objection about irregularity should be raised at the earliest opportunity. The Court considered the purport of Chapter XXXV of the Code, which relates to irregular proceedings. Relevant paragraphs 46 and 47 of that decision state:\n\n46. Rattiram distinguished Gangula Ashok on the basis of the stage of the proceedings since the trial had not begun in the latter but was completed in the former. Rattiram does not hold that Section 465 CrPC would not be applicable to pre‑trial cases. The differentiation between trial and pre‑trial cases was made only with reference to sub‑section (2) of Section 465. Since the cognizance order was challenged after the trial was over, the accused could not prove failure of justice in view of Section 465(2). However, Section 465(2) only provides one of the factors to be considered while determining if there has been a failure of justice. Section 465(2) by corollary does not mean that if the alleged irregularity is challenged at an earlier stage, failure of justice is deemed to be proved. Even where the challenge is made before the trial begins, the party has the burden of proving a failure of justice. Further, even if the challenge is made before the trial begins, the Court still needs to determine if the challenge could have been made earlier.\n\n47. The test for determining failure of justice for the purpose of Section 465 is whether the irregularity has caused prejudice to the accused. No strict formula can be applied. While determining failure of justice, the Courts may consider, inter alia, the stage of challenge, the seriousness of the offence, and apparent intention to prolong proceedings. It must be determined whether the failure of justice would override the concern of delay in the conclusion of the proceedings and the objective of the provision to curb frivolous litigation. (Emphasis supplied.), In Pradeep Wodeyar (supra), relating to the provisions of the Mines and Minerals Act, 1957, the Supreme Court considered the effect of irregularity in committal proceedings and its consequence in the context of failure of justice. Emphasis was laid on the test as to whether the irregularity has caused failure of justice with reference to the stage of challenge., The prosecution relied on the decision in V. K. Sehgal. Relevant paragraphs 10 and 11 state:\n\n10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether lack of valid sanction had in fact occasioned failure of justice, sub‑section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised such an objection at the early stage, it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. An accused who did not raise it at the trial stage cannot sustain such a plea made for the first time in the appellate court.\n\nIn Kalpnath Rai v. State (through CBI), the Supreme Court observed in paragraph 29:\n\n29. Sub‑section (2) of Section 465 of the Code is not a carte blanche for rendering all trials vitiated on the ground of irregularity of sanction if objection thereto was raised at the first instance. The sub‑section only says that the court shall have regard to the fact that objection has been raised at an earlier stage. It is only one consideration and does not mean that if objection was raised early, the irregularity in the sanction would spoil the prosecution and render the proceedings void.\n\n11. Where the accused failed to raise the question of valid sanction, the trial would normally proceed to its logical end with judicial scrutiny of the entire material. If that case ends in conviction, there is no question of failure of justice on the mere premise that no valid sanction was accorded, because the purpose of the sanction is to safeguard public servants from frivolous, mala fide or vindictive prosecution. Once the judicial filtering process is over, the purpose of the initial sanction becomes surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure. (Emphasis supplied.), In this decision relating to the Prevention of Corruption Act, the issue of competence of the sanctioning authority was raised for the first time in appeal, which is not the case here., Reliance is placed by Mr. Ponda on the Supreme Court decision in Rajmangal Ram v. State of Bihar (2014) 11 SCC 388 to impress that unless the Court reaches the conclusion that a failure of justice has been occasioned, error, omission or irregularity in sanction may not be entertained. In that decision, the objection about sanction was raised midway through the trial. Taking note of the specific provision of Section 19(3) of the Prevention of Corruption Act, read with Section 465 of the Code, it is expressed that under both enactments any error, omission or irregularity in the sanction does not vitiate the eventual conclusion in the trial unless a failure of justice has occurred. The aspect of failure of justice would be considered after leading evidence and not at the midst of the trial., Our attention has been invited to the Supreme Court decision in Deepak Khinchi v. State of Rajasthan (2012) 5 SCC 284, a case under the Explosive Substances Act. In that case, sanction was accorded after three years of the occurrence which took the lives of fourteen innocent persons. Before framing charge, the Court directed the prosecution to obtain sanction, for which there was a delay of three years. It was observed that a three‑year delay in obtaining sanction cannot be considered fatal, but it is a duty of the Court to ensure that the perpetrators are tried and convicted if offences are proved., Though Mr. Ponda relied on the decision in V. K. Sasikala v. State represented by Superintendent of Police (2012) 9 SCC 771, that decision is of no assistance. In that case, the issue was denial of access to documents in custody of the Court, not reliance by the prosecution. It was ruled that the objection of prejudice, if raised by the accused, should be dealt with by the Court immediately., Mr. Ponda relied on the Supreme Court decision in State of Madhya Pradesh v. Virender Kumar Tripathi (2009) 15 SCC 553 to contend that in the absence of pleadings about failure of justice, the objection to the validity of sanction cannot be entertained. Relevant paragraphs read:\n\n9. The High Court failed to consider the effect of Section 19(3) of the Prevention of Corruption Act. The provision makes clear that no finding, sentence or order passed by a Special Judge shall be reversed or altered by a court of appeal on the ground of absence of or any error, omission or irregularity in sanction required under sub‑section (1) of Section 19 unless, in the opinion of the Court, a failure of justice has in fact been occasioned.\n\n10. In the instant case there was not even a whisper or pleading about any failure of justice. The stage when this failure is to be established is yet to be reached since the case is at the stage of framing of charge; whether failure has in fact been occasioned was to be determined once the trial commenced and evidence was led. In this connection the decisions of this Court in State v. T. Venkatesh Murthy [2004(7) SCC 763] and in Prakash Singh Badal v. State of Punjab [2007(1) SCC 1] need to be noted. The High Court’s view quashing the proceedings cannot be sustained and the State’s appeal deserves to be allowed., The decision in State of Karnataka v. Kuppuswamy Gownder and others (1987) 2 SCC 74 has been cited to contend that unless failure of justice is pleaded and proved, the trial cannot be quashed. Relevant observation:\n\nIt is clear that even if the trial before the III Additional City Civil and Sessions Judge took place in a division other than the Bangalore Metropolitan Area, the trial could not be quashed in view of Section 462. This shows that even if a trial takes place in a wrong place where the Court has no territorial jurisdiction, unless failure of justice is pleaded and proved, the trial cannot be quashed. The scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction, merely on the ground of lack of territorial jurisdiction or procedural irregularity, an order or sentence awarded by a competent court could not be set aside unless prejudice is pleaded and proved, which will mean failure of justice. In the absence of such a plea, the order or sentence passed by a competent court could not be quashed. (Emphasis supplied.), The above decision was rendered in the context of the specific saving provision of Section 462 of the Code. It was observed that on the ground of mere technicality or lack of territorial jurisdiction the sentence cannot be set aside unless failure of justice is shown. The issue of validity of sanction was not involved in that decision., On a similar line, attention was drawn to the Supreme Court decisions in Mohd. Shahabuddin v. State of Bihar and others (2010) 4 SCC 653 and Fertico Marketing and Investment Private Limited v. CBI and another (2021) 2 SCC 525 to emphasise the importance of pleadings of failure of justice. In Mohd. Shahabuddin, the issue was the place of sitting of the Court in context with Section 462 of the Code. In a CBI investigation, prior consent under Section 6 of the Delhi Special Police Establishment Act was not obtained to investigate a public servant, which was accorded later. Absence of pleading about prejudice to the accused was considered., The learned defence counsel argued that the material defect in the grant of sanction goes to the root of the case. In view of the special requirement of Section 45(2) of the Unlawful Activities (Prevention) Act, in the absence of valid compliance, sanction vitiates the whole process and is an incurable defect. It is submitted that the general provisions of the Code, namely Section 465, would protect procedural irregularities but not fundamental defects that go to the root of the case. According to the defence counsel, the legislative object of providing twin layers of protection was frustrated by a flagrant breach committed by the reviewing authority. The material defect itself amounts to failure of justice which touches the fundamental rights of the citizen., Mr. Mandhyan argued that the use of negative words employed in the statute itself shows its mandatory nature. He relied on the Supreme Court decision in Rangku Dutta alias Ranjan Kumar Dutta v. State of Assam (2011) 6 SCC 358, particularly paragraphs 18, 19 and 21:\n\n18. Section 20‑A(1) is a mandatory requirement of law. It starts with an overriding clause and, to emphasise its mandatory nature, uses the expression “No” after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command.\n\n19. There can be no doubt about the mandatory nature of the requirement of this Section. Since the Section has been amended to prevent abuse of the provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Court must examine compliance strictly.\n\n21. Whether the Deputy Superintendent of Police is a District Superintendent of Police is a different question which need not be decided here. One thing is clear: the requirement of approval must be made at the initial stage of recording the information. If there is absence of approval at the stage of recording the information, the same cannot be cured by subsequent investigation by the DSP. Reference is made to the principles laid down by Lord Denning in Benjamin Leonard MacFoy v. United Africa Co. Ltd. (1961) 3 Weekly Law Reports 1405, where he stated that an act which is void is a nullity and cannot be cured., The observations made in the context of Section 20‑A(1) of the Terrorist and Disruptive Activities (Prevention) Act assist in interpreting the mandatory nature of Section 45(1) of the Unlawful Activities (Prevention) Act., To emphasise that a defect in sanction is incurable, reliance is placed on the Privy Council decision in Gokulchand Dwarkadas Morarka v. The Kind (1948) SCC Online PC 3, particularly paragraph 12:\n\nIt was argued that even if the sanction was defective, the defect could be cured under Section 537 of the Code of Criminal Procedure, which provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be altered or reversed on account of any error, omission or irregularity in any proceedings before or during the trial unless such error, omission or irregularity has, in fact, occasioned a failure of justice. The Court held that if the sanction was invalid, the trial Court was not a Court of competent jurisdiction and the defect could not be cured under Section 537. In the absence of a valid sanction, the Court would lose jurisdiction., Mr. Mandhyan relied on the Supreme Court decision in Pulin Das alias Panna Koch v. State of Assam (2008) 5 SCC 89 to emphasise the mandatory nature of the requirement of sanction, stating that Section 3(1) and Section 20‑A mandate that no information about the commission of an offence under this Act shall be recorded by the police without prior approval of the Deputy Superintendent of Police, and no court shall take cognizance of any offence under this Act without previous sanction of the Inspector General of Police or Commissioner of Police., Mr. Mandhyan submitted that the Unlawful Activities (Prevention) Act is a special statute with a dual safeguard in the sanction process which cannot be altered by the general provisions of the Code. Relying on the Supreme Court decision in Dilwar Singh v. Parvinder Singh Alias Iqbal Singh and another (2005) 12 SCC 709, it is contended that in a special statute, the maxim ‘generalia specialibus non derogant’ applies., Reliance is placed on the Supreme Court decision in Rambhai Nathabhai Gadhvi and others v. State of Gujarat (1997) 7 SCC 744 to contend that validity of sanction is sine qua non for enabling the Court to take cognizance. The Court observed:\n\nTaking cognizance is the act which the designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. The latter is a condition precedent for the former. Sanction contemplated in the sub‑section is the permission to prosecute a particular person for the offence or offences under the Terrorist and Disruptive Activities (Prevention) Act (TADA). A valid sanction is therefore essential for the prosecuting agency to approach the Court and for the Court to take cognizance. If there is no valid sanction, the designated Court has no jurisdiction to try the case, and any proceedings would be without jurisdiction., The above decision relates to the pari materia provision of Section 20‑A(2) of the Terrorist and Disruptive Activities (Prevention) Act, which provides:\n\n(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.\n\n(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police.\n\nObservations made under similar stringent statutes bear relevance in the context of the Unlawful Activities (Prevention) Act, which runs on the same lines., To emphasise the necessity of a valid sanction, heavy reliance is placed on the Supreme Court decision in Ashrafkhan Alias Babu Munnekhan Pathan v. State of Gujarat (2012) 11 SCC 606, particularly paragraph 34:\n\nFrom a plain reading of the provision it is evident that for the purpose of trial the designated Court is a Court of Session and has all the powers of a Court of Session. While trying the case under the Terrorist and Disruptive Activities (Prevention) Act (TADA), the designated Court must follow the procedure prescribed in the Code for the trial before a Court of Session. Section 465 of the Code, which falls in Chapter XXXV, covers cases triable by a Court of Session also. Hence, the prosecution can take shelter behind Section 465 of the Code, but Section 465 shall not be a panacea for all error, omission or irregularity. Omission to grant prior approval for registration of the case under TADA by the Superintendent of Police is not the kind of omission covered under Section 465 of the Code. It is a defect that goes to the root of the matter and is not a curable defect., The Court observed that the defect in sanction goes to the root of the case and is not a curable defect. The provisions of a stringent and harsh statute must be strictly followed. Omission in prior approval in taking cognizance under a similar statute, the Terrorist and Disruptive Activities (Prevention) Act (TADA), is not a curable defect under Section 465 of the Code. These observations are relevant since both statutes are designed to combat terrorist acts., Mr. Pais relied on the decision in Nanjappa v. State of Karnataka (2015) 14 SCC 186 to contend that grant of proper sanction is sine qua non for taking cognizance and that the plea of no sanction can be raised for the first time before the appellate court. Relevant paragraph 22 reads:\n\nThe legal position regarding the importance of sanction under Section 19 of the Prevention of Corruption Act is clear. The statute forbids taking cognizance by the Court against a public servant except with the previous sanction of an authority competent to grant such sanction in terms of clauses (a), (b) and (c) to Section 19(1). The question regarding validity of such sanction can be raised at any stage of the proceedings. The competence of the court trying the accused depends upon the existence of a valid sanction.
id_1052	4	In case the sanction is found to be invalid the Supreme Court of India can discharge the accused relegating the parties to a stage where the competent authority may grant a fresh sanction for the prosecution in accordance with law. If the Trial Court proceeds, despite the invalidity attached to the sanction order, the same shall be deemed to be non est in the eyes of law and shall not forbid a second trial for the same offences, upon grant of a valid sanction for such prosecution. (Emphasis supplied), Mr. Pais further relied on the decision of the Supreme Court in Seeni Nainar Mohammed where, having regard to the stringent provisions of the Terrorist and Disruptive Activities (Prevention) Act with special reference to Section 20-A, it is observed that non‑compliance of those provisions vitiates the proceedings. Relying on the decision in the case of Ashrafkhan, it is expressed that TADA being a stringent penal statute, it requires strict interpretation and failure may vitiate the entire proceeding. In this regard, we may reproduce paragraphs 11 and 21 of the decision which read thus:, We, without hesitation, are of this considered opinion that the answer to this question is in the negative for settled principle of non‑application of mind by sanctioning authority while granting approval for taking cognizance under TADA Act and undermining the objective of the Act. This relevant provision was inserted by Act 43 of 1993 which came into force on 23.05.1993 which is prior to the date of commission of the offence i.e., 10.10.1994 disputed in instant appeal which makes it crystal clear that Section 20-A(1) of TADA must be construed by indicating that prior approval from the competent authority is mandatory for taking cognizance of offence punishable under TADA. However, it shall always be borne in mind by the sanctioning authority that application of such provisions which forms part of penal statutes requires strict interpretation and failure to comply with the mandatory requirement of sanction before cognizance is taken, as mentioned in TADA, may vitiate the entire proceedings in the case., A careful reading of the above leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. We are therefore of this considered opinion that as a result of illegal sanction order the criminal proceedings for prosecution under the TADA Act are vitiated entirely. Suffice it to say that the Supreme Court of India under the TADA Act has grossly erred in taking cognizance of the case. (Emphasis supplied), Mr. Pais submitted that the aspect of failure of justice may not occur at the initial stage, but it is to be demonstrated after conclusion of trial. He drew support from the decision of the Supreme Court in the case of Virender Kumar Tripathi, wherein it is observed that whether or not failure has occasioned has to be determined once the trial commences and evidence is led. Similarly, Mr. Pais would submit that all types of errors or irregularity cannot be cured with the aid of Section 465(2) of the Code of Criminal Procedure, nor would delay in raising objections foreclose the right to challenge the legality of sanction. In this regard, he would also rely on the decision in the case of Kalpnath Rai., Mr. Pais heavily relied on the decision of the Supreme Court in the case of Anwar Osman to contend that the Sanctioning Authority is under obligation to accord sanction specific to an offence in relation to the provisions of TADA. It is observed that the question of prior approval or prior sanction goes to the root of the matter and is sine qua non for valid prosecution concerning offences under TADA. The relevant observations made in paragraphs 19, 20 and 21 read thus:, On a bare perusal of Exhibit 57, there is nothing to indicate as to whether the sanctioning authority was conscious of the materials gathered during investigation concerning the accused (respondent No.3), which merely suggested possession and recovery of two walkie‑talkies from him. If that is the only incriminatory material against accused No.3, the sanctioning authority ought to have pondered over the crucial aspects including how such possession would entail commission of any offence punishable under Sections 4 or 5 of TADA. Further, Section 3 of the Terrorist and Disruptive Activities (Prevention) Act posits different offences, namely terrorist acts [Section 3(2)], being party to conspiracy or abetment or knowingly facilitating the commission of terrorist acts [Section 3(3)], harbouring or concealing any terrorist [Section 3(4)], being member of a terrorist gang or terrorist organization involved in terrorist acts [Section 3(5)], and holding any property derived or obtained from commission of any terrorist act [Section 3(6)]. The sanctioning authority was under a bounden duty to accord sanction, specific to offences, from amongst the different offences under sub‑sections (1) to (6) of Section 3 of TADA. Similarly, we are at a loss to know how Sections 4 and 5 of TADA would apply to a case of mere possession of walkie‑talkies. Section 4 refers to disruptive activities whereas Section 5 refers to possession of unauthorized classified arms and ammunition. A walkie‑talkie is certainly not one of those classified arms and ammunition. In our opinion, the purported sanction vide Exhibit 57 also suffers from the vice of non‑application of mind, on this count alone., The necessity of obtaining prior sanction under Section 20‑A(2) need not be underscored considering the draconian provisions of TADA. In our opinion, therefore, even the sanction concerning Accused No.3 dated 1‑4‑2005 (Exhibit 57) does not stand the test of a valid sanction to prosecute him for offences punishable under TADA. Indeed, the prosecution has relied on the evidence of PW10 and PW‑13. That, in our opinion, at best, would suggest that all the relevant papers gathered during the investigation were placed for consideration before the sanctioning authority. The fact remains that Exhibit 57 issued under the signature of A.K. Bhargav, IGP, makes no attempt to even remotely indicate why sanction to prosecution for offences punishable under Sections 3, 4 or 5 of TADA has been accorded to accused No.3 merely on the basis of possession and recovery of two walkie‑talkies from him. Further, he has not been examined by the prosecution which also could have thrown light on that crucial aspect. Therefore, we have no hesitation in concluding that the sanction dated April 2005 (Exhibit 57) is not a valid sanction concerning Accused No.3., We are conscious of the fact that the Designated Court did not frame any issue regarding validity of prior approval under Section 20‑A(1) or prior sanction under Section 20‑A(2). As the question of prior approval or prior sanction goes to the root of the matter and is sine qua non for a valid prosecution concerning TADA offences and including the jurisdiction of the Designated Court, no fault can be found with the Designated Court for having answered that issue at the outset. (Emphasis supplied) In the above decision it has been specifically observed that the issue of prior sanction goes to the root of the matter and is a sine qua non for valid prosecution under TADA. Moreover, our attention has been invited to the observations made therein that the duty of the Sanctioning Authority cannot be underscored considering the draconian provisions of TADA. In the said decision, the Supreme Court, after considering its earlier pronouncements in the case of Seeni Nainar, Ashrafkhan, Rambhai Gadhvi, reiterated the position of law about importance of sanction under a stringent statute and its effect on prosecution., The Supreme Court has consistently emphasized in a series of decisions rendered under similar statutes that validity of sanction is a sine qua non for valid prosecution, and absence thereof vitiates the proceedings. We find these decisions more relevant and appropriate for consideration under the Unlawful Activities (Prevention) Act which was introduced to achieve the same object. In this regard we drew support from the observations of the Supreme Court in the case of Vernon, particularly paragraph 36 thereof, which reads as under: 'When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act.' Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well., Mr. Dharmadhikari drew our attention to the decision of the Supreme Court in the case of Ajmer Singh to emphasize that by virtue of Section 5 of the Code of Criminal Procedure, in the absence of specific provision to the contrary, it would not affect any special or local law for the time being in force., Mr. Dharmadhikari relied on the decision in the case of Prakash to emphasize the need of stricter interpretation of a stringent law, of which paragraph 14 is relevant: 'The more stringent the law, the less is the discretion of the Court. Stringent laws are made for the purpose of achieving its objectives. This being the intendment of the legislature the duty of the court is to see that the intention of the legislature is not frustrated. If there is any doubt or ambiguity in the statutes, the rule of purposive construction should be taken recourse to, to achieve the objectives.' (Emphasis supplied), Mr. Dharmadhikari would submit that a stringent law is to be interpreted strictly. He relied on the decision of the Supreme Court in the case of Karnal Singh with special emphasis on paragraph 6 of the decision which reads as under: 'The NDPS Act prescribes stringent punishment. Hence a balance must be struck between the need of the law and the enforcement of such law on the one hand and the protection of citizens from oppression and injustice on the other. This would mean that a balance must be struck in. The provisions contained in Chapter V, intended for providing certain checks on exercise of powers of the authority concerned, are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions.' (Emphasis supplied), We may take note of the Constitutional Bench decision in the case of Baij Nath, in which while dealing with the provisions of Section 403 (Old Code) about maintainability of a second trial, it is expressed that the trial without sanction is null and void being by a Court not competent. The relevant observations made in paragraph 6 are quoted below: 'If no Court can take cognizance of the offences in question without legal sanction, it is obvious that no Court can be said to be a Court of competent jurisdiction to try those offences and that any trial in the absence of such sanction must be null and void, and the sections of the Code on which learned Counsel for the petitioners relied have really no bearing on the matter. Section 530 of the Code is really against the contention of learned Counsel, for it states, inter alia, that if any Magistrate not being empowered by law to try an offender, tries him, the proceeding shall be void. Section 529(e) is merely an exception in the matter of taking cognizance of an offence under Section 190, subsection (1), clauses (a) and (b); it has no bearing in a case where sanction is necessary and no sanction in accordance with law has been obtained.' (Emphasis supplied), When confronted with various decisions rendered under the provisions of TADA, Mr. Ponda responded by submitting that they are of no assistance in view of the peculiarity of Section 20‑A of the TADA which reads as below: '20‑A. Cognizance of offence.- (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police.' It is canvassed that Section 20‑A(1) opens with a non‑obstante clause which specifically excludes the applicability of the general provisions made under Chapter XXXV of the Code. The decisions rendered under the TADA cannot be made applicable since Section 45 of the Unlawful Activities (Prevention) Act does not open with a non‑obstante clause giving an overriding effect. Though at first blush this submission seems attractive, however the entire Section 20‑A of the TADA requires consideration with its true import. Sub‑clause (1) to Section 20‑A of the TADA opens with a non‑obstante clause giving overriding effect to the general provisions of the Code. The said clause pertains to the prior approval of the District Superintendent of Police for registration of crime. Certainly Sub‑clause (1) gives overriding effect to Section 154 of the Code which mandates the Police Officer to register a crime on receiving information relating to the commission of a cognizable offence. We are afraid to stretch the effect of a non‑obstante clause to Sub‑clause (2) of Section 20‑A of the TADA which pertains to pre‑sanction required for the Court to take cognizance. Sub‑clause (2) of Section 20‑A of the TADA does not open with a non‑obstante clause, but it is akin to Section 45(1) of the Unlawful Activities (Prevention) Act with the only difference that such sanction is only of the Sanctioning Authority specified in the Section.', We cannot equate or import a non‑obstante clause incorporated in Sub‑clause (1) of TADA into Sub‑clause (2) which does not have one. If it was the legislative intent to give overriding effect to Sub‑clause (2) pertaining to sanction, then Sub‑clause (2) would also have been opened with a non‑obstante clause like Sub‑clause (1). We cannot read something which is not provided under the statute. For these reasons, we are unable to accede to the submission of Mr. Ponda for discarding the precedents cited under the provisions of TADA. Rather, in our opinion, TADA was a similar stringent statute made to tackle acts of terrorism. We can trace the genesis for amending the Unlawful Activities (Prevention) Act of 2008 covering terrorist acts to TADA and POTA. These statutes on the same subject introduced with the object of tackling terrorism run on the same lines. Therefore, according to us, the guiding principles laid down by the Supreme Court in the context of TADA would assist us to a great extent compared to other statutes like the Prevention of Corruption Act., Mr. Ponda laid further emphasis on the absence of pleadings and satisfaction on account of failure of justice. It is strenuously argued that the accused have neither pleaded the case of failure of justice on account of irregularity in the sanction, nor has it been demonstrated before us. Adverting to Section 465(1) of the Code, it is canvassed that unless the Court comes to the conclusion that a failure of justice has occasioned, the error or irregularity in sanction is of no consequence., The legislative intent behind Section 465 is to save the prosecution from technical errors or irregularity post‑conviction, that too if it does not occasion failure of justice. The core issue is whether in the given facts, the sanction accorded in the manner as discussed above can be termed as a mere error or irregularity. We have extensively dealt with the issue of sanction in the context of special pre‑requirement under the Unlawful Activities (Prevention) Act. The mechanical exercise done by the Director of Prosecution cannot be termed as a mere curable procedural error or irregularity. In case of mere error or irregularity, it is for the defence to show the failure of justice, but if the sanction itself is void for material defect, it goes to the root of the case and vitiates the entire proceedings which itself is an instance occasioning failure of justice., In addition to Section 465 of the Code, our attention has been invited by the learned special prosecutor to Section 460 of the Code relating to the irregularity which does not vitiate the proceedings. Chapter XXXV of the Code under the caption of irregular proceedings has specified the contingencies in which the irregularity does not vitiate the proceedings (Section 460) and eventualities in which irregularity would vitiate the proceedings (Section 461). It is argued that Section 460(e) of the Code provides that if any Magistrate not empowered by law to take cognizance of an offence under Clause (a) or Clause (b) of Sub‑section (1) of Section 190 of the Code takes cognizance, it does not vitiate the proceedings. Based upon these provisions in addition to Section 465 of the Code, it has been canvassed that if cognizance is taken without empowerment, it is a curable defect., As a matter of fact, the Unlawful Activities (Prevention) Act being a special stringent statute, the provisions of the Unlawful Activities (Prevention) Act would prevail over the general provisions of the Code. Section 45 of the Unlawful Activities (Prevention) Act specifically precludes the Court from taking cognizance of any offence in absence of valid sanction which goes to the root of the case. The said material deficiency cannot be cured by invoking general provisions of the Code., The next hurdle which the prosecution has to surmount is the challenge to the sanction on account of non‑application of mind by the Sanctioning Authority. It is argued that both the Sanctioning Authorities have not applied their mind nor satisfied themselves about sufficiency of material to put the accused on trial. The relevant material and the relevant facts in relation to the commission of offence were not considered by the authority. Particularly, it is submitted that the CFSL report was not available for consideration by the Sanctioning Authority and PW‑19 Dr. Amitab Ranjan despite that made a statement about perusal of the CFSL report. Moreover, it is submitted that the approach of the Sanctioning Authority was casual and has merely approved the draft sanction forwarded by the Investigating Officer., Mr. Pais would submit that in order to demonstrate due application of mind by the Sanctioning Authority, the entire relevant material must be placed before the Authority. For this purpose, he relied on the decision of the Supreme Court in the case of Navjot Sandhu. In the said decision, it is observed that the test to be applied is whether relevant material that forms the basis of allegations constituting the offence was placed before the Sanctioning Authority and the same was perused before granting sanction (paragraph 16). It is also observed that grant of sanction is an executive act and the validity thereof cannot be tested in the light of principles applied to a quasi‑judicial order., Mr. Pais relied on the decision of the Supreme Court in the case of Ashok Kumar to contend that the entire relevant record must be placed before the Sanctioning Authority who in turn applies its mind to this material and passes an order of sanction. From following such process one can conclude that the authority has applied its mind. The relevant observations made in paragraph 16 are as under: 16.1. The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge‑sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction. 16.2. The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction. 16.3. The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. 16.4. The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material. 16.5. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law., No doubt, grant of sanction is a sacrosanct act and is intended to provide safeguard against frivolous and vexatious litigation. The Sanctioning Authority after being apprised of all the fact, must form an opinion that prima facie case is made out. Application of mind by the Sanctioning Authority is a sine qua non for valid sanction. Moreover, sanction order must speak for itself and enunciate that the authority has gone through the entire record of the investigation. Sanction as regards to accused Nos. 1 to 5 has been accorded by the Additional Chief Secretary, Home Department Dr. Amitabh Ranjan whilst sanction for accused No.6 G.N. Saibaba was granted by the Additional Chief Secretary, Home Mr. K.P. Bakshi. Both the Sanctioning Authorities have been examined by the prosecution. We have gone through the evidence of the Sanctioning Authorities on the canvas of objection about non‑application of mind., It is the evidence of PW‑19 Dr. Amitabh Ranjan that on 11.02.2014, his office received the independent review report from in‑charge Director of Prosecution under signature of Mrs. Gundecha (Exhibit 358). On 13.02.2014, the Section Officer and Deputy Secretary of Home studied the file which he received on 14.02.2014 for accorded sanction. It is his evidence that along with the file, he received all investigation papers, calendar of events and opinion of Director of Prosecution along with 257 pages. He deposed that he carried the file to his residence for study. He has gone through the investigation papers, CFSL report, soft copies of the electronic data, mirror images of hard copies containing the electronic gadgets. It is his evidence that after going through all the documents, he came to the conclusion about commission of offence and accorded sanction against accused Nos. 1 to 5 for the offence punishable under Sections 13, 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act which is Exhibit 17., PW‑19 Dr. Amitabh Ranjan has been subjected to cross‑examination. Certain technical as well as factual suggestions were put to him, however, overall he has withstood cross‑examination. True, CFSL report was not available, however, he has categorically deposed that mirror images of hard copies have been perused. Pertinent to note that Director of Prosecution though recommended grant of sanction against accused Nos. 1 to 6, has not granted sanction to accused No.6 G.N. Saibaba who was not arrested. We have gone through the sanction order (Exhibit 17) dated 15.02.2014 along with the schedule. Grant of sanction is an administrative act which cannot be evaluated like a quasi‑judicial order. In that view of the matter, we are not inclined to accept the case of non‑application of mind on his part., We have also gone through the evidence of PW‑18 Mr. K.P. Bakshi who has accorded sanction for accused No.6 G.N. Saibaba. It is his evidence that on 15.02.2015, his office received proposal for sanction which he forwarded to the Director of Prosecution for independent review on 26.02.2015. He received the independent review on 04.03.2015. It is his evidence that all the documents including search warrant, investigation papers, CFSL report, hard copies certified by the CFSL, all seizure panchnamas, arrest panchnamas and other papers were submitted to him. He deposed that he has studied the file and gone through all the documents. He was subjectively satisfied that there is a prima facie case against accused No.6 G.N. Saibaba for commission of offence punishable under Sections 13, 18, 20, 38, 39 of the Unlawful Activities (Prevention) Act. He came to the conclusion that it was a fit case for grant of sanction and accordingly passed the sanction order on 06.04.2015 (Exhibit 349). His cross‑examination does not reflect anything to construe the non‑application of mind. Such an inference cannot be drawn easily by conjecture and surmise. The grant of sanction is an executive act which cannot be treated at par with quasi‑judicial order. Therefore, we are not inclined to accept the defence submission that the sanction order suffers from non‑application of mind by the Sanctioning Authority., We have given thoughtful consideration to the various precedents cited by both sides. Though Mr. Ponda would submit that he has cited more Supreme Court decisions rendered by a three‑judge bench, however, we are not impressed by said submission, since the applicability matters more than the number of citations. We have carefully gone through all the reported decisions and considered their applicability to the facts of this case. Most of the decisions pertain to a specific provision under the Prevention of Corruption Act and the error in non‑committal of proceedings and of like nature., Stringent nature of the provisions of the Unlawful Activities (Prevention) Act necessitates us to consider the precedents rendered by the Supreme Court relating to the provisions of TADA which was a statute running on parallel lines, introduced with the same object. The necessity of obtaining prior sanction under Section 45(1) of the Unlawful Activities (Prevention) Act cannot be underscored in view of the stringent provisions of the Unlawful Activities (Prevention) Act. The Unlawful Activities (Prevention) Act, which is harsh containing stringent provisions prescribing procedure substantially departing from the ordinary law, cannot be considered casually or liberally. In the case of Ashrafkhan, the Supreme Court in the context of invalid sanction considered the effect of general provisions of Section 465 of the Code of Criminal Procedure. It is worthwhile to note that in the said context, it has been observed that Section 465 of the Code shall not be a panacea for all errors, omissions or irregularities. The omission to grant prior approval for prosecution is not a kind of omission covered under Section 465 of the Code. It is a defect which goes to the root of the matter and it is not one of the curable defects., In the latter decision of Seeni Nainar Mohammed, the Supreme Court reiterates that the penal statute requires strict interpretation and failure to comply with the mandatory requirement of sanction before cognizance is taken, as mentioned in TADA, may vitiate the entire proceedings in the case. With those observations, the Supreme Court concluded that as a result of illegal sanction order, the criminal proceedings for prosecution under the TADA Act are vitiated entirely. The Supreme Court, considering its earlier pronouncements in the case of Rambhai Gadhvi, Ashrafkhan, and Seeni Nainar Mohammed, has reinforced the said view in its later decision in the case of Anwar Osman that in a stringent statute like TADA prior sanction goes to the root of the matter and is sine qua non for valid prosecution. Moreover, it is observed that the duty of the Sanctioning Authority cannot be underscored considering the draconian provisions of the TADA. The line of consistent decisions rendered in the same field postulates that valid sanction for prosecution is sine qua non and in absence, vitiates the entire proceedings., We have elaborated that the accused have objected to the validity of sanction during trial right from the bail application till final arguments. It is not a case that post conviction, first time in appeal the objection to the validity of sanction has been raised. Rather the Trial Court while rejecting bail, postponed the objection for consideration till recording of the evidence., We have no doubt that the report concerning accused Nos. 1 to 5 was a mechanical empty formality complied by the Director of Prosecution. The report is bereft of material to display consideration to arrive at the conclusion of existence of a prima facie case. We have already elaborated above that when terrorist acts have been expansively brought under the umbrella of the Unlawful Activities (Prevention) Act, the additional filter was provided with the object of providing one more safeguard. Revisiting Sub‑clause (2) of Section 45 of the Unlawful Activities (Prevention) Act makes the legislative intent clearer, that the Sanctioning Authority is bound to consider the report of an independent authority before taking a decision. The laconic half‑page communication cannot be called a report since there is no material found therein to infer that the authority has reviewed the evidence gathered and formed a particular opinion on that basis. The very legislative intent was for the report to assist the Sanctioning Authority in arriving at the conclusion by going into the report of the independent authority., Section 48 of the Unlawful Activities (Prevention) Act postulates that the provisions of the Unlawful Activities (Prevention) Act or Rules made thereunder shall have overriding effect over anything inconsistent therewith contained in any other enactment.
id_1052	5	The very intent of the legislature is to give primacy to the provisions of the Unlawful Activities (Prevention) Act (UAPA), meaning thereby it shall be followed in a stricter sense. The principle expressed in the maxim generalia specialibus non derogant applies, i.e., if a special provision has been made in a certain matter, it has overriding effect over the general provision. Consequently, the general provisions of the Code cannot save acts that are not in tune with the special provisions of the UAPA. The stringent provisions of the UAPA preclude the Supreme Court of India from taking cognizance of an offence in the absence of sanction accorded in the manner provided by Section 45 of the UAPA. The statute provides a special mechanism for the process of sanction, which is a statutory requirement to make the sanction legal and valid. This special arrangement cannot be equated with the general provisions of the Code nor can it be frustrated by applying the general law. Every statutory safeguard made by a special statute must be followed scrupulously. The line of decisions rendered by the Supreme Court of India in the parallel legislation, the Terrorist and Disruptive Activities (Prevention) Act (TADA), provides the best guide to interpret the provisions of the UAPA. In the case of Anwar Osman (supra), the Supreme Court of India succinctly ruled that a valid sanction is a sine qua non and its invalidity vitiates the trial. The present case falls on the same lines, persuading us to hold that the sanction is in variance with the special requirement of the UAPA and would go to the root of the matter, making the entire process invalid., As observed above, besides a half‑page communication to go ahead, there is nothing on the part of the authority to demonstrate its consideration. Scanty communication of the Director of Prosecution does not stand the test of a valid report expected under the special law. Consequently, the sanction accorded in the absence of compliance with the mandatory prerequisite cannot be termed a valid sanction within the meaning of Section 45(2) of the UAPA. This fundamental error has invalidated cognizance as being without jurisdiction. Such a defect is fatal and cannot be cured by the aid of the general provisions of the Code. Therefore, the Trial Court could not have taken cognizance of the offence punishable under the provisions of the UAPA for want of a valid sanction., With respect to accused No. 6 G.N. Saibaba, the position is even worse. A valid sanction is a prerequisite for launching prosecution under the UAPA. Section 45(1) of the UAPA imposes a complete embargo on the Court to take cognizance in the absence of sanction. The Trial Court not only took cognizance but also framed charge without sanction. The Trial Court took cognizance and framed charge against accused No. 6 G.N. Saibaba on 21 February 2015, whereas sanction against him was accorded on 6 April 2015 and tendered in the Court on 30 November 2015. Thus, there is total non‑compliance with the sanction provision, which vitiates everything against accused No. 6 from its inception for want of authority of the Trial Court to proceed. In sum and substance, the prosecution against accused No. 6 G.N. Saibaba for want of a valid sanction is also totally vitiated., A further challenge is raised concerning non‑compliance with the time frame in the process of grant of sanction under Section 45(2) of the UAPA, read with Rules 3 and 4 made thereunder. It is argued that the period prescribed under the Rules has not been followed, which vitiates the entire process of sanction. Section 45(2) of the UAPA mandates following the time frame provided under the Rules. Section 45(2) requires sanction for prosecution within such a time as is prescribed, after considering the report of the Authority so appointed., The 2008 Rules are enacted specifically to prescribe the time as mandated in Section 45(2) of the UAPA. Rule 3 prescribes the time for making the report containing recommendations by the Authority to the appropriate Government, whilst Rule 4 prescribes the time limit for issuance of sanction for prosecution by the appropriate Government. Both Rules prescribe seven working days as the time within which the recommendation is to be made and the sanction has to be accorded. Emphasis is laid on the term shall used in Section 45(2) of the UAPA as well as in Rules 3 and 4 of the 2008 Rules. The defence drew support from the decision of the High Court of Kerala in the case of Roopesh, wherein the time limit prescribed in Rules 3 and 4 is held to be mandatory., Conversely, the learned Special Prosecutor submits that during the trial the sanction was not challenged on account of non‑compliance with the time limit prescribed under the Act and Rules. It is contended that the term shall is to be construed in tune with the legislative intent and should be read as may. Particularly, it is submitted that the UAPA does not prescribe any consequence for non‑compliance with the Rules and that prejudice has not been shown to have been caused because of the delay., Generally, the use of the word shall prima facie indicates that a particular provision is imperative, but that is not always so. The meaning to be given to a particular word depends upon the context in which it is used. It is the function of the Supreme Court of India to ascertain the real intention of the legislature by carefully examining the entire scope of the statute, the purpose it seeks to achieve and the consequences that would flow from the construction placed therein. The word shall therefore ought not to be construed merely according to its language, but in the context in which it is used and the consequences of its non‑compliance., The Special Prosecutor heavily relied on the decision of T.V. Usman to contend that the provision as to the time specified shall be construed as directory unless the delay has caused prejudice to the rights of the accused. Paragraph 11 of that decision states: “In Rule 7(3) no doubt the expression ‘shall’ is used but it must be borne in mind that the rule deals with stages prior to launching the prosecution… there is no time‑limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory… if there is some delay, in a given case, there is no reason to hold that the very report is void… a slight delay would not render the report void or inadmissible in law.”, The above decision conveys that the word shall ought to be construed not according to the strict language, but in the context in which it is used and particularly with regard to the consequence or prejudice which would be caused to the other side., With respect to the sanction for accused Nos. 1 to 5 dated 25 February 2014, there is no dispute that the dual time rider has been complied with. However, the order of sanction for accused No. 6 G.N. Saibaba has been challenged on account of non‑compliance with the mandatory time frame prescribed by the statute and Rules. On facts, a proposal for sanction for accused No. 6 was received by the Director of Prosecution on 26 February 2015, whilst the report from the Director of Prosecution was received by the State Government on 4 March 2015. The sanction was accorded by the sanctioning authority, Plaintiff Witness‑18 Bakshi, on 6 April 2015. It is evident that the Director of Prosecution complied with the time limit by forwarding the report within seven days on 4 March 2015; however, the grant of sanction after seven working days from 4 March 2015, which was in fact granted on 6 April 2015, represents a breach of the prescribed time frame., Although the word shall connotes a sense of urgency, the consequence of non‑compliance in a strict sense has not been spelled out under the statute. Neither at the initial stage of the prosecution nor even before us has the defence projected any prejudice from strict non‑compliance with the time frame., The very purport of the provision is to convey that the process has to be complied with and completed in an expeditious manner. Particularly, we have taken into account the contingency which may occur if the word shall in the context is held mandatory. In that case, even a single day's delay would stifle the prosecution intending to curb the act of terrorism. Certainly, the legislative intent behind incorporating the term shall is not to stifle the prosecution on such insignificant technicality, but to convey that the process ought to be completed in an expeditious manner. We are unable to persuade ourselves to accept the contention that the term shall is to be strictly treated as a mandatory provision and failure to comply with the timeline strictly vitiates the process. Therefore, we respectfully defer to the view taken by the High Court of Kerala in the case of Roopesh., We hold that to achieve legislative intent the dual mandate must be complied with in its true spirit. Though a minuscule delay would not thwart the legislative intent, a delay of three weeks, unexplained, would have an adverse impact on the process of sanction. In the present case, the report of the Director of Prosecution (qua accused No. 6 G.N. Saibaba) was received by the sanctioning authority on 4 March 2015, whilst sanction was accorded after a long period of one month, i.e., on 6 April 2015. In such eventuality, it was obligatory on the prosecution to at least explain the circumstances causing this delay. Evidence of Plaintiff Witness‑18 Bakshi is totally silent on this count, nor is any submission canvassed in that regard. Consequently, the long period of unexplained delay works against the legislative spirit embedded in Section 45(2) read with Rule 4 of the 2008 Rules. For this reason also, the sanction is vitiated and the act of the Court taking cognizance without authorization is consequently contrary to the mandate of law. The Trial Court could not take cognizance of the case and acted without jurisdiction., In view of the conclusions reached herein, we are of the considered view that no cognizance could have been taken against any of the accused in the absence of a valid sanction or in the absence of any sanction. To sum up, the first sanction for accused Nos. 1 to 5 was not based upon an independent review of evidence carried out by the Director of Prosecution, and the sanction for accused No. 6 G.N. Saibaba did not exist at the time of taking cognizance by the Special Court despite a statutory bar. Therefore, the very foundation for initiation of prosecution is not in consonance with law, and the order of taking cognizance by the Special Court vitiates the entire further proceedings., Mr. Mandhyan, learned counsel, submits that Section 45 of the UAPA contemplates an independent review or assessment of the evidence, meaning thereby assessment by an independent authority. It is submitted that the Director of Prosecution works under the Home Department and cannot be treated as an independent authority. Undoubtedly, the Director of Prosecution is an authority appointed by the State Government for the purposes of Section 45(2) of the UAPA. The appointment of the Director of Prosecution cannot be questioned in incidental proceedings, which is the subject matter of a separate challenge. The plea that the authority is not independent has not been raised by proper pleadings nor has opportunity been given to the respondent to meet the challenge. The Supreme Court of India in Union of India v. Enforcement Directorate Parry expressed that a Court may not decide a question not raised before it unless the pleadings contain a contention that a particular rule or appointment is bad. Such an exercise would be, of course, by appropriate proceedings in a proper way. In the absence of a specific challenge raised to the competence and independence of the Director of Prosecution as an independent authority, we are not inclined to entertain this objection., At the inception, Mr. Ponda submits that the UAPA is a preventive statute introduced to cope with and tackle acts of terrorism. In order to achieve the object of the UAPA, the statute has provided mandatory presumptions under Section 43‑E of the UAPA, which shift the burden on the accused to explain. He drew our attention to Section 4 of the Indian Evidence Act to contend that when the statute provides the words shall presume, the Court has no choice but to presume a fact unless it is disproved. The burden therefore shifts on the accused to rebut the presumption if definitive evidence suggesting his involvement in a terrorist act has been proved., Mr. Ponda submits that the presumption under Section 43‑E of the UAPA is mandatory since the word shall has been used in the section itself. He relied on the decisions of the Supreme Court of India in the cases of Dhanvantrai Balwantrai Desai v. State of Maharashtra, Hiten P. Dalal v. Bratindranath Banerjee, K.N. Beena v. Muniyappan, Neeraj Dutta v. State (Government of NCT of Delhi), Ram Krishna Bedu Rane v. State of Maharashtra, Sanjay Dutt v. State through C.B.I., Seema Silk & Sarees v. Directorate of Enforcement, Sailendra Nath Bose v. State of Bihar, and State of Madras v. A. Vaidyanatha Iyer, to contend that when the presumption is mandatory, the Court has no choice. It is a presumption of law and therefore it is obligatory on the Court to raise this presumption., The extracted text of Section 43‑E of the UAPA reads: ‘(a) that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence; or (b) that by the evidence of the expert the fingerprints of the accused or any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence, the Court shall presume, unless the contrary is shown, that the accused has committed such offence.’, It is submitted that although Section 43‑E provides a presumption for an offence under Section 15 of the UAPA, Section 15 merely defines the term ‘terrorist act’. The statutory presumption is applicable to all the sections wherever the term ‘terrorist act’ has been employed. In this context, reference is made to Section 18 (punishment for conspiracy) and Section 20 (punishment for member of terrorist gang or organization), which refer to a terrorist act. Accordingly, the presumption would apply in those cases., The learned defence counsel strongly opposed the applicability of the statutory presumption under Section 43‑E, submitting that the presumption is restricted to an offence under Section 15 of the UAPA only to those made punishable under Section 16 of the UAPA. It is submitted that although Section 15 defines ‘terrorist act’, Section 16 provides punishment for a terrorist act and therefore the presumption would apply only to offences under Section 15 read with Section 16., We are unable to accept the submission that wherever the term ‘terrorist act’ has been employed in the statute, a presumption would follow. Had it been the legislative intent to do so, there would have been no necessity to restrict the applicability of the presumption to a prosecution for an offence under Section 15 of the UAPA only. The statutory presumption under Section 43‑E, being part of stringent legislation, requires strict interpretation and any violation would frustrate the rights of the accused., Mr. Ponda contends that under sub‑clause (b) of Section 43‑E, any definitive evidence suggesting the involvement of the accused in the offence, such as seizure of incriminating electronic data, is sufficient to draw the presumption. He submits that the accused are not charged for the offence of terrorist act punishable under Section 16 of the UAPA., Sub‑clause (a) of Section 43‑E requires two essential conditions: (i) recovery of arms, explosives or any other substances specified in Section 15 from the possession of the accused, and (ii) reason to believe that these were used in the commission of a terrorist act. The language of Section 15 makes clear that the substances must be those specified therein and must have been used in a terrorist act. Therefore, sub‑clause (a) is inapplicable where such recovery does not occur., The prosecution heavily relied on sub‑clause (b) of Section 43‑E with particular reference to the finding of definitive evidence such as electronic data. However, the sites from which the material was seized – the Aheri Bus Stand, Chichgarh T‑point, and the residence of accused No. 6 G.N. Saibaba – cannot be construed as the ‘site of the offence’ of a terrorist act. Consequently, the presumption under sub‑clause (b) does not apply., In view of the foregoing, we hold that the mere finding of incriminating material in the form of pamphlets and electronic data cannot be termed a recovery of articles within the meaning of sub‑clauses (a) and (b) of Section 43‑E of the UAPA, and thus the presumption does not apply. Moreover, the statutory presumption applies only to prosecutions for an offence under Section 15 punishable under Section 16 of the UAPA, which is not the case here. Stretching the presumption to other sections would be reading into the provision something not contemplated by the statute., In a nutshell, the prosecution alleges that accused No. 6 G.N. Saibaba sent secret messages stored on a 16 GB memory card relating to the banned terrorist organisation Communist Party of India (Maoist) and its frontal organisation Revolutionary Democratic Front. The secret messenger was accused No. 3 Hem Mishra. A Naxalite lady named Narmadakka sent accused No. 1 Mahesh Tirki and accused No. 2 Pandu Narote to receive accused No. 3 at the Aheri Bus‑stand; all three were apprehended on 22 August 2013, followed by the seizure of incriminating material from their possession., The prosecution also alleges that accused No. 4 Prashant Rahi and accused No. 5 Vijay Tirki were linked with the banned terrorist organisation Communist Party of India (Maoist) and its frontal organisation RDF, and were found in possession of literature belonging to those organisations. The investigation reveals that accused No. 6 G.N. Saibaba was an active member of the Communist Party of India (Maoist) and its frontal organisation RDF, having close connections with the arrested accused. Accused No. 6 sent secret information which led the police to obtain a search warrant and consequently seize incriminating material from his house., The prosecution primarily alleges that the accused conspired, advocated, or abetted the commission of a terrorist act. They were active members of a terrorist organization involved in terrorist activities and were associated with the organization with the intention to further its activities. The prosecution case hinges on the seizure of incriminating material from the accused, which forms the backbone of the entire prosecution., The prosecution case can be divided into three parts leading to the arrest of different accused at different times and places. The first set of arrests, accused Nos. 1 to 3, occurred on 22 August 2013 near the Aheri Bus Stand around 06:15 p.m., on suspicion of involvement in Naxalite activities relating to the banned terrorist organisation Communist Party of India (Maoist) and its frontal organisation RDF. Seizure of certain incriminating material and information extracted during interrogation revealed involvement of accused No. 4 Prashant Sanglikar and accused No. 5 Vijay Tirki, who were arrested on 1 September 2013 at Chichgarh T‑point, Deori, around 06:00 p.m. Further investigation revealed involvement of accused No. 6 G.N. Saibaba, whose house was searched on 12 September 2013, leading to the seizure of voluminous electronic devices. Accused No. 6 was subsequently arrested on 9 May 2014., The prosecution asserts that accused Nos. 1 to 6 were part of a larger criminal conspiracy with other accused who were not under arrest. They planned to wage war against the Government of India. The seizure effected from the different sets of accused discloses their involvement with the terrorist organisation Communist Party of India (Maoist) and its frontal organisation RDF. The organisation is placed in the first schedule of the UAPA as a terrorist organisation vide entry No. 34 in a notification issued under Section 2(1)(m) of the UAPA. It is deemed to have been involved in terrorism by committing, participating, preparing, promoting, or encouraging terrorism., The prosecution further contends that Naxal‑related documents, various communications, and reports of review meetings in electronic form disclose that the accused conspired to commit a terrorist act. According to the prosecution, the accused associated themselves with the terrorist organisation with intent to further its activities, and they intentionally supported the organisation. Seizure of incriminating material in the form of literature and videos indicates that accused No. 6 G.N. Saibaba rejected parliamentary governance and supported an armed struggle against the Government of India and the State of Maharashtra.
id_1052	6	The defence has strongly assailed the seizure itself by making a variety of submissions. Apart from violation of various statutory safeguards provided under the Unlawful Activities (Prevention) Act, it is canvassed that the arrest of accused numbers 1 to 5 itself is not free from doubt. It is their defence that accused number 3 Hem Mishra was already apprehended on 20.08.2013 from Ballarshah and subsequently a scene was created that on 22.08.2013 accused numbers 1 to 3 were arrested from Aheri Bus‑stand. Likewise, it is their defence that accused number 4 Prashant Rahi was taken charge of from Raipur whilst shown to be arrested from Chinchgarh T‑point. It is the defence that the First Information Report was antedated and arrest was fabricated. According to the defence the entire process of arrest and seizure is suspicious. The incriminating material has been planted to suit the purpose of prosecution under the Unlawful Activities (Prevention) Act. Arrest as well as seizure panchnamas were seriously in doubt, not credible and unreliable and a case of fabrication., It is submitted that no incident of violence occurred or is even alleged to have occurred. There is no material to infer the conspiracy since the prosecution has not spelt out what has been conspired to be done by the accused, besides a vague allegation of conspiracy to wage war against the Government., In the light of the above challenge to the process of arrest and seizure, coupled with the fact that the prosecution solely relies on the seizure of incriminating material, the evidence needs close examination. The prosecution, though having examined 23 witnesses, mainly consists of police personnel and panch witnesses. For a bird's‑eye view of the entire evidence, we have extracted this material into a chart prepared by the Trial Court containing the oral and documentary evidence for the sake of convenience., Subject to the relevancy, we have gone through the entire material adduced by the prosecution. For the sake of convenience, we undertake to examine all three seizures along with related evidence separately., The prosecution mainly sought to take shelter of statutory presumption under Section 43‑E of the Unlawful Activities (Prevention) Act claiming that the prosecution led evidence establishing foundational facts and thus, it is for the accused to rebut the presumption. According to the prosecution, electronic evidence in the definitive form suggests the involvement of the accused. Notably, the accused have not been charged for the offence of terrorist act defined under Section 15 and made punishable under Section 16 of the Unlawful Activities (Prevention) Act. We have held above that the presumption is restricted to the prosecution for Section 15 only. Further, we have analyzed Sub‑clause (a) and in particular Sub‑clause (b) and arrived at a conclusion that definitive evidence suggesting involvement in the offence of a terrorist act must be found at the site of the offence i.e. the offence defined under Section 15 of the Unlawful Activities (Prevention) Act and thus, the presumption would not apply., In view of the above conclusion, the onus which generally lies on the prosecution continues to lie on the prosecution. Needless to say that in criminal jurisprudence, it is a well‑recognised principle that the onus of proof lies on the prosecution and is higher than the mere preponderance of probability. The prosecution is under an obligation to establish the guilt of the accused beyond reasonable doubt. The doubt need not be fanciful or imaginary. Though the offences are against the security and integrity of the nation, the law does not dilute the standard of proof, except in cases where statutory presumptions would apply. The prosecution is thus bound to establish the guilt of the accused with the standard of proof ordinarily required to prove criminal offences. In view of this requirement of law, we have analysed and scanned the evidence led by the prosecution to establish the guilt of the accused., At the inception, perceiving a serious challenge to the credibility of evidence, the learned Special Prosecutor submitted that the defective investigation by itself cannot be made a ground for discarding the prosecution case. The story of the prosecution has to be examined apart from the lapses on the part of the Investigating Officer. To substantiate this contention, he relied on various decisions of the Supreme Court in the cases of Allarakha K. Mansuri, Amar Singh, C. Muniappan, Chandan Khan, Paramjit Singh, Paras Yadav, Ram Bali, Mast Ram and K. Yarappa Reddy. We have gone through these decisions laying down propositions pertaining to rules of appreciation of evidence., In the above‑referred decisions, the Supreme Court has emphasized that defective investigation ipso facto would not give the accused a right to claim acquittal. In the case of defective investigation, the Court has to be circumspect in evaluating the evidence. There is a legal obligation on the Court to examine the prosecution evidence carefully to find out whether the evidence is reliable or not, and whether such lapses affect the object of finding the truth. Criminal justice should not be made a casualty for the wrongs committed by the Investigating Officer. Unnecessary importance given to the defects would tantamount to giving a decisive role to the Investigating Officer in the process of reaching the truth., It is a general principle that defective investigation does not vitiate a valid prosecution. However, it is a matter of fact and depends on the facts of each case. If the lapses or irregularities are inconsequential or negligible then they have no impact on the merits of the case. On the other hand, if the defect or lapses on the part of the Investigating Officer raise an entertainable doubt on the fabric of the prosecution, it matters. In short, on the basis of material adduced by the prosecution vis‑à‑vis the defect in investigation, the worth of evidence is to be determined. Keeping in mind this general principle that mere defect would not vitiate a valid prosecution, we have examined the evidence adduced before the Trial Court., The line of challenge requires us to consider each seizure separately and to assess the credibility thereof. For convenience, we have considered the aspect of seizure in three parts: firstly, arrest and seizure of accused numbers 1 to 3 dated 22.08.2013; secondly, arrest and seizure of accused number 4 Prashant Sanglikar and accused number 5 Vijay Tirki dated 01.09.2013; and thirdly, seizure from the house search of accused number 6 G.N. Saibaba dated 12.09.2013., The first limb pertains to the arrest and seizure of accused numbers 1 to 3 dated 22.08.2013. For ready reference, we may recapitulate that it is the case of the prosecution that on the basis of secret inputs about involvement of accused number 1 Mahesh Tirki and accused number 2 Pandu Narote with the banned terrorist organisation CPI (Maoist) and its frontal organisation (RDF), the police were keeping watch on their movements. According to secret information, the police traced them on 22.08.2013 around 06.00 p.m., standing at a secluded place near Aheri Bus‑stand. At about 06.15 p.m. one person wearing a cap on his head came there and started talking with each other in a suspicious manner. The police apprehended them and brought them to the Aheri Police Station. From their personal search, several incriminating articles including three Naxal pamphlets and a 16 GB memory card were seized by drawing a panchnama. It led the police to register a crime and their arrest was effected., The defence has particularly doubted the process of arrest as well as seizure on account of material irregularity, lack of transparency, manipulation and a case of fabrication. In order to demonstrate the improbabilities in the prosecution case, the defence took us through the relevant documents coupled with several admissions given by the relevant witnesses., The evidence of Witness 6, informant Assistant Police Inspector Avhad, Witness 1 Panch witness Santosh Bawne, Witness 10, In‑charge Police Inspector Anil Badgujar and the evidence of Witness 9 Atram is relevant for our purpose. Certain documents also bear relevance: the written First Information Report (Exhibit 219), printed First Information Report (Exhibit 220), carbon copy of the First Information Report (Exhibit 221), spot‑cum‑seizure panchnama (Exhibit 137), arrest panchnamas of accused number 1 Mahesh Tirki (Exhibit 227), accused number 2 Pandu Narote (Exhibit 228) and accused number 3 Hem Mishra (Exhibit 229)., The episode unfolded through the evidence of Witness 6 informant Assistant Police Inspector Avhad. It is his evidence that in pursuance of secret information, on 22.08.2013 at 06.00 p.m., he found accused number 1 Mahesh Tirki and accused number 2 Pandu Narote standing at a secluded place near the Aheri bus stand. Within a short time, one person wearing a cap on his head came there and they started conversing with each other. Finding their movements suspicious, Witness 6 Assistant Police Inspector Avhad took them to Aheri Police Station and briefed the information to Witness 10 Police Inspector Anil Badgujar. In turn, Witness 10 made a preliminary inquiry and, not being satisfied with their explanation, called panch witnesses. In the presence of panch witnesses, personal search of accused numbers 1 to 3 was taken in which various articles were seized., During personal search of accused number 1 Mahesh Tirki, three Naxal pamphlets regarding the banned organisation, one mobile, one pocket purse containing Rs 60, and a platform ticket were found. On search of accused number 2 Pandu Narote, a platform ticket, one mobile, cash of Rs 1,400, election identity card, school leaving certificate and birth certificate were found. On personal search of accused number 3 Hem Mishra, one 16 GB memory card, railway ticket, cash Rs 7,500, one camera, his JNU University identity card, election identity card, one cloth bag and PAN card were found. All articles were seized and taken into custody in the presence of panch witnesses by drawing a panchnama (Exhibit 137) between 06.30 p.m. and 07.55 p.m. on the very day. The panchnama was carried out by Police Inspector Anil Badgujar., During interrogation, it was revealed that accused number 1 Mahesh Tirki and accused number 2 Pandu Narote were deputed by one Naxalite lady Narmadakka to receive a messenger sent by an activist from Delhi (accused number 6 G.N. Saibaba) with important information, and to escort accused number 3 Hem Mishra to Morewad Forest. The police concluded that all were activists of the banned terrorist organisation CPI (Maoist) and its frontal organisation (RDF), hence Witness 6 Assistant Police Inspector Avhad lodged a report (Exhibit 219) at Aheri Police Station around 09.30 p.m. Duty in‑charge Witness 15 Narendra Dube registered crime number 3017/2013 for the offence under the provisions of the Unlawful Activities (Prevention) Act. This was followed by arrest of accused numbers 1 to 3 vide arrest panchnamas exhibits 227, 228 and 229., The prosecution examined Witness 10 Police Inspector Anil Badgujar who was in charge of Aheri Police Station at the relevant time. He stated that Assistant Police Inspector Avhad had brought accused numbers 1 to 3 to Aheri Police Station on that day. He also stated that in his presence personal search of accused numbers 1 to 3 was taken, wherein articles were seized under the panchnama (Exhibit 137) in the presence of two panch witnesses. He deposed that the articles were sealed with wax seals, which was followed by lodging of the report by Witness 6 Assistant Police Inspector Avhad and registration of crime number 3017/2013., Since the process of arrest and seizure has been seriously doubted, we turn to the evidence of panch witness Witness 1 Santosh Bawne, in whose presence seizure and arrest were made. Witness 1 deposed that on 22.08.2013 he went to Aheri Police Station around 06.00 p.m. to 06.30 p.m. having been called by the police. In his presence, personal search of accused numbers 1 to 3 was taken, wherein various articles including three Naxal pamphlets and a 16 GB memory card were seized under panchnama (Exhibit 137). He deposed that seized articles were sealed with wax and that he had identified his signature on the seizure panchnama (Exhibit 137)., The defence has seriously assailed the prosecution case right from the alleged arrest of accused numbers 1 to 3 dated 22.08.2013 and consequent seizure vide panchnama (Exhibit 137). It is their defence that accused number 3 Hem Mishra was already taken into custody by police from Balarash Railway Station on 20.08.2013. The police have prepared a story that all three accused were arrested on 22.08.2013 from the area of Aheri Bus‑stand. It is argued that after planting documents, they have been shown to be arrested on 22.08.2013, which is a high‑handed act of false implication. Various aspects relating to the arrest of accused numbers 1 to 3 have been invited for consideration., It is pointed out that various columns of the First Information Report were purposely kept blank and were filled in later to suit their purpose. There are apparent mistakes and variance in the arrest panchnama which show its falsity. It is argued that Witness 1 Santosh Bawne was a stock panch of the police who is wholly unreliable. Another panch witness was not examined to support the first panch witness. Arrest was made in the presence of a single panch, Narendra Empalwar, however he was not examined. The description of the title of three Naxal pamphlets has not been incorporated in the panchnama. The seized pamphlets (Exhibits 139 to 141) do not bear signatures of panchas or police to vouch their credibility; in fact, they bear no signatures or identification marks., Pursuing the line of objection, we revisited the prosecution evidence. Witness 1 Santosh Bawne admittedly was in the service of the Home Guard attached to Aheri Police Station from the year 2000. At the relevant time he was serving as a home guard with Aheri Police. Though initially he denied being a regular panch, he admits that in the past he has acted as a panch witness in another case. He admits that three pamphlets do not bear the label containing signatures of panch witnesses. He did not remember the heading of the pamphlets which were seized. He stated that another panch, Umaji, was present with him, which is factually incorrect, since the other seizure panch was Narendra Empalwar. He admitted that he does not know the difference between a card reader, pen‑drive and memory card nor can identify the storage capacity of different electronic applications., There is variance in the evidence of police personnel as to who summoned Witness 1 Santosh Bawne for effecting the panchnama. During cross‑examination, Witness 1 stated that he was called by Witness 15 Narendra Dube, but Witness 15 did not claim so. Rather Witness 15 says that at the relevant time he was on station diary duty from 06.00 p.m. to 10.00 p.m. Witness 6 informant Assistant Police Inspector Avhad says that panchas were called by Witness 10 Police Inspector Anil Badgujar, but the latter is not specific in that regard., Be that as it may, it is not material as to who called the panch witnesses; what is relevant is that within just five to ten minutes Witness 1 Santosh Bawne arrived at the police station, admittedly since he was called from another place. The police have not examined another panch witness to gain support in the process of seizure, which is an important facet of the case. Though the fate of the prosecution largely hinges on seizure from accused numbers 1 to 3, the prosecution has not offered any plausible explanation for not examining another panch witness. While it is not necessary to examine a second panch, considering the peculiarity of the case, which is largely dependent on the credibility of the seizure, the prosecution ought to have examined him to remove the needle of suspicion. It appears that only because Witness 1 Santosh Bawne was a Home Guard attached to the same police station for a long time, he was chosen as a panch as a man of confidence of the police. Therefore, it is difficult to treat him as an independent panch witness. Moreover, he was an illiterate person who does not know the difference between different electronic gadgets, which was the material part of the seizure. The alleged arrest was made from Aheri Bus Stand, where there were pan stalls, tea stalls and hotels, from where services of independent/natural panch witnesses could easily have been secured., A great deal of criticism has been made on account of planting, fabrication and registration of antedated First Information Report and arrest. We have gone through the printed First Information Report (Exhibit 220) coupled with its carbon copy (Exhibit 221). It has come in the evidence of Witness 15 Narendra Dube that on the basis of the report lodged by Witness 6 Assistant Police Inspector Avhad (Exhibit 219), he registered crime number 3017/2013. He identified the printed First Information Report (Exhibit 220) and its carbon copy (Exhibit 221). The defence strongly contends that the First Information Report was antedated and prepared later. According to the prosecution, accused number 3 Hem Mishra was brought to Aheri Police Station on 22.08.2013 at 06.15 p.m. After preliminary interrogation by Witness 10 Police Inspector Anil Badgujar, seizure was effected between 06.30 p.m. and 07.55 p.m. followed by registration of the First Information Report at 09.30 p.m. The submission is that it is practically impossible to complete all formalities in this short duration. The chain of events shows that at 06.15 p.m. the accused were first accosted near Aheri Bus‑stand. It would certainly take a few minutes to interact and then some more time would be required to bring them to the police station. According to the prosecution, Witness 6 Assistant Police Inspector Avhad briefed Witness 10 Police Inspector Anil Badgujar who again interacted with the accused, summoned two panch witnesses and thereafter the seizure panchnama was effected. In substance, from the first interaction with the accused at 06.15 p.m., all preliminary steps were taken within just fifteen minutes and then the seizure panchnama commenced, which is improbable and requires to be noted., The printed First Information Report (Exhibit 220) bears the signature of the informant and the signature of Head Constable Witness 15 Narendra Dube. It is argued that Witness 10 Police Inspector Anil Badgujar was not present at the relevant time, which resulted in the signing of form 1‑C of the First Information Report by the Head Constable instead of the Officer in‑charge of the police station. The prosecution has not offered any explanation in that regard., Furthermore, it is argued that Column No. 3(b) and (c) of the printed First Information Report, pertaining to the information about time of receipt of information and general diary reference, contain discrepancies. Witness 6 Assistant Police Inspector Avhad initially avoided stating that the entries in Column No. 3(b) and (c) are in different ink, however he has admitted that the entries in Column No. 3(b) and (c) were subsequently written. He also admits that there is overwriting in the entry at Column No. 3(c) of the carbon copy of the printed First Information Report (Exhibit 221). The copy of the First Information Report (Exhibit 221) is a carbon copy on which the time is mentioned in blue ink, whilst the time and general diary reference are in black ink. No explanation has been offered by the prosecution to remove this doubt., It is the defence case of accused number 3 Hem Mishra that the arrest as alleged by the prosecution is fake. He maintains that he was taken into custody from Balarash Railway Station two days earlier, i.e. on 20.08.2013, and was later implicated in the case. Initially we were taken through the evidence of Witness 9 Atram, examined as an independent witness. According to the prosecution, he was an associate of the accused, but he was examined as an independent witness. Witness 9 Atram deposed that on 20.08.2013 the police called him for interrogation. On that day he went to the police station in the afternoon around 02.00 to 02.15 p.m. During the interrogation he was made to understand that the police had earlier interrogated some accused, on which basis they came to know about his involvement in past acts of handing over cash at the instance of Naxalite lady Narmadakka. He specifically deposed that he knew accused number 1 Mahesh Tirki and accused number 2 Pandu Narote since long. Both once took him to the Naxalite lady Narmadakka and at her instance he received cash of Rs 5,00,000 which was later handed over at Balarash Railway Station by accused numbers 1 and 2 to someone else. This witness was examined to demonstrate the involvement of accused numbers 1 and 2 in Naxal activities., Witness 9 Atram stated that on 20.08.2013 the police came to know about his involvement in the earlier money deal, obviously from the interrogation of accused numbers 1 and 2 themselves. Thus a strong possibility emerges that the police interrogated accused numbers 1 and 2 on 20.08.2013 or prior to that. Moreover, this witness specifically stated that on 21.08.2013 his statement was recorded by the police. His evidence suggests that prior to the alleged arrest of accused numbers 1 to 3 dated 22.08.2013, the police had already interrogated some accused from which the role of Witness 9 Atram was revealed. Thus a strong possibility emerges in support of the defence that custody of accused number 3 Hem Mishra was actually taken on 20.08.2013. This possibility emerges from a variety of circumstances such as not picking up an independent panch, choosing a panch related to police, discrepancies and overwriting at the time of registration of the crime, etc. It is for the prosecution to remove all these doubts. Minor mistakes may exist, however the overall effect of the evidence must be considered on the basis of the variety of circumstances.
id_1052	7
id_1052	8	Merely because he has signed the panchnama, it does not mean that the seizure was legal and valid as required under the law. At most, it can only be inferred that the copy of seizure panchnama was provided to Accused No.6 G.N. Saibaba and nothing beyond that. The defence has seriously challenged the credibility of the panch witness, submitting that this witness was a poor illiterate barber who signed the panchnama and deposed in court under pressure of the police. According to the defence, he was not present at the time of the panchnama, but was tutored by the police. It is interesting to note the cross‑examination of Prosecution Witness PW‑2 Jagat Bhole, who runs a barber shop outside the campus of Delhi University. He has stated that he cannot read or write any language except to sign in English and is an illiterate person. He requested the police to take another panch because of his illiteracy, but the police insisted that he act as a panch. He testified that thousands of students and professors were available in the vicinity to act as a panch, and that when they went to the house of Accused No.6 G.N. Saibaba, several students and professors had gathered near the house., Prosecution Witness PW‑2 Jagat Bhole admitted that at the relevant time Accused No.6 G.N. Saibaba requested the police that the search should be taken in the presence of professors or his advocate. He specifically stated that at the time of the house search he himself and Accused No.6 G.N. Saibaba were locked out of the house and the police carried out the search. He stated that the police did not allow anyone to enter the house of Accused No.6 G.N. Saibaba during the search. This admission, together with his declaration that he is totally illiterate, raises serious doubts about the credibility of the entire search and seizure process. He also stated that about twenty to twenty‑five Delhi Police officers and an equal number of Maharashtra Police officers entered the house and, by locking the door, carried out the searches, keeping both himself and Accused No.6 G.N. Saibaba outside., It has come out in the evidence of Prosecution Witness PW‑2 Jagat Bhole that he does not know the difference between CD and DVD, or between pen‑drive and Bluetooth, or between a CD drive and a DVD drive. He also states that he does not know what is meant by hard disk. In the context of these admissions, coupled with his illiteracy, his deposition as to identification of articles must be assessed. All seized articles, about forty to fifty in number, particularly electronic gadgets, were shown to him during his evidence. Most of the electronic gadgets were shown to him by reference to the company specification, writing on the CDs and DVDs in English, which he claimed to identify. Since this witness was totally illiterate, the exercise appears futile. The prosecution showed the articles one by one, read whatever was printed on the electronic gadgets in English, and the illiterate panch merely nodded his acceptance of identification. This long exercise does not convince us that the witness identified the seized material; he does not know how to read English and is also digitally illiterate, making it difficult to hold that he identified the articles claimed to be seized during the house search. Moreover, details and descriptions of these articles are not specified by colour, unique identification number or container on the panchnama., The prosecution case states that before proceeding to the targeted house of Accused No.6 G.N. Saibaba, the Maharashtra Police went to Maurice Nagar Police Station, which provided additional police force with a technician, photographer, etc. High‑ranking police officers including Assistant Commissioner of Police Meena, Sub Divisional Police Officer Suhas Bawche, Police Inspector Anil Badgujar, along with officers of Delhi Police, were on this mission. The police team was equipped with a computer expert and videographer. This indicates that it was a pre‑planned raid with participation of high‑ranking police officers. Despite that, surprisingly an illiterate barber was chosen as panch. This is not a case of the police accidentally catching a suspect and then taking his search; the raid was well planned under the stringent Unlawful Activities (Prevention) Act, being a joint venture of two police forces led by high‑ranking officers. Yet they chose an illiterate barber as panch over a large number of potential witnesses available in the university housing complex where the raid took place. Several highly educated witnesses would have been available. The entire search is therefore not free from suspicion., Notably, Prosecution Witness PW‑2 Jagat Bhole requested the police to choose someone literate as panch because he could neither read nor write. Still, the wisdom of the high‑ranking police officers did not prevail; they insisted that he should act as panch, creating grave doubt. It was not a case that panchas were unavailable. The raid was conducted in broad daylight on the Delhi University campus, where thousands of people were present, yet the police acted as if this were a Hobson's choice. The search commenced in a planned manner under requisition; the Maharashtra Police asked Maurice Nagar Police to provide a photographer, computer expert and police staff for the raid. In all fairness, they could have also requested them to look for an independent panch witness, but they did not. The panch’s clear admission that the seizure was a closed‑door affair, keeping the panch and Accused No.6 G.N. Saibaba out of the premises, does not allow us to accept the genuineness of the seizure. The suspicion is further aggravated because the seizure panchnama (Exhibit 165) does not bear a reference to either the articles which were sealed with wax or labelled with the panch’s signature. The panch’s evidence also states that the label containing his signature was not affixed on the articles, raising further suspicion about the genuineness of the raid., Strikingly, the raiding party, though well equipped with a computer expert/technical expert, neither drew the hash value of the electronic gadgets nor incorporated the description of the devices in the seizure panchnama. It was a planned raid conducted by high‑ranking police officers equipped with a computer expert, yet electronic devices were not secured properly. The hash value could have been easily drawn on the spot, and mirroring of the contents could have been recorded in the panchnama, which was not done. Apart from the hash value, unique identification numbers of the hard disks and electronic gadgets have not been recorded in the panchnama to vouch for its credibility. The description of the electronic gadgets in terms of outer appearance, cover, serial number, or other factors, which could have been easily incorporated with the help of experts, has not been done. The seizure was treated like an ordinary article of crime., The defence has drawn attention to the evidence of Prosecution Witness PW‑2 Jagat Bhole to establish that he was wholly under police influence even at the time of recording his evidence. We have revisited his evidence, which states that on 03.01.2016 he came from Delhi to Gadchiroli to give evidence. The trial court recorded his evidence on 06.01.2016 and 16.01.2016. He stated that after reaching Gadchiroli he halted at a place he could not remember, later admitting that it was a police guest house. When the learned Additional Public Prosecutor alerted the witness, he denied that it was a police guest house. It also emerged that the second panch, Umar, also came with him from Delhi, but the prosecution did not choose to examine him, which is noteworthy. During cross‑examination it was repeatedly recorded that PW‑2 Jagat Bhole was illiterate and was kept away during the search., It has come out in the evidence of Investigating Officer PW‑11 Sub Divisional Police Officer Suhas Bawche that Accused No.6 G.N. Saibaba gave in writing that the search should be conducted in the presence of professors and his advocate, but no heed was paid to this request. The investigating officer explained that the letter was given after completion of the house search. However, it is evident that the request was made before the search and was neglected, hence the written application. There is no doubt that the accused had no choice of panch witness, but his objection appears to be to the unreliable nature of the panch who was illiterate., The prosecution case states that the entire process of seizure and search was videographed by officers from Maurice Nagar Police Station, Delhi. Prosecution Witness PW‑11 Sub Divisional Police Officer Suhas Bawche stated that the videography was done through a photographer provided by Maurice Nagar Police Station. While carrying out the panchnama, the memory card in the video camera became full, so the police staff made a video recording of the panchnama on their mobile phone. He deposed that after returning, the video taken by Aheri Police on mobile was stored on a computer and a CD was prepared. He also stated that repeatedly they sent requisitions to Maurice Nagar Police Station to provide the video recording done by their videographer, but the police avoided the request. No written requisition was produced in evidence. The video recording on mobile phone, though allegedly done, was not tendered during the trial. Moreover, there is no mention in the seizure panchnama (Exhibit 165) that the entire process was videographed. In the context of the admission that during the search the panch and Accused No.6 G.N. Saibaba were kept out of the house, the absence of the video recording creates doubt. During the arguments we sought a copy of this videography, but it was not forthcoming., The prosecution case states that on 04.09.2013 they applied to the Judicial Magistrate First Class, Aheri, for issuance of a search warrant. The learned magistrate issued the search warrant (Exhibit 244) on 07.09.2013, on the basis of which the search was conducted. The defence drew attention to an extract of the case diary (page 593) of Aheri Police Station dated 13.09.2013, which records that the investigating officer met the Additional Commissioner of Police on 11.09.2013 with a warrant, seeking assistance, but the police asked him to bring a specific search warrant under Section 93 of the Code of Criminal Procedure. It is stated that thereafter a search warrant under Section 93 of the Code was procured. However, there is no evidence that the investigating officer obtained a search warrant under Section 93. A letter dated 12.09.2013 issued by the investigating officer (Exhibit 252) shows that while seeking assistance, a search warrant issued by the Judicial Magistrate First Class, Aheri dated 07.09.2013 was produced. There is no record indicating that a fresh search warrant under Section 93 of the Code was obtained. We have examined the search warrant (Exhibit 244) which was issued jointly under Sections 93 and 94 of the Code, but it is in Form No.11 of the Second Schedule of the Code under Section 94 relating to seizure of stolen property., There is a marked distinction between a search warrant under Section 93 and under Section 94 of the Code of Criminal Procedure. A warrant under Section 93 pertains to the production of documents or other things necessary for the investigation, which the court believes a person would not produce despite summons. A warrant under Section 94 relates to a search of a place suspected to contain stolen property or forged documents. The examined search warrant (Exhibit 244) is captioned as a search warrant under Sections 93 and 94, but it is in Form No.11 of the Second Schedule of the Code under Section 94 relating to seizure of stolen property. The prosecution has not explained whether a warrant under Section 93 was obtained, though it may not be essential in view of the specific powers of search and seizure provided under the Unlawful Activities (Prevention) Act., It appears that the police, assuming the necessity of a search warrant from a magistrate, obtained a warrant that was issued with a specific rider that the seized property shall be forthwith brought before the court on return of the warrant. No such compliance was done; only a report dated 13.09.2013 (Exhibit 258) was made to the magistrate along with the list of seized articles, without producing the seized items. Even according to the prosecution case, they did not comply with the conditions of the warrant, which, however, is not required in the context of the special provisions made under the Unlawful Activities (Prevention) Act., In substance, the entire process of search and seizure from the house of Accused No.6 G.N. Saibaba is doubtful. The seizure is crucial because the whole prosecution depends on the said search and seizure. Despite a pre‑planned raid by high‑ranking police officers, an illiterate panch was used, though he resisted. During the search the panch was kept out of the premises. Although the entire process was videographed, the material is not proved and the other panch was not examined. The panchnama does not bear reference to sealing and labeling of seized articles. In view of these matters, we hold that the prosecution has failed to prove the seizure and search of incriminating material from the house of Accused No.6 Saibaba by leading credible evidence., The learned special prosecutor, relying on the decisions in Anter Singh v. State of Rajasthan, Mallikarjun and others v. State of Karnataka, and Rameshbhai Mohanbhai Koli v. State of Gujarat, submits that there is no difficulty in relying on the seizure by accepting the evidence of the investigating officer despite hostility of the panch witness. In the quoted cases, it has been ruled that if the evidence of the investigating officer regarding seizure is convincing, that evidence cannot be rejected solely on the ground that the panch witnesses did not support the prosecution version., It is fairly well settled that the evidence of the investigating officer can be relied upon to prove the recovery even if the panch witness turns hostile. In other words, the evidence of the investigating officer about seizure, if it does not suffer from any infirmity or doubt, the hostility of the panch would be inconsequential. It is a usual phenomenon that in criminal cases panchas sometimes resile from the facts in the signed panchnama for a variety of reasons. Certainly the hostile tendency of panchas would not handicap the prosecution. Criminal law does not give a decisive role to the panch witness; it depends upon the credibility of the investigating officer’s evidence, and if it stands up to judicial scrutiny, it can be accepted., This case has its own peculiarity. Generally in criminal cases, seized articles are used as corroborative evidence to substantiate other evidence. In the present case, the entire prosecution case is based upon three different seizures and nothing beyond that. The prosecution has built a case of commission of an offence under the Unlawful Activities (Prevention) Act solely on the basis of seizures. Thus, the seizure, being the foundation of the prosecution, must pass the test of reliability. In the cited decisions, the panch witnesses did not support the prosecution case, which is not the case here. Three independent panch witnesses – PW‑1 Santosh Bawne (panch for the first seizure dated 22.08.2013 from Accused Nos.1 to 3), PW‑3 Umaji Chandankhede (panch for the second seizure dated 02.09.2013 from Accused No.4 Prashant Rahi and Accused No.5 Vijay Tirki) and PW‑2 Jagat Bhole (panch for the third seizure dated 12.09.2013 from Accused No.6 G.N. Saibaba) – have supported the prosecution case. None of the witnesses was declared hostile. However, several admissions given by these witnesses have created substantial doubt about the entire process of seizure. We cannot wash away vital admissions and the character of those panchas with the aid of general propositions cited in the above cases. In criminal cases, cross‑examination is the only effective weapon of the defence to impeach the credibility of prosecution witnesses. The admissions made by these witnesses lead us to hold that they are not natural, responsible and reliable witnesses; they are regular stock witnesses of the police and, being illiterate, are used by the police to prove the seizure, which we do not accept for the reasons stated earlier., This takes us to the evidence of Prosecution Witness PW‑9 Atram. His evidence is led to impress that Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote were involved in terrorist activities. He states that he was acquainted with both of them. In 2013, Accused No.2 Pandu Narote came to him informing that a Naxalite lady named Narmadakka had called him. Accordingly, he went to the Todalgatta forest area with Accused No.2 Pandu Narote to meet this Naxalite lady. He was accompanied by Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote. The Naxalite lady Narmadakka gave him a sum of Rs.5 lakhs and asked him to give it to Accused No.1 Mahesh and Accused No.2 Pandu at Ballarsha Railway Station. On 27.05.2013 he was asked by Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote to come to Ballarsha Railway Station with the money. Accordingly, on 29.05.2013 he reached Ballarsha Railway Station, where Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote were present. He deposed that two unknown persons came therewith whom Accused No.2 Pandu Narote talked, took the money from him and handed it over to one of them., This is the only evidence of this witness stating that at the behest of Naxalite lady Narmadakka, he handed over money to an unknown person at Ballarsha Railway Station through Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote. It is pertinent to note that the accused were not charged under Section 17 of the Unlawful Activities (Prevention) Act for raising or providing funds for terrorist acts. The endeavour was to show the nexus of Accused No.1 Mahesh Tirki, Accused No.2 Pandu Narote with the Naxalite lady Narmadakka and their activities of sending money., The defence has strongly assailed the evidence of this witness, stating that his evidence is that of an accomplice. According to the defence, if he was involved in facilitating terrorism or associated with terrorists, he ought to have been made an accused in the crime. It is argued that, according to the prosecution case, this witness assisted the co‑accused and therefore is not an independent truthful witness worthy of belief. The evidence of this witness is very general and vague. It is not the prosecution case that Accused No.1 Mahesh Tirki and Accused No.2 Pandu Narote provided finance to a particular person for terrorist activities. Besides his evidence, there is no link evidence as to whom the accused paid the sum. It is not made clear who the Naxalite lady Narmadakka is. Moreover, this witness has been stated to have assisted the accused of this crime and therefore his version cannot be relied upon without corroboration. Considering the vague nature of his statement, it is of no assistance to the prosecution to prove any particular act., This takes us to the confessional statements allegedly given by Accused No.1 Mahesh and Accused No.2 Pandu. The prosecution case is that both voluntarily showed willingness to give a confession. They were produced before the magistrate who, after completing statutory formalities, recorded their confessional statements, supporting the prosecution case. The learned special prosecutor would submit that the evidence of Prosecution Witness PW‑12 Mr. Vyas (Magistrate), coupled with confessional statements (Exhibits 280 and 286), unerringly points towards the active participation of both in the act of terror. It is submitted that the confession recorded by the magistrate after ensuring its voluntariness can be accepted as the best piece of evidence in support of the prosecution case., Section 164 of the Code of Criminal Procedure makes a confession made before a magistrate admissible in evidence. The manner in which such confession is to be recorded by the magistrate is provided in the section itself. The provision seeks to protect the accused from making a confession under influence, threat or promise from a person in authority. Before examining the legal implication of recording a judicial confession, we may turn to the factual aspect, since on the basis of facts a decision must be taken as to whether the confession was truthful, voluntary and free from doubt. Prosecution Witness PW‑12 Mr. Vyas, Magistrate, has been examined on the point of recording of confession. He stated that on 02.09.2013 the investigating officer applied for recording confessional statements of Accused No.1 Mahesh and Accused No.2 Pandu. On that day, though both were willing to make confessional statements, the magistrate gave them two days for retraction and called them on 04.09.2013. He further stated that on 04.09.2013 both accused were brought by the police for recording confession. The magistrate again put several questions to ascertain the voluntary nature of the confession and still gave more time for retraction., In turn, on 06.09.2013 Accused No.1 Mahesh was again produced before the magistrate for recording a confessional statement. The magistrate put him several questions to ascertain his voluntariness, and on satisfaction recorded his confessional statement (Exhibit 280). The magistrate gave necessary certification (Exhibits 281 to 283), stating the voluntary nature of the accused and his own satisfaction about this aspect. Further, it has come in the evidence of Prosecution Witness PW‑12 Mr. Vyas that on 08.09.2013 Accused No.2 Pandu was brought for recording a confessional statement. The magistrate asked him several questions and, on satisfaction, recorded his statement (Exhibit 286) and certified (Exhibits 287 to 289) its voluntariness, truthfulness and his satisfaction. The record indicates that the magistrate complied with the legal requirement that the accused be informed that the magistrate is not bound to take a statement, but if given it will be used against him. The magistrate also enquired whether both accused were threatened, allured or promised by the police or anyone else. He ensured that the accused were not brought from police custody and explained that even if they refused to give statements, they would not be kept in police custody. He asked the reason for making the confession, to which both stated that because they had committed wrong, they were giving a statement., Accused No.1 Mahesh stated in his statement that he is a resident of Murewada, Taluka Etapalli, District Gadchiroli and was doing painting work. He stated that generally Naxalites used to visit Murewada and compel villagers to give help. One Naxalite lady named Narmadakka called him and instructed him to go to Ballarsha Railway Station with Accused No.2 Pandu and receive two persons. He was also informed about the appearance of those persons along with a sign for identification with a nickname. Accordingly, on 27.05.2013 he went to Ballarsha Railway Station with Accused No.2 Pandu, received a person as per the description given to him and then the said person left with Accused No.2 Pandu towards Murewada. Accused No.1 Mahesh remained at the railway station. On the following day, i.e., 29.05.2013, Prosecution Witness PW‑9 Atram came to the railway station with Rs.5 lakhs, which they handed over to a fellow who came from Delhi., Accused No.1 Mahesh stated that on 14.08.2013 he was asked by the Naxalite lady Narmadakka to receive one person at Ballarsha Railway Station on 20 or 22 August 2013 along with Accused No.2 Pandu. The sign language and specific marks were also communicated. Accordingly, Accused No.1 Mahesh and Accused No.2 Pandu went to Ballarsha Railway Station in the morning. Around 9.45 a.m. the said person arrived and, after matching the identity mark and sign, all three went to Aheri by bus. After alighting from the bus they were talking with each other at the side of the bus stand when the police apprehended them and took them to Aheri Police Station., It is the evidence of Prosecution Witness PW‑12 Mr. Vyas (Magistrate) that on 08.09.2013 Accused No.2 Pandu was produced for recording confession. He put all preliminary questions to ensure the voluntary nature of his statement and, on satisfaction, recorded the confessional statement of Accused No.2 Pandu (Exhibit 286) on the same day. Accused No.2 Pandu stated that he is also a resident of Morewada, Taluka Etapalli, District Gadchiroli. He was called by Narmadakka along with Accused No.1 Mahesh. They were asked to receive a person coming from Delhi on 28.05.2013. After matching the sign, he escorted the said person. He stated that Accused No.1 Mahesh stayed back at Ballarsha Station, as he was assigned the job of handing over Rs.5 lakhs to a person coming from Delhi. He further stated that around 15.08.2013 Accused No.1 Mahesh came to him conveying that Naxalite lady Narmadakka had called him. Both went to the lady, were informed that one person was coming from Delhi on 20 or 22 August, and both would receive him at Ballarsha Railway Station and safely escort him. Accordingly, on 22 August both went to Ballarsha Railway Station. Around 10 a.m. one person met them who possessed articles like a cap, newspaper, spectacle cover, which matched the description. After verifying the identity through a code name, both brought him to Aheri bus stand and, while standing at the side of the bus stand, the police apprehended them and took them to Aheri Police Station., A confession is ordinarily admissible in evidence if it is relevant, subject to its voluntariness. Section 164 of the Code of Criminal Procedure casts a statutory duty on the magistrate to ensure voluntariness in the strict sense. Considering the guarantee enshrined under Article 20(3) of the Constitution of India, the evidence of confession needs to be examined cautiously, especially if the confession is retracted. Both accused filed a joint application (Exhibit 292) on 27.09.2013 retracting the confessions recorded on 06.09.2013 and 08.09.2013 respectively. The application states that on 23.08.2013 they were produced before the magistrate who remanded them to police custody for ten days up to 02.09.2013. They explained that they had been kept in illegal custody for two days preceding 22.08.2013. During the period of police custody from 23.08.2013 to 02.09.2013, the police allegedly beat them mercilessly and mentally tortured them, causing deep terror. The police threatened to implicate relatives of the accused and assured them that if they gave a confessional statement they would not be implicated and, if tried, would not be punished. The police also threatened destruction of their property and family. It is stated that on 06.09.2013 and 08.09.2013, while taking them to the magistrate from jail, the police initially took them to Aheri Police Station where they were tutored for giving a statement. They were threatened by the Aheri police and escort party. Finally they stated that whatever statement they gave was false, given under police pressure, and should not be acted upon., Generally, a confession can be acted upon if the court is satisfied that it is voluntary and true. The voluntary nature of the confession depends upon whether there was any threat or inducement.
id_1052	9	Trustworthiness is to be judged in the context of the entire prosecution case, because the confession must fit into the proved facts and shall not run contrary to them. Retracted confession, however, stands on a slightly different footing. There is no embargo on the Supreme Court of India to take into account the retracted confession but the Court must look for the reasons for making of confession, as well as its retraction. The Court may act upon the confession made voluntarily, but in case of retraction the general assurance about its voluntary nature has to be ascertained. The value of retracted confession is well known. The Court must be satisfied that the confession at the first instance is true and voluntary. The stage of retraction also matters while appreciating the voluntariness and truthfulness., It is the prosecution case that both A-1 and A2 were arrested on 22.08.2013 and remanded to police custody for ten days i.e. till 02.09.2013, on which they were sent to judicial custody. Both were produced before the Magistrate for recording confession on 04.09.2013 i.e. while in judicial custody, but the Magistrate gave time for retraction, which led the police to produce A1 Mahesh on 06.09.2013 and A2 Pandu on 08.09.2013 for recording confession. It is revealed from the evidence of Prosecution Witness 12, Mr. Vyas (Magistrate), that the accused persons A1 Mahesh and A2 Pandu were produced on 02.09.2013 when they were remanded to Magisterial custody. It is not in dispute that the Magistrate has remanded them to police custody for ten days on 23.08.2013, meaning thereby till 02.09.2013 they were in police custody and have been produced before the Magistrate, who sent them to judicial custody., The evidence of the Magistrate (Prosecution Witness 12) discloses that on 02.09.2013 itself the investigating officer filed an application for recording confessional statement of both the accused. The Magistrate stated that immediately he informed both the accused about such application and inquired whether they desired to make a confession. However, it emerges that when the application was moved to the Magistrate, both the accused were continuously in police custody and no sooner they were brought to the Court from police custody on 02.09.2013, an application for recording confession was moved. It is apparent that the accused were not in judicial custody but were in police custody when the application was moved. It is further revealed that the Magistrate had interacted with both of them in the Court which accentuates that both had not yet been sent to judicial custody. At that time the investigating officer pressed for recording their confession. Therefore, it can safely be said that the accused were in continuous ten‑day police custody when they allegedly expressed their willingness to make a confession, which is one of the factors for consideration., Both the accused in their retraction application (Exhibit 292) dated 27.09.2013 stated the reasons for delayed retraction. It is explained that after 08.09.2013 (date of confession of A2), the next date for production was 24.09.2013, meaning thereby they had no opportunity in the meantime to put their grievance. The accused stated that in the meantime they decided to write an application for retraction, however they were threatened. We have gone through the evidence of Prosecution Witness 12, Vyas (Magistrate), who admitted that on 24.09.2013 accused A1 Mahesh disclosed to him that he was threatened by the police to make a confession, but the Magistrate did nothing. It shows that even before filing of the retraction application dated 27.09.2013, on the first occasion when the accused got a chance to come to the Court for remand, A1 Mahesh disclosed to the Magistrate about threats given by the police for giving a confessional statement. The entire chain of events discloses that before expressing to give confession, for ten days the accused were continuously in police custody and even after confession as and when they got the opportunity they have retracted the confession., In the background that the accused were in long police custody before expressing willingness and its retraction on the first possible opportunity, the value of confession is to be assessed. The issue of evidentiary standard is a very delicate one and has a great bearing on the outcome of the case. The confession is one element of consideration of all the facts proved in the case, as it can be put into the scale and weighed with other evidence. If the confession is retracted, the probe requires to be deeper to satisfy its truthfulness. No doubt the Magistrate has complied with the legal requirement, but the question is whether the confession is made under torture, threat, promise; if so it is inadmissible., It is the prosecution case that the accused A1 and A2 were arrested from Aheri bus stand on 22.08.2013 around 6.15 p.m. It is the evidence of Prosecution Witness 6, Assistant Police Inspector Awhad, that they were keeping surveillance on the movement of A1 Mahesh and A2 Pandu. On 22.08.2013 around 6 p.m. both of them were found standing at a secluded place near Aheri bus stand. After fifteen minutes, around 6.15 p.m. one person wearing a cap arrived, after which they started to talk with each other. On suspicion Assistant Police Inspector Awhad took them into custody. We have gone through both the confessional statements (Exhibits 280 and 286). Both of them stated a different story that on that day in the morning they went to Ballarsha railway station from where they received a person who had earlier been described to them. All three returned by bus to Aheri bus stand, and no sooner they alighted from the bus and were talking, they were apprehended by the police. The said narration in the confessional statement contradicts the prosecution case that A1 and A2 went to Aheri bus stand to receive someone and after waiting for fifteen minutes a third person came and thereafter they were arrested., Both of them have stated a past incident of receiving someone in the month of May at Ballarsha station and handing over a sum of Rs.5 lakhs on the following day to someone else. These instances are without specification. It is not the prosecution's case as to whom both of them had received at Ballarsha railway station and as to whom they have handed over the cash amount. Thus, part of the said statement lends no assistance to the prosecution. Besides a general and vague statement that they were acting on the instructions of one naxalite lady Narmadakka, nothing can be culled out from this part of their narration. Both have stated that either on 20.08.2013 or 22.08.2013, they went to Ballarsha and then followed their arrest at Aheri bus stand. However, as we have mentioned hereinabove, there is a strong possibility of both of them having been taken into custody on 20.08.2013 itself. Moreover, in the application for retraction dated 27.09.2013 it is stated that they have been taken into custody on 20.08.2013. Thus, the confessional statement given by them does not match with their own stand., Reading the confession as a whole besides past instances, it is of no assistance. The accused were in police custody for continuous ten days and on the last date then expressed willingness to give a confession. Moreover, on the first possible opportunity they have disclosed about extracting a confession under threat, as well as given a written application within a couple of days to the Magistrate for said purpose. Thus, there is immediate retraction of the confessional statements. The accused gave detailed reasons in their application as to what persuaded them to give a confession and under which circumstances they did so. The reason for giving confession is that they did wrong and nothing more. Taking an overall view of the matter, in the context of the facts of this case, we do not find it safe to rely on the retracted confession which is uncorroborated. In the result, for the above reasons we are not in a position to accept the retracted confession as a legally admissible piece of evidence., The learned counsel appearing for the accused would submit that the officers effecting arrest and search were not authorized in terms of the provisions of the Unlawful Activities (Prevention) Act, hence search and seizure was illegal. It was submitted that Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche, who investigated the matter, has no authority under the special statute to effect arrest and search and thus the whole investigation is vitiated. It is submitted that in terms of sub‑clause (2) of Section 43‑B of the Unlawful Activities (Prevention) Act, the seized articles ought to have been forwarded to the nearest Police Station at Delhi, but it was not done. Moreover, it is submitted that the provisions of Section 25 of the Unlawful Activities (Prevention) Act have not been complied with since the information relating to seizure has not been forwarded to the Designated Authority within forty‑eight hours from the seizure. Per contra, the learned special prosecutor would submit that Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche, was an officer competent to investigate in terms of Section 43(c) of the Unlawful Activities (Prevention) Act. Moreover, police have general powers of search and seizure under the Code, which are not taken away by the special statute. Besides that, Section 465 of the Code would cure the defect, if any., The first objection is about competency of the investigating officer to arrest and conduct search of accused No.6 G.N. Saibaba. The defence heavily relied on the provisions of Section 43‑A of the Unlawful Activities (Prevention) Act to contend that the special requirement incorporated in the Section has not been complied with. For the sake of convenience, we have extracted Section 43‑A of the Unlawful Activities (Prevention) Act which reads as under: “43A. Power to arrest, search, etc. Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search such a building, conveyance or place.”, Investigation was entrusted to Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche who was of the rank of Deputy Superintendent of Police. Section 43 of the Unlawful Activities (Prevention) Act specifies who is competent to investigate the offence under Chapters IV and VI of the Act. Sub‑clause (a) and (b) of Section 43 are not relevant for our purpose. Sub‑clause (c) provides that investigation shall be carried out by an officer not below the rank of Deputy Superintendent of Police or a police officer of an equivalent rank. There is no dispute that Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche, was holding the rank of Deputy Superintendent of Police and was competent to investigate in terms of the provisions of the Unlawful Activities (Prevention) Act., The dispute is about the competency of Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche, to arrest and take search of the house of A6‑ Saibaba. Section 43‑A of the Unlawful Activities (Prevention) Act has a specific provision requiring authorization for effecting arrest and search relating to cases under the Act. It provides that any officer (competent under Section 43 of the Act) of the Designated Authority empowered in this behalf, by general or special order may authorize any officer subordinate to him to arrest or search a building. In other words, only the competent officer in terms of Section 43 of the Act who has been specially empowered by the Designated Authority to arrest or effect search is competent to effect search and arrest or his subordinate, on his authorization. It is not enough that he is competent in terms of Section 43 to investigate; the additional requirement is that he should be authorized by the Designated Authority and be conferred the powers for effecting arrest or search., The term Designated Authority has been defined under Section 2(1)(e) of the Unlawful Activities (Prevention) Act which reads as below: “(e) Designated Authority means such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by notification published in the Official Gazette.”, In short, a Designated Authority is an officer appointed by the State Government not below the rank of Secretary of the Government, appointment by a notification published in the Official Gazette. There is no dispute that the Home Department has issued a notification dated 18th March 2005 in exercise of powers conferred by Clause (e) of Sub‑section (1) of Section 2 of the Unlawful Activities (Prevention) Act for appointment of the Designated Authority. By the said notification, the Government of Maharashtra has appointed the Principal Secretary (Appeals and Security), Home Department, Government of Maharashtra to be the Designated Authority for the purposes of the Act. Though Section 43‑A was inserted by an amendment in the year 2008, no fresh notification has been issued by the State thereafter. However, we need not consider this aspect in the light of the following facts., It is not the prosecution's case that Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche is authorized by the Designated Authority i.e. the Principal Secretary for the purpose of effecting arrest or search as required under Section 43‑A of the Unlawful Activities (Prevention) Act. The scheme of the Act, though empowers a high‑ranking police officer at the level of Deputy Superintendent of Police to be competent to investigate, the power of arrest and search however were specifically kept under the control of the Designated Authority i.e. the Principal Secretary who is a higher‑ranked officer of the Government. The legislative intent was therefore to confer powers of arrest and search on an officer specifically authorized in that behalf by the Competent Authority and such search and arrest can be conducted only under the supervision and control of this higher‑ranking Government Officer (the Designated Authority) which is independent of the Police Authority., In the case of arrest and search, the statute has incorporated the intervention of a high‑ranking officer of the State Government in the process with a view to have an independent check over the police officer to avoid abuse of the provisions of law. Clearly, the investigating officer Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche was not authorized by the Designated Authority to effect arrest and search. Mr. Chitale, the learned prosecutor would submit that no such permission, much less authorization of the Designated Authority is required since Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche was holding the rank as specified under Section 43 of the Unlawful Activities (Prevention) Act. As stated above, the said submission is wholly untenable since a special provision has been made under Section 43‑A of the Act which we have dealt with above., Mr. Chitale would submit that Section 43 of the Unlawful Activities (Prevention) Act does not bear a reference to the Designated Authority for the purposes of investigation and thus the authorization of the Designated Authority is not essential. We may reiterate that for the purpose of investigation, intervention of the Designated Authority is not warranted in terms of Section 43 of the Act, of which we have no doubt. However, the statute, though permits the competent officer in terms of Section 43 of the Act to investigate the offence, puts a restriction on his power of arrest and search which is required to be authorized in terms of Section 43‑A of the Act. Therefore, the argument that merely because Prosecution Witness 11, Sub Divisional Police Officer Suhas Bawche was competent to investigate, he also has power to effect arrest and search is wholly untenable., Mr. Chitale further submits that the later part of Section 43‑A of the Act provides for authorization of any subordinate officer to effect arrest or search. We are not prepared to accept this submission, which, if accepted, would amount to authorizing any subordinate officer to effect arrest and search which would be against the spirit of Section 43‑A. Plain reading of Section 43‑A would postulate that the competent officer in terms of Section 43 of the Act who has been specially authorized by the Designated Authority for effecting arrest and search may authorize his subordinate. The basic requirement is that the officer who assigns authorization to his subordinate must be empowered by the Designated Authority, and then only can he delegate the authority to his subordinate. Therefore, the submission in this regard being against the spirit of Section 43‑A of the Act is not worthy of acceptance., Another argument put forth by the prosecution was that the Unlawful Activities (Prevention) Act does not take away the general powers conferred by the Code on the police. According to the prosecution, the police have general power of arrest and seizure under the Code and thus, even otherwise they are competent to that extent. In this regard, our attention has been invited to Section 43‑C of the Act which reads as below: “43C. Application of provisions of Code. The provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of this Act, to all arrests, searches and seizures made under this Act.”, It is submitted by the prosecution that the provisions of the Code would clearly apply for the prosecution under the Unlawful Activities (Prevention) Act and therefore, despite authorization by the Designated Authority under the Act, the police have power to effect arrest and search. We are afraid we cannot subscribe to this submission because Section 43‑C of the Act, though speaking of the applicability of the Code, qualifies that the provisions of the Code are applicable insofar as they are not inconsistent with the provisions of the Act relating to arrest, search and seizure. Thus, if the special statute namely the Unlawful Activities (Prevention) Act makes a specific arrangement as regards powers of arrest or seizure, the special provision prevails over the general provisions of the Code. To that extent, the powers conferred by the Code are inconsistent and in conflict with the provisions of Section 43‑C of the Act and must yield to the special statute., Though the prosecution advanced an argument that Section 465 of the Code saves such an irregularity, we are unable to accept the submission in view of the specific provision contained under Section 43‑A of the Act which is a stringent statute. Having regard to the severity of punishment, the statute itself has provided inbuilt safeguards. Section 43‑A is a specific safeguard incorporated with a view to require empowerment from a high‑ranking state officer before arrest and seizure. Obviously, the very purpose is to avoid false implication of a citizen. Having regard to the aims and object of providing a special mechanism, the general provisions would not cure the defect. We may hasten to add that this is not a case where there was procedural irregularity or lapse while obtaining authorization by the Designated Authority, but a case of total absence of empowerment of the investigating officer by the Designated Authority. Thus, the said material deficiencies cannot be cured with the aid of Section 465 of the Code otherwise the statutory requirement under Section 43‑A would become vitiated., Apart from the general provisions of Section 465 of the Code, the prosecution also canvassed that even if the seizure is illegal, it can be used in evidence. For this purpose the prosecution drew support from the decision of the Supreme Court in the case of Pooram Mal v. Director of Inspection (Investigation) of Income Tax, AIR 1974 SC 348. In that decision, which is under the Income Tax Act, the search and seizure was challenged on account of contravention of the requirement of Section 132 and Rule 112 of the Income Tax Act. In that context, it was observed that where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. We are afraid that, to borrow the said proposition in the context of a statute like the Unlawful Activities (Prevention) Act, wherein a special provision of Section 43‑A prescribes a special mechanism for authorization to effect arrest and search, cannot be countenanced. In other words, a general provision is curtailed/restricted by the special statute and thus, observations made in that judgment are in a totally different context and would not assist the prosecution in any manner., In order to escape from the clutches of Section 43‑A of the Unlawful Activities (Prevention) Act, Mr. Ponda made another submission that the provisions of Section 43‑A would apply only when the Authority gets information of its own accord. We do not see any distinction carved out under Section 43‑A of the Act pertaining to source of information. The Section plainly provides the requirement of authorization/empowerment by the Designated Authority, whatever the source of information may be i.e. personal knowledge or information received in writing. The distinction sought to be carved out by Mr. Ponda is artificial and not in consonance with the statutory requirement. In short, we are unable to accept the submission. We may reiterate that when the special statute has provided a specific mechanism for authorization of search and arrest by the Designated Authority, that mechanism has overriding effect and excludes application of the general provisions of the Code., The defence also argued that the non‑compliance of the provisions of Section 43‑B of the Unlawful Activities (Prevention) Act which requires that the person arrested be forwarded with the articles seized to the officer in charge of the nearest Police Station would not be of any effect. The said provision of Section 43‑B reads as under: “43B. Procedure of arrest, seizure, etc. (1) Any officer arresting a person under Section 43A shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under Section 43‑A shall be forwarded without unnecessary delay to the officer‑in‑charge of the nearest Police Station. (3) The authority or officer to whom any person or article is forwarded under sub‑section (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code.”, Sub‑clause (2) of Section 43‑B of the Act provides that every person arrested and article seized under Section 43‑A shall be forwarded to the officer‑in‑charge of the nearest Police Station. In this regard, it is not the prosecution's case that either after arrest accused No.6 G.N. Saibaba was forwarded to the nearest Police Station i.e. Maurice Nagar Police Station, Delhi or that articles which were seized were forwarded to the said Police Station. Sub‑clause (3) to Section 43‑B casts a further duty on the said in‑charge officer to take further necessary steps as provided under the Code., Apparently seized articles were not forwarded to the officer‑in‑charge of the nearest Police Station. After seizure, only information was given by letter (Exhibit 254) to said Police Station with a copy of the panchnama. Sub‑clause (2) to Section 43‑B does not contemplate just the forwarding of information of seizure but requires that the articles seized be forwarded; hence there is total non‑compliance of the statutory requirement of Section 43‑B of the Act. In view of that, we hold that the arrest and seizure is not in accordance with the requirement of the special statute namely the Unlawful Activities (Prevention) Act., The defence also assailed the seizure on account of non‑compliance of the provisions of Section 25 of the Unlawful Activities (Prevention) Act. It is argued that the seized material i.e. electronic gadgets amount to property within the meaning of Section 2(1)(h) of the Act. According to the defence, the words electronic items are movable in nature, having value and can be used for terrorist activity, hence they fall under the term proceeds of terrorism. It is argued that the seizure being ‘proceeds of terrorism’, the prosecution ought to have complied with the mandate of Section 25 of the Act. For this purpose, we were taken through Section 25 of the Act which requires prior approval in writing of the Director General of Police to seize the ‘proceeds of terrorism’. Sub‑clause (2) to Section 25 further mandates the investigating officer to inform the Designated Authority within forty‑eight hours. Moreover, it requires the Authority to confirm or revoke the seizure or attachment within sixty days which is made appealable to the Court within thirty days from the date of order. The proviso to sub‑clause (3) gives an opportunity to a person whose property has been seized or attached to make a representation. According to the defence, no such procedure has been followed and therefore the seizure vitiates., The relevant part of Section 25 is reproduced herein below for ready reference: “25. Powers of investigating officer and Designated Authority and appeal against order of Designated Authority. (1) If an officer investigating an offence committed under Chapter IV or Chapter VI has reason to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of Police of the State in which such property is situated, or where the investigation is conducted by an officer of the National Investigation Agency, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned. (2) The investigating officer shall duly inform the Designated Authority within forty‑eight hours of the seizure or attachment of such property. (3) The Designated Authority before whom the seized or attached property is produced shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production: Provided that an opportunity of making a representation by the person whose property is being seized or attached shall be given.”, Section 25 of the Act is a complete scheme for dealing with seizure or attachment of proceeds of terrorism. No doubt if seized electronic gadgets are held to be ‘proceeds of terrorism’, the mandate of Section 25 would come into play. Reading the whole of Section 25 conveys that the term proceeds of terrorism is used in the sense of some valuable movable or immovable property, obviously acquired by the act of terrorism. Exhaustive provisions are made for the seizure and attachment of property, opportunity to make a representation, confirmation or rejection of the order of seizure or attachment and the right of appeal to the aggrieved person. The whole scheme conveys that it relates to valuable movable or immovable property which was acquired through the act of terrorism., The Unlawful Activities (Prevention) Act has not defined the word ‘proceeds of terrorism’. The ordinary meaning of the word proceeds would mean money or value that one gets by sale of something. In other words, a profit or return derived from a transaction, herein an act of terrorism. The term ‘proceeds of terrorism’ cannot be equated with the articles used or intended to be used for the act of terrorism. Therefore, we are unable to accept the defence submission that the seized incriminating electronic data amounts to proceeds of terrorism within the meaning of Section 25 of the Act requiring further mandatory compliance. For these reasons, we reject the defence argument to that extent., The learned special prosecutor would submit that though under criminal jurisprudence the guilt of the accused must be proved beyond all reasonable doubt, the burden on the prosecution is only to establish its case beyond reasonable doubt and not beyond all doubt. The standard of proof under criminal law is of a high degree but not of absolute nature. What degree of probability amounts to proof is an exercise particular to a case. The principle of beyond reasonable doubt shall not be stretched to the extent that it would break down the credibility of the system. In order to substantiate this contention, the prosecutor initially relied on the decision of the Supreme Court in the case of Leela Ram (dead) through Duli Chand v. State of Haryana, (1999) 9 SCC 525, emphasizing the observations in paragraph 12 thereof: “12. It is indeed necessary to note that hardly one comes across a witness whose evidence does not contain some exaggeration or embellishment – sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over‑anxiety they may give slightly exaggerated account. The Court can sift the chaff from the corn and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness – if this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same.”
id_1052	10	The prosecution further relied on decisions in cases of Bhaskar Ramappa Madar, Shivaji Sahabrao Bobade, Jagir Singh Baljit Singh, Krishna Gopal and Valson, however, after considering those decisions in case of Bhaskar Ramappa Madar and others Vs. State of Karnataka (2009) 11 Supreme Court Cases 690; Shivaji Sahabrao Bobade and another Vs. State of Maharashtra (1973) 2 Supreme Court Cases 793; State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh (1974) 3 Supreme Court Cases 277; State of Uttar Pradesh Vs. Krishna Gopal and another (1988) 4 Supreme Court Cases 302; Valson and another Vs. State of Kerala (2008) 12 Supreme Court Cases 241; Yogesh Singh, the principles in this regard have been set out in paragraphs 15 to 18 which read thus:, 15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Justice Venkatachaliah in State of Uttar Pradesh Vs. Krishna Gopal and another (Supreme Court Cases pages 313‑14, paragraph 25). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over‑emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case., 16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram Vs. State of Himachal Pradesh; State of Rajasthan Vs. Raja Ram, (2003) 8 Supreme Court Cases 180; Chandrappa & Ors. Vs. State of Karnataka; Upendra Pradhan Vs. State of Orissa; Golbar Hussain Vs. State of Assam)., 17. However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in the case of State of Punjab Vs. Jagir Singh (Supreme Court Cases pages 285‑86, paragraph 23). 23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Supreme Court of India has to judge the evidence by the yard‑stick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures., 18. Similarly, in Shivaji Sahabrao Bobade & Another Vs. State of Maharashtra, Justice V. R. Krishna Iyer stated: “The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.”, It is a consistent law that though the cardinal principles of criminal jurisprudence require proof beyond reasonable doubt, they denote that the standard of proof is higher but not absolute. Doubts must be actual and substantial as to the guilt of the accused arising from the evidence or from lack of evidence so as to oppose mere vague apprehension. Reasonable doubt is not imaginary, trivial or a mere possibility, but a fair doubt which would command the judicial mind. The law does not expect evidence which is impossible to prove, but the standard shall be to the extent which excludes an entertainable doubt., Similarly, we must keep in mind the golden rule of criminal jurisprudence expressed by the Supreme Court of India in the case of Leela Ram, that if two views are possible, the view favourable to the accused would take precedence. In the light of the above well‑cherished principles, we have scrutinised the prosecution case while arriving at our conclusions., During the course of investigation, from time to time incriminating material has been seized from different accused persons. The same was deposited in the muddemal, and then from time to time the same were sent for analysis to the Central Forensic Science Laboratory, Mumbai. Various panchnamas have been drawn to that effect., The defence would urge that the chain of custody is not properly established, meaning that chances of tampering cannot be ruled out. The first seizure from A1 to A3 is dated 22‑08‑2013, whilst the seized muddemal articles were deposited with the muddemal clerk on the very day. The second seizure from A4 and A5 is of 02‑09‑2023, and on the same day it was deposited with the muddemal clerk. The third seizure is from A6 Saibaba dated 12‑09‑2023, which was deposited with the muddemal clerk on 13‑09‑2013., The learned defence counsel drew our attention to some discrepancies in establishing that from time to time muddemal was taken out from the custody of the muddemal clerk without proper verification, and it has changed hands without endorsement. It is submitted that though the evidence of the investigating officer Witness 11 shows that on 12‑09‑2013 the seized electronic articles were sealed in one plastic bag, the laptop in a separate packet and printed material in three packets, the relevant muddemal register entry dated 13‑09‑2013 discloses that only one plastic bag and two paper envelopes have been deposited. It is argued that the labels containing pancha signatures obtained on the date of seizure i.e. 12‑09‑2013 were never preserved nor produced to vouch for their credibility. According to the defence, the said muddemal was taken out on 14‑09‑2013 for forwarding to the Central Forensic Science Laboratory, however, the relevant panchnama does not disclose that the plastic container was resealed. Particularly, it is argued that the mirror images, though stated to be received from time to time, are contradicted by Witness 21 – Nikam, who is a Scientific Analyst. Our attention has been invited to the muddemal entry dated 16‑02‑2014. It does not bear specification as to what has been deposited by Witness 7 – Constable Apeksha Ramteke, which she brought from the Central Forensic Science Laboratory, Mumbai., On the point of custody, the evidence of Witness 11 – Suhas Bawche, investigating officer; Witness 5 – Constable Kamble (carrier); Witness 7 – Constable Apeksha Ramteke (carrier); Witness 13 – Constable Rathod (muddemal clerk) and Witness 21 – Scientific Analyst Nikam is important. With the assistance of both sides we have gone through their evidence and relevant muddemal register entries which are at Exhibit 276‑A to 276‑E. We have also gone through the muddemal challan at Exhibit 299‑A to 299‑C, 300‑A and 300‑B, 301‑A to 301‑I. The invoice challan of muddemal deposited in Court Exhibit 302 has been tendered on record. We find that from time to time entries have been taken in the muddemal register, which supports the oral evidence led by the prosecution witness, with little variance in the description. We are not prepared to accept that the minor discrepancies affect the credibility of deposit of muddemal., Particularly we have gone through the evidence pertaining to receipt of mirror images by the investigating officer from the Central Forensic Science Laboratory, Mumbai. In this regard, Witness 11 – Suhas Bawche stated that on 31‑08‑2013 he received the mirror images of the memory card seized from the possession of Hem Mishra, which is corroborated by the evidence of Witness 21 – Bhavesh Nikam. It is in the prosecution evidence that on 20‑09‑2013, Witness 5 – Constable Kumbhare received mirror images regarding one hard disk, which he deposited on 21‑09‑2013. However, the evidence of Witness 21 – Analyst Nikam does not support the said contention; he states that he issued mirror images on 30‑08‑2013 and then on 05‑10‑2013. We have gone through the evidence of these witnesses along with the time, description and related panchnamas. Though there are certain discrepancies about the description of the container namely plastic box and packets, nothing has been brought on record to create a doubt. Such minor discrepancies are bound to occur. The oral evidence is supported by relevant muddemal entries and thus interference cannot be lightly drawn about the possibility of tampering on conjectures and surmises., The prosecution case solely rests on the electronic evidence seized from the possession of the accused. Therefore, it necessitates us to undertake the exercise whether the said evidence is duly proved in accordance with the provisions of the Evidence Act, the Information Technology Act and Rules framed thereunder., Under the Evidence Act, 1872, the contents of an electronic record may be proved in accordance with the provisions of Section 65‑B of that Act. Section 65‑B stipulates that any information contained in an electronic record which is then printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer shall also be deemed to be a document provided conditions mentioned in Section 65‑B are satisfied in relation to the information and the computer in question. If the conditions are satisfied, such document shall be admissible, without further proof or production of the original, as evidence., The conditions required to be fulfilled for such document to be admissible in evidence are stipulated in Sub‑Section 2 of Section 65‑B. In terms of Section 65‑B, amongst the various conditions stipulated in Sub‑Section 2 and 3, if evidence is to be given of the information contained in the electronic record in the device, a certificate is required to be issued in terms of Sub‑Section 4 of Section 65‑B wherein the identity of the electronic record is to be specified, the particulars of the device involved in production of the electronic record are to be specified and this certificate is to be issued by a person who has at the relevant time been familiar with the operation of the device., Section 85‑B of the Evidence Act raises presumptions as to electronic records in a proceeding involving a Secure Electronic Record. The Court shall presume, unless the contrary is proved, that the Secure Electronic Record has not been altered since the specific point of time to which the secure status relates. In any proceedings involving a secure digital signature, the Court shall presume, unless the contrary is proved, that (a) the secure electronic signature is affixed by the subscriber with the intention of signing or approving the electronic record; (b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption relating to authenticity and integrity of the electronic record or any electronic signature., In order to attach any presumption that the Secure Electronic Record has not been altered, certain procedures have been prescribed in terms of the Information Technology Act, 2000 in which Section 14 defines a Secure Electronic Record and Section 16 prescribes the security procedure and practices to be adopted in relation to such a record, in order to attract the presumption. Section 14 – Secure electronic record: Where any security procedure has been applied to an electronic record at a specific point of time, then such record shall be deemed to be a secure electronic record from such point of time to the time of verification. Section 16 – Security procedures and practices: The Central Government may, for the purposes of sections 14 and 15, prescribe the security procedures and practices, provided that in prescribing such security procedures and practices, the Central Government shall have regard to the commercial circumstances, nature of transactions and such other related factors as it may consider appropriate., The security procedure and practices have been prescribed by the Central Government for the purpose of Section 14 and Section 16 in the Information Technology (Security Procedure) Rules 2004 published on 29‑10‑2004. Under Rule 3 a Secure Electronic Record shall be deemed to be a secure record for the purpose of the Act if it has been authenticated by means of a Secure Digital Signature. Rule 4 provides the manner in which the digital signature is deemed secure for the purpose of the Act by providing a procedure which is reproduced hereinbelow. Rule 4 – Secure digital signature: (a) the smart card or hardware token, as the case may be, with cryptographic module, is used to create the key pair; (b) the private key used to create the digital signature always remains in the smart card or hardware token; (c) the hash of the content to be signed is taken from the host system to the smart card or hardware token and the private key is used to create the digital signature and the signed hash is returned to the host system; (d) the information contained in the smart card or hardware token is solely under the control of the person who is purported to have created the digital signature; (e) the digital signature can be verified by using the public key listed in the Digital Signature Certificate issued to that person; (f) the standards referred to in Rule 6 of the Information Technology (Certifying Authorities) Rules, 2000 have been complied with, as far as they relate to the creation, storage and transmission of the digital signature; and (g) the digital signature is linked to the electronic record in such a manner that if the electronic record was altered the digital signature would be invalidated., From a combined reading of the above‑quoted provisions, the process of giving electronic evidence a status of Secure Electronic Record, to which the presumptions under Section 85‑B of the Evidence Act would be attracted, is laid down. In the present case, the burden was heavily upon the prosecution to demonstrate how the various devices seized/attached, which include the 16 GB pendrive seized from Accused No. 4, and the hard disk and other devices seized from the residence of Accused No. 6 at New Delhi, were secured by following the process referred to in the above paragraphs., The electronic data or record in the present case concerning Accused No. 6 was mainly contained in a hard disk at his residence. In order that the contents of the electronic evidence contained within this device attract the presumptions, two procedures would have to be followed. The identity and description of the device itself i.e. hard disk would have to be properly recorded, which description would have to be deposed to and the device identified by its external description, serial number, colour of its casing or cover, the product number or other such specific identification marks such as stickers or printing thereon. The seizure panchnama would obviously have to have a fairly clear description of the device, which would also include its photographs countersigned by the witnesses to the seizure., In the present case, apart from the panchnama witness who was examined, who is alleged to have attended the search operations at the residence of Accused No. 6, no other witness has been examined and deposed as to the description of the electronic devices, which included the computer hard disk and the laptop attached during the search. The panchnama, Exhibit 165 does not contain a description of the electronic devices by serial number, colour of the outer cover or box, the product number or even the colour of the device. Thus, there is no physical identification of the device which contains the electronic record or, in other words, there is no correlation established between the device which is not physically identified in the seizure panchnama and the electronic record sought to be relied upon as evidence in Court. Having failed to establish this correlation, the electronic record or content of the hard disk could not have been referred to as a Secure Electronic Record., Further, if one seeks to draw a presumption as to this electronic record, the procedure that would have to be followed would be as set out in Rule 4. This procedure requires that the forensic expert or computer expert who intends to ultimately use the electronic evidence contained in the device in Court should first have the device physically identified in a written record, by its description, product number, serial number and any other identification marks on the cover or box within which lies the electronic record. The same person is required to then apply a private key which is issued to him to the device which has his personal digital signature in it, which process would take the hash value of the electronic content in the device from the host system to the smart card or hardware token, and the private key is used to create the digital signature and signed hash is then returned to the host system. In this manner, at a later stage, when the device is reopened, the digital signature of the computer expert could be identified. The computer expert may also create a mirror image or clone of the information contained in the device onto another device, and if he undertakes this process, in order that there is evidence that the hash value at the start of the information and end point of the information on the original device matches exactly with the hash value of the cloned information, the procedure under Rule 4 would have to be complied with by appropriately applying the expert’s digital signature on the cloned information/data., The computer expert would then record the hash value at the starting point of the electronic data and the end point of this data which could be later ascertained by the forensic expert who would examine the data in the lab as well as re‑ascertain before the Court recording the evidence when the device or the evidence contained therein is sought to be produced and admitted in evidence. The presumptions under Section 85‑B of the Evidence Act would be attached to this evidence only if the hash values certified by the computer expert who first examined the device match with those certified by the expert who examines the device at a forensic lab and then again these would match when the device is produced in Court. Of course, the presumptions would flow only if it is established that the electronic record in question could be correlated to the physical description of the device produced in Court., Looking at the evidence produced in relation to Accused No. 6, the panchnama does not refer to the physical description of the hard disk seized during the raid and, strangely, even though a computer expert accompanied the raiding team, he has not given a detailed physical description of the device or even mentioned its serial number. This same person has also not been examined to ascertain the compliance of the afore‑stated rules, to establish that the content of this electronic record could truly be considered a Secure Electronic Record to which any presumption could be attached. This being the case, the prosecution has failed to prove beyond any doubt that the computer hard disk or any of the other devices attached during the search conducted at the residence of Accused No. 6 were Secure Electronic Records in terms of Section 85‑B of the Evidence Act. Even the investigating officer who was present throughout the search has not recorded these details and has failed to follow the procedure laid down in Rule 4 of the Information Technology Rules. Thus, the contents of the hard disk could not be looked into as evidence and would be wholly unreliable if relied upon to prove the offences alleged against Accused No. 6., Adverting to the compliance of issuance of a certificate in relation to the electronic evidence contained and sought to be produced in Exhibit 375 i.e. the hard disk seized from Accused No. 6, we are of the opinion that the requirements of Section 65‑B of the Evidence Act have not been complied with. Section 65‑B requires five conditions stated in Sub‑Section 2 thereof to be complied with. A perusal of the certificate at Exhibit 375 would show that the same does not identify the electronic record contained in the statement in evidence nor does the certificate describe the manner in which the electronic record sought to be produced in evidence was produced. There is no description of the device with its serial numbers used in the production of the electronic record or copy. There is thus no compliance with the requirements of a valid certificate under Section 65‑B. For that reason, we are of the opinion that the evidence/information produced under the certificate at Exhibit 375 would not be admissible and could not be relied upon. With such inherent lacuna, we proceed further., Notwithstanding the fact that the prosecution has failed to prove that the hard disk contained a Secure Electronic Record, we would nevertheless also proceed to record our findings on the content of this unproved record which is plainly in the form of writings, video films of public speeches and what appears to be propaganda material. The first question that we address is whether merely being in possession of such material in one's computer, any offence could be said to be made out in terms of the various sections of the Unlawful Activities (Prevention) Act of which the accused have been charged. Even assuming that the content of the speeches or written literature contained in the electronic material on the hard disk attached from the residence of Accused No. 6 was inflammatory or denounced a certain form of governance or expressed dissent with any government, would the mere fact that a person was in possession of such material fall within the ingredients of any offence under the Unlawful Activities (Prevention) Act., The Supreme Court of India in Thwaha Fasal, reported in 2021 SCC Online SC 1000, dealt with a case where the allegation against the accused was that he was found in possession of soft and hard copies of various materials concerning the banned organization CPI (Maoist) and he was seen present in a gathering which was part of the protest arranged by an organization alleged to have links with the banned organization. The material also contained minutes of meetings where the accused were alleged to have been part of various committees of the banned organization. While dealing with the question as to whether mere possession of such material attracts offences under Sections 20, 38 and 39 of the Unlawful Activities (Prevention) Act, the Supreme Court held that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming part of the charge sheet., A Single Judge of the Supreme Court of India in Jyoti Babasaheb Chorge Vs. State of Maharashtra reported in 2012 SCC Online Bom 1460, had earlier considered the same question as to whether possession of certain literature containing a particular social or political philosophy could be considered incriminatory to implicate an accused under Section 20 of the Unlawful Activities (Prevention) Act and held that the applicants were in contact, or had some association with some members or admirers of the Communist Party of India (Maoists). The applicant Jyoti was found in possession of some literature of the Communist Party of India (Maoists), including publicity and propaganda material. She was in the company of the co‑accused Jenny @ Mayuri Bhagat when she was apprehended by the police, and the said Mayuri @ Jenny was also found in possession of certain articles, allegedly incriminating, including some cash.
id_1052	11	As regards applicant Sushma, she was staying in the same room where the accused No. 1 Angela was staying and, as aforesaid, a number of articles alleged to be publicity materials or literature of the Communist Party of India (Maoists) were found. Further, it appears that she secured employment in a different name – Shraddha Omprakash Gurav – and had also opened a bank account in the assumed name, with the object of hiding her identity., Article 19 of the Constitution, inter alia, protects the following rights of citizens: (a) freedom of speech and expression; (b) peaceful assembly without arms; (c) formation of associations or unions., Undoubtedly, Article 19(2) empowers Parliament to impose, by law, reasonable restrictions on these rights in the interests of sovereignty and integrity of India. Section 20 has been enacted as a reasonable restriction on the aforesaid freedoms and rights guaranteed by the Constitution. Inasmuch as the said clause imposes restrictions on the aforesaid freedoms and rights, its interpretation must be in consonance with constitutional values and principles, and the concept of membership contemplated by the said section is required to be interpreted in the light of the aforesaid freedoms and rights., It follows that, considering from this point of view, membership of a terrorist gang or organization as contemplated by Section 20 cannot be a passive membership. It has to be treated as an active membership which results in participation in the acts of the terrorist gang or organization performed for carrying out the aims and objects of such gang or organization by means of violence or other unlawful means., In her oral arguments, Ms. Rohini Salian, the learned Special Public Prosecutor, submitted that there was a great danger to the whole nation from the said organization, and that the unity and integrity of the nation was already in danger because of their activities. She submitted that Section 20 of the Unlawful Activities (Prevention) Act has been deliberately worded very widely by keeping these aspects in mind. She submitted that mere association with such type of people, and sharing their ideology would make a person a member of their organization., The Supreme Court of India expressed agreement with the aforesaid views, and opined that the same would apply to India also, as the fundamental rights in the Indian Constitution are similar to the Bill of Rights in the United States Constitution. The Court ultimately concluded as follows: In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence., Even prior to the aforesaid judgment, the Supreme Court of India had an occasion to consider a similar question in State of Kerala v. Raneef, (2011) 1 SCC 784. In that case, the Kerala High Court had granted bail to Dr. Raneef, who was, inter alia, accused of having committed offences punishable under various provisions of the Indian Penal Code, the Explosive Substances Act and the Unlawful Activities (Prevention) Act. The allegation was that the respondent was a member of the Popular Front of India, alleged to be a terrorist organization. The Court noted that there was, till then, no evidence to prove the Popular Front of India to be a terrorist organization, but observed that even assuming it to be so, whether all members of the said organization can be automatically held to be guilty would need consideration. The Court referred to observations made by the United States Supreme Court in Scales v. United States, 367 U.S. 203, distinguishing 'active knowing membership' and 'passive, merely nominal membership' in a subversive organization. The following observations of the United States Supreme Court were quoted with approval: \The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal. There must be clear proof that the Defendant specifically intends to accomplish the aims of the organization by resort to violence.\, Again, the following observations of the United States Supreme Court in Elfbrandt v. Russell, 384 U.S. 1719 (1966) were quoted: \Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applied to membership without the specific intent to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of guilt by association which has no place here.\, The aforesaid discussion leaves no doubt that passive membership is not what is contemplated by Section 20 of the Unlawful Activities (Prevention) Act. It is very clear from the observations made by the Supreme Court of India that if Section 20 were to be interpreted in that manner, it would be violative of Article 19 of the Constitution of India and would be struck down as ultra vires. The Supreme Court of India has interpreted the concept of membership as an active membership to save the relevant provision from being declared unconstitutional., In Jyoti Chorge, after considering the specific material in electronic form found with the accused, this Court observed that in the absence of any allegation or material that the applicants had at any time agreed to do any illegal acts or had handled arms, weapons or explosive substances to commit a violent or unlawful act, or any material to show that the literature found with the accused was banned under Section 95 of the Code, merely because the applicants were sympathisers of Maoist philosophy, they cannot be brought within the umbrella of the Act. Taking this principle further, the Court held: \That the possession of certain literature having a particular social or political philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is a shocking proposition in a democratic country like ours. A feeble attempt to put forth such a proposition was made by the learned Special Public Prosecutor in the oral arguments. Such a proposition runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution.\, In this regard, a reference may also be made to a decision of the Gujarat High Court, relied upon by Shri Mihir Desai. The applicants therein had been alleged to be in contact with a person involved in the Naxal movement and serious charges of offences punishable under Section 121-A, 124-A, 153-A, 120-B etc. of the Indian Penal Code were leveled against them along with offences punishable under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Act (as it stood then). Certain documents such as the agenda of a meeting, in which one of the items was to pay homage to a dead Naxal who was killed in encounter and some literature about revolution and lessons of the Communist Party of India (Maoists/Leninists) containing, inter alia, features of guerrilla warfare etc., were seized from the applicants. While releasing the applicants on bail, the High Court observed that the seizure of the so‑called incriminating material, by itself, cannot show participation in an activity prohibited by law. It held that mere possession of such literature, without actual execution of the ideas contained therein, would not amount to any offence., Since none of the applicants is said to have indulged in any acts of violence or to be a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with members of the said organization and were perhaps learning about its philosophy and ideology, they cannot be prima facie held as offenders. Even if they were impressed by the philosophy and ideology, they cannot be said to be members – much less such members as would attract penal liability – of the organization. There does not seem to be a prima facie case against the applicants even in respect of an offence punishable under Section 38 of the Unlawful Activities (Prevention) Act, which expands the scope of criminal liability attached to the membership of a terrorist organization, insofar as the mens rea should be with respect to such activities of the organization as are contemplated in Section 15 and made punishable by Sections 16 to 19 of the Act., The defence has relied on the decision of the Supreme Court in Vernon, wherein the Court considered the different provisions of the Unlawful Activities (Prevention) Act and its applicability under certain circumstances. The observations made in that decision are worthwhile to note: As it would be evident from the analysis of the evidence cited by the National Investigation Agency, the acts allegedly committed by the appellants can be categorized under three heads. The first is their association with a terrorist organisation, which the prosecution claims from the letters and witness statements. However, none of these documents were seized or recovered from the appellants; they were alleged to have been recovered from co‑accused. The second head is keeping literature propagating violence and promoting overthrow of a democratically elected government through armed struggle. Again, it is not the NIA’s case that either of the two appellants is the author of the materials found in their residences. None of these literatures has been specifically proscribed so as to constitute an offence merely by keeping them. Thirdly, some materials point to handling of finances, which appear to be mainly for the purpose of litigation on behalf of detained party persons. The formation of or association with a legal front of the banned terrorist organisation has also been attributed to one appellant. The High Court, while analysing each of these documents individually, did not opine that there were reasonable grounds for believing that the accusations against such persons were prima facie true. The offences which come within Chapters IV and VI of the 1967 Act, charged against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We have summarised the nature of allegations reflected in the chargesheet as also the affidavit of the National Investigation Agency. We shall now ascertain if, on the basis of these materials, the prosecution has made out reasonable grounds to persuade the Court that the accusations against the appellants are prima facie true. There is a charge under Section 13 of the 1967 Act and certain offences under the 1860 Code against the appellants also. But we shall first deal with the appellants’ case in relation to charges made against them under the aforesaid provisions., In none of the materials referred to by the prosecution can the acts specified in sub‑clause (a) of Section 15(1) of the 1967 Act be attributed to the appellants, nor is there any allegation that would attract sub‑clause (c) of Section 15(1). Regarding the acts specified in Section 15(1)(b), some of the literature alleged to have been recovered from the appellants gives a hint of propagation of such activities. However, there is nothing to prima facie establish that they indulged in activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts to do so. Neither is there an allegation of causing death of any public functionary or attempt to cause death. Mere holding of certain literature through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b). Thus, prima facie, we cannot reasonably find that any case against the appellants under Section 15(1)(b) can be held to be true., We have already observed that it is not possible for us to form an opinion that there are reasonable grounds for believing that the accusation against the appellant of committing or conspiring to commit a terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the appellants. The copies of the letters in which the appellants or any one of them have been referred record only third‑party response or reaction to the appellants’ activities contained in communications among different individuals. These have not been recovered from the appellants. Hence, these communications have weak probative value. Consequently, neither the provisions of Section 18 nor 18B can be invoked against the appellants, prima facie, at this stage. The association of the appellants with the activities of the designated terrorist organisation is sought to be established through third‑party communications. Moreover, actual involvement of the appellants in any terrorist act has not surfaced from any of these communications. Nor is there any credible case of conspiracy to commit offences enumerated under Chapters IV and VI of the 1967 Act. Mere participation in seminars by itself cannot constitute an offence under the bail‑restricting sections of the 1967 Act, with which they have been charged., This judgment has not been interfered with by this Court and we also affirm the interpretation given to Section 20 of the 1967 Act for testing who would be a member of a terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the National Investigation Agency that the appellants are members of the terrorist organisation. The appellant’s involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material. Reference to the appellants as members of the CPI (Maoist) appears from the statement of a protected witness, but that link is made in relation to events between 2002‑2007, before the organisation was included in the First Schedule to the 1967 Act. No evidence of continued membership after the party was classified as a terrorist organisation has been brought to our notice. Nor is there any reliable evidence to link IAPL with CPI (Maoist) as its frontal organisation. We have already dealt with the position of the appellants vis‑à‑vis terrorist acts in earlier paragraphs of this judgment and we prima facie do not think that Section 20 can be made applicable against the appellants at this stage of the proceeding, on the basis of available materials., Section 38 of the 1967 Act carries the heading offence relating to membership of a terrorist organisation. As we have already observed, a terrorist act would have to be construed having regard to the meaning assigned to it in Section 15. We have given our interpretation to this provision earlier. The term 'terrorist organisation' as employed in Section 2(m) is not a mere nomenclature; it means an organisation that carries on or indulges in terrorist acts, as defined in Section 15. The term 'terrorism', in view of the provisions of Section 2(k), ought to be interpreted in tandem with what is meant by 'terrorist act' in Section 15., Keeping in mind the above observations, we have examined the worth of material adduced in support of the prosecution case. It is the prosecution argument that the following material contained in electronic form in the computer of Accused No. 6 would connect him with the banned organisation CPI (Maoists) and would demonstrate that he had knowledge about the activities of this organisation or was a member of RDF, a frontal organisation of CPI (Maoists): Interview posted on 21.05.2011, Interview of September 2009 speaking as Vice President of RDF, Review for RDF work of the year 2012, Pamphlet of CPI (Maoists), Letter by Prakash to SUCOMO, Pamphlet from CPI (Maoists) dated 03.06.2011., Perusing these and various other literature contained in the hard disk, as claimed to have been seized from Accused No. 6, the contents of these documents, read by any person, would not constitute an offence under Sections 13, 18, 20, 38 or 39. The documents relate to the period from 2006 to 2012, ranging from one to seven years prior to registering the FIR. The content, if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathized with the cause of certain tribal groups or people perceived to be marginalized, and mere possession of such literature, having a particular political and social philosophy, is not contemplated as an offence under the Unlawful Activities (Prevention) Act., It is the prosecution argument that Vernon and Thwaha Fasal, the judgments rendered by the Supreme Court at the stage of grant of bail, are only to conclude whether there was prima facie material against the accused. It is also argued that in the above decisions, the statutory presumption in terms of Section 43E of the Act has not been considered, and therefore would not apply to the present case. We are unable to accede to this argument since in both these cases, the Supreme Court examined the requirement to bring home an offence under Sections 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act; the discussion on the requirements of bringing out the offence, and the balance to be struck whilst doing so to uphold the fundamental rights of freedom of speech and liberty of the accused enshrined in Article 19, would be binding precedent and must be followed., The ratio laid down in Jyoti Babasaheb Chorge, Vernon and Thwaha Fasal would squarely apply to the material content in all this literature. As held in these judgments, passive membership, even if demonstrated from the material, is not contemplated as an offence under the above‑referred provisions of the Unlawful Activities (Prevention) Act. In any event, merely because a particular philosophy is contained in the literature, which has not been proved to be authored by any of the accused, or because a person chooses to read such literature accessible from the internet, would to a certain extent be violative of the fundamental rights of any citizen under Article 19 of the Constitution of India., We take note of the deposition of the investigating officer, PW‑11 Suhas Pauche, who states that he is aware that there is a website where Naxal‑related banned thoughts are available and this website also contains all information regarding CPI (Maoists) and Naxal literature, meetings, resolutions and such material is available on other websites on the internet., It is now common knowledge that one can access a huge amount of information from websites of Communist or Naxal philosophy, their activities including videos of violent nature; merely because a citizen downloads this material or even sympathizes with the philosophy, would itself not be an offence unless there is specific evidence led by the prosecution to connect an active role shown by the accused with particular incidents of violence and terrorism, which would be offences within the purview of Sections 13, 20 and 39 of the Unlawful Activities (Prevention) Act. No evidence has been led by the prosecution by any witness to any incident, attack, act of violence or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such act, either by participating in its preparation or its direction or in any manner providing support to its commission., Similarly, we refer to videos played during the arguments wherein it was submitted that the presence of Accused No. 6 and Accused No. 4 has been established. These videos are of a rally at Hyderabad in 2012 in an open space, accessible to any member of the public where certain speeches were made by various persons. The content of the speeches may portray dissent or criticism or even a streak of militancy, but by themselves, the content does not portray any acts of terrorism contained in the various provisions of the Unlawful Activities (Prevention) Act. In fact, there is no evidence brought forth by the prosecution to connect the persons in these videos with any actual act of terrorism which had taken place in the past or to demonstrate how the persons in the video were directly connected with and responsible for the commission of any other act of terrorism., The prosecution has not established that the speeches made in these videos are in the nature of support to any banned organization under the Unlawful Activities (Prevention) Act. We are of the opinion that the prosecution ought to have connected the content of the speeches to some past incident of terrorism or violence and the mere presence of the accused in these videos by itself would not make out any case for the prosecution. In fact, there is no deposition on record identifying the various accused in these videos or deposing to the specific parts of the speech or actions in these videos which constitute a terrorist act under the Act., Though a great deal of electronic evidence is produced in the form of printed or hard copies of the content stored in digital form or video footage, no evidence has been led by any witness identifying the various persons in these videos, or deposing as to the specific statements made by such persons and quoting them, or how these statements or actions in videos constitute material to make out an offence under the Act. Playing several videos or requesting the Court to read through hundreds of pages of literature does not constitute evidence. In our opinion, there should have been specific evidence led through witnesses to connect with the making out of an offence. In the absence of any depositions to this effect, we cannot consider all this footage to be evidence., For the above reasons, we reject the arguments of the prosecution that the content of electronic evidence produced, though not proved, by itself constitutes an offence under any of the provisions of the Unlawful Activities (Prevention) Act of which the accused have been charged. We reiterate that for the sake of this judgment we have done the above exercise. In fact, since the prosecution has failed to establish the electronic evidence in accordance with law, the material need not be gone into as evidence in this case., The prosecution relied on the decisions in Aman Kumar v. State of Haryana, (2004) 4 SCC 379 and Malkiat Singh v. State of Punjab, (1969) 1 SCC 157 to contend that the stage of crime, in particular, the offence of preparation is complete if some positive steps have been taken to achieve the intended act. In these cases, the Court considered that in every crime there is first intention to commit, secondly preparation to commit it, and thirdly attempt to commit the crime. The preparation consists of devising or arranging the means or measures necessary for the commission of the offence., Certainly, in order to establish the offence of preparation to commit crime, there must be some positive steps to achieve the object. It is the prosecution case that the accused undertook a preparatory act for commission of a terrorist act punishable under Section 18 of the Unlawful Activities (Prevention) Act. In order to attract the offence of conspiracy, besides vague allegations that they have conspired to wage war against the Government or advocated armed struggle, there is no other material. The preparatory act must be for commission of a terrorist act. The accused have not been charged with making preparation to commit a particular terrorist act. CDR will only show their acquaintance with each other, which without corroboration will yield nothing. It is difficult to accept that they have conspired and made preparation to commit a terrorist act which is not spelt out., The defence has also criticized the mode and manner of the investigation. Our attention has been invited to the evidence of PW‑11 SDPO Suhas Bawche, the investigating officer. He admits that the case diary is neither paginated nor bound; it is in loose condition, kept in the file. Since inception, the learned defence counsel has blamed the investigating officer for manipulating records and fabricating incriminating material. In this context, it is submitted that the case diary was purposely kept in loose paper form so as to replace the same to suit the purpose., Section 172 of the Code mandates the investigating officer to make day‑to‑day entries in a case diary with particulars of time, steps, places of visit and all other relevant circumstances. The criminal court may use such diaries in a case in aid of the trial. The amended sub‑clause (1‑B) to Clause 1 of Section 172 mandates that the case diary shall be a volume and duly paginated. Admittedly, such procedural mandate was not followed in a serious crime like this, which is not free from doubt., It is the prosecution case that on 12.09.2013, the house of Accused No. 6 G. N. Saibaba was searched, and voluminous electronic gadgets containing incriminating material were seized. According to the investigating officer, on 15.02.2014 the police tried to arrest Accused No. 6 G. N. Saibaba, however his party members created law and order problems, hence they did not arrest him. PW‑11 SDPO Suhas Bawche deposed that on 26.02.2014 he applied to the magistrate seeking an arrest warrant. Despite filing of the charge‑sheet, the police did not think it appropriate to arrest Accused No. 6 G. N. Saibaba, which was ultimately done on 09.05.2014, almost eight months later. It does not stand to reason that because of law and order problems the police did not arrest him. The reason for not arresting Accused No. 6 for a considerable period despite knowing his alleged complexity and place of abode has not been explained to our satisfaction., In conclusion, we observe that the objection pertaining to the validity of sanction has been raised before the trial court, right from the stage of bail application till final arguments. Therefore, non‑filing of a separate objection does not make any difference and the question of validity of the sanction can be gone into in this appeal. The conviction rendered by the trial court would always be subject to the appeal. After analysing the evidence, we hold that the conviction is not sustainable in the eyes of law, and therefore it would not come in our way in this appeal to entertain objections to the validity of the sanction., In our view, there is total non‑compliance of various provisions of the Unlawful Activities (Prevention) Act. The sanction accorded to prosecute Accused Nos. 1 to 5 is invalid. Taking cognizance by the trial court without valid sanction or no sanction to prosecute Accused No. 6 G. N. Saibaba goes to the root of the case, which renders the entire proceedings null and void. There is non‑compliance of the provisions of Sections 43‑A and 43‑B of the Unlawful Activities (Prevention) Act pertaining to arrest, search and seizure. The statutory presumption under Section 43E of the Act would not apply for the offences charged. We hold that the trial, held despite violation of mandatory provisions of law, amounts to failure of justice., We summarize that the entire prosecution is vitiated on account of invalid sanction to prosecute Accused Nos. 1 to 5 and against Accused No. 6, for want of valid sanction in terms of Section 45(1) of the Unlawful Activities (Prevention) Act. The prosecution has failed to establish legal arrest and seizure from Accused Nos. 1 to 5, and failed to establish the seizure of incriminating material from the house search of Accused No. 6 G. N. Saibaba.
id_1052	12	The prosecution has also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act and the Information Technology Act., In view of the above conclusion, the common judgment rendered by the Sessions Court in Sessions Case No. 13/2014 and 130/2015 is not sustainable in the eyes of law. We therefore allow both the appeals by setting aside the impugned common judgment and order of conviction dated 07.03.2017., Accused No.1 Mahesh Kariman Tirki, accused No.2 Pandu Pora Narote, accused No.3 Hem Keshavdatta Mishra, accused No.4 Prashant Rahi Narayan Sanglikar, accused No.5 Vijay Nan Tirki and accused No.6 G.N. Saibaba stand acquitted for the offence punishable under Sections 10, 13, 20, 38, 39 read with Section 18 of the Unlawful Activities (Prevention) Act and under Section 120-B of the Indian Penal Code., Bail bond of accused No.5 Vijay Nan Tirki stands cancelled. Accused No.1 Mahesh Kariman Tirki, accused No.3 Hem Keshavdatta Mishra, accused No.4 Prashant Rahi Narayan Sanglikar and accused No.6 G.N. Saibaba be released forthwith, if not required in any other offence., The accused shall execute bond of Rupees 50,000 each with surety in the like amount to the satisfaction of the Sessions Court in terms of provisions of Section 437-A of the Code of Criminal Procedure., Muddemal property be dealt with in accordance with law., The appeals stand disposed of in the aforesaid terms.
id_1053	0	W.P. No. 37781 of 2015 and M.P. No. 1 of 2015. D. Lokeswari, Petitioner. Respondents: 1. The State of Tamil Nadu, represented by the Secretary to Government, Department of Education, Fort St. George, Chennai 600009. 2. The District Educational Officer, Vellore District, Vellore. 3. The Head Master, Government High School, Thanigaipolur Village, Arakkonam Taluk, Vellore District., Prayer: The writ petition is filed under Article 226 of the Constitution of India, seeking a writ of certiorari and mandamus, calling for the records of the first respondent made in Na. Ka. No. 2881/A1/2014 dated 02.09.2014, and to quash the same and consequently direct the first respondent to provide employment to the petitioner on compassionate grounds consequent to the death of the petitioner’s mother., For the petitioner: Mr. S. Arunkumar. For the respondents: Mr. A. M. Ayyadurai, Government Advocate (for Respondents 1 to 3). The rejection of the claim of the writ petitioner for compassionate appointment is under challenge in the present writ petition., The petitioner states that her deceased mother was employed as Junior Assistant in the third respondent school. The mother of the petitioner was appointed on compassionate grounds on account of the death of her husband. The father of the petitioner died on 17.06.1991 and the mother was appointed on compassionate grounds. The mother served in the Government High School for about eleven years and died on 08.05.2002. The petitioner states that she is the adopted child of the deceased employee and therefore is eligible for compassionate appointment., However, at the relevant time the petitioner was a minor and therefore not eligible for appointment. The petitioner submitted an application seeking appointment on compassionate grounds in 2014, and the application was rejected on the ground that, as per the scheme of compassionate appointment, the application must be submitted within a period of three years and, in respect of minors, no post needs to be reserved for appointment on compassionate grounds., Compassionate appointment is a concession and cannot be claimed as a matter of right. Being a concession, it is to be implemented scrupulously in accordance with the terms and conditions stipulated. The scheme, being violative of Articles 14 and 16 of the Constitution of India, is to be restricted so as to ensure that appointments are made on compassionate grounds only for deserving cases. The purpose of the scheme is to mitigate the circumstances arising from the sudden death of a government employee. Accordingly, lapse of time is a ground to infer that the penurious circumstances arising from the sudden death have vanished, and the scheme cannot be extended beyond a reasonable period, especially after several years., In the present case, the father of the petitioner died in 1991. The mother secured employment on compassionate grounds, served about eleven years and died on 08.05.2002. The petitioner was adopted in 2002, at which time she was a minor. Upon attaining majority, she submitted an application in 2014, which was rejected on the ground of delay., The Madras High Court is of the considered opinion that appointments on compassionate grounds are streamlined by the Government to provide appointment only on genuine grounds. If any legal heir is employed in government or private service and is an earning member, the family of the deceased employee is not eligible for compassionate appointment., Recently, the Honourable Supreme Court in State of Uttar Pradesh and Others v. Premlata [(2022) 1 SCC 30] made observations on the implementation of the scheme of compassionate appointment. The Supreme Court in State of Karnataka v. V. Somayashree [(2021) 12 SCC 20] considered the principle governing the grant of appointment on compassionate grounds. After referring to the decision of this Court in N. C. Santhosh v. State of Karnataka [(2020) 7 SCC 617], the Court summarized the principle as follows: compassionate appointment is an exception to the general rule; no aspirant has a right to compassionate appointment; appointment to any public post must be in accordance with Articles 14 and 16 of the Constitution; appointment on compassionate grounds can be made only on fulfilling the norms laid down by the State policy and satisfaction of the eligibility criteria; the norms prevailing on the date of consideration of the application should be the basis for consideration of the claim., As per the law laid down by this Court in a series of decisions on appointment on compassionate grounds, all government vacancies must provide equal opportunity to all aspirants as mandated under Articles 14 and 16. Appointment on compassionate grounds offered to a dependent of a deceased employee is an exception to those norms. The compassionate ground is a concession and not a right. In H. P. v. Shashi Kumar [(2019) 3 SCC 653], the Court considered the object and purpose of appointment on compassionate grounds and referred to Govind Prakash Verma v. Life Insurance Corporation [(2005) 10 SCC 289]. The Court noted that the nature of compassionate appointment had been considered in Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138] and that the principles are: appointments in public services should be made strictly on the basis of open invitation of applications and merit; no other mode of appointment or consideration is permissible; exceptions are carved out in the interests of justice and to meet certain contingencies, such as dependants of an employee dying in harness and leaving the family in penury. The object is to provide gainful employment to an eligible dependant to tide over the sudden crisis, usually in the lowest posts of Classes III and IV, which is a justified and non‑discriminatory exception., The judgment of a two‑Judge Bench in Mumtaz Yunus Mulani v. State of Maharashtra [(2008) 11 SCC 384] adopted the principle that appointment on compassionate grounds is not a source of recruitment but a means to enable the family of the deceased to overcome a sudden financial crisis. The Court observed that earlier binding precedents had not been fully considered in Govind Prakash Verma., In view of the facts and circumstances, the petitioner is not entitled to appointment on compassionate grounds. Consequently, there is no infirmity in the order passed by the first respondent in this writ petition. The writ petition stands dismissed. No costs. Consequently, the connected miscellaneous petition is closed. Dated 26.07.2022.
id_1054	0	Justice Uday Umesh Lalit. These appeals by Special Leave challenge the common judgment and order dated 12 October 2015 passed by the High Court of Judicature at Bombay, Nagpur Bench in Criminal Appeal No. 321 of 2015 and Criminal Confirmation Case No. 1 of 2015, affirming the judgment and order dated 14 August 2015 passed by the Additional Sessions Judge, Yavatmal in Special Case (Protection of Children from Sexual Offences Act) No. 11 of 2013 and confirming the death sentence awarded to the appellant on two counts, namely under Section 302 of the Indian Penal Code and under Section 376A of the Indian Penal Code., The victim in the present case was a girl of two and a half years of age. The First Information Report was lodged at 09:25 p.m. on 11 February 2013 by her father with Parwa Police Station, Yavatmal. He reported that on the day of the incident he had gone to Mahaprasad programme at Duttatraya Temple in the village and returned home at about 7.30 p.m. He could not find his daughter, Miss XXX, and was told by his father‑in‑law that Shatrughna Baban Meshram, aged 21 years, resident of Zatala, had taken the child. When the father searched the village he found the child and Shatrughna Meshram lying in a new, under‑construction Anganwadi building. The child was found with her face bitten, private parts swollen and no pants. The father, his father‑in‑law and Vitthal Ghodam took the child in an auto to Dr. Jaffar Siddiqui, Kurli, who examined her and declared her dead. The FIR states that Shatrughna Meshram took the child into the Anganwadi building, committed rape in solitude, bit her on the face and lips and murdered her., As stated in the FIR, the victim was taken to Dr. Md. Jaffar Siddiqui for medical attention but she was already dead and bore marks of bites on her body. The inquest recorded black and bluish coloured contusion marks on both cheeks, injuries on the left cheek, both lips bitten, an injury measuring 2 cm × 3 cm × 1 cm on the chin, bite marks on the chest and stomach and signs of forcible sexual assault. The police officer in charge, Assistant Police Inspector Pankaj Vanjari, caused the arrest of the appellant and conducted a spot panchnama at the scene, where the full pants of the victim, pieces of flesh and adult male chappals were found., The appellant was taken to Dr. Ulhas Digambar Lingawar for medical examination. The doctor found an abrasion injury on the tip of the glans penis measuring 5 mm × 3 mm, caused within 24 hours, and opined that the accused was capable of sexual intercourse. The investigating officer recorded that the medical examiner stated that signs of sexual intercourse within 24 hours were present and that the injury could be due to sexual intercourse., The post‑mortem on the body of the victim was conducted on 12 February 2013 by a board of five medical professionals. The report noted a perineal tear with merging of vaginal and anal orifices, dried blood and fecal stains over the genital and perineal region, multiple abrasions on the face, missing upper and lower lips with clean cut margins, a lacerated wound on the chin, numerous bite marks on the right and left nipples, abdomen, midline, public region, right shoulder, right and left buttocks, and multiple lacerations over the vaginal and anal region. The report concluded that the ante‑mortem injuries were sufficient in the ordinary course of nature to cause death and that the cause of death was shock and haemorrhage following the perineal tear with multiple injuries., The clothes of the victim and those of the appellant were sent for chemical analysis. Six sealed parcels containing a jersey, full pants, full shirt, knickers, a small full pant and earth were examined. Exhibits 1 and 5 (clothes of the victim) showed human blood stains; exhibits 2, 3 and 4 (clothes of the appellant) showed no blood or semen. DNA analysis of blood detected on the victim's jersey, the appellant's full pant, the victim's full pant, vaginal and cervical swabs, anal swabs and skin and tissue samples showed identical profiles of female origin, matching the maternal and paternal alleles present in the victim's blood sample., The appellant was tried by the Trial Court in Special Case (Protection of Children from Sexual Offences Act) No. 11 of 2013 for offences punishable under Sections 376(1)(2)(f)(m), 376A and 302 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act. The prosecution examined thirteen witnesses, including the father of the victim (Witness 1) who proved the FIR and the examination by Dr. Md. Jafar, the grandfather of the victim (Witness 2) who narrated how the appellant took the child, Dr. Md. Jafar (Witness 6) who confirmed the child was dead on arrival, Dr. Ulhas Digambar Lingawar (Witness 7) who gave the medical opinion on the appellant, and Dr. Sachin Janbaji Gadge (Witness 10) who proved the post‑mortem report and explained that injury No. 5 was caused by sharp‑edged teeth. Other witnesses included a grocery shop owner (Witness 9) and the investigating officer (Witness 13). The investigating officer also produced letters and statements recorded under Section 164 of the Code of Criminal Procedure., During the examination of the appellant under Section 313 of the Code of Criminal Procedure, he denied the prosecution evidence, claiming that the victim’s parents had discussed a human sacrifice to find hidden treasure and that he lodged a false report against them. He also denied that the blood of the victim was found on his full pant, stating that the report was false., The Trial Court found that the appellant had taken the child from the father‑in‑law, kept her in his custody, and was found lying with the dead child at the Anganwadi construction site. The court noted the medical finding of abrasion on the tip of the appellant’s glans penis indicating sexual intercourse within 24 hours, the seizure of the victim’s pants, the appellant’s chappal and pieces of flesh from the spot, the DNA match between the blood on the appellant’s pant and the victim’s blood, and the perineal tear caused by forceful insertion of the penis. The court held that these circumstances established the guilt of the appellant. On 14 August 2015 the trial court sentenced the appellant to death on the counts of murder under Section 302 of the Indian Penal Code and rape under Section 376A of the Indian Penal Code, along with rigorous imprisonment for life on the other charges, subject to confirmation by the High Court., The High Court of Judicature at Bombay, Nagpur Bench affirmed the conviction and death sentence. Applying the yardstick set by the Supreme Court in Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab, the High Court observed that the victim was a child of two and a half years, subjected to forceful sexual exploitation, and that the death was caused by forceful intercourse. The court held that the case fell within clauses (a) and (b) of aggravating circumstances, namely murder after planning and extreme brutality, and murder involving exceptional depravity. The only mitigating circumstance pleaded – the appellant’s young age – was held to be of no assistance. The court also noted that the appellant was the maternal uncle of the victim, and that compassionate grounds based on age were not relevant in such a gruesome, calculated offence., The High Court further referred to several Supreme Court judgments, including Vasanta Sampat Dupare v. State of Maharashtra, where the Court described the crime as a rarest of rare cases warranting death, and Purushottam Dashrath Borate v. State of Maharashtra, where the Court held that the age of the accused does not mitigate punishment in cases of brutal, diabolical offences. The Court emphasized that punishment must reflect the atrocity of the crime, the defenceless state of the victim, and society’s demand for justice, and that lack of prior criminal antecedents cannot be a mitigating factor in such heinous offences.
id_1054	1	We are absolutely conscious that mitigating circumstances are to be taken into consideration. The learned counsel for the appellant pointing out the mitigating circumstances would submit that the appellant is in his mid‑fifties and there is possibility of his reformation. Be it noted, the appellant was aged about forty‑seven years at the time of commission of the crime. As is noticeable, there has been no remorse on the part of the appellant. There are cases when the Supreme Court of India has commuted the death sentence to life finding that the accused has expressed remorse or the crime was not premeditated. But the factual matrix when unfolded stage by stage would show the premeditation, the proclivity and the rapacious desire. The learned counsel would submit that the appellant had no criminal antecedents but we find that he was a history‑sheeter and had a number of cases pending against him. That alone may not be sufficient. The appalling cruelty shown by him to the minor girl child is extremely shocking and it gets accentuated when his age is taken into consideration. It was not committed under any mental stress or emotional disturbance and it is difficult to comprehend that he would not commit such acts and would be reformed or rehabilitated. As the circumstances would graphically depict, he would remain a menace to society, for a defenceless child has become his prey. In our considered opinion, there are no mitigating circumstances., As we perceive, this case deserves to fall in the category of the rarest of rare cases. It is inconceivable from the perspective of society that a married man aged about two scores and seven years makes a four‑year‑old innocent girl child the prey of his lust and deliberately causes her death. A helpless and defenceless child gets raped and murdered because of the acquaintance of the appellant with the people of the society. This is not only betrayal of an individual trust but destruction and devastation of social trust. It is perversity in its enormity. It irrefragably invites the extreme abhorrence and indignation of the collective. It is an anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly hold. With this view, the High Court upheld the conviction and sentence as recorded by the Trial Court and confirmed the Death Sentence., As the Death Sentence and life imprisonment have been awarded on two counts each, the statutory changes that the concerned provisions of the Indian Penal Code and the Protection of Children from Sexual Offences Act have undergone may briefly be adverted to. A. Before 03‑02‑2013, the relevant portions of Sections 375, 376 and 376A of the Indian Penal Code were as under: 375. Rape. A man is said to commit rape who, except in the case he is thereafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: firstly, against her will; secondly, without her consent; thirdly, …; sixthly, with or without her consent, when she is under sixteen years of age. Explanation. 376. Punishment for rape – (1) Whoever, except in the cases provided for by sub‑section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both, provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever, (f) commits rape on a woman when she is under twelve years of age; shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine, provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1, Explanation 2, Explanation 3. 376A. Intercourse by a man with his wife during separation – whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. B. On 03‑02‑2013, the Criminal Law (Amendment) Ordinance, 2013 (No. 3 of 2013), hereinafter referred to as the Ordinance, was promulgated by the President of India. Section 8 of the Ordinance inter alia substituted Sections 375, 376 and 376A of the Indian Penal Code; the relevant text of the substituted provisions being: 375. A person is said to commit sexual assault if that person (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of another person or makes the person do so with him or any other person; or (e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes, under the circumstances falling under any of the following seven descriptions: first, against the other person’s will; secondly, without the other person’s consent; …; sixth, with or without the other person’s consent, when such other person is under eighteen years of age; seventh, … Explanation 1, Explanation 2, Explanation 3, Exception. 376. (1) Whoever, except in the cases provided for by sub‑section (2), commits sexual assault, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever, (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards, the person assaulted, commits sexual assault on such person; or (h) commits sexual assault on a person when such person is under eighteen years of age; or (l) while committing sexual assault causes grievous bodily harm or maims or disfigures or endangers the life of a person; shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. Explanation 1, Explanation 2. 376A. Whoever commits an offence punishable under sub‑section (1) of sub‑section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death. C. The Criminal Law (Amendment) Act, 2013 (No. 13 of 2013), hereinafter referred to as the Amendment Act, received the assent of the President and was published on 02‑04‑2013 but was given retrospective effect from 03‑02‑2013. Section 9 of the Amendment Act inter alia substituted Sections 375, 376 and 376A of the Indian Penal Code as under: 375. A man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or under the circumstances falling under any of the following seven descriptions: first, against her will; secondly, without her consent; …; sixth, with or without her consent, when she is under eighteen years of age; seventh, … Explanation 1, Explanation 2, Exception 1, Exception 2. 376. (1) Whoever, except in the cases provided for in sub‑section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever, (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (i) commits rape on a woman when she is under sixteen years of age; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. Explanation. 376A. Whoever commits an offence punishable under sub‑section (1) or sub‑section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death. While repealing the Ordinance, Section 30 of the Amendment Act states: (1) The Criminal Law (Amendment) Ordinance, 2013 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of those Acts, as amended by this Act. D. The Criminal Law (Amendment) Act, 2018 (Act 22 of 2018) which came into effect from 21‑04‑2018, deleted clause (i) of Section 376(2) of the Indian Penal Code and added sub‑section (3) after Section 376(2) as well as inserted Section 376AB as under: (3) Whoever commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. 376AB – Punishment for rape on woman under twelve years of age – Whoever commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine or with death. Since the offence in the instant case was committed well before 21‑04‑2018, we are not called upon to consider the effect of Act 22 of 2018 but the provisions are noted for the sake of completeness. E. Sections 5 and 6 of the Protection of Children from Sexual Offences Act, at the time when the offence was committed in the instant case, provided: 5: Aggravated penetrative sexual assault – (j) Whoever commits penetrative sexual assault on a child, which (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; (ii) in the case of a female child, makes the child pregnant as a consequence of sexual assault; (iii) inflicts the child with Human Immunodeficiency Virus or any other life‑threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; (m) Whoever commits penetrative sexual assault on a child below twelve years; 6. Punishment for aggravated penetrative sexual assault – Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. By virtue of the Protection of Children from Sexual Offences (Amendment) Act, 2019 (Act 25 of 2019) which came into effect on 16‑08‑2019, sub‑clause (iv) was inserted in clause (j) of Section 5 as under: (iv) causes death of the child; or further, Section 6 was substituted as under: 6. Punishment for aggravated penetrative sexual assault – (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. (2) The fine imposed under sub‑section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim., If the abovementioned provisions of the Indian Penal Code are considered in three compartments, that is to say, (A) the situation obtaining before 03‑02‑2013, (B) the situation in existence during 03‑02‑2013 to 02‑04‑2013 and, (C) the situation obtaining after 02‑04‑2013, the following features emerge: (i) The offence under Section 375, as is clear from the definition of the relevant provision in compartment (A), could be committed against a woman. The situation was sought to be changed and made gender neutral in compartment (B). However, the earlier position now stands restored as a result of provisions in compartment (C). (ii) Before 03‑02‑2013 the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non‑consensual sexual intercourse with his wife in certain situations. (iii) As a result of the Ordinance, the sentences for offences under Sections 376(1) and 376(2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub‑section (1) or sub‑section (2) of Section 376, a person inflicts an injury which causes the death of the victim, the accused could be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death. Thus, for the first time, death sentence could be imposed if a fatal injury was caused during the commission of an offence under sub‑section (1) or (2) of Section 376. (iv) Though the provisions of the Amendment Act restored the original non‑gender‑neutral position vis‑à‑vis the victim, it made certain changes in sub‑section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life. It was, thus, statutorily made clear that imprisonment for life would mean till the last breath of that person’s natural life. (v) Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than twenty years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death. In the instant case, the offence was committed on 11‑02‑2013 when the provisions of the Ordinance were in force. However, the Amendment Act having been given retrospective effect from 03‑02‑2013, the question arises whether imposition of life sentence for the offence under Section 376(2) could mean imprisonment for the remainder of that person’s natural life. In the present case, since the victim was about two and a half years of age at the time of incident and since it was the Ordinance which was holding the field, going by the provisions of the Ordinance, clauses (f), (h) and (l) of Section 376(2) would get attracted. The comparable provisions of Section 376(2) as amended by the Amendment Act would be, clauses (f), (i) and (m) respectively. As the substantive penal provisions under the clauses (f), (h) and (l) as inserted by the Ordinance and clauses (f), (i) and (m) as inserted by the Amendment Act are identical, no difficulty on that count is presented. But the sentence prescribed by Section 376(2) as amended by the Amendment Act has now, for the first time, provided that imprisonment for life shall mean imprisonment for the remainder of that person’s natural life. This provision comes with retrospective effect and in a situation where such prescription was not available on the statute when the offence was committed, the question arises whether such ex‑post‑facto prescription would be consistent with the provisions of sub‑Article (1) of Article 20 of the Constitution., An imposition of life sentence simply does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code of Criminal Procedure. But a statutory prescription that it shall mean the remainder of that person’s life will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex‑post‑facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated. We must, therefore, declare that the punishment under Section 376(2) of the Indian Penal Code in the present case cannot come with stipulation that the life imprisonment shall mean the remainder of that person’s life. Similar prescription in Section 6 of the Protection of Children from Sexual Offences Act, which came by way of amendment in 2019, would not be applicable and the governing provision for punishment for the offence under the Protection of Children from Sexual Offences Act must be taken to be the pre‑amendment position as noted hereinabove., However, in so far as the situation covered by Section 376A of the Indian Penal Code as amended by the Amendment Act is concerned, a substantively identical situation was dealt with by Section 376A as amended by the Ordinance and the prescription of sentence in Section 376A by the Amendment Act is identical to that prescribed by Section 376A as amended by the Ordinance. Section 376A as amended by the Ordinance being gender neutral so far as the victim was concerned, naturally covered cases where a victim was a woman. Thus, the ex‑post‑facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated would not in any way be inconsistent with the provisions of sub‑Article (1) of Article 20 of the Constitution., Having considered the legal provisions involved in the matter, we now turn to the submissions advanced by the learned counsel., Ms. Sonia Mathur, learned Senior Advocate for the appellant submitted: A) While noting eight circumstances against the appellant, certain circumstances were ignored by the courts below, namely: (i) Both the lips of the victim showed clean cut margins indicating that the injuries were suffered by a weapon and not by a human bite. Further, the odontology report was not furnished to substantiate the theory that the injuries could be by a human bite and by the appellant. (ii) The vaginal, cervical, and anal swabs were sent for forensic examination but none of these could be associated with the appellant. These important facets pointing towards innocence of the appellant were completely disregarded. B) Each of the circumstances found against the appellant was then dealt with as under: (i) Prosecution witnesses 1 and 2 were not independent witnesses to prove the first circumstance that the victim was taken away by the appellant. There were discrepancies in the statements of prosecution witnesses 1 and 2. On the other hand, witnesses such as Shravan, Vitthal Ghodam and Vikas Meshram were not examined at all. Even the wife of prosecution witness 2 whose presence was referred to in the statement of prosecution witness 2 under Section 164 of the Code of Criminal Procedure was not examined. (ii) The fact that the victim was always in the custody of the appellant since the time she was taken away from prosecution witness 2 was not proved. Prosecution witness 9 was examined to establish this circumstance but did not support the prosecution. Moreover, Vikas Meshram who allegedly saw the victim with the appellant was also not examined. (iii) The spot where the victim was found lying was not an isolated place but was in the middle of the village surrounded by houses. No independent witness was examined to corroborate the version of prosecution witnesses 1 and 2. Independent witnesses like Shravan, Vitthal Ghodam and Vikas Meshram were not examined. The initial noting in the form of General Diary entry 40/13 (which was referred to in the FIR) mentioned that the appellant took away the victim to the jungle and killed her. (iv) The appellant was examined at the time of arrest but the medical evidence in that behalf was not placed on record. However, the prosecution chose to rely on the medical evidence through the opinion of prosecution witness 7 Dr. Lingawar. (v) The spot panchnama was done at 8:30 a.m. the next day i.e. more than eight hours after the arrest of the appellant. The chappals found at the spot were not sent for any examination, nor was any evidence led to show that they belonged to the appellant. Though the pieces of flesh seized from the spot were sent for forensic examination, there was nothing on record to show that the flesh was of a human being and of the victim. (vi) The Forensic Science Laboratory report did not find any semen on any of the articles sent for examination and the finding rendered by the courts below in so far as the sixth circumstance was thus erroneous. (vii) There were discrepancies in the chain of custody of the clothes referred to in the seventh circumstance. At the time of his arrest no blood was noticed on the clothes of the appellant. Prosecution witness 13, the investigating officer, accepted that he did not find any suspicious thing with the appellant. Even when the appellant was examined by prosecution witness 7 Dr. Ulhas Digambar Lingawar, no blood was detected. The seizure report also did not disclose any presence of blood spots on the clothes of the appellant. The trousers of the appellant were in police custody from 12‑02‑2013 till 14‑02‑2013 and no malkhana record or witnesses were produced. It would, therefore, be highly unlikely that moderate number of blood stains ranging from 0.1 to 2 cm mostly on front portion found in the Forensic Science Laboratory report could have been missed out at the earlier stages. The evidence would therefore be unworthy of reliance. Further, there was a requisition for videography of the post‑mortem and yet no video‑graphs were placed on record; in the absence of which the material sent for DNA examination could not be relied upon. (viii) The record certainly indicated that the victim was sexually assaulted but the eighth circumstance did not by itself establish that the appellant was the author of the crime. C) The facts on record did not conclusively establish the guilt of the appellant. Since the case was based on circumstantial evidence, going by the principles laid down by this Court, the case was not established at all., While dealing with the question of sentence, Ms. Mathur, learned Senior Advocate submitted: I) The sentence of death having been passed on the same day when the conviction order was pronounced, there was non‑compliance of Section 235(2) of the Code of Criminal Procedure and, as laid down by this Court in Allauddin Mian v. State of Bihar, Malkiat Singh and others v. State of Punjab and Ajay Pandit v. State of Maharashtra, the infraction on that count was sufficient to consider commutation of the sentence of death to that of life imprisonment. II) The instant case being based on circumstantial evidence, as held by this Court in Bishnu Prasad Sinha v. State of Assam, Sebastian @ Chevithiyan v. State of Kerala, Purna Chandra Kusal v. State of Orissa and Kalu Khan v. State of Rajasthan, no death sentence should be awarded and the appropriate punishment could be life sentence. III) Relying on the decisions of this Court in Ashok Debabarma @ Achak Debbarma v. State of Tripura, Sudam v. State of Maharashtra and Ravishankar alias Baba Vishwakarma v. State of Madhya Pradesh, it was submitted that even if the circumstances on record were sufficient to record conviction against the appellant, there were gaps in the evidence and the benefit of residual doubt ought to be extended in favour of the appellant. IV) In terms of law laid down by this Court in Rajesh Kumar v. State through Government of NCT of Delhi, the burden was on the prosecution to rule out the possibility of reformation of the appellant and, as held in Mohinder Singh v. State of Punjab, the exclusion of possibility of reformation could only be on the basis of evidence led by the prosecution. V) The appellant completed the Bachelors Preparatory Programme from Indira Gandhi National Open University in 2017 while in prison and is presently pursuing a Bachelors Degree course in Arts. VI) The appellant was about twenty‑one years of age at the time of incident and, as held by this Court in Bachan Singh v. State of Punjab, Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, Amit v. State of Uttar Pradesh and Sunil v. State of Madhya Pradesh, the young age of the appellant at the time of incident is a factor in his favour. VII) The socio‑economic condition of the appellant showed that he was a labourer and belonged to Scheduled Tribes which again would be a factor in his favour as held by this Court in Sunil Damodar Gaikwad v. State of Maharashtra. VIII) The family of the appellant being in touch with him, there is a strong probability of rehabilitation as observed by this Court in Mohinder Singh v. State of Punjab. IX) Further, as there were no criminal antecedents as has been ruled by this Court in Surendra Pal Shivbalak Pal v. State of Gujarat, Mahesh Dhanaji Shinde v. State of Maharashtra, Santosh Kumar Singh v. State of Madhya Pradesh and Shyam Singh @ Bhima v. State of Madhya Pradesh, due weightage ought to be given in favour of the appellant., Mr. Sushil Karanjkar, learned Advocate for the State submitted that all the aforesaid eight circumstances were individually established beyond any doubt and they collectively formed a clear and consistent chain ruling out every other hypothesis except the guilt of the appellant. It was submitted that, as held by this Court in B. A. Umesh v. Registrar General, High Court of Karnataka and subsequent cases, the mere fact that the death sentence was pronounced on the same day when the conviction was recorded, by itself would not be sufficient to commute the death sentence to life imprisonment; and that the appellant had sufficient opportunity to advance submissions on the issue of sentence which opportunity was availed of. He also submitted that the circumstances having been established beyond any shadow of doubt there was no room for any residual doubt. In his submission, the factors that the crime in the instant case was gruesome and diabolical, where a two‑and‑half‑year‑old girl was subjected to sexual assault and the manner in which it was committed, were by themselves weighty and sufficient to tilt the balance against the appellant and that, as laid down by this Court in Vasanta Sampat Dupare v. State of Maharashtra, in review arising therefrom (in Vasanta Sampat Dupare v. State of Maharashtra), and in Mukesh and Another v. State (NCT of Delhi) and Others, the extreme depravity and the barbaric manner in which the crime was committed would clearly outweigh any mitigating circumstance advanced on behalf of the appellant.
id_1054	2	We shall first consider the evidence on record to see whether the guilt of the appellant is conclusively established on the strength of the material on record and whether the circumstances on record form a clear and consistent chain to rule out every other hypothesis except the guilt of the appellant. The law on the point is clear from the observations of the Supreme Court of India in Sharad Birdhichand Sarda vs. State of Maharashtra. A close analysis of that decision shows that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused and not explainable on any other hypothesis; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for a 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., According to the prosecution, on the day in question at about 7:30 p.m., when the victim was with her grandfather, on the pretext that the father of the victim had asked the appellant to bring the victim, the appellant, who was the maternal uncle of the victim, took her away. This part of the evidence is conclusively established through the testimony of Prosecution Witness 2, the grandfather. This version is recorded in the FIR, which was lodged within a few hours of the incident, and in the statement of Prosecution Witness 2 recorded under Section 164 of the Code of Criminal Procedure. There is nothing on record to doubt the veracity of this version. Although some other witnesses were not examined by the prosecution, the strength of the testimony of Prosecution Witness 2 is not diminished, nor can it be said that his testimony loses weight because he is the grandfather of the victim. The witness’s account is cogent, consistent, and reflected in the prompt reporting of the FIR, and therefore the first circumstance noted by the Trial Court stands conclusively established., Prosecution Witnesses 1 and 2 deposed that the appellant was found beside the victim at the premises of the Anganwadi. The victim sustained various injuries and was taken for medical attention. Soon after the incident, the appellant was also medically examined and Exhibit 46 showed injury on his body. Even if Prosecution Witness 9 turned hostile and some other witnesses were not examined, the fact that the victim remained in the custody of the appellant until she was found at the spot alongside the appellant is clear. The proximity in time and the prompt reporting are crucial factors, and the evidence in that regard is completely trustworthy. Thus, the second and third circumstances are also fully established., Soon after his arrest, the appellant was produced for medical examination before Prosecution Witness 7, Dr. Ulhas Digambar Lingawar, who found injury on the private parts of the appellant. The approximate time of the injury, as given in the opinion in Exhibit 46, is consistent with the prosecution’s case. The submission that the appellant was also examined by another medical professional and that report was not placed on record is irrelevant. The reference to the medical examination of the appellant under Section 53A of the Code of Criminal Procedure pertains solely to Dr. Lingawar. No explanation, not even a suggestion, was offered by the appellant as to how the injury noted in Exhibit 46 could have occurred. Consequently, the fourth circumstance also stands fully established., While considering the fifth circumstance, it must be stated that, as per the record, the chappals were not proved to belong to the appellant and the pieces of flesh found at the spot of the incident were not proved to be human. To that extent, the fifth circumstance was not proved at all. However, the fact that the pant of the victim was found at the spot of the incident is well established on record, and the fifth circumstance must be taken to be proved only with respect to the recovery of the victim’s pant., There is nothing on record to show that the stains of semen found on clothing referred to in the sixth circumstance were medically proved to be that of, or could be associated with, the appellant. The sixth circumstance therefore cannot be taken to point against the appellant., According to the Chemical Analyst’s Report Exhibit 54, the blood found on the trousers of the appellant was that of the victim. This fact is completely established. The submission that (a) nothing suspicious was found by Prosecution Witness 13, the Investigating Officer, with the appellant at the time of his arrest; (b) Dr. Lingawar had not noticed any blood stains on the appellant’s trousers at the time of his medical examination; and (c) no Forensic Science Laboratory report or evidence was produced on record to state that the articles remained in proper custody and sealed condition, does not negate the presence of blood. The medical opinion was obtained to consider whether there were any injuries on the private parts of the appellant and whether he was capable of having sexual intercourse. The facts on record show that the articles were sent for forensic examination at the earliest. The appellant was represented by counsel of standing in the Trial Court. The theory that the blood spots on the appellant’s trousers were subsequently planted was not even developed in the cross‑examination of the concerned witnesses. Given the quick succession of investigative steps, including the medical examination and seizure of the appellant’s clothes, we do not find any infirmity. Therefore, the seventh circumstance stands fully established., It is a matter of record that, as per the post‑mortem report and medical opinion, there was forceful sexual assault on the victim and her death was caused due to injury No. 17, which consisted of multiple lacerations over the vaginal and anal region and merging of the vaginal and anal orifices. The eighth circumstance must therefore be taken to be proved fully, except to the extent that it refers to pieces of flesh found at the spot of the incident., The established circumstances show: (a) the victim was in the custody of the appellant from the time she was taken from her grandfather until she was found lying in the premises of the Anganwadi, where the appellant was also found lying next to her; (b) the victim, who was hale and hearty when taken by the appellant, had a number of injuries on her body when found next to the appellant; (c) the injuries on the victim’s body show that she was abused and sexually exploited; (d) the sexual assault was so forceful that the two‑and‑a‑half‑year‑old girl suffered, among other injuries, Injury No. 17; (e) Injury No. 17 was so severe that there was merging of the vaginal and anal orifices; (f) the victim died because of Injury No. 17; (g) the appellant had an injury on his private parts corresponding to the period when the victim was in his custody; (h) the appellant was found to be capable of having sexual intercourse; and (i) the trousers of the appellant had blood stains, the DNA profiles of which matched the blood of the victim. These circumstances, enumerated from a to i, stand proved beyond any doubt and by themselves constitute a conclusive and consistent chain excluding every other hypothesis except the guilt of the appellant., We must now address the submission of Ms. Mathur, learned Senior Advocate, regarding the non‑consideration of certain circumstances by the lower court. It is true that the injuries on the lips of the victim showed clean‑cut margins and, given the nature of the evidence, it cannot be said with certainty that those injuries resulted from human bites. However, the other injuries on the victim’s body were definitely caused by human bites, and the lack of clarity regarding the lip injuries does not render the prosecution’s case doubtful in any manner. Likewise, the absence of association of vaginal, cervical and anal swabs with the appellant does not diminish the strength of the evidence against the appellant., The circumstances proved on record are not only conclusive in nature but completely support the case of the prosecution and are consistent with only one hypothesis, namely the guilt of the appellant. They form a chain so complete, consistent and clear that no room for doubt or any ground arises pointing towards the innocence of the appellant. It is therefore established beyond any shadow of doubt that the appellant committed the acts of rape and sexual assault upon the victim and that Injury No. 17 was the cause of the victim’s death. The appellant is thus guilty of offences punishable under clauses (f), (i) and (m) of sub‑section (2) of Section 376 of the Indian Penal Code; and also under clauses (j) and (m) of Section 5 read with Section 6 of the Protection of Children from Sexual Offences Act, as it stood before amendment by Act 25 of 2019. Since, according to medical opinion, the death was because of Injury No. 17, the appellant is also guilty of an offence punishable under Section 376A of the Indian Penal Code., The injuries suffered by the victim were directly a result of the sexual assault inflicted upon her. The medical evidence does not disclose that either before or after the commission of the sexual assault any other injury was consciously caused with the intention to extinguish the life of the victim. Injury No. 17, which caused death, was suffered by the victim during the commission of the sexual assault. The questions that arise, therefore, are whether such an act by the appellant comes within the parameters of Sections 299 and 300 of the Indian Penal Code and whether he is guilty of culpable homicide amounting to murder., According to clause fourthly under Section 300 of the Indian Penal Code, the offence may be classified as culpable homicide amounting to murder if the person committing the act knows that it is imminently dangerous and must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury. The interplay between the clauses of Sections 299 and 300 was considered by the Supreme Court of India in State of Andhra Pradesh vs. Rayavarapu Punnayya and Another. The Court observed that the principal question is whether the offence disclosed by the facts and circumstances established by the prosecution is murder or culpable homicide not amounting to murder., In the scheme of the Penal Code, culpable homicide is the genus and murder its species. All murder is culpable homicide but not vice‑versa. Generally, culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment proportionate to the gravity of this generic offence, the Code recognises three degrees of culpable homicide. The first degree, defined in Section 300, is murder. The second degree is punishable under the first part of Section 304, and the third degree under the second part of Section 304. The academic distinction between murder and culpable homicide not amounting to murder has vexed the courts for more than a century. The safest approach to interpretation is to keep in focus the keywords used in the various clauses of Sections 299 and 300., Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea under clause (2) is the knowledge possessed by the offender regarding the particular victim being in a peculiar condition or state of health such that the internal harm caused is likely to be fatal, even though the harm would not ordinarily be sufficient to cause death in a healthy person. It is noteworthy that the intention to cause death is not an essential requirement of clause (2); only the intention of causing bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing death is sufficient. This aspect is borne out by Illustration (b) appended to Section 300., Clause (3) of Section 300 replaces the words “likely to cause death” with “sufficient in the ordinary course of nature to cause death”. The distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The difference is one of the degree of probability of death resulting from the intended bodily injury. The word “likely” in clause (b) of Section 299 conveys probable, whereas “sufficient in the ordinary course of nature” means death will be the most probable result. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional bodily injury sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala illustrates this point. In Virsa Singh v. State of Punjab, Justice Vivian Bose explained that the prosecution must prove the existence of a bodily injury, the nature of the injury, the intention to inflict that particular injury, and that the injury was sufficient to cause death in the ordinary course of nature. Illustration (c) appended to Section 300 clarifies that even if the accused’s intention was limited to inflicting a bodily injury sufficient to cause death, the offence would be murder., Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. Clause (4) of Section 300 applies where the offender’s knowledge of the probability of death approximates a practical certainty and the act is committed without any excuse for incurring the risk of causing death. It is not necessary for this case to elaborate further on the distinction between these corresponding clauses; it suffices to note that clause (4) would be applicable where the offender knows that the act is imminently dangerous and must in all probability cause death., From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, it is convenient to approach the problem in three stages. First, determine whether the accused’s act caused the death of another. If causal connection is proved, the second stage is to consider whether the act amounts to culpable homicide as defined in Section 299. If the answer is affirmative, the third stage is to examine whether the facts bring the case within any of the four clauses of the definition of murder contained in Section 300. If the answer is negative, the offence would be culpable homicide not amounting to murder, punishable under Section 304. If the answer is positive but the case falls within any exception enumerated in Section 300, the offence would still be culpable homicide not amounting to murder., The above guidelines are broad and not cast‑iron imperatives. In most cases, their observance will facilitate the task of the court. However, sometimes the facts are so intertwined that the second and third stages merge, making a separate treatment inconvenient., We may now consider cases where death may not have been intended but clause fourthly of Section 300 was applied to hold the accused guilty of culpable homicide amounting to murder. In State of Madhya Pradesh vs. Ram Prasad, a woman was set on fire after the accused poured kerosene on her. The Court examined whether the offence was culpable homicide not amounting to murder or murder. It held that the accused knew his act was imminently dangerous and likely to cause death, and without any excuse for incurring that risk, the offence falls within clause fourthly of Section 300, making it culpable homicide amounting to murder., In Santosh S/o Shankar Pawar vs. State of Maharashtra, the Court observed that even assuming the accused had no intention to cause death, the act of pouring kerosene and setting the victim on fire falls under clause fourthly of Section 300, as any person of average intelligence would know that such an act is imminently dangerous and likely to cause death., The principle in Santosh was adopted in Suraj Jagannath Jadhav vs. State of Maharashtra., In State of Haryana vs. Krishan and Another, where thirty‑six persons died after consuming spurious liquor, the Supreme Court of India set aside the acquittal ordered by the High Court and restored the conviction under Section 302 of the Indian Penal Code. The Court noted that even if the charge of conspiracy under Section 120‑B was not proved, adequate evidence was produced showing the culpability of the respondents individually.
id_1054	3	Once it is shown that the spurious liquor was sold from the local vends belonging to the respondents, coupled with the fact that after this tragedy struck the respondents even tried to destroy the remaining bottles, it clearly establishes that the respondents had full knowledge that the bottles contained the substance methyl and also had full knowledge about the disastrous consequences thereof, which would bring their case within the four corners of Section 300, fourthly., The respondents cannot be treated as mere cat's paw and naïve. They have exploited the resilient nature of bucolic and rustic villagers., We may now consider some of the decisions of the Supreme Court of India in which deaths had occurred because of injuries sustained by the victims during sexual assault on them., In State of Orissa vs. Dibakar Naik and Others, a bench of two judges of the Supreme Court of India dealt with a case where a 23‑year‑old lady was gang‑raped and lost her life. The accused were convicted inter alia under Sections 376 and 302 read with Section 34 of the Indian Penal Code by the trial court, but their conviction and sentence were set aside by the High Court. The appeals preferred by the State were partly allowed and four accused were convicted under Sections 376 and 304(II) of the Indian Penal Code. The Court observed that the nature of the injuries inflicted upon the deceased indicated that the accused had not intended to cause her death., Dr. Indramani Jena, who conducted the post‑mortem, found the following injuries: (1) a swelling of one inch diameter, irregularly circular, over the right mastoid process; (2) a black swelling on the upper half of the right breast, two inches in diameter, irregularly circular; (3) underlying haematoma in the right mastoid area, fracture of the right fourth rib, about one litre of blood in the right chest, displaced right lung injured by the fractured rib, an empty heart chamber; (4) an empty stomach; (5) two ecchymoses of one inch diameter each on the posterior vaginal wall at the 5 o’clock and 7 o’clock positions; (6) dead spermatozoa and epithelial cells in the vaginal smear; (7) signs of decomposition, skin denudation, protruded and bitten tongue, bleeding from the right angle of the mouth and both ears, protruded abdomen due to foul gases. Death was within 48 hours of the post‑mortem examination. All injuries were ante‑mortem and death was due to internal haemorrhage caused by violent sexual intercourse., The Court held that whoever causes death by doing an act with the intention of causing death, or with the intention of causing bodily injury likely to cause death, or with the knowledge that such act is likely to cause death, is responsible for the offence of culpable homicide. Culpable homicide is murder if the act is done with the intention of causing death and is not covered by any exception of Section 300 of the Indian Penal Code. In the present case there is no evidence that the accused intended to cause murder within the meaning of Section 300, but on proof of the commission of gang rape in a violent manner, they are deemed to have known that their actions were likely to cause death. Accordingly, the accused are guilty of the offence punishable under Part II of Section 304 of the Indian Penal Code., The Court held Birabar Mania (A‑5), Babaji Mania (A‑6), Bhira Behera alias Baba Tanti (A‑7) and Madha Tanti alias Madhabananda Parmanik (A‑11) guilty of offences punishable under Section 304 Part II read with Section 34 of the Indian Penal Code, besides the offence punishable under Section 376 read with Section 34 of the Indian Penal Code. The conviction and sentence awarded by the trial court to these respondents under Section 376 of the Indian Penal Code is upheld. On proof of the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code, the accused are sentenced to rigorous imprisonment for ten years, both sentences to run concurrently., Although it was found that the offence of gang rape was committed in a violent manner and that the offenders must have known that their actions were likely to cause death, the accused were not convicted of the offence of culpable homicide amounting to murder., In State, Government of NCT of Delhi vs. Sunil and Another, a four‑year‑old girl was raped by two accused and died as a result of injuries sustained during the sexual assault. A bench of two judges of the Supreme Court of India observed that the trial court had correctly concluded that the two respondents were the rapists who subjected the child to savage ravishment. The Division Bench of the High Court had erred in interfering with that conclusion. The Court noted that, although the rapists may not have intended or known that their act would produce such injury, they cannot disavow knowledge that their acts on a tender infant were likely to cause death. Consequently, the Court set aside the impugned judgment of the High Court, restored the conviction under Sections 376 and 377 read with Section 34 of the Indian Penal Code, and awarded life imprisonment. The Court also convicted the respondents under Section 304 Part II read with Section 34 of the Indian Penal Code, though no additional sentence was necessary in view of the life sentence., The Court held that the child died due to intracranial damage consequent upon surface force impact to the head, resulting in subdural haematoma and subarachnoid haemorrhage. The injuries occurred during the violent ravishment committed by either both or one of the rapists without necessarily having the intention or knowledge that such injury would be produced, but the rapists could not escape conviction for culpable homicide not amounting to murder., In Amrit Singh vs. State of Punjab, a girl of about seven to eight years died as a result of excessive bleeding from her private parts because of sexual assault. The accused was found guilty of offences under Sections 302 and 376 of the Indian Penal Code and was awarded the death sentence. The Court observed that the appellant, aged about 31 years and not suffering from any disease, was in a dominating position and may have gagged the victim’s mouth. Marks of violence were found on the neck and mouth. The death occurred due to excessive bleeding rather than strangulation, and the Court commuted the death sentence to life imprisonment., A bench of two judges of the Supreme Court of India relied upon the decision in State of Orissa v. Dibakar Naik and affirmed the conviction and sentence under Sections 376 and 304(II) of the Indian Penal Code in State of Andhra Pradesh v. T. Prasanna Kumar., The Court also noted four cases in which two‑judge benches affirmed conviction and sentence under Sections 302 and 376 of the Indian Penal Code where the victims, aged between one and eight years, lost their lives as a result of injuries sustained during sexual assault: (i) Mohd. Chaman vs. State (NCT of Delhi) – victim age one year; (ii) Ramesh Harijan vs. State of Uttar Pradesh – victim age five to six years; (iii) Ram Deo Prasad vs. State of Bihar – victim age four years; (iv) Ramesh vs. State through Inspector of Police – victim age eight years. No detailed discussion on the point was provided in these cases., Recently, a three‑judge bench of the Supreme Court of India in Dattatraya Ambo Rokade vs. State of Maharashtra considered a case where a five‑year‑old girl was subjected to sexual assault and died as a result of injuries sustained during the assault. The conviction of the accused inter alia under Sections 302, 376(2)(f) of the Indian Penal Code and under the Protection of Children from Sexual Offences Act was affirmed. The Court observed that, as a mature man over fifty years of age, the accused should have known that the rape of a five‑year‑old child by an adult was dangerous and could likely cause death., The guiding principles were summed up in State of Madhya Pradesh v. Ram Prasad to the effect that even if there is no intention to cause death, if there is such callousness towards the result and the risk taken is such that the person knows the act is likely to cause death or bodily injury likely to cause death, clause fourthly of Section 300 of the Indian Penal Code will be attracted and the offender must be taken to have known that he was running the risk of causing death. The same principle is discernible from the decision of the Supreme Court of India in Dattatraya Ambo Rokade v. State of Maharashtra., Considering the age of the victim in the present case, the accused must have known that his sexual assault on a two‑year‑old child would likely cause death or such bodily injury as was likely to cause death. The matter thus comes within the parameters of clause fourthly of Section 300 of the Indian Penal Code, and the appellant is therefore guilty of having committed the offence of culpable homicide amounting to murder., It must be observed at this stage that the decisions of the Supreme Court of India referred to in paragraphs 26.1, 26.2 and 26.4 failed to consider the effect of clause fourthly of Section 300 of the Indian Penal Code., Before turning to the submissions on sentence advanced by Ms. Mathur, learned Senior Advocate, it is noted that about sixty‑seven cases were dealt with by the Supreme Court of India in the last forty years since the decision in Bachan Singh, where (i) the alleged offences were under Sections 376 and 302 of the Indian Penal Code, and (ii) the ages of the victims were sixteen years or below. The cases include convictions for offences such as rape, strangulation, throttling, asphyxia, and other violent acts, with sentences ranging from life imprisonment to the death penalty. Out of the sixty‑seven cases, the death sentence was affirmed in fifteen cases; in three of those, the death sentence was later commuted to life imprisonment on review. Ultimately, the death sentence stands confirmed in twelve out of the sixty‑seven cases, where the victims were aged about sixteen years or below, and in at least fifty‑one cases the victims were below twelve years of age., We now turn to the first submission advanced by Ms. Mathur on the issue of sentence. Section 235(2) of the Code of Criminal Procedure mandates that the accused must be heard on sentence. In the instant case the order of sentence was made on the same day the order of conviction was pronounced. In Santa Singh v. State of Punjab the accused was convicted and sentenced to death by a single judgment, and a bench of two judges of the Supreme Court of India found that this amounted to an infraction of Section 235(2) of the Code. The death sentence was therefore set aside and the matter remanded to the Sessions Court., The Court observed in Dagdu v. State of Maharashtra that while the failure to hear the accused on sentence does not automatically require remand, the appellate court must provide the accused with a real and effective opportunity to make submissions on sentence, either orally or in writing, and may adjourn the matter to allow the accused sufficient time to produce necessary material., The Court further referred to decisions such as Tarlok Singh v. State of Punjab, where similar principles were reiterated, emphasizing that mandatory remand is not inevitable, but the accused must be afforded a genuine hearing on sentence at the appellate stage.
id_1054	4	In Santa Singh v. State of Punjab this Supreme Court of India, considering Section 235(2) of the Code of Criminal Procedure, held that the hearing contemplated by that subsection is not confined merely to hearing oral submissions but extends to giving an opportunity to the prosecution and the accused to place before the Supreme Court of India facts and materials relating to the various factors bearing on the question of sentence and, if they are contested by either side, then to produce evidence for the purpose of establishing the same. In that particular case the Supreme Court of India sent the case back to the Sessions Court for complying with Section 235(2) of the Code of Criminal Procedure. It may be that in many cases sending the case back to the Sessions Court may lead to more expense, delay and prejudice to the cause of justice. In such cases, it may be more appropriate for the appellate court to give an opportunity to the parties in terms of Section 235(2) to produce the materials they wish to adduce instead of going through the exercise of sending the case back to the trial court. This may, in many cases, save time and help produce prompt justice., In Deepak Rai v. State of Bihar, yet another three‑Judge Bench case, Justice Dattu observes in paragraph 54 as follows: It is not the case of the appellants that the opportunity to be heard on the question of sentence separately as provided for under Section 235(2) of the Code of Criminal Procedure was not provided by the Sessions Court. Further, the Sessions Court has recorded and discussed the submissions made by the appellants and the prosecution on the said question and thereafter rejected the possibility of awarding a punishment less harsh than the death penalty. However, the High Court of India, while confirming the sentence, recorded reasons though encapsulated. The High Court of India has noticed the motive of the appellants being non‑withdrawal of the case by the informant and the ghastly manner of commission of crime whereby six innocent persons as young as three‑year‑old were charred to death and concluded that the incident shocks the conscience of the entire society and thus deserves nothing less than the death penalty., Subsequently, the issue was again considered in Vasanta Sampat Dupare v. State of Maharashtra and after referring to the decisions of the Supreme Court of India including those rendered in Allauddin Mian v. State of Bihar, State of Bihar v. Deepak Rai, 2010 SCC OnLine Pat 949, Malkiat Singh v. State of Punjab and B. A. Umesh v. High Court of Karnataka, a bench of three judges of the Supreme Court of India observed: This Court then relied on the principle laid down in Dagdu v. State of Maharashtra which was followed subsequently by another bench of three learned judges in Tarlok Singh v. State of Punjab. In the circumstances, merely because no separate date was given for hearing on sentence, we cannot find the entire exercise to be flawed or vitiated. Since we had allowed the petitioner to place the relevant material on record in the light of the principles laid down in Dagdu v. State of Maharashtra, we will proceed to consider the material so placed on record and weigh these factors and the aggravating circumstances as found by the Supreme Court of India in the judgment under review., Recently, in Manoj Suryavanshi v. State of Chhattisgarh, a bench of three judges of the Supreme Court of India, after considering the relevant decisions on the point, concluded: Thus, there is no absolute proposition of law that in no case there can be conviction and sentence on the same day. There is no absolute proposition of law laid down by the Supreme Court of India in any of the decisions that if the sentence is awarded on the very same day on which the conviction was recorded, the sentencing would be vitiated. Thus, merely on account of infraction of Section 235(2) of the Code of Criminal Procedure, the death sentence ought not to be commuted to life imprisonment. In any case we have afforded adequate and sufficient opportunity to the appellant to place all the relevant materials on record in the light of the principle laid down in Dagdu v. State of Maharashtra., Before we deal with the second submission on sentence, it must be observed that as laid down by the Supreme Court of India in Sharad Birdhichand Sarda v. State of Maharashtra, a case based on circumstantial evidence has to face strict scrutiny. Every circumstance from which a conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. The decision in Sharad Birdhichand Sarda v. State of Maharashtra noted the consistent view on the point including the decision of the Supreme Court of India in Hanumant v. State of Madhya Pradesh, in which a bench of three judges of the Supreme Court of India ruled: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Secondly, on the issue as to what should be the approach in the matter of sentence, a bench of three judges of the Supreme Court of India in Vadivelu Thevar v. State of Madras stated: Lastly, it was urged that assuming that the court was inclined to act upon the testimony of the first witness and to record a conviction for murder as against the first appellant, the court should not impose the extreme penalty of law and in the state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice. We cannot accede to this line of argument. The first question which the court has to consider in a case like this is whether the accused has been proved, to the satisfaction of the court, to have committed the crime. If the court is convinced about the truth of the prosecution story, conviction has to follow. The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then would it be justified in imposing the lesser of the two sentences provided by law. In other words, the nature of the proof has nothing to do with the character of the punishment. The nature of the proof can only bear upon the question of conviction—whether or not the accused has been proved to be guilty. If the court comes to the conclusion that the guilt has been brought home to the accused, and conviction follows, the process of proof is at an end. The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any extenuating circumstances. But the nature of proof, as we have indicated, has nothing to do with the question of punishment. In this case, there are no such ext, It was laid down that the question of sentence must be determined not with reference to the volume or character of the evidence on record but with reference to the circumstances which mitigate the enormity of the crime and that the nature of proof can have bearing upon the question of sentence and not with the question of punishment., We may now consider some of the cases where death penalty was imposed when conviction was based on circumstantial evidence. (i) Jumman Khan v. State of Uttar Pradesh and Another; while dismissing the writ petition of a death convict the Supreme Court of India noted in paragraph 4 the earlier order passed by a bench of two judges confirming the death sentence. Feeling aggrieved by the judgment of the High Court of India, the petitioner filed Special Leave Petition (Criminal) No. 558 of 1986. The Supreme Court of India by its order dated March 20, 1986 dismissed the petition observing thus: Although the conviction of the petitioner under Section 302 of the Indian Penal Code, 1860 rests on circumstantial evidence, the circumstantial evidence against the petitioner leads to no other inference except that of his guilt and excludes every hypothesis of his innocence. Apart from the circumstances brought out by the prosecution, each one of which has been proved, there is no extra‑judicial confession which lends support to the prosecution case that the child had been raped by the petitioner and thereafter strangulated to death. Failure to impose a death sentence in such grave cases where it is a crime against society, particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellant deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also as a means of deterring other potential offenders. The sentence of death is confirmed., (ii) Amrutlal Someshwar Joshi v. State of Maharashtra (I): Learned counsel for the appellant further submitted that the case rests on circumstantial evidence and the quality of the evidence adduced is not of that high order and therefore it is not safe to impose death sentence. In this context he relied on a judgment of the Supreme Court of India in Shankar v. State of Tamil Nadu. We have gone through that judgment and it is indicated there that the quality of evidence also would be a factor to be taken into consideration. The circumstantial evidence in this case cannot be said to be qualitatively inferior in any manner. It is well‑settled that if there is clinching and reliable circumstantial evidence, then that would be the best evidence to be safely relied upon. As observed in Bachan Singh v. State of Punjab, there may be many circumstances justifying the passing of a lighter sentence as there are countervailing circumstances of aggravation warranting imposition of death sentence. In Machhi Singh v. State of Punjab, a bench of three judges of the Supreme Court of India, having noted the principles laid down in Bachan Singh regarding the formula of rarest of rare cases for imposing death sentence, observed that the guidelines indicated in Bachan Singh will have to be culled out and applied to the facts of each individual case where the question of imposing death sentence arises. It was further observed: If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. Likewise in Allauddin Mian v. State of Bihar, the same view has been reiterated: However, in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should, as observed in Bachan Singh, be reserved for the rarest of rare cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three‑fold purpose: punitive, deterrent and protective. That is why the Supreme Court of India in Bachan Singh observed that when the question of choice of sentence is under consideration the court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to society and the sentence of life imprisonment would be altogether inadequate, the court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only. Bearing these principles in mind and after having given our anxious consideration, we are of the firm opinion that the case of the appellant comes within the category of rarest of rare cases and the two courts below have rightly awarded the death sentence., (iii) Kamta Tiwari v. State of Madhya Pradesh; (iv) Molai and Another v. State of Madhya Pradesh; (v) Shivaji alias Dadya Shankar Alhat v. State of Maharashtra; while affirming the conviction and sentence of death for offences under Sections 376 and 302 of the Indian Penal Code it was observed: The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by the Supreme Court of India in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In most of the cases where death sentences are awarded for rape and murder, there is practically no scope for having an eyewitness. They are not committed in the public view. The available evidence is circumstantial. If the evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance would amount to consideration of an irrelevant aspect. The plea of the learned amicus curiae that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable., (vi) Vasanta Sampat Dupare v. State of Maharashtra: On a critical analysis of the evidence on record, we are convinced that the circumstances that have been clearly established are: the appellant was seen in the courtyard where the minor girl and other children were playing; the appellant was seen taking the deceased on his bicycle; he had gone to the grocery shop owned by witness six to buy fresh chocolate along with her; the accused had told witness two that the child was the daughter of his friend and he was going to Tekdi‑Wadi along with the girl; the appellant led to the discovery of the dead body of the deceased, the place where he had washed his clothes and at his instance the stones smeared with blood were recovered; the medical report clearly indicates the injuries sustained by the deceased on her body; the injuries to the private parts have been stated by the doctor to have been caused by forcible sexual intercourse; the stones that were seized were smeared with blood and the medical evidence corroborates that injuries could have been caused by battering with stones; the chemical analysis report shows that the blood group on the stones matches the blood group found on the clothes of the appellant; the appellant has not offered any explanation with regard to the recovery made at his instance; and nothing has been stated in his examination under Section 313 of the Code of Criminal Procedure that there was any justifiable reason to implicate him in the crime. Thus, each of the incriminating circumstances has been clearly established and the chain of circumstances is conclusive in nature to exclude any hypothesis except the one proposed to be proved, leading to a definite conclusion that the crime was committed by the accused. Therefore, we have no hesitation in affirming the judgment of conviction rendered by the learned trial judge and affirmed by the High Court of India., (vii) Manoharan v. State: The entire chain of events has been made out and despite this being a case of circumstantial evidence, the prosecution has clearly proved its case beyond reasonable doubt. The courts below are right in convicting the appellant of rape and murder., The decisions at (iv), (vi) and (vii) were by benches of three judges and dealt with cases where the convictions were inter alia under Sections 302 and 376 of the Indian Penal Code and the victims were aged sixteen years or below; while the others were by benches of two judges., However, there is a definite line of cases where thoughts have been expressed that in cases of conviction based on circumstantial evidence, the death sentence should not normally be imposed. Some such cases are: (i) Aloke Nath Dutta v. State of West Bengal: There is no eyewitness to the occurrence. Nobody has noticed any suspicious conduct on the part of the appellants indicating their role in committing murder or disposing of the dead body. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. This Court has laid down guidelines from time to time in regard to a finding of guilt solely on the basis of circumstantial evidence in a number of cases. (ii) Bishnu Prasad Sinha v. State of Assam: The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court of India in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt., (iii) Swamy Shraddananda (2) v. State of Karnataka: While considering the decision of the Supreme Court of India in Bachan Singh, it was observed: Arguing against standardisation of cases for the purpose of death sentence the court observed that even within a single category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The court further observed that standardisation of the sentencing process tends to sacrifice justice at the altar of blind uniformity. That is not the end of the matter. Coupled with the deficiency of the criminal justice system is the lack of consistency in the sentencing process even by this court. It is noted that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application, crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently. In Aloke Nath Dutta v. State of West Bengal, Justice Sinha gave illustrations from recent decisions in which this court took contrary views on giving death penalty to the convict. He finally observed that courts in the matter of sentencing act differently although the fact situation may appear similar and different benches had taken different views. Justice Katju, in his order, said he did not agree with the decision in Aloke Nath Dutta that death sentence was not to be awarded in a case of circumstantial evidence. Justice Katju may be right that there cannot be an absolute rule excluding death sentence in all cases of circumstantial evidence, but there is no denying the illustrations cited by Justice Sinha which are a matter of fact., (iv) Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra: Relying upon the testimony of an approver, the sentence of death was awarded. The decision of the Supreme Court of India in Mohan and others v. State of Tamil Nadu was distinguished thus: The appellant placed strong reliance on a decision of the Supreme Court of India in Mohan v. State of Tamil Nadu to contend that the manner in which the murder was committed itself points out that all the accused deserved death penalty. In our opinion the facts of that case are clearly distinguishable from the present one. That case involved the murder of a minor and is not applicable to the present case. Moreover, the court in that case also recognised that proper and due regard must be given to the mitigating circumstances in every case. After considering the mitigating circumstances it was observed: The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind., We assume that in Swamy Shraddananda (2) the Supreme Court of India did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. However, the question that would arise is whether in arriving at a conclusion some surmise or hypothesis would be necessary regarding the manner in which the offence was committed as distinguished from a case where the manner of occurrence had no role to play. Even where death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. We must add that in a case of this nature where the entire prosecution case revolves around the statement of an approver or is dependent upon circumstantial evidence, the prudence doctrine should be invoked. For the purpose of sentencing, evaluation of evidence would not be permissible; the courts must rely solely upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the evidences brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment. A statement of an approver regarding the manner in which the crime has been committed, vis‑à‑vis the role played by the accused, must be tested on the touchstone of the prudence doctrine., (v) Purna Chandra Kusal v. State of Orissa: We are, however, of the opinion that the death sentence in the present case was not called for. The appellant was a labourer living in a basti alongside the railway line and was, at the time of the incident, about thirty years of age. The entire evidence is circumstantial in nature. There is no inflexible rule that a death sentence cannot be awarded in a case resting on circumstantial evidence but courts, as a matter of prudence, are hesitant in awarding this sentence in such a situation. The crime was indeed heinous as the victim was only five years of age and the daughter of a neighbour. On a cumulative assessment of the facts, we are of the opinion that the death sentence should be commuted into life imprisonment., (vi) Neel Kumar v. State of Haryana; (vii) Sushil Sharma v. State (NCT of Delhi); (viii) Mahesh Dhanaji Shinde v. State of Maharashtra; (ix) Kalu Khan v. State of Rajasthan: In respect of award of death sentence in cases where the sole basis for conviction is circumstantial evidence, the Supreme Court of India in Swamy Shraddananda v. State of Karnataka has acknowledged that such cases have far greater chances of turning out to be wrongful convictions later on, in comparison to ones based on more reliable sources of proof. The court cautioned that convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof and that the fact that the case is based on circumstantial evidence must be a definite factor at the sentencing stage, considering that capital punishment is unique in its total irrevocability. Further, the court observed that any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to uncertainty in the culpability calculus, must attract negative attention while deciding the maximum penalty for murder., This Court noticed certain decisions under the American death penalty jurisprudence as follows: One of the older cases dates back to 1874, Merritt v. State, where the Supreme Court of Georgia described the applicable law as: By the Penal Code of this State the punishment of murder shall be death, except when the conviction is founded solely on circumstantial testimony. When the conviction is based solely on circumstantial testimony, it is discretionary with the presiding judge to impose the death penalty or to sentence the defendant to imprisonment for life, unless the jury recommends life imprisonment; in that case the presiding judge has no discretion but is bound to commute the punishment from death to life imprisonment. Later, Jackson v. State followed the aforementioned case. In United States v. Quinones, many states that allow the death penalty permit a conviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt., In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, all the accused persons including the appellant were unemployed young men in search of employment. In execution of a plan proposed by the appellant and accepted by them, they kidnapped their friend with the motive of procuring ransom from his family but later murdered him and after cutting his body into pieces disposed of the remains at different places. One of the accused turned approver and the prosecution case was based entirely on his evidence. The trial court awarded death sentence to the appellant. The High Court of India confirmed the death sentence. In appeal, the Supreme Court of India observed that punishment cannot be determined on grounds of proportionality alone.
id_1054	5	Supreme Court of India observed that though there was nothing to show that the appellant could not be reformed and rehabilitated and the manner and method of disposal of the dead body of the deceased reflected most foul and despicable case of murder, mere mode of disposal of the dead body may not by itself be made the ground for inclusion of a case in the rarest of rare category for the purpose of imposition of death sentence. Other factors require to be considered along with the aforesaid. Supreme Court of India was of the view that the fact that the prosecution case rested on the evidence of the approver will have to be kept in mind. Further, where the death sentence is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. It was further observed that the discretion given to the court in such cases assumes onerous importance and its exercise becomes extremely difficult because of the irrevocable character of death penalty. Where two views ordinarily could be taken, imposition of death sentence would not be appropriate. In the circumstances, the death sentence was converted to life imprisonment., In Mahesh Dhanaji Shinde v. State of Maharashtra, the conviction of the appellant‑accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of nine of ten victims, last seen theory and other incriminating circumstances were proved. However, the Court thought it fit to commute the sentence of death to imprisonment for life considering the age, socio‑economic conditions, custodial behaviour of the appellant‑accused persons and that the case was entirely based on circumstantial evidence., In the instant case, admittedly the entire web of evidence is circumstantial. The appellant‑accused's culpability rests on various independent evidence, such as his being last seen with the deceased before she went missing; the extra‑judicial confession of his co‑accused before the first witness and the village members; corroborative testimonies of the said village members to the extra‑judicial confession and recovery of the deceased's body; coupled with the medical evidence which when joined together paint him in the blood of the deceased. While the said evidence proves the guilt of the appellant‑accused and makes this a fit case for conviction, it does not sufficiently convince the judicial mind to entirely foreclose the option of a sentence lesser than the death penalty. Even though there are no missing links in the chain, the evidence also does not sufficiently provide any direct indicia whereby irrefutable conclusions can be drawn with regard to the nexus between the crime and the criminal. Undoubtedly, the aggravating circumstances reflected through the nature of the crime and young age of the victim make the crime socially abhorrent and demand harsh punishment. However, there exist circumstances such as there being no criminal antecedents of the appellant‑accused and the entire case having been rested on circumstantial evidence including the extra‑judicial confession of a co‑accused. These factors impregnate the balance of circumstances and introduce uncertainty in the culpability calculus and thus persuade us that death penalty is not an inescapable conclusion in the instant case. We are inclined to conclude that in the present scenario an alternative to the death penalty, that is, imprisonment for life would be appropriate punishment in the present circumstances., In our considered view, the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine's authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, the first and foremost effort of Supreme Court of India should be to continue life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant‑accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant‑accused for life., The learned counsel appearing for the State placed reliance on the judgment of the Supreme Court of India in Mukesh v. State (National Capital Territory of Delhi) known as the Nirbhaya case in support of her case and submitted that applying the ratio laid down in the aforesaid judgment, the case falls in the rarest of rare cases attracting death penalty. With reference to the above‑said arguments of the learned counsel for the State, it is to be noticed that the case of Mukesh is distinguishable on the facts from the case on hand. Mukesh is a case of gang rape and murder of the victim and an attempt to murder of the male victim. It was the specific case of the prosecution that the crimes were carried out pursuant to a conspiracy and the accused were convicted under Section 120‑B of the Indian Penal Code apart from other offences. Further, as a fact, it was found in the aforesaid case that the accused Mukesh had been involved in other criminal activity on the same night. Further, there was a dying declaration, eyewitness to the incident, etc. So far as the present case is concerned, it solely rests on circumstantial evidence. It is the specific case of the appellant that he was denied proper legal assistance in the matter and he is a manual labourer. The appellant was aged about fifty years. Further, in this case there is no finding recorded by the courts below to the effect that there is no possibility of reformation of the appellant. We are of the view that the reasons assigned by the trial court as confirmed by the High Court do not constitute special reasons within the meaning of Section 354(3) of the Code of Criminal Procedure to impose death penalty on the accused., In Md. Mannan v. State of Bihar, the conviction of the petitioner is based on circumstantial evidence and the alleged extra‑judicial confession made by the petitioner to the police in course of investigation, on the basis of which certain recoveries were made. There is no forensic evidence against the petitioner. It would, in our view, be unsafe to uphold the imposition of death sentence on the petitioner., In the case of Nand Kishore v. State of Madhya Pradesh, an eight‑year‑old innocent girl fell prey to the carnal desire and lust of the petitioner. It is not known whether there was any premeditation on the part of the petitioner to murder the victim. The circumstances in which he murdered the victim are also not known. The conviction is based on circumstantial evidence and extra‑judicial confession made by the petitioner to the police in course of investigation. There can be no doubt that the crime is abhorrent, but it is doubtful as to whether the crime committed by the petitioner can be termed as rarest of the rare., In Dileep Bankar v. State of Madhya Pradesh, we are not inclined to interfere with the conviction part. However, with respect to sentence, in the facts and circumstances of the case, we are inclined to set aside the capital sentence. It was stated by learned counsel for the appellant that the appellant has become the victim of his own past and there is only circumstantial evidence against him. We deem it proper to impose the sentence of total twenty‑five years of imprisonment. However, death sentence is set aside., Out of these twelve cases, cases at serial numbers (iii), (vii), (viii), (ix), (x), (xi) and (xii) were decided by benches of three Judges of Supreme Court of India, while the others were decided by benches of two Judges., An important case for study is the decision of the Supreme Court of India in Rameshbhai Chandubhai Rathod v. State of Gujarat, in which the accused was found guilty of offences punishable under Sections 363, 366, 376, 397 and 302 of the Indian Penal Code. The victim was a student of fourth standard. The accused was awarded death sentence. The case was based on circumstantial evidence and Justice Pasayat observed: The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by Supreme Court of India in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play. In fact in most of the cases where death sentence is awarded for rape and murder and the like, there is practically no scope for having an eyewitness. They are not committed in the public view. By the very nature of things in such cases, the available evidence is circumstantial evidence. If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance would amount to consideration of an irrelevant aspect. The plea of learned counsel for the appellant that the conviction is based on circumstantial evidence and, therefore, the death sentence should not be awarded is clearly unsustainable. Justice Pasayat affirmed the award of death sentence., Justice Ganguly agreed with Justice Pasayat on the issue of conviction but on the question of sentence he was of the view that the proper sentence was imprisonment for life. Justice Ganguly found that the reliance by the High Court on the decision in Dhananjoy Chatterjee v. State of West Bengal was incorrect. He observed that there are vital differences in the facts of the two cases. In the present case, there is no allegation that the appellant ever misbehaved with the deceased. In Dhananjoy, prior to the date of crime, there were many occasions when the victim had been teased by Dhananjoy on her way to and back from her school. The latest being on 2‑3‑1990, three days prior to her death, when Dhananjoy had asked the deceased to accompany him to watch a movie. The deceased protested and told her mother about it. Her father consulted neighbours and filed a written complaint to the security agency which had hired Dhananjoy and deployed him in their apartment. The agency arranged for Dhananjoy to be transferred to another apartment. Thus there was a motive and a sense of revenge in the mind of Dhananjoy in committing the crime against the deceased. Justice Ganguly, after considering various cases, observed: The appellant is a young man aged twenty‑eight years, married with two daughters, with no criminal antecedents recorded. His behaviour in general was not objectionable and certainly not with the deceased girl prior to the incident. The unfortunate incident is possibly the first crime committed by the appellant. He is not otherwise a criminal. Such a person is not a threat to society. His entire life is ahead of him. I agree with his Lordship that the appellant has to be convicted on other charges. However, his conviction does not automatically lead to his death sentence. In my humble opinion instead of death sentence a sentence of rigorous imprisonment for life will serve the ends of justice. With the aforesaid modification of the sentence the appeal is dismissed to the extent indicated above., The matter was referred to a bench of three Judges which did not, in terms, disagree with the view taken by Justice Pasayat nor was there any observation to the contrary on the issue of appreciation of a case based on circumstantial evidence in capital punishment matters. The bench adopted the view taken by Justice Ganguly and stated: Both the Honourable Judges have relied extensively on Dhananjoy Chatterjee case. In that case the death sentence had been awarded by the trial court on similar facts and confirmed by the Calcutta High Court and the appeal also dismissed by Supreme Court of India leading to the execution of the accused. Justice Ganguly, however, drew a distinction on the facts of that case and the present one and held that as the appellant was a young man, only twenty‑seven years of age, it was obligatory on the trial court to have given a finding as to a possible rehabilitation and reformation and the possibility that he could still become a useful member of society in case he was given a chance to do so., We are, therefore, of the opinion that in the light of the findings recorded by Justice Ganguly it would not be proper to maintain the death sentence on the appellant. At the same time the gravity of the offence, the behaviour of the appellant and the fear and concern such incidents generate in ordered society cannot be ignored. We, therefore, feel that a via media ought to be adopted in the light of the judgments of Supreme Court of India in Ramraj v. State of Chhattisgarh and Mulla v. State of Uttar Pradesh. In these two cases, Supreme Court of India has held that the term imprisonment for life which is found in Section 302 of the Indian Penal Code would mean imprisonment for the natural life of the convict subject to the powers of the President and the Governor under Articles 72 and 161 of the Constitution of India or of the State Government under Section 433‑A of the Code of Criminal Procedure., It is also required to be noted that there was disagreement between two Judges who heard Swamy Shraddananda v. State of Karnataka. Justice Sinha was of the view that the accused be given life sentence while Justice Katju affirmed the award of death sentence. The matter was therefore referred to a bench of three Judges whose decision is reported as Swamy Shraddananda (2) and which found the observations of Justice Katju that there cannot be an absolute rule excluding death sentence in all cases of circumstantial evidence to be correct. The bench, however, formulated a special category of sentence in paragraphs 91 to 93 of its decision. The subsequent decision in Kalu Khan quoted with approval paragraphs 88 to 90 from the opinion of Justice Sinha when the matter was heard by two Judges of Supreme Court of India in Swamy Shraddananda., These cases discussed in preceding paragraphs show that although it is accepted that the observations in Swamy Shraddananda (2) did not lay down any firm principle that in a case involving circumstantial evidence, imposition of death penalty would not be permissible, a definite line of thought that where the sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case was accepted by a bench of three Judges of Supreme Court of India in Kalu Khan. As a matter of fact, it accepted the caution expressed by Justice Sinha in Swamy Shraddananda v. State of Karnataka and the conclusions in Santosh Kumar Satishbhushan Bariyar to restate the principles with clarity in its decision., It can therefore be summed up: (a) it is not as if imposition of death penalty is impermissible to be awarded in circumstantial evidence cases; and (b) if the circumstantial evidence is of an unimpeachable character in establishing the guilt of the accused and leads to an exceptional case or the evidence sufficiently convinces the judicial mind that the option of a sentence less than death penalty is foreclosed, the death penalty can be imposed., It must therefore be held that merely because the instant case is based on circumstantial evidence there is no reason to commute the death sentence. However, the matter must be considered in the light of the aforesaid principles and see whether the circumstantial evidence is of unimpeachable character and the option of a lesser sentence is foreclosed., Before we deal with the matter from the perspective as stated above, we must consider the submission advanced by Ms. Mathur, learned Senior Advocate with regard to residual doubt as said submission also touches upon the character of evidence., The theory of residual doubt was noted for the first time by a bench of two judges of Supreme Court of India in Ashok Debbarma alias Achak Debbarma v. State of Tripura. An accused has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Supreme Court of India in Krishnan v. State held that the doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over‑emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. In Ramakant Rai v. Madan Rai, the above principle has been reiterated. In Commonwealth v. Webster at page 320, Massachusetts Court, as early as in 1850, explained the expression reasonable doubt as follows: Reasonable doubt is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction. In our criminal justice system, for recording guilt of the accused, it is not necessary that the prosecution should prove the case with absolute or mathematical certainty, but only beyond reasonable doubt. Criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind some residual doubt, even though the courts are convinced of the accused persons guilt beyond reasonable doubt. For instance, in the instant case, it was pointed out that, according to the prosecution, thirty to thirty‑five persons armed with weapons such as firearms, dao, lathi, etc., set fire to the houses of the villagers and opened fire which resulted in the death of fifteen persons, but only eleven persons were charge‑sheeted and, out of which, charges were framed only against five accused persons. Even out of those five persons, three were acquitted, leaving the appellant and another, who is absconding. The court, in such circumstances, could have entertained a residual doubt as to whether the appellant alone had committed the entire crime, which is a mitigating circumstance to be taken note of by the court, at least when the court is considering the question whether the case falls under the rarest of rare category., Residual doubt is a mitigating circumstance, sometimes used and urged before the jury in the United States and generally not found favour by the various courts in the United States. In Franklin v. Lynaugh, while dealing with the death sentence, the Court held that the petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering, in mitigation of sentence, any residual doubts it might have had about his guilt. The petitioner uses the phrase residual doubts to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt, but who were not absolutely certain of his guilt. The plurality and dissent reject the petitioner's residual doubt claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its residual doubts about the petitioner's guilt. Although the jury was permitted to consider evidence presented at the guilt phase in the course of answering the special verdict questions, the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions beyond a reasonable doubt. Because of this instruction, the jury might not have thought that, in sentencing the petitioner, it was free to demand proof of his guilt beyond all doubt., In California v. Brown and other cases, the United States courts took the view that residual doubt is not a fact about the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between beyond a reasonable doubt and absolute certainty. The petitioner’s residual doubt claim is that the States must permit capital sentencing bodies to demand proof of guilt to an absolute certainty before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing. We also, in this country, as already indicated, expect the prosecution to prove its case beyond reasonable doubt, but not with absolute certainty. Between reasonable doubt and absolute certainty, a decision‑maker’s mind may wander; possibly in a given case he may go for absolute certainty so as to award death sentence, short of that he may go for beyond reasonable doubt. In the present case, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single‑handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner could not have been thrown upon the appellant alone without charge‑sheeting other group of persons numbering around thirty‑five. All the element test as well as the residual doubt test, in a given case, may favour the accused as a mitigating factor., The decision of Supreme Court of India in Ashok Debbarma was relied upon in the following decisions by benches of three judges of Supreme Court of India: (A) In Sudam alias Rahul Kniram Jadhav v. State of Maharashtra the appellant was convicted of having caused the death of five persons; i.e. the lady who was living with him as his wife, two children from her previous marriage and two children from the appellant. The death sentence awarded to him was confirmed by Supreme Court of India. However, in review petition, the sentence was commuted to imprisonment for the remainder of his life without any right to remission. The discussion was as follows: Though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence (see Swamy Shraddananda v. State of Karnataka and Ramesh v. State of Rajasthan). In such a situation, it is up to the Court to determine whether the accused may be sentenced to death upon the strength of circumstantial evidence, given the peculiar facts and circumstances of each case, while assessing all the relevant aggravating circumstances of the crime, such as its brutality, enormity and premeditated nature, and mitigating circumstances of the accused, such as his socio‑economic background, age, extreme emotional disturbance at the time of commission of the offence, and so on. In this regard, it would also be pertinent to refer to the discussion in Ashok Debbarma v. State of Tripura, where Supreme Court of India elaborated upon the concept of residual doubt which simply means that in spite of being convinced of the guilt of the accused beyond reasonable doubt, the Court may harbour lingering or residual doubts in its mind regarding such guilt. This Court noted that the existence of residual doubt was a ground sometimes urged before American courts as a mitigating circumstance with respect to imposing the death sentence., While the concept of residual doubt has undoubtedly not been given much attention in Indian capital sentencing jurisprudence, the fact remains that Supreme Court of India has on several occasions held the quality of evidence to a higher standard for passing the irrevocable sentence of death than that which governs conviction, that is to say, it has found it unsafe to award the death penalty for convictions based on the nature of the circumstantial evidence on record. In a recent decision by this Bench, in Mohd. Mannan v. State of Bihar, we found it unsafe to affirm the death penalty awarded to the accused in light of the nature of the evidence on record, though the conviction had been affirmed on the basis of circumstantial evidence. Evidently, even the fact that the evidence was circumstantial in nature did not weigh very heavily on the Court’s mind, let alone the strength and nature of the circumstantial evidence. The material on record is sufficient to convince the Court of the petitioner’s guilt beyond reasonable doubt; however, the nature of the circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the petitioner’s favour, keeping in mind the doctrine of prudence. Moreover, it is also possible that the incorrect observations pertaining to Anita’s facial injuries further led the Court to conclude in favour of imposing the death sentence on the petitioner. Thus, we are of the considered opinion that there was a reasonable probability that Supreme Court of India would have set aside the sentence of death in appeal, since the only surviving evidence against the petitioner pertains to his motive to commit the crime, the circumstance of last seen and a solitary extra‑judicial confession. In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence. We are thus compelled to conclude that the award of the death penalty in the instant case, based on the evidence on record, cannot be upheld., The above analysis concludes the discussion.
id_1054	6	At the same time, we conclude that a sentence of life imprisonment simpliciter would be inadequate in the instant case, given the gruesome nature of the offence, and the menace posed to society at large by the petitioner, as evinced by the conduct of the petitioner in jail. As per the report submitted in pursuance of the order of the Supreme Court of India dated 31-10-2018, it has been brought on record that the conduct of the petitioner in jail has been unsatisfactory, and that he gets aggressive and indulges in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners. Two FIRs have also been registered against the petitioner for abusing and threatening the Superintendent of the Nagpur Central Prison., As this Supreme Court of India has already held in a catena of decisions, by way of a via media between life imprisonment simpliciter and the death sentence, it may be appropriate to impose a restriction on the petitioner's right to remission of the sentence of life imprisonment, which usually works out to 14 years in prison upon remission. We may fruitfully refer to the decisions in Swamy Shraddananda (2) v. State of Karnataka and Union of India v. V. Sriharan, in this regard. We therefore direct that the petitioner shall remain in prison for the remainder of his life. (Emphasis supplied), In Ravishankar alias Baba Vishwakarma v. State of Madhya Pradesh, the appellant was convicted under Sections 376, 302 and 376A of the Indian Penal Code and also under the provisions of the Protection of Children from Sexual Offences Act for having raped and caused the murder by throttling of a 13‑year‑old girl. The death sentence awarded by the trial court was confirmed by the High Court but on appeal the death sentence was substituted by this Supreme Court of India with imprisonment for life with a direction that no remission be granted and that the appellant shall remain in prison for the rest of his life., The relevant passages from the decision are: Such imposition of a higher standard of proof for purposes of death sentencing over and above beyond reasonable doubt necessary for criminal conviction is similar to the residual doubt metric adopted by this Supreme Court of India in Ashok Debbarma v. State of Tripura wherein it was noted that: In our criminal justice system, for recording guilt of the accused, it is not necessary that the prosecution should prove the case with absolute or mathematical certainty, but only beyond reasonable doubt. Criminal courts, while examining whether any doubt is beyond reasonable doubt, may carry in their mind some residual doubt, even though the courts are convinced of the accused person's guilt beyond reasonable doubt., Ashok Debbarma drew a distinction between a residual doubt, which is any remaining or lingering doubt about the defendant's guilt which might remain at the sentencing stage despite satisfaction of the beyond reasonable doubt standard during conviction, and reasonable doubts which as defined in Krishnan v. State are actual and substantive, and not merely imaginary, trivial or merely possible. These residual doubts although not relevant for conviction would tilt towards mitigating circumstance to be taken note of whilst considering whether the case falls under the rarest of rare category., This theory is also recognised in other jurisdictions like the United States, where some State courts such as the Supreme Court of Tennessee in State v. McKinney have explained that residual doubt of guilt is a valid non‑statutory mitigating circumstance during the sentencing stage and have allowed for new evidence during sentencing proceedings related to the defendant's character, background history, physical condition, etc., The above‑cited principles have been minutely observed by us, taking into consideration the peculiar facts and circumstances of the case in hand. At the outset, we would highlight that the High Court while confirming death has observed that the girl was found bleeding due to forcible sexual intercourse, which fact, however, is not supported by medical evidence. However, such erroneous finding has no impact on conviction under Section 376A of the Indian Penal Code because the section requires only the fact of death of the victim during the offence of rape, and such death need not be with any guilty intention or be a natural consequence of the act of rape only. It is worded broadly enough to include death by any act committed by the accused if done contemporaneously with the crime of rape. Any other interpretation would defeat the object of ensuring safety of women and would perpetuate the earlier loophole of the rapists claiming lack of intention to cause death to seek a reduced charge under Section 304 of the Indian Penal Code as noted in the Report of the Committee on Amendments to Criminal Law, headed by Justice J.S. Verma, former Chief Justice of India., While we believe that enhanced penalties in a substantial number of sexual assault cases can be adjudged on the basis of the law laid down in the aforesaid cases, certain situations warrant a specific treatment. We believe that where the offence of sexual assault, particularly gang rapes, is accompanied by such brutality and violence that it leads to death or a persistent vegetative state (PVS), punishment must be severe with the minimum punishment being life imprisonment. While we appreciate the argument that where such offences result in death, the case may also be tried under Section 302 of the Indian Penal Code as a rarest of the rare case, we must acknowledge that many such cases may actually fall within the ambit of Section 304 (Part II) since the intention to kill may often not be established. In the case of violence resulting in persistent vegetative state, we are reminded of the moving story of Aruna Shanbaug, the young nurse who was brutally raped and lived the rest of her life (almost 36 years) in a persistent vegetative state., In our opinion, such situations must be treated differently because the concerted effort to rape and to inflict violence may disclose an intention deserving an enhanced punishment. We have therefore recommended that a specific provision, namely, Section 376(3) should be inserted in the Indian Penal Code to deal with the offence of rape followed by death or resulting in a persistent vegetative state., In the present case, there are some residual doubts in our mind. A crucial witness for constructing the last‑seen theory, PW 5, is partly inconsistent in cross‑examination and quickly jumps from one statement to the other. Two other witnesses, PW 6 and PW 7, had seen the appellant feeding biscuits to the deceased one year before the incident and their long delay in reporting the same fails to inspire confidence. The mother of the deceased has deposed that the wife and daughter of the appellant came to her house and demanded the return of the money which she had borrowed from them but failed to mention that she suspected the appellant of committing the crime initially. Ligature marks on the neck evidencing throttling were noted by PW 20 and PW 12 and in the post‑mortem report, but find no mention in the panchnama prepared by the police. Viscera samples sent for chemical testing were spoilt and hence remained unexamined. Although nail scrapings of the accused were collected, no report has been produced to show that DNA of the deceased was present. Another initial suspect, Baba alias Ashok Kaurav, absconded during investigation, giving rise to the possibility of involvement of more than one person. All these factors have no impact in formation of the chain of evidence and are wholly insufficient to create reasonable doubt to earn acquittal., We are cognizant of the fact that use of such residual doubt as a mitigating factor would effectively raise the standard of proof for imposing the death sentence, the benefit of which would be availed of not by the innocent only. However, it would be a misconception to make a cost‑benefit comparison between cost to society owing to acquittal of one guilty versus loss of life of a perceived innocent. This is because the alternative to death does not necessarily imply setting the convict free., As noted by the United States Supreme Court in Herrera v. Collins, it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. However, death being irrevocable, there lies a greater degree of responsibility on the court for an in‑depth scrutiny of the entire material on record. Still further, qualitatively, the penalty imposed by awarding death is much different than in incarceration, both for the convict and for the State. Hence, a corresponding distinction in requisite standards of proof by taking note of residual doubt during sentencing would not be unwarranted., We are thus of the considered view that the present case falls short of the rarest of rare cases where the death sentence alone deserves to be awarded to the appellant. It appears to us in the light of all the cumulative circumstances that the cause of justice will be effectively served by invoking the concept of special sentencing theory as evolved by this Supreme Court of India in Swamy Shraddananda (2) and approved in Sriharan case., Since reference was made in the aforestated decisions of this Supreme Court of India to certain decisions of the United States Supreme Court, we may now consider those decisions and some other decisions of the United States Supreme Court on the point and whether the theory of residual doubt has found acceptance in the decisions of the United States Supreme Court., California v. Brown (a) The relevant facts noted in the opinion of the Court delivered by Chief Justice Rehnquist were: Respondent Albert Brown was found guilty by a jury of forcible rape and first‑degree murder in the death of 15‑year‑old Susan J. At the penalty phase, the State presented evidence that respondent had raped another young girl some years prior to his attack on Susan J. Respondent presented the testimony of several family members, who recounted respondent's peaceful nature and expressed disbelief that respondent was capable of such a brutal crime. Respondent also presented the testimony of a psychiatrist, who stated that Brown killed his victim because of his shame and fear over sexual dysfunction. Brown himself testified, stating that he was ashamed of his prior criminal conduct and asking for mercy from the jury. While instructing the jury to consider the aggravating and mitigating circumstances and to weigh them in determining the appropriate penalty, the trial Court cautioned the jury that it must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. The instruction so issued was found to violate the Eighth and Fourteenth Amendments by the Supreme Court of California which decision was reversed by the United States Supreme Court as under: We hold that the instruction challenged in this case does not violate the provisions of the Eighth and Fourteenth Amendments to the United States Constitution. The judgment of the Supreme Court of California is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion., Justice O'Connor authored a concurring opinion and stated: Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution. At the same time, the jury instructions taken as a whole must clearly inform the jury that they are to consider any relevant mitigating evidence about a defendant's background and character, or about the circumstances of the crime., Justice Brennan (with whom Justice Marshall and Justice Stevens joined) dissented and observed: The prosecutor in this case thus interpreted the anti‑sympathy instruction to require that the jury ignore the defendant's evidence on the mitigating factors of his character and upbringing. A similar construction has been placed on the instruction in several other cases., Justice Blackmun (with whom Justice Marshall joined) also dissented and stated: The sentencer's ability to respond with mercy towards a defendant has always struck me as a particularly valuable aspect of the capital sentencing procedure. In my view, we adhere so strongly to our belief that sentencers should have the opportunity to spare a capital defendant's life on account of compassion for the individual because, recognizing that the capital sentencing decision must be made in the context of contemporary values, Gregg v. Georgia, we see in the sentencer's expression of mercy a distinctive feature of our society that we deeply value. Thus, the entire discussion was confined to the validity of the instruction given to the Jury and the issue of residual doubt never arose for consideration., Franklin v. Lynaugh The jury had found Franklin guilty of capital murder. At the conclusion of penalty hearing, the trial court submitted two Special Issues to the jury, instructing the jury that if they determined the answer to both these questions to be Yes, Franklin would be sentenced to death. The issues were: (1) Do you find from the evidence beyond a reasonable doubt that the conduct of the Defendant, Donald Gene Franklin, that caused the death of Mary Margaret Moran, was committed deliberately and with the reasonable expectation that the death of the deceased or another would result? (2) Do you find from the evidence beyond a reasonable doubt that there is a probability that the Defendant, Donald Gene Franklin, would commit criminal acts of violence that would constitute a continuing threat to society? Franklin requested jury instructions that any evidence which, in the jury's opinion, mitigates against the imposition of the death penalty, including any aspect of the defendant's character or record, and any of the circumstances of the commission of the offense, may be sufficient to cause reasonable doubt as to whether the true answer of any of the Special Issues is Yes; and in the event such evidence does cause such reasonable doubt, the jury should answer the issue No. The request of Franklin was rejected and the jury answered both special issues in the affirmative whereafter the trial Court imposed death sentence., In the Federal habeas action filed by Franklin, the submission was recorded: Petitioner first suggests that the jury may, in its penalty deliberations, have harbored residual doubts about three issues considered in the guilt phase of his trial: first, petitioner’s identity as the murderer; second, the extent to which petitioner’s actions (as opposed to medical mistreatment) actually caused the victim’s death; and third, the extent to which petitioner’s actions were intended to result in the victim’s death., The decision of the United States Supreme Court was delivered by Justice White and the question was formulated as under: In this case, we are called on to determine if the Eighth Amendment required a Texas trial court to give certain jury instructions, relating to the consideration of mitigating evidence, that petitioner had requested in the sentencing phase of his capital trial. Rejecting the challenge it was observed: At the outset, we note that the United States Supreme Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Our edict that, in a capital case, “the sentencer … may not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense,” does not mandate reconsideration by capital juries, in the sentencing phase, of their “residual doubts” over a defendant's guilt. Such lingering doubts are not over any aspect of petitioner’s “character,” “record,” or a “circumstance of the offense.” the United States Supreme Court's prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor., Justice O'Connor (with whom Justice Blackmun joined) authored a concurring judgement and the submission of Franklin was noted as under: Petitioner also contends that the sentencing procedures followed in his case prevented the jury from considering, in mitigation of sentence, any residual doubts it might have had about his guilt. Petitioner uses the phrase residual doubts to refer to doubts that may have lingered in the minds of jurors who were convinced of his guilt beyond a reasonable doubt, but who were not absolutely certain of his guilt., The plurality and dissent reject petitioner’s residual doubt claim because they conclude that the special verdict questions did not prevent the jury from giving mitigating effect to its residual doubts about petitioner’s guilt. Although the jury was permitted to consider evidence presented at the guilt phase in the course of answering the special verdict questions, the jury was specifically instructed to decide whether the evidence supported affirmative answers to the special questions beyond a reasonable doubt. Because of this instruction, the jury might not have thought that, in sentencing the petitioner, it was free to demand proof of his guilt beyond all doubt., Justice O'Connor rejected the submission and observed: In my view, petitioner’s “residual doubt” claim fails, not because the Texas scheme allowed for consideration of “residual doubt” by the sentencing body, but rather because the Eighth Amendment does not require it. Our cases do not support the proposition that a defendant who has been found guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt. We have recognized that some States have adopted capital sentencing procedures that permit defendants in some cases to enjoy the benefit of doubts that linger from the guilt phase of the trial, but we have never indicated that the Eighth Amendment requires States to adopt such procedures. To the contrary, as the plurality points out, we have approved capital sentencing procedures that preclude consideration by the sentencing body of “residual doubts” about guilt., The footnote reads thus: Finding a constitutional right to rely on a guilt‑phase jury’s residual doubts about innocence when the defense presents its mitigating case in the penalty phase is arguably inconsistent with the common practice of allowing penalty‑only trials on remand of cases where a death sentence – but not the underlying conviction – is struck down on appeal., In fact, the United States Supreme Court has, on several previous occasions, suggested such a method of proceeding on remand. Moreover, petitioner himself, in suggesting the appropriate relief in this case, asked only that he be resentenced in a proceeding that our decisions mandating jury consideration of mitigating circumstances provide no support for petitioner’s claim because “residual doubt” about guilt is not a mitigating circumstance. We have defined mitigating circumstances as facts about the defendant's character or background, or the circumstances of the particular offense, that may call for a penalty less than death. “Residual doubt” is not a fact about the defendant or the circumstances of the crime. It is instead a lingering uncertainty about facts, a state of mind that exists somewhere between “beyond a reasonable doubt” and “absolute certainty.” Petitioner’s “residual doubt” claim is that the States must permit capital sentencing bodies to demand proof of guilt to “an absolute certainty” before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing., During the course of her judgment, Justice O'Connor also made the following observations: In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. Evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable., In sum, we are quite doubtful that such penalty‑only trials are violative of a defendant’s Eighth Amendment rights. Yet such is the logical conclusion of petitioner’s claim of a constitutional right to argue residual doubts to a capital sentencing jury., The United States Supreme Court in Herrera v. Collins noted that it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after‑discovered evidence establishing their innocence. Justice O'Connor (joined by Justice Kennedy) delivered a concurring opinion.
id_1054	7	Justice Scalia (joined by Justice Thomas) also rendered a concurring opinion. Another concurring opinion was rendered by Justice White, while Justice Blackmun (joined by Justice Stevens and Justice Souter) dissented., Oregon vs. Guzek99 The syllabus prepared by the Reporter of Decisions stated the facts as follows: At the guilt phase of respondent Guzek's capital murder trial, his mother was one of two witnesses who testified that he had been with her on the night the crime was committed. He was convicted and sentenced to death. Twice, the Oregon Supreme Court vacated the sentence and ordered new sentencing proceedings, but each time Guzek was again sentenced to death. Upon vacating his sentence for a third time, the State Supreme Court held that the Eighth and Fourteenth Amendments provide Guzek a federal constitutional right to introduce live alibi testimony from his mother at the upcoming resentencing proceeding. After this Supreme Court of India granted certiorari, Guzek filed a motion to dismiss the writ as improvidently granted. The decision of the Oregon Supreme Court was reversed by the United States Supreme Court. The opinion of the Court was delivered by Justice Breyer with the following observations:, As our discussion in Part II, supra, makes clear, the federal question before us is a narrow one. Do the Eighth and Fourteenth Amendments grant Guzek a constitutional right to present evidence of the kind he seeks to introduce, namely, new evidence that shows he was not present at the scene of the crime? That evidence is inconsistent with Guzek's prior conviction. It sheds no light on the manner in which he committed the crime for which he has been convicted. Nor is it evidence that Guzek contends was unavailable to him at the time of the original trial. And, to the extent it is evidence he introduced at that time, he is free to introduce it now, albeit in transcript form. Ore Rev Stat 138.012(2)(b) (2003). We can find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce new evidence of this kind at sentencing. We cannot agree with the Oregon Supreme Court that our previous cases have found in the Eighth Amendment a constitutional right broad enough to encompass the evidence here at issue. In Lockett v. Ohio, supra, a plurality of this Court decided that a defendant convicted of acting in concert with others to rob and to kill could introduce at the sentencing stage evidence that she had played a minor role in the crime, indeed, that she had remained outside the shop where the killing took place at the time of the crime. A plurality of the Court wrote that the Eighth and Fourteenth Amendments require that the sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id., at 604, 98 S.Ct. 2954 (emphasis added and deleted). And in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, the Court majority adopted this statement. See also McCleskey v. Kemp, 481 U.S. 279, 306, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Bell v. Ohio, 438 U.S. 637, 642, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978) (plurality opinion). But the evidence at issue in these cases was traditional sentence‑related evidence, evidence that tended to show how, not whether, the defendant committed the crime. Nor was the evidence directly inconsistent with the jury's finding of guilt., Justice Scalia (joined by Justice Thomas) delivered a concurring opinion., Abdul Kabir vs. Quarterman100 In this case, the theory of residual doubt did not come up for consideration. However, in the judgment of the Supreme Court of India delivered by Justice Stevens, the opinion of Justice O'Connor in Franklin vs. Lynaugh89 was referred to as follows: What makes Franklin significant, however, is the separate opinion of Justice O'Connor, and particularly those portions of her opinion expressing the views of five Justices, see infra, at 1668‑1669, and n.15. After summarizing the cases that clarified Guzek's holding she wrote: In my view, the principle underlying Lockett, Eddings, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. Evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse. Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime. California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring) (emphasis in original). In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to the evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration. Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its reasoned moral response to that evidence. 487 U.S. at 184‑185, 108 S.Ct. 2320 (opinion concurring in judgment) (emphasis added)., We may also note the decision of the Supreme Court of Tennessee in State vs. McKinney93, as it was referred to in the decision of this Court in Ravishankar alias Baba Vishwakarma vs. State of Madhya Pradesh20. In that case, the defence counsel sought to refer to the evidence from the guilt phase of the trial during his closing argument in the sentencing phase of the trial. Whether the decision in not permitting him to do so was correct was the issue. The opinion of the Supreme Court of India observed: Residual doubt evidence, in general, may consist of proof admitted during the sentencing phase that indicates the defendant did not commit the offense, notwithstanding the jury's verdict following the guilt phase. In contrast, the present case does not involve a resentencing procedure, nor does it involve a defendant's effort to introduce evidence of residual doubt. Instead, the defendant only sought to argue evidence that had already been admitted by the trial court and heard by the same jury in the guilt phase of the trial. Moreover, given that this was not a resentencing hearing, the reality is that the sentencing jury had already heard the testimony underlying defence counsel's proposed argument and had reconciled it in favor of the State's theory of guilt and against the defendant's theory of innocence. It was concluded that the trial court's refusal to allow defence counsel to refer to evidence from the guilt phase of the trial during his closing argument in the sentencing phase did not affect the jury's determination to the prejudice of the defendant and was harmless error., The principles that emerge from the decisions of the United States Supreme Court are: (i) This Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Justice White speaking for the Court in Franklin vs. Lynaugh89. (ii) Our edict that, in a capital case, the sentencer may consider any aspect of a defendant's character or record and any of the circumstances of the offense, in no way mandates reconsideration by capital juries, in the sentencing phase, of their residual doubts over a defendant's guilt. Justice White speaking for the Court in Franklin vs. Lynaugh89. (iii) Our cases do not support the proposition that a defendant who has been found guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt. Justice O'Connor in concurring opinion in Franklin vs. Lynaugh89. (iv) We have approved capital sentencing procedures that preclude consideration by the sentencing body of residual doubts about guilt. Justice O'Connor in concurring opinion in Franklin vs. Lynaugh89. (v) Our decisions mandating jury consideration of mitigating circumstances provide no support for the petitioner's claim because residual doubt about guilt is not a mitigating circumstance. Justice O'Connor in concurring opinion in Franklin vs. Lynaugh89. (vi) Residual doubt is not a fact about the defendant or the circumstances of the crime. It is instead a lingering uncertainty about facts, a state of mind that exists somewhere between beyond a reasonable doubt and absolute certainty. The petitioner's residual doubt claim is that the States must permit capital sentencing bodies to demand proof of guilt to an absolute certainty before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing. Justice O'Connor in concurring opinion in Franklin vs. Lynaugh89. (vii) In capital cases, we have required additional protections because of the nature of the penalty at stake. The jury must be given the option of convicting the defendant of a lesser offense. All of these constitutional safeguards, of course, make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant. But we have also observed that due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. To conclude otherwise would all but paralyze our system for enforcement of the criminal law. Chief Justice Rehnquist speaking for the Court in Herrera v. Collins94. (viii) It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison. Chief Justice Rehnquist speaking for the Court in Herrera v. Collins94. (ix) Do the Eighth and Fourteenth Amendments grant Guzek a constitutional right to present evidence of the kind he seeks to introduce, namely, new evidence that shows he was not present at the scene of the crime? That evidence is inconsistent with Guzek's prior conviction. It sheds no light on the manner in which he committed the crime for which he has been convicted. Justice Breyer speaking for the Court in Oregon vs. Guzek99. (x) But the evidence at issue in these cases was traditional sentence‑related evidence, evidence that tended to show how, not whether, the defendant committed the crime. Nor was the evidence directly inconsistent with the jury's finding of guilt. Justice Breyer speaking for the Court in Oregon vs. Guzek99. (xi) The sentencer's ability to respond with mercy towards a defendant has always struck me as a particularly valuable aspect of the capital sentencing procedure. The observations in the dissenting opinion of Justice Blackmun in California v. Brown90., Following features from these decisions of the United States Supreme Court are noteworthy: (A) As the decision in California v. Brown90 discloses, the jury trial comprises two phases. The first is called the guilt phase where the question for determination is whether the offence as alleged has been proved by the prosecution, which is akin to the conviction stage in our jurisprudence; while the second phase is called the penalty phase at which stage the question for consideration is about the appropriate penalty to be awarded when the guilt is established, which is similar to the sentence stage in our jurisprudence. In both phases, the basic issues are to be dealt with by jurors who are drawn from cross sections of society, while the function for such determination and consideration in our jurisprudence is entrusted to judicial officers adequately trained and appropriately equipped with practical experience. A jury is likely to be swayed by emotions or sentiments, which is why caution was given to the jury by the trial court in California v. Brown90. But that element or possibility is ruled out when an experienced judicial officer is entrusted with the requisite task. (B) Secondly, there can be fresh sentencing procedures on as many as four occasions as the decision in Oregon vs. Guzek99 shows, or the process of challenge may take considerable time as the decision in Herrera vs. Collins94 discloses. Naturally, there would be some time gap between two phases, possibly leading to a situation where the composition of the jury at the penalty phase may not be the same as it was at the guilt phase. Consequently, the attempts on part of the defence to highlight any area or aspect in the evidence which could be said to be doubtful in the hope that there could be a change in perception. This possibility again does not arise in our jurisprudence, as the same judicial officer who heard and decided the matter at the conviction stage is to decide the matter at the sentence stage without any undue lapse of time. (C) At the penalty phase, the prosecutor and the defence are allowed to lead evidence. Whether such leading of evidence may also include evidence touching upon the identity of the accused or his role in the transaction or any matter concerning evidence leading to determination of his guilt were the issues in Oregon vs. Guzek99 and the portion extracted from that decision shows the approach adopted by the United States Supreme Court. In our jurisprudence, if there be any new evidence which may go to the root of the matter, leading of such evidence can be permitted at the appellate stage subject to fulfillment of governing principles. These features are only illustrative to say that the theory of residual doubt that got developed was a result of peculiarity in the process adopted. Even then, what is material to note is that the theory has consistently been rejected by the United States Supreme Court and, as stated by Justice O'Connor, nothing in our cases mandated the imposition of this heightened burden of proof at capital sentencing., In Ashok Debbarma18, after noticing the decisions of the United States Supreme Court in California v. Brown90 and in Franklin v. Lynaugh89, it was observed that residual doubt as a mitigating circumstance did not find favour with various courts in the United States. On facts, it was however observed that the Court entertained lingering doubt as to whether the appellant alone could have executed the crime single‑handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. Thus, the doubt that was entertained was not about the guilt of the accused simply or about his involvement in the crime but whether the appellant alone could have committed the crime which resulted in the death of as many as thirty‑five persons, and such doubt weighed with the Court while commuting the death sentence to imprisonment for life. It must be stated here that what was paraphrased in paragraph 33 of the decision was the relevant portion from the opinion of Justice O'Connor in Franklin v. Lynaugh89 and not from the decision in California v. Brown90., In Sudam alias Rahul Kaniram Jadhav v. State of Maharashtra19, it was noted in paragraph 19.1 that there would be no bar on the award of death sentence in cases based on circumstantial evidence. Thereafter, the decision in Ashok Debbarma18 was considered and the Court observed that in several cases, quality of evidence to a higher standard was insisted upon for passing the irrevocable sentence of death and reliance was placed on the decision in Mohd. Mannan v. State of Bihar80. The deduction in paragraph 21 rested inter alia on the aspect that the nature of the circumstantial evidence in this case amounts to a circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the petitioner's favour., In Ravishankar20 it was observed that imposition of a higher standard of proof for the purposes of death sentencing over and above beyond reasonable doubt necessary for criminal conviction is similar to the residual doubt metric adopted by this Court in Ashok Debbarma v. State of Tripura18. In this case, as per paragraph 10 of the decision, blood samples of six suspects were sent for DNA analysis but only the DNA profile from the blood of the appellant matched with that from the vaginal slide of the deceased. Additionally, reliance was placed by the prosecution on the testimony of PWs 5, 6 and 7, as set out in paragraphs 17 and 18. The reason why the version coming from PWs 5, 6 and 7 could not inspire complete confidence was dealt with in paragraph 61. It was further observed that another suspect Baba alias Ashok Kaurav having absconded during investigation, there was possibility of involvement of more than one person, giving rise to the same safety filter adopted in Ashok Debbarma18., These cases thus show that the matters were considered from the standpoint of individual fact situation where, going by the higher or stricter standard for imposition of death penalty, an alternative to death sentence was found to be appropriate., When it comes to cases based on circumstantial evidence in our jurisprudence, the standard that is adopted in terms of law laid down by this Court as noticed in Sharad Birdhichand Sarda34 and subsequent decisions is that the circumstances must not only be individually proved or established, but they must form a consistent chain, so conclusive as to rule out the possibility of any other hypothesis except the guilt of the accused. On the strength of these principles, the burden in such cases is already of a greater magnitude. Once that burden is discharged, it is implicit that any other hypothesis or the innocence of the accused already stands ruled out when the matter is taken up at the stage of sentence after returning the finding of guilt. So theoretically the concept or theory of residual doubt does not have any place in a case based on circumstantial evidence. As a matter of fact, the theory of residual doubt was never accepted by the United States Supreme Court as discussed earlier. However, as summed up in Kalu Khan17, while dealing with cases based on circumstantial evidence, for imposition of a death sentence, a higher or stricter standard must be insisted upon. The approach to be adopted in matters concerning capital punishment, therefore, ought to be in conformity with the principles culled out in paragraph 41 hereinabove and the instant matter must therefore be considered in the light of those principles., If the present case is so considered, the discussion must broadly be classified under two heads: (A) Whether the circumstantial evidence in the present case is of unimpeachable character in establishing the guilt of the appellant or leads to an exceptional case. (B) Whether the evidence on record is so strong and convincing that the option of a sentence less than a death penalty is foreclosed. Going by the circumstances proved on record and, more particularly the facets detailed in paragraph 19 hereinabove as well as the law laid down by this Court in a series of decisions, the circumstances on record rule out any hypothesis of innocence of the appellant. The circumstances are clear, consistent and conclusive in nature and are of unimpeachable character in establishing the guilt of the appellant. The evidence on record also depicts an exceptional case where a two‑and‑half‑year‑old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one. However, if the case is considered against the second head, we do not find that the option of a sentence less than death penalty is completely foreclosed. It is true that the sexual assault was very severe and the conduct of the appellant could be termed as perverse and barbaric. However, a definite pointer in favour of the appellant is the fact that he did not consciously cause any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him and it was injury No.17 which was the cause of death, his conviction under Section 302 of the Indian Penal Code is not under any of the first three clauses of Section 300 of the Indian Penal Code. In matters where the conviction is recorded with the aid of the fourth clause under Section 300 of the Indian Penal Code, it is very rare that the death sentence is awarded. In cases at Serial Nos. 10, 11, 16, 24, 40, 45 and 64 of the chart tabulated in paragraph 30 hereinabove, where the victims were below sixteen years of age and had died during the course of sexual assault on them, the maximum sentence awarded was life sentence. This aspect is of crucial importance while considering whether the option of a sentence less than death penalty is foreclosed or not., We therefore find that though the appellant is guilty of the offence punishable under Section 302 of the Indian Penal Code, since there was no requisite intent that would bring the case under any of the first three clauses of Section 300 of the Indian Penal Code, the offence in the present case does not deserve the death penalty., The second count on which death sentence has been imposed is under Section 376A of the Indian Penal Code. As noted earlier, the offence was committed on 11.02.2013 and a few days before such commission, Section 376A was inserted in the Indian Penal Code by the Ordinance. As concluded by us in paragraph 16 hereinabove, the ex‑post facto effect given to Section 376A inserted by the Amendment Act would not be inconsistent with sub‑Article (1) of Article 20 of the Constitution. The appellant is thus definitely guilty of the offence punishable under Section 376A of the Indian Penal Code. But the question remains whether punishment lesser than death sentence is ruled out. As against Section 302 IPC while dealing with cases under Section 376A IPC, a wider spectrum is available for consideration by the Courts as to the punishment to be awarded. On the basis of the same aspects that weighed with us while considering the appropriate punishment for the offence under Section 302 IPC, in view of the fact that Section 376A IPC was brought on the statute book just a few days before the commission of the offence, the appellant does not deserve the death penalty for said offence. At the same time, considering the nature and enormity of the offence, it must be observed that the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of twenty‑five years., In view of the aforesaid conclusions drawn by us, it is not necessary to deal with the submissions IV, V, VI, VII, VIII and IX advanced by Ms. Mathur, learned Senior Advocate in respect of the issue of sentence. Consequently, while affirming the view taken by the Courts below in recording conviction of the appellant for the offences punishable under Sections 302 IPC and 376A IPC, we commute the sentence to life imprisonment for the offence punishable under Section 302 IPC and to rigorous imprisonment for twenty‑five years for the offence punishable under Section 376A IPC. The conviction and sentence recorded by the Courts below for the offences punishable under Sections 376(1), (2)(f), (i) and (m) of the Indian Penal Code, and under Section 6 of the POCSO Act are affirmed. These appeals are allowed to the aforesaid extent.
id_1060	0	Through: Shri Satvir Singh (Party-in-person) versus Through: Mister Sidhant Kumar, Advocate for Election Commission of India; Mister Chetan Sharma, Additional Solicitor General of India with Mister Waize Ali Noor, Advocate for Union of India., In the backdrop of ongoing polling for the presidential election, the instant petition has been filed seeking issuance of directions to Respondent No. 1 Union of India and Respondent No. 2 Election Commission of India for disqualifying those Members of Parliament and Members of Legislative Assemblies who have been imprisoned or incarcerated for various offences from participating in the elections., Petitioner Shri Satvir Singh, who appears in person, asserts that he has filed the nomination form for the post of President of India. Although the petitioner has contended that he is a public‑spirited person, the instant petition has been filed in his own right and not by way of a public interest litigation., The primary grievance of the petitioner is that the respondents are not taking any effective steps to remove or disqualify such Members of Parliament and Members of Legislative Assemblies from the Electoral College for electing various dignitaries viz. Hon'ble President of India and Vice President of India. He argues that there is evident dereliction of duty on the part of the statutory respondents in not acting in accordance with Section 27G of the Representation of People Act, 1950 as well as Sections 7, 8 and 8A of the Representation of People Act, 1951, which cast a duty thereon. He also places reliance on Articles 324 to 329 of the Constitution of India and, in particular, Article 326, which is premised on the concept of universal adult suffrage and delineates exclusion of candidature on the grounds of non‑residence, unsoundness of mind, crime or corrupt or illegal practice., At the outset, Mister Chetan Sharma, learned Additional Solicitor General of India, objects to the maintainability of the petition by placing reliance on Article 71(1) of the Constitution and the Presidential and Vice Presidential Elections Act, 1952, which he states is pari materia to Article 329(b) of the Constitution and submits that the Supreme Court of India is the only court to try an election petition in respect of the election of the President of India. Likewise, Mister Sidhant Kumar, counsel for the Election Commission of India, also relies upon the aforesaid provisions to buttress his arguments. He argues that a writ petition is not the appropriate remedy and only an election petition can be filed after declaration of results. He also places reliance on Section 8 of the Representation of People Act, which prescribes the disqualification of persons from being a member of Parliament or a State Legislature on conviction of certain offences specified. This disqualification, he argues, is automatic and by operation of law, and disables any member of Parliament or a State Legislature to act in any manner in such capacity, including to vote in elections of the Hon'ble President of India as per Article 54 of the Constitution. He submits that members of Parliament or a State Legislature cease to be members of such body upon being disqualified in terms of Section 8 of the Representation of People Act., The reliefs sought in the present petition are: to issue an appropriate writ, order or direction in the nature of mandamus or certiorari thereby directing the respondents to delete the names of those Members of Parliament and Members of Legislative Assemblies suffering imprisonment or languishing in jail due to cases pending or decided against them so that they do not participate in the voting process for the forthcoming election of the Hon'ble President of India., The Supreme Court of India has considered the aforesaid submissions. As already observed, the petitioner has not put in much effort to understand the legal provisions before initiating the present petition. However, the relief sought is ex‑facie liable to be dismissed for several grounds. The timing of the petition on the eve of the Presidential Election, and not before, makes the intention of the petition highly suspect. The Supreme Court of India is also informed that the petitioner’s nomination for the post of President of India was rejected, and since he is not a candidate, the Court is unable to perceive the petitioner’s locus standi to assail the election of the Hon'ble President of India, particularly since the instant petition is not in the nature of a public interest litigation; nonetheless, it is not maintainable before this Court in terms of Article 71(1) of the Constitution, which reads: “Matters relating to, or connected with, the election of a President or Vice President (1) All doubts and disputes arising out of or in connection with the election of a President or Vice President shall be inquired into and decided by the Supreme Court of India whose decision shall be final…”., Article 71(1) categorically provides that all doubts and disputes arising out of, or in connection with, the election of the President or Vice President shall be inquired into and decided by the Supreme Court of India, and thus, since the above‑extracted relief is qua the electoral college for the Presidential election, the same cannot be entertained by this Court. Further, on a perusal of the Presidential and Vice Presidential Elections Act, 1952, the Court is unable to discern any provision disqualifying members of Parliament and State Legislatures who are imprisoned or incarcerated from voting in the said elections. Mister Kumar has relied upon Section 8 of the Representation of People Act, which prescribes disqualification of persons from being a member of Parliament and State Legislatures; however, in light of the fact that the present petition cannot be entertained by this Court, the Court refrains from expressing any opinion on this issue., Further, the petitioner has neither given a single instance where an imprisoned or incarcerated member has been allowed to vote, or otherwise, act as a member of Parliament or State Legislature, nor has such member been arrayed as a party. Lastly, the present writ petition is also not maintainable, for the reason that the only remedy in relation to a Presidential election can be by way of an election petition after declaration of the result. Section 14(2) of the Presidential and Vice Presidential Elections Act, 1952 also confers exclusive jurisdiction on the Supreme Court of India to hear such matters., In light of the above, this half‑baked petition of the petitioner cannot be entertained by the Supreme Court of India. Dismissed., Reference: Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851. See paragraphs no. 25, 30, 88 and 92.
id_1061	0	FULL TEXT OF THE CONVOCATION ADDRESS DELIVERED BY HONOURABLE THE CHIEF JUSTICE OF INDIA SHRI JUSTICE N V RAMANA AT THE 82ND CONVOCATION OF OSMANIA UNIVERSITY TAGORE AUDITORIUM, OSMANIA UNIVERSITY CAMPUS, HYDERABAD 05 AUGUST 2022\n\nMy heartiest congratulations to all those who received their degrees and honours today, in this 82nd Annual Convocation. It is a joyous occasion for everyone involved. Your parents and your family must be proud of your achievements. They have been your constant supporters. The history and legacy of this great institution places a heavy obligation upon your young shoulders. I wish all of you the very best in all your future endeavours. It is great vision along with impeccable character and conviction which makes any ordinary person extraordinary. Osmania University is a crucible which produced many such visionaries and extraordinaries. Osmania University is the third oldest university in southern India and the first in the former State of Hyderabad. The establishment of Osmania University by the Nizam of Hyderabad marked a new era in higher education. During its inception, the idea of imparting higher education through the local languages of India was a counter to the dominance of the English language in India under British colonial rule. All this while, Osmania University has stood the test of time. From the British Raj to Independent India, it has continued to remain as the beacon of excellence. The notable alumni of this university have contributed greatly in their respective fields and have become household names. Osmania is one of those universities where political participation and scholarly pursuits went hand in hand. This university has produced one of the most remarkable prime ministers and statesmen of modern India in the form of Shri P V Narasimha Rao. It has also majorly contributed to the fine governance of this State as many chief ministers and cabinet ministers, including the incumbent Chief Minister himself, are products of the education given here. This university has undoubtedly contributed to building modern India., I am afraid I may not fit in the league of the luminaries such as Rabindranath Tagore, C Raj Gopala Chary, Pandit Jawaharlal Nehru, Doctor Rajendra Prasad, Doctor Sarvepalli Radhakrishnan, Doctor Bhimrao Ambedkar and others who are recipients of the prestigious Honoris Causa from this historic university. I am deeply grateful for the honour bestowed on me today. While a new connection is being forged, many old memories keep flooding back. Initially in my student years, I aspired to join Osmania University. Although I could not join formally, on many occasions I have stayed with my friends here in their hostel rooms. I have attended several classes in law and linguistics. I used to spend time in the canteens and library. I have a lot of warm memories of this university. Especially, considering the significance of Osmania University, I view the honorary degree I have been awarded today as more than a symbolic honour. For me, it is a personal obligation to do my best for the community. India is home to some of the oldest centres of knowledge. These centres shaped the minds and careers of many eminent men and women who in turn energized the freedom movement. The formation of modern Independent India was significantly propelled by the ideas that emanated from the grounds of its universities. They are not just a place for meeting of ideas but also a confluence of identities. My generation and subsequent generations have witnessed the power of a level playing field. It was the progressive and welfarist policies pioneered in the South in general and undivided Andhra Pradesh in particular, which provided much‑needed opportunities for students from oppressed backgrounds. These opportunities in turn led to the very first‑generation literates among the oppressed sections of society to emerge as path‑breakers. These places of learning have in fact accelerated the social transformation, leading to the overall upliftment of society. There cannot be a holier place than institutions of learning which lead to social emancipation., Osmania is one such place of social emancipation. It has been a global centre of learning and enlightenment, acting as a mirror for social consciousness and reality. The university continues to be the most significant institution for several first‑generation students coming from diverse backgrounds. Through the course of its existence, it has served as a place where progressive ideals were inculcated in students who fought for social change and a more equal society. Situated in the historic city of Hyderabad, it reflects the State’s diversity and rich traditions. Universities, particularly in nascent democracies such as India, play a very significant role in nation building. They have acted as a cradle for novel ideas and have built characters. Rabindranath Tagore, in his collection of essays, was critical of the education imparted by the colonisers. He states that education should be nothing like a parrot’s training where students are taught just to mimic. Tagore said, and I quote: “And for that they must be trained, not to be soldiers, not to be clerks in a bank, not to be merchants, but to be the makers of their own world and their own destiny. And for that they must have all their faculties fully developed in the atmosphere of freedom.” This brings me to the question of the ultimate purpose of education. Education, unlike vocational training, should not stop with providing skills for employability. It is expected to combine perception and patience, emotion and intellect, substance and morals. Critical thinking is essential for the growth of every individual, society, and the nation. True education nurtures true impulses and independent thinking. Instead of being prisoners of the status quo, we need youth to dive deep and bring transformation from within. You cannot change the world with mere high principles and morals; you need to act. On any given day, any action towards a positive change is better than inaction., You must cultivate a critical mind which is well‑informed. Education cannot be alienated from one’s roots. It must mirror our social reality and the journey of progress through time. Our students must be equipped with the knowledge of history, language, philosophy, politics and economy. This brings me to the transformative power of education. In today’s knowledge‑based economy, education and information are the key assets for an individual. Through quality education, hard work and dedication, one can break the barriers of social strata. Education is a tool of social mobility and is the foundation of social development. Our students must be aware of the basic laws and principles that govern the land. Citizens must connect with our Constitution because it is our ultimate safeguard. That is why I insist on propagation of constitutional culture. It is high time for all institutions to introduce a subject on the basic ideas about the Constitution and governance, irrespective of the stream of learning. The ideas of the Constitution need to be simplified for everyone’s understanding and empowerment. A participatory democracy thrives when its citizens are able to make informed choices. The ultimate goal of our education should be to enable us to make informed choices. Another aspect that is key to the sustenance of our democracy is honouring our plurality. Instead of fostering the feeling of othering, our education should lead us where we can nurture diversity. Speaking of diversity, we should not lose sight of the big picture in the globalised world. Today’s youth is facing several unique challenges. Our way of living has undergone massive transformation with the passage of time. Our food, language, clothes, games, festivals and so on are deeply rooted expressions of our identity and values. These expressions of our identity are tools of social cohesion but also links with our past. The memories and stories of our great‑grandparents, grandparents and parents tell us about the world as it was. Most importantly, we derive our sense of continuity. These identities help us find our roots., With rapid globalization and massive developments in science and technology, several cultures and identities are interacting with each other with increased frequency. Driven by the winds of globalization, we are moving towards a global culture. As this global culture engulfs the world, the need for sustaining diversity assumes great significance. The global culture is emerging as a threat to local cultural symbols and identities. Social media, television and pop‑culture glamourise a particular way of life and sadly we are blindly aping the same. Instead of celebrating our distinct heritage and culture, we are allowing our rich identities to be blurred. The present generation is in flux. It is gradually losing link to the past and thereby losing sight of the purpose and path to the future. While I acknowledge the necessity and the positive changes ushered in by globalization and development of science and technology, I urge you to think of its micro impact in our daily lives. According to the 2021 UNESCO World Report of Languages, half of the approximately seven thousand languages spoken in the world today could disappear by the end of the century. With loss of each language, we are not only losing considerable literature and folklore, but also losing wisdom inherited through generations. Similarly, the march of globalization has significant impact on genetic diversity as well. We are witnessing the rapid loss of crop varieties, wild species and indigenous livestock. Additionally the market is driven by demands of the global economy. As a result more and more farmers are moving beyond indigenous crops for short‑term gains. This change in cropping pattern is altering the character of soil thereby reducing its capacity to support biodiversity. Climate change and environmental pollution are also affecting the wild varieties. Put together, a huge ecological imbalance is staring at us., Another aspect of globalization is its impact on local handicrafts and artisans. With global brands flooding the markets, with mass‑produced designs and products, the local artisans are pushed to the corner. They are facing tough competition and are struggling to survive. With near zero patronage now, the art forms which have evolved over centuries are vanishing in front of us. I hope my observations are not taken as criticism of globalization per se. But the above issues definitely prove to us that we have somewhere gone wrong with the present model of globalization. Although we have made significant achievements, our societies are becoming increasingly divided over access to wealth and resources. That is why the present generation is faced with the unique challenge of finding solutions to these pressing concerns. The rising inequities between classes need urgent attention. We need to find a model of globalization which is sustainable, equitable and just for all. Such a model demands harmony, respect and coexistence of differing identities. Peace and prosperity can only prevail in a society built on consensus and a sense of fraternity. Beyond the ideas of tolerance, we need acceptance. We should not seek uniformity, rather we should seek unity. The university is a space intended to foster the spirit of such thinking. It allows us to spend our formative years in an environment that promotes thinking, questioning and debating. The space for dialogue is very sacred in an educational institution, not just with the teachers but also among the peers., As you graduate today, your learning has not come to an end; on the contrary, the learning has just started. There is so much to learn from the experience of life. Be humble. Remember your duty towards your family and community. Before I end, I want to quote Doctor Bhimrao Ambedkar, who once stated: “Men are mortal. So are ideas. An idea needs propagation as much as a plant needs watering. Otherwise both will wither and die.”
id_1062	0	Petitioners Through: Mr. D. K. Srivastava, Advocate with petitioners. Versus Through: Ms. Rupali Bandhopadhyay, Assistant Sub-Inspector for the State with Sub-Inspector Shantanu, Police Station Amar Colony, Mr. Amit Sahni, Assistant Public Prosecutor for the state, Mr. Anil Basoya, Advocate for Respondent 2. Petitioner Through: Mr. D. K. Srivastava, Advocate with petitioners. Versus Through: Ms. Rupali Bandhopadhyay, Assistant Sub-Inspector for the State with Mr. Amit Sahni, Assistant Public Prosecutor for the state with Sub-Inspector Shantanu, Police Station Amar Colony, with Sub-Inspector Sunita, Police Station New Usmanpur, Mr. Anil Basoya, Advocate for Respondent 2 (VC). Date of Decision: 29.08.2023., These are petitions seeking quashing of FIR No. 843/2020 dated 31.12.2020 registered at Police Station New Usmanpur, Delhi under Sections 498A, 406, 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, in W.P. (CRL) 1967/2023 and FIR No. 477/2020 dated 17.11.2020 registered at Police Station Amar Colony under Section 354 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act in W.P. (CRL) 1969/2023. Both the FIRs were lodged on the complaint of the wife of the petitioner., FIR No. 843/2020 was lodged on 31.12.2020 by the complainant/wife alleging that the petitioner has committed mental and physical harassment, cruelty, dowry demand, beatings, and caused threat to her life. On the basis of these allegations the FIR was lodged under Sections 498A, 406, 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, against the petitioner and his relatives. Later, both the parents of the petitioner expired. Their death certificates have been placed on record. The charge sheet is yet not filed., FIR No. 477/2020 was registered on 17.11.2020, again at the complaint of the wife alleging that the petitioner misappropriately touched the private part of their daughter. It was alleged that a matrimonial dispute arose between the complainant and the petitioner. At the time, the complainant used to go out of the house for her work and her husband the petitioner used to stay back at home to look after the children. In July 2020 the complainant noticed some redness near the private part of their daughter, who was not letting her check it. The complainant took the child to a doctor who advised that the rash/redness may have developed as a result of the diapers she was wearing. After 10‑15 days of treatment the redness subsided however the child remained uncomfortable and did not let the mother inspect the area. The complainant again took the child to the doctor who said that it was possible that something bad may have happened with the child. The complainant went back home and enquired about this with her son. Upon enquiry, the son revealed that their father/petitioner used to badly touch his sister/victim and used to take her to the bedroom and touch her private parts. The complainant along with her children came to the police station and handed over a written complaint containing all these allegations, on the basis of which the present FIR No. 477/2020 was lodged under Sections 354 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act. The charge sheet is stated to have been filed., Learned counsel for the parties submit that both the above FIRs stemmed from a matrimonial dispute between the parties. While the proceedings were underway, the parties reached an amicable settlement on 11.05.2023 before the Mediation Centre, Saket Courts, Delhi on the following terms and conditions: (i) It is agreed that there is no chance of their reunion and they have decided to separate by way of mutual consent talaq. (ii) It is mutually agreed that the First Party has forgone all her claims including maintenance (past, present and future), permanent alimony, stridhan, expenses etc. with regard to their marriage and shall not claim the same in future. (iii) Care and custody of both minor children namely a six‑year‑old and Baby X (four years) shall at all times remain with the First Party/Wife and the Second Party/Husband shall not claim their custody. (iv) The parties have decided to dissolve their marriage by taking Khula/Divorce from the Islamic Scholar/Mufti, New Delhi as per Shariat Law on the same day of execution of the Settlement Agreement. The Second Party has given his consent that after the dissolution of marriage the First Party shall observe her iddat period without any obstacle of custom of Islam and shall go to her office during her iddat period covering her face and performing routine work. Thereafter, the parties may approach the concerned Family Court seeking declaration of their marital status as per the Family Courts Act within one month. (v) The parties shall withdraw the present as well as the above‑mentioned connected matters within one month of the dissolution of marriage as per Shariat law. (vi) Within one month of obtaining Khula/Divorce, the Second Party shall file a petition before the Honourable Delhi High Court for quashing the FIR mentioned in serial (ii) of the above connected matter and the First Party shall cooperate with the Second Party in getting the same quashed. (vii) The present Settlement shall not prejudice the proceedings emanating from FIR No. 477/2020 under Section 10 of the Protection of Children from Sexual Offences Act and Section 354 of the Indian Penal Code registered at Police Station Amar Colony, New Delhi. Both parties have agreed to approach the Honourable Delhi High Court to file the quashment petition against the said FIR in view of the Settlement Agreement. (viii) After quashing of FIR No. 477/2020, the Second Party shall meet both children physically or virtually alternatively once in two months (one time physically and one time virtually). The physical/virtual meeting shall be on the third Sunday of every month at 04:00 pm. If a meeting is not held as per the agreed term, the parties will inform each other and the postponed meeting will be held on the succeeding Sunday of the month. In case the Honourable Delhi High Court does not allow the quashing petition, the Second Party shall start meeting with the children as per the above agreed timings after disposal of the case from the Court of Additional Sessions Judge, South‑East District, Delhi. The meeting time will be one hour for physical meeting and half an hour for virtual meeting and the Second Party shall bear all expenses of physical meeting. (ix) The Second Party/Husband undertakes that he shall not make any phone calls either on mobile or landline numbers in the house or office of the First Party/Wife and her parents and relatives and shall not attempt to communicate with the First Party/Wife at any time in future. (x) In case of default or breach of the above‑mentioned terms and conditions, the defaulting party shall have liberty to initiate proper and appropriate legal proceedings against the other party. (xi) Upon compliance with the above‑mentioned terms and conditions, the parties will not file any civil or criminal case pertaining to their marriage or with regard to their respective movable or immovable property. (xii) All matters pending between the parties before any court, forum, police station or any authority of law shall be deemed to have been settled post signing of this settlement., Learned counsel submits that in terms of the above settlement, the parties have already been granted Talaq‑E‑Mubarat. The certificate of divorce/talaqnama dated 11.05.2023 is also on record. In terms of the settlement all the pending litigations between the parties have also been withdrawn. Since the parties have amicably resolved all their disputes and no longer wish to pursue the present FIRs, it would be futile to keep the present complaints pending as the same would amount to abuse of the process of the court., The parties are present in person and have been duly identified by the Investigating Officer. Both the petitioner and complainant are stated to be lawyers. Respondent No. 2 states that both FIR No. 843/2020 and FIR No. 477/2020 arose as a result of a matrimonial dispute between the parties. She states that FIR No. 477/2020 under Sections 354 of the Indian Penal Code and 10 of the Protection of Children from Sexual Offences Act was lodged on account of a misunderstanding. She states that she has amicably resolved all her differences with the petitioner and has already been granted Talaq on 11.05.2023. She states that she no longer wishes to pursue the present complaints and has no objection if the same are quashed. She wants to move on with her life and has settled the matter voluntarily without any fear, force or coercion, keeping in mind the betterment and future of the children. She states that custody of the children will remain with her and the petitioner will have visitation rights as per the terms of the settlement. Both parties have also submitted that the settlement is only with respect to their rights and titles and not with respect to the rights, titles and interest of the children, who may avail their remedies as per law. In compliance with the order dated 14.07.2023, both parties have filed an affidavit stating that the settlement shall not affect the rights, titles or interest of the children born out of wedlock., Submissions considered., Upon a careful perusal of the FIR and the pleadings before the Delhi High Court, it is amply clear that the issue in the present case stems from a matrimonial dispute between the parties. The parties have already settled the matter and have been granted Talaq. Respondent No. 2 has stated that FIR No. 477/2020 was lodged under Sections 354 of the Indian Penal Code and 10 of the Protection of Children from Sexual Offences Act on account of misunderstandings. While this Court acknowledges the growing tendency of parties alleging grave allegations merely to win matrimonial battles and strongly deprecates the practice of children being used as an instrument to set the criminal justice in motion solely to harass or intimidate the other party, this Court under Section 482 of the Criminal Procedure Code has the inherent jurisdiction to quash any criminal proceedings in order to secure the ends of justice or to prevent the abuse of the process of the Court., In the present case, admittedly the dispute arose due to matrimonial discord between the parties. The petitioner is stated to have clear past antecedents. The FIR lodged under provisions of the Protection of Children from Sexual Offences Act has admittedly been lodged owing to misunderstandings between the parties., Thus, the courts have to adopt a pragmatic approach and can quash criminal proceedings for justifiable reasons, given the peculiar facts and circumstances of the case, and in order to secure ends of justice or to prevent the abuse of the process of the Court. Moreover, the parties have already settled the dispute and have been granted mutual divorce. The complainant has stated that she no longer wishes to pursue the present complaints. The chances of conviction would be bleak, given that the complainant does not wish to pursue the present complaints on account of the amicable settlement. In such circumstances continuance of the present FIRs would serve no useful purpose and may cause prejudice to the petitioner and be an exercise in futility. I do not see any reason to reject the compromise. The Supreme Court and this Court have time and again held that cases arising out of matrimonial differences should be put to quietus if the parties have arrived upon a genuine settlement. Reliance can be placed on B.S. Joshi v. State of Haryana, (2003) 4 SCC 675; K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226; Yashpal Chaudhary and Others v. State (Govt. of NCT Delhi) and Another, 2019 SCC OnLine Del 8179., Considering the peculiar facts and circumstances of the case and in view of the submissions of Respondent No. 2/complainant, FIR No. 843/2020 dated 31.12.2020 registered at Police Station New Usmanpur, Delhi under Sections 498A, 406, 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961, in W.P. (CRL) 1967/2023 and FIR No. 477/2020 dated 17.11.2020 registered at Police Station Amar Colony under Section 354 of the Indian Penal Code and Section 10 of the Protection of Children from Sexual Offences Act in W.P. (CRL) 1969/2023 and all subsequent proceedings emanating therefrom are quashed., It is pertinent to mention that the children born out of wedlock will be free to pursue their legal rights in accordance with the law. The parties have entered into a settlement only with regard to their rights and titles. The rights, titles and interests of the children to pursue their legal remedies as per law remain unaffected., Moreover, since such cases place a burden on the criminal justice system, the petitioner who is a lawyer by profession is directed to do ten pro bono cases., The learned member Secretary, Delhi State Legal Service Committee is requested to assign ten cases which the petitioner shall do pro bono. The compliance report shall be filed within a month., List on 11.10.2023 for compliance.
id_1063	0	Vinod Dhatterwal and others Vs. Union of India and others Present : Mr. Aashish Chopra, Senior Advocate, with Mr. Gagandeep Singh, Advocate, Mr. Varun Aryan Sharma, Advocate, and Mr. Jagjot Singh, Advocate, for the petitioners in CWP-PIL-9-2023. Mr. R.S. Khosla, Senior Advocate, with Mr. Yogender Verma, Advocate, and Ms. Meenakshi Thakur, Advocate, for the petitioner in CWP-27621-2013. Mr. Satya Pal Jain, Additional Solicitor General of India, with Mr. Dheeraj Jain, Senior Panel Counsel, Union of India, and Mr. Brijeshwar Singh Kanwar, Senior Panel Counsel, Union of India, for the respondent Union of India. Mr. Gaurav Chopra, Senior Advocate, with Mr. Anurag Chopra, Advocate, and Mr. Rajeev Anand, Advocate, for respondent No.9. Mr. Anil Mehta, Senior Standing Counsel, Union Territory Chandigarh, with Mr. J.S. Chandail, Additional Standing Counsel, Union Territory Chandigarh, Ms. Jyoti Kumari, Advocate, and Mr. Kapil Setia, Chief Architect; Ms. Roma Marwah, Divisional Town Planner; and Mr. Mandip Mendiratta, Town Planner, Chandigarh. Mr. Vikas Malik, President, High Court Bar Association, Chandigarh, with Mr. Swaran Singh Tiwana, Secretary, High Court Bar Association, Chandigarh., It is stated that learned counsel appearing on behalf of the Union Territory, Chandigarh, along with the officers of the Union Territory, Chandigarh, who are present in the Punjab and Haryana High Court today, had discussions with the Office of the Registrar General of this Court today itself, with respect to allotment of the alternative land in Sarangpur, for the administrative block of the High Court, which was to be considered by them, as observed in the order dated 15.01.2024, passed by the Punjab and Haryana High Court., This High Court was constructed in the year 1954 with sanctioned strength of 09 Judges and at that time, there were about 200 to 250 registered Advocates. As on today, the sanctioned strength of the High Court Judges is 85 and there are about 10,000 to 12,000 registered Advocates in the High Court. Hence, in the gap of almost 70 years, the sanctioned strength of the High Court Judges has arisen from 09 to 85 and at present, there are 69 Court Rooms in the High Court building, in which Permanent Lok Adalats as well as Mediation Centers are also working. Further, this Court is in the process of appointing 10 Counsellors and extra staff will be required for their back‑up. In the next 50 years, there can be further increase in the sanctioned strength of the High Court Judges to the extent of 140 to 150., To accommodate so many Judges as well as the administrative staff, land in Sarangpur, which consists of two plots of 06 acres each and one plot of 2.86 acres, should be allotted by the Chandigarh Administration in favour of the High Court. Earlier, this Court in its order dated 21.12.2023 had observed that the High Court will give up its building situated in Sector 17 and Industrial Area Phase‑I, Chandigarh, if the aforesaid three plots are allotted to the High Court. However, at that time, the increase in the sanctioned strength of the High Court Judges from 09 in the year 1954 to 85 in the year 2024 as well as the further increase in the next 50 years had not been examined. Hence, now since this fact has also been examined, it is made clear that if the aforesaid three plots are allotted to the High Court, the High Court will not give up its building situated in Sector 17 and Industrial Area Phase‑I, Chandigarh., Mr. Kapil Setia, Chief Architect, Ms. Roma Marwah, Divisional Town Planner, and Mr. Mandip Mendiratta, Town Planner, from the Chandigarh Administration, are present in the Punjab and Haryana High Court. Keeping in view the observations made above, with regard to increase in the sanctioned strength of the High Court Judges from 09 in the year 1954 till date and the further increase in the next 50 years, the Officers of the Chandigarh Administration cannot further examine the total land required to accommodate the sanctioned strength of the High Court Judges as well as the administrative block in the High Court premises., Mr. Anil Mehta, learned Senior Standing Counsel, Union Territory Chandigarh, had shown a plan of Sarangpur, wherein there were two plots of 06 acres each and one plot of 2.86 acres were shown to be available for allotment. Keeping in view the future need of 50 years, a direction is being issued to the Union Territory Chandigarh administration to allot these three plots to the High Court. It is made clear that the land in the Industrial Area and Sector 17, Chandigarh, where the High Court branches are already functioning, shall not be given back to the Chandigarh administration., List on 24.01.2024. A copy of this order be placed on the file of connected case. Copy of this order under the signatures of the Bench Secretary be handed over to learned counsel for the parties. January 19, 2024. Neutral Citation No:= 3 of 3
id_1067	0	Special Leave Petition (Criminal) No. 2835/2023 (Special Leave to Appeal (Criminal) No. 2835/2023) Leave granted. The appellant was implicated along with his son and two others in a criminal complaint for an alleged offence punishable under Section 306 of the Indian Penal Code, 1860. All the four accused were taken into custody on 17 November 2022. A final report was filed on 18 December 2022. The appellant is an advocate by profession and is actually 74 years of age. The charge against the appellant and three others is that there was a financial transaction with the deceased and that unable to bear the pressure exerted by the appellant's son and two others, the victim committed suicide. In the handwritten note, the victim has actually named the appellant's son and two others as primarily responsible. He has also stated expressly that the appellant threatened him. Therefore, this is not a case where the continued incarceration of the appellant is necessary, especially after filing of the final report. Hence, the appeal is allowed and the impugned order is set aside. The appellant is directed to be released on bail on such terms and conditions as imposed by the trial court., Petition for Special Leave to Appeal (Criminal) No. 2835/2023 (Arising out of impugned judgment and order dated 10 February 2023 in SBCRMSBA No. 1433/2023 passed by the High Court of Judicature for Rajasthan at Jaipur) Date: 11 April 2023. This matter was called on for hearing today., For Petitioners: Mr. Namit Saxena, Advocate on Record; Mr. Nitin Jain, Advocate; Mr. Awnish Maithani, Advocate; Mr. Shivam Raghuvanshi, Advocate; Ms. Shiksha Ashra, Advocate., For Respondents: Mr. Amitabh Kumar Chaubey, Additional Advocate General; Mr. Anand Shankar, Advocate on Record., Upon hearing the counsel the High Court of Judicature for Rajasthan at Jaipur made the following: Leave granted. The appeal is allowed and the appellant is granted bail in terms of the signed order. Pending applications, if any, shall stand disposed of. (Signed order is placed on the file.)
id_1068	0	The Supreme Court Collegium has recommended the name of Shri Rohit Kapoor, Advocate, for appointment as Judge of the High Court of Punjab and Haryana., The recommendation for appointment of the above candidate as Judge of the High Court of Punjab and Haryana was made by the Collegium of the High Court on 21 April 2023. On 17 October 2023, the Supreme Court Collegium scrutinized and evaluated the material placed on record. Further consideration of the recommendation was deferred with a view to seek a report from the Chief Justice of the High Court of Punjab and Haryana in consultation with members of the High Court Collegium on the suitability of the candidate in light of the inputs placed before us., The Chief Justice of the High Court of Punjab and Haryana, by a letter dated 28 November 2023, forwarded the minutes of the Collegium dated 23 November 2023 regarding suitability of the candidate. In terms of the Memorandum of Procedure, the Judges of the Supreme Court conversant with the affairs of the High Court of Punjab and Haryana were consulted in order to ascertain the fitness and suitability of the candidate. The Chief Minister and the Governor for the States of Punjab and Haryana have conveyed their concurrence to the above recommendation., We have scrutinized and evaluated the material placed on record, including the report of the Chief Justice of the High Court of Punjab and Haryana forwarding the recommendation of the Collegium dated 23 November 2023, based on the response and compilation of statistics submitted by Shri Rohit Kapoor relating to his performance as arguing counsel. The enquiries made by us with reliable sources to ascertain suitability of the candidate reveal that Shri Rohit Kapoor is a competent advocate suitable for elevation to the High Court. The Collegium, therefore, is of the considered view that Shri Rohit Kapoor is fit and suitable for appointment as Judge of the High Court of Punjab and Haryana., In view of the above, the Collegium resolves to recommend that Shri Rohit Kapoor, Advocate, be appointed as Judge of the High Court of Punjab and Haryana. The Collegium further resolves to recommend that two Advocates namely Shri Harmeet Singh Grewal and Shri Deepinder Singh Nalwa, whose names have been approved by this Collegium earlier on 17 October 2023, be given precedence in the matter of appointment over Shri Rohit Kapoor. The inter se seniority of all three Advocates be fixed as per the existing practice., (Dhananjaya Y Chandrachud), Chief Justice of India
id_1069	0	Date of Decision: 31st December 2021. The petitioner, through Ms. Sneha Mukherjee and Ms. Surabhi Shukla, Advocates, filed a writ petition against the respondents represented by Ms. Hetu Arora Sethi, Additional Standing Counsel with Mr. Siddarth Aggarwal, Advocate for Respondents 1 and 2, and Mr. Tanveer Oberoi, Advocate for Respondent 1. The petitioner seeks (i) a writ of mandamus or any other writ directing the respondents to allow the petitioner to undergo medical termination of the pregnancy; (ii) an order directing Respondent No. 3 to set up an expert panel of doctors to assess the pregnancy and offer medical termination of pregnancy beyond the prescribed twenty‑week limit; and (iii) any other order or direction that this Delhi High Court may deem fit., The petitioner is a 33‑year‑old woman who has been undergoing regular check‑ups since the fifth week of her pregnancy. An ultrasonography report dated 31 October 2021, conducted at the twentieth week of gestation, revealed a choroid plexus cyst in the left lateral ventricle of the fetus. At twenty‑four weeks, a fetal echo‑Doppler test performed on 2 December 2021 showed multiple cardiac anomalies, namely Tetralogy of Fallot with absent pulmonary valve syndrome, pulmonary stenosis and regurgitation with narrow pulmonary valves, a dilated branch pulmonary artery, and a large malaligned ventricular septal defect with overriding aorta., Subsequently, the petitioner consulted several doctors, including pediatric cardiologists, in different hospitals. The last medical opinion received on 15 December 2021 stated that infants born with Tetralogy of Fallot have a fifty percent chance of survival in the first year, and even if they survive, repeated surgeries are required, with the success of the surgeries depending on the infant’s response to the environment. Since the permissible limit of twenty‑four weeks under the Medical Termination of Pregnancy Act, 1971 (as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021) had been exceeded, the petitioner approached this Delhi High Court seeking a direction to allow her to undergo medical termination of pregnancy., On 22 December 2021, this Delhi High Court directed Respondent No. 3 (All India Institute of Medical Sciences) to constitute a Medical Board at the earliest to examine the petitioner, who had by that date completed twenty‑eight weeks of pregnancy, and to furnish a report regarding the necessity and feasibility of medical termination of the pregnancy. The petitioner’s counsel submitted that, based on the medical opinion and the ultrasound and other tests, the fetus is suffering from serious deformities and has very grim chances of survival, and therefore prayed that the petitioner be permitted to undergo medical termination of her pregnancy., Pursuant to the order, a multidisciplinary Medical Board was constituted by All India Institute of Medical Sciences, chaired by an Additional Professor, Department of Obstetrics and Gynecology. The Board rendered its opinion on 24 December 2021. The opinion stated that the petitioner, Mrs. Pratibha Gaur, is a 33‑year‑old woman in her first pregnancy, currently at twenty‑eight weeks of gestation. Ultrasound and fetal echocardiography are suggestive of Tetralogy of Fallot with absent pulmonary valve syndrome, confirmed by USG and echocardiography at AIIMS, New Delhi. Chorionic villus sampling showed a normal quantitative fluorescent polymerase chain reaction, ruling out common numerical chromosomal abnormalities; a chromosomal microarray report is awaited. The couple was informed about post‑natal outcomes in case of full‑term delivery and the need for surgery in infancy. The pediatric cardiologist and neonatologist assessed that, with optimal management and timely surgery, the chances of a successful outcome exceed eighty percent. The Board explained that delivery should be planned in a centre with neonatal intensive care and pediatric cardiac services, and that termination at this gestation would require clarification of post‑natal resuscitation and management because the fetus has gained viability and may have additional morbidities related to prematurity. Possible complications of termination, including hysterotomy if medical management fails, were also explained., Vide order dated 27 December 2021, this Delhi High Court posed certain queries to the Board, which were answered in a report dated 28 December 2021. The Board reiterated that Tetralogy of Fallot with absent pulmonary valve is a rare congenital heart disease with an incidence of approximately three per one lakh live births, involving a ventricular septal defect, poorly developed pulmonary valve, and enlarged pulmonary arteries. Approximately one‑third of affected infants may require respiratory support in the first year, but the condition does not affect immediate post‑natal survival. If the baby is born at term, respiratory support may be needed, and the child will require monthly follow‑up in a tertiary cardiac centre, with planned cardiac surgery around one year of age; the survival rate after surgery is about eighty percent. Follow‑up will also include growth and neuro‑developmental assessment, with cardiology and cardiac surgery visits two to three times per year initially and annually thereafter. The Board noted that there is no additional physical risk to the mother, and the impact on her mental health cannot be predicted at present. In the event of termination at the present gestation, the baby would require post‑natal resuscitation, intensive care, and may face premature brain and eye development issues and nutritional concerns., Counsel for the petitioner argued that, under Section 3(2)(b)(i) of the Medical Termination of Pregnancy Act, termination is permitted if the continuance of pregnancy involves a risk of grave injury to the mental health of the pregnant woman. This provision must be read in conjunction with Section 3(3), which allows consideration of the woman’s actual or reasonably foreseeable environment. The petitioner’s counsel urged a liberal and purposive interpretation of the statutory provisions, emphasizing that a strict literal approach would defeat the object and intent of the Act., Counsel for Respondent No. 3 contended that termination of pregnancy may be permitted only when there is a danger to the life of the pregnant woman or when the fetus suffers from a medical abnormality incompatible with life or preventing a normal healthy life. The counsel acknowledged that the fetus has a rare congenital heart disease requiring repeated corrective surgeries, but emphasized that with proper treatment there are more than eighty percent chances of success and the child may have average physical capacity and growth. The counsel did not dispute that the child’s survival and quality of life depend on clinical conditions, surgical repairs, quality of medical care, and the status of the heart and residual pulmonary valve leakage., The Medical Termination of Pregnancy Act, 1971, as amended by the Medical Termination of Pregnancy (Amendment) Act, 2021, provides that a registered medical practitioner shall not be guilty of any offence for terminating a pregnancy in accordance with the Act. Section 3(2) allows termination (a) when the pregnancy does not exceed twenty weeks; or (b) when the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks, provided that at least two registered medical practitioners, in good faith, form the opinion that (i) continuance of the pregnancy would involve a risk to the life of the woman or grave injury to her physical or mental health, or (ii) there is a substantial risk that the child would suffer a serious physical or mental abnormality. Explanation 1 presumes grave injury to mental health where pregnancy results from failure of a contraceptive device. Explanation 2 presumes grave injury to mental health where pregnancy is alleged to be caused by rape. Sub‑section (2A) empowers the State to prescribe norms for medical opinion at different gestational ages. Sub‑section (2B) excludes the twenty‑twenty‑four‑week limitation where termination is necessitated by substantial fetal abnormalities diagnosed by a Medical Board. Sub‑section (2C) requires each State or Union Territory to constitute a Medical Board consisting of a gynecologist, a pediatrician, a radiologist or sonologist, and such other members as may be notified., In the present case, the petitioner has completed twenty‑eight weeks of pregnancy, which exceeds the statutory maximum of twenty‑four weeks. Accordingly, the petitioner seeks termination on the ground of substantial fetal abnormality and the attendant risk of grave injury to her mental health. Under Section 3(2B), the twenty‑twenty‑four‑week limitation does not apply when termination is necessitated by substantial fetal abnormalities, and the Medical Board has classified the fetal condition as a major abnormality., The petitioner relied on several Supreme Court and High Court judgments, including Sarmishtha Chakrabortty v. Union of India (2018), Sonali Kiran Gaikwad v. Union of India (2017), Poonam Chandan Yadav v. Union of India (2017), Kalpana Singh v. GNCTD (2021), Priyanka Shukla v. Union of India (2019), Mahima Yadav v. Government (NCT of Delhi) (2021), and Punam Abhinav Shah v. State of Maharashtra (2020). The Bombay High Court, in Sidra Mehboob Shaikh v. State of Maharashtra & Anr. (2021), interpreted \grave injury to mental health\ liberally, holding that the pregnant woman's actual or reasonably foreseeable environment must be taken into account, including social and economic factors. The Court distinguished mental health from mental illness, emphasizing that mental health is a state of well‑being enabling an individual to cope with normal stresses of life. The Bombay High Court further held that the expression \grave injury to mental health\ in Section 3(2)(b)(i) must be given a purposive interpretation, and that the legislative liberalism cannot be defeated merely because the pregnancy exceeds the twenty‑week ceiling.
id_1069	1	If the expression \life\ in section 5(1) of the Medical Termination of Pregnancy Act is not to be confined to mere physical existence or survival, then permission will have to be granted under section 5(1) of the Act for medical termination of pregnancy which may have exceeded 20 weeks if the continuance of such pregnancy would involve grave injury to the mental health of the pregnant woman., The Bombay High Court in Sidra Mehboob (supra) also considered another crucial aspect, that is, reproductive rights of a pregnant woman. The Bombay High Court relied on a very significant observation of the Supreme Court of India in Suchita Srivastava (supra) that reproductive choice is an inseparable part of personal liberty, envisaged under Article 21 of the Constitution of India. Reliance was also placed on earlier judgments of the Division Bench of the Bombay High Court in High Court on its Own Motion v. State of Maharashtra, 2017 Cri LJ 218 and Shaikh Ayesha (supra) as well as on the judgment in the case of Siddhi Vishwanath Shelar v. State of Maharashtra, WP‑ASDB‑LD‑VC‑24 of 2020, decided on 02.06.2020, where the Bombay High Court has taken a clear view that freedom of a pregnant woman to make a choice of reproduction, which is an integral part of personal liberty, whether to continue with the pregnancy or otherwise, cannot be taken away., The Bombay High Court has taken note of the fact that the Legislature has widened the scope of termination of pregnancy by including injury to mental health of the pregnant woman and, therefore, provisions of Section 5 of the Medical Termination of Pregnancy Act would have to be interpreted to advance the cause of justice. The case of Siddhi Vishwanath (supra) is particularly relevant in the present case, as in the said case the Bombay High Court delved in detail into the scheme of the Act and held that the scheme places the interest of the mother on a higher pedestal than the interest of a prospective child. The Court held that this is based on the logic that the fetus cannot have independent extra‑uterine existence and the life of the mother, who independently exists, is entitled to greater consideration., In Suchita Srivastava v. State, (2009) 9 SCC 1, the Supreme Court of India expressed the view that the right of a woman to have reproductive choice is an inseparable part of her personal liberty as envisaged under Article 21 of the Constitution of India. She has a sacrosanct right to her bodily integrity., In High Court on its Own Motion v. State of Maharashtra, 2017 Cri LJ 218, a Division Bench of the Bombay High Court held that a woman irrespective of her marital status can be pregnant either by choice or it can be an unwanted pregnancy. Unwanted pregnancy would undoubtedly affect her mental health as there are social, financial and other aspects immediately attached to the pregnancy. The decision came on the backdrop of a jail visit by a judicial officer where she found an inmate seeking permission to terminate her pregnancy on the ground that it would be very difficult for her to maintain and take care of her five‑month‑old child if she gives birth to another child. The Division Bench held that a woman's decision to terminate a pregnancy is not frivolous; abortion is often the only way out of a very difficult situation for a woman. Forcing her to continue represents a violation of her bodily integrity and aggravates her mental trauma, which would be deleterious to her mental health., The Division Bench observed that pregnancy takes place within the body of a woman and has profound effects on her health, mental well‑being and life. How she wants to deal with such pregnancy is a decision she alone can make. The right to control the body, fertility and motherhood should be left to the woman alone. In so far as the provision of section 3(2)(b)(i) is concerned, the Division Bench held that the provision is an extension of the human right of a woman which needs to be protected. The right of exercise of reproductive choice, though restricted by the Act, also recognizes and protects her right to say no to the pregnancy if her mental or physical health is at stake., The later judgment of the Supreme Court of India in XYZ v. Union of India (supra) held that the principle of liberal or purposive interpretation must be adopted when interpreting sections 3(2) and 5 of the Act. On such interpretation, the Supreme Court of India has consistently permitted medical termination of pregnancies which had exceeded the ceiling of 20 weeks where continuance involved grave injury to the mental health of the pregnant woman or where there was a substantial risk that the child, if born, would suffer serious physical or mental abnormalities. The Court clarified that the expression \grave injury to her mental health\ has to be liberally construed, taking into account the pregnant woman's actual or reasonably foreseeable environment, especially for women from rural backgrounds. Exercising its extraordinary jurisdiction under Article 226 of the Constitution of India, the Bombay High Court can permit petitioners to undergo medical termination even when the pregnancy exceeds 20 weeks, provided the contingencies set out in clauses (i) and (ii) of section 3(2)(b) are satisfied., In Shaikh Ayesha Khatoon v. Union of India reported in (2018) 3 Bom CR 399, a Division Bench of the Bombay High Court took the view that the freedom of a pregnant woman to make a choice of reproduction, which is an integral part of personal liberty, cannot be taken away. Noting that the Legislature has widened the scope of termination of pregnancy by including injury to mental health of the pregnant woman, it was held that if continuance of pregnancy is harmful to the mental health of a pregnant woman, that is a good and legal ground to allow termination, provided all conditions incorporated in the legal provisions are met. Provisions of section 5 of the Medical Termination of Pregnancy Act would have to be interpreted in a manner that advances the cause of justice., In Siddhi Vishwanath Shelar v. State of Maharashtra decided on 02.06.2020, the petitioner approached the Bombay High Court seeking permission to undergo medical termination of pregnancy, contending that it would be extremely difficult for her to carry the pregnancy to term as an unwed mother with poor financial background, lack of mental support, and not being mentally ready to be a mother. While granting the prayer, the Bombay High Court held that compelling state interest, though a weighty consideration, cannot be stretched to an extreme extent when continuance of pregnancy beyond 20 weeks would involve grave injury to the mother's physical or mental health. The scheme of the Act places the interest of the mother on a higher pedestal than the interest of the prospective child, based on the logic that the fetus cannot have independent extra‑uterine existence and the mother’s life is entitled to greater consideration., The World Health Organization has defined reproductive rights as those rights which are based on the recognition of the basic right of all individuals and couples, particularly women, to decide freely and responsibly the number, spacing and timing of their children; to have the information and the means to do so; and includes the right to attain the highest standard of sexual and reproductive health. Reproductive rights also include the right of the woman to make a decision concerning reproduction free of discrimination, coercion and violence. Coercion and violence need not always be physical; they can be deduced from surrounding circumstances. Thus reproductive rights are legal rights associated with accompanying freedoms relating to reproduction and reproductive health. Women's reproductive rights may include the right to legal and safe abortion, the right to birth control, freedom from coerced sterilisation and contraception, the right to access good quality reproductive health care and the right and access to education in order to make free and informed reproductive choices. The core issue is the control a woman has over her own body and reproductive choice, a basic need and right of all women, especially those from poor or rural backgrounds., In a recent judgment of the Division Bench of the Bombay High Court in XYZ v. State of Maharashtra, 2021 SSC OnLine Bom 3353 decided on 06.10.2021, the Court allowed the petitioner to undergo medical termination of her pregnancy, finding that continuation could cause grave injury to her mental health., In the present case, the Board’s report dated 28.12.2021 indicates that the fetus suffers from a rare congenital heart disease – Tetralogy of Fallot with Absent Pulmonary Valve Syndrome – which includes a ventricular septal defect and a poorly developed pulmonary valve leading to obstruction and leakage. The child is also likely to have associated airway problems requiring respiratory support in the first year of life and would need repeated cardiac surgeries, exposing the child to intra‑ and post‑operative complications and adversely impacting quality of life. The Board opined that, even if surgical repair is successful, the child’s entire life would largely depend on clinical condition and quality of medical care, indicating a lack of compatibility with a healthy and normal life. The petitioner’s mental frame in taking the difficult decision to terminate is understandable., The petitioner is justified in contending that continuing the pregnancy, once it is known that the fetus suffers from a substantial congenital abnormality, would have a deleterious impact on her mental health. Purposively and liberally interpreting the provisions of Section 3(2)(b)(i) of the Medical Termination of Pregnancy Act, as amended, this Court finds merit in the petitioner’s contention that continuation would cause grave injury to her mental health. As repeatedly held in the judgments cited above, reproductive choice is a facet of reproductive rights and a dimension of personal liberty enshrined in Article 21 of the Constitution of India, and the petitioner cannot be deprived of the freedom to decide whether to continue the pregnancy., For the reasons recorded above, the writ petition is allowed. The petitioner is permitted to undergo medical termination of pregnancy at a medical facility of her choice. The Board has explained the possible complications of the procedure at this stage to the couple. Accordingly, it is for the petitioner to take the final decision to undergo the procedure, which would be at her own risk and consequences., The Bombay High Court appreciates the assistance rendered by the Board, which has provided the medical reports with commendable promptitude. It is clarified that the doctors who have given their opinions as part of the Board shall have immunity in the event of any litigation arising out of the instant petition., The writ petition is accordingly disposed of, with no order as to costs.
id_107	0	W.P. (Criminal) No. 139 of 2021 Devanand Oraon, aged about 48 years, Son of Dahru Oraon, Resident of Village Dandai Hehal, Ratu, Post Office and Police Station Ratu, District Ranchi, Jharkhand, Petitioner versus the State of Jharkhand; the Home Secretary, Government of Jharkhand, Project Building, Post Office and Police Station Dhurwa, District Ranchi, Jharkhand; the Director General of Police, Jharkhand, Police House, Dhurwa, Post Office and Police Station Dhurwa, District Ranchi, Jharkhand; the Superintendent of Police, Sahebganj, Post Office and Police Station Sahebganj, District Sahebganj, Jharkhand; the Officer-In-Charge, Sahebganj, Post Office and Police Station Sahebganj, District Sahebganj, Jharkhand; Pramod Kumar Mishra, Son of Not known, Sub Divisional Officer, Sahebganj, Head of Special Investigating Team, Post Office and Police Station Sahebganj, District Sahebganj, Jharkhand; Priya Dubey, Daughter of Not known, Inspector General, Santhal Pargana, Dumka, Post Office and Police Station Dumka, District Dumka, Jharkhand; the Central Bureau of Investigation, through its Director, Plot No. 5/B, 6th Floor, CGO Complex, Lodhi Road, Jawaharlal Nehru Stadium Marg, Post Office and Police Station Lodhi Road, New Delhi, Delhi-110003; Senior Superintendent of Police, Ranchi, Police House, Post Office, General Post Office, Police Station Kotwali, District Ranchi as Respondents., The petition was presented for the petitioner by Mr. R.S. Mazumdar, Senior Advocate, Mr. Rajeev Kumar, Advocate, and Mr. Kaushik Sarkhel, Government Advocate‑V. For the respondents, counsel included Mr. Kapil Sibal, Senior Advocate (in Interlocutory Application No. 4188 of 2021), Mr. Arunabh Choudhary, Advocate, and Mr. Rajiv Sinha, Additional Solicitor General of India, appearing for the Central Bureau of Investigation., This criminal writ petition was heard through video conferencing in view of the guidelines of the High Court of Jharkhand, taking into account the situation arising due to the COVID‑19 pandemic. No party complained about any technical difficulty, and with their consent the matter was heard on its merits., Interlocutory Application No. 2449 of 2021 was filed for intervention. The applicant, a social worker, claimed knowledge of the case and sought to intervene. The State opposed the application, alleging that it was politically motivated and that the applicant is a member of an opposition political party in Jharkhand. The High Court of Jharkhand was not inclined to entertain the intervention and dismissed Interlocutory Application No. 2449 of 2021., The hearing of the case resumed after a cessation that had been earlier sent to the Hon’ble Chief Justice on administrative grounds and the matter was re‑assigned to the High Court of Jharkhand. All counsels concluded their arguments, and with only a few minutes remaining, the matter was adjourned to the next day., The case has a chequered history. On 17 June 2021 the matter was taken up and the State was directed to file a counter‑affidavit and to provide security to the parents of the late Rupa Tirkey. The matter was adjourned to 29 July 2021., On 29 July 2021, time was again sought on behalf of the State, which was allowed. The Director General of Police, Jharkhand, Ranchi, and the Superintendent of Police, Sahebganj, were directed to transmit the entire records of Unnatural Death Case No. 09/2021, registered on 3 May 2021, in a sealed cover. These facts were reflected in the order dated 13 August 2021., The matter was again placed before the High Court of Jharkhand by order of the Hon’ble Chief Justice and listed on 26 August 2021. On that day an Interlocutory Application numbered 4188 of 2021 was filed under Article 215 of the Constitution of India read with Sections 11 and 15 of the Contempt of Courts Act, 1971. When the Court asked the learned counsel for the State, namely Mr. P.A.S. Pati, Government Advocate‑II and Mr. Kaushik Sarkhel, Government Advocate‑V, whether any affidavit for apology had been filed, the reply was that the notice had not yet been issued and the matter was adjourned to 31 August 2021., On 31 August 2021, although the notice had not been issued, Interlocutory Application No. 4188 of 2021 was opposed by Mr. Rajiv Ranjan, Advocate General, and Mr. Sachin Kumar, Additional Advocate General‑II, with Mr. Kapil Sibal, Senior Advocate, and Mr. Arunabh Choudhary. The Court indicated that the application would be considered later in the judgment., The criminal writ petition under Article 226 of the Constitution of India was filed by the father of the late Rupa Tirkey, who was posted as Sub‑Inspector in Mahila Thana, District Sahebganj. The petitioner seeks a direction to hand over the entire investigation to the Central Bureau of Investigation on the ground that police officers at various levels are allegedly harassing the matter. The petitioner also requests an immediate stop to the investigation of Pankaj Mishra, described as the kingpin behind the murder of the late Rupa Tirkey, who allegedly acted because she did not obey his directives in managing pending cases., The petition states that on the night of 2–3 May 2021 the petitioner was informed that his daughter had committed suicide by hanging in the quarter. A complaint was lodged on 3 May 2021 on the basis of the statement of Sub‑Inspector Satish Kumar Soni and Unnatural Death Case No. 09/2021 was registered. On 4 May 2021 the mother of the deceased lodged a complaint before the Superintendent of Police, Sahebganj, alleging that her daughter had been murdered and not a suicide, disclosing certain reasons. By filing an Interlocutory Application and a supplementary affidavit, the petitioner alleged that the conduct of the Sahebganj police is suspect and that the investigation should be handed over to the Central Bureau of Investigation for a fair inquiry., Senior Counsel Mr. R.S. Mazumdar drew the Court’s attention to Annexure‑1 of the writ petition, showing that on 3 May 2021, based on the written statement of Satish Kumar Soni, the case of suicide was registered as Unnatural Death Case No. 09/2021. He noted that from the first date, the investigating officer concluded that Rupa Tirkey had committed suicide. Referring to Annexure‑2, the mother’s complaint, he highlighted allegations of torture and murder against three persons, yet no First Information Report had been registered against them. He pointed out that on 9 May 2021 a Borio Police Station case No. 127/2021 was lodged under Section 306 of the Indian Penal Code, questioning why two cases were registered for the same incident. He observed that the Unnatural Death Case was initially investigated by Investigating Officer Snehlata Surin, who was instructed on 5 May 2021 to hand over the investigation to Inspector Rajesh Kumar. The counter‑affidavit of the State indicated that the investigating officer was shown as S.B. Choudhary. He argued that the Unnatural Death Case should be investigated under Section 174 of the Criminal Procedure Code, while the Borio case should be investigated under Sections 156 and 157 of the Criminal Procedure Code. He further noted that the post‑mortem report recorded external injuries, and that the investigating officer had questioned the team that conducted the post‑mortem, but the doctors refused to answer, stating they would be answerable to the Court during cross‑examination. He cited paragraph 10 of the counter‑affidavit, which recorded that the daughter had informed her mother about torture, yet the investigating officer proceeded with the Unnatural Death investigation without lodging any First Information Report. Paragraph 12 of the counter‑affidavit showed that on 5 May 2021 the Sub Divisional Police Officer, Sahebganj, directed Investigating Officer Snehlata Surin to hand over charge of the case to Inspector Rajesh Kumar, Rajmahal. The reason for changing the investigating officer was not disclosed. Paragraph 22 of the counter‑affidavit indicated that on 9 May 2021 Borio Police Station case No. 127/2021 was registered under Section 306 IPC against Shiv Kumar Kanogiya and investigation was handed over to S.B. Choudhary. Paragraph 32 revealed that without lodging any First Information Report against Pankaj Mishra, the investigating officer had taken his statement. Annexures E, E/1 and E/2 contained statements under Section 160 of the Criminal Procedure Code of the petitioner (father), the mother and the sister, all asserting that the late Rupa Tirkey was murdered, that she was found semi‑naked at the time of recovery, and that something untoward had been done to her, not a suicide. Annexure‑H showed that a bottle seized from the kitchen was reported as non‑poisonous, while a bottle found on the bed was not seized or sent for investigation. A supplementary affidavit dated 5 August 2021 annexed colour photographs of the place of occurrence, which, according to the counsel, clearly indicated that the deceased had been murdered because while hanging, her knees were touching the bed. He also referred to paragraph 39 read with Annexure‑J, which indicated that the petitioner had been made an accused, and argued that the investigation was biased in favour of a love relationship between the deceased and Shiv Kumar Kanogiya, and that a close associate of the Chief Minister, who is a spokesperson of the ruling party, was involved, leading to a skewed investigation. He further mentioned Interlocutory Application No. 2588 of 2021 filed to set aside the notification appointing a One‑Man Commission by the State of Jharkhand., To support the argument on Section 174 of the Criminal Procedure Code, the petitioner relied upon the Supreme Court judgment in Manoj K. Sharma v. State of Chhattisgarh, (2016) 9 SCC 1, particularly paragraphs 19, 20 and 22, which explain the limited scope of Section 174 inquiries, the distinction between inquest proceedings and criminal investigation, and the requirement that an FIR be registered under Section 154 when a cognizable offence is disclosed., The petitioner also relied upon the Supreme Court judgment in Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1, especially paragraphs 119 and 120, which state that registration of a First Information Report is mandatory when the information discloses a cognizable offence, and that preliminary inquiry may be conducted only to determine whether such an offence exists., The petitioner further cited the Supreme Court judgment in Disha v. State of Gujarat & Others, (2011) 13 SCC 337, paragraph 21, which holds that the Court may transfer investigation to the Central Bureau of Investigation or another special agency when the accused is powerful, influential, or when the investigation appears biased or not proceeding in the proper direction., The petitioner relied on the Supreme Court judgment in Dharam Pal v. State of Haryana, (2016) 4 SCC 160, paragraphs 24 and 25, which affirm that constitutional courts may direct a fresh or de novo investigation by an independent agency to ensure a fair investigation and a fair trial., The petitioner also referred to the Supreme Court judgment in State of Punjab v. Davinder Pal Singh Bhullar & Others, (2011) 28 SCC 75, which states that a constitutional court may direct the Central Bureau of Investigation to investigate when the allegations, if proved, would show that the accused could influence the investigation, provided the accused is impleaded and given a reasonable opportunity to be heard., The petitioner further relied upon the Supreme Court judgment in Manohar Lal Sharma v. Principal Secretary & Others, (2014) 2 SCC, particularly paragraphs 24, 26, 33, 38 and 61, which explain that while police have the primary duty to investigate cognizable offences, the courts may intervene in exceptional cases where the investigation is not bona fide, is tainted with animosity, or violates statutory provisions, to protect the personal liberty and property of citizens., The learned senior counsel concluded by emphasizing that one of the core responsibilities of the police is the protection of life, liberty and property of citizens, and that any failure to conduct a fair and impartial investigation undermines the administration of justice.
id_107	1	The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to book. A proper investigation into crime is one of the essentials of the criminal justice system and an integral facet of rule of law. The investigation by the police under the Code has to be fair, impartial and uninfluenced by external influences. Where investigation into crime is handled by the Central Bureau of Investigation under the Delhi Special Police Establishment Act, the same principles apply and the Central Bureau of Investigation as an investigating agency is supposed to discharge its responsibility with competence, promptness, fairness and without external influences., The monitoring of investigations and inquiries by the Supreme Court of India is intended to ensure that proper progress takes place without directing or channeling the mode or manner of investigation. The whole idea is to retain public confidence in the impartial inquiry into the alleged crime; that inquiry into every accusation is made on a reasonable basis irrespective of the position and status of that person and the inquiry is taken to the logical conclusion in accordance with law. The monitoring by the Supreme Court of India aims to lend credence to the inquiry being conducted by the Central Bureau of Investigation as premier investigating agency and to eliminate any impression of bias, lack of fairness and objectivity therein., At the outset, one must appreciate that a constitutional court monitors an investigation by the State police or the Central Bureau of Investigation only and only in public interest. That is the leitmotif of a constitutional court‑monitored investigation. No constitutional court desires to monitor an inquiry or an investigation nor does it encourage the monitoring of any investigation by a police authority, be it the State police or the Central Bureau of Investigation. Public interest is the sole consideration and a constitutional court monitors an investigation only when circumstances compel it to do so, such as a lack of enthusiasm by the investigating officer or agency due to pressures, a lack of enthusiasm by the Government concerned in assisting the investigating authority to arrive at the truth, or a lack of interest by the investigating authority or the Government concerned to take the investigation to its logical conclusion, or in extreme cases, to hinder the investigation., Learned Senior Counsel for the petitioner submitted that when the State Government has appointed a One Man Commission for enquiry in criminal case W.P. (Cr.) No. 139 of 2021, commissions of enquiry are more suited for enquiring into matters of public importance where the purpose is to find out the truth so as to learn lessons for the future and devise policies or frame legislation to avoid recurrence of lapses. Such commissions do not suitably serve the object of punishing the guilty. In case of an enquiry commission, the local police officials headed by the same officials will cooperate with the Enquiry Commission and they have to submit the evidence and documents as required by the Enquiry Commission which may cause manipulation of evidence on the part of the persons involved in the offence. Moreover, it is not prescribed in the Criminal Procedure Code. To buttress this argument, he relied upon the judgment rendered by the Supreme Court of India in the case of Sanjiv Kumar v. State of Haryana & Others, reported in (2005) 5 Supreme Court Cases 517., Paragraphs 13, 14 and 15 of the said judgment are quoted herein below: We have given our thoughtful consideration to the respondents’ proposal for entrusting the whole matter to a Commission of Inquiry, assisted by a special investigating task force. The flaw with Commissions of Inquiry, as revealed by experience, is that they do not have enough teeth and for their functioning they have to depend on the State’s assistance. Commissions of Inquiry remain pending for unreasonable lengths of time. The reports submitted do not bind the State and in spite of transparency and public hearings which the Commissions often hold, at times with fanfare, the reports hardly serve any purpose. By the time the reports are submitted the public memory has already faded and people are no longer bothered about the results. It is in the discretion of the State to take or not to take any action on the report submitted by the Commission of Inquiry and the experience is that the follow‑up action depends more on political considerations rather than for public good. Commissions of Inquiry are more suited for inquiring into matters of public importance where the purpose is to find out the truth so as to learn lessons for the future and devise policies or frame legislation to avoid recurrence of lapses. Such Commissions do not suitably serve the object of punishing the guilty. In the peculiar facts and circumstances of the case, looking at the nature of the allegations made and the people who are alleged to be involved, we are of the opinion that the better option of the two is to entrust the matter to investigation by the Central Bureau of Investigation. We are well aware, as was also told to us during the course of hearing, that the hands of the Central Bureau of Investigation are full and the present one would be an additional load on their head to carry. Yet, the fact remains that the Central Bureau of Investigation as a central investigating agency enjoys independence and confidence of the people. It can fix its priorities and programme the progress of investigation suitably so as to see that any inevitable delay does not prejudice the investigation of the present case. They can act fast for the purpose of collecting vital oral and documentary evidence which runs the risk of being obliterated by lapse of time. The rest can afford to wait for a while. We hope that the investigation would be entrusted by the Director of the Central Bureau of Investigation to an officer of unquestioned independence and then monitored so as to reach a successful conclusion; the truth is discovered and the guilty dragged into the net of law. The people of this country have high hopes from the Central Bureau of Investigation, the prime investigating agency which works and gives results. We hope and trust the sentinels in the Central Bureau of Investigation would justify the confidence of the people and this Supreme Court of India reposed in them., By way of referring to the supplementary counter affidavit filed by the respondent State dated 12 August 2021, learned Senior Counsel for the petitioner further submitted that it has been questioned that the affidavit has been sworn by the parivakar and not by the petitioner, which is not in accordance with the High Court of Jharkhand Rules and the same is not maintainable at this belated stage when the parties have exchanged the affidavits and in a criminal case, parivakar are allowed to file the affidavit. He further submitted that only on the basis of technicalities, the entire case cannot be dismissed. He relied upon the judgment rendered by the Supreme Court of India in the case of Union of India & Others v. R. Reddappa & another, reported in (1993) 4 Supreme Court Cases 269., Paragraph 5 of the said judgment is quoted herein below: More than a decade has gone by since these employees were dismissed for participating in a strike called by the Union recognised by the Railways. But the end has not reached. Barring appellate and revisional authority whose discretion too was attempted to be curtailed by issuing circular, no court or tribunal has found the orders to be well founded on merits. The jurisdiction exercised by the High Court of Jharkhand under Article 226 or the tribunal is not as wide as it is in appeal or revision but once the court is satisfied of injustice or arbitrariness then the restriction, self‑imposed or statutory, stands removed and no rule or technicality on exercise of power can stand in the way of rendering justice., We are not impressed by the vehement submission of the learned Additional Solicitor General that the Central Administrative Tribunal, Hyderabad exceeded its jurisdiction in recording the finding that there was no material in support of the finding that it was not reasonably practicable to hold an enquiry. The jurisdiction to exercise the power under Rule 14(ii) was dependent on existence of this primary fact. If there was no material on which any reasonable person could have come to the conclusion as envisaged in the rule then the action was vitiated due to erroneous assumption of jurisdictional fact; therefore the Tribunal was well within its jurisdiction to set aside the orders on this ground. An illegal order passed by the disciplinary authority does not assume the character of legality only because it has been affirmed in appeal or revision unless the higher authority is found to have applied its mind to the basic infirmities in the order. Mere reiteration or repetition instead of adding strength to the order renders it weaker and more vulnerable as even the higher authority constituted under the Act or the rules for proper appraisal shall be deemed to have failed in discharge of its statutory obligation., On these backgrounds, learned Senior Counsel for the petitioner submitted that it is a fit case for handing over the matter to the Central Bureau of Investigation for proper investigation., On behalf of the State, Mr. Rajiv Ranjan, learned Advocate General addressed the Supreme Court of India till 13 August 2021. Thereafter, this matter was argued on behalf of the respondent State by Mr. P.A.S. Pati, learned Government Advocate‑II and Mr. Kaushik Sarkhel, learned Government Advocate‑V. Mr. Rajiv Ranjan, learned Advocate General had earlier submitted that in terms of the High Court of Jharkhand Rules, this petition is not maintainable as the petitioner has not sworn the affidavit, which is against Rule 48 of the High Court of Jharkhand Rules, 2001. He further submitted that Late Rupa Tirkey was posted in Sahebganj and she was found hanging in the quarter. There is no question of murder. He referred to paragraphs 4, 8, 9 and 10 of the counter affidavit filed on behalf of the respondent State and submitted that the case was registered on the report of one Satish Kumar Soni on 03 May 2021 as a Sanha. He also submitted that videography in presence of one relative of Late Rupa Tirkey was done and thereafter the body was drawn from the loo. He further submitted that she has committed suicide due to personal reason. By referring to paragraph 8 of the counter affidavit, he submitted that an inquest report was prepared on 04 May 2021 in presence of one Sanjay Kumar, Executive Magistrate, Sahebganj and seizure list was also prepared, which are mentioned in paragraphs 17 and 18 of the case diary. By referring to paragraph 9 of the counter affidavit, he submitted that the Investigating Officer of the case submitted a report to obtain Call Detail Record of the mobile of Late Rupa Tirkey, Shiv Kumar Kanogiya and the petitioner. He further submitted that Late Rupa Tirkey and Shiv Kumar Kanogiya were in love and from SMS and WhatsApp messages, it has been disclosed that she has committed suicide. To buttress this argument, Mr. Rajiv Ranjan, learned Advocate General drew attention of the Supreme Court of India to paragraphs 1, 3, 16, 17, 39, 63, 64, 67 and 72 of the case diary of U.D. Case No. 09/2021 and submitted that SMS quoted therein show that suicide was committed due to personal reason. On the point of viscera, he submitted that the doctor concluded that there was no requirement of preserving viscera and that is why viscera was not preserved. According to him, Borio Police Station Case No. 127/2021 was registered on 09 May 2021 after the statement of Shiv Kumar Kanogiya. He further drew attention of the Supreme Court of India to paragraphs 4, 9, 12, 39, 76, 78 and 86 of the case diary of Borio Police Station Case No. 127/2021 and submitted that in those paragraphs the conversation between Late Rupa Tirkey, Shiv Kumar Kanogiya and the father of Late Rupa Tirkey (petitioner) have been recorded. On these premises, he submitted that there is no violation of the Criminal Procedure Code and investigation has been done in the right direction. He left the argument of this case with effect from 26 August 2021, when this matter was again taken up after re‑assignment by the Hon’ble Chief Justice., Mr. P.A.S. Pati, learned Government Advocate‑II and Mr. Kaushik Sarkhel, learned Government Advocate‑V on 31 August 2021 submitted that the learned Advocate General has already completed his arguments and there is no requirement of further argument. However, they relied upon the judgment rendered by the Supreme Court of India in the case of Kartar Singh v. State of Punjab, reported in (1994) 3 Supreme Court Cases 569 in the scope of jurisdiction under Article 226 of the Constitution of India., Paragraph 357 of the said judgment is quoted herein below: In a recent judgment, the Supreme Court of India in State of Maharashtra v. Abdul Hamid Haji Mohammed after examining a question regarding the justification of the High Court to exercise its jurisdiction under Article 226 for quashing the prosecution for an offence punishable under the TADA Act observed thus: It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of the TADA Act is such that ex facie it cannot constitute an offence punishable under the TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of the TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under the TADA Act. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of the respondent Abdul Hamid in the Designated Court for offences punishable under the TADA Act. After observing thus, the Supreme Court of India finally concluded: The view taken by the High Court on this aspect is contrary to law apart from being unjustified and impermissible in exercise of its jurisdiction under Article 226 of the Constitution., They further relied upon the judgment rendered by the Supreme Court of India in the case of Hari Singh v. State of Uttar Pradesh, reported in (2006) 5 Supreme Court Cases 733 and by way of referring paragraphs 1 and 3, they submitted that this petition is not maintainable., Paragraphs 1 and 3 of the said judgment are quoted herein below: This petition filed under Article 32 of the Constitution of India is for a direction to conduct enquiry by the Central Bureau of Investigation into the murder of one Yashvir Singh, son of the petitioner. The allegation is that though the First Information Report has been lodged with the police to the effect that Yashvir Singh has been murdered and has not committed suicide, because of the pressure of some influential people, the police has not taken any positive steps, and on the contrary the petitioner is being harassed and threatened by certain persons. As culled out from the petition, Yashvir Singh was posted as Additional Commissioner of Gorakhpur, Uttar Pradesh and was found dead in his official residence on 19 January 2006. The petitioner made a grievance that the police officials in collusion with some relatives, more particularly the in‑laws of the deceased Yashvir Singh, are projecting it as a case of suicide. It is stated that the petitioner has made several representations to various authorities, but without any avail. It is pointed out that the Superintendent of Police had directed the officer in charge of the police station concerned to enquire into the matter in view of the allegations made by the petitioner. But it is the grievance of the petitioner that no action has been taken purportedly on the basis of the pressure exercised by some influential people who were inimical to the deceased though they are related to him. In essence the grievance is that no action is being taken on the First Information Report lodged by the petitioner. Section 156 deals with police officers’ power to investigate cognizable cases and reads as follows: (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned., They further relied upon the judgment rendered in the case of Vinay Tyagi v. Irshad Ali, reported in (2013) 5 Supreme Court Cases 762., Paragraphs 23, 43 and 44 of the said judgment are quoted herein below: However, in the case of a fresh investigation, reinvestigation or de novo investigation there has to be a definite order of the court. The order of the court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the investigating agency nor the Magistrate has any power to order or conduct fresh investigation. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of fresh or de novo investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of the rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a fresh investigation. The superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct further investigation, fresh or de novo and even reinvestigation. Fresh, de novo and reinvestigation are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection. Wherever a charge‑sheet has been submitted to the court, even the Supreme Court of India ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. It can safely be stated and concluded that in an appropriate case, when the Supreme Court of India feels that the investigation by the police authorities is not in the proper direction and that in order to do complete justice and where the facts of the case demand, it is always open to the Supreme Court of India to hand over the investigation to a specialised agency. These principles have been reiterated with approval in the judgments of the Supreme Court of India in Disha v. State of Gujarat, Vineet Narain v. Union of India, Union of India v. Sushil Kumar Modi and Rubabbuddin Sheikh v. State of Gujarat., By way of referring the above judgment, they submitted that this is not a case to hand over the investigation to a specialised agency. They also relied upon the judgment rendered in the case of Gudalur M.J. Cherian v. Union of India, reported in (1992) 1 Supreme Court Cases 397., Paragraph 9 of the said judgment is quoted herein below: We are, however, not inclined to accept the prayer of the petitioners to transfer the criminal case from the file of IX Additional Sessions Judge, Moradabad., On the point of transferring the investigation to any agency, they further relied upon the judgment rendered in the case of ABCD v. Union of India, reported in (2020) 2 Supreme Court Cases 52., Paragraphs 10, 11 and 12 of the said judgment are quoted herein below: The investigation into the crime registered pursuant to First Information Report No. 58 of 2018 lodged by the petitioner was conducted by a Special Investigation Team headed by Assistant Commissioner of Police Ms Shweta Tiwari Singh and a charge‑sheet has been filed. The apprehension that was expressed at some stage that the mobile phones belonging to Respondent 7 were not being taken in custody was dealt with by the Supreme Court of India and it was ensured that said mobiles would be in the custody of the investigating agency. The data from those mobiles was also sought to be recovered and it must be stated that Respondent 7 did extend cooperation in ensuring that the data could be retrieved. However, the assertion on behalf of the petitioner is that complete data has not been retrieved. Both the mobile phones were also sent for forensic analysis. It is suggested by the petitioner that certain pictures may have been taken by Respondent 7, which data is not presently available. However, what has been extracted from iCloud is fully available with the investigating agency. The data, in any case, would at best point that at various stages there were exchanges and conversation between the petitioner and Respondent 7 but what needs to be gone into at the appropriate stage is the basic submission that Respondent 7 had taken undue advantage of the petitioner on the fateful night. The contention that the mobile phone of the investigating officer was damaged may not be material as details of any conversation between the petitioner and the investigating officer may also be proved through the mobile phone of the petitioner herself. There is thus nothing substantial which could either show that the investigation was not well directed or had failed to look into a particular direction. In our considered view, nothing further is required to be done. At this stage, it may be stated that if any video or audio recordings are still being retained by the petitioner, they may be handed over to the Special Investigation Team within two days from today. It is left to the Special Investigation Team to consider whether that part needs to be dealt with in the supplementary charge‑sheet which, as indicated above, is contemplated to be filed. As regards the crime registered pursuant to the First Information Report lodged by the mother of Respondent 7, protection has been afforded to the petitioner and her family members and the application under Section 438 of the Code has also been dealt with. An application filed by the petitioner under Section 482 of the Code is presently pending with the High Court. It is, thus, clear that the petitioner has been invoking the processes of the court and adequate protection is being afforded to the petitioner and her family members. We, therefore, do not see any reason why the matter presently pending pursuant to the First Information Report lodged by the mother of Respondent 7 be transferred and investigation be entrusted to any other agency. In the aforesaid circumstances we do not see any reason why investigation into both the aforesaid First Information Reports, at this stage, be entrusted to any Central Investigating Agency. All that we can say at this juncture is that the charge‑sheet filed in the crime registered pursuant to the First Information Report lodged by the petitioner shall be considered by the court concerned on its own merits and in accordance with law., They further relied upon the judgment rendered in the case of Secretary, Minor Irrigation & Rural Engineering Services, Uttar Pradesh v. Sahngoo Ram Arya, reported in (2002) 5 Supreme Court Cases 521., Paragraphs 5, 6 and 7 of the said judgment are quoted herein below: While none can dispute the power of the High Court under Article 226 to direct an inquiry by the Central Bureau of Investigation, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court, on consideration of such pleadings, to come to the conclusion that the material before it is sufficient to direct such an inquiry by the Central Bureau of Investigation. This is a requirement which is clearly deducible from the judgment of the Supreme Court of India in the case of Common Cause. This Court in the said judgment at paragraph 174 of the Report has held thus: The other direction, namely, the direction to the Central Bureau of Investigation to investigate any other offence is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person’s involvement is prima facie established, but a direction to the Central Bureau of Investigation to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of life and liberty guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of the Supreme Court of India in which the concept of life has been explained in a manner which has infused life into the letters of Article 21. The right to life under Article 21 includes the right of a person to live without being hounded by the police or the Central Bureau of Investigation to find out whether he has committed any offence or is living as a law‑abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the Central Bureau of Investigation against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the Central Bureau of Investigation or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of ifs and buts and thought it appropriate that the inquiry should be made by the Central Bureau of Investigation. With respect, we think that this is not what is required by the law as laid down by the Supreme Court of India in the case of Common Cause. At p. 8 of the impugned judgment, it is stated: It is also alleged that the petitioner is being harassed owing to the reason that he was not amenable to the illegal demands made by the Minister concerned. The High Court further observed: We however, forbear from excoriating the Minister on the basis of what has been said in the said news magazine at this stage. Proceeding further, the Court observed: If the allegations in the writ petitions are correct, the rights of the respondents must be vindicated and the party at whose instance such orders have been issued in bad faith, his continuance in office is not in public interest. At p. 9 of the judgment, the learned Judges observed: If the allegations made in these and various other writ petitions are found to have any ring of truth, no sane person can claim that the affairs of the State are being run in accord with the Constitution. From the above, we see that the High Court has merely quoted certain allegations made against the Minister. It has not taken into consideration the reply given by the Minister.
id_107	2	While directing an inquiry by the Central Bureau of Investigation, the Jharkhand High Court, as stated in the judgment of the Supreme Court of India in the case of Common Cause, must record a prima facie finding as to the truth of such allegations with reference to the reply filed. In the instant case, we have noticed that the Jharkhand High Court has merely proceeded on the basis of the averments made in the petitions without taking into consideration the reply filed and without expressing its prima facie opinion in regard to these allegations. Because this has not been done, we find it necessary that the judgment impugned should be set aside and the matters be remanded to the Jharkhand High Court to consider the pleadings of the parties and decide whether the material on record is sufficient to direct the inquiry by the Central Bureau of Investigation. While doing so, it will take into consideration not only the allegations made in the writ petitions but also the reply given by the Minister. After such an exercise, if the Supreme Court of India still thinks that the allegations require a further investigation by the Central Bureau of Investigation then it may do so after recording a prima facie finding which, of course, will be for the limited purpose of directing an inquiry., By way of referring to the above judgment, they submitted that the investigation will be referred to any particular agency only when the Jharkhand High Court comes to the conclusion that there is a prima facie case of transferring the case., They also relied upon the judgment rendered in the case of Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. State of Jharkhand, reported in (2019) 6 Supreme Court Cases 777., Paragraphs 12 to 20 of the said judgment are quoted herein below: The question as to whether the Jharkhand High Court could direct the Central Bureau of Investigation to take over investigation in the facts of the present case needs to be examined. The Constitution Bench in its judgment State of West Bengal v. Committee for Protection of Democratic Rights has examined the question as to the rights of the Central Bureau of Investigation to investigate a criminal offence in a State without its consent. This Court examined Schedule VII List II Entry 2 of the Constitution. It was held that the legislative power of the Union to provide for the regular police force of one State to exercise power and jurisdiction in any area outside the State can only be exercised with the consent of the Government of that particular State in which such area is situated. The Court held that though the Court had wide powers conferred by Articles 32 and 226 of the Constitution, it must bear in mind certain self‑imposed limitations on the exercise of these constitutional powers. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigation or where the incident may have national or international ramifications or where such an order is necessary for doing complete justice and enforcing fundamental rights., The relevant extract from the judgment reads as follows: Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the courts must bear in mind certain self‑imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to the Central Bureau of Investigation to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether such power should be exercised, time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the Central Bureau of Investigation would be flooded with a large number of cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations., The Court approved an earlier two‑Judge Bench judgment Minor Irrigation & Rural Engineering Services v. Sahngoo Ram Arya wherein it was held that the Jharkhand High Court under Article 226 of the Constitution can direct an inquiry to be conducted by the Central Bureau of Investigation but such power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is need for such inquiry. It was held that it is not sufficient to have such material in the pleadings. The Court also held that the right to live under Article 21 includes the right of a person to live without being hounded by the police or the Central Bureau of Investigation to find out whether he has committed any offence or is living as a law‑abiding citizen., While none can dispute the power of the Jharkhand High Court under Article 226 to direct an inquiry by the Central Bureau of Investigation, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the Jharkhand High Court, on consideration of such pleadings, to come to the conclusion that the material before it is sufficient to direct such an inquiry by the Central Bureau of Investigation. This is a requirement which is clearly deducible from the judgment of the Supreme Court of India in Common Cause. The Supreme Court of India in the said judgment at paragraph 174 of the Report has held that a direction to the Central Bureau of Investigation to investigate any other offence is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to the Central Bureau of Investigation to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of life and liberty guaranteed to a person under Article 21 of the Constitution., It is seen from the above decision of the Supreme Court of India that the right to life under Article 21 includes the right of a person to live without being hounded by the police or the Central Bureau of Investigation to find out whether he has committed any offence or is living as a law‑abiding citizen. Therefore, it is clear that a decision to direct an inquiry by the Central Bureau of Investigation against a person can only be done if the Jharkhand High Court, after considering the material on record, comes to a conclusion that such material discloses a prima facie case calling for an investigation by the Central Bureau of Investigation or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes such allegations. In the instant case, we see that the Jharkhand High Court, without coming to a definite conclusion that there is a prima facie case established to direct an inquiry, has proceeded on the basis of ifs and buts and thought it appropriate that the inquiry should be made by the Central Bureau of Investigation. With respect, we think that this is not what is required by law as laid down by the Supreme Court of India in Common Cause., The said findings were approved specifically by the Constitution Bench in State of West Bengal holding as follows: In Minor Irrigation & Rural Engineering Services v. Sahngoo Ram Arya this Court had said that an order directing an enquiry by the Central Bureau of Investigation should be passed only when the Jharkhand High Court, after considering the material on record, comes to a conclusion that such material discloses a prima facie case calling for an investigation by the Central Bureau of Investigation or any other similar agency. We respectfully concur with these observations., A three‑Judge Bench judgment Sujatha Ravi Kiran v. State of Kerala held that the extraordinary power of the Constitutional Courts in directing the Central Bureau of Investigation to conduct investigation in a case must be exercised rarely in exceptional circumstances, especially when there is lack of confidence in the investigating agency or in the national interest. The Supreme Court of India held that direction for investigation by the Central Bureau of Investigation was declined by the Supreme Court of India in K. Saravanan Karuppasamy v. State of Tamil Nadu and Sudipta Lenka v. State of Odisha. Considering the facts and circumstances of the case in hand, in the light of the above principles, we are of the view that the case does not entail a direction for transferring the investigation from the State Police or special team of State Police officers to the Central Bureau of Investigation. The facts and circumstances in which the offence is alleged to have been committed can be better investigated by the State Police. However, having regard to the nature of allegations levelled by the petitioner, we deem it appropriate to direct the State of Kerala to constitute a special team of police officers headed by an officer not below the rank of Deputy Inspector General of Police to investigate the matter., In another three‑Judge Bench judgment K.V. Rajendran v. Central Bureau of Investigation – Crime Investigation Department, it was held that the Court could exercise its constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency only in rare and exceptional circumstances. The Court gave instances such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and to instil confidence in the investigation., In another two‑Judge Bench judgment Bimal Gurung v. Union of India, this Court held that the power of transferring such investigation must be in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties and to instil confidence in the public mind. It was held that the law is well settled that power of transferring investigation to another investigating agency must be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties, to instil confidence in the public mind, or where investigation by the State Police lacks credibility., In an earlier two‑Judge Bench judgment T.C. Thangaraj v. V. Engammal, this Court found that merely because a complaint was against a police officer, the investigations should not be entrusted to the Central Bureau of Investigation. The Court noted that a decision of a two‑Judge Bench in Ramesh Kumari v. State (National Capital Territory of Delhi) directing the Central Bureau of Investigation to register a case because the complaint was against a police officer must now be read in the light of the principles laid down by the Constitution Bench in State of West Bengal v. Committee for Protection of Democratic Rights. The Constitution Bench considered at length the power of the Jharkhand High Court to direct investigation by the Central Bureau of Investigation into a cognizable offence alleged to have been committed within the territorial jurisdiction of a State and, while taking the view that the Jharkhand High Court has wide powers under Article 226 of the Constitution, cautioned that the courts must bear in mind certain self‑imposed limitations., In the impugned order, the Jharkhand High Court has not exercised its constitutional powers under Article 226 of the Constitution and directed the Central Bureau of Investigation to investigate the complaint with a view to protect the complainant’s personal liberty under Article 21 of the Constitution or to enforce her fundamental rights guaranteed by Part III of the Constitution. The Jharkhand High Court exercised its power under Section 482 of the Code of Criminal Procedure on a grievance made by the complainant that her complaint that she was cheated in a loan transaction of Rs 3 lakh by the three accused persons was not being investigated properly because one of the accused persons is an Inspector of Police. In our considered view, this was not one of those exceptional situations calling for exercise of extraordinary power of the Jharkhand High Court to direct investigation into the complaint by the Central Bureau of Investigation. If the Jharkhand High Court found that the investigation was not being completed because P. Kalaikathiravan, an Inspector of Police, was one of the accused persons, the Jharkhand High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) of the Code of Criminal Procedure and not to the Central Bureau of Investigation., It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same., Lastly, they relied upon the judgment rendered in the case of Bimal Gurung v. Union of India, reported in (2018) 15 Supreme Court Cases 480. Paragraphs 27, 28, 29 and 50 of the said judgment are quoted herein below: Before we advert to the facts of the present case and prayers made in the writ petition, it is useful to recall necessary principles as enumerated by this Court while exercising jurisdiction by this Court under Article 32 or the Jharkhand High Court under Article 226 for transferring investigation of a criminal case to a Central agency. The Constitution Bench of this Court in State of West Bengal has authoritatively laid down that the Jharkhand High Court under Article 226 and the Supreme Court of India under Article 32 can issue direction to the Central Bureau of Investigation to investigate a cognizable offence within the State without consent of that State. The Constitution Bench also in the above context has held that although this Court has implied power and jurisdiction to direct for the transfer to the Central Bureau of Investigation to investigate a cognizable offence, it also has an obligation to exercise the said power with great caution which must be exercised sparingly, cautiously and in exceptional situations. In paragraph 70 with regard to exercise of such power, the following has been laid down by the Constitution Bench: Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the courts must bear in mind certain self‑imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to the Central Bureau of Investigation to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether such power should be exercised, time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the Central Bureau of Investigation would be flooded with a large number of cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations., The two‑Judge Bench of this Court in Dharam Pal v. State of Haryana, while referring to the principles for transferring investigation, laid down that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having a fair, honest and complete investigation, particularly when it is imperative to retain public confidence in the impartial working of the State agencies., In K.V. Rajendran v. Superintendent of Police, the Court noted that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is that there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that the purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided., The law is thus well settled that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility. In K.V. Rajendran v. Superintendent of Police, this Court has noted few circumstances where the Court could exercise its constitutional power to transfer investigation from State Police to the Central Bureau of Investigation such as: (i) where high officials of State authorities are involved, or (ii) where the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, or (iii) where investigation prima facie is found to be tainted or biased., As per law laid down by this Court in the above case, when the power can be exercised even after the commencement of the trial there cannot be any fetter to the power of this Court in transferring the investigation even after the filing of the charge‑sheet but in view of the facts and reasons as stated above the present case is not one where this Court may exercise jurisdiction under Article 32 to transfer the investigation in a large number of cases en masse registered against the petitioner and other members of GJM. A judgment relied upon by the petitioner is the judgment of Mithilesh Kumar Singh v. State of Rajasthan. In that case the daughter of the petitioner died by falling from a four‑storey college hostel. The petitioner claimed that the investigation conducted by the local police was not fair and the version put up by the police that the girl committed suicide was not correct. The Supreme Court of India held that a trial based on a partisan, motivated, one‑sided, or biased investigation can hardly be fair. In paragraphs 11 and 12, it was laid down that such being the importance of fair and proper investigation, this Court has in numerous cases exercised its power of transferring investigation from the State or jurisdictional police to the Central Bureau of Investigation under the Delhi Police Establishment Act. There was no challenge to the power of this Court to direct such a transfer and, in my opinion, rightly so as the question whether this Court has the jurisdiction to direct transfer stands authoritatively settled by the Constitution Bench of this Court in State of West Bengal v. Committee for Protection of Democratic Rights. Even so the availability of power and its exercise are two distinct matters. This Court does not direct transfer of investigation merely for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court’s satisfaction whether the facts and circumstances of a given case demand such an order. No hard‑and‑fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extraordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily, much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are commonplace when State Police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the Court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent., By way of referring the above judgments, they submitted that the scope of Article 226 of the Constitution of India has been discussed by the Hon’ble Supreme Court of India and in view of these judgments, this case is fit to be dismissed., Mr. Rajiv Sinha, learned Additional Solicitor General of India appearing for the respondent Central Bureau of Investigation fairly submitted that on merit he has nothing to submit and it is for the Supreme Court of India to come to a conclusion whether this case is required to be handed over to the Central Bureau of Investigation or not., The submission of Mr. Rajiv Sinha, learned Additional Solicitor General of India on the point of contempt shall be considered when the Supreme Court of India will take the said point., In light of the above facts and judgments referred by the learned counsel appearing for the parties, this Court is required to consider whether a prima facie case, on the basis of the record, to hand over the investigation to the Central Bureau of Investigation is made out or not. So far as the point of affidavit filed by a pairvikar is concerned, it transpires that the affidavit was filed at a belated stage when the arguments are almost completed and affidavits have been exchanged between the parties. It is well known in terms of the High Court of Jharkhand Rules, 2001 that in criminal cases, the accused are not allowed to file an affidavit and only pairvikars are allowed to swear the affidavits. Moreover, the final report dated 03.06.2021 in Borio Police Station Case No. 127/2021 has been submitted by the Investigating Officer, wherein he found the father of Late Rupa Tirkey, who is the petitioner in this case, as an accused, which has been disclosed in the case diary supplied to the Court in a sealed cover. The Investigating Officer has not filed a charge‑sheet against the petitioner awaiting the direction of his superior officer. It shows that the petitioner was also implicated in the case. After exchange of the affidavits and the submissions advanced by the learned counsel for the parties, only on the ground of technicality this Court cannot restrain itself in rendering justice while exercising its power under Article 226 of the Constitution of India. The point of technicality has been considered by the Supreme Court of India in the case of Union of India & Others v. R. Reddappa & another. Moreover, the father has filed this petition for justice of his daughter against high‑ups of the State. Thus, the submission of the respondent State on the point of affidavit is negated by the Court., On 03.05.2021, U.D. Case No. 09/2021 was registered. On 04.05.2021, the mother of the deceased lodged complaint against Pankaj Mishra, Jyotsana Mahato and Manisha Kumari and the police has not taken any action in spite of serious allegation against them. However, the police obliged to examine Pankaj Mishra as stated in paragraph 32 of the counter affidavit of the respondent State. In paragraph 16 of the writ petition, it has been stated that in Sahebganj town, another tribal police officer was killed a year back and shown to have committed suicide in the same manner. On perusal of the colour photographs, which have been brought on record by way of filing supplementary affidavit dated 05.08.2021, it is crystal clear that the body was not hanging at the time when her body was found hanging and the knee of the deceased was lying on the bed. Looking to further photographs, it prima facie appears that there are several antemortem injuries, which has also been admitted by the doctors, who have been examined by the Investigating Officer, as contained at page 120 of the counter affidavit filed on behalf of the respondent State. It is well settled where poisoning is suspected, viscera is required to be preserved, which has been clearly directed by the Supreme Court of India and one of the judgments has been referred by the learned senior counsel for the petitioner in the case of Joshinder Yadav v. State of Bihar. In paragraph 7 of the supplementary affidavit dated 16.06.2021, it has been alleged that Jyotsana Mahato gave her statement before the Investigating Officer as to how Late Rupa Tirkey was threatened and harassed by Pankaj Mishra and her statement was changed at the instance of the police official. In paragraph 25 of the supplementary affidavit dated 16.06.2021, it has been stated that the person involved in the crime is a right hand of the present Chief Minister of the State and he is also related with the ruling party. In paragraph 6 of the supplementary affidavit dated 16.06.2021, it is disclosed that pressure was being made upon Late Rupa Tirkey to drop the cases against the close one of Pankaj Mishra. In paragraph 20 of the said supplementary affidavit, it has been disclosed that one person has approached the family members of Late Rupa Tirkey to provide them a petrol pump and forget the case of their daughter. In paragraphs 3 and 5 of the supplementary affidavit dated 27.07.2021, it has been stated that police officer as well as high officer of the district Sahebganj were interacting with Pankaj Mishra and the name of some of the police officers has been annexed in the said affidavit., The Court has also gone through the documents and has watched the videography, which has been supplied to the Court in a sealed cover by the State.
id_107	3	There is no doubt that voluminous case diary has been produced in the High Court of Jharkhand. However, this is only because of contents of Call Detail Record between Late Rupa Tirkey and Shiv Kumar Kanogiya and the father of Late Rupa Tirkey, except certain evidence recorded of other persons. On watching the videography, prima facie it appears that her knee was on bed and the body was not hanging. Moreover, no prudent person can commit suicide that too in almost naked condition. It has also been admitted in the case diary that the police officer has covered the body of Late Rupa Tirkey. If such a position was there, the police was required to investigate the matter on the point of murder, but unfortunately from the very first date, U.D. Case No.09/2021 was registered and it was declared that it is a case of suicide. The further question remains that in a criminal case what was the occasion of the State to appoint One Man Inquiry Commission, which is not prescribed in the Criminal Procedure Code. In fact the report of the Commission of enquiry is 37 W.P. (Cr.) No. 139 of 2021 neither binding upon the Government nor upon the Courts. However, this aspect of the matter has been considered by the Honourable Supreme Court of India in the case of Sanjiv Kumar v. State of Haryana & Others (supra). Not only this, it has been stated in paragraph 20 of the supplementary affidavit that the parents have been offered a petrol pump by one of the leaders of the political party. It is surprising that if it was a case of suicide what was the occasion of offering such things to the parents of the deceased. These all are the questions which raised eyebrows on the role of police as it is alleged that high‑ups of the State are involved., Prima facie it transpires from the record that something is being hiked by the police. Sections 4 and 6 of the Delhi Special Police Establishment Act have been considered by the Honourable Supreme Court of India in many cases and it has been held that if the constitutional courts come to a conclusion that a particular case is required to be handed over to a specialised agency, they have power to do so. Thus, the High Court of Jharkhand is not examining that aspect of the matter as the Court is required to prima facie come to the conclusion whether the case is required to be handed over to a particular agency or not. There is no doubt that the scope of Article 226 of the Constitution of India is very wide and cannot be restricted by various statutes to limit the exercise of such power. However, generally the High Court restrains itself by self‑imposing not to pass any order on a routine basis, otherwise the Central Bureau of Investigation will be burdened with so many litigations., The High Court of Jharkhand can direct the Central Bureau of Investigation investigation under exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. Otherwise 38 W.P. (Cr.) No. 139 of 2021 Central Bureau of Investigation would be flooded with a large number of cases and, with limited resources, may find it difficult to properly investigate even serious cases. Almost similar situation has been considered by the Honourable Supreme Court of India in the case of State of W.B. v. Committee for Protection of Democratic Rights, reported in (2010) 3 SCC 571. That case arose out of murder by workers of a political party and it was alleged that the police registered the case and later the investigation was handed over to the Central Bureau of Investigation. The fact of the present case is almost identical as there is allegation against high‑ups of the State. At this stage, the High Court of Jharkhand is not inclined to come to a clear finding about whether this case is a murder or a suicide. The Court is required to come to a prima facie conclusion on the basis of the record whether it is a fit case for handing over the investigation to the Central Bureau of Investigation or not., In the judgment relied upon by the learned counsel for the State in the case of Kartar Singh v. State of Punjab (supra), the Honourable Supreme Court of India has considered the Terrorist and Disruption Activities (Prevention) Act, 1907 and Articles 14 and 21 of the Constitution of India. This case is related to the legislative power of the State legislature in the matter of enactment of laws and the nature, scope and importance of rights guaranteed under basic human rights, life and liberty., In the judgment relied upon by the learned counsel for the State in the case of Hari Singh v. State of U.P. (supra), the Honourable Supreme Court of India has considered the fact that the petitioner of that case was under constant threat by some persons and his life and property were in danger and, if he seeks any protection, it is the duty of the police officials concerned to provide such security. Further, Sections 190 and 200 of the Criminal Procedure Code have been discussed for filing the complaint before the Magistrate having jurisdiction for taking cognizance of the offence. The facts of that case are different from the present case., In the judgment relied upon by the State in the case of Vinay Tyagi v. Irshad Ali (supra), the Honourable Supreme Court of India has considered what kind of investigation will be handed over to the central agency or whether the Central Bureau of Investigation or other investigating agency is empowered to conduct fresh investigation/re‑investigation when cognizance has already been taken. Further power under Sections 156(1) and 156(3) has been elaborated in that case. The facts of the present case are also different from that case., In the judgment relied upon by the State in the case of Gudalure M.J. Cherian v. Union of India (supra), the Honourable Supreme Court of India has discussed the unfair police investigation and the matter is related to transfer of a case from one Sessions Judge to another Sessions Judge. In that case the investigation had been completed, the charge sheet submitted and thereafter the investigation was handed over to the Central Bureau of Investigation; the prayer for transfer of the case was dismissed. That case was also different from the facts of the present case., In the judgment relied upon by the State in the case of ABCD v. Union of India (supra), the Honourable Supreme Court of India held that any person who attempts to deceive the court or interferes with the administration of justice can be held guilty of contempt and decided the case on its own merit. This is not the case in hand., In the judgment relied upon by the State in the case of Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya (supra), the Honourable Supreme Court of India held that the High Court may direct an enquiry by the Central Bureau of Investigation and the High Court must record a prima facie case for handing over the investigation to the Central Bureau of Investigation. To some extent, this judgment is helping the petitioner., In the judgment relied upon by the State in the case of Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. State of Jharkhand (supra), the Honourable Supreme Court of India held that Central Bureau of Investigation investigation can be exercised only in cases where there is sufficient material to come to a prima facie conclusion and direction for investigation can be given. To some extent this case is also helping the petitioner, but the matter is related to the transfer of property of a deity and is not involved in the present case., In the judgment relied upon by the State in the case of Bimal Gurung v. Union of India (supra), the facts are different as that case involved the death of several persons, including police personnel, admitted by both parties, and a large number of First Information Reports alleging serious offences arising out of violent protest and bandhs. On that ground the Honourable Supreme Court of India concluded that this was not a case to transfer the investigation as the State police were competent., In view of the above facts and considering the submissions of the learned counsel for the parties and the law prescribed in this regard, and considering that injury has been found on the body, viscera were not preserved, photographs and video were on a pen drive, that on the very first day of the incident the conclusion of suicide was drawn, two parallel investigations (U.D. Case and First Information Report), frequent changing of Investigating Officers, failure to lodge a First Information Report against high‑ups on the complaint of the mother of Late Rupa Tirkey, taking the statement of Pankaj Mishra in the absence of a First Information Report, call details showing interaction between high officials and the Investigating Officer with Pankaj Mishra, and pressure on Late Rupa Tirkey to drop cases against close persons of Pankaj Mishra, the High Court of Jharkhand comes to the conclusion that this is a fit case, in fact a rarest‑of‑rare case, to hand over the investigation to the Central Bureau of Investigation. The Central Bureau of Investigation is directed to take up the investigation of this case immediately and the police of Sahebganj shall hand over the same to the Central Bureau of Investigation. Accordingly, this criminal writ petition stands allowed and disposed of., Mr. Rajiv Sinha, learned Additional Solicitor General of India appearing for the respondent Central Bureau of Investigation is requested to transmit this order to the competent authority of the Central Bureau of Investigation for needful action., The office is directed to hand over the documents as well as the pen drive in a sealed cover to the office of the learned Advocate General by way of taking acknowledgment., Interim Application No. 2588 of 2021 has been filed for setting aside the notification of the State of Jharkhand where a One Man Inquiry Commission has been appointed., In view of the fact that it has been constituted under the Commission of Inquiry Act, 1952, the High Court of Jharkhand is not inclined to interfere with the prayer made in the said Interim Application and the same is rejected. Accordingly, Interim Application No. 2588 of 2021 stands dismissed., Before parting with the judgment, the High Court of Jharkhand is required to decide Interim Application No. 4188 of 2021, which has already been on record., Interim Application No. 4188 of 2021 has been filed on behalf of the petitioner under Article 215 of the Constitution of India read with Sections 11 and 12 of the Contempt of Courts Act, 1971 seeking initiation of contempt proceedings under the Act against Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General‑II for making contemptuous statements before the High Court of Jharkhand., It has been stated in the interlocutory application that on 13.08.2021, when the matter was taken up, the learned Advocate General submitted that the matter should be taken out of the list of the High Court of Jharkhand, alleging that on 11.08.2021 after the end of the proceeding the counsel for the petitioner was saying that the matter was going to be allowed. Thereafter, Mr. Sachin Kumar, learned Additional Advocate General‑II came online and vehemently submitted that they will not contest the case and the High Court of Jharkhand ought not to hear this matter, using language that ought not have been used in the court. He further stated that the High Court of Jharkhand may or may not hear the matter, but the State will not contest the case. The interlocutory application also states that the Court took serious note of the matter and asked the learned Advocate General to file an affidavit, but he adamantly stated that his oral submission was sufficient and he would not file any affidavit. It further states that Mr. Rajiv Sinha, learned Additional Solicitor General of India, submitted that this is not the way to address the Court and that what has happened directly casts aspersion on the majesty of the Court and should be stopped. The statements made by Mr. Rajiv Ranjan, the learned Advocate General, and Mr. Sachin Kumar, learned Additional Advocate General‑II, have been heard by all counsels present in the panel., The High Court of Jharkhand asked the learned counsel appearing for the State whether the learned Advocate General and the learned Additional Advocate General‑II were inclined to file a two‑line affidavit; the answer was that the notice had not been issued. However, the said Interim Application was opposed by Mr. Kapil Sibal, learned Senior Counsel, along with Mr. Arunabh Choudhary on the ground that this Interim Application is not maintainable., On 13.08.2021, during the hearing two senior law officers of the State, namely Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General‑II, scandalised the majesty of the Court proceeding, which was witnessed by many lawyers connected online. The following order was passed: Heard Mr. Rajeev Kumar, learned counsel for the petitioner; Mr. Rajiv Ranjan, learned Advocate General for the respondent State; Mr. R.S. Mazumdar, learned Senior Counsel for the intervenor; and Mr. Rajiv Sinha, learned Additional Solicitor General of India for the respondent Central Bureau of Investigation. This criminal writ petition was heard through video conferencing in view of the guidelines of the High Court taking into account the situation arising due to the COVID‑19 pandemic. On 17.06.2021, the matter was taken up and the State was directed to file a counter‑affidavit and the Court also directed that security be provided to the parents of Late Rupa Tirkey; the matter was fixed for 29.07.2021. On 29.07.2021, the State sought four weeks’ further time for filing the counter‑affidavit. The High Court of Jharkhand on that day directed the Director General of Police, Jharkhand, Ranchi and the Superintendent of Police, Sahebganj to produce the entire records of U.D. Case No.09/2021 registered on 03.05.2021 in a sealed cover by the next date of listing and it was open to the State to file a counter‑affidavit as well as a response to one Interim Application filed for intervention. Pursuant to the direction given by the High Court of Jharkhand vide order dated 29.07.2021, the documents of U.D. Case No.09/2021 and First Information Report No.127/2021 were handed over to the Registry of the High Court of Jharkhand in a sealed cover, which was handed over by the Protocol of the Court to one of the staff of the undersigned and was directed to be kept on record vide order dated 09.08.2021. On 11.08.2021, the learned counsel for the petitioner and the learned Advocate General had almost completed their arguments and the matter was adjourned for two days for further argument by the remaining counsels. When the matter was taken up again, Mr. Rajiv Ranjan, learned Advocate General submitted that after the end of the proceeding on 11.08.2021, the learned counsel for the petitioner was saying that the matter was going to be allowed. He submitted that the matter should be taken out of the list of the High Court of Jharkhand. The other State counsel, Mr. Sachin Kumar, learned Additional Advocate General‑II, supported the arguments of the learned Advocate General. When the Court asked the learned Advocate General to file an affidavit to that effect, he submitted that he would not file the affidavit and that his oral submission was sufficient. Mr. Rajiv Sinha, learned Additional Solicitor General of India appearing for the respondent Central Bureau of Investigation, fairly submitted that this is not the way to address the Court and that what has happened directly casts aspersion on the majesty of the Court. This submission was supported by Mr. R.S. Mazumdar, learned counsel appearing for the intervenor. Merely on such submission of the learned Advocate General, the Court is not required to recuse from the case as nothing should come in the way of dispensation of justice or discharge of duty as a Judge., Reference in this regard may be made to the judgment rendered by the Honourable Supreme Court of India in the case of Indore Development Authority v. Manohar Lal and others, reported in (2020) 6 SCC 304. Paragraph 47 of the said judgment is quoted herein below: 47. Recusal is not to be forced by any litigant to choose a Bench. It is for the Judge to decide to recuse. The embarrassment of hearing the lengthy arguments for recusal should not be a compelling reason to recuse. The law laid down in various decisions has compelled me not to recuse from the case and to perform the duty irrespective of the consequences, as nothing should come in the way of dispensation of justice or discharge of duty as a Judge and judicial decision‑making. There is no room for prejudice or bias. Justice has to be pure, untainted, uninfluenced by any factor, and even a decision for recusal cannot be influenced by outside forces. However, if I recuse, it will be a dereliction of duty, injustice to the system, and to other Judges who are to adorn the Bench(es) in the future. I have taken an informed decision after considering the nitty‑gritty of the points at issue, and very importantly, my conscience. In my opinion, I would be committing a grave blunder by recusal in the circumstances, on the grounds prayed for, and posterity will not forgive me down the line for setting a bad precedent. It is only for the interest of the judiciary (which is supreme) and the system (which is nulli secundus) that has compelled me not to recuse. The Court only with a view to faith that the common man reposes in the judiciary is sending this matter before the Honourable Chief Justice of the High Court of Jharkhand on the administrative side., In such a situation, the High Court of Jharkhand thinks it proper to place this matter before the Honourable Chief Justice on the administrative side for administrative decision. The Registry of the High Court of Jharkhand is directed to place this matter before the Honourable Chief Justice immediately., Thereafter, the Honourable Chief Justice again assigned the matter to the High Court of Jharkhand and that is how this case was listed on 26.08.2021 and the case was adjourned by the High Court of Jharkhand for 31.08.2021., On that day, Mr. Kapil Sibal, learned Senior Counsel, apprised the High Court of Jharkhand about the scope of Section 15 of the Contempt of Courts Act and rightly pointed out the modes of contempt in that Section., Sub‑section (a) and (b) of Section 15(1) of the Contempt of Courts Act, 1971 stipulate that action may be taken on its own motion by the Court or on motion made by the Advocate General or any other person with the consent in writing of the learned Advocate General. It is not a case where appropriate ground for refusal to act can be looked into by the Court as the Advocate General and Additional Advocate General‑II are offenders. Thus, if there is no consent for initiation of contempt, the suo motu power is always there to the Court. There are three different modes for initiation of contempt: (1) taking cognizance of criminal contempt of its own motion, (2) on the motion by the Advocate General, and (3) any other person, with the consent in writing of the Advocate General. The petitioner could not move in accordance with law and without consent of the Advocate General as the Advocate General and Additional Advocate General‑II are violators, though he has the right to move as they have scandalised the majesty of the Court in this case. The suo motu action is prescribed in the Act and this aspect of the matter has been considered by the Honourable Supreme Court of India in the case of P.N. Duda v. P. Shiv Shanker & Others, reported in (1988) 3 SCC 167, and in that case the case of C.K. Daphtary v. O.P. Gupta was considered by the Honourable Supreme Court of India in paragraph 39 of the said judgment, which is quoted herein below: 39. The question of contempt of court came up for consideration in the case of C.K. Daphtary v. O.P. Gupta. In that case a petition under Article 129 of the Constitution was filed by Shri C.K. Daphtary and three other advocates bringing to the notice of this Court alleged contempt committed by the respondents. There this Court held that under Article 129 of the Constitution this Court had the power to punish for contempt of itself and under Article 143(2) it could investigate any such contempt. This Court reiterated that the Constitution made this Court the guardian of fundamental rights. This Court further held that under the existing law of contempt of court any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court. A scurrilous attack on a Judge, in respect of a judgment or past conduct has in our country the inevitable effect of undermining the confidence of the public in the Judiciary; and if confidence in the Judiciary goes, administration of justice definitely suffers. In that case a pamphlet was alleged to contain statements amounting to contempt of the Court. As the Attorney‑General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring the matter to the notice of the Court. It was alleged that the said President and the other members of the Bar had no locus standi. This Court held that the Court could issue a notice suo motu. The President of the Supreme Court Bar and other petitioners were perfectly entitled to bring to the notice of the Court any contempt of the Court. The first respondent referred to Lord Shawcross Committee’s recommendation in the U.K. that proceedings should be instituted only if the Attorney‑General in his discretion considers them necessary. This was only a recommendation made in the light of circumstances prevailing in England. But that is not the law in India, this Court reiterated. It has to be borne in mind that the decision was rendered on 19 March 1971 and the present Act in India was passed on 24 December 1971. Therefore that decision cannot be of any assistance. We have noticed Sanyal Committee’s recommendations in India as to why the Attorney‑General should be associated with it, and thereafter in the U.K. there was a report of the Phillimore Committee in 1974. In India the reason for having the consent of the Attorney‑General was examined and explained by the Sanyal Committee Report as noticed before., In the case of P.N. Duda (supra), the Honourable Supreme Court of India also considered where neither the Attorney‑General nor the Solicitor‑General is in a position to consider a request under Section 15(1)(c); it is open to the petitioner to seek the consent of some other law officer such as the Additional Solicitor‑General. Paragraph 62 of the said judgment is quoted herein below: 62. The last question that remains to be touched upon is whether, in a case where neither the Attorney‑General nor the Solicitor‑General is in a position to consider a request under Section 15(1)(c), it is open to the petitioner to seek the consent of some other law officer such as the Additional Solicitor‑General. Apart from the fact that, in the present case, the petitioner would have had the same criticism against the Additional Solicitor‑General as he had against the Attorney‑General/Solicitor‑General, the clear answer to the question appears to be that it is not open to him to seek such consent. Section 15 is quite clear that the written consent of only those officers specifically authorised by the section would be taken note of for entertaining a petition under the section. But this does not, in any way, deprive the petitioner of his remedy as he can come to court, as indeed he has done, requesting the court to take suo motu action., Thus, the Honourable Supreme Court of India held that it does not, in any way, deprive the petitioner of his remedy as he can come to Court, as indeed he has done, requesting the Court to take suo motu action., The Honourable Supreme Court of India again considered the petition filed for action under Section 15 of the said Act in the case of Bal Thackrey v. Harish Pimpalkhute & Others, reported in (2005) 1 SCC 254, and held that the prayer was not made for suo motu action and it was not moved with the consent; therefore the petition is not maintainable. However, the case of Bal Thackrey is different from the present case as two officers of the State are contemners. The facts as narrated in the said Interim Application cannot be denied as the High Court of Jharkhand is itself a witness and has faced humiliation on that day., Although Mr. Rajiv Ranjan, the learned Advocate General, and Mr. Sachin Kumar, the learned Additional Advocate General‑II, have thrashed this Court in such words which have been described in the said Interim Application and humiliation cannot be described in words, the High Court of Jharkhand restrained itself from taking suo motu action upon them and sent the matter to the Honourable Chief Justice on the administrative side. The facts narrated in the said Interim Application are correct. However, the Court is not inclined to proceed on the basis of the said Interim Application as it is not in a proper format and not in accordance with the High Court of Jharkhand Rules, 2001. There is no prayer of suo motu action in the said Interim Application and both the contemners are not made parties in this regard. Thus, the prayer made in Interim Application No. 4188 of 2021 stands rejected. Accordingly, Interim Application No. 4188 of 2021 stands dismissed., Now, the only option before the Court is to take suo motu cognizance of the conduct of two senior law officers of the State. In the case of P.N. Duda (supra), the Honourable Supreme Court of India considered the observation of Lord Denning in paragraph 15 of the said judgment, which is quoted herein below: 15. Lord Denning in Regina v. Commissioner of Police of the Metropolis, ex parte Blackburn observed as follows: Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done., If the Judges are fairly criticised for any judgment, we restrained ourselves. We did not interfere in any discussion and we happily accept fair criticism. On 13.08.2021, before passing any order the two law officers of the State scandalised the Court proceeding and the matter was sent before the Honourable Chief Justice on the administrative side. The scene was created by Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General‑II. The said Interim Application was filed with service of an advance copy upon the office of the learned Advocate General, but till date no affidavit of apology on behalf of both counsels has been filed, meaning they have not realised what they have done on 13.08.2021. This is one aspect of the matter. On 26.08.2021, the High Court of Jharkhand asked Mr. P.A.S. Pati and Mr. Kaushik Sarkhel, learned counsel for the respondent State, about the said affidavit; they straightaway submitted that notice has not been issued. On 31.08.2021, the same thing was repeated by the Court to Mr. Kapil Sibal, learned Senior Counsel, as well as Mr. Arunabh Choudhary, who opposed the Interim Application on behalf of the Advocate General and Additional Advocate General. Had there been an unreserved, clean and immediate apology on behalf of those two senior law officers of the State, it would undoubtedly have been given greater weight, but this has not been done despite repeated requests by the Court. Admittedly, on 13.08.2021, the events are recorded in the order and the same has also been stated in Interim Application No. 4188 of 2021. This matter has been re‑assigned to this Bench by the order of the Honourable Chief Justice. Not taking any action of criminal contempt on 13.08.2021 does not mean that it is implied to maintain silence.
id_107	4	Nobody can be permitted to tarnish the image of the temple of justice. In the case in hand, Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General-II, who are senior law officers of the State undermined and tarnished the image of the Jharkhand High Court. An Advocate has no wider protection than a layman when he commits an act which amounts to contempt of court which is not permissible. A reference may be made to the judgment rendered by the Honourable Supreme Court of India in the case of Jaswant Singh v. Virender Singh, reported in 1995 Supp (1) SCC 384. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. The foundation itself has been sought to be shaken by acts none other than two first law officers of the State. It is for this purpose that the Jharkhand High Court is entrusted with extraordinary powers of punishing for contempt of court, those who indulge in acts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it., When the Jharkhand High Court exercises this power, it does not do so to vindicate the dignity and honour of the individual Judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. It has been observed by the Honourable Supreme Court of India in the case of Rajendra Sail v. M.P. High Court Bar Association, reported in (2005) 6 SCC 109., When a contempt is committed in the face of the Jharkhand High Court or the Supreme Court of India to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with a strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public, as held by the Honourable Supreme Court of India in the case of Ram Niranjan Roy v. State of Bihar, reported in (2014) 12 SCC 11. Paragraph 16 of the said judgment is quoted herein: Thus, when contempt is committed in the face of the High Court or the Supreme Court to scandalise or humiliate the Judge, instant action may be necessary. If the courts do not deal with such contempt with a strong hand, that may result in scandalising the institution thereby lowering its dignity in the eyes of the public., The courts exist for the people. The courts cherish the faith reposed in them by people. To prevent erosion of that faith, contempt committed in the face of the court needs strict treatment. The appellant, as observed by the Jharkhand High Court, was not remorseful. He did not file any affidavit tendering apology nor did he orally tell the High Court that he was remorseful and he wanted to tender apology. Even in this Court he has not tendered apology. Therefore, since the contempt was gross and it was committed in the face of the Jharkhand High Court, the learned Judges had to take immediate action to maintain honour and dignity of the Jharkhand High Court. There was no question of giving the appellant any opportunity to make his defence. This submission of the appellant must, therefore, be rejected., On repeated request by the Jharkhand High Court, affidavit has not been filed. In view of refusal of filing the affidavit, they have left no option and compel this Court to take suo motu action., Both have sought and bullied the Jharkhand High Court and behaved in the manner that the Court felt that they are trying to threaten it. This has been done in open Court in the presence of senior and junior counsels of the bar and also in the presence of Mr. R. S. Mazumdar, learned Senior Counsel and Mr. Rajiv Sinha, learned Additional Solicitor General of India for the Union of India, who are witnesses to the entire incidents. It is necessary to see at outset what implication and impression such conduct would have on the senior and junior members of the bar. The Court feels that the majesty of the Jharkhand High Court would be at risk if such conduct is not checked at the stage of its budding. It has the potential of carrying the message across board that the courts can be manhandled to the desired ends of a litigator. This would ultimately result in lowering the authority of the institution and bears the possibility of creating anarchy of a system. Mr. Rajiv Sinha, learned Additional Solicitor General of India appearing for the respondent CBI, yesterday with heavy heart submitted that he is witness of what has happened on that day and how the Jharkhand High Court has been humiliated. He further submitted that he has not seen this in the history of the Jharkhand High Court. In view thereof, the Court has been humiliated and with heavy heart, it is said that this is humiliation of not an individual Judge, but the entire institution; if it is not dealt with iron hands it may see progress and will jeopardise the administration of justice. The system in which the Judges can be bullied by litigators to say that justice will be done as will be matter of myth and will give rise to very nasty tendency of being more vocal in the Court than being a learned., The Jharkhand High Court having found that Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General-II have prima facie committed criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971 and compels this Court to take suo motu action against them under Section 15 of the said Act., In view of the above facts, the following order is passed: W.P. (Cr.) No. 139 of 2021 is allowed in terms of paragraph no. 70 of this order and the same stands disposed of. Office is directed to register suo motu motion as Suo Moto Contempt Proceedings in terms of Rule 389 and other relevant Rules of the Jharkhand High Court Rules, 2001 and under Article 215 of the Constitution of India read with Section 15 of the Contempt of Courts Act, 1971 for the purpose of record. Office is directed to issue notice under Section 17 of the Contempt of Courts Act to Mr. Rajiv Ranjan, learned Advocate General and Mr. Sachin Kumar, learned Additional Advocate General-II at their address as per the Contempt of Courts Act and Jharkhand High Court Rules. Notice shall be accompanied by the entire record of this case including the disposed of I.As., this order and order dated 13.08.2021, to be made returnable on 05.10.2021. Since every case of criminal contempt under Section 15 is required to be heard and determined by a bench of not less than two Judges in terms of Section 18 of the said Act, office is directed to place the matter before the Honourable Chief Justice for necessary consideration.
id_1070	0	(Arising out of Special Leave Petition (Criminal) No. 2493 of 2021) (Arising out of Special Leave Petition (Criminal) Nos. 6797-6798 of 2021) Leave granted in both the Special Leave Petitions., For the nature of order that we propose to pass, it is not necessary to dilate on the factual matrix of the case. Suffice it to record that the private respondents (Manish Verma, Sanjeev Verma and Neetu Verma) were released on bail by the Trial Court and when the leading appeal (criminal appeal arising from Special Leave Petition (Criminal) No. 2493 of 2021) was taken up for consideration, it was noted that they were not appearing in the matter, despite service of notice. The private respondents have now appeared and pointed out that the notice was not served on them at all, but in compliance with the directions given by the Supreme Court of India, they have already surrendered and are presently in custody., Taking overall view of the matter, we propose to pass the following order: The private respondents are released on bail on terms and conditions which were imposed by the Trial Court. In addition, the private respondents shall extend full cooperation to the Trial Court for early disposal of the trial. In case the Trial Court is of the opinion that the private respondents are not cooperating in the progress of the trial or are taking unnecessary adjournments, it must record that opinion in the diary and if that is a persistent approach of the private respondents, it will be open to the Trial Court to consider cancellation of bail in accordance with law., We direct the Trial Court to ensure that the trial is concluded not later than six months from the date of receipt of copy of this order. We are required to issue this direction as we have noticed that the Trial Court, despite having taken cognizance almost seven years back, has not moved in the matter even an inch thereafter, including to frame charges, as may be necessary, despite seventy‑eight adjournments in the case. Accordingly, the Trial Court must proceed in the matter without any further delay., We direct the Investigating Officer to ensure that the witnesses are made available on the scheduled dates for being examined by the Trial Court. Needless to observe that the order of cancellation of bail of the private respondents will not come in their way and the trial must proceed on its own merits and in accordance with law. All contentions available to the parties on the merits of the case are left open., Copy of this order be forwarded to the concerned Trial Court forthwith through email for information and necessary action. The appeals are disposed of in the above terms. Pending applications, if any, stand disposed of., New Delhi, September 15, 2021. Petition(s) for Special Leave to Appeal (Criminal) No(s). 2493/2021 (Arising out of impugned final judgment and order dated 23-12-2020 in Writ Petition No. 1899/2020 passed by the High Court of Uttarakhand at Nainital) Special Leave Petition (Criminal) No(s). 6797-6798/2021. Date: 15-09-2021., These matters were called on for hearing today. For Petitioners: Mr. Siddharth Dave, Senior Advocate; Mr. Vivek Singh, Advocate on Record. For Respondents: Ms. Namita Choudhary, Advocate on Record; Ms. Rachna Gandhi, Advocate; Ms. Srishti Choudhary, Advocate; Mr. Vikas Singh, Senior Advocate; Ms. Reetu Sharma, Advocate on Record; Mr. Nihal Ahmad, Advocate; Ms. Neena Shukla, Advocate; Mr. Amit Kumar, Advocate; Mr. Shantanu Shukla, Advocate; Ms. Anu Singla, Advocate., Upon hearing the counsel the Supreme Court of India made the following: Leave granted. The appeals are disposed of in terms of the signed order. [Signed order is placed on the file]
id_1071	0	These appeals have been filed against the judgments and orders dated 20th August 2008 passed by the Delhi High Court at New Delhi in Writ Petition (Civil) No. 1549 of 1997 and the order dated 29th September 2008 passed in Review Petition No. 341 of 2008 in Writ Petition (Civil) No. 1549 of 2008 by the Delhi High Court., The appellant was selected and appointed as Sub‑Inspector in the Delhi Police Service. The appointment letter was issued on 28 January 1994 and he was allowed to join the Delhi Police Service as Sub‑Inspector on 10 February 1994., While undergoing the A, B, C and D Course in South‑west District, the respondents received a complaint on 12 April 1996 stating that the appellant was a deserter from the Army and that after deserting the Army in 1992 he was declared an absconder. On receipt of such complaint, the respondents addressed a letter to the Station House Officer, Inderpuri, to enquire about the antecedents of the appellant, and it was confirmed that the appellant was a deserter from the Army with effect from 31 July 1993., The respondents further state that in the attestation form duly filled by the appellant in his own handwriting at the time of entry into service, in column number 10, he marked ‘Not Applicable’. Although the appellant had joined the Army in 1992, he did not disclose his earlier employment in the Army and suppressed the information in column number 10 of the attestation form by not furnishing correct information., During the probation period, the respondents terminated the service of the appellant by an order dated 14 August 1996. The order reads: ‘In pursuance of the proviso to sub‑rule (i) Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, I, S. K. Jain, First Class Revenue Officer / Deputy Commissioner of Police, hereby terminate forthwith the services of Police Sub‑Inspector Rajesh Kumar, D/3390 and direct that he shall be entitled to claim an amount equivalent to his pay plus allowances for the period of notice at the same rates at which he was drawing immediately before the termination of his service. He is not in possession of any Government accommodation.’, The learned Advocate appearing for the appellant has strenuously contended that he was not given any opportunity in the inquiry and that the impugned order was passed by conducting an inquiry behind his back. It is submitted that his services were terminated alleging that he was a deserter from the Army, and therefore the respondents ought to have conducted an inquiry by giving him an opportunity before his termination., The learned Advocate for the respondents contends that the impugned order is an order terminating the service of the appellant during his probation. It is their case that, as the order is a termination simplificator, there was no need to conduct an inquiry because the service of the appellant was not confirmed., From a perusal of the order dated 14 August 1996, it is clear that the order was passed in exercise of power under the proviso to sub‑rule (i) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. The order is only a termination simplificator without any allegation against the appellant., During the period of probation, it is always open to the employer to verify the antecedents of a temporary appointee in case any information is received by way of complaint or otherwise. Merely because the antecedents were verified by addressing a letter to the Station House Officer, Inderpuri, it cannot be said that the respondents conducted a regular inquiry to give an opportunity to the appellant. In the absence of any allegation in the impugned order, the order of termination dated 14 August 1996 cannot be said to be an order casting stigma on the appellant., Before the declaration of probation, on the ground that the appellant has not disclosed particulars of earlier employment, it is always open for the respondents to terminate his temporary service without issuing any notice., The learned Advocate for the appellant placed reliance on the judgment of the Supreme Court of India in the case of Commissioner of Police & Others v. Sandeep Kumar, but in view of the subsequent judgment of a Three‑Judge Bench of the Supreme Court of India, it has been held that in the event of any suppression or submission of false information, it is open for the employer to cancel the candidature or terminate service. Paragraph 32 of that judgment reads: ‘No doubt about it that once a verification form requires certain information to be furnished, the declarant is duty‑bound to furnish it correctly and any suppression of material facts or submission of false information may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case where the incumbent has not been acquitted and the case is pending trial, the employer may be justified in not appointing such an incumbent or in terminating the services as a conviction ultimately may render him unsuitable for the job and the employer is not supposed to wait till the outcome of the criminal case. In such a case non‑disclosure or submission of false information would assume significance and that by itself may be a ground for the employer to cancel candidature or to terminate services.’, For the aforesaid reasons and in view of the judgment, this appeal does not find any merit, and the impugned order passed by the Delhi High Court is affirmed. The appeals are dismissed with no order as to costs., New Delhi; 11 November 2021. Civil Appeal Nos. 7353‑7354 of 2009., These appeals were called on for hearing today., For the appellant: Mr. Anshu Mahajan, Advocate; Mr. Karan Arora, Advocate; Mr. Gaurav Kejriwal, Advocate on Record., For the respondent: Mr. Jayant Sud, Additional Solicitor General; Mr. Nachiketa Joshi, Advocate; Mr. Divyansh Rathi, Advocate; Mr. Mohd. Akhil, Advocate; Mr. Tejas Patel, Advocate; Mr. Harish Nadda, Advocate; Mr. Randeep Sachdeva, Advocate; Mr. Arvind Kumar Sharma, Advocate on Record; Mr. R. Balasubramanian, Senior Advocate; Mr. Gurmeet Singh Makker, Advocate on Record; Mr. Rajan Kr. Chourasia, Advocate., Upon hearing the counsel, the Delhi High Court made the following order: The appeals are dismissed in terms of the signed order. Pending applications, if any, shall stand disposed of.
id_1072	0	Honorable Judge Sharad Kumar Sharma. Mr. Dharmendra Barthwal, Advocate, for the applicant. Ms. Mamta Joshi, Brief Holder, for the State. Mr. Paritosh Dalakoti, Advocate, for the respondent. The present applicant is an accused alleged to be involved in the commission of offences under Section 354A of the Indian Penal Code and Sections 67(a) and 67 of the Information Technology (Amendment) Act, 2008. As a consequence of the registration of the FIR, being FIR No. 41 of 2021 dated 03.02.2021, the complainant respondent No. 2 has alleged that on the basis of an acceptance of a friend’s request on Facebook, the applicant misused the same and started sending indecent photographs and videos, which were objectionable. The investigation, carried out after the FIR, resulted in a chargesheet, Chargesheet No. 1 dated 17.01.2022, wherein the offence against the applicant was prima facie found to be true. Consequently, a summoning order was issued whereby the applicant was summoned to be tried by the Chief Judicial Magistrate Court, Nainital in Criminal Case No. 2453 of 2022, State versus Neeraj Kirola. These proceedings, along with the chargesheet and the summoning order, are under challenge in the instant Section C-482 application., The Section C-482 application is accompanied by a Compounding Application No. IA/1/2023, supported by independent affidavits of the applicant and respondent No. 2, which have been verified by their respective counsel. The High Court has interacted with the complainant respondent No. 2, Ruchi Bhatt, who stated that, owing to the apology expressed by the applicant and accepted by her, she does not intend to prosecute the applicant further for the offences complained of against him. The learned Government Advocate opposes the compounding application on the ground that the offence under Section 354A of the Indian Penal Code is not compoundable under Section 320 of the Criminal Procedure Code, although the offences under Sections 67 and 67A of the Information Technology Act are compoundable under Section 77A of the Information Technology Act. Since the offence under Section 354A is not compoundable and is an offence against society, but considering the stance taken by complainant respondent No. 2 and her statement that she has accepted the applicant’s apology, particularly as the applicant is known to the family members of the complainant, she does not intend to prosecute the applicant further for the offences under Section 354A of the Indian Penal Code and Sections 67 and 67A of the Information Technology Act. In view of the nature and gravity of the offences, the close affinity between the parties developed on Facebook, and the applicant’s relationship with the complainant’s family, the High Court, exercising its powers under Section 482 of the Criminal Procedure Code, considers the compounding application., The High Court orders that the criminal proceedings in Criminal Case No. 2453 of 2022, State versus Neeraj Kirola, presently pending before the Chief Judicial Magistrate Court, Nainital, shall stand quashed, subject to the following conditions: the applicant shall plant fifty trees in an area to be identified by the Horticulture Department of his district or taluka, at his own cost; the plantation shall be carried out under the supervision of the Horticulture Department; the applicant shall submit a certificate of planting issued by the competent authority of the Horticulture Department to the High Court, and only upon such submission shall the criminal proceedings be dropped; if compliance is not made within one month from the date of this order, the criminal proceedings shall be automatically revived; if at any stage any officer of the Horticulture Department is found to have issued a fraudulent certificate, that officer shall be dealt with criminally in accordance with law., Accordingly, the matter is compounded and the Section C-482 application stands disposed of.
id_1073	0	Charan Singh (also known as Charanjit Singh) is the appellant, husband of the deceased Chhilo Kaur, and appeals against the State of Uttarakhand. He challenges his conviction and sentence under sections 304B, 498A and 201 of the Indian Penal Code, 1860. The Trial Court sentenced him to rigorous imprisonment for ten years under Section 304B, two years under Section 498A and two years under Section 201. The High Court of Uttarakhand at Nainital reduced the sentence under Section 304B from ten years to seven years., The appellant and the deceased were married in 1993. On 24 June 1995 at 6:15 p.m., the father of the deceased, Pratap Singh (Witness 1), filed a complaint with the Police Station Jaspur stating that his daughter Chhilo Kaur had been married to the appellant about two years earlier and that he had given sufficient dowry. Two months after the marriage the daughter returned to her parental home and complained that her in‑laws were demanding a motorcycle that had not been given as dowry. The father pacified her, saying he could not provide the motorcycle at present but would do so when able, and sent her back to the matrimonial home. Later the demand for land was also made. On 23 June 1995 Jagir Singh of village Bhogpur Dam informed the father that his daughter had been murdered by her in‑laws. The father and his wife went to Bhogpur Dam on 24 June 1995 and learned that on the morning of 22 June 1995 the daughter had been beaten and strangulated to death by her husband Charan Singh, brother‑in‑law Gurmeet Singh (Accused No.2) and mother‑in‑law Santo Kaur (Accused No.3). The body was cremated without informing the father. The death was alleged to be due to non‑fulfilment of demands for a motorcycle and land as dowry. A First Information Report was filed against Charan Singh, Gurmeet Singh and Santo Kaur., The prosecution examined six witnesses and the defence examined one witness. The Trial Court convicted Charan Singh, Gurmeet Singh and Santo Kaur under Sections 304B, 498A and 201 of the Indian Penal Code and sentenced them to rigorous imprisonment for ten years under Section 304B, two years under Section 498A and two years under Section 201. On appeal before the High Court, the convictions and sentences of Gurmeet Singh and Santo Kaur under Sections 304B, 498A and 201 were set aside and they were acquitted, while the conviction of the appellant was upheld. The High Court reduced the appellant’s sentence under Section 304B from ten years to seven years., Mr. Shubhranshu Padhi, learned counsel assisting as amicus curiae due to the absence of counsel for the appellant, submitted that the conviction and sentence of the appellant cannot be legally sustained under either Section 304B or Section 498A of the Indian Penal Code. The presumption under Section 304B arises only when, soon before death, the woman was subjected to cruelty or harassment in connection with any demand for dowry. Such presumption may be raised under Section 113B of the Indian Evidence Act only if the same condition is shown., An examination of the prosecution evidence shows that no witness stated that the deceased was subjected to cruelty, harassment, or a dowry demand immediately before her death. The marriage occurred in 1993 and the death occurred on 22 June 1995. None of the family members, including the father, maternal grandmother or maternal uncles, reported any such harassment before death. The maternal grandmother and two maternal uncles, who lived about one furlong from the village, were present at the cremation but did not lodge any police complaint. They later admitted that, with the intervention of the panchayat, they collected all dowry articles after the cremation, and that the father, who lived about 290 kilometres away, was informed but could not arrive in time., It was argued that the material witness Jagir Singh, named by the complainant in the First Information Report, was not produced by the prosecution. According to the statement of Investigating Officer Babban Singh (Witness 6), Jagir Singh’s statement had been recorded during the investigation. The prosecution therefore failed to produce a key witness. Reliance was placed on the decision in Baijnath v. State of Madhya Pradesh. The appellant contended that the allegations against him, his brother‑in‑law and mother‑in‑law were identical, but no appeal was filed against the acquittal of the brother‑in‑law and mother‑in‑law, and the deceased’s death was not unnatural as she suffered from fits, which the maternal grandmother confirmed in cross‑examination., The State’s counsel argued that the case involved a young woman killed by her in‑laws for dowry. The marriage was only two years old and the death was unnatural. The deceased was cremated without informing her parents. The maternal grandmother and the two uncles who were present at the cremation saw injury marks and a broken tooth on the body but could not lodge a complaint because they were threatened. The death occurred in the matrimonial home, placing the burden on the appellant to rebut the presumption. The State submitted that there was sufficient material on record, including witness statements, showing repeated dowry demands by the appellant, and that the High Court’s reduction of the sentence was appropriate., The learned counsel for the parties were heard and the relevant record was perused., The marriage of the appellant with the deceased was solemnised in 1993 and she died on 22 June 1995. A First Information Report was registered on 24 June 1995 on the complaint of the father against Charan Singh, Gurmeet Singh and Santo Kaur. On appeal before the High Court, Gurmeet Singh and Santo Kaur were acquitted while the appellant’s conviction was upheld. The appellant’s sentence under Section 304B was reduced from ten years to seven years, and the sentences of two years each under Sections 498A and 201 were affirmed., Section 304B of the Indian Penal Code (Dowry death) provides that where the death of a woman is caused by burns, bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage, and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death and the husband or relative shall be deemed to have caused her death. The punishment shall be imprisonment for not less than seven years, which may extend to life imprisonment. Section 498A of the Indian Penal Code (Husband or relative of husband of a woman subjecting her to cruelty) provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Cruelty includes any wilful conduct likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health, or harassment with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security. Section 113B of the Indian Evidence Act creates a presumption of dowry death when it is shown that soon before her death the woman was subjected to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that the accused caused the dowry death., The Supreme Court in Baijnath v. State of Madhya Pradesh explained that the ingredients of dowry death under Section 304B are: (i) death of the woman by burns, bodily injury or other abnormal cause; (ii) death occurring within seven years of marriage; and (iii) the woman being subjected to cruelty or harassment by her husband or his relative for, or in connection with, a dowry demand soon before death. The offence under Section 498A is attracted when the woman is subjected to cruelty, which is defined as wilful conduct likely to drive her to suicide or cause grave injury, or harassment to coerce her or a related person to meet an unlawful demand for property or valuable security., The presumption under Section 113B of the Indian Evidence Act is founded on proof of cruelty or harassment of the deceased woman for, or in connection with, a dowry demand by the accused. The presumption is activated only upon proof that the deceased was subjected to such cruelty or harassment in reasonable contiguity to her death. The burden on the prosecution is to substantiate the ingredients of both offences by direct and convincing evidence; without such proof, the presumption cannot be invoked., The Court has held that the presumption under Section 304B and Section 113B is contingent upon the prosecution first establishing the ingredients of the offence, as reiterated in Shindo v. State of Punjab and Rajeev Kumar v. State of Haryana. The prosecution must prove beyond reasonable doubt that the accused subjected the woman to cruelty in connection with a dowry demand soon before her death; only then may the court presume the commission of dowry death., The deceased died on 22 June 1995 and was cremated on the same day. The appellant claimed that the parents, residing about 290 kilometres away, were informed but could not reach in time. The maternal grandmother and two maternal uncles, living about one furlong from the matrimonial residence, were present at the cremation, did not raise any issue, and, on the intervention of the panchayat, collected all dowry articles., Witness 1, Pratap Singh, the father, stated that two months after the marriage his daughter complained about a demand for a motorcycle, and later about a demand for land, but there was no indication that such demands were made immediately before her death. He admitted that his mother‑in‑law and two brothers‑in‑law were present at the funeral and were threatened not to lodge a complaint. Witness 2, Balbir Singh, a maternal uncle, said that sufficient dowry had been given at the time of marriage and later heard of a motorcycle demand; he lived about one furlong from the appellant’s house and did not observe any dowry demand or harassment at the time of death. Witness 3, Beero Bai, the maternal grandmother, lived about one mile from the appellant’s house and testified that the deceased was treated badly, was not allowed to return to her parental home, and that the appellant asked her to bring a motorcycle and later land, which she denied. Her testimony contained no reference to cruelty or harassment immediately before death., Witness 4, Joginder Singh, a maternal uncle, was declared hostile. Witness 5, Sub‑Inspector Rajindra Singh, was a formal witness who only registered the First Information Report and arrested the accused. Witness 6, Babban Singh, Circle Officer, Faridpur, the investigating officer, admitted that he recorded the statement of Jagir Singh, the material witness who informed the father of the death, but Jagir Singh was not produced in evidence., The prosecution evidence does not contain any statement that the deceased was subjected to cruelty or harassment by the appellant or his family members on account of a dowry demand soon before her death. Only oral averments regarding earlier demands for a motorcycle and land are recorded, which are far removed from the incident. Consequently, the prerequisites for invoking the presumption under Section 304B of the Indian Penal Code or Section 113B of the Indian Evidence Act are not satisfied, and the ingredients of Section 498A are likewise not established., The defence produced Gurmeet Singh as Defence Witness 1, who was the head of the village at the time of the incident. He stated that the information about the death was given to the parents and other family members, and that the deceased’s belongings were handed over to her maternal grandmother and uncle after cremation, consistent with the statements of Beero Bai and Balbir Singh, indicating no suspicion regarding the death., On a collective appreciation of the evidence, it is the considered view that the prerequisites to raise the presumption under Section 304B of the Indian Penal Code and Section 113B of the Indian Evidence Act have not been fulfilled; therefore, the conviction of the appellant cannot be justified. The fact that the death was unnatural within seven years of marriage is insufficient to sustain a conviction under Sections 304B and 498A., The conviction and sentence of the appellant under Sections 304B, 498A and 201 of the Indian Penal Code cannot be legally sustained. The appeal is allowed, the impugned judgment of the High Court of Uttarakhand is set aside, and the bail bonds stand cancelled.
id_1076	0	Record of Cases No. 394/SO/2020 Date: 04-01-2022 Notification Subject: COVID-19 – Hearing of the cases in the Telangana High Court – Modified instructions – Issued. Reference: Telangana High Court Notification in Record of Cases No. 394/50/2020, dated 05-11-2021., Considering the spike in COVID-19 cases and other variants in the State of Telangana and the health and safety of the stakeholders, the Telangana High Court has decided to suspend the physical hearing of cases by the Honourable Division Benches and Single Benches with immediate effect until further orders. However, the Honourable Judges will have discretion to hear matters either physically or virtually. The Registrar (Judicial I) shall take instructions from the Honourable Judges as to the mode of their Lordships' sitting and notify the same in advance. During physical hearings, learned advocates and parties-in-person should adhere to the COVID-19 protocols, viz., wearing face masks, using sanitizers and maintaining physical distancing., Principal Secretary to the Honourable Chief Justice, Telangana High Court (for placing the same before the Honourable Chief Justice). All Personal Secretaries to the Honourable Judges (for placing the same before the Honourable Judges). All Registrars, Telangana High Court (for information and necessary action). The Registrar (Judicial I), Telangana High Court (with a request to take instructions from the Honourable Judges as to the mode of hearing of cases). The Secretary, Bar Council of Telangana (for information). The President, Telangana High Court Advocates Association, Hyderabad (for information). All Unit Heads in the State (for information). All Service Associations, Telangana High Court, Hyderabad (with instructions to intimate all staff members). All Officers of the Telangana High Court, Hyderabad. All Section Officers/Section Heads, Telangana High Court, Hyderabad (for circulating among the staff members working under their control). The Overseer, Telangana High Court, Hyderabad (for circulating among the staff members working under his control).
id_1077	0	Reserved on: 2nd June 2022 Pronounced on: 4th July 2022 Through: Mr. N.S. Dalal, Ms. Rachana Dalal and Mr. Alok Kumar, Advocates versus Through: Mr. Parvinder Chauhan and Mr. Sushil Dixit, Advocate for Delhi Urban Shelter Improvement Board, Ms. Geetanjali Mohan, Advocate for ..., The homeless, who occupy the pavements, the footpaths, and those inaccessible nooks and crannies of the city from where the teeming multitude prefer to avert their eyes, live on the fringes of existence. Indeed, they do not live, but merely exist; for life, with its myriad complexities and contours, envisaged by Article 21 of our Constitution, is unknown to them. Even a bare attempt at imagining how they live is, for us, peering out from our gilt‑edged cocoons, cathartic. And so we prefer not to do so; as a result, these denizens of the dark continue to eke out their existence, not day by day, but often hour by hour, if not minute by minute., The Constitution of India, Articles 38 and 39, obligate the State to secure a social order in which the sacred preambular goal of justice, social, economic and political, informs all institutions of national life and, towards this end, to strive to minimise inequalities in income, and to endeavour to eliminate inequalities in status, facilities and opportunities. In particular, Article 39 requires the State to direct its policy towards securing (i) that citizens have the right to an adequate means of livelihood (vide clause (a)), (ii) that ownership and control of material resources of the community are so distributed as best to subserve the common good (vide clause (b)), and (iii) that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment (vide clause (c)). Alleviation of the plight of the poor and homeless is subsumed in each of these directive principles which, though they are not enforceable by any court, are nonetheless fundamental in the governance of the country and mandatorily required to be borne in mind by the State while making laws (vide Article 373). One may legitimately extrapolate the mandate of Article 37 to require the State to bear, in mind, the directive principles not only while making laws, but also while implementing laws. Every statutory instrument, be it plenary or subordinate, is required to be so interpreted as to render it constitutional, rather than unconstitutional. These principles require all statutes and instruments of state policy to be interpreted in a manner which would harmonise with the directive principles of state policy contained in Chapter IIIA of the Constitution of India., When the poor and deprived knock at the doors of the Supreme Court of India, the Supreme Court of India is required to be sensitive and sensitised in equal measure. The Supreme Court of India is required to remain alive to the fact that such litigants do not have access to exhaustive legal resources. The onus that the law places on the petitioner who petitions the Supreme Court of India, to positively establish every ingredient necessary to entitle him to relief, has, in the case of the impecunious with meagre resources at hand, to be tempered with the conviction that, if the litigant is entitled to relief, relief should not be denied to him on technical considerations. As one of the three co‑equal wings of the government, albeit functioning independent of, and uninfluenced by, the other two, the judiciary is required to remain as sensitive to the call of Articles 38 and 39 as the legislature or the executive. Law, with all its legalese, is worth tinsel if the under‑privileged cannot get justice. At the end of the day, our preambular goal is not law, but justice. Law is but the instrument, the via media, as it were, to attain the ultimate goal of justice, and law which cannot aspire to justice is therefore not worth administering., The petitioners are five in number. It is noted at the very outset that the petition has not been filed in a representative capacity, and that the relief sought in the petition is restricted to the five petitioners before the Supreme Court of India. For no fault of the petitioners, this petition has lingered in this Supreme Court of India for 13 years since it was filed. Issuance of omnibus directions, at this distance of time, in respect of persons who may not have chosen to approach the Supreme Court of India, would be neither practical nor practicable., This judgment would also, therefore, apply in its operation to the five petitioners in this petition, and to no one else., The petitioners claim to have been residing in the Shahid Basti jhuggi (slum) cluster, near the New Delhi Railway Station, since the 1980s, which falls in the Nabi Karim electoral constituency. They claim that their names were entered in the Electoral Register and that they were also exercising voting rights. They also claim to be in possession of ration cards and/or other documents which would establish their claim that, since the 1980s, they had been residing in the Shahid Basti slum colony., In 2002‑2003, the Railways, who were seeking to convert the New Delhi Railway Station into a world‑class railway station and, for that purpose, to increase the number of platforms from nine to sixteen, desired to acquire the land on which the petitioners were situated. The petitioners aver that, for this purpose and at the behest of the Railways, they shifted to another location on the opposite side of the tracks, situated at Lahori Gate, and set up a slum colony there. The name of the slum colony, it is stated, remained the same, i.e., Shahid Basti., The Railways have, in an Additional Affidavit filed by them pursuant to orders passed by this Supreme Court of India, acknowledged the fact that, during the exercise of increasing the number of platforms in the New Delhi Railway Station in 2003, they had to remove the jhuggi in the Shahid Basti below the foot over bridge and shift them to the Lahori Gate side. Though they contend that only ten to fifteen jhuggi were so shifted, the petitioners, in their response to the additional affidavit, dispute this figure and assert that their jhuggi were amongst those which were so relocated., Continuing expansion and modernisation of the New Delhi Railway Station required the Railways to clear the area at the Lahori Gate side as well. Accordingly, after issuing notices to the residents of the jhuggi situated in the area on 16 May 2008 and 27 May 2008, the Railways proceeded to demolish the jhuggi on 14 June 2008 and evict the petitioners therefrom., Admittedly, the slum cluster at the Lahori Gate side, in which the petitioners were residing when they were evicted in 2008, prompting them to approach this Supreme Court of India, was set up only in 2003, after the petitioners were evicted from the slum cluster in their occupation on the opposite side of the tracks., The petitioners contend that, under the Policy for Relocation of Slum Dwellers of the Ministry of Urban Development (the Relocation Policy), the eviction of the petitioners could not have been undertaken without a prior survey to ascertain the jhuggi dwellers who would be eligible for relocation under the Relocation Policy and, thereafter, allocating to such eligible jhuggi dwellers alternate plots where they could reside., The Railways contend, per contra, through Ms. Geetanjali Mohan, learned Advocate, that the Relocation Policy envisaged relocation only of residents of jhuggi which had been set up on or before 30 November 1998. The petitioners' jhuggi at Lahori Gate having admittedly been set up only in 2003, the Railways contend that the petitioners could not be regarded as entitled to relocation. The requirement of conducting a survey, according to the Railways, applies only to eligible slum clusters which were in existence at the site on or before 30 November 1998. No fault, therefore, could be found in the petitioners having been evicted from the Lahori Gate area without conducting any survey. Requisite notice, prior to eviction, was issued to the petitioners, not once, but twice., Mr. Parvinder Chauhan, learned Advocate for the Delhi Urban Shelter Improvement Board, as the rechristened Slum and Jhuggi Jhopri Department of the Government of National Capital Territory of Delhi, submits that the DUSIB does not determine the entitlement of eligibility of jhuggi dwellers to relocation. That entitlement has to be determined by the land‑owning agency, in the present case, the Railways. If the Supreme Court of India were to hold that the petitioners were eligible for relocation, it would be for the Railways to relocate the petitioners, and the responsibility of the DUSIB would only be to assist in the relocation., At the same time, Mr. Chauhan echoes Ms. Mohan's contention that the petitioners were not, under the Relocation Policy, entitled to relocation. Any order passed to that effect by this Bench would be susceptible to appeal and, were such appeal to be preferred, the DUSIB would also be a party in the proceedings., That, then, is the limited factual matrix., Mr. Dalal, learned Advocate for the petitioners, submits that, as holders of documents which proved that they were residing in jhuggi, albeit on the other side of the tracks, since the 1980s, and in view of the admission by the Railways that they had been shifted, at the Railways' insistence, to the Lahori Gate area in 2003, the petitioners could not be regarded as ineligible for relocation under the Relocation Policy. It would be unreasonable, contends Mr. Dalal, to disentitle the petitioners to relocation merely because the jhuggi in which they happened to be residing at the time of their eviction in 2008 was set up only in 2003, ignoring the fact that, for more than two decades prior thereto, they had been residing in jhuggi on the other side of the tracks. Mr. Dalal also submits that the entire exercise of eviction of the petitioners was in contravention of the Relocation Policy, which envisaged a joint survey before such an exercise was undertaken, to identify slum dwellers eligible for relocation. Without conducting any such survey, Mr. Dalal submits that the Railways cannot seek to contest the petitioners' entitlement to relocation. To a query from the Supreme Court of India as to whether, at this distance of time, the petitioners are still pressing their claim for relocation, Mr. Dalal submits that the petitioners are still in touch with him, and continue to press their claim. He relies on the judgment of the Division Bench of this Supreme Court of India in Sudama Singh v. Government of Delhi., Mr. Chauhan's submissions, on behalf of the DUSIB, have already been noted supra. He further emphasises the fact that the Relocation Policy is not under challenge and that, therefore, the petitioners are bound by the cut‑off date of 30 November 1998, envisaged by the Policy. He draws attention to the fact that paragraph 25 of the Relocation Policy makes it incumbent on the land‑owning agency to approach the District Commissioner to clear squatters who had encroached on the lands after 30 November 1998. Mr. Chauhan submits that the fixation of the cut‑off date was salutary in its purpose, as the length of stay in the jhuggi was a measure of the penury of the resident., Ms. Mohan, appearing for the Railways, submits that there is no ambiguity, whatsoever, in the Relocation Policy, which contemplates relocation only of dwellers of jhuggi which were in existence prior to 30 November 1998. Once the petitioners had admitted that the jhuggi on the Lahori Gate side, in which they were residing in 2008, had come up only in 2003, she submits that the petition is devoid of any sustainable course of action. She also emphasises that the Relocation Policy, and the fixation of a cut‑off date of 30 November 1998, thereunder, is not under challenge and that, therefore, the petitioners, as well as the Supreme Court of India, would be bound by the said cut‑off date. She submits that there are several judicial pronouncements upholding the validity of fixation of cut‑off dates in governmental policies, and submits that an open‑ended policy, with no cut‑off date, would become impossible and impracticable to manage. Ms. Mohan points out that the judgment of the Division Bench of this Supreme Court of India in Sudama Singh, on which Mr. Dalal relies, itself directs, in its concluding paragraph, relocation of the eligible jhuggi dwellers, in terms of the Relocation Policy, subject to proof of residence prior to the cut‑off date. As such, the sanctity of the cut‑off date stands recognised even by the Division Bench of this Supreme Court of India. Inasmuch as the jhuggi from which the petitioners were evicted was found to be of recent (2003) vintage, as the petitioners themselves admit, Ms. Mohan submits that no fault could be found with the Railway authorities in evicting the petitioners without conducting any prior survey. It is only where the jhuggi was found to have been in existence prior to 30 October 1998, submits Ms. Mohan, that a biometric survey was required to be conducted, in order to ascertain the identity of the jhuggi dwellers eligible for relocation. Ms. Mohan places reliance on the judgment of this Supreme Court of India in Rohit Raj Chhabra v. Union of India, and emphasises paragraph 24 of the report in that case., Mr. Chauhan and Ms. Mohan submit, jointly, that, as the cut‑off date, under the Relocation Policy, was not with respect to residence in Delhi but with respect to the date from which the jhuggi, from which the petitioners were being evicted, had been in existence, the documents such as the electoral card, ration card, etc., that the petitioners sought to press into service to show that they were residing in Delhi since the 1980s, could not come to their aid., The entire dispute revolves around the Relocation Policy, and it is necessary to reproduce the relevant clauses thereof as follows:, Sub: Policy Guidelines for implementation of the scheme for Relocation of Jhuggi Jhopri clusters. The Government of Delhi is implementing a plan scheme for relocation of Jhuggi Jhopri clusters in Delhi. After reviewing the major problems in the implementation of the existing relocation policy, it has been decided to review the policy guidelines for effective implementation of the scheme. The Delhi Government has approved the revised policy guidelines for implementation of the plan for relocation of Jhuggi Jhopri clusters. Accordingly, the existing policy for relocation of Jhuggi Jhopri clusters is revised with effect from 1 April 2000. Jhuggi will be relocated only from project sites where specific requests had been received from the land‑owning agencies for cleaning of the project lands. No large‑scale removal of these should be resorted to without any specific use for the cleared site. The cut‑off date for beneficiaries would be 30 November 1998. To verify eligibility, ration cards issued prior to 30 November 1998 will be taken into account. The name of the allottee must also figure in the notified Voters List as on 30 November 1998. Jhuggi which came up after 30 November 1998 will be removed without any alternative allotment by the project Executing Agency. The size of plot for a single dwelling unit with WC is 20 square metres for Jhuggi dwellers who were eligible before 31 January 1990 and 15 square metres for those who became eligible between 1 February 1990 and 30 November 1998, with ground coverage of 100 percent. The grant of freehold plot to Jhuggi dwellers at the relocation site has been agreed to in principle by the Delhi Government subject to clearance by the Government of India. Separate instructions with regard to nature and tenure shall be issued shortly. Prior to relocation and payment of subsidy by the land‑owning agency and Delhi Government, a joint survey of the sub‑cluster will be carried out by the District Commissioner of the revenue district, jointly with the land‑owning agency and Executing Agency. The figure of rupees to be relocated should be determined on the basis of this survey, keeping in view the eligibility criteria. The Slum Wing of the Municipal Corporation of Delhi will be the Executing Agency for relocation of Jhuggi Jhopri clusters from the lands belonging to the Municipal Corporation of Delhi and Delhi Government at its departments/agencies. In case of Central Government Departments/Agencies like Railways, DDA, L & D, DCB, NDMC, etc., they will be free to carry out the relocation themselves as per the policy of the Delhi Government, or entrust the work to the Slum Wing of the Municipal Corporation of Delhi. The subsidy of the Delhi Government as per the approved funding pattern will be available to all the Executing Agencies., Sudama Singh, authored by A.P. Shah, Chief Justice, is regarded as a watershed in slum rehabilitation jurisprudence. The judgment examines, in incisive detail, the rights of slum dwellers, referring, in the process, to the relevant clauses of the Master Plan for Delhi 2021, international conventions, the 2009 Urban Poverty Report of the Ministry of Housing and Urban Poverty Alleviation, Government of India, the Relocation Policy, and pronouncements of the Supreme Court of India and the South African Constitutional Court, relevant to the issue., The issue in controversy in Sudama Singh is different from that which arises in the present case. The defence put up by the governmental authorities to the petitioners' prayer for rehabilitation in that case was that the petitioners were occupying areas which blocked the right of way. Slum dwellers who blocked the right of way, contended the respondents before the Supreme Court of India in the said case, were not entitled to relocation on being uprooted from the areas in their occupation. Indeed, so insubstantial was the argument that its outcome might justifiably be regarded as having been pre‑ordained. Predictably, this Supreme Court of India held that the Rehabilitation Policy, which was aimed at protecting the rights to life and livelihood of slum dwellers, did not engraft within itself any exception in respect of slum dwellers who occupied the right of way. Emphatically rejecting the stand adopted by the respondents before it, this Supreme Court of India declared that (i) the decision of the respondents holding that the petitioners are on the 'Right of Way' and are therefore not entitled to relocation is illegal and unconstitutional; (ii) in terms of the extant policy for relocation of jhuggi dwellers, which is operational in view of the orders of the Supreme Court of India, the cases of the petitioners will be considered for relocation; (iii) within a period of four months from today, each of those eligible among the petitioners, in terms of the above relocation policy, will be granted an alternative site as per MPD‑2021 subject to proof of residence prior to the cut‑off date; and (iv) the State agencies will ensure that basic civic amenities, consistent with the rights to life and dignity of each of the citizens in the jhuggi, are available at the site of relocation., The decision of the Division Bench of this Supreme Court of India in Sudama Singh was carried by the Government of National Capital Territory of Delhi in appeal to the Supreme Court of India vide SLP (C) 445‑446/2012, which was, however, withdrawn. Sudama Singh therefore continues to hold the field., Paragraph 6 of the Relocation Policy reads: Cut‑off date for beneficiaries would be 30 November 1998. To verify eligibility, ration cards issued prior to 30 November 1998 will be taken into account. The name of the allottee must also figure in the notified Voters List as on 30 November 1998. Jhuggi which came up after 30 November 1998 will be removed without any alternative allotment by the project Executing Agency., If one reads the last stipulation in isolation, unquestionably the respondents' contention has merit. It appears to lay down an absolute proscription to grant alternative allotment to residents of jhuggi which came up after 30 November 1998., What the Relocation Policy does not address, however, is the fate of dwellers, such as the petitioners, who were found residing in jhuggi which had come up after 30 November 1998, but who were residing, even prior thereto, in jhuggi located elsewhere. Can they be denied the benefit of relocation merely because the jhuggi in which they happened to be residing at the time when the authorities came to evict them were established after 30 November 1998?, To a pointed query in this regard, learned counsel for the respondents responded, in one voice, in the affirmative. Their contention is that, for better or for worse, paragraph 6 of the Relocation Policy says what it does. It fixes a cut‑off date, and fixation of a cut‑off date, even in the matter of extending a beneficial executive dispensation to citizens, has been held, in several decisions, to be legally justifiable. The cut‑off date, once fixed, is sacrosanct. The cut‑off date, even in the terms in which it has been fixed in paragraph 6 of the Relocation Policy, applies to the date on which the jhuggi in which the persons being evicted were found to be residing had come into existence. There is no scope, in the Relocation Policy, to investigate into the living conditions of the jhuggi dwellers prior to their taking up residence in the jhuggi slated for demolition., The petitioners, learned counsel submit, that the jhuggi in which they were found residing on 14 June 2008, when the Railway authorities visited the site, having been found to have come up after 30 November 1998, the scope of enquiry ended there. The petitioners were, by the very fact that the jhuggi in which they were residing were of recent vintage, ipso facto disentitled to relocation; ergo, no occasion arose for conducting any survey or for any further enquiry into the matter. All that remained was to evict the petitioners. The petitioners' contention that, since the 1980s, they had been residing in jhuggi elsewhere, according to learned counsel for the respondents, is irrelevant, as what matters is the date on which the jhuggi in which the petitioners were found to be residing at the time when they were being sought to be uprooted had come up., By way of an aside, I note that Mr. Dalal had also queried how the respondents came to know that the jhuggi in which the petitioners were found residing on 14 June 2008 had come up after 30 November 1998 without conducting any survey. I do not intend to devote time to this issue, as the petitioners admit that the jhuggi at the Lahori Gate side of the tracks had, indeed, come up only in 2003., Returning to the issue at hand, the Supreme Court of India is required to assess the merit of the respondents' contention that, if the jhuggi which were proposed to be removed had come up after 30 November 1998, the question of whether the residents of such jhuggi had, prior to the said jhuggi being set up, been residing in jhuggi elsewhere, is irrelevant in determining their entitlement to relocation., While it is true that paragraph 6 of the Relocation Policy does not grant any beneficial amnesty to jhuggi dwellers who were residing in jhuggi elsewhere prior to the cut‑off date of 30 November 1998, equally it does not state, either expressly or by necessary implication, that such pre‑30 November 1998 residence in jhuggi located elsewhere is irrelevant in determining the entitlement of the jhuggi dwellers to relocation. In fact, the Relocation Policy does not address the plight of persons who, though the jhuggi in which they were residing at the time of visit by the authorities had come up after 30 November 1998, were in fact residing in jhuggi elsewhere prior to the said cut‑off date., The directions in Sudama Singh do not assist much in this regard. Direction (iii) mandates relocation of those petitioners before this Supreme Court of India in the said case, who were eligible for relocation under the Relocation Policy, subject to proof of residence prior to the cut‑off date. Reading this stipulation as subject to proof of residence in the jhuggi from which they are being sought to be evicted, prior to the cut‑off date, would, in my view, amount to rewriting Sudama Singh. That, however, is how learned counsel for the respondents would seek to read Sudama Singh. In my view, that is impermissible. The latitude available with a court in interpreting a precedent can never extend so far as to enable it to rewrite the precedent., The issue of how the Relocation Policy would apply to a jhuggi dweller being sought to be evicted from Jhuggi A on the ground that Jhuggi A was set up after 30 November 1998, if the said jhuggi dweller was residing in Jhuggi B even before 30 November 1998 and till he shifted to Jhuggi A, thus, still looms large., The question remains whether the pre‑existing residence in another jhuggi can establish entitlement to relocation despite the later jhuggi's post‑cut‑off establishment.
id_1077	1	Miss Mohan, appearing for the Railways, submitted that fixing of cut‑off dates for application of beneficial policies is permissible in administrative law and has been upheld in several decisions. To my mind, this argument really begs the issue at hand. The fixing of 30th November 1998 as a cut‑off date for the purpose of availability of the benefit of the Relocation Scheme cannot be regarded as constitutionally infirm. To his credit, Mister Dalal also did not challenge the Relocation Policy on the ground that it ought not to have fixed a cut‑off date of 30th November 1998. That, however, is not the issue. The issue is whether the cut‑off date can be so operated as to deny the benefit of the Relocation Policy to jhuggi dwellers who have been staying in jhuggis in Delhi prior to 30th November 1998, but may have shifted to the jhuggi from which they were being proposed to be evicted only after 30th November 1998. In other words, would the cut‑off date of 30th November 1998 apply to the physical existence of the jhuggi which is being sought to be removed, or to the status of the jhuggi dwellers as jhuggi dwellers? As such, it is not so much the fixation of the cut‑off date of 30th November 1998 as the manner in which that cut‑off date is to be implemented that arises for consideration., Sudama Singh takes note of the judgment of the Supreme Court of India in Bangalore Medical Trust v. B.S. Muddappa to hold that a plan prepared in terms of the statute concerning the planned development of the city attains a statutory character and is enforceable as such. The Relocation Policy would also, in my view, be entitled to similar status, especially as it has from time to time been enforced by the Supreme Court of India., The provisions of the Relocation Policy have, therefore, to be accorded a purposive interpretation. In the context of statutes, the new golden rule is the rule of purposive interpretation, as opposed to the earlier golden rule of literal interpretation, as held by the Supreme Court of India in Shailesh Dhairyawan v. Mohan Balkrishna Lulla and Richa Mishra v. State of Chhattisgarh., Ameliorative and beneficial statutes and schemes have, it is trite, to be broadly and liberally interpreted so as to maximise their scope and effect. The Directive Principles of State Policy are required to be borne in mind, and the Supreme Court of India must lean towards attaining a teleological approach with a social perspective. In Moti Ram v. State of Madhya Pradesh, the Supreme Court of India, in the inimitable words of Krishna Iyer, Justice, advised applying the Gandhian talisman when dealing with statutes which were ameliorative or intended at benefiting the poor and needy: Whenever you are in doubt apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself if the step you contemplate is going to be of any use to him., B. Shah v. Presiding Officer, Labour Court, (1977) 4 SCC 384. Interestingly, Moti Ram identified, in its opening sentences, the grievance of the petitioner before the Supreme Court of India in that case, thus: The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread, lampooned Anatole France. The reality of this caricature of equal justice under the law, whereby the poor are priced out of their liberty in the justice market, is the grievance of the petitioner. We, in the present case, are indeed concerned with the poor, who are forced to sleep under bridges and to beg in the streets., In this regard, covenants in policy documents containing the terms of administrative and executive policies cannot be subjected to as strict an interpretation as would be accorded to plenary or parliamentary statutory instruments. They have, therefore, to be interpreted broadly, keeping in mind the purpose that the policy seeks to achieve., So far as the purpose that the Relocation Policy seeks to achieve is concerned, the answer was provided by Mister Chauhan himself, by his submission while seeking to justify the fixation of a cut‑off date that the length of stay in the jhuggi would be indicative of the level of penury of the jhuggi dweller. Amelioration of the financial condition and quality of life of the jhuggi dweller is, needless to say, the avowed objective of all policies which seek to rehabilitate slum dwellers, including the Relocation Policy. Viewed thus, it would run against the very grain of the Relocation Policy and its aims and objectives to prefer, for rehabilitation and relocation, a jhuggi dweller who has to his credit a shorter length of jhuggi stay as compared to one who has been a jhuggi resident for a longer period of time., As already observed hereinabove, the Relocation Policy does not contemplate a situation in which a dweller in a jhuggi which is being sought to be removed has earlier been dwelling in other jhuggis. If the length of jhuggi stay is, as Mister Chauhan submits, to be treated as indicative of the financial penury of the jhuggi resident, a person who has been residing in jhuggis for a longer length of time would naturally and logically be entitled to preferential treatment in the matter of relocation vis‑vis a person who has been residing in jhuggis for a lesser period of time. At the very least, the Relocation Policy cannot be so applied as to extend its benefits to a jhuggi dweller who has been a jhuggi dweller for a shorter length of time and deny its benefits to a jhuggi dweller with a longer period of jhuggi stay to his credit., If paragraph 6 of the Relocation Policy is to be applied in the manner in which Mister Chauhan and Mister Mohan would advocate, this, however, would be the precise outcome. Learned counsel have been at pains to point out that the concluding stipulation in paragraph 6 refers only to the time from which the jhuggi being sought to be removed has been in existence. The right of the residents of the jhuggi to relocation would, according to them, have to be tested on this ground and on this ground alone. Applying this test, they submit that when, on 14th June 2008, the Railway authorities visited the petitioners' jhuggi at the Lahori Gate side, the jhuggi was found to be of only 2003 vintage. The jhuggi having thus come into existence after the fatal cut‑off date of 30th November 1998, learned counsel would submit that the residents of the jhuggi could not be regarded as entitled to relocation. That they may have, prior to shifting to the jhuggi at the Lahori Gate side, been residing in jhuggis elsewhere, according to learned counsel, is immaterial as it is not envisaged as a relevant circumstance in the Relocation Policy, and the Policy itself is not under challenge., Such an approach would, however, be completely out of sync with the professed objective of the Relocation Policy, which is amelioration of the financial condition of the jhuggi dwellers. The Lahori Gate jhuggi, admittedly, came up in 2003 or thereabouts, approximately five years after the cut‑off date of 30th November 1998. According to the petitioners, prior to shifting to the Lahori Gate side in 2003 at the instance of the Railways, they were, since the 1980s, residing in the Shahid Basti jhuggi on the opposite side of the tracks in the Nabi Karim constituency. Significantly, the fact that jhuggis situated in the Shahid Basti, Nabi Karim, were shifted to the Lahori Gate side at the instance of the Railways stands acknowledged by the Railways themselves in paragraph 4 of their additional affidavit, which reads thus: In any event all these documents bear the addresses as Shahid Basti, Nabi Karim or Ramnagar and so on whereas Railway had removed some jhuggis from between the tracks in order to shift their washing line from New Delhi Railway Station to increase the number of platforms for convenience of the public. Earlier there were only nine platforms at New Delhi Railway Station which were increased to sixteen in number. This was done from the year 2003 to 2008. At that time there was encroachment by about ten or fifteen jhuggis only near the old foot over bridge. This encroachment had a period of three or four years only, after they were removed by Railway Administration from between the tracks thereafter jhuggi dwellers relocated themselves to a nearby area towards Lahori Gate where they were only zero to twenty metres away from the railway track whereas fifteen metres is in fact the safety zone. In this Lahori Gate area jhuggi dwellers relocated themselves in the year. It stands acknowledged by the Railways, therefore, that the jhuggis which came up in the Lahori Gate area in 2003 were populated by dwellers of jhuggis on the other side of the track, from where they were removed by the Railways in 2003. There were, therefore, at least some Lahori Gate jhuggi dwellers who had been jhuggi residents even prior to their shifting to Lahori Gate at the instance of the Railways., If that be so, in my considered opinion, not extending to such jhuggi dwellers who were residents of jhuggis elsewhere prior to their shifting to the Lahori Gate side in 2003 the benefit of the period during which they were residing in jhuggis at other sites while assessing their entitlement to relocation under the Relocation Policy would be against the very object and purpose of the Policy. If, in other words, a resident of the Lahori Gate jhuggi had been a jhuggi dweller, albeit on the other side of the tracks, from a period prior to the cut‑off date of 30th November 1998, it would be unjust, unfair and contrary to the avowed purpose and objective of the Relocation Policy to deny him the benefit of relocation., Jhuggis, it must be remembered, are not structures of cement and concrete. Jhuggi dwellers represent a shifting, nomadic populace. Rarely is it that jhuggi dwellers can claim to permanently establish themselves at any particular site. They are often uprooted from the place where they dwell and shifted, perforce and often against their will, elsewhere. Hounded by poverty and penury, they have no option but to comply. Slum dwellers do not stay in slums out of choice. Their choice of residence is a last‑ditch effort at securing, for themselves, what the Constitution regards as an inalienable adjunct to the right to life under Article 21, viz. the right to shelter and a roof over their heads. As to whether the roof provides any shelter at all is, of course, another matter altogether., Mister Chauhan is, therefore, correct in his submission that the length of jhuggi stay is a measure of the level of penury of the jhuggi dweller. He errs, however, in failing to recognise the sequitur. The longer the length of jhuggi stay that the jhuggi dweller has to his credit, the greater must, of needs, be his entitlement to relocation under the Relocation Policy. Viewed thus, the somewhat blinkered interpretation that learned counsel for the respondents seek to accord to paragraph 6 of the Relocation Policy, merely predicated on the concluding stipulation in the said paragraph, cannot, in my view, sustain., Rather, the paragraph is required to be read as a whole. The opening sentence stipulates that the cut‑off date for beneficiaries would be 30th November 1998. This is succeeded by the stipulation that, to verify eligibility, Ration Cards issued prior to 30 November 1998 will be taken into account. Additionally, the paragraph requires the name of the allottee to figure in the notified Voters List as on 30th November 1998. While emphasizing the specification in the concluding sentence of the said paragraph that jhuggis which had, after 30th November 1998, would be removed without alternative allotment, learned counsel for the respondents did not advert to the earlier stipulations in the paragraph. These indicate that the governing consideration, even in the mind of the framers of the Relocation Policy, was the length of jhuggi stay. If, in other words, the jhuggi dweller could, using his Ration Card or other valid document, establish that, prior to 30th November 1998, he was a jhuggi resident somewhere in Delhi, he had to be regarded as a beneficiary under paragraph 6 of the Relocation Policy. That he may have shifted to the Lahori Gate jhuggi after 1998 cannot, in my view, be a hindrance to his entitlement., By so holding, I am not, in my view, doing violence to the express words of the Relocation Policy for three reasons which already stand elucidated. The first is that the Relocation Policy, being a policy document framed by the executive rather than the legislature, is not subject to the same rigours of interpretation to which legislative documents are subject. The Policy is required to be accorded a purposive interpretation in sync with its objectives. The objective of the Relocation Policy being amelioration of the financial and living conditions of the slum dwellers, the interpretation to be placed on its covenants has also to further this purpose. This, in turn, would require factoring in, as a consideration while examining the jhuggi dweller's right to relocation, his total length of jhuggi stay, whether in the jhuggi which is proposed to be removed or in any other jhuggi elsewhere. The second is that, if paragraph 6 of the Relocation Policy is holistically read, the right to relocation of the beneficiary of the Policy is to be discerned on the basis of the length of residence as evinced by Ration Cards, Voter ID cards and so on. So long, therefore, as the jhuggi dweller is able to establish from such documents that he has been a jhuggi resident, whether in that jhuggi or in any other jhuggi, prior to 30th November 1998, the benefit of the Relocation Policy cannot be denied to him. The third is that we are dealing, in the present case, with a situation not strictly envisaged by the Relocation Policy, i.e., where the resident of the jhuggi which is being proposed to be removed was, prior thereto, staying in jhuggis elsewhere since a point of time prior to 30th November 1998. Dealing, as we are, with a situation that the Relocation Policy does not envisage or cater to, the answer has also to be sought res integra, founded on the principles and objectives behind the Relocation Policy, and not by according to the covenants of the Policy a hyper‑semantic and unduly strict interpretation as one may accord, for example, to a parliamentary legislation., There is yet another, and more equity and fact‑based, reason for me to adopt this view, particularly in the facts and circumstances that obtain in the present case. As already noted, the submission of the petitioners that they were earlier residing in the Shahid Basti jhuggi on the other side of the track in the Nabi Karim constituency and had been shifted at the instance of the Railways to the Lahori Gate side has, to an extent, been acknowledged by the Railways themselves in their additional affidavit. Having themselves compelled the petitioners to shift to the Lahori Gate side in 2003 and thereby cease residence in the Shahid Basti jhuggi at the Nabi Karim side, the Railways cannot seek to capitalise on their action and deny, to the petitioners, the right to relocation on the ground that the jhuggi at the Lahori Gate side came up only in 2003, thereby denying the benefit of their earlier residence in the Shahid Basti jhuggi at the opposite side of the track. In other words, having themselves compelled the petitioners to set up a new jhuggi in 2003, the Railways cannot use that date as the basis to deny, to the petitioners, their right to relocation even though they were residing in jhuggis elsewhere prior to the cut‑off date of 30th November 1998. This would be contrary to every known tenet of propriety and fair play., Somewhat disconcertingly, the Railways have, in their Additional Affidavit, sought to brush aside the documents placed on record by the petitioners to demonstrate the length of their stay in Delhi by stating that the genuineness of the documents could be verified only by the authorities who had issued the documents. The petitioners have responded and, in my opinion, justifiably, that the responsibility of ascertaining the genuineness and veracity of the documents produced by the petitioners as proof of residence would rest with the Railways. The petitioners, as poor slum dwellers, could hardly be called upon to produce the authorities who had issued their ration cards, Voter ID cards or other documents so as to demonstrate their genuineness or veracity. If the Railways do not make the effort at contacting the concerned authorities for that purpose, the benefit of doubt would necessarily enure in favour of the petitioners who had produced the documents., I am therefore of the considered opinion that the sole stand on which learned counsel for the respondents rest their case, i.e., that the jhuggi at the Lahori Gate side of the railway tracks from where the petitioners were uprooted, having come into existence only in 2003, makes the petitioners not entitled to the benefit of the Relocation Policy by virtue of the concluding stipulation in paragraph 6 thereof, cannot sustain on facts or in law. If the petitioners have been residents of the Shahid Basti jhuggi in Nabi Karim prior to 30th November 1998, they would be entitled to the benefit of the Relocation Policy even if the jhuggi at the Lahori Gate site from which they were removed came up only in 2003., Subject, therefore, to the petitioners being able to demonstrate to the respondents that they have been residents of the Shahid Basti jhuggi in Nabi Karim from a date prior to 30th November 1998, they would be entitled to the benefit of the Relocation Policy and would, therefore, be entitled to alternative accommodation. Given the length of time for which this petition has remained pending, this right would, however, enure to the petitioners' benefit only if they are able, additionally, to satisfy the respondents that they continue, till date, to be jhuggi residents., As a result, this petition is allowed to the following extent: (i) It is declared that (a) if the petitioners have been residents of the Shahid Basti jhuggi in Nabi Karim near the railway tracks or the foot over bridge at New Delhi Railway Station from a date prior to 30th November 1998 and have been continuously living in jhuggis till 14th June 2008 when they were removed, and (b) if they are still residing in jhuggis as on date, they would be entitled to be relocated and granted plots in accordance with their entitlement as per Clause 7 of the Relocation Policy; (ii) In order to satisfy the respondents in this regard, the petitioners would present themselves before the officer, to be intimated by the respondent to the learned counsel for the petitioner within a week with all documents in their possession, to demonstrate compliance with conditions (a) and (b) in (i) supra; (iii) Proof of residence would be permitted to be adduced not only by Ration Cards or by Voter ID Cards but also by any other document issued by a public or governmental authority which is verifiable in nature. It would be for the Railways to verify the authenticity, genuineness and acceptability of the concerned document. In case any of the petitioners is required to produce any additional document, in the event of the documents produced by said petitioner being found unsatisfactory, the Railways would apprise the concerned petitioner accordingly; (iv) The petitioners who are found, on a perusal of the documents and keeping in mind the observations and findings in this judgment, to be entitled to alternative allotment would be allotted such alternative accommodation as per the petitioners' entitlement and in accordance with the Relocation Policy. This shall be done as expeditiously as possible and not, in any event, later than six months from the date of production of the documents by the concerned petitioner(s) before the Railways., As the petitioners are slum dwellers, should they be aggrieved by the decision taken by the respondents or by any other act of the respondents in connection with the aforesaid directions, or should they find it necessary to seek any further directions or clarification from the Supreme Court of India, they would be permitted to revitalize these proceedings by moving an appropriate application and would not be required to file a fresh writ petition for the said purpose., It is clarified that the aforesaid directions and the benefit of this judgment apply only to the five named petitioners in this petition.
id_1079	0	Applicant: Phoolchandra Yadav and two others. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Shivam Yadav and Akhilesh Singh. Counsel for Opposite Party: G. A. Honourable Suneet Kumar, J. learned counsel for the applicants and learned Additional Government Advocate appearing for the State through video conferencing., As per the prosecution case, twelve nominated and ten to twelve unknown persons are said to have raised slogans against the Chief Minister and burnt his effigy; the applicants are named in the First Information Report. Learned counsel for the applicants urges that six co‑accused in similar circumstances have been released on bail, that the incident was a political protest, and that the ingredients of the offence under Section 124A of the Indian Penal Code are not made out. It is further submitted that the applicants have been in jail since 17 March 2021, there is no likelihood of early disposal of the trial, and the applicants undertake that if released on bail they will not misuse liberty and will cooperate in the trial. The Additional Government Advocate opposed the prayer for bail., Without expressing any opinion on the merits of the case and considering the nature of the accusation, the severity of punishment on conviction, the nature of supporting evidence, reasonable apprehension of tampering of witnesses and prima facie satisfaction of the Allahabad High Court in support of the charge, the applicants are entitled to be released on bail. Let the applicants Phoolchandra Yadav, Aashutosh Agrahari and Suraj Singh, involved in Case Crime No. 101 of 2021, under Sections 147, 188, 269, 341, 124A of the Indian Penal Code, Section 66 of the Information Technology Act and Section 6 of the United Provinces Special Power Act, 1932, Police Station Karvi, District Chitrakoot, be released on bail on furnishing personal bonds with two sureties each in an amount satisfactory to the Allahabad High Court, subject to the following conditions: The applicants shall file undertakings that they shall not seek any adjournment on dates fixed for evidence when the witnesses are present in court. In case of default of this condition, the Allahabad High Court may treat it as abuse of liberty of bail and pass orders in accordance with law. The applicants shall remain present before the Allahabad High Court on each date fixed, either personally or through counsel. In case of their absence without sufficient cause, the Allahabad High Court may proceed against them under Section 229A of the Indian Penal Code. If the applicants misuse the liberty of bail during trial and a proclamation under Section 82 of the Criminal Procedure Code is issued and they fail to appear before the court on the date fixed in such proclamation, the Allahabad High Court shall initiate proceedings against them under Section 174A of the Indian Penal Code. The applicants shall remain present in person before the Allahabad High Court on the dates fixed for opening of the case, framing of charge and recording of statement under Section 313 of the Criminal Procedure Code. If, in the opinion of the Allahabad High Court, the absence of an applicant is deliberate or without sufficient cause, the court may treat such default as abuse of liberty of bail and proceed against them in accordance with law. The party shall file a computer‑generated copy of this order downloaded from the official website of the Allahabad High Court. The computer‑generated copy of the order shall be self‑attested by the counsel of the party concerned. The concerned court, authority or official shall verify the authenticity of such computerized copy of the order from the official website of the Allahabad High Court and make a declaration of such verification in writing., In view of the extraordinary situation prevailing in the State due to Covid‑19, the directions of the Allahabad High Court dated 6 April 2020 passed in Public Interest Litigation No. 564 of 2020 (In re versus State of Uttar Pradesh) shall also be complied with. The order reads: \Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and Article 227 of the Constitution of India, we deem it appropriate to order that all the accused‑applicants whose bail applications were allowed on or after 15 March 2020 but have not been released due to non‑availability of sureties as a consequence of lockdown may be released on executing a personal bond as ordered by the Allahabad High Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused‑applicants undertake to furnish the required sureties within a period of one month from the date of his or her actual release.\
id_108	0	This application is filed under Section 482 of the Criminal Procedure Code seeking to invoke the inherent powers of this Court to quash the FIR dated 18 December 2020 and the resultant criminal proceedings in Special Protection of Children from Sexual Offences (POCSO) Case No. 10 of 2021 under Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act pending trial before the Special Judge, Protection of Children from Sexual Offences (POCSO) Court, Shillong., The petitioner No.2 lodged an FIR with the Officer‑In‑Charge, Pynursla Police Station, East Khasi Hills on 18 December 2020, alleging that her minor daughter was sexually assaulted by petitioner No.1 on two occasions, 11 December 2020 and 16 December 2020, as narrated by the minor daughter who was found absent from her room by the school teacher and reported to petitioner No.2., According to the material on record, the minor daughter of petitioner No.2 was in a relationship with petitioner No.1. On 11 December 2020, petitioner No.1 picked up the minor girl from her residence, where she was staying with a teacher of St. Anthony’s Higher Secondary School, Pynursla, and took her to a place near Bri War Resort, where they had sexual intercourse inside his vehicle. On 16 December 2020, the minor girl was again found absent from her room; she was dropped by petitioner No.1 at 3:00 AM, after which the teacher discovered her absence and reported the matter to the parents. On this occasion also, petitioner No.1 and the girl engaged in sexual intercourse inside his vehicle., The police registered Pynursla Police Station Case No. 70(12)2020 under Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, and petitioner No.1 was arrested and remained in custody for about ten months before being released on bail., The minor girl, in her statements under Section 161 of the Criminal Procedure Code made to the police and under Section 164 of the Criminal Procedure Code made before the Magistrate, stated that she went with petitioner No.1 on 11 December 2020 and again on 16 December 2020, and that she had sexual intercourse with him inside his vehicle on both occasions. She further stated that petitioner No.1 is her boyfriend and that the relationship was consensual and of her own free will., The Investigating Officer filed a charge sheet finding prima facie evidence against petitioner No.1 under Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act, and he was made to stand trial before the Special Judge, Protection of Children from Sexual Offences (POCSO) Court, Shillong. Before evidence could be recorded, petitioner No.1 and petitioner No.2, as complainant, prayed before the trial court to be allowed to move the High Court with an appropriate application, which gave rise to the present petition., It is submitted that petitioner No.1 as accused and petitioner No.2, the mother of the minor girl who lodged the FIR, have jointly filed this petition, reflecting the bona fide intention of the petitioners., Counsel for the petitioners submits that the two teenagers were involved in a romantic relationship and, being unaware of the legal restrictions, voluntarily engaged in a physical relationship. Accordingly, they argue that this is not a case of sexual assault within the meaning of the Protection of Children from Sexual Offences (POCSO) Act, as there was no extreme depravity, perversity or cruelty, and the accused lacked any ill‑motive or mens rea., The petitioners rely on the decisions of the Vijayalakshmi v. State (Inspector of Police, All Women Police Station, Erode, Criminal Original Petition No. 232 of 2021, order dated 27 January 2021, paragraphs 11 and 18) and Ranjit Rajbanshi v. State of Bengal & Ors. (2021 SCC Online Cal 2470, paragraph 47), wherein the courts adopted a lenient view in similar circumstances., Mr. S. Sengupta, Additional Public Prosecutor appearing for the respondents, submitted that this Court, after reviewing the petition and the material on record, may exercise its discretion to pass the necessary orders., In cases of rape or sexual assault, the act not only affects the physical well‑being of the victim but also leaves a deep emotional scar requiring prolonged counselling. The legislature therefore incorporated stringent provisions in the Protection of Children from Sexual Offences (POCSO) Act to deter any inclination to commit such offences, including the concept of ‘good touch’ and ‘bad touch’ where any sexual overtone in the manner a child is touched can attract prosecution., The difficulty arises when there is mutual love and affection between a child and a person, leading to a physical relationship. Although the consent of a child is immaterial for prosecution under the Protection of Children from Sexual Offences (POCSO) Act, the peculiar facts of a young boyfriend‑girlfriend relationship may warrant a different interpretation, such that the act may not be classified as sexual assault under the Act., The observation of the Honourable Madras High Court in Vijayalakshmi (supra) at paragraph 11 is noteworthy: “There can be no second thought as to the seriousness of offences under the Protection of Children from Sexual Offences (POCSO) Act and the object it seeks to achieve. However, it is also imperative for this Court to draw the thin line that demarcates the nature of acts that should not be made to fall within the scope of the Act, for such is the severity of the sentences provided under the Act. Justifiably so, that if acted upon hastily or irresponsibly, it could lead to irreparable damage to the reputation and livelihood of youth whose actions would have been only innocuous. What came to be a law to protect and render justice to victims and survivors of child abuse can become a tool in the hands of certain sections of society to abuse the process of law.”, The judgment of Ranjit Rajbanshi (supra) is also relevant. Paragraphs 47 and 48 read: “In the present case, the victim girl was admittedly 16 years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the Protection of Children from Sexual Offences (POCSO) Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, a unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression ‘penetrates’ in Section 3(a) of the Protection of Children from Sexual Offences (POCSO) Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the Protection of Children from Sexual Offences (POCSO) Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as a unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.”, In view of the foregoing findings and observations, this Court is of the considered opinion that, for the ends of justice, the FIR dated 18 December 2020 and the proceedings in Special Protection of Children from Sexual Offences (POCSO) Case No. 10 of 2021 under Section 5(1)/6 of the Protection of Children from Sexual Offences (POCSO) Act pending trial before the Special Judge, Protection of Children from Sexual Offences (POCSO) Court, Shillong, be quashed. Accordingly, the FIR is hereby quashed., Consequently, the petition succeeds and petitioner No.1 is released from any liability in the aforesaid criminal case. Any bail bond executed, if any, stands discharged.
id_1081	0	Applicant: Mohd. Abdul Khaliq. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Akhtar Jahan, Bahar Ali. Counsel for Opposite Party: G.A. Honourable Shamim Ahmed, J. Heard Shri Bahar Ali, Shri Prem Prakash, Mrs. Kiran Singh and Shri Hari Shankar Vajpayee, the learned Additional Government Advocate I for the State, and perused the record., The instant application has been filed by the applicant with a prayer to quash charge sheet No. 424 of 2019 as well as the entire proceeding of Case No. 1548 of 2020, State versus Mohd. Khaliq, arising out of Case Crime No. 462 of 2018, under Sections 3, 5 and 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, Police Station Dewa, District Barabanki, pending in the court of the learned Additional Chief Judicial Magistrate, Court No. 16, Barabanki. The facts of the case in short are that a First Information Report dated 02 November 2019 was lodged at Police Station Dewa, District Barabanki with the allegation that, on information received by an informer, when Assistant Sub‑Inspector Dharmendra Kumar Yadav and other police personnel reached Sarsaudi Village near the school, they saw one person coming holding a sack. On seeing police personnel that person tried to return, but the police caught him and on search beef of cow progeny was found in the sack. On interrogation the person identified himself as Zahoor and stated that he and the applicant were involved in cow slaughtering and he was going to Lucknow for selling the same., Learned counsel for the applicant submits that there is no chemical analysis report from the veterinary doctor to establish that the seized meat belongs to cow progeny and, in the absence of any such report, the investigating officer submitted the charge sheet against the applicant, whereupon the learned Magistrate also took cognizance in a routine manner and summoned the applicant for trial. Per contra, learned Additional Government Advocates submit that the charge sheet was rightly submitted by the investigating officer and the cognizance taken by the learned Magistrate is also in accordance with law., The name of the applicant came into light in the confessional statement of co‑accused Zahoor, who was arrested along with the cow meat and who confessed that he and the applicant were involved in slaughtering of a cow; therefore, prima facie offence under Sections 3, 5 and 8 of the Act, 1955 is made out against the applicant., After considering the arguments advanced by the learned counsel for the parties and from the perusal of the charge sheet, the cognizance order and the First Information Report, offence under Sections 3, 5 and 8 of the Act, 1955 is prima facie made out against the applicant. No case is made out for quashing the proceeding of Criminal Case No. 525 of 2020, under Sections 3, 5 and 8 of the Act, 1955., Section 3. Prohibition of cow slaughter. (1) Except as hereinafter provided, no person shall slaughter or cause to be slaughtered, or offer or cause to be offered for slaughter (a) a cow, or (b) a bull or bullock, unless he has obtained in respect thereof a certificate in writing from the competent authority of the area in which the bull or bullock is to be slaughtered, certifying that it is fit for slaughter, in any place in Uttar Pradesh; anything contained in any other law for the time being in force or a usage or custom to the contrary notwithstanding. (2) No bull or bullock, in respect of which a certificate has been issued under sub‑section (1)(b), shall be slaughtered at any place other than the place indicated in the certificate. (3) A certificate under sub‑section (1)(b) shall be issued by the competent authority only after it has, for reasons to be recorded in writing, certified that (a) the bull or bullock is over the age of fifteen years or (b) in the case of a bull, it has become permanently unfit and unserviceable for the purpose of breeding and, in the case of a bullock, it has become permanently unfit and unserviceable for the purposes of dairy and any kind of agricultural operation, provided that the permanent unfitness or unserviceability has not been caused deliberately. (4) The competent authority shall, before issuing the certificate under sub‑section (3) or refusing to issue the same, record its order in writing. (5) The State Government may, at any time, for the purposes of satisfying itself as to the legality or propriety of the action taken under this section, call for and examine the record of any case and may pass such order thereon as it may deem fit. (6) Subject to the provisions herein contained, the action taken under this section shall be final and conclusive and shall not be called into question., Section 5. Prohibition on sale of beef. Except as herein excepted and notwithstanding anything contained in any other law for the time being in force, no person shall sell, transport, offer for sale, or cause to be sold or transported beef or beef products in any form except for such medicinal purposes as may be prescribed. Exception: a person may sell and serve or cause to be sold and served beef or beef products for consumption by a bona‑fide passenger in an aircraft or railway train., Regulation on transport of cow, etc. (1) No person shall transport, offer for transport or cause to be transported any cow, bull or bullock, the slaughter of which in any place in Uttar Pradesh is punishable under this Act, from any place within the State to any place outside the State, except under a permit issued by an officer authorised by the State Government by notified order and except in accordance with the terms and conditions of such permit. (2) Such officer shall issue the permit on payment of a fee not exceeding five rupees for every cow, bull or bullock as may be prescribed, provided that no fee shall be chargeable where the permit is for transport of the cow, bull or bullock for a limited period not exceeding six months as may be specified in the permit. (3) Where the person transporting a cow, bull or bullock on a permit for a limited period does not bring back such cow, bull or bullock into the State within the period specified in the permit, he shall be deemed to have contravened the provision of sub‑section (1). (4) The form of permit, the form of application therefor and the procedure for disposal of such application shall be as may be prescribed. (5) The State Government or any officer authorised by it by general or special notified order may, at any time, for the purpose of satisfying itself as to the legality or propriety of the action taken under this section, call for and examine the record of any case and pass such orders thereon as it may deem fit. (6) Where the conveyance has been confirmed to be related to beef by the competent authority or authorised laboratory under this Act, the driver, operator and owner related to transport shall be charged with the offence under this Act, unless it is proved that the transport medium used in the crime, despite all precautions and without its knowledge, has been used by some other person for causing the offence. (7) The vehicle by which the beef or cow and its progeny is transported in violation of the provisions of this Act and the relevant rules shall be confiscated and seized by the law enforcement officers. The concerned District Magistrate or Commissioner of Police will do all proceedings of confiscation and release, as the case may be. (8) The cow and its progeny or the beef transported by the seized vehicle shall also be confiscated and seized by the law enforcement officers. The concerned District Magistrate or Commissioner will do all proceedings of the confiscation and release, as the case may be. (9) The expenditure on the maintenance of the seized cows and their progeny shall be recovered from the accused for a period of one year or till the release of the cow and its progeny in favour of the owner, whichever is earlier. (10) Where a person is prosecuted for committing, abetting, or attempting an offence under Sections 3, 5 and 8 of this Act and the beef or cow remains in the possession of the accused has been proved by the prosecution and the transported items are confirmed to be beef by the competent authority or authorised laboratory, then the court shall presume that such person has committed such offence or attempt or abetment of such offence, unless the contrary is proved. (11) Where the provisions of this Act or the related rules in the context of search, acquisition, disposal and seizure are silent, the relevant provisions of the Code of Criminal Procedure, 1973 shall be effective thereto., Section 5B. Whoever causes any physical injury to any cow or its progeny so as to endanger its life, such as mutilating its body or transporting it in a manner that endangers its life, or with the intention of endangering its life by not providing food or water, shall be punished with imprisonment for a term not less than one year and which may extend to seven years and with a fine not less than one lakh rupees and which may extend to three lakh rupees. Section 8. (1) Whoever contravenes, attempts to contravene or abets the contravention of the provisions of Section 3, Section 5 or Section 5A shall be guilty of an offence punishable with rigorous imprisonment for a term not less than three years and which may extend to ten years and with a fine not less than three lakh rupees and which may extend to five lakh rupees. (2) Whoever, after conviction of an offence under this Act, is again guilty of an offence under this Act, shall be punished with double the punishment provided for the said offence for the second conviction. (3) The names and the photograph of the person accused of the contravention of the provision of Section 5A shall be published at a prominent place in the locality where the accused ordinarily resides or in a public place, if he conceals himself from the law enforcement officers., The contention of the learned counsel for the applicant that no offence against the applicant is disclosed and that the present prosecution has been instituted with a malafide intention for the purpose of harassment has no force. We are living in a secular country and must have respect for all religions. In Hinduism, the belief and faith is that the cow is representative of divine and natural beneficence and should therefore be protected and venerated. The cow has also been associated with various deities, notably Lord Shiva (whose steed is Nandi, a bull), Lord Indra (closely associated with Kamadhenu, the wish‑granting cow), Lord Krishna (a cowherd in his youth), and goddesses in general because of the maternal attributes of many of them. The cow is the most sacred of all the animals of Hinduism. It is known as Kamadhenu, the divine cow, and the giver of all desires. According to legend, she emerged from the ocean of milk at the time of Samudramanthan, the great churning of the ocean by the gods and demons. She was presented to the seven sages and later came into the custody of sage Vasishta. Her legs symbolize the four Vedas; her source of milk is the four Purusharthas (dharma, artha, kama and moksha); her horns symbolize the gods; her face the sun and moon; and her shoulders Agni, the god of fire. She has also been described in other forms: Nanda, Sunanda, Surabhi, Susheela and Sumana. The origin of the veneration of the cow can be traced to the Vedic period (second millennium BCE). The Indo‑European peoples who entered India in the second millennium BCE were pastoralists; cattle had major economic significance that was reflected in their religion. The slaughter of milk‑producing cows was increasingly prohibited. It is forbidden in parts of the Mahabharata, the great Sanskrit epic, and in the religious and ethical code known as the Manu‑Smriti, and the milk cow was already in the Rigveda said to be “unslayable”. The degree of veneration afforded the cow is indicated by the use in rites of healing, purification and penance of the panchagavya, the five products of the cow – milk, curd, butter, urine and dung. Subsequently, with the rise of the ideal of Ahimsa (non‑injury), the cow came to symbolize a life of non‑violent generosity. Because her products supplied nourishment, the cow was associated with motherhood and Mother Earth and legislation against cow killing persisted into the twentieth century in many princely states. Legends also state that Brahma gave life to priests and cows at the same time so that the priests could recite religious scriptures while cows could afford ghee as offering in rituals. Anyone who kills cows or allows others to kill them is deemed to rot in hell as many years as there are hairs upon his body. Likewise, the bull is depicted as a vehicle of Lord Shiva, a symbol of respect for male cattle. In the Mahabharata, Bhishma observes that the cow acts as a surrogate mother by providing milk to human beings for a lifetime, so she is truly the mother of the world. The Puranas state that nothing is more religious than the gift of cows. Lord Rama was given a gift of many cows. In the late nineteenth and twentieth century, a movement to protect cows arose in India that strove to unify the citizens by demanding that the Government of India ban cow slaughter with immediate effect in the country. This High Court also hopes and trusts that the Central Government may take appropriate decision to ban cow slaughtering in the country and to declare the same as a protected national animal., From the perusal of the materials on record and looking into the facts of the present case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant. At the stage of issuing process the lower court is not expected to examine and assess in detail the material placed on record; only whether a prima facie cognizable offence is disclosed has to be seen. The Supreme Court has laid down the guidelines where criminal proceedings could be interfered with and quashed by the High Court in the following cases: (i) R.P. Kapoor versus State of Punjab, AIR 1960 SC 866; (ii) State of Haryana versus Bhajanlal, 1992 SCC (Criminal) 426; (iii) State of Bihar versus P.P. Sharma, 1992 SCC (Criminal) 192; and (iv) Zandu Pharmaceutical Works Ltd. versus Mohd. Saraful Haq and another, (para 10) 2005 SCC (Criminal) 283. From the aforesaid decisions the Supreme Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is whether the uncontroverted allegation made prima facie establishes the offence and the chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing criminal proceedings to continue. In S.W. Palankattkar and others versus State of Bihar, 2002 (44) ACC 168, the Honourable Supreme Court held that quashing of criminal proceedings is an exception rather than a rule. The inherent powers of the High Court under Section 482 of the Criminal Procedure Code itself envisage three circumstances under which the inherent jurisdiction may be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of the High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists. The High Court would not embark upon an inquiry as it is the function of the Trial Judge or Court., In the result, the prayer for quashing of the charge sheet and criminal proceedings of Case No. 1548 of 2020, State versus Mohd. Khaliq, arising out of Case Crime No. 462 of 2018, under Sections 3, 5 and 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, Police Station Dewa, District Barabanki is refused. There is no merit in this application filed by the applicant under Section 482 of the Criminal Procedure Code. In view of the aforesaid submissions made by the learned counsel for the parties and considering the judgments passed by the Honourable Supreme Court referred above, this High Court finds no merit in the present application and the same is liable to be dismissed. Accordingly, the present application under Section 482 of the Criminal Procedure Code filed by the applicant is dismissed.
id_1082	0	Date of decision: 27 September 2021. Through: Mr. Shahid Ali, Advocate, versus Through: Mr. S. V. Raju, Additional Solicitor General with Mr. Amit Prasad, Special Public Prosecutor for the State along with Mr. Anshuman Raghuvanshi and Mr. Ayodhya Prasad, Advocates and Deputy Commissioner of Police Rajesh Deo, Legal and Crime Branch and Inspector Gurmeet Singh, Crime Branch., The Petitioner seeks bail in FIR No. 60/2020 dated 25 February 2020 registered at Police Station Dayalpur for offences under Sections 186, 353, 332, 323, 147, 148, 149, 336, 427 and 302 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984., The FIR relates to the violence that took place in the National Capital Territory of Delhi in February 2020., The brief facts leading to the instant bail application are that a protest against the Citizenship (Amendment) Act, 2019 had been taking place for one and a half months prior to the incident at Khajuri Square to Loni Circle at Wazirabad Road, Chand Bagh near 25 Futa Service Road by the Muslim community., It is stated in the FIR that the complainant, i.e., Constable Sunil Kumar, was on duty with the deceased Head Constable Ratan Lal and others, namely Head Constable Giri Chand, Constable Mahavir, Constable Jitender, Head Constable Narender, Head Constable Brijesh, W/Head Constable Savitri, as well as Deputy Commissioner of Police Shahdara District Amit Kumar and his staff., It is stated that on 24 February 2020, at about 1:00 PM the protestors had mobilized near the Chand Bagh area and 25 Futa Road and were moving towards the Main Wazirabad Road. When they assembled near Main Wazirabad Road, the complainant and other police officers present attempted to convince the protestors not to move towards the Main Wazirabad Road, however the protestors were carrying sticks, baseball sticks, iron rods and stones. Assistant Commissioner of Police Gokalpuri and Deputy Commissioner of Police Shahdara warned the protestors via loudspeaker that lack of adherence to legal warnings would necessitate strict action against the crowd. Some people amongst the crowd started pelting stones at the police officials and beat them as well as other passersby with the aforementioned weapons that had been hidden., The complainant received an injury on his right elbow and right hand due to a huge stone. The crowd even snatched tear‑gas balls and lathis from the police and started beating them with them. Assistant Commissioner Gokalpuri, Head Constable Ratan Lal and Deputy Commissioner Shahdara Amit Kumar were also beaten with sticks and stones and, as a result, they fell down and suffered grievous head injuries., The FIR states that post the incident the protestors fled and the injured were sent to a hospital, with the complainant receiving treatment at Panchsheel Hospital, Yamuna Vihar, Delhi., The complainant then states that he was informed that Head Constable Ratan Lal had succumbed to a bullet injury and that some other police officers as well as members of the public had also suffered injuries. The protestors had also set fire to the vehicle of Deputy Commissioner Shahdara and private vehicles of police officers and also damaged public and private property., It is stated that investigation is now completed and a chargesheet has been filed against the petitioner on 8 June 2020 wherein the petitioner has been added. The chargesheet states that there is sufficient material to proceed against the petitioner under Sections 201, 120B and 34 of the Indian Penal Code, read with Sections 3 and 4 of the Prevention of Damage to Public Property Act. Thereafter, supplementary chargesheets were filed on 30 June 2020, 20 August 2020, 17 November 2020 and 30 December 2020., Mr. Shahid Ali, learned counsel for the petitioner, has submitted that the petitioner was arrested on 30 March 2020 and has been falsely and illegally implicated in FIR No. 60/2020. He has stated that this is the first bail application which has been preferred before this Honorable Delhi High Court., Mr. Ali has argued that, as per the injury report, which is part of the chargesheet, the death of the deceased was due to a gunshot injury and the same was possibly fired by the gun of a police official. He has stated that the death has not been caused by the sword which was carried by the petitioner and that there has been no allegation that there was a protestor at the site of the alleged incident with a sword. The learned counsel for the petitioner has submitted that the petitioner is not visible in any footage that could prove his presence at the scene of crime and therefore Section 149 read with Section 302 cannot be made out against him., He has submitted that the deadly nature of the riots prompted both Hindus and Muslims to guard their neighbourhoods by carrying various weapons such as lathis, stones etc., not with the intention to participate in the protests or riots but to defend themselves only in the event of an attack as the police had allegedly become either mere spectators or were helping the rioters. He has further submitted that the police, instead of being fair and unbiased, conducted the investigations with mala fide intentions and illegally roped in those who had never even participated in the riots but were only protecting their neighbourhoods., Mr. Ali has argued that the petitioner has never participated in the protest or in the riots at any point of time. He has stated that the material placed on record by the prosecution itself places the petitioner nowhere close to the scene of crime and that the location of cell IDs around 1 PM have not been placed on record. On this basis, Mr. Ali has submitted that the involvement of the petitioner in the gruesome murder of Head Constable Ratan Lal is ruled out., The learned counsel for the petitioner has submitted that the video footage procured by the prosecution cannot be relied upon as it is the case of the police that the petitioner was seen at 12:02 PM in one of the CCTV footages installed at F‑141 Chand Bagh. However, the cell ID of the petitioner indicates that he was present at New Mustafabad or Village Ziauddinpur till 12:47 PM. Therefore, the video footage and the cell ID location of the petitioner are contradictory. Mr. Ali has also submitted that the allegation pertaining to the petitioner being seen carrying a sword at F‑443 Chand Bagh, which is opposite the residence of the petitioner, is also contrary to the allegation that the petitioner was at the scene of crime as F‑443 Chand Bagh is approximately one kilometre away from the scene of crime., Mr. Ali has submitted that no evidence has been placed on record to state that the petitioner was in contact with any of the organisers during the protest. The learned counsel for the petitioner has brought to the Delhi High Court’s attention that more than twenty‑one injuries had been found on the person of the deceased Head Constable Ratan Lal and that, as per the prosecution, Injury No. 1 was caused by a projectile of a rifled firearm and the rest of the injuries were caused by blunt‑force objects. Mr. Ali has submitted that it is evident that none of the injuries were caused by the sword which the petitioner was allegedly holding and that on this basis it cannot be said that he perpetrated any act that may have led to the crime., With regard to the disclosure statement, the learned counsel for the petitioner has submitted that it has no value as it does not lead to any discovery of facts or evidence and that the shirt of the petitioner which has been recovered is of no relevance as similar clothing is available in the market., Mr. Amit Prasad, learned Special Public Prosecutor for the State, has painstakingly taken this Delhi High Court through the videos pertaining to the topography of the area where the incidents occurred. He brought to the attention of the Court three videos that had been found during the investigation which depict the scene of crime – Vishal Chaudhry Video (1 minute 48 seconds) shot from Gym Body Fit Garage, Skyride Video (1 minute 37 seconds) and Yamuna Vihar Video (40 seconds) – and has submitted that the three videos shed light on how the assault on the police personnel was pre‑meditated. The learned SPP has further taken the Court through all the available CCTV footage displaying timestamps and respective lanes wherein the accused have been caught on camera. He has pointed out the timestamps which showcase the dislocation and deactivation of the CCTV cameras and has submitted that the same was done in a synchronized and planned manner., Mr. Prasad has submitted to this Court that the petitioner, who was wearing a skull cap, black Nehru jacket and salwar‑kurta, was identified on Government of National Capital Territory of Delhi Camera ID No. 7033301 installed at F‑443 Chand Bagh at 12:02:26 PM with a sword in his hand. He was further seen on Camera ID No. 7033302 installed at F‑443 Chand Bagh at 12:02:34 PM with a sword in his hand, as well as on Camera ID No. 7033462 installed at F‑288 Gali No. 10 Chand Bagh at 12:02:34 PM with the sword in his hand. The learned SPP further submitted that the petitioner was also seen on Camera ID No. 7033242 installed at F‑348 Chand Bagh at 12:03:17 PM, and on Camera ID No. 7033232 installed at F‑155 Chand Bagh at 12:04:08 PM. Mr. Prasad has further submitted that the petitioner is a resident of Mustafabad and that his residence is at a distance of 1.6 kilometres from the scene of crime., It has been submitted to this Court by the learned SPP that the clothes which were worn by the petitioner on the day of the alleged incident and are visible in the CCTV footage have been recovered. Furthermore, the analysis of the call detail records indicates that the petitioner was at the scene of crime during the time of the alleged incident. It has also been submitted that the petitioner was in contact with the main organiser‑cum‑conspirator Suleman Siddiqui, who is a declared person of interest, and that between 25 January 2020 and 21 March 2020 he had 74 telephonic conversations with him. It has further been submitted that the identity of the petitioner was confirmed by Constable Sunil in the statement recorded on 26 March 2020 under Section 161 of the Criminal Procedure Code, and by Head Constable Tejveer in his statement recorded on 31 March 2020 under Section 161 of the Criminal Procedure Code., The learned Additional Solicitor General Shri S. V. Raju, opposing the bail application, has submitted that the instant case concerns the brutal assault on police officials wherein Head Constable Ratan Lal succumbed to his injuries and Deputy Commissioner of Police Shahdara Amit Sharma and Assistant Commissioner Gokalpuri suffered grievous injuries along with more than fifty police officials also getting injured., It has been submitted that the death of Head Constable Ratan Lal was the first death in the North‑East Delhi riots and that the Trial Court has been dealing with the riot cases since then. It has also been submitted that the Trial Court has been apprised of the matter and has already dismissed the bail application of the petitioner and that the order of rejection of bail does not contain any legal infirmities., The learned Additional Solicitor General has iterated that on 23 February 2020 the protestors who were convened at Wazirabad Main Road, Chand Bagh, unauthorizedly came onto the road and blocked it. He submitted that in response the local police issued a proclamation under Section 144 of the Criminal Procedure Code to bring law and order under control. He further submitted that the protestors held a meeting on the night of 23 February 2020 at Chand Bagh to finalise a plan for 24 February 2020 as the President of the United States, Donald Trump, was coming to New Delhi. This meeting was subsequently attended by several of the accused persons., The learned Additional Solicitor General has submitted that on the morning of 24 February 2020 CCTV cameras installed by the Government of National Capital Territory of Delhi for security in the area were systematically disconnected, damaged or dislocated from 08:00:41 AM to 12:50:57 PM. He argued before the Court that the protest at Chand Bagh continued despite the proclamation of Section 144. As a consequence, police officials were deployed for law and order arrangements. The learned Additional Solicitor General averred that between 12:30 PM and 1:00 PM, at the behest of the organisers of the protest, a crowd carrying various weapons such as dandas, lathis, baseball bats, iron rods and stones convened at the main Wazirabad Road and refused to heed the orders of senior officers. The crowd soon got out of control and started pelting stones at the police officers and, as a result, more than fifty police personnel suffered injuries and Head Constable Ratan Lal was shot dead. It was further submitted that the protestors turned violent, burnt private and public vehicles as well as other properties in the vicinity, including a petrol pump and a car showroom., It was then submitted that the absence of an accused from a video does not translate into absence of the accused from the scene of crime. He has stated that identification of an accused in videography is a Herculean task and therefore, if an accused has been identified, that would be a positive point. Additionally, he relied upon Masalti and Others v. State of Uttar Pradesh, (1964) 8 SCR 133, and submitted that by way of application of Section 149 of the Indian Penal Code, the petitioner would be deemed to be a member of the unlawful assembly and therefore would be equally and squarely liable for the crime committed., The learned Additional Solicitor General has also contended that the addition of the offence under Section 302 IPC meant that ordinarily bail should not be granted. He has argued that it was not a case of a simple offence; if it was a grievous offence which was specially punishable with death, then bail could not be granted. On the issue of the parameters of bail, the learned Additional Solicitor General has submitted that in Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118, the Supreme Court reiterated that the principle underlying Section 437 is towards grant of bail except in cases where there appear to be reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, and also when there are other valid reasons to justify refusal of bail. He has argued that the overriding considerations in granting bail are, inter alia, the nature and gravity of the circumstances in which the offence is committed. The learned Additional Solicitor General has submitted that in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, the Supreme Court held that in addition to the triple test or tripod test, gravity of the offence had to be considered while making a decision on grant of bail. Further, one of the circumstances to consider the gravity of offence would be the term of sentence that is prescribed for the offence which the accused is said to have committed. The learned Additional Solicitor General has argued that as the instant case pertains to the murder of a police officer and that Section 302 IPC has been invoked, the matter lies within the gravest of grave offences and therefore the accused cannot be entitled to bail., Mr. Raju, the learned Additional Solicitor General, has then contended that conspiracy had been established on 23 February 2020 and that the offence was pre‑planned. He has submitted that meetings were held one to two days prior to the alleged incident wherein the protestors were motivated to gather at the site of the alleged incident on 24 February 2020 in order to instigate violence and therefore there was a meeting of minds which made Section 149 and Section 120B of the Indian Penal Code applicable. Furthermore, secret codes had been used and the petitioner was fully involved., It was also submitted that there was only a small contingent of police officers present and they were trying to protect themselves from the frontal attack by the crowd as they were heavily outnumbered. He argued that had it been a simple protest, the crowd would not have been required to come with sticks, weapons etc. Furthermore, if sticks and other weapons were to be utilised for self‑defence, then the damage and dislocation of CCTV cameras defeats the case because such an action would only lead to the inference that the accused wished to destroy the evidence or to ensure that the evidence did not surface. It has additionally been submitted that during police custody, when the petitioner was asked to produce the clothes he had worn on the day of the alleged incident, he stated that he burnt the same and, as per the prosecution, this amounts to deliberate destruction of evidence as stipulated under Section 201 of the Indian Penal Code., The Delhi High Court has heard the learned Additional Solicitor General Shri S. V. Raju with Mr. Amit Prasad, learned Special Public Prosecutor for the State, and Mr. Shahid Ali, learned counsel for the petitioner. The Court has also perused the material on record., A perusal of the material on record indicates that the petitioner was added by way of chargesheet dated 8 June 2020 for offences under Sections 201, 120B and 34 of the Indian Penal Code, read with Sections 3 and 4 of the Prevention of Damage to Public Property Act. The petitioner was arrested on 7 December 2020 and has been in judicial custody since then., It is stated in the chargesheet dated 8 June 2020 that the petitioner, who is a resident of Mustafabad, was identified on various CCTV footages with a sword in his hand, leading other rioters who were coming from the Mustafabad side. It is also stated that the petitioner had admitted in his disclosure statement that he had assaulted the police personnel with his sword. Furthermore, the chargesheet reveals that the clothes which were worn by the petitioner on the day of the alleged incident and were visible on the CCTV footage have been recovered from the house of the petitioner at his instance. The chargesheet further states that the call detail records place him at the scene of crime. It also states that the petitioner was in constant touch with the main organiser‑cum‑conspirator Suleman Siddiqui. The petitioner has further been identified by Constable Sunil and Head Constable Tejveer in statements recorded under Section 161 of the Criminal Procedure Code on 26 March 2020 and 31 March 2020., A perusal of the video footage reveals that the petitioner, who was wearing a skull cap, black Nehru jacket and salwar‑kurta, was seen on Government of National Capital Territory of Delhi Camera ID No. 7033301 installed at F‑443 Chand Bagh at 12:02:26 PM with a sword in his hand. He was further seen on Camera ID No. 7033302 installed at F‑443 Chand Bagh at 12:02:34 PM with a sword in his hand, as well as on Camera ID No. 7033462 installed at F‑288 Gali No. 10 Chand Bagh at 12:02:34 PM with the sword in his hand. The learned SPP further submitted that the petitioner was also seen on Camera ID No. 7033242 installed at F‑348 Chand Bagh at 12:03:17 PM, and on Camera ID No. 7033232 installed at F‑155 Chand Bagh at 12:04:08 PM., In the instant case, the issue which arises for consideration is whether a case for criminal conspiracy for an allegation of murder, i.e., Section 120B of the Indian Penal Code read with Section 302, is made out against the petitioner. In order to delve into the issue, it would be appropriate to reproduce Sections 120A and 120B of the Indian Penal Code at this juncture:, Section 120A – Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation – It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object., Section 120B – Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to the criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both., For a criminal conspiracy to be established, there must be in existence two or more persons who agree to do, or cause to be done, an illegal act or an act which is not illegal by illegal means. The explanation to Section 120A categorically notes that whether or not the illegal act is the ultimate object of the agreement, or is incidental to it, is completely immaterial. In Pratapbhai Hamirbhai Solanki v. State of Gujarat, (2013) 1 SCC 613, the Supreme Court observed that in the case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Consequently, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused., In Ram Narayan Popli v. CBI, (2003) 3 SCC 641, the Supreme Court, while dealing with the question of conspiracy, laid down that the elements of a criminal conspiracy are: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is formed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co‑conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design., Therefore, in order to contend the application of criminal conspiracy under Section 120B and for an indictable offence to be accomplished, there is no requirement for an overt act to be done in furtherance of the conspiracy. It is the common design which gains utmost importance, and the conspiracy is held to be continued and renewed with regard to all its members wherever and whenever any member of the conspiracy acts in furtherance of this common design. There is also emphasis which is placed on the encouragement and support which co‑conspirators render to such enterprises because in the absence of the same, accomplishing such a common design would otherwise be impossible., With regard to the submission that if there appears to be reasonable grounds that the accused has committed an offence which is punishable with death or life imprisonment, then there is a bar imposed by Section 437(1) of the Criminal Procedure Code on granting bail, this Court states that the case of Gurcharan Singh also acknowledges that it is the Court which has the last say on whether there exist reasonable grounds for believing that the accused is guilty of committing the said offence. However, it is for the Courts to bear in mind that the judicial discretion in granting bail is to be exercised in a manner which ensures that the liberty of an individual is not unnecessarily and unduly abridged, and that at the same time, the cause of justice does not suffer. In Gurcharan Singh, the Supreme Court observed that Section 437, Cr.P.C. deals, inter alia, with two stages during the initial period of the investigation of a non‑bailable offence. Even the officer in charge of the police station may, by recording his reasons in writing, release a person accused of or suspected of the commission of any non‑bailable offence provided there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accused is produced before the Court, the Court has a discretion to grant bail in all non‑bailable cases except those punishable with death or imprisonment for life if there appear to be reasons to believe that he has been guilty of such offences., The Supreme Court has also held that, inter alia, the circumstances which are peculiar to the accused should also be a factor that must be taken into consideration while granting or refusing bail. There should, further, exist reasonable grounds for the Court to believe that there exists a genuine case against the accused. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, the Supreme Court observed that while granting bail the Court has to keep in mind the nature of the 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 apprehension of the witnesses being tampered with, the larger interests of the public or the State and similar other considerations. It has also been noted that for the purposes of granting bail the legislature has used the words ‘reasonable grounds for believing’ instead of ‘evidence’, which means the court dealing with the grant of bail can only satisfy itself 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 evidence establishing the guilt of the accused beyond reasonable doubt., A perusal of the material on record has revealed to the Court that the petitioner has been clearly identified on multiple CCTV footages, carrying a sword and instigating the crowd.
id_1082	1	The clinching evidence that tilts the Supreme Court of India towards prolonging the incarceration of the Petitioner is that the weapon which is being carried by the Petitioner is capable of causing grievous injuries and/or death, and is prima facie a dangerous weapon. The argument of the Counsel for the Petitioner that the sword being carried by the Petitioner was merely for self‑defence in a bid to protect himself and his family does not hold any water as the video footage places the Petitioner 1.6 kilometres away from his residence and does not reveal any immediate impending harm to the Petitioner., Furthermore, the Petitioner does not satisfy the ingredients to claim bail on the ground of parity with the co‑accused who have been enlarged on bail vide Orders in Bail Application 1360/2021 dated 24.05.2021, Bail Application 3550/2021 dated 16.02.2021, and Bail Applications Nos. 774/2021, 2411/2021, 1882/2021, 2487/2021, 2775/2021 dated 03.09.2021 as, unlike the Petitioner herein, none of the co‑accused have been caught with a dangerous weapon capable of inflicting grievous injuries and/or even causing death which indicates that there was in existence a design to commit an offence perpetrating the offences mentioned in First Information Report No. 60/2020., In Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446, while dealing with individual liberty and the cry of society for justice, the Supreme Court of India observed: \18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well‑meaning person desires.\, The riots which shook the National Capital of the country in February 2020 evidently did not take place in a spur of the moment, and the conduct of the protestors who are present in the video footage placed on record by the prosecution visibly portrays that it was a calculated attempt to dislocate the functioning of the Government as well as to disrupt the normal life of the people in the city. The systematic disconnection and destruction of the CCTV cameras also confirms the existence of a pre‑planned and pre‑meditated conspiracy to disturb law and order in the city. This is also evident from the fact that innumerable rioters ruthlessly descended with sticks, dandas, bats etc. upon a hopelessly outnumbered cohort of police officials., The Supreme Court of India is of the opinion that even though the Petitioner cannot be seen at the scene of crime, he clearly was a part of the mob for the sole reason that the Petitioner had consciously travelled 1.6 kilometres away from his neighbourhood with a sword which could only be used to incite violence and inflict damage. The Court has previously opined on the importance of personal liberty in a democratic polity, but it is to be categorically noted that individual liberty cannot be misused in a manner that threatens the very fabric of civilised society by attempting to destabilise it and cause hurt to other persons. In light of this, the footage of the Petitioner with the sword is quite egregious, and is therefore sufficient to keep the Petitioner in custody., In view of the facts and circumstances of the case, without commenting on the merits of the matter, the Supreme Court of India is of the opinion that the Petitioner is not to be granted bail. This bail application is, therefore, dismissed, along with any pending applications, if any. It is made clear that the observations made in this Order are only for the purpose of denial of bail and cannot be taken into consideration during the trial.
id_1083	0	The petitioners are the accused in Crime No. 160/2018 of Kalady Police Station. The petitioner in Criminal Miscellaneous Case No. 2814/2022 is the first accused and the petitioner in Criminal Miscellaneous Case No. 2807/2022 is the second accused in the said crime. The crime was registered alleging offences punishable under Sections 341, 308 and 324 read with Section 34 of the Indian Penal Code., The petitioners were arrested in connection with the case and, as per the order dated 9 February 2018 in Criminal Miscellaneous Case No. 197/2018, the Additional Sessions Court, Ernakulam, granted bail to them subject to certain conditions. One condition was that they should not involve themselves in any other crime of similar nature during the bail period., The investigation in the case was completed and the final report submitted. Subsequently, Criminal Miscellaneous Petitions No. 249/2022 and 247/2022 were filed by the Public Prosecutor for cancellation of their bail. The sole reason highlighted was that both petitioners were subsequently involved in Crime No. 1159/2021 of Kuruppampady Police Station, registered for offences punishable under Sections 143, 147, 308, 324, 506(II) and 294(b) read with Section 149 of the Indian Penal Code. The learned Sessions Judge, by order dated 24 February 2022, allowed the applications after hearing the petitioners and cancelled the bail. These orders are now under challenge., The hearing was conducted before the Additional Sessions Court, Ernakulam. Sri M H Hanis appeared as learned counsel for the petitioners, and Sri C S Hrithwik and Sri M P Prasanth appeared as learned Senior Public Prosecutors for the State., The petitioners' counsel contended that the order cancelling the bail granted in 2018 on the basis of a crime registered in 2021 is unwarranted. It was pointed out that in the subsequent crime the petitioners were also granted bail and are complying with the bail conditions. The earlier case is pending trial as the final report has already been submitted. The counsel submitted that the petitioners were falsely implicated in the subsequent crime and that there is no allegation that the alleged victim in the subsequent crime is a witness in the earlier case. Therefore, the mere fact of subsequent implication cannot automatically lead to cancellation of the bail unless cogent and exceptional reasons are highlighted., The learned Senior Public Prosecutor opposed the submission, stating that the petitioners are involved in several cases. The petitioner in Criminal Miscellaneous Case No. 2807/2022 is involved in Crime Nos. 159/2018, 160/2018, 977/2018, 1499/2018 and 1247/2020 of Kalady Police Station, covering offences punishable under Sections 341, 324, 307, 308, 323, 506 and 294(b) read with Section 34 of the Indian Penal Code. The petitioner was also detained under the provisions of the Kerala Anti-Social Activities (Prevention) Act. The prosecutor described the petitioner as a habitual offender and argued that no interference is warranted in the order passed by the learned Sessions Judge., The conditions to be imposed while granting bail are contemplated under Sections 437(3) read with Section 439(1)(a) of the Criminal Procedure Code. The condition not to involve oneself in similar offences during the bail period is specifically stipulated in the provision, indicating its importance and the necessity of compliance., The Supreme Court of India, in Dolat Ram and Others v. State of Haryana [(1995) 1 SCC 349], observed that rejection of bail in a non‑bailable case at the initial stage and cancellation of bail already granted must be considered on a different basis. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. Grounds for cancellation include interference with the administration of justice, evasion of justice, abuse of the concession granted, or a material possibility of the accused absconding. Bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances render it no longer conducive to a fair trial., The view was reiterated in X v. State of Telangana and Another [(2018) 16 SCC 8] and in Dataram Singh v. State of Uttar Pradesh [(2018) 3 SCC 22], where the Supreme Court emphasized the distinction between the yardsticks for cancellation of bail and for appeal against the order granting bail, and reiterated that very cogent and overwhelming circumstances are required for cancellation., While considering an application to cancel bail on the ground of non‑compliance with conditions, the court must examine whether the alleged violation amounts to an attempt to interfere with the administration of justice or affects the trial of the case in which the accused is implicated. In XI Victim SC No. 211 of 2018 of the Protection of Children from Sexual Offences Act v. State of Kerala and Others [2019 (3) KHC 26], the Kerala High Court laid down that the Bail Court must conduct a summary enquiry, afford an opportunity of being heard to the prosecution, the accused and, if possible, the victim, and peruse any related records before deciding whether to cancel bail., Thus, from the above decisions, it is evident that mere violation of a bail condition alone is not sufficient to cancel bail. The court must conduct a summary inquiry based on the records, including documents relating to any subsequent crime, and arrive at a conclusion as to whether cancellation is necessary., In the present case, the petitioners were implicated in offences under Sections 341, 308 and 324 read with Section 34 of the Indian Penal Code in a crime registered in 2018. They were granted bail on 9 February 2018 subject to the condition of not committing similar offences. The present application, filed in 2022, alleges that the petitioners are involved in a crime committed in 2021. Final police reports have been submitted in both cases, and bail was also granted in the subsequent crime after considering the petitioners’ criminal antecedents. Therefore, custody of the petitioners is not required to conduct the trial, and the allegations in the subsequent crime do not relate to intimidation of witnesses in the 2018 case. Both crimes are entirely different and have no connection., The Additional Sessions Court, Ernakulam, is empowered to direct the arrest of persons already released on bail under Sections 437(5) and 439(2) of the Criminal Procedure Code, but such power must be exercised only if absolutely necessary. If the subsequent crime were committed with the intention to influence or intimidate witnesses, the consideration would be different, but it is not the case here. The court must consider factors such as the time gap between the crimes, the possibility of false accusation, bail granted in the subsequent crime, the stage of prosecution, and any potential interference with a fair trial before deciding to cancel bail., In view of the foregoing analysis, the orders passed by the Second Additional Sessions Court, Ernakulam, on 24 February 2022 in Criminal Miscellaneous Petition No. 247/2022 and Criminal Miscellaneous Petition No. 249/2022 in Criminal Miscellaneous Case No. 197/2018 are hereby quashed. This does not preclude the authorities from initiating preventive detention proceedings against the petitioners if there are materials warranting such action under the Kerala Anti-Social Activities (Prevention) Act.
id_1084	0	On 6 May 2021, a hearing was held before the Supreme Court of India (Video Conferencing, Section XIV) arising out of the impugned final judgment and order dated 1 May 2021 in WP(C) No. 3031/2020 and 4 May 2021 in WP(C) No. 3031/2020 passed by the High Court of Delhi at New Delhi. The petitioners were represented by Ms Meenakshi Arora, Senior Advocate (Additional Counsel), Mr Kunal Chatterji, Advocate on Record, Mr Tushar Mehta, Solicitor General, Ms Aishwarya Bhati, Additional Solicitor General, Mr Rajat Nair, Advocate, Mr Kanu Agrawal, Advocate, Mr Amit Mahajan, Advocate, Mr Prashant Singh B, Advocate, Mr Raj Bahadur Yadav, Advocate on Record, and Mr Gurmeet Singh Makkar, Advocate on Record. The respondents were represented by Mr Rahul Mehra, Senior Advocate, Mr Gautam Narayan, Advocate on Record, Mr Satyakam, Advocate, Ms Asmita Singh, Advocate, Mr Adithya Nair, Advocate, Mr Rakesh Malhotra, appearing in person, and Mr Tungesh, Advocate., Upon hearing the counsel, the Supreme Court of India made the following observations on 5 May 2021: (i) the methodology adopted by the Union Government for computing the oxygen requirement of the States and Union Territories; (ii) the need to manage available oxygen resources to optimise their availability for the National Capital Territory of Delhi, which depends on an efficient supply chain, proper distribution of oxygen from supply points to hospitals, and building buffer stocks of oxygen; and (iii) the actual availability of oxygen., The proceedings on 5 May 2021 arose in the context of a notice issued by the High Court of Delhi in its contempt jurisdiction, but many of the issues recorded in the order continue the directions issued on 27 April 2021 and 30 April 2021 in Re: Distribution Of Essential Supplies And Services During Pandemic. The issues faced by the National Capital Territory of Delhi raise common concerns for the rest of the country., The Supreme Court of India noted that on 30 April 2021 certain key issues pertaining to the supply of oxygen were identified, and these were set out in the order., The Union of India was directed to apprise the Court of (a) the projected demand for oxygen in the country at present and in the foreseeable future; (b) the steps taken and proposed to augment the availability of oxygen to meet both current and projected requirements; (c) the monitoring mechanism for ensuring the supply of oxygen, particularly to critically affected States and Union Territories as well as other areas; (d) the basis on which allocation of oxygen is being made from the central pool; and (e) the methodology adopted for ensuring that the requirements of the States are communicated to the Central Government daily so that availability of oxygen is commensurate with the need of each State or Union Territory., These excerpts indicate the broad areas of concern towards ensuring: (i) determination of the quantum of oxygen required by each State and Union Territory by application of a rational and scientific methodology; (ii) allocation of oxygen resources to States/UTs on the basis of such methodology; (iii) efficiency in the distribution of oxygen from points of supply through the distribution network to ultimate users; (iv) monitoring the supply and distribution of oxygen; (v) steps for augmenting available resources based on present and projected demand; (vi) designing and monitoring an efficient system of transportation and logistical arrangements to ensure seamless movement across the supply chain; and (vii) creating buffer stocks accessible in emergencies., The Court also focused on the specific issue of allocation and distribution of oxygen to the National Capital Territory of Delhi. In the order dated 30 April 2021, specific directions were issued: (i) although the projected daily demand of the National Capital Territory of Delhi as of 20 April 2021 had increased from 300 metric tons to 700 metric tons, the existing allocation remained at 490 metric tons per day; (ii) this situation must be remedied forthwith; (iii) on the intervention of the Court, the Union Government stated that the demands for medical oxygen of the National Capital Territory of Delhi would be met and that it would not suffer due to a lack of oxygen; (iv) a peremptory direction was issued by the Court; and (v) the Union Government assured that the deficit of oxygen would be rectified and supplies would be made to the National Capital Territory of Delhi according to their projected demands, which could be revised in the future, by the midnight of 3 May 2021., Following the above order, the High Court of Delhi issued a notice of contempt on 4 May 2021 for alleged non‑compliance of its directions and those of this Court regarding the supply of 700 metric tons of oxygen to the National Capital Territory of Delhi by the Union Government. The Supreme Court of India, in its order dated 5 May 2021, stayed the invocation of the contempt jurisdiction but directed that the directions contained in the order dated 30 April 2021 be duly implemented. While staying the contempt proceedings, an opportunity was granted to the Union Government to place a plan indicating how the 700 metric tons daily requirement of the National Capital Territory of Delhi would be fulfilled., The Court observed that an opportunity should be granted to the Central Government to place before this Court a plan specifically indicating the manner in which the requirement of the National Capital Territory of Delhi of 700 metric tons, as ordered on 30 April 2021, will be complied with, pending further directions. The proceedings were adjourned to 11.00 a.m. the next day, and the Central Government was directed to place a comprehensive plan indicating sources of supply, provisions for transportation, and all other logistical arrangements necessary to fulfill the requirement., In pursuance of the above directions, a proposal was placed on record by the Solicitor General. The Union Government indicated that on 5 May 2021, 730.7 metric tons of oxygen had been received in the National Capital Territory of Delhi. The status of oxygen availability at hospitals and major re‑fillers was as follows: Hospitals (56) – current stock 280 metric tons, average daily consumption 290 metric tons, storage capacity 478 metric tons; Re‑fillers (11) – current stock 73 metric tons, average daily consumption 82 metric tons, storage capacity 187 metric tons; total (hospitals plus re‑fillers) – current stock 353 metric tons, average daily consumption 372 metric tons, storage capacity 665 metric tons., The Union Government submitted that (i) there is a need to unload stocks expeditiously to avoid delay in tanker turnaround; (ii) 280 metric tons of oxygen are arriving in the National Capital Territory of Delhi by oxygen express trains; (iii) the factual requirement of the National Capital Territory of Delhi is not 700 metric tons per day; and (iv) to ensure delivery of the above quantity to the National Capital Territory of Delhi, allocations to other States may have to be reduced., The appended plan detailed three sources of supply to ensure allocation of 700 metric tons to the National Capital Territory of Delhi: (A) Existing allocation and supply already operationalised – 490 metric tons (30 metric tons not being supplied by India Glycols); (B) Existing allocation being operationalised – 100 metric tons plus 40 metric tons (30 metric tons to compensate for India Glycols and 10 metric tons overall); (C) Special allocation – 100 metric tons from Reliance Industries Limited, Jamnagar, Gujarat., The plan included a tabulated statement indicating that the arrival of oxygen in Delhi from Durgapur is contingent on Linde obtaining six containers, and that capacity to transfer 90 metric tons with eighteen containers is available, with additional containers from DP World. The total requirement of containers for supplying 700 metric tons daily to Delhi is contingent upon making available six additional ISO containers for Durgapur and twenty‑four additional ISO containers for Kalinganagar., The plan is subject to the caveat that successful daily transportation of 700 metric tons to Delhi depends on the availability of sufficient containers, which are being procured on lease from abroad by agencies such as Indian Oil Corporation Limited, Reliance, and Linde. Allocation of containers as per the plan might lead to an inadequate number of containers for transportation of oxygen to other States., The Solicitor General submitted that (i) the formula on the basis of which oxygen is allocated to the States and Union Territories is not static and needs to be revisited; (ii) there is an adequate quantity of oxygen resources and steps for augmentation are being undertaken at the highest level; (iii) the existing quantity needs to be allocated to the States and Union Territories; and (iv) a continuous process of importing tankers for transportation is being conducted to resolve bottlenecks., The Solicitor General further argued that (i) many of the demands by the States and Union Territories, including the Government of the National Capital Territory of Delhi, for medical oxygen were unrealistic; (ii) consequently the Union Government devised a formula after assessment; (iii) the shortage in the National Capital Territory of Delhi is due to a systemic failure to ensure proper distribution of oxygen; (iv) an audit of the manner in which available supplies are distributed and utilised should be conducted; (v) an expert committee comprising persons from public and private healthcare institutions may be constituted for a fresh assessment of allocation; and (vi) a national task force of experts should be constituted to determine the method of allocation and distribution of oxygen across States and Union Territories. Smaller expert committees or sub‑groups may look into auditing the distribution and utilisation in each State or Union Territory., While responding to the submissions of the Solicitor General, Mr Rahul Mehra, learned Senior Advocate appearing on behalf of the Government of the National Capital Territory of Delhi, welcomed the supply of 730.7 metric tons of oxygen under the Union Government's allocation. He expressed apprehension that as of 9 a.m. on 6 May 2021, a total quantity of 189.532 metric tons had been delivered and 16.32 metric tons were in transit, resulting in a total availability of only approximately 206 metric tons. He noted that on the previous two days an average of 300 metric tons had been received by the National Capital Territory of Delhi by 9 a.m., Mr Mehra highlighted that (i) a team of officers deployed by the Government of the National Capital Territory of Delhi monitors distribution networks and meets the needs of healthcare institutions and re‑fillers; (ii) the daily requirement of 700 metric tons for the National Capital Territory of Delhi was computed on the basis of the formula adopted by the Union Government without factoring an additional requirement of 256 metric tons consequent upon setting up new facilities, including a facility being set up by DRDO; (iii) the additional facilities cannot be put to use for want of oxygen; (iv) the plan submitted by the Union Government is not in terms of the order of this Court dated 5 May 2021 but seeks, in substance, a review of the order dated 30 April 2021, which is impermissible as the present hearing was confined to a challenge to the Delhi High Court's exercise of its contempt jurisdiction; (v) no attention has been devoted by the Union Government to creating a buffer stock as directed by this Court; (vi) the additional requirement of the National Capital Territory of Delhi (from 490 metric tons to 700 metric tons) is only 210 metric tons, a small fraction of the pan‑India availability of oxygen estimated at 8,410 metric tons by the Union Government; (vii) the actual oxygen lifted by the respective States/UTs as on 28 April 2021, out of their allocated quantity, was only 7,334.53 metric tons; (viii) no material has been produced to show that any other State would be affected by supplying the additional quantity to the National Capital Territory of Delhi; (ix) the data placed on record indicates that the Union Government has made full allocations to certain States and excess to others, whereas the National Capital Territory of Delhi was allocated only 490 metric tons against its demand of 700 metric tons as on 21 April 2021; (x) there is no need for an audit, and if an audit is to be conducted, it should be of the availability of tankers; (xi) any audit would be meaningless unless the formula for allocating oxygen is revisited; and (xii) several steps have been taken by the Government of the National Capital Territory of Delhi to improve transportation efficiency, such as tracking newly acquired tankers on a real‑time basis through GPS., Amicus curiae counsel Mr Jaideep Gupta and Ms Meenakshi Arora emphasized that (i) the projected demand for oxygen must be factored in realistically to assess future needs; (ii) the work of the Task Force should involve epidemiologists, virologists and public health experts to design modelling‑based estimates; (iii) despite the direction of this Court on 5 May 2021 that 700 metric tons of oxygen must be supplied to the National Capital Territory of Delhi, no concrete plan has been provided by the Union Government; (iv) it is crucial for this Court to ensure that the daily requirement of 700 metric tons is fulfilled by the Union Government; and (v) there can be no dispute regarding the existence of oxygen shortages in the National Capital Territory of Delhi, warranting the maintenance of the requirement at 700 metric tons per day and the building of buffer stocks., The directions contained in the order of this Court dated 30 April 2021 leave no doubt that the Union Government is obligated to ensure a daily supply of 700 metric tons to meet the existing requirements of the National Capital Territory of Delhi. This direction was based on the Union Government's assurance to the Court. The High Court of Delhi, finding a breach of this direction, invoked contempt jurisdiction. While the coercive process was stayed, this Court reiterated the direction for maintaining supplies to the National Capital Territory of Delhi at 700 metric tons per day. The Union Government was required to place on record a plan to achieve fulfillment of this direction. The plan placed before this Court is subject to caveats and conditions that cannot be accepted. The assurance in the first part of the plan is diluted by the next segment. The requirement of 700 metric tons is intended to be fulfilled daily, not sporadically. Accordingly, the Court directed that there shall be no reduction in the allocation and availability of medical oxygen to the National Capital Territory of Delhi and that the direction for provision of 700 metric tons per day shall continue to be observed., On 30 April 2021, the order of this Court recorded the Union Government's submission that there is no dearth of oxygen in the country. The shortage of oxygen in the States and Union Territories was attributed to deficiencies in distribution and the inability to lift the entire quantity supplied. The Solicitor General stated that there is no dearth of oxygen supply in the country as on date and steps are being taken continuously to augment the supply. He also admitted that there has been a shortage of supply to certain States, attributing it to failure of State Governments to lift allocated oxygen, transportation bottlenecks caused by inter‑State movement of tankers, and technical failure of certain plants leading to reassessment of allocation on a real‑time basis., The Union Government also recorded that as on 21 April 2021, a quantity of 16,000 metric tons of liquid medical oxygen was available in the country. Actions by steel manufacturers in both private and public sectors resulted in an immediate enhancement of liquid medical oxygen production/capacity by 293 metric tons. Apart from the current generation of liquid medical oxygen, the steel sector made available liquid oxygen from its storage tanks for medical use (approximately 16,000 metric tons as on 21 April 2021). Safety stocks in storage tanks of liquid oxygen at all locations were reduced to 0.5 days to make additional liquid medical oxygen available. To date, the steel industry has supplied 143,000 metric tons of liquid medical oxygen since September 2020. In April 2021, supplies increased from 1,000 metric tons per day in the first week to around 2,600 metric tons on 21 April 2021., Except for a bare assertion that an increase of 210 metric tons to the National Capital Territory of Delhi would result in a corresponding reduction to other States, no material has been produced on record by the Union of India. On the contrary, data produced before this Court regarding allocation and supply of oxygen to the National Capital Territory of Delhi indicates that on 6 May 2021, a total quantity of 577 metric tons was delivered, resulting in a shortfall of 123 metric tons. As of 9:16 a.m. on 7 May 2021, the total quantity received at the National Capital Territory of Delhi border was 87.97 metric tons, while 9.64 metric tons were in transit., The Court directed the Union of India to remedy the situation forthwith and to ensure that the direction for the availability of 700 metric tons is strictly observed on a daily basis, pending further orders., During the hearing, a consensus emerged that the allotment of medical oxygen to the States and Union Territories must be made on a scientific, rational and equitable basis, while allowing flexibility to meet unforeseen emergency demands. The formula adopted by the Union Government had been flagged earlier for deficiencies. The Court suggested that an expert body comprising renowned national experts with diverse experience in health institutions be set up as a National Task Force to provide a public health response to the pandemic based on a scientific approach., The Solicitor General informed the Court that the Union Government has responded favourably and agreed to set up a National Task Force to streamline the process. The Task Force will be tasked, inter alia, with formulating a methodology for the scientific allocation of oxygen to the States and Union Territories. The Union Government proposed names for inclusion in the composition, leaving the final composition to the Court. The National Task Force shall consist of the following members (names in alphabetical order): Dr Bhabatosh Biswas, Former Vice‑Chancellor, West Bengal University of Health Sciences, Kolkata; Dr Devender Singh Rana, Chairperson, Board of Management, Sir Ganga Ram Hospital, Delhi; Dr Devi Prasad Shetty, Chairperson and Executive Director, Narayana Healthcare, Bengaluru; Dr Gagandeep Kang, Professor, Christian Medical College, Vellore, Tamil Nadu; Dr J V Peter, Director, Christian Medical College, Vellore, Tamil Nadu; Dr Naresh Trehan, Chairperson and Managing Director, Medanta Hospital and Heart Institute, Gurugram; Dr Rahul Pandit, Director, Critical Care Medicine and ICU, Fortis Hospital, Mulund, Mumbai and Kalyan, Maharashtra; Dr Saumitra Rawat, Chairman & Head, Department of Surgical Gastroenterology and Liver Transplant, Sir Ganga Ram Hospital, Delhi; Dr Shiv Kumar Sarin, Senior Professor and Head of Department of Hepatology, Director, Institute of Liver and Biliary Science, Delhi; Dr Zarir F Udwadia, Consultant Chest Physician, Hinduja Hospital, Breach Candy Hospital and Parsee General Hospital, Mumbai; the Secretary, Ministry of Health and Family Welfare, Government of India (ex officio member); and the Convenor of the National Task Force, who shall also be a member, will be the Cabinet Secretary to the Union Government, who may nominate an officer not below the rank of Additional Secretary to deputise for him when necessary., The Task Force is at liberty to draw upon the human resources of the Union Government for consultation and information, including a member of Niti Aayog nominated by the Vice‑Chairperson; the Secretary, Ministry of Human Affairs; the Secretary, Department for Promotion of Industry and Internal Trade; the Secretary, Ministry of Road Transport and Highways; the Director, All India Institute of Medical Sciences, New Delhi; the Director General, Indian Council of Medical Research, New Delhi; the Director General of Health Services; the Director General, National Informatics Centre; and the Head, Centre for Development of Advanced Computing (C‑DAC). The concerned Secretaries may nominate officers of the rank of Additional/Joint Secretary to deputise for them. The Task Force may formulate its modalities and procedures, constitute sub‑groups on specialised areas or regions, and co‑opt other experts within or outside government for assistance in areas such as infectious disease modelling, critical care, clinical virology/immunology, and epidemiology/public health., The amicus curiae appointed by this Court tendered a list of experts on the above subjects. To avoid constraining the discretion of the Task Force, the Court permits the Task Force to co‑opt any one or more of the experts suggested by the amicus curiae or any other experts., The Union Government and State Governments, ministries, agencies and departments shall provide complete and real‑time data to facilitate the work of the Task Force as and when necessary. All private hospitals and other health care institutions shall cooperate with the Task Force., The rationale for constituting a Task Force at the national level is to facilitate a public health response to the pandemic based on scientific and specialised domain knowledge. The leading experts in the country shall associate with the Task Force as members and resource persons, enabling formulation of scientific strategies to deal with the unprecedented crisis. The Task Force will provide the Union Government with inputs and strategies for meeting pandemic challenges transparently and professionally, both presently and in the future. The Court framed the following terms of reference for the Task Force, which may be modulated subsequently as needed.
id_1084	1	The terms of reference of the National Task Force shall be to: Assess and make recommendations for the entire country based on the need for, availability and distribution of medical oxygen; Formulate and devise the methodology for the allocation of medical oxygen to the States and Union Territories on a scientific, rational and equitable basis; Make recommendations on augmenting the available supplies of oxygen based on present and projected demands likely during the pandemic; Make recommendations for the periodical review and revision of allocations based on the stage and impact of the pandemic; Facilitate audits by sub‑groups within each State and Union Territory inter alia for determining: whether the supplies allocated by the Union Government reach the concerned State/UT; the efficacy of the distribution networks in distributing supplies meant for hospitals, health care institutions and others; whether the available stocks are being distributed on the basis of an effective, transparent and professional mechanism; and accountability in regard to the utilisation of the supplies of oxygen allocated to each State/UT; Review and suggest measures necessary for ensuring the availability of essential drugs and medicines; Plan and adopt remedial measures for ensuring preparedness to meet present and future emergencies which may arise during the pandemic; Facilitate the use of technology to ensure that the available manpower is optimised for implementing innovative solutions particularly in order to provide an outreach of expert medical care to rural areas; Suggest measures to augment the availability of trained doctors, nurses and paramedical staff including by the creation of suitable incentives; Promote evidence based research to enhance effective responses to the pandemic; Facilitate the sharing of best practices across the nation to promote knowledge about the management of the pandemic and treatment of cases; and Generally, to make recommendations in regard to other issues of pressing national concern to find effective responses to the pandemic., The purpose of conducting audits under item (v) of paragraph 24 is to ensure a measure of accountability for the proper distribution of oxygen supplies made available by the Union Government to the States/UTs. For the purpose of facilitating the audits under item (v) of paragraph 24 above, the Task Force will constitute sub‑groups/committees for each State/UT comprising: an officer of the State/UT Government not below the rank of Secretary to the State Government; an officer of the Union Government not below the rank of Additional/Joint Secretary; two medical doctors in the State/UT concerned including at least one with administrative experience of managing the medical facilities of a hospital; and a representative from the Petroleum and Explosives Safety Organisation. For carrying out the above audit exercise for the National Capital Territory of Delhi, the audit sub‑group shall consist of: Dr Randeep Guleria, Professor and Head, Department of Pulmonary Medicine and Sleep, All India Institute of Medical Sciences; Dr Sandeep Budhiraja, Clinical Director & Director Internal Medicine, Max Healthcare; and an Indian Administrative Service officer, each from the Union Government and Government of National Capital Territory of Delhi, not below the rank of Joint Secretary., We emphasise that the purpose of conducting audits is to ensure accountability in respect of the supplies of oxygen provided to every State/UT. The purpose is to ensure that the supplies which have been allocated are reaching their destination; that they are being made available through the distribution network to the hospitals or, as the case may be, the end users efficiently and on a transparent basis; and to identify bottlenecks or issues in regard to the utilisation of oxygen. The purpose of the audit is not to scrutinise the decisions made in good faith by doctors while treating their patients., The Union Government shall continue with the present practice of making allocations of oxygen (as modified by the orders of the Supreme Court of India or the orders of the High Courts as the case may be) until the Task Force has submitted its recommendations in regard to proposed modalities. The Union Government shall, on receipt of the recommendations of the Task Force, take an appropriate decision in regard to the allocation of oxygen and on all other recommendations. The Task Force shall also submit its recommendations from time to time to the Supreme Court of India. We request the Task Force to commence work immediately, taking up the pressing issue of determining the modalities for oxygen expeditiously within 24 weeks. The tenure of the Task Force shall be six months initially. The Union Government shall provide all necessary assistance to the Task Force and nominate two Nodal Officers to facilitate its work. The Nodal Officers shall also arrange for logistics, including communication with the members and arranging the virtual meetings of the Task Force., The proceeding shall be listed before the Supreme Court of India on 17 May 2021.
id_1086	0	Reserved on: 26.07.2023 Pronounced on: 25.10.2023 These contempt petitions (criminal) having been heard and reserved for orders, coming on for pronouncement this day, Hon'ble Justice Vishal Mishra passed the following:, These suo motu contempt proceedings have been initiated against respondent Manoj Kumar Shrivastava, who is an Advocate, as per the order by the then Hon'ble Chief Justice dated 10.01.2013., The respondent is a petitioner in Writ Petition No. 7247 of 2007 seeking a direction to respondent No.1 Vikram University to quash the appointment of respondent No.2 Dr. Pratishtha Sharma to the post of Lecturer in Language (Lab) and to appoint the petitioner on that post. He was consistently making allegations in writing against Hon'ble Judges at the Indore Bench, submitting repeated applications and communications which were prima facie baseless and mischievous., In pursuance of the direction issued by the Madhya Pradesh High Court on 14.09.2012 in Writ Petition No. 7247 of 2007 to prepare an index of the complaints made from time to time by the respondent and to place it before the Hon'ble Chief Justice along with the record for orders, the matter was placed before the Hon'ble Chief Justice with a copy of fourteen complaints as reflected from the order sheet dated 09.01.2013. The writ petition was dismissed vide order dated 10.11.2009 and was challenged in Writ Appeal No. 427 of 2009. The appeal was allowed and the matter was remanded for fresh hearing. It was then placed before a Single Bench of this Court and vide order dated 04.03.2011 the concerned Judge directed the matter to be placed before another Bench. Subsequent orders dated 23.09.2011 and 05.11.2011 placed the matter before Hon'ble Acting Chief Justice and then before Hon'ble Justice N.K. Mody., The complaints filed by the respondent were dated 24.08.2012 and 25.09.2012, among others. In a complaint dated 02.05.2012 the respondent stated that the Madhya Pradesh High Court had not decided Writ Appeal No. 300 of 2010 after properly examining the record, although such a judicial order could not be examined on the administrative side. A complaint dated 03.07.2012 alleged that proceedings had taken place on 22.11.2011 when Writ Petition No. 7247 of 2007 was taken up for hearing. Another complaint dated 21.08.2012 was essentially a copy of the complaint dated 24.08.2012 and was filed vide approval dated 10.09.2012 under the orders of the Acting Chief Justice. The complaint dated 25.09.2012 contained baseless aspersions against the Hon'ble Judge and prayed for expeditious hearing in Writ Petition No. 7247 of 2007. The complaint dated 24.08.2012 was forwarded by the Principal Registrar, Bench Indore, to the Principal Seat under the instructions of the Hon'ble Administrative Judge, Bench Indore, and was placed before the Hon'ble Acting Chief Justice, who directed that it be filed., After perusal of the complaints dated 25.07.2011, 01.12.2011, 10.12.2011, 03.07.2012, 21.08.2012, 24.08.2012 and 25.09.2012, it was found that the petitioner, the respondent herein, had engaged in contemptuous conduct by making false, baseless and mischievous allegations against Hon'ble Judges of the Madhya Pradesh High Court, thereby obstructing the administration of justice and maligning the reputation and prestige of the court. Accordingly, the Principal Registrar (Judicial), in view of the law laid down by the Hon'ble Supreme Court of India in M.Y. Shareef vs. Hon'ble Judges of the High Court of Nagpur, AIR 1955 SC 19 and Radha Mohan Lal v. Rajasthan High Court, (2003) 3 SCC 427, placed a note sheet for initiating contempt proceedings against the respondent before the Hon'ble Chief Justice, who approved the same and ordered registration of separate criminal contempt cases relating to the said complaints., The matter was placed for the first time before the Division Bench on 23.01.2013, wherein it was found that the letter dated 25.07.2011 sent by the respondent contained language that scandalised, lowered and tended to lower the authority of the Madhya Pradesh High Court. While admitting these petitions, a bailable warrant was issued against the respondent‑contemnor for his personal presence. He appeared in person vide order dated 01.05.2013 and stated that he had filed a reply to the notices., The excerpts of the complaints reflect insulting and disrespectful language directed at the Madhya Pradesh High Court and its Judges., Examining the case in the light of the above excerpts, the following table summarises the allegations and the findings:\n\nComplaint dated 25.07.2011 (Concr. No.01 of 2013) – Alleged that the judgment delivered by Hon'ble Justice P.K. Jaiswal showed undue importance to appellant Shri R.D. Musalkar, which was found to attract contempt.\nComplaint dated 01.12.2011 (Concr. No.02 of 2013) – Alleged that the Court inquired about the respondent's desire to become a lecturer and that his Hindi was mocked; finding: not attracted.\nComplaint dated 10.12.2011 (Concr. No.03 of 2013) – Alleged non‑compliance with a notice under Section 80 of the Code of Civil Procedure; finding: not attracted.\nComplaint dated 03.07.2012 (Concr. No.04 of 2013) – Reproduced the same allegations as in the complaint dated 01.12.2011; finding: not attracted.\nComplaint dated 21.08.2012 (Concr. No.05 of 2013) – Made aspersions against Hon'ble Judges Shri S.C. Sharma, P.K. Jaiswal and N.K. Mody, alleging protection of criminals and purposeful non‑hearing; finding: attracted.\nComplaint dated 24.08.2012 (Concr. No.06 of 2013) – Reproduced the same allegations as in the complaint dated 21.08.2012; finding: attracted.\nComplaint dated 25.09.2012 (Concr. No.07 of 2013) – Alleged that Hon'ble Justice N.K. Mody passed arbitrary orders on 28.08.2012 and 14.09.2012, favouring the opposite party; finding: attracted., The language used in the complaints dated 25.07.2011, 21.08.2012, 24.08.2012 and 25.09.2012 clearly scandalises and lowers the authority of the Madhya Pradesh High Court and therefore attracts the provisions of Section 2(c) of the Contempt of Courts Act, 1971., The Madhya Pradesh High Court is conscious that contempt of court is a special jurisdiction and should be exercised sparingly. However, as per settled legal position, such jurisdiction must be exercised where acts tend to shake public confidence in the judicial system and affect the majesty of law and dignity of courts., Section 2(c) of the Contempt of Courts Act, 1971 provides: \Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.\, Recently, the Hon'ble Supreme Court of India in Prashant Bhushan and another, Reference Suo Motu Contempt Petition (Criminal) No.1 of 2020 decided on 14 August 2020 (reported in 2021 1 SCC 745), held that hostile criticism of judges as judges or of the judiciary amounts to scandalising the court, and that personal attacks on a judge in connection with the office he holds are dealt with under libel or slander, but defamatory publication concerning the judge as a judge brings the court or judges into contempt., A Constitution Bench of the Hon'ble Supreme Court in Baradakanta Mishra vs. High Court of Orissa (1974) 1 SCC 374 held that scandalisation of the court is a species of contempt. Vilification of a judge as a judge may attract contempt, whereas vilification of a judge as an individual does not. The court must consider the degree of harm to the administration of justice, and only clear cases beyond reasonable doubt warrant punishment., The respondent‑accused filed three Interim Applications: I.A. No.10095 of 2013 (under Sections 2(c), 12 and 14 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India and Sections 35 to 35B & 151 of the Code of Civil Procedure); I.A. No.1478 of 2014 (under Section 319 of the Code of Criminal Procedure for impleading Hon'ble Judges as parties to the criminal contempt proceedings); and I.A. No.10060 of 2023 (under Sections 2(b), 12, 14, 16 and 17 of the Contempt of Courts Act, and various sections of the Indian Penal Code, along with Articles 21 and 14 of the Constitution). The Madhya Pradesh High Court rejected I.A. No.10095 of 2013 and I.A. No.1478 of 2014, and also dismissed I.A. No.10060 of 2023, holding that the applications were not maintainable and that compensation could not be claimed until the contempt proceedings are dropped., When the matter was taken up for final consideration, the respondent‑accused did not offer an unconditional apology and expressed no willingness to argue further. Consequently, the Madhya Pradesh High Court proceeded to decide the cases on merits., Being an advocate, the respondent is an officer of the court and owes a duty towards the Madhya Pradesh High Court. In M.B. Sanghi, Advocate vs. High Court of Punjab & Haryana (1991) 3 SCC 600, the Supreme Court observed that maligning the reputation of judicial officers undermines public confidence and that such conduct by members of the profession is a serious affront to the independence and impartiality of the judiciary., From the aforesaid judgments of the Hon'ble Supreme Court and the definition provided under Section 2(c) of the Contempt of Courts Act, 1971, it is clear that any attempt to scandalise or lower the authority of a court falls within the definition of criminal contempt., The Madhya Pradesh High Court holds that the respondent has committed contempt of court by filing false complaints and letters containing contemptuous averments and reckless allegations against Hon'ble Judges. He is found guilty of criminal contempt with respect to the complaints dated 25.07.2011, 21.08.2012, 24.08.2012 and 25.09.2012 (Concr. No.1 of 2013, Concr. No.5 of 2013, Concr. No.6 of 2013 and Concr. No.7 of 2013 respectively). The contempt proceedings initiated against the respondent concerning the complaints dated 01.12.2011, 10.12.2011 and 03.07.2012 (Concr. No.2 of 2013, Concr. No.3 of 2013 and Concr. No.4 of 2013) are dropped., Having found the respondent guilty of criminal contempt, the Madhya Pradesh High Court imposes a fine of Rs.4,00,000 (Rs.1,00,000 each for the four complaints) to be deposited with the M.P. High Court Bar Association (SB A/c No.519302010000549, IFS CODE: UBIN0551937, Union Bank of India, State Bar Council High Court Branch, Jabalpur) within one month from the date of pronouncement of this order. In case of failure to deposit the fine, the respondent shall suffer imprisonment for a period of one month for each of the aforesaid complaints. The contempt proceedings relating to the complaints dated 01.12.2011, 10.12.2011 and 03.07.2012 are dropped., These contempt petitions are disposed of finally in the above terms.
id_1087	0	Crime No. 596/2022 of Valappad Police Station, Thrissur, dated 9 December 2022. This is an appeal filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for convenience) by the appellant, who is the accused in Crime No. 596 of 2022 of Valappad Police Station, registered alleging commission of an offence punishable under Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, challenging the order dated 23 September 2022 in Criminal Miscellaneous Petition No. 2881/2022 passed by the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Thrissur., Advocate R. Rohith appeared for the de facto complainant when the de facto complainant was served with notice as mandated under Section 15A(3) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act., The learned counsel for the appellant, the learned counsel for the de facto complainant, and the learned Public Prosecutor were heard., The precise allegation of the prosecution, as could be read from the First Information Statement given by the de facto complainant before the police, is that on 30 August 2022 at about 10.00 a.m., when the de facto complainant reached Valappad Service Co-operative Bank, Beach Road Branch, Kothakulam to remit the interest towards the gold loan availed by him, the accused, who does not belong to the Scheduled Castes or Scheduled Tribes community and is an employee of the bank, called the caste name of the de facto complainant, who belongs to the Scheduled Castes community, thereby abusing him by calling his caste name in public view. This is the basis on which the prosecution alleges the commission of an offence under Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act by the appellant., While challenging the order of the Special Judge disallowing pre‑arrest bail, the learned counsel for the appellant argued at length to convince the High Court of Kerala regarding the filing of a sexual harassment complaint by the accused against V. R. Babu, who is the Secretary of the Valappad Co-operative Bank, which led to the registration of Crime No. 350/2022 alleging that V. R. Babu committed offences under Section 354A(1)(i) and Section 354A(1) and (2) of the Indian Penal Code. Annexure II is the copy of the FIR and Annexure I is the copy of the First Information Statement dated 14 May 2022 in the above crime. It is submitted by the learned counsel for the appellant that in the said crime, an offence under Section 376(C) was also subsequently incorporated. The counsel further argued that since V. R. Babu continuously demanded sexual favour from the appellant and the appellant made many attempts in this regard, the appellant was forced to lodge the complaint annexed as Annexure II, which led to the registration of the FIR annexed as Annexure I. Subsequently, the Secretary of the Bank, who controls the entire affairs of the bank with the assistance and connivance of other employees, repeatedly compelled the appellant to withdraw the case, and the present case is alleged to be foisted with ulterior motives to achieve that goal. He had read out the complaint filed by the accused before the Secretary as well as the police, which are produced as Annexure VIII and Annexure IX on the date of the alleged occurrence of this crime, positing these facts., The learned counsel for the appellant also submitted that, as per Annexure III, the Local Complaints Committee, Thrissur, on the application of the appellant with regard to the incident narrated in Annexure II, conducted an enquiry and finally recommended the removal of V. R. Babu from the post of Secretary until the culmination of the criminal case. The Committee found that the Secretary treated the appellant cruelly, mentally, and in connection with her employment, and made serious false and unwarranted allegations of financial scams against the appellant. It also pointed out that the de facto complainant is none other than the husband of Smt. Remadevi, an employee of the Society, which would go to show the falsity of the present complaint., The learned counsel for the de facto complainant confined his argument to the allegation in the First Information Statement. He urged that the allegation would prima facie constitute abuse against the de facto complainant by calling his caste name in public view and thereby an offence punishable under Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. According to him, in a case involving offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, when there is a prima facie case, the statutory bar in granting anticipatory bail under Sections 18 and 18A of the Act would apply. He did not go into the previous incidents narrated by the counsel for the appellant. He also did not deny the status of the de facto complainant as the husband of Smt. Remadevi, an employee of the bank., The learned counsel for the de facto complainant also argued that, as far as the Annexure III report is concerned, V. R. Babu had filed a writ petition before this Court and, as per the judgment in the writ petition, after setting aside the report, another internal committee was directed to enquire into the complaint., The learned Public Prosecutor also supported the order of the Special Judge, pointing out that the allegations in the First Information Statement would make a prima facie case., Although there is a bar under Sections 18 and 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to grant anticipatory bail, the Apex Court in Prathvi Raj Chauhan v. Union of India and Others held that even after incorporation of Section 18A, in cases where there is no prima facie case, grant of anticipatory bail is not specifically barred. It is settled law that when there is a prima facie case, grant of anticipatory bail is specifically barred., Before analysing whether a prima facie case is made out in this matter, it is necessary to address the tendency of false implication of innocent persons who do not belong to the Scheduled Caste or Scheduled Tribe community by misusing the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. There is no quarrel that stringent provisions are incorporated in the Act to arrest the menace of atrocities against members of the Scheduled Caste and Scheduled Tribe communities by exploiting their backwardness. Since Parliament found that the earlier provisions were insufficient, the Act was amended to incorporate more stringent provisions, including a mandatory right of hearing to the de facto complainant at every stage of the court proceedings as provided under Section 15A(3) of the Act. Thus, atrocities against Scheduled Caste or Scheduled Tribe communities are intended to be curtailed by the stringent provisions of the Act. Consequently, genuine complaints by members of these communities, which attract offences under the Act, shall be viewed seriously and appropriate legal action shall follow. At the same time, courts have a duty to rule out possibilities of false implication of innocent persons as accused, with a view to achieve ulterior motives of the complaints, using the threat of arrest and detention because of the stringent provisions in the matter of grant of anticipatory bail. It is a shocking fact that many innocent persons are victims of false implication under the Act. Therefore, it is necessary for courts to segregate the grain from the chaff by analysing the genesis of the case, antecedents prior to registration of the crime, existence of animosity between the complainant and the accused, and previous disputes or complaints, while considering the question of prima facie case at the pre‑arrest bail stage. Where materials show that the accused and the complainant are in inimical terms, and there is previous litigation between them or their representatives, the allegations may be doubted prima facie. Evaluation of these facts would help the court while addressing the question of prima facie case at the pre‑arrest bail stage. If the court finds a possibility of false implication, it may hold that prima facie the prosecution allegations cannot be believed for the purpose of denying anticipatory bail, leaving the question of commission of offences to a detailed and fair investigation by the Investigating Officer. Such a course of action is necessary to rule out false implication., Coming to the facts of the case, prima facie it appears that the de facto complainant is the husband of Smt. Remadevi, an employee of the Co-operative Bank where the appellant/accused also works. The appellant filed a criminal case against the Secretary of the Co-operative Bank alleging sexual assault, which is annexed as Annexure I and II and is under investigation. Although Annexure III has been set aside by this Court, the counsel for the de facto complainant submitted that there was a direction to have an internal enquiry. Thus, the present crime was registered during the pendency of the internal inquiry at the instance of the husband of an employee of the bank. The appellant lodged a complaint against the Secretary of the Bank raising serious allegations of sexual harassment and made many complaints to various authorities, as discernible from Annexure IV to Annexure XII. In such a case, the contention that the present complaint, at the instance of the husband of an employee of the bank, is intended to falsely implicate the appellant in a serious offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act cannot be ruled out. Hence, the case advanced by the de facto complainant is prima facie doubtful. However, investigation can proceed in a fair manner to uncover the truth, and I leave the same to the Investigating Officer. The observations made in this judgment are confined to the consideration of the pre‑arrest bail plea., In view of the foregoing decisions, I am of the view that the impugned order is liable to be set aside and pre‑arrest bail is to be granted to the appellant on conditions. The order impugned is set aside and the appeal is allowed. The appellant is granted pre‑arrest bail on the following conditions: (1) The appellant/accused shall surrender before the Investigating Officer within ten days from today; on such surrender the Investigating Officer may question the accused/appellant. In the event of her arrest, the Investigating Officer shall produce the accused/appellant before the Special Court on the date of surrender itself. (2) On such production, the Special Court shall release the appellant/accused on bail upon execution of a bond of Rs 30,000 (Rupees Thirty Thousand) each by the appellant and by two sureties for the like sum to the satisfaction of the Special Judge. (3) The appellant/accused shall cooperate with the investigation and shall be available for interrogation as directed by the Investigating Officer. (4) The appellant/accused shall not intimidate witnesses or interfere with the investigation in any manner.
id_1091	0	Reserved on 02.07.2021 Delivered on 07.07.2021. Petitioner: Mohd. Umar Gautam. Respondent: State of Uttar Pradesh through Principal Secretary Home, Lucknow and others. Counsel for Petitioner: Vijay Vikram Singh, Ashma Izzat, Kumail Haider. Counsel for Respondent: Government Advocate Honourable Ramesh Sinha, Honourable Vikas Kunvar Srivastav., High Court of Uttar Pradesh has convened through video conferencing., The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner, Mohd. Umar Gautam, who claims to be an Islamic scholar and a religious preacher, seeking the following reliefs: (A) Directing Respondent No.1 and Respondent No.2 not to leak any allegations pertaining to the petitioner to the media pending investigation and thereafter during trial, and directing Respondent No.1 to withdraw all allegations contained in the press release dated 20.06.2021; (B) Directing Respondent Nos.3, 4, 5, 6 and various other media agencies to take down the sensitive and confidential information leaked to them by the officials; (C) Issuing guidelines on media reporting of ongoing criminal investigation; (D) Passing such other order(s) as this Honourable Court may deem fit and proper in the facts and circumstances of the present case in favour of the petitioner and thereby render justice., Heard Vijay Vikram Singh and Ashma Izzat, learned counsel for the petitioner, and Shiv Nath Tilhari, learned counsel for Respondent No.1/State., It has been argued by the learned counsel for the petitioner that by video notice dated 16.06.2021, the petitioner was instructed to join interrogation at Police Station Masoori, District Ghaziabad in relation to First Information Report No. 473 of 2021 and again on 19.06.2021, the petitioner was asked to join interrogation at the same police station in relation to the aforesaid First Information Report. The petitioner alleges that while interrogation, his signature was made on blank papers. Thereafter, without informing the family members of the petitioner, Respondent No.2 – Uttar Pradesh Anti Terrorist Squad took the petitioner to Lucknow and on 20.06.2021, a First Information Report was lodged by Respondent No.2 – Uttar Pradesh Anti Terrorist Squad against the petitioner, registered as First Information Report No. 009 of 2021, under Sections 420, 120-B, 153-A, 153-B, 295A, 541 of the Indian Penal Code and Sections 3 and 5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Act, 2021, at Police Station Anti Terrorist Squad Gomti Nagar, District Lucknow, alleging that the petitioner carried out mass conversion of around 1000 persons, especially deaf and mute students, women, children and those from weaker and vulnerable sections through inducement such as marriage, job, money and mental pressure. The petitioner is currently in judicial custody in pursuance of the aforesaid First Information Report. A press note dated 20.06.2021, annexed as Annexure No.4, was released by the investigating agency – Uttar Pradesh Anti Terrorist Squad. The petitioner was remanded to police custody in pursuance of the aforesaid First Information Report., The learned counsel for the petitioner has argued that relying upon the said press note dated 20.06.2021, several news outlets, television media outlets and social media handles have published and broadcast highly sensitive and confidential information in connection with the ongoing criminal investigation in the aforesaid First Information Report. The petitioner submits that the sole aim of such disclosures appears to be to vilify and severely prejudice the fair trial rights of the petitioner. In support of this contention, the petitioner has annexed copies of news articles and screenshots of webpages broadcasting such offending material dated 21.06.2021 to 26.06.2021 as Annexure No.3 to the writ petition., The petitioner further submits that the news programmes broadcasting the offending material against the petitioner are in violation of the programming code as well as Sections 19 and 20 of the Cable Television Networks (Regulation) Act, 1995. The petitioner contends that as the investigation in the aforesaid First Information Report is yet to be completed and charge-sheet not yet filed, the investigating agency, by press release dated 20.06.2021, did not confine the information to the essential facts of the case and disclosed speculative, unconfirmed and judgmental facts, causing irreversible prejudice to the petitioner in his attempts to secure liberty and prove innocence. The petitioner further submits that these actions of the investigating agency violate the guidelines of the Office Memorandum dated 01.04.2010 issued by the Ministry of Home Affairs, Government of India, a copy of which is annexed as Annexure No.5 to the writ petition., The petitioner also submits that the investigating agency disclosed certain confessions made by the petitioner during interrogation by means of the press release dated 20.06.2021. He argues that the press note was issued by the Uttar Pradesh Anti Terrorist Squad in an attempt to prejudice the petitioner’s right to a fair trial and therefore violates Article 21 of the Constitution of India. He further submits that the press note was issued to destroy the presumption of innocence and to create a trial by media, causing immense damage to the petitioner’s reputation and fundamental right to a fair trial., In support of the aforesaid submissions, the petitioner has placed reliance upon the judgment of the Honourable Supreme Court of India in Rajinderan Chingaravelu v. R.K. Mishra, Additional Commissioner of Information Technology & Others (2010) 1 SCC 457 and the judgment of the Honourable Delhi High Court in Devangana Kalita v. Delhi Police, W.P. (Criminal) No. 898 of 2020 dated 27.07.2020, and has argued that Respondents Nos.1 and 2 ought to be restrained from making such leaks till the conclusion of the trial and that Respondent No.1 be directed to withdraw all allegations contained in the press release dated 20.06.2021., The Additional Government Advocate, on the other hand, opposed the submissions of the learned counsel for the petitioner and argued that there is no dispute with regard to the principles laid down by the Apex Court as well as this Court concerning the role of media in pending investigations. He submitted that while issuing the press note dated 20.06.2021, the investigating agency had no intention of causing prejudice to the petitioner or attacking his reputation but solely to create public awareness that some anti‑social elements and terrorist groups, with the connivance of ISI and some foreigners, are trying to convert weaker sections of society to Islam in order to disturb the peace and harmony of the country., The Additional Government Advocate further submitted that the press note dated 20.06.2021 only published the version of the First Information Report No. 473 of 2021 lodged at Police Station Masoori, District Ghaziabad against accused Vipul Vijayvargiya and Kashif, and did not contain any version, confession or material relating to First Information Report No. 009 of 2021 lodged against the petitioner and one Jahagir at Police Station Anti Terrorist Squad Gomti Nagar, Lucknow. He asserted that the Uttar Pradesh Anti Terrorist Squad has not leaked any sensitive or confidential information relating to First Information Report No. 009 of 2021, as the investigation is still pending, and that the petitioner’s allegations of leakage are absolutely bogus and false., The Additional Government Advocate also submitted that the press note was not issued as an offensive measure against the petitioner but to defend the reputation of the police and maintain public trust. It was not the intention of the police to conduct a media trial, which is evident from the fact that only one note mentioning the petitioner’s name was issued. He further submitted that the language of the press note was measured and referred only to the contents of the First Information Report lodged at Police Station Masoori, District Ghaziabad, and did not contain any reference to the ongoing investigation in First Information Report No. 009 of 2021 lodged against the petitioner and one Jahagir by the Uttar Pradesh Anti Terrorist Squad at Police Station Anti Terrorist Squad Gomti Nagar, District Lucknow., The Additional Government Advocate further submitted that the judgments cited by the petitioner are not applicable in the present case as the facts are not comparable., Regarding the news articles and screenshots of webpages alleged by the petitioner, the Additional Government Advocate submitted that the State has no concern with those articles or screenshots. He observed that the said articles and screenshots merely reflect the version of the First Information Report lodged at Police Station Masoori, District Ghaziabad and the version of the First Information Report lodged against the petitioner at Police Station Anti Terrorist Squad Gomti Nagar, District Lucknow., The Court has carefully examined the submissions of the learned counsel for the petitioner and the Additional Government Advocate and has gone through the record., The question in the instant writ petition is whether the press note dated 20.06.2021 violated the petitioner’s right to a fair trial and whether the same was justified, given that on the basis of the press note, news outlets in print, social and electronic media have published or broadcast sensitive and confidential information in connection with the ongoing criminal investigation., The Additional Government Advocate admitted that the press note dated 20.06.2021 was issued by the Uttar Pradesh Police only in respect of the arrest of the petitioner and one Jahagir pursuant to First Information Report No. 009 of 2021 lodged at Police Station Anti Terrorist Squad Gomti Nagar, District Lucknow, and that the next page of the same indicated the version of First Information Report No. 473 of 2021 registered against Vipul Vijayvargiya and Kashif at Police Station Masoori, District Ghaziabad., The Court referred to the decision of the Supreme Court in Rajinderan Chingaravelu v. R.K. Mishra, Additional Commissioner of IT & Others, quoting paragraph 21: “But the appellant’s grievance in regard to media being informed about the incident even before completion of investigation, is justified. There is a growing tendency among investigating officers (either police or other departments) to inform the media, even before the completion of investigation, that they have caught a criminal or an offender. Such crude attempts to claim credit for imaginary investigational breakthroughs should be curbed. Even where a suspect surrenders or a person required for questioning voluntarily appears, it is not uncommon for the investigating officers to represent to the media that the person was arrested with much effort after considerable investigation or a chase. Similarly, when someone voluntarily declares the money he is carrying, media is informed that huge cash which was not declared was discovered by their vigilant investigations and thorough checking. Premature disclosures or “leakage” to the media in a pending investigation will not only jeopardise and impede further investigation, but many a time, allow the real culprit to escape from law. Be that as it may.”, The factual context of that observation involved an appellant employed in Hyderabad who intended to purchase property in Chennai. He withdrew Rs 65 lakhs from his bank and intended to carry the cash by air. Upon arrival in Chennai, officers of the Income Tax Investigation Wing intercepted him, detained him for fifteen hours, and subsequently seized the cash. The officers informed the media that they had made a “big haul” of Rs 65 lakhs, portraying the appellant as having illegally carried the amount. The appellant filed a writ petition before the High Court of Andhra Pradesh, which was dismissed, and later approached the Supreme Court. The Supreme Court held that while the officers’ verification of the large sum was bona fide, the media publicity of the “big haul” was unjustified., The Court also relied upon observations of the Honourable Delhi High Court in paragraphs 23, 24 and 25 of Devangana Kalita v. Delhi Police, which state: “In the aforesaid contest, it is necessary to bear in mind that the petitioner has not been found guilty of any of the alleged offences. An affidavit affirming that the petitioner is guilty of the offences would clearly be inapposite. It is trite law that an accused is innocent until held guilty after a fair trial… Human dignity is recognized as a constitutional value and a right to maintain one’s reputation is a facet of human dignity… The petitioner could not make any grievance of being subjected to a media trial since she and the members of her group had started a media campaign/trial in her favour… There is a cardinal difference in attempting to influence formation of an opinion that an accused is not guilty and the State attempting to influence an opinion to the contrary.”, In that case, the petitioner was involved in four First Information Reports and a brief note was circulated by Delhi Police in various media agencies, disclosing the names of two girls including the petitioner and alleging that they belonged to the Pinjra Tod Group and were actively involved in a conspiracy to cause riots near Jafrabad Metro Station. The brief note was unsigned and did not indicate that it was issued by Delhi Police. An affidavit filed by Delhi Police contained extensive averments declaring the petitioner guilty of several offences, and the contents were shared with the media prior to the hearing., In the present case, the press note dated 20.06.2021 reflects only the arrest of the petitioner in First Information Report No. 009 of 2021 together with the contents of that report and the contents of the First Information Report lodged at Police Station Masoori, District Ghaziabad. The Office Memorandum dated 01.04.2010 issued by the Ministry of Home Affairs, Government of India, lays down guidelines that must be scrupulously adhered to while dealing with the media. The guidelines stipulate that only the designated officer should disseminate information to the media on major crimes and law and order incidents, important detections, recoveries and other notable achievements of the police. Police officials should confine their briefings to essential facts and not rush to the press with half‑baked, speculative or unconfirmed information about ongoing investigations. Briefings should normally be done only at the stages of registration, arrest of accused persons, charge‑sheeting of the case, and final outcome such as conviction or acquittal. Due care should be taken to ensure that there is no violation of any legal, privacy or human rights of the accused or victims, and police should not make opinionated or judgmental statements., The object of including the above guidelines is to ensure that the identities of vulnerable persons are not disclosed to the public so as to protect them and their families from harm. Whether the press note ought to be withdrawn must be decided keeping the aforesaid considerations in mind., It is an admitted case of the State that the press note dated 20.06.2021 was released by an authorized officer. The fact that the petitioner has been arrested in First Information Report No. 009 of 2021 has been published. Therefore, his name in the press note cannot be considered prejudicial to a fair trial that may ensue. The First Information Report alleges that the petitioner was involved actively in mass conversion of around 1000 persons, especially deaf and mute students, women, children and those from weaker and vulnerable sections through inducement such as marriage, job, money and mental pressure., The record shows no material indicating that any sensitive information in respect of First Information Report No. 009 of 2021 lodged against the petitioner has been published by the respondent. The press note dated 20.06.2021 indicates the reason for lodging First Information Report No. 009 of 2021 and the names and photographs of persons arrested in pursuance of that report. The next page of the press note indicates that it is in respect of First Information Report No. 473 of 2021 registered at Police Station Masoori, District Ghaziabad. Hence, the petitioner’s assertion that the press note leaked sensitive information in the ongoing investigation is erroneous and is rejected., The judgments cited by the petitioner are distinguishable in facts and circumstances and are not helpful to the petitioner., The question before this Court is limited to examining whether such disclosure violates the petitioner’s right under Article 21 of the Constitution of India or offends any law. The Court is unable to accept that the police communication violates the petitioner’s fundamental rights or any provision of law. Whether the respondent is eventually able to establish its allegations beyond reasonable doubt is a matter for the trial court after a due trial. The reasons that prompted the respondent to issue the press note are not subject to judicial review provided they are bona fide and do not violate the petitioner’s right., In view of the foregoing, the Court is of the view that nothing has been brought on record indicating that the respondents have leaked any allegations pertaining to the petitioner to the media pending investigation or violated the norms prescribed in the Office Memorandum dated 01.04.2010 issued by the Ministry of Home Affairs, Government of India. Therefore, no interference is called for by this Court in its extraordinary power under Article 226 of the Constitution of India in this writ petition. For the reasons aforesaid, the instant writ petition is devoid of merits and is dismissed.
id_1092	0	This appeal is at the instance of a convict accused and is directed against the judgment and order dated 03.09.2008 passed by the High Court of Punjab and Haryana at Chandigarh, in Criminal Appeal No. 762-SB of 1998, by which the High Court dismissed the appeal filed by the appellant herein and thereby affirmed the judgment and order of conviction passed by the Additional Sessions Judge, Karnal dated 08.09.1998/10.09.1998 in Sessions Trial No. 06 of 1996 holding the appellant guilty of the offence punishable under Section 306 of the Indian Penal Code., The short facts necessary to be narrated for disposal of this appeal are as follows: The deceased, Rani, was married to the appellant. The marriage was solemnized on 10.05.1992 and was her second marriage. In the wedlock, Rani gave birth to a girl child. The prosecution case is that soon after marriage, the appellant and her parents started demanding money because the appellant wanted to start a ration shop. The parents of the appellant were also put to trial for the alleged offence but were acquitted by the Trial Court. The record reveals that on 19 November 1993, Rani committed suicide by consuming poison. According to the prosecution, Rani committed suicide on account of incessant harassment by her husband, the appellant, and the appellant was charged with the offence of abetting the commission of suicide by his wife punishable under Section 306 of the Indian Penal Code., PW-4 Madan Lal, brother of the deceased and son of Narata Ram, deposed in chief as follows: We are four brothers and nine sisters. My younger sister Rani was married to Naresh on 10 May 1992 at Kurukshetra as per Hindu rites and custom. At the time of her marriage she was about eighteen or nineteen years old. A female child was born to my sister Rani after marriage; the daughter was about four or five months old at the time of Rani’s death. After about two months of marriage, Fakir Chand, Anguri and Naresh demanded a sum of Rs. 50,000 for starting a kirana shop for Naresh. Being poor we could not arrange the money. We performed the marriage of our sister by selling family property. About a quarter before Rani’s death we opened a shop at our village Raison for Naresh, which he ran for about eight or nine months. Accused Naresh ran the shop for about eleven months, suffered loss, wound up the shop and left for Delhi. About one month before Rani’s death, Naresh took her to Delhi. On 17 November 1993 my sister Rani, along with Naresh, came to our house and stated that Naresh, Fakir Chand and Anguri Devi were demanding Rs. 20,000 for opening a shop for Naresh. My father, mother and I told Naresh that we would arrange the amount and pay it after eight to ten days. On 19 November 1993 Naresh and my sister left for Delhi at about 7 a.m., saying that the amount would be sent later. My sister Rani remained tense because of repeated demands by the accused. Fed up, my sister consumed some poisonous substance on 19 November 1993. On learning that my sister had consumed poison, we came to Karnal. Police met me at the Government Hospital, Karnal, where my statement (Exhibit PJ) was recorded, read to me and signed. After post‑mortem, the dead body of my sister was handed over to us on 20 November 1993., PW-5 Narata Ram, father of the deceased, deposed in chief as follows: I have four sons and nine daughters. My daughter Rani was married to Naresh on 10 May 1992 at Kurukshetra. After about two months of marriage all the accused started harassing my daughter and raised a demand of Rs. 50,000 for opening a shop for Naresh. Being poor we could not arrange the amount. By arranging some amount we opened a shop for Naresh at Raison, which he continued for about seven or eight months. Naresh then left the shop and went to Delhi. After about five or seven months Naresh came to take my daughter Rani to Delhi. On 17 November 1993 Naresh, together with my daughter Rani, came to our house. My daughter Rani told us that all the accused were demanding a sum of Rs. 20,000 for starting a business at Delhi. I expressed my inability to pay the same day. Naresh then said that either we pay the amount or he would finish himself by consuming poison. Naresh then left with my daughter. My daughter remained tense due to repeated demands of the accused. On learning that Rani had consumed poison we came to the Government Hospital, Karnal., The learned counsel appearing for the appellant submitted that the courts below erred in holding the appellant guilty of abetting the commission of suicide by the deceased. He submitted that there is not an iota of evidence to suggest any harassment, physical or mental, by the husband towards the deceased., The learned counsel appearing for the State of Haryana submitted that no error of law was committed by the courts below in holding the appellant guilty of the alleged offence. Emphasis was placed on the fact that the deceased committed suicide within seven years of her marriage., The learned counsel for the State relied on Section 113A of the Indian Evidence Act, 1872, which enables a presumption as to abetment of suicide by a married woman. She submitted that the oral evidence of PW‑4 and PW‑5 has been well appreciated and the courts below rightly held the appellant guilty., The only question for consideration is whether the High Court committed any error in passing the impugned judgment., We have examined the evidence of PW‑4 and PW‑5. Both witnesses state that after the marriage there was a demand of money by the appellant because he wanted to start a ration shop. The evidence shows that the deceased remained tense on account of such demand. What ultimately led the deceased to commit suicide is not clear. The plain reading of the oral evidence does not disclose any form of incessant cruelty or harassment by the husband that would, in ordinary circumstances, drive the wife to suicide. Mere demand of money without more would not constitute cruelty or harassment., Section 306 of the Indian Penal Code reads: ‘306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’, Abetment of a thing is defined under Section 107 of the Indian Penal Code as follows: ‘107. Abetment of a thing. A person abets the doing of a thing who (i) instigates any person to do that thing; or (ii) engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy; or (iii) intentionally aids, by any act or illegal omission, the doing of that thing.’ The section includes explanations on wilful misrepresentation and facilitation., In Geo Varghese v. State of Rajasthan and another, (2021) 19 SCC 144, the Supreme Court of India considered the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC and observed that Section 306 makes abetment of suicide a criminal offence and prescribes punishment for the same., The ordinary dictionary meaning of the word ‘instigate’ is to bring about or initiate, incite someone to do something. In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Supreme Court of India defined ‘instigation’ as ‘to goad, urge forward, provoke, incite or encourage to do an act.’, In S.S. Cheena v. Vijay Kumar Mahajan and Anr, (2010) 12 SCC 190, the Court observed that abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The legislature intends that conviction under Section 306 IPC requires a clear mens rea and an active or direct act that pushes the deceased to suicide., In M. Arjunan v. State, represented by its Inspector of Police, (2019) 3 SCC 315, the Court explained that the essential ingredients of the offence under Section 306 IPC are (i) the abetment; and (ii) the intention of the accused to aid, instigate or abet the deceased to commit suicide. Insulting the deceased by abusive language alone does not constitute abetment; there must be evidence that the accused intended such act to instigate suicide., In Ude Singh & Others v. State of Haryana, (2019) 17 SCC 301, the Court held that to convict an accused under Section 306 IPC, the state of mind to commit the crime must be evident. There must be proof of direct or indirect act(s) of incitement to the commission of suicide, and such act must be proximate to the time of occurrence. Mere allegation of harassment without a positive action that compels the person to commit suicide is insufficient., In Mariano Anto Bruno & another v. The Inspector of Police, 2022 SCC OnLine SC 1387, Criminal Appeal No. 1628 of 2022, the Court reiterated that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement. Without a positive action proximate to the time of the suicide, conviction under Section 306 IPC is not sustainable., In Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, the Court observed that whenever a person instigates or intentionally aids by any act or illegal omission, the person can be said to have abetted the doing of that thing. To prove abetment under Section 107 IPC, the state of mind to commit the crime must be visible., In Kashibai & Others v. State of Karnataka, 2023 SCC Online SC 575, Criminal Appeal No. 627 of 2023, the Court held that to bring a case within the purview of abetment under Section 107 IPC, there must be evidence of instigation, conspiracy or intentional aid, and for proving a charge under Section 306 IPC there must be evidence of a positive act by the accused to instigate or aid the person to commit suicide., For intention in English law, Section 8 of the Criminal Justice Act, 1967 provides that a court or jury shall not be bound to infer intention merely because a result is a natural and probable consequence of the act; rather, it must decide whether the person intended or foresaw the result by reference to all the evidence, drawing proper inferences., It is now well settled that to convict a person under Section 306 of the Indian Penal Code there must be a clear mens rea. Mere harassment is not sufficient; an active or direct act that leads the deceased to suicide is required, and the intention must be visible and conspicuous., We note that the High Court laid much emphasis on Section 113A of the Evidence Act., Section 113A of the Evidence Act reads: ‘When the question is whether the commission of suicide by a woman was abetted by her husband or any relative of her husband and it is shown that she committed suicide within seven years of her marriage and that her husband or such relative subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide was abetted by her husband or such relative.’ For the purposes of this section, cruelty has the same meaning as in Section 498A of the Indian Penal Code., The section was introduced by the Criminal Law (Second Amendment) Act, 1983. The Indian Penal Code, the Code of Criminal Procedure, 1973 and the Evidence Act were amended to address dowry death problems in India., The section requires proof that (1) the husband or his relatives subjected the woman to cruelty, and (2) the woman committed suicide within seven years of her marriage., Although it is not necessary to refer to Section 113B of the Evidence Act, which raises a presumption as to dowry death, the distinction is that Section 113A uses the word ‘may’, whereas Section 113B uses ‘shall’., In this appeal we are concerned with Section 113A. The mere fact that the deceased committed suicide within seven years of her marriage does not automatically invoke the presumption. The prosecution must first show evidence of cruelty or incessant harassment before the presumption may be raised., The term ‘may presume’ indicates that the presumption is discretionary, unlike the mandatory presumption under Section 113B. Therefore, before invoking Section 113A, the prosecution must establish cruelty., The court should be extremely careful in assessing evidence under Section 113A for cruelty. If the victim was hypersensitive to ordinary domestic discord that would not ordinarily induce suicide, the court’s conscience would not be satisfied to hold the accused guilty of abetment., Section 113A has been interpreted by this Court in Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173; Pawan Kumar v. State of Haryana, 1998 (3) SCC 309; and Smt. Shanti v. State of Haryana, 1991 (1) SCC 371., The Court has held that from the mere fact of suicide within seven years of marriage, one should not jump to a conclusion of abetment unless cruelty is proved. The discretion to raise or not raise the presumption is an additional safeguard., In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty under Section 306 of the Indian Penal Code by raising the presumption under Section 113A., The criminal justice system itself can be a punishment. In this case, it took more than thirty years from the incident in 1993 to reach a conclusion. While no crime should go unpunished, the guilt of the accused must be determined on the basis of legal evidence on record., For all the foregoing reasons, we conclude that the prosecution has not been able to establish the guilt of the accused beyond reasonable doubt., In the result, the appeal succeeds and is hereby allowed. The judgment and order of conviction passed by the Trial Court and affirmed by the High Court are hereby set aside., The appellant stands acquitted of the charge framed against him., Pending the present appeal, vide order dated 13.05.2009 a coordinate Bench had ordered release of the convict on bail. Since the appeal is being allowed and the convict is acquitted, the bail bonds furnished then shall also stand discharged., Criminal Appeal No. 1722/2010 dated 22‑02‑2024 was called for hearing. For the appellant: Mr. S.D. Singh, Advocate; Mrs. Shweta Sinha, Advocate; Mr. Ram Kripal Singh, Advocate; Mr. Siddharth Singh, Advocate; Mrs. Aparna Jha, Advocate on Record. For the respondent: Mr. Raj Singh Rana, Additional Advocate General (N/P); Mr. Samar Vijay Singh, Advocate on Record; Mr. Keshav Mittal, Advocate; Ms. Sabarni Som, Advocate; Mr. Fateh Singh, Advocate. Upon hearing the counsel, the Supreme Court of India made the following: The appeal is allowed. The relevant portion of the order reads: In the result, the appeal succeeds and is hereby allowed. The judgment and order of conviction passed by the Trial Court as affirmed by the High Court is hereby set aside. The appellant stands acquitted of the charge framed against him. Pending the present appeal, vide order dated 13.05.2009 a coordinate Bench had ordered release of the convict on bail. Since the appeal is being allowed and the convict is acquitted, the bail bonds furnished then shall also stand discharged.
id_1095	0	Non Reportable (arising out of Special Leave Petition (Civil Revision) No(s) 1406 of 2017) Leave granted. The complainant Amita Tudu (Petitioner Witness 7), as per the written report at the relevant time, was the President of Village Education Committee, Middle School, Kora Para. Budget meeting for the training for 2008‑2009 was scheduled for 18‑12‑2007 and after the meeting, meal packets were to be distributed to those who were participating in the budget meeting. Around 01:30 PM on the said date, the complainant was about to hand over the meal packet to the appellant. Then, all of a sudden, the appellant snatched the meal packet from complainant’s hands, abused her with respect to her community and also uttered that she belonged to a low caste which relishes meat of pig and cow and even a dog will not eat from her hands and that how dare she give her the packet and also called her by her tribal name Santhal and left the school premises. The complainant further stated that in this manner she had been abused and insulted in the presence of many teachers and trainees which caused her mental harassment. The complaint was registered as First Information Report No 05 of 2007, Police Station Jamtara, District Jamtara, under Section 504 of the Indian Penal Code and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After investigation, a charge sheet was submitted, cognizance taken by the Special Court and the trial was conducted., The appellant was convicted under Section 504 of the Indian Penal Code and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act by the trial court vide judgment dated 28‑08‑2010 and was sentenced to four months simple imprisonment under Section 504 and six months simple imprisonment under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes Act. The criminal appeal filed by the appellant was partly allowed by the High Court vide judgment dated 09‑12‑2016. The High Court set aside the conviction and sentence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes Act. It, however, upheld the conviction under Section 504 of the Indian Penal Code and reduced the sentence to fifteen days simple imprisonment., The finding of conviction under Section 504 of the Indian Penal Code has been concurrently recorded by the Trial Court as also by the High Court in appeal based upon appreciation of the evidence led by the prosecution. In that view of the matter, we are not inclined to enter into appreciation of evidence at this stage and accordingly confirm the conviction. However, insofar as the sentence is concerned, learned counsel for the appellant submitted that the appellant may be extended the benefit of the provisions contained in the Probation of Offenders Act, 1958. Accordingly, the appeal is being considered on the above issue of sentence., Section 3 of the Probation of Offenders Act, 1958 confers power upon the Court to release certain offenders after admonition when a person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and there is no previous conviction proved against such offender. In the present case, the conviction is under Section 504 of the Indian Penal Code where the maximum sentence provided is two years. There is no previous conviction of the appellant. Further, Section 11 of the Probation of Offenders Act, 1958 provides that an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision. Thus, this Court under the 1958 Act itself can pass an order at this stage., Considering the facts and circumstances of the case, we deem it appropriate that the appellant may be released instead of carrying out the sentence after due admonition. Accordingly, agreeing with the conviction under Section 504 of the Indian Penal Code, the appellant is directed to be released after admonition under Section 3 of the Probation of Offenders Act, 1958. To that extent the sentence is modified and the appeal is allowed., It may be mentioned here that under the orders of this Court dated 06‑07‑2021, the appellant has deposited Rupees 10,000 with the Registry as per the Office Report dated 24‑03‑2022. It is further to be noted that earlier this Court vide order dated 10‑02‑2020 had directed the appellant to pay a sum of Rupees 10,000 to the complainant but no proof of payment of the said amount was filed by the appellant; as such the subsequent order was passed on 05‑07‑2021 to deposit the said amount with the Registry of this Court. The said amount was for the benefit of the complainant. We accordingly direct the Registry to transfer the said amount to the complainant after getting necessary details of the complainant.
id_1096	0	Appellant: State of Uttar Pradesh. Respondent: Sarvan. Counsel for Appellant: Government Advocate. Counsel for Respondent: Manjusha Kapil. Connected with Appellant: Smt. Suman. Respondent: State of Uttar Pradesh. Counsel for Appellant: Kamlesh Singh. Counsel for Respondent: Government Advocate. Honorable Justice Ramesh Sinha, J. Honorable Justice Saroj Yadav, J. (Delivered by Justice Ramesh Sinha, J.), Two accused, namely Sarvan and Smt. Suman, were tried by the Special Judge, Central Bureau of Investigation Court No.2, Additional Sessions Judge, Lucknow in Sessions Trial No. 754 of 2009: State versus Sarvan and another, arising out of Case Crime No. 265 of 2009, under Sections 302 and 201 of the Indian Penal Code, 1860, Police Station Mohanlalganj, District Lucknow. By judgment and order dated 29 August 2017, the Special Judge convicted and sentenced the accused as follows: Sarvan – under Section 323 of the Indian Penal Code, one year rigorous imprisonment; under Section 201, four years rigorous imprisonment and a fine of Rs 2,000, with an additional one month imprisonment for default of fine; under Section 302, death penalty, and a fine of Rs 5,000, with an additional five months imprisonment for default of fine. Smt. Suman – under Section 201, four years rigorous imprisonment and a fine of Rs 2,000, with an additional one month imprisonment for default of fine. All sentences were directed to run concurrently and the period of incarceration was to be set off against the imprisonment., Aggrieved by the conviction and sentences, Smt. Suman preferred Criminal Appeal No. 1540 of 2017: Smt. Suman versus State, and Sarvan preferred Criminal Appeal No. 1552 of 2017: Sarvan versus State. Capital Case No. 3 of 2017 arises out of the reference made by the learned trial Court under Section 366(1) of the Code of Criminal Procedure, 1973 to the Supreme Court of India for confirmation of the death sentence of convict‑appellant Sarvan. Since the capital sentence reference and the criminal appeals arise out of a common factual matrix and the impugned judgment dated 29 August 2017, the Supreme Court of India proceeds to decide the matters by a common judgment., The informant Kolai (Petitioner Witness 1) was a resident of Village Gaura, Police Station Mohanlalganj, District Lucknow. In front of his house stood the house of Sarvan, the convict‑appellant. It was alleged that a rumor spread in the village that Sarvan had an illicit relationship with his sister‑in‑law Suman, which led to frequent quarrels between Sarvan and his wife, Smt. Santoshi (deceased). The quarrels sometimes escalated to physical violence, with Sarvan beating his wife. On the morning of 25 April 2009 at 06:30 a.m., an altercation occurred between Sarvan and his wife. A sound of shouting was heard from Sarvan’s house. While shouting, Sarvan threatened his wife that he would not leave her and her children alive. His wife screamed for help. Smt. Madhuri, the informant’s wife, rushed to save her. At that moment, Sarvan, armed with a blood‑stained axe, came out of his house and threatened Madhuri, stating that he had put Santoshi and three children in their place and that she was interfering. Sarvan assaulted Madhuri repeatedly with the axe; she fell on the dirt road and died on the spot. When Rajendra (the informant’s son) and Sangeeta (the informant’s daughter) ran to help their mother, Sarvan also assaulted and injured them., Subsequently, informant Kolai obtained the First Information Report (FIR) from a person named Sewak, who read it to him. Kolai affixed his thumb impression and lodged the FIR at Police Station Mohanlalganj., The evidence of Sub‑Inspector Anand Kumar Pandey (Petitioner Witness 8) shows that on 25 April 2009 he was posted as Head Moharrir at Police Station Mohanlalganj. At 07:30 a.m. on that date, informant Kolai filed a written report, on the basis of which the FIR (Exhibit Ka‑9) was prepared and registered against the accused. He testified that the written report was handed to him at 07:30 a.m., with Station House Officer Ashok Kumar Shukla present. He prepared a medical examination letter for the injured Sangeeta. Apart from Sangeeta, no other injured person or villager accompanied Kolai to the police station. He further stated that immediately after lodging the FIR, the Station House Officer and police personnel went to the place of occurrence at about 07:30 a.m. He denied giving false evidence under pressure., The investigation was conducted by In‑charge Inspector Ashok Kumar Shukla, who died on 29 May 2014 during the pendency of the trial and was not examined by the prosecution. Court Witness 1, Constable Satish Kumar Kushwaha (Court Witness 840), testified that he had been posted as Constable at Police Station Mohanlalganj since 2013. He stated that Inspector Shukla conducted the investigation and that he personally served a summons notice to Inspector Shukla. He produced the report of Inspector Shukla’s death (Exhibit Ka‑16)., The evidence of Sub‑Inspector Ram Vishal Suman (Petitioner Witness 12) shows that on 25 April 2009 he was posted as Sub‑Inspector at Police Station Mohanlalganj and, under the direction of Inspector Shukla, went to Village Gaura to prepare the panchayatnama of the dead bodies of Smt. Santoshi (aged 35), Ramroop (aged 6), Sumiran (aged 4) and Ravi (aged 1). The panchayatnama bore the handwriting and signature of Inspector Shukla. On the same day, under Inspector Shukla’s direction, Sub‑Inspector Dharampal Singh (Petitioner Witness 13) prepared the panchayatnama of the deceased Madhuri (the informant’s wife). Sub‑Inspector Suman testified that he sealed the dead bodies and sent them for post‑mortem, and that he proved Inspector Shukla’s signature on Police Form No.13 (Exhibits Ka‑22 to Ka‑26) and on the photo lash (Exhibits A14/1 to A14/5) and on the specimen seals of the dead bodies (Exhibits A15/1 to A15/6). He also produced recovery memos of blood‑stained soil and plain soil collected from different places (Exhibits Ka‑32 to Ka‑36), signed by Inspector Shukla. He denied giving false evidence., The evidence of Sub‑Inspector Dharam Pal Singh (Petitioner Witness 13) shows that on 24 April 2009 he was posted as Sub‑Inspector at Police Station Mohanlalganj and was accompanied by Inspector Shukla. On 26 April 2009, the axe used in the commission of the crime was recovered in his presence on the direction of Sarvan, and the recovery memo was prepared by him on the dictation of Inspector Shukla. On the same date, Suman (convict‑appellant No. 1) was arrested from her house. He produced the recovery memo of the axe and the arrest memo (Exhibit Ka‑39). The site plan of the axe recovery (Exhibit Ka‑40) and the site plan of the place of occurrence (Exhibit Ka‑41) were prepared by Inspector Shukla. He also prepared the charge‑sheet (Exhibit Ka‑42) on the dictation of Inspector Shukla., The evidence of Sri Balkrishna Singh (Petitioner Witness 10) shows that he was engaged in agriculture and lived in the village where the incident occurred. He testified that the panchayatnama of the dead bodies of the children of Sarvan (Ravi, Sumiran, Ramroop) and his wife Santoshi was conducted at Sarvan’s house in his presence, whereas the panchayatnama of the dead body of Madhuri (the informant’s wife) was conducted on the dirt road outside Sarvan’s house. He signed the panchayatnama. The dead bodies were sent for post‑mortem. The panchayatnama proceedings started at 09:00 a.m. on 25 April 2009 and continued for about one hour. He also testified that the Inspector collected blood‑stained soil and plain soil from both the place where Madhuri’s body was lying and from the courtyard of Sarvan’s house, and he signed the recovery memos. He stated that his house was 300‑400 metres from Sarvan’s house and that he knew Sarvan from childhood. He denied knowledge of any psychiatric treatment of Sarvan, any quarrel between Sarvan and Kolai, and denied that the incident occurred in his presence. He also stated that the signatures of other villagers such as Pramod, Sambhoo and Banwari Ghasitey were taken in the panchayatnama, but none of Kolai’s family members signed it in his presence., The injury of the injured Sangeeta was examined on 25 April 2009 at 02:20 p.m. in Community Health Centre, Mohanlalganj, Lucknow by Dr. Shailendra Kumar Dwivedi (Petitioner Witness 4). He found a linear wound measuring 1.5 cm × 0.25 cm, skin‑deep, on the left side of the arm, anterior aspect, 1.5 cm above the left elbow joint, with clotted blood. Dr. Dwivedi testified that he was posted as Medical Officer at the Community Health Centre on that date, and that the injury was simple, could have been caused by a blunt hard object, and was approximately half a day old, possibly attributable to the back of the axe at 06:30 a.m. He also stated that the injury could have been caused by falling on a hard object, a lathi or danda, but not by a self‑inflicted wound., The post‑mortem examinations of the dead bodies of Ramroop, Smt. Santoshi and Ravi were conducted on 25 April 2009 at 08:30 p.m., 08:00 p.m. and 09:30 p.m., respectively, at T.B. Hospital, Thakurganj, Lucknow by Dr. G.P. Tiwari (Petitioner Witness 6). He documented the following ante‑mortem injuries: Ramroop (age 6) – abrasions on the right side of face and forehead, and a muscle‑deep incised wound on the right side of neck with cut carotid artery. Santoshi (age 35) – multiple abrasions and incised wounds on the right side of face, right shoulder, front of neck, and left shoulder, with cut larynx and trachea. Ravi (age 1) – incised wound on the back of neck, a wound on the mid‑chest, and abrasions on the forehead, with underlying hemorrhage. The cause of death for all three was shock and haemorrhage due to the ante‑mortem injuries., Dr. Tiwari reiterated that he was posted as Medical Officer at T.B. Hospital, Thakurganj, Lucknow on 25 April 2009 and was nominated by the District Magistrate to conduct the post‑mortem examinations in artificial light. The bodies of Ramroop, Santoshi and Ravi were brought in sealed condition by Constable Mohd. Shamim (130) and Constable Brij Kishore Patel (129) of Police Station Mohanlalganj. He described the external and internal findings for each body, noting normal physique, presence of rigor mortis, and detailed internal organ conditions. He opined that the injuries to Ramroop and Santoshi could be attributable to a sharp‑edged weapon on 25 April 2009 at 06:30 a.m., while the injuries to Ravi could be caused by a sharp‑edged weapon, a blunt object, or a fall. He stated that all injuries were sustained around the same time and that it was not possible to ascertain whether the same weapon caused all injuries., The post‑mortem examinations of the dead bodies of Sumiran and Smt. Madhuri were conducted on 25 April 2009 at 08:30 p.m. and 09:00 p.m., respectively, in T.B. Hospital, Thakurganj, Lucknow by Dr. Rajesh Awasthi (Petitioner Witness 9). He found that Sumiran (age 4) had a lacerated wound in the back of the neck involving trachea, larynx, vessels and oesophagus, and that the cause of death was shock and haemorrhage due to ante‑mortem injuries. Madhuri (age 50) had multiple lacerated wounds on the frontal and occipital regions, right eye, right cheek, left ear and right wrist joint, with associated brain haemorrhage and bone fractures; the cause of death was shock and haemorrhage due to ante‑mortem injuries., Dr. Awasthi reiterated the causes of death before the trial Court and testified that on 25 April 2009 he was posted as Medical Officer in T.B. Hospital. He conducted the post‑mortem examinations on the direction of the District Magistrate, and the bodies were brought by Constable Mohd. Shamim (1301) and Constable Braj Kishore Patel (129). He stated that Sumiran’s rigor mortis was present and that she could have died 6‑12 hours before the post‑mortem. He also opined that the injuries to Madhuri could be attributable to a sharp‑edged weapon, a blunt object, or other weapons, and that the injuries occurred before 12 hours of the post‑mortem., During the incident, Rajendra, the son of informant Kolai, also sustained injuries and was admitted to the Trauma Centre, Lucknow. He died on 3 May 2009 at night. Informant Kolai informed the police of his son’s death on 6 May 2009 (Exhibit Ka‑2)., The evidence of Sub‑Inspector Pramans Prasad (Petitioner Witness 11) shows that on 4 May 2009 he was posted as Sub‑Inspector at the Medical College Chowki of Police Station Chowk. Acting on information from S/A Monu Kumar, he and Constable Chandrika Prasad reached the Medical College Mortuary at 09:40 a.m., where the dead body of Rajendra (age 10) was present with his family members. He prepared the panchayatnama of Rajendra’s body, which was conducted from 09:40 a.m. to 10:10 a.m., and the family members signed it on the spot., The evidence of Guddu (Court Witness 7), the brother of the deceased Rajendra, states that the panchayatnama of Rajendra’s body was conducted by the Inspector at the Medical College Mortuary on 4 May 2009 at 10:00 a.m. in his presence. The panchayatnama was read to him, and he signed it along with four other persons who also affixed thumb impressions. He testified that about six to seven injuries were present on Rajendra’s head., The post‑mortem examination of Rajendra’s body was conducted on 4 May 2009 at 01:00 p.m. in Balrampur Hospital, Lucknow by Dr. U.K. Prasad (Petitioner Witness 5). He found contusions on the forehead, occipital region and right temporal region, fractures of the right temporal and parietal bones, and subdural haemorrhage. The cause of death was recorded as coma resulting from ante‑mortem head injuries., Dr. Prasad reiterated the cause of death before the trial Court and testified that on 4 May 2009 he was posted as Senior Surgeon at Balrampur Hospital, Lucknow. He conducted the post‑mortem of the unsealed body of Rajendra, which had been brought and identified by Constable Chandrika Prasad of Police Station Chowk. He described the external findings (average physique, rigor mortis, post‑mortem staining, presence of tracheotomy tube, intravenous cannula, and Ryles tube) and internal findings (torn brain membranes, congested lungs and pericardium, empty heart chambers, fluid in stomach, congested liver, pancreas and spleen, and congested kidneys). He stated that it was difficult to determine the exact age of the injuries but they could be attributable to the back of the axe.
id_1096	1	The case was committed to the Sessions Court in the usual manner where the convicts/appellants were charged for offences punishable under Sections 302, 323 and 201 of the Indian Penal Code. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. During the trial, the prosecution, in order to prove its case, examined thirteen witnesses: Petitioner Witness 1 – Kolai (informant); Petitioner Witness 2 – Sangeeta (injured), daughter of the informant and deceased Madhuri; Petitioner Witness 3 – Ram Naresh, son‑in‑law of the informant; Petitioner Witness 4 – Dr. Shailendra Kumar Dwivedi, who conducted the medical examination of injured Sangeeta; Petitioner Witness 5 – Dr. U.K. Prasad, who conducted the post‑mortem of the deceased Rajendra; Petitioner Witness 6 – Dr. G.P. Tiwari, who conducted the post‑mortem of the deceased Ramroop, Santoshi and Ravi; Petitioner Witness 7 – Guddu, who witnessed the preparation of the panchayat‑nama of the dead body of the deceased Rajendra; Petitioner Witness 8 – Sub‑Inspector Anand Kumar Pandey, who registered the First Information Report on the basis of the written report of informant Kolai; Petitioner Witness 9 – Dr. Rajesh Awasthi, who conducted the post‑mortem of the deceased Sumiran and Madhuri; Petitioner Witness 10 – Bal Krishna Singh, who witnessed the panchayat‑nama of the dead bodies of Ramroop, Santoshi, Ravi, Sumiran and Madhuri; Petitioner Witness 11 – Sub‑Inspector Pramans Prasad, who conducted the panchayat‑nama of the dead body of Rajendra; Petitioner Witness 12 – Sub‑Inspector Ram Vishal Suman, who accompanied the Investigating Officer Ashok Kumar Shukla while conducting the investigation and prepared the panchayat‑nama of the dead bodies of Ramroop, Santoshi, Ravi, Sumiran and Madhuri; and Petitioner Witness 13 – Dharam Pal Singh, who also accompanied the Investigating Officer Ashok Kumar Shukla during the investigation. The Sessions Court also examined Court Witness C.P. 840 Sri Satish Kumar Kushwaha as Court Witness 1 to prove the fact that the Investigating Officer Ashok Kumar Shukla died on 29 May 2014., Petitioner Witness 1 – Kolai, the informant, in his examination‑in‑chief, deposed that Sarban (convict/appellant) was residing in front of his house in the village. A gossip spread in the village that Sarban had an illicit relationship with his sister‑in‑law, which was objected by Sarban’s wife, Madhuri, and on this issue occasional altercations and scuffles took place between them. When a scuffle occurred, Madhuri would go to pacify the issue, after which Sarban remained angry with Madhuri. Kolai stated that he did not know the exact date of the incident, but it occurred about six months earlier, in the fourth month of the year, at approximately 06:30 a.m. While standing in front of the house of Rajaram, which adjoined Sarban’s house, he heard a noise coming from Sarban’s house. Subsequently, Madhuri came out of the house onto the dirt road (kharanja) to rescue. Sarban, armed with an axe that had a bamboo stick of about two‑hand length attached, emerged and threatened Madhuri, saying that after cutting his wife and children, he would also put them on the line and that she would also be put in the line if she tried to save them. He then assaulted Madhuri with the axe. Blood was dripping from the axe as he swung three to four blows, after which Madhuri fell on the dirt road and died. Kolai further deposed that Sarban also assaulted his son Rajendra (deceased) and daughter Sangeeta (injured) who were standing at the door; he struck Rajendra on the head with the axe and assaulted Sangeeta inside the house, causing both children to become unconscious and fall down. Two to four villagers arrived after hearing the screams, and Sarban fled with the axe. Kolai observed that fear spread through the village; children did not go to school, doors were locked, road traffic was closed and villagers stayed in their houses. At the time of the incident, Sarban’s wife was 35 years old and their children were aged 6, 5 and 1 years, while Madhuri was 50 years old and Rajendra was 6 years old. Kolai saw the incident from a distance of ten steps. He also stated that his sister‑in‑law was standing at Sarban’s door and made a statement encouraging the killing. Kolai obtained a written report from a person named Sewak, who read it to him; Kolai affixed his thumb impression and lodged it at the police station (Exhibit Ka‑1). He later brought his son to the Medical College; his son died during treatment, after which Kolai obtained another written report, affixed his thumb impression and lodged it (Exhibit Ka‑2) on the ninth day of the incident. The Inspector took his statement at his house and Kolai showed the place of occurrence to the Inspector. Kolai’s relative Ram Naresh (Petitioner Witness 3) was also present and saw the incident. In cross‑examination, Kolai reiterated that people used to say that Sarban and his sister‑in‑law Suman had an illicit relationship, but he never intervened in the altercations between Sarban and his wife. He stated that his house was about fifty steps from Suman’s house, with one house in between, and described the relative positions of the houses and a hand‑pump installed near Suman’s house., Petitioner Witness 2 – Sangeeta, daughter of informant Kolai, in her examination‑in‑chief, deposed that the incident occurred on 25 April 2009 at about 06:00 a.m. The quarrel between Sarban and his wife took place in Sarban’s house. While Sarban was assaulting his wife, a voice was heard from inside the house. At that moment, her mother Madhuri, hearing the voice, came out onto the dirt road, while her brother Rajendra (deceased) was standing at the door. Sarban, armed with a blood‑stained axe, emerged and said, “You used to protect a lot, now you will also be killed.” He then swung five to six blows of the axe on her mother, causing her to fall. Rajendra and her mother attempted to save each other, after which Sarban assaulted Rajendra with the axe, causing him to fall, and also struck Sangeeta on the head with the axe. Both children became unconscious. Sangeeta stated that Sarban’s sister‑in‑law Suman stood at the door and instigated Sarban to kill her mother because she frequently intervened. The incident was witnessed by Rajaram, Bablu, Nanhku and Baijnath, as well as her husband, who all ran to save the victims. After the incident, her father Kolai lodged a report, and the Inspector recorded her statement. Fear spread in the village; people stayed indoors, some left the village, and she sustained injuries on two places of her hands caused by Sarban’s assault. A woman constable took her for treatment. In cross‑examination, Sangeeta affirmed that the incident occurred on a Saturday, that she woke up at 06:00 a.m., and that the houses of Sarban and her family were opposite each other. She denied any dispute over drainage water, denied that any report had been lodged by her family, and denied that her father had raised an axe to kill Sarban. She stated that on the day of the incident her father was at the door of Rajaram, heard screaming, came outside, and tried to save his wife but sustained no injury. She further asserted that no quarrel took place between Suman and her family, that they had been on speaking terms before the incident, and that she had no enmity with the families of Suman or Pawan. She described the sequence of events during the scuffle, noting that Sarban first emerged with the axe, followed by Suman, and that Suman did not carry anything in her arms., Petitioner Witness 3 – Ram Naresh, son‑in‑law of the informant, deposed in his examination‑in‑chief that a day before the incident he had visited his in‑law’s house. The incident occurred on 25 April 2009 at 06:30 a.m. While he and Sangeeta were standing at the door of the in‑law’s house, a noise was heard from Sarban’s house. Madhuri and Rajendra ran out, and Sarban, armed with an axe, emerged and threatened that he had put his wife and children aside and would also put aside his brother‑in‑law, sister‑in‑law and mother‑in‑law. He assaulted Madhuri, causing her to fall on the dirt road. When Rajendra and Sangeeta attempted to rescue their mother, Sarban assaulted them as well, striking with both the back and front of the axe. Suman, standing at her door, was instigating Sarban. The police arrived, took Sangeeta and Rajendra to the Trauma Centre Hospital; Rajendra died after eight days due to injuries sustained. In cross‑examination, Ram Naresh stated that Suman lived with her husband Pawan in a separate house, that he did not enter Sarban’s house or intervene due to fear, and that he only made a hue and cry. He was standing about twenty‑five steps from Suman at the time. After the incident Sarban fled with the axe, and Suman also ran after him. He did not attempt to save his sister‑in‑law, mother‑in‑law or brother‑in‑law because of fear. The police recorded his statement at the place of occurrence., The statements of the convicts/appellants, Sarban and Suman, were recorded under Section 313 of the Criminal Procedure Code. Convict/appellant Sarban, in his statement, accepted the prosecution witnesses’ accounts that he and his sister‑in‑law Suman had an illicit relationship objected by his wife Santoshi, leading to quarrels in which Madhuri, the wife of the informant, intervened, causing Sarban to become angry with her. He admitted that on 25 April 2009 he was standing in front of the house of Rajaram adjacent to his own house when a sound of “save‑save” was heard from his house; he came out with an axe, told Madhuri that he had put his wife and children on the line and that she would also be put on the line if she tried to save them, and then assaulted her with the axe, causing her to fall on the dirt road and die. He also admitted that blood was dripping from the axe as he swung it. He further stated that, after a hue and cry by Kolai, two to four persons arrived and he fled with the axe. He claimed that the informant and his family had first killed his (Sarban’s) family members, after which he killed theirs. He also admitted that Kolai obtained a First Information Report scribed by Ram Sewak, son of Hari Prasad, which Kolai thumb‑impressed and lodged at the Mohanlalganj Police Station. Additionally, he admitted the injured witness Sangeeta’s account that on 5 July 2009 at about 06:00 a.m. a scuffle was occurring between Sarban and his wife Santoshi, a “save‑save” noise was heard, Madhuri came out onto the dirt road, Sarban emerged with a blood‑stained axe, threatened her, and assaulted her with four to five blows, causing her to fall; subsequently Rajendra fell after being assaulted, and Sarban also struck Sangeeta on the head with the axe. He reiterated that he killed the informant’s family because they had killed his wife and children., Convict/appellant Suman, in her statement recorded under Section 313 of the Criminal Procedure Code, denied all allegations and claimed innocence, stating that she had been falsely implicated due to enmity because she belonged to Sarban’s family. She asserted that on 25 April 2009 at 06:30 a.m. she did not see Sarban assaulting anyone, but went to the place of the incident along with her family after a hue and cry. She denied having an illicit relationship with Sarban and denied witnessing Sarban kill his wife, children, or the informant’s wife, as well as denying that she saw Sarban assault Rajendra and Sangeeta with the axe. However, she admitted that informant Kolai obtained a First Information Report scribed by Ram Sevak, son of Hari Prasad, which Kolai thumb‑impressed and lodged at the Mohanlalganj Police Station, Lucknow., Defence Witness 1 – Pawan Kumar, the real brother of convict/appellant Sarban, deposed that the incident occurred on 25 April 2009 between 06:00 and 07:00 a.m. The day before, he attended a Tilak ceremony in Ahimakheda and returned to his village Gaura by bicycle at about 06:45 a.m. His wife was cleaning utensils. Hearing a hue and cry from the village, he and his wife ran to the scene and saw his brother Sarban shouting that Kolai, after cutting his wife and children, had fled. Sarban told him that he had gone to get salt and returned to find his wife and children cut off. Inside Sarban’s house, the vegetable pot was overturned and the dead bodies of three children and his brother’s wife were lying. He called the police, who arrived in a jeep, loaded four dead bodies, and took them to the police station, later returning them home. The police later brought an axe from Kolai’s house and a stick, fixed the stick on the axe, and dripped blood on the axe before taking it to the police station again. He stated that he had an old enmity with Kolai because Kolai had usurped one bigha of his land, and that the whole village feared Kolai. After the incident, Kolai attacked him and his father, resulting in his father’s death, and Kolai threatened to kill him. He also mentioned rumors that Kolai had killed Sarban’s children. In cross‑examination, he reiterated that he was working as a mason, that the distance from Mohanlalganj to his village Gaura was three kilometres, and that he reached home at 06:00 p.m. after work. He clarified that he gave evidence on the request of Advocate Sri Kamlesh and denied falsifying his testimony to save Suman. He also stated that no summons had been issued to him by the Court., Defence Witness 2 – Banshi Lal, in his examination‑in‑chief, deposed that the incident occurred on 25 April 2009 at about 06:10 a.m. On that day he was in his village; the houses of Sarban and Kolai were opposite each other, and his house was about one kilometre from both. He was engaged in work when he received information about the incident after two hours, after which he went to the scene and saw villagers and police personnel. He observed that the police took away all the dead bodies and no panchayat‑nama was made. He knew the informant Kolai and stated that no one was present at Kolai’s house; the door was locked and the wife was trying to flee. When Sarban returned after buying groceries, he saw the incident and that Kolai’s wife was running away. According to police direction, all dead bodies were carried out and loaded onto a police jeep by Sarban himself, after which Sarban and his sister‑in‑law were taken by police. He noted that no weapon was recovered in his presence. In cross‑examination, he affirmed that he was involved in construction, labour and farming, that he was about two kilometres away from his house at the time of the incident, that he did not see anyone killing or the exact sequence of events, and that he only learned of the incident from villagers. He denied falsifying his testimony to protect the accused., Defence Witness 3 – Kanhaiya Lal, in his examination, deposed that the incident occurred on 25 April 2009 between 06:00 and 07:00 a.m. His house was on the eastern side of Kolai’s house, with Sarban’s and Kolai’s houses opposite each other and a dirt road (kharanja) between them. On the day of the incident he was at his house attending a religious gathering and went to call the gardener, whose house was a short distance from Sarban’s house, at around 06:00–07:00 a.m. He observed two sons of Kolai armed with axes running from the ruined house, their clothes stained with blood. He could not identify their names but recognized them. When he approached Sarban’s house, he saw Kolai and his sons armed with a stick (banka) and his daughter armed with a knife (hasiya), all blood‑stained. Sarban and his family were not present. In cross‑examination, he stated that he was unsure of the exact time he went to call the gardener but confirmed that the gardener met him.
id_1096	2	He reached the house of the gardener and talked to him for about one minute. He further deposed that the incident occurred earlier and thereafter he met the gardener. Even after seeing the incident, he went to the house of the gardener. After that he went to the house through another pathway due to fear. He further deposed that even after the occurrence of the incident, a katha happened in his house. He further deposed that it is correct to say that he went to call the gardener from his house at 07:00 a.m. and before that the incident had happened., The trial court, upon appreciation of oral and documentary evidence, by its impugned judgment dated 29 August 2017, convicted and sentenced the appellants Sarvan and Suman in the manner stated in paragraph 2. Feeling dissatisfied and aggrieved by the judgment of conviction and sentence awarded, the appellants Smt. Suman and Sarvan have preferred Criminal Appeal Nos. 1540 of 2017 and 1552 of 2017, respectively, under Section 374(2) of the Code of Criminal Procedure before the Supreme Court of India. However, the trial court, in accordance with the provisions of Section 366(1) of the Code of Criminal Procedure, made reference to the Supreme Court of India for confirmation of the death sentence of convict‑appellant Sarvan., Heard Ms. Manjusha Kapil, learned counsel for the convicts‑appellants; Mr. Vimal Srivastava, learned Government Advocate assisted by Mr. Pankaj Tewari, learned Additional Government Advocate for the State; and perused the material brought on record., Challenging the impugned judgment dated 29 August 2017 passed by the trial court, Ms. Manjusha Kapil, learned counsel for the convicts‑appellants, argued that (i) the entire case against the convicts‑appellants is fabricated and has been framed at the instance of (ii) the convict‑appellant Sarvan, in his statement recorded under Section 313 of the Code of Criminal Procedure, has stated in clear terms that informant Kolai (PW‑1) and his family members had killed his wife and children, and in retaliation he got angry and killed the wife of the informant (PW‑1) and his son; (iii) it is settled law that if the prosecution admits a statement under Section 313 of the Code of Criminal Procedure, the whole statement must be considered and it is not permissible to accept only the part that supports the prosecution and to exclude the remaining part. The trial court considered only one part of this statement and erred in not considering the whole statement of convict‑appellant Sarvan recorded under Section 313 of the Code of Criminal Procedure; (iv) the dispute between informant Kolai (PW‑1) and convict‑appellant Sarvan was due to the flow of drainage from the house of the informant to the house of the convict‑appellant; (v) the entire case as presented by the prosecution is concocted and false. According to the defence, on the date of the incident, convict‑appellant Sarvan went to purchase salt and, upon returning, saw informant Kolai (PW‑1), his sons Guddu and Nanha, his wife and his daughter running from Sarvan’s house with a hasiya, axe, etc. Immediately thereafter, Sarvan entered his house and saw his wife and children lying dead on the floor, upon which he got angry and, in retaliation, came out of his house and killed the informant’s wife and son. Therefore, the offence committed by the convict‑appellant would not fall within Section 302 of the Indian Penal Code but at most within the first part of Section 304 of the Indian Penal Code, as the convict‑appellant had killed the informant’s wife and son in revenge because the informant and his family members had killed the wife and children of convict‑appellant Sarvan. Thus, the trial court erred in convicting and sentencing the convict‑appellant under Section 302 of the Indian Penal Code; (vi) the convict‑appellant Sarvan has no motive to commit the murder of his wife and children. Even if, for the sake of argument, it is presumed that on account of an illicit relationship with his sister‑in‑law, the convict‑appellant Sarvan had killed his wife, there is no motive for him to murder his own minor children as the convict‑appellant was not mentally ill nor did the trial court find the same. Thus, the findings of the trial court in this regard are perverse and liable to be rejected; (vii) the prosecution has failed to produce any independent witness. PW‑1, PW‑2 and PW‑3 are interested and partisan witnesses; therefore, their testimonies cannot be said to be trustworthy. The trial court erred in believing the testimonies of interested and partisan witnesses; (viii) as per the prosecution, an axe was used as a weapon for committing the murder of five persons, namely Rajendra, Ramroop, Smt. Santoshi, Ravi, Sumiran and Smt. Madhuri and causing injury to Sangeeta, but perusal of the ante‑mortem injuries reveals that the size of all the injuries is different, which clarifies that these injuries could have been caused by different weapons. Thus, the prosecution’s case that an axe was used in the commission of murder is doubtful; (ix) the axe in question was handed over by Kolai (PW‑1) himself to the police, after which the police went to the spot, dripped the axe in blood at the place of occurrence, sealed it and prepared a forged recovery memo. This fact has been proved from the testimonies of DW‑1 Pawan Kumar and DW‑2 Banshi Lal, but the trial court erred in disbelieving the testimonies of DW‑1; (x) the axe was allegedly stated to be found from a heap of straw on the pointing out of convict‑appellant Suman. If that were so, some straw ought to have a stick on it, but nowhere in the police report is a description of straw mentioned. This shows that the prosecution’s case regarding recovery of the axe on the pointing out of convict‑appellant Suman is doubtful and not believable; (xi) DW‑3 Kanhaiya Lal, in his examination‑in‑chief, deposed before the trial court that two sons of Kolai (PW‑1) armed with an axe jumped over the boundary wall of convict‑appellant Sarvan, blood was present on their clothes, and when he reached the house of convict‑appellant Sarvan, he saw that Kolai (PW‑1) was there armed with a blood‑stained bank; his sons were there armed with blood‑stained bank and his daughter was also there armed with a blood‑stained hasiya and none of the family members of Sarvan or Sarvan himself were present. The trial court erroneously did not believe the testimonies of defence witnesses while passing the impugned order; (xii) the learned trial court has committed a grave legal error in holding that the present case falls within the category of “rarest of rare” as the trial court failed to record special reasons for sentencing convict‑appellant Sarvan to death as required under Section 354; (xiii) the prosecution has miserably failed to connect the convicts‑appellants with the crime either by direct, medical or circumstantial evidence and therefore the convicts‑appellants should be acquitted and the criminal appeals allowed and the reference rejected; (xiv) the extreme penalty of death awarded to convict‑appellant Sarvan by the trial court is too harsh and excessive in nature and an alternate penalty of imprisonment for life would meet the ends of justice., Shri Vimal Srivastava, learned Government Advocate, assisted by Shri Pankaj Tiwari, learned Additional Government Advocate for the State, opposed the submissions advanced by the learned counsel for the convicts‑appellants and argued that (i) the prosecution has brought sufficient material in the form of ocular, medical and documentary evidence to justify conviction of the convicts‑appellants for the offences; (ii) convict‑appellant Sarvan had an illicit relationship with his sister‑in‑law, which was objected by his wife, leading to quarrels and occasional assaults on his wife Smt. Santoshi. The wife of informant Kolai, Madhuri, used to intervene and settle the issue but Sarvan disliked it. These facts have been proved by the prosecution. Therefore, the defence that he killed the informant’s wife and son in retaliation has rightly been discarded by the trial court; (iii) PW‑1, PW‑2 and PW‑3 have fully supported the version of the prosecution; (iv) thus, the trial court, after appreciating the evidence on record, rightly concluded that the convicts‑appellants were responsible for the murder of all six persons and rightly convicted them under Sections 302, 323 and 201 of the Indian Penal Code; (v) the seizure of a blood‑stained axe at the instance of the convicts‑appellants Sarvan and Suman is a substantial piece of evidence and proves their guilt in the murder of six persons; (vi) the prosecution has established the motive of the convicts‑appellants to commit the murder; (vii) the medical evidence has fully supported the prosecution case; (viii) in view of the aforesaid evidence, the criminal appeals preferred by the convicts‑appellants deserve to be dismissed and the death sentence awarded to convict‑appellant Sarvan deserves to be confirmed; (ix) this is a case of “rarest of rare” where convict‑appellant Sarvan murdered his own wife and three minor children aged about one, four and six years, as well as the wife of informant Madhuri and the son of informant Rajendra and also injured Sangeeta, daughter of the informant, by assaulting them with an axe and absconded from the scene. It falls within the meaning of “rarest of rare” as indicated by the Supreme Court of India in Bachan Singh v. State of Punjab, AIR 1980 SC 898. The manner in which the murders were committed by convict‑appellant Sarvan brutally with an axe shows that there is no chance of reformation and he is a burden to society; therefore, imprisonment for life or any other sentence is completely inadequate and only the death sentence is appropriate., This Supreme Court of India has examined the submissions advanced by the learned counsel for the parties, perused the statements of the prosecution witnesses and defence witnesses, the material exhibits tendered and proved by the prosecution, the statements of the appellants recorded under Section 313 of the Indian Penal Code and the impugned judgment., The prosecution case commenced with the First Information Report lodged by PW‑1 Kolai on a written report (Exhibit Ka‑1) given by him approximately one hour after the incident at the police station Mohanlalganj, district Lucknow, wherein it was stated that five deceased persons, namely Ramroop, Smt. Santoshi, Ravi, Sumiran and Smt. Madhuri, were brutally murdered and two persons, namely Rajendra and Sangeeta, were injured by convict‑appellant Sarvan. The convict‑appellant Sarvan was named in the FIR with the detail of the weapon, an axe, which he was carrying. The murder weapon, as described in the FIR and the depositions of eyewitnesses PW‑1, PW‑2 and PW‑3, tallies with the injuries sustained by the six deceased persons and injured Sangeeta (PW‑2), as is clear from the medico‑legal reports. S.I. Anand Kumar Pandey (PW‑8) proved the factum of lodging the FIR on the basis of the written report submitted by informant Kolai., Learned counsel for the convicts‑appellants contended that there was no motive on the part of convict‑appellant Sarvan to commit the murder of his own wife and children but, on account of enmity between convict‑appellant Sarvan and informant Kolai regarding the flow of drain water, the informant and his family members had killed his wife and three children when he went to buy salt outside his house and, in retaliation, convict‑appellant Sarvan inflicted injuries on the informant’s wife and son., Refuting the aforesaid submissions, the learned Government Advocate stated that the informant’s wife Madhuri, being the neighbour, always intervened in the altercations between convict‑appellant Sarvan and his wife Santoshi (deceased) on account of the illicit relationship of convict‑appellant Sarvan with his sister‑in‑law. Convict‑appellant Sarvan remained annoyed with the informant’s wife. Further, the wife of convict‑appellant, Santoshi, always quarreled with convict‑appellant Sarvan on the issue of his illicit relationship with his sister‑in‑law, hence convict‑appellant Sarvan committed the murder of his wife and children on account of that illicit relationship., In Bipin Kumar Mondal v. State of West Bengal [(2010) 12 SCC 91], the Apex Court held that motive is primarily known to the accused and may not be possible for the prosecution to explain what prompted him to commit a particular crime. In Shivji Genu Mohite v. State of Maharashtra, AIR 1973 SC 55, this Court held that the absence of a proved motive does not affect the credibility of a reliable eyewitness. It is a settled legal proposition that even if the absence of motive is accepted, it is of no consequence when direct evidence establishes the crime. Therefore, if there is direct trustworthy evidence of witnesses as to the commission of an offence, the motive part loses its significance., In the present case, PW‑1, PW‑2 and PW‑3, in their statements recorded before the trial court, establish that on account of the illicit relationship of convict‑appellant Sarvan with his sister‑in‑law, he murdered his wife and three minor children and, when Madhuri, the informant’s wife, tried to intervene, Sarvan became annoyed and also murdered her; when Rajendra tried to save his mother Madhuri, Sarvan also assaulted Rajendra with an axe and Rajendra later died during treatment. From the side of the convicts‑appellants, three defence witnesses, DW‑1, DW‑2 and DW‑3, have been produced and all have stated different motives on different occasions to substantiate their claim that informant Kolai and his family members had committed the murder of the wife of convict‑appellant Sarvan and his three children and, in retaliation, convict‑appellant Sarvan murdered the informant’s wife and son. Convict‑appellant Sarvan, in his statement recorded under Section 313 of the Code of Criminal Procedure, admitted that he had an illicit relationship with his sister‑in‑law and that his wife Santoshi constantly confronted him about it, and that the informant’s wife Madhuri always intervened, which annoyed him. Thus, the trial court rightly concluded that convict‑appellant Sarvan had a strong motive and the opportunity to commit the act. If convict‑appellant Sarvan were to be excluded, there should have been a reasonable possibility of anyone else being the real culprit, and the chain of evidence shows that, in all probabilities, the crime was committed by convict‑appellant Sarvan., It appears from the evidence on record, particularly the evidence of informant PW‑1 Kolai, that the house of convict‑appellant Sarvan was opposite his house. PW‑1 deposed that a rumour was spread in the village that convict‑appellant Sarvan had an illicit relationship with his sister‑in‑law, which was objected by Smt. Santoshi (deceased). Sometimes scuffles and verbal fights took place between them, and Smt. Madhuri (deceased, wife of the informant) being the neighbour always intervened, after which convict‑appellant remained annoyed with her. PW‑1 further narrated that a fight ensued at 06:30 a.m. on 25 April 2009 between convict‑appellant Sarvan and his wife Smt. Santoshi on the issue of the illicit relationship. An alarm “save‑save” sounded from the house of convict‑appellant Sarvan while PW‑1 was standing in front of the adjacent house of Rajaram. At the same time, the wife of PW‑1, Madhuri, hearing the alarm, came out of her house; convict‑appellant Sarvan, armed with a blood‑stained axe, came out and told Madhuri that after cutting his wife and children, he had put them on the line and that she often ran to save, she would also be put on the line. He then assaulted Madhuri with the axe, causing her to fall and succumb to her injuries. PW‑1 also deposed that Rajendra (son of the informant) and Sangeeta (daughter of the informant) were standing at their door, ran to save their mother Madhuri, but were also assaulted by convict‑appellant Sarvan with the axe. PW‑1 further deposed that when Sarvan was assaulting Madhuri, Suman, the sister‑in‑law of convict‑appellant Sarvan, was standing at his door and instigated Sarvan to kill Madhuri as she always intervened. After the assault, PW‑1 and other villagers tried to catch convict‑appellant Sarvan but he fled with the blood‑stained axe, and Suman also fled. Thereafter, PW‑1 and his daughter Sangeeta (injured) went to the police station and lodged the report., PW‑2 Sangeeta, an injured eyewitness, supported the deposition of informant PW‑1 and stated that on 25 April 2009 at about 06:00 a.m., a quarrel took place between Sarvan and his wife Santoshi and thereafter a noise “save‑save” came from their house. At that time, her father PW‑1 Kolai was standing at the door of Rajaram. Hearing the noise, her mother Madhuri came out of her house. At that moment, PW‑2 and her brother Rajendra were standing at the door. After some time, Sarvan, armed with a blood‑stained axe, came out and told Madhuri that she protected a lot, now she would also be killed. He assaulted her with the axe, causing her to fall and die. PW‑2 also stated that she and her brother Rajendra tried to save their mother but Sarvan first assaulted Rajendra with the axe, causing him to fall, and then assaulted her on the head with the axe. She further deposed that when convict‑appellant Sarvan came out with the axe, his sister‑in‑law Suman also came out behind him, stood at the door and instigated him to kill Madhuri. She further stated that her father Kolai tried to save his wife Madhuri and also tried to catch convict‑appellant Sarvan, but Sarvan fled with the axe and Suman fled behind him. Thereafter, she and her father went to the police station where her father lodged the report at the Mohanlalganj police station, Lucknow., PW‑3 Ram Naresh, the son‑in‑law of the deceased Madhuri and informant Kolai, also supported the testimonies of PW‑1 and injured PW‑2 Sangeeta and stated that on 25 April 2009 at about 06:30 a.m., while he was talking with Sangeeta at the door of his in‑law’s house, a noise “save‑save” came from the house of convict‑appellant Sarvan. Hearing this, his mother‑in‑law Madhuri came out of her house. At that moment, Sarvan, armed with a blood‑stained axe, came out and told his mother‑in‑law that he had put aside his wife and children and would also put aside three of them. He assaulted her with the axe, causing her to fall on the ground and die. He further stated that his brother‑in‑law Rajendra and Sangeeta tried to save their mother‑in‑law but were also assaulted by convict‑appellant Sarvan with the axe. At that time, the sister‑in‑law of convict‑appellant Sarvan, Suman, while standing at the door, was instigating him to kill them. He further stated that, out of fear, he did not try to save his mother‑in‑law, brother‑in‑law or Sangeeta but only raised a hue and cry., From the aforesaid evidence of PW‑1, PW‑2 and PW‑3, nothing improbable is found in their examination‑in‑chief, particularly considering a very scant and deficient cross‑examination. This Court notes that except for a minor omission, nothing substantial could be elicited from the cross‑examination of PW‑1, PW‑2 and PW‑3 to render their entire evidence doubtful., The presence of the convicts‑appellants at the scene of occurrence has not been disputed by the learned counsel for the appellants and cannot be doubted. The argument is that convict‑appellant Sarvan can be pinpointed during the commission of the murder of his wife Smt. Santoshi and their three children, Ramroop, Ravi and Sumiran, as at that time he had gone to purchase salt and, after returning, saw his wife and three children lying dead and, in retaliation, came out of his house and assaulted the wife of informant Kolai (Madhuri), his son Rajendra and his daughter Sangeeta. The contention is that any action by convict‑appellant Sarvan was only in reaction and he cannot be convicted of the homicide of his wife and three children., To appreciate the argument, this Supreme Court of India must assess the probabilities of the defence version sought to be established by the production of three defence witnesses (DW‑1, DW‑2 and DW‑3). Accordingly, this Court will also examine the prosecution evidence to ascertain whether the probabilities of the defence version would make the prosecution story doubtful., It transpires from the evidence of PW‑2 Sangeeta that a suggestion was put to her by the convicts‑appellants that informant Kolai (PW‑1) had also entered the house of convict‑appellant Sarvan, whereas, from the cross‑examination of PW‑1 Kolai, a suggestion was put to him by the convicts‑appellants that Kolai and Rajaram were not present at the place of occurrence. This shows that the convicts‑appellants took contradictory stands regarding the presence of informant Kolai at the place of occurrence; consequently, it is not established that informant Kolai and his family entered the house of convict‑appellant Sarvan and killed his wife and children., Learned counsel for the convicts‑appellants also contended that there was a dispute between convict‑appellant Sarvan and informant Kolai regarding the flow of drainage water and, on that account, informant Kolai and his family entered the house of convict‑appellant Sarvan and killed his wife and children when Sarvan had gone to buy salt. In our view, this contention has no substance. At the time of the incident, the deceased Rajendra, son of informant Kolai, was about ten years old; injured Sangeeta was about sixteen years old; the presence of Nanha was also shown at the place. It is improbable that, if there was any dispute over drainage water, the elder members of the informant’s family would involve themselves, while a ten‑year‑old boy and a sixteen‑year‑old girl would enter the house of convict‑appellant Sarvan on the date of the incident. Moreover, there is no evidence that convict‑appellant Sarvan went to buy salt on the date and time of the incident., In the statement of convict‑appellant Sarvan recorded under Section 313 of the Code of Criminal Procedure, he admitted that on the date, time and place, informant Kolai (PW‑1) was standing at the door of Rajaram; a noise “save‑save” was coming from his house; at that time, Sarvan came out of his house with an axe and told Madhuri that he had put his wife and children on the line and that she often ran to save, she would also be put on the line. He assaulted Madhuri with the axe, after which she fell on the ground and died. Convict‑appellant Sarvan also admitted the testimonies of injured PW‑2 Sangeeta. Therefore, his statement supports the prosecution case., From the side of the convicts‑appellants, three witnesses, namely DW‑1 Pawan Kumar, DW‑2 Banshi Lal and DW‑3 Kanhaiya Lal, were examined. DW‑1 Pawan Kumar is the brother of convict‑appellant Sarvan. His evidence shows that, on the hue and cry of his brother Sarvan, informant Kolai, after killing his wife and children, fled away and went to the house of convict‑appellant Sarvan. This shows that DW‑1 is not an eye‑witness as he reached the place after the incident. In his examination‑in‑chief, DW‑1 did not depose anything regarding the dispute of drainage water but stated a new story that informant Kolai had captured one bigha of land and had attacked his father, who died, and a case is ongoing. No evidence on record establishes these facts, and his statements are based on rumour, rendering them unreliable., DW‑2 Banshi Lal was produced from the side of convict‑appellant Sarvan, claiming to be an eye‑witness, but his evidence shows that he is not an eye‑witness as he stated that on the date of the incident he had gone for work and, after two hours, when he reached the place, he saw the police taking out the dead bodies of the deceased and that the informant’s wife had died.
id_1096	3	Defence Witness 2 had also stated that the police was informed by the watchman and villagers about the incident through phone, whereas it transpires from the statement of Defence Witness 1, Pawan Kumar, who is the real brother of the convict/appellant Sarvan, that on his telephonic call the police reached the place of occurrence. This contradictory statement itself shows that Defence Witness 2 had no actual knowledge about the incident. Moreover, Defence Witness 2 had not stated any dispute between Sarvan (convict/appellant) and informant Kolai regarding the flow of drain water. Thus, the statement of Defence Witness 2 is also not trustworthy., Defence Witness 3, Kanhaiya Lal, was produced from the side of the convicts/appellants as an eye‑witness. His evidence shows that on the date of the incident there was a gathering in his house and he went to call the gardener, whose house was situated at a short distance from his house. Defence Witness 3 further deposed that he saw two sons of Kolai (Prosecution Witness 1‑Informant) armed with an axe jump from the ruined house and run away with blood on their clothes. This version is belied by his own cross‑examination before the Trial Court where he himself stated that he went from his house to call the gardener at 07:00 p.m. and when he came out of his house the incident had already occurred. Hence, it is clear that Defence Witness 3 is not an eye‑witness. Furthermore, Defence Witness 3 stated that even after the incident a gathering had happened in his house. Hence, the evidence of Defence Witness 3 is also not believable., Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and there is no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and, in the bargain, protect the real culprit. The Supreme Court of India has consistently stated that this aspect of criminal jurisprudence is no longer res integra., In Abdul Sayeed v. State of Madhya Pradesh: (2010) 10 SCC 259, the Supreme Court of India held: \The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built‑in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.\ (Vide Ramlagan Singh v. State of Bihar; Malkhan Singh v. State of U.P.; Machhi Singh v. State of Punjab; Appabhai v. State of Gujarat; Bonkya v. State of Maharashtra; Bhag Singh; Mohar v. State of U.P.; Dinesh Kumar v. State of Rajasthan; Vishnu v. State of Rajasthan; Annareddy Sambasiva Reddy v. State of A.P.; Balraje v. State of Maharashtra.) The Court further observed in Jarnail Singh v. State of Punjab that the deposition of an injured witness should be relied upon unless there are strong grounds for rejection on the basis of major contradictions and discrepancies., In the instant case, Prosecution Witness 2, Sangeeta, is an injured witness. She fully supported the prosecution case and stood firm as a rock of Gibraltar. She stated that on the date and time of the incident a noise came from inside the house of convict/appellant Sarvan. On hearing this noise her mother Madhuri came out of her house and, behind her, Sangeeta and her brother Rajendra stood at their door. After some time Sarvan, armed with a blood‑stained axe, came out of his house and told Madhuri that she would also be killed. Sarvan swung four to five blows of the axe upon her mother, causing her to fall. Sangeeta and Rajendra ran to save their mother, but Sarvan also assaulted Rajendra and then Sangeeta with the axe, causing her injuries. Sarvan fled, followed by Suman. Immediately thereafter Sangeeta, along with her father (Prosecution Witness 1), went to the police station at Mohanlalganj where her father lodged the First Information Report. After lodging the report, she was sent for medical examination along with the constable., From the evidence of Prosecution Witness 2, Sangeeta, it is established that her presence at the place of occurrence is natural and that the injuries on her person were caused by convict/appellant Sarvan., It transpires from the recovery memo Ext. Ka. 39 that the weapon of assault, an axe, was recovered on the next day of the incident, i.e., on 26‑04‑2009, on the pointing out of convicts/appellants Sarvan and Suman. At the time of recovery, blood was found on the weapon. To prove the recovery, Sub‑Inspector Shri Dharam Pal was examined as Prosecution Witness 13, who proved the recovery of the axe on the pointing out of Sarvan and Suman from the straw and also proved the arrest of convict/appellant Suman on the same day from his house. Prosecution Witness 13 also produced the site plan of the recovery as Ext. Ka. 40. Thus, the prosecution has fully established the recovery of the axe on the pointing out of Sarvan and Suman., The learned counsel for the convicts/appellants contended that Prosecution Witnesses 1, 2 and 3 are interested and partisan witnesses because Prosecution Witness 2 and Prosecution Witness 3 are the daughter and son‑in‑law of the informant Prosecution Witness 1; therefore, their testimonies cannot be believed., In Namdeo v. State of Maharashtra: (2007) 14 SCC 150, the Supreme Court of India summarized the law: \A close relative cannot be characterised as an 'interested' witness. He is a 'natural' witness. His evidence, however, must be scrutinised carefully. If on such scrutiny his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the sole testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, a close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.\, The Supreme Court of India reiterated the aforesaid principle in Gulam Sarbar v. State of Bihar: (2014) 3 SCC 401, stating that the quality of evidence, not the quantity, determines adequacy of proof. It is a time‑honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy. Section 134 of the Evidence Act emphasizes quality over quantity. Even in probate cases, the production of more witnesses does not carry any weight. Thus, conviction can be based on the testimony of a sole eye‑witness if it inspires confidence. Keeping in mind the aforesaid propositions, it transpires from the record that there are three eye‑witnesses examined by the prosecution, namely Prosecution Witnesses 1, 2 and 3, and they have not contradicted each other. Merely because they are related witnesses, in the absence of any material to hold that they are interested, their testimonies cannot be rejected., Regarding medical evidence, four persons – Ramroop, Smt. Santoshi, Ravi and Sumiran – were killed on 25‑04‑2009 in the house of convict/appellant Sarvan; one person, Smt. Madhuri, was killed on 25‑04‑2009 outside the house; two persons, Rajendra and Sangeeta, were injured on 25‑04‑2009; and Rajendra died during treatment at the Trauma Centre, King George's Medical College, Lucknow on 03‑05‑2009 at 08:40 p.m., The post‑mortems of the deceased Ramroop, Smt. Santoshi and Ravi were conducted on 25‑04‑2009 at 08:30 p.m., 08:00 p.m. and 09:30 p.m., respectively, at T.B. Hospital, Thakurganj, Lucknow by Prosecution Witness 6, Dr. G.P. Tiwari. All post‑mortem reports showed time of death as 25‑04‑2009 at 06:30 a.m. Injuries were incised and abraded wounds. Dr. Tiwari opined that the deaths were due to shock and haemorrhage resulting from ante‑mortem injuries caused by a sharp‑edged weapon., The post‑mortem examination of the deceased Sarvan (aged about 4 years) and Smt. Madhuri (aged about 50 years) was conducted on 25‑04‑2009 at 08:30 p.m. and 09:00 p.m., respectively, in T.B. Hospital, Thakurganj, Lucknow by Prosecution Witness 9, Dr. Rajesh Awasthi. Dr. Awasthi found multiple lacerated wounds on both bodies, some of which could be attributable to a sharp‑edged weapon and others to blunt objects. He stated that the injury to the deceased Sumiran could be caused by a sharp‑edged weapon., After the incident, the deceased Rajendra was admitted to the Trauma Centre, Lucknow, where he succumbed to injuries on 03‑05‑2009. His post‑mortem was conducted on 04‑05‑2009 at 01:00 p.m. by Dr. U.K. Prasad (Prosecution Witness 5), who found three ante‑mortem contusions, fractures of the right temporal and parietal bones, subdural haemorrhage and extra‑dural haemorrhage. Dr. Prasad opined that Rajendra died due to coma resulting from the ante‑mortem injuries., The injury of the injured Sangeeta (Prosecution Witness 2) was examined by Prosecution Witness 4, Dr. S.K. Trivedi, on 25‑04‑2009 at 02:20 p.m. at Community Health Centre, Mohanlalganj, Lucknow. Dr. Trivedi found an incised wound 1.5 cm × 0.25 cm × skin‑deep on the left side of the arm, 1.5 cm above the left elbow joint, with clotted blood. He opined that the injury was simple in nature, could be caused by a hard and blunt object, and was approximately half a day old., If the statements of Prosecution Witnesses 4, 5, 6 and 9 are compared with other prosecution witnesses, it is clear that all deceased persons were killed on 25‑04‑2009 at 06:30 a.m. Convict/appellant Sarvan used the same weapon in committing the murders. The injuries found on the bodies can be caused with the axe recovered on the pointing out of the convicts/appellants. Thus, the prosecution proved the manner of death and connected the axe to the offence. The finding recorded by the Trial Court on medical evidence is in accordance with the facts and needs no interference by the Supreme Court of India. Medical evidence is not contrary to the oral version of the prosecution., From the discussion of the prosecution evidence, this Court finds that: (i) the First Information Report was lodged within one hour of the incident; (ii) Prosecution Witness 1 lodged the First Information Report in writing, proved by Exhibit Ka‑1, which contains a graphic description of convict/appellant Sarvan with the weapon and the manner of the six murders and one injury; (iii) Prosecution Witnesses 1, 2 and 3 stood firm as a rock of Gibraltar in supporting the prosecution case; (iv) there is no inconsistency in the oral testimony of Prosecution Witnesses 1, 2 and 3, the medical evidence and the testimony of Court Witness 1 and the reports such as inquest and site plan regarding the injuries and place of occurrence; (v) the medical evidence fully corroborates the evidence of eye‑witnesses Prosecution Witnesses 1, 2 and 3 with regard to the ante‑mortem injuries sustained by the six deceased persons; (vi) the defence evidence of Defence Witnesses 1, 2 and 3 is not reliable., Having carefully appreciated all the arguments made by the learned counsel for the convicts/appellants, the learned Government Advocate, the prosecution evidence, defence evidence, medical evidence and other materials on record, the Supreme Court of India finds that the prosecution has proved its version beyond all reasonable doubt. The convicts/appellants, although pleading that their act was retaliation for assaulting the informant's wife and son, have utterly failed to discharge the burden of proving their story or creating doubt on the prosecution story. The presence of the convicts/appellants at the scene is undisputed. It is proved that convict/appellant Sarvan, in a pre‑meditated manner armed with an axe, caused the death of six persons and injured one person. It is also proved that convict/appellant Suman, with the intention of shielding Sarvan, concealed the axe, which was later recovered on the pointing out of both convicts/appellants. Accordingly, their conviction for the offences mentioned in paragraph‑2 is fully justified and the convictions are upheld. No infirmity is found in the decision of the Trial Court., As far as the sentence awarded to the convicts/appellants is concerned, the Trial Court, in its wisdom, imposed the death penalty, finding the present case to be in the category of \rarest of rare\ cases. Six persons were killed and one was injured. Convict/appellant Sarvan was the husband of the deceased Smt. Santoshi (aged about 35 years) and father of Ramroop (aged about 6 years), Ravi (aged about 1 year), Sumiran (aged about 4 years) and also neighbour of the deceased Smt. Madhuri (aged about 50 years), deceased Rajendra (aged about 10 years) and injured Sangeeta (aged about 16 years)., Aggravating circumstances are: (a) the offence was committed by convict/appellant Sarvan in an extremely brutal, grotesque, diabolical, revolting and dastardly manner, arousing intense indignation of society; (b) the offence was pre‑ordained, demonstrating exceptional depravity and extreme brutality; (c) extreme misery was inflicted upon his own wife, three minor children and his neighbour who came to save them; (d) helpless children were killed; (e) the brutality and pre‑meditated plan is shown by the assault on vital parts of the victims; (f) the act was motivated by an illicit relationship with his sister‑in‑law, which his wife had always objected to, and by the neighbour's interference; (g) the conduct shows no chance of reformation and poses a menace to society; (h) it is a cold‑blooded murder of six persons without provocation., Mitigating circumstances are: (a) the age of convict/appellant Sarvan was 48 years at the time of filing Criminal Appeal No. 1552 of 2017 and he now appears to be about 52 years; (b) he belongs to a village background and the offence was committed because of his illicit relationship with his sister‑in‑law; (c) there is a chance for reformation and rehabilitation., The question before the Supreme Court of India is whether the death penalty in the present case is justified. Before looking at the facts of the present case on the question of sentence, it is appropriate to refer to judicial authorities laying down principles for imposing the death penalty., In Bachan Singh v. State of Punjab: (1980) 2 SCC 684, the Supreme Court of India observed in paragraph 164 that the normal rule for murder is life imprisonment. The Court may depart from that rule and impose death only if there are special reasons, which must be recorded in writing. While considering sentence under Section 302 IPC, the Court must have regard to every relevant circumstance relating to the crime and the criminal. If the offence is of an exceptionally depraved and heinous character and constitutes a grave danger to society, the Court may impose death., Relying on the authority in Furman v. Georgia, (1972) SCC On‑Line US SC 171, the Supreme Court of India noted the aggravating circumstances listed in paragraph 202 of Bachan Singh: (a) murder after previous planning involving extreme brutality; (b) murder involving exceptional depravity; (c) murder of a member of the armed forces, police or public servant while on duty or as a consequence of duty; (d) murder of a person acting in lawful discharge of duty under Section 43 CrPC or assisting a magistrate or police officer under Sections 37 and 129 CrPC., In paragraph 203 the Court stated that while these indicators are useful, judicial discretion must not be fettered by an exhaustive enumeration. Paragraph 206 of Bachan Singh listed mitigating circumstances: (1) offence committed under extreme mental or emotional disturbance; (2) age of the accused (young or old); (3) probability that the accused would not continue to pose a threat to society; (4) probability of reform and rehabilitation; (5) belief that the offence was morally justified; (6) acting under duress or domination of another; (7) mental defect impairing capacity to appreciate criminality. Paragraph 207 emphasized that these mitigating circumstances must be given great weight in sentencing., In Machhi Singh v. State of Punjab, (1983) 3 SCC 470, the Court stressed aspects such as the manner of commission, motive, antisocial nature, magnitude of the crime and personality of the victim. The Court extracted propositions from Bachan Singh: (i) death penalty need not be inflicted except in the gravest cases of extreme culpability; (ii) circumstances of the offender must be considered along with the crime; (iii) life imprisonment is the rule and death is an exception, to be imposed only when life imprisonment is inadequate; (iv) a balance sheet of aggravating and mitigating circumstances must be drawn, giving full weight to mitigating factors., Machhi Singh further observed that the following questions must be answered to apply the guidelines: (a) Is there something uncommon about the crime that makes life imprisonment inadequate and calls for death? (b) Are the circumstances such that there is no alternative but to impose death even after giving maximum weight to mitigating circumstances?
id_1096	4	Haresh Mohandas Rajput v. State of Maharashtra (2011) 12 Supreme Court Cases 56, after referring to Bachan Singh (supra) and Machhi Singh (supra), the Supreme Court of India expanded the “rarest of rare” formulation beyond the aggravating factors listed in Bachan Singh (supra) to cases where the “collective conscience” of the community is so shocked that it will expect the holders of judicial power to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty. The Supreme Court of India, however, underlined that full weightage must be accorded to the mitigating circumstances of the case and a just balance had to be struck between the aggravating and the mitigating circumstances., In paragraph 20 of the judgment in Haresh Mohandas Rajput (supra), the Supreme Court of India observed that the rarest of the rare case arises when a convict would be a menace and threat to the harmonious and peaceful coexistence of society. The crime may be heinous or brutal but may not fall within the category of “rarest of the rare”. There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence constituting a continuing threat to society. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of society. Where an accused does not act on any spur of momentary provocation and indulges in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where victims are innocent children and helpless women. Thus, when the crime is committed in a most cruel and inhuman manner which is extremely brutal, grotesque, diabolical, revolting and dastardly, affecting the entire moral fibre of society, death sentence should be awarded., The issue again came up before the Honourable Supreme Court of India in Ramnaresh & others v. State of Chhattisgarh reported in (2012) 4 Supreme Court Cases 257, wherein the Supreme Court of India reiterated the thirteen aggravating and seven mitigating circumstances laid down in the case of Bachan Singh (supra) required to be taken into consideration while applying the doctrine of “rarest of rare”. The relevant paragraph reads as follows: “76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in the case of Bachan Singh (supra) and thereafter, in the case of Machhi Singh (supra). The aforesaid judgments primarily dissect these principles into two different compartments – one being the aggravating circumstances and the other being the mitigating circumstances. The Court would consider the cumulative effect of both these aspects and normally it may not be appropriate for the Court to decide the most significant aspect of sentencing policy with reference to one of the classes while completely ignoring other classes. To balance the two is the primary duty of the Court. It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning as contemplated under Section 354(3) of the Criminal Procedure Code. Aggravating Circumstances: (1) Offences relating to the commission of heinous crimes such as murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for a capital felony or offences committed by a person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create fear or psychosis in the public at large and was committed in a public place by a weapon or device which could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or similar offences to receive money or monetary benefits. (5) Hired killings. (6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody. (8) The murder or the offence was committed to prevent a person lawfully carrying out his duty such as arrest or custody in a place of lawful confinement. For instance, murder of a person who acted in lawful discharge of his duty under Section 43 of the Criminal Procedure Code. (9) When the crime is enormous in proportion such as an attempt to murder the entire family or members of a particular community. (10) When the victim is innocent, helpless or a person relied upon by relationship and social norms, such as a child, helpless woman, daughter or niece staying with a father or uncle and is inflicted with the crime by a trusted person. (11) When murder is committed for a motive which evidences total depravity and meanness. (12) When there is a cold‑blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of society. Mitigating Circumstances: (1) The manner and circumstances in which the offence was committed, for example extreme mental or emotional disturbance or extreme provocation. (2) The age of the accused is a relevant consideration but not a determinative factor by itself. (3) The chances of the accused not indulging in the commission of the crime again and the probability of the accused being reformed and rehabilitated. (4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct. (5) Circumstances which, in normal course of life, would render such behaviour possible and could give rise to mental imbalance such as persistent harassment, leading the accused to believe that he was morally justified in committing the offence. (6) Where the Court, upon proper appreciation of evidence, is of the view that the crime was not committed in a pre‑ordained manner and that death resulted in the course of commission of another crime and that there was a possibility of it being construed as a consequence of the primary crime. (7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though prosecution has proved the guilt of the accused.”, In the case of Dharam Deo Yadav v. State of Uttar Pradesh reported in (2014) 5 Supreme Court Cases 509, the Supreme Court of India held: “36. We may now consider whether the case falls under the category of rarest of the rare so as to award death sentence, for which, as already held, in Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 Supreme Court Cases 546 this Court laid down three tests, namely, Crime Test, Criminal Test and RR Test. Both the Crime Test and Criminal Test have been satisfied as against the accused. Learned counsel for the accused submitted that he had no previous criminal records and that apart from the circumstantial evidence there is no eyewitness, and hence the manner in which the crime was committed is not in evidence. Consequently, it was pointed out that it would not be possible for this Court to conclude that the crime was committed in a barbaric manner and, hence the instant case would not fall under the category of rarest of rare. We find some force in that contention. Taking into consideration all aspects of the matter, we are of the view that, due to lack of any evidence regarding the manner in which the crime was committed, the case will not fall under the category of rarest of rare. Consequently, we are inclined to commute the death sentence to life imprisonment and award twenty years of rigorous imprisonment, over and above the period already undergone by the accused, without any remission, which, in our view, would meet the ends of justice.”, In Kalu Khan v. State of Rajasthan reported in (2015) 16 Supreme Court Cases 492, the Supreme Court of India held: “30. In Mahesh Dhanaji Shinde v. State of Maharashtra, the conviction of the appellant‑accused was upheld keeping in view that the circumstantial evidence pointed only in the direction of their guilt given that the modus operandi of the crime, homicidal death, identity of nine of ten victims, last‑seen theory and other incriminating circumstances were proved. However, the Court thought it fit to commute the sentence of death to imprisonment for life considering the age, socio‑economic conditions, custodial behaviour of the appellant‑accused persons and that the case was entirely based on circumstantial evidence. This Court placed reliance on the observations in Sunil Dutt Sharma v. State (Government of NCT of Delhi) as follows: “35. In a recent pronouncement in Sunil Dutt Sharma v. State (Government of NCT of Delhi), it has been observed by this Court that the principles of sentencing in our country are fairly well settled – the difficulty is not in identifying such principles but lies in the application thereof. Such application, we may respectfully add, is a matter of judicial expertise and experience where judicial wisdom must search for an answer to the vexed question whether the option of life sentence is unquestionably foreclosed. The unbiased and trained judicial mind free from all prejudices and notions is the only asset which would guide the Judge to reach the truth.””, Applying the exposition of law as discussed above, in the facts of the present case we have examined the available aggravating and mitigating circumstances., The convict‑appellant was forty‑eight years of age at the time of filing Criminal Appeal No. 1552 of 2017 and is now about fifty‑two years old., Regarding the aggravating circumstances, we find that convict‑appellant Sarvan had committed murder of not only his wife but also his three minor children and two of his neighbours. Post‑mortem reports disclose a brutal, grotesque, diabolical murder, which clearly reflects the mindset of convict‑appellant Sarvan., The present incident was committed when convict‑appellant Sarvan had an illicit relationship with his bhabhi (sister‑in‑law). The manner in which the offence was committed and the magnitude of the crime, in our view, place the matter in the category of anti‑social or socially abhorrent crime. We concur with the finding of the Trial Court that six persons were murdered by convict‑appellant Sarvan in the most brutal, grotesque, diabolical and dastardly manner, arousing indignation and abhorrence of society, which calls for an exemplary punishment. Three minor children, including their mother, and two of his neighbours were murdered by convict‑appellant Sarvan when they were helpless, and nothing is on record to show that they aggravated the situation so as to arise sudden and grave passion on the part of convict‑appellant Sarvan to commit such a dastardly crime. Convict‑appellant Sarvan has also not shown any remorse or repentance at any point, as he attempted to hide the weapon in the house of his bhabhi (co‑appellant Suman). In the statement recorded under Section 313 of the Criminal Procedure Code, he admitted his guilt, stating that he had an illicit relationship with his bhabhi and that his wife objected to this, leading to frequent scuffles, during which his neighbour Madhuri intervened, causing his displeasure. This conduct, attitude and manner in which the murder of four members of his family and two neighbours was committed shows that convict‑appellant Sarvan is a menace to society; if he is not awarded the death penalty, other members of society may not be safe. He slayed six lives to quench his thirst. The entire incident is extremely revolting and shocks the collective conscience of the community. The murders were committed in a gruesome, merciless and brutal manner., Balancing the mitigating and aggravating factors and noting that convict‑appellant Sarvan committed the crime in a truly shocking manner showing depravity of mind, and that the learned Government Advocate stated there is no report regarding any chance of rehabilitation from the jail authorities, we find that the aggravating circumstances outweigh the mitigating circumstances by all canons of logic. Punishment of life imprisonment would neither serve the ends of justice nor be appropriate. This case can be said to be in the category of “rarest of rare” and justifies the award of death punishment to convict‑appellant Sarvan. We are clearly of the view that convict‑appellant Sarvan is a menace to society, there is no chance of his rehabilitation or reformation, and no leniency in imposing punishment is called for., In these circumstances, we are of the view that the death punishment imposed upon convict‑appellant Sarvan for the offences under Section 302, Section 323 and Section 201 of the Indian Penal Code is liable to be confirmed. Capital Case No. 03 of 2017 is liable to be allowed and accepted to the extent of confirmation of the death penalty., In the result: (A) Capital Case No. 3 of 2017 – The reference made by the Trial Court under Section 366(1) of the Criminal Procedure Code for confirmation of the death punishment awarded to convict‑appellant Sarvan for the offence under Section 302 of the Indian Penal Code is hereby accepted and the death punishment awarded to convict‑appellant Sarvan is hereby confirmed. (B) Criminal Appeal No. 1540 of 2017 – This criminal appeal filed by convict‑appellant Suman is dismissed. It transpires that convict‑appellant Suman was on bail granted by a Co‑ordinate Bench of the Supreme Court of India vide order dated 20.12.2017. Convict‑appellant Suman shall be taken into custody forthwith and sent to jail. She shall serve out the sentence as ordered by the Trial Court vide impugned order dated 29.08.2017. (C) Criminal Appeal No. 1552 of 2017 – This criminal appeal preferred by convict‑appellant Sarvan is dismissed. Convict‑appellant Sarvan is in jail and shall serve out the sentence as ordered by the Trial Court vide impugned order dated 29.08.2017., However, as provided under Section 415 of the Criminal Procedure Code, execution of the death sentence shall stand postponed until the period allowed for preferring such appeal has expired, and if an appeal is preferred within that period, until such appeal is disposed of. It is also clarified that the death punishment shall only be executed in accordance with law complying with all guidelines laid down by the Honourable Supreme Court of India time and again., Let a copy of this judgment along with the Trial Court record be sent to the Supreme Court of India concerned for compliance and two copies of the judgment as well as a printed paper book be sent to the State Government, as required under Chapter XVIII Rule 45 of the Allahabad High Court Rules, 1952, forthwith., A copy of the judgment shall also be sent to convict‑appellants Sarvan and Suman through the Jail Superintendent concerned for intimation forthwith. A compliance report shall also be sent to the Supreme Court of India.
id_1097	0	The practice of having a distinguished class of senior pleaders with considerable status and experience in India can be traced back to legal practice in the United Kingdom. This category originated in the 13th century as a distinguished class of senior pleaders known as Serjeants-at-Law. In the 18th century, selection in another such category, known as King's/Queen's Counsel, became a matter of honour and a recognition of professional eminence. The designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. It identifies advocates whose standing and achievements would justify an expectation on the part of clients, the judiciary, and the public that they can provide outstanding services as advocates in the best interest of the administration of justice., Presently, the designation of Senior Advocates in India is provided by Section 16 of the Advocates Act, 1961, wherein advocates are classified in two categories, namely Senior Advocate and Advocate. Under Section 16(2) of the Advocates Act, the Supreme Court of India and the High Court have the power to designate an advocate as a Senior Advocate with his consent. In the case of the Supreme Court of India, this power is provided in Rule 2 of Order IV of the Supreme Court Rules, 2013. Before the introduction of the Advocates (Amendment) Act, 1973, the criteria for designation as Senior Advocate were based on ability, experience and standing at the Bar. Pursuant to the Amendment Act, the criterion was changed to ability, standing at the Bar or special knowledge or experience in law. Therefore, the higher judiciary in India has the sole discretion to designate an advocate as a Senior Advocate based on such parameters. With regard to the High Court, there was no uniform criteria and different High Courts in the country had different criteria for designation of Senior Advocates. In the Supreme Court of India, the applications for Senior Advocates were subject to deliberation by the Full Court of the Supreme Court of India and were put to vote through secret ballots. Therefore, the designation was not based on any objective criteria., In 2015, Ms. Indira Jaising, Senior Advocate, filed a writ petition under Article 32 of the Constitution of India, contending that the existing system of designation of Senior Advocates was flawed because it was not objective, fair, and transparent, and did not take into account considerations of merit and ability. She sought the system of voting to be abandoned and replaced by a permanent Selection Committee. A three‑Judge Bench of the Supreme Court of India delivered a judgment dated 12 October 2017, laying down a series of guidelines to bring greater transparency and objectivity into the designation process while retaining the suo motu designation power of the Court. The guidelines, set forth in paragraph 73 of the judgment, provided for the constitution of a Permanent Committee consisting of five members, headed by the Chief Justice of India and two senior‑most Judges, with the Attorney General/Advocate General of the State as a member and a fifth member nominated from the Bar., The Permanent Committee was empowered to assess applications on the basis of a point‑based format. The format assigned points for: (i) number of years of practice from enrolment (10 points for 10‑20 years, 20 points for practice beyond 20 years); (ii) judgments (reported and unreported) indicating legal formulations advanced by the advocate, pro bono work, and domain expertise in various branches of law such as constitutional law, inter‑state water disputes, criminal law, arbitration, corporate, family, human rights, public interest litigation, international law, and law relating to women; (iii) publications; and (iv) test of personality and suitability based on interview/interaction. The 2017 Judgment was thereafter given effect by the Supreme Court Guidelines to Regulate Conferment of Designation of Senior Advocates, 2018., In paragraph 74 of the 2017 Judgment, the Supreme Court of India observed that the enumerated guidelines might not be exhaustive and could require reconsideration through suitable additions or deletions based on experience over time. The Court noted that the norms required ten points for all advocates practicing between ten and twenty years and twenty points for those practicing beyond twenty years, which resulted in the same points for advocates with eleven years and nineteen years of practice. To address this, the Court directed that one point each shall be allocated for every year of practice between ten and twenty years., The issues remaining before the Court pertained to the manner of marking and allocation of points for judgments, publications, and interview criteria in paragraph 73.7 of the 2017 Judgment, as well as the overall exercise for designation of Senior Advocates. The method of designation prior to the 2017 Judgment involved discussion followed by voting by secret ballot from Judges of the Full Court of the Supreme Court of India, with the percentage of approval varying from two‑thirds to fifty percent. The 2017 Judgment noted that a secret ballot should be a rarity rather than the norm and may be used only under certain unavoidable circumstances., Applicants submitted that designation through voting by secret ballot defeats the purpose of the Permanent Committee and that there should be no need to resort to secret ballot once a person scores above the cut‑off, if fixed. They argued that the process of voting by secret ballot, intended for exceptional circumstances, was frequently used even after assessment by the Permanent Committee, making the designation an election rather than a selection. The Court held that its remit is limited to fine‑tuning the guidelines laid down in the 2017 Judgment, not to review the entire system., The Court agreed that the elaborate procedure carried out by the Permanent Committee would serve no purpose if the ultimate decision were taken by secret ballot. It observed that even applicants who were beyond the cut‑off were at times put through a secret ballot, resulting in both exclusion of people from the list prepared by the Permanent Committee and expansion of the list by further inclusion. The Court found merit in the contention that voting by secret ballot should not be the rule but an exception, and that reasons for resorting to it should be recorded., A grievance was raised that cut‑off marks, although decided, were neither published in advance nor communicated to applicants, leading to speculation at the Bar. While parties agreed that it would be difficult to prescribe cut‑off marks in advance, the Court held that the number of successful applicants must be left to the Permanent Committee, depending on the total number of applicants, the marks obtained, and the number of people that can be invited for personal interview., The allocation of fifteen points for publications was debated. Ms. Indira Jaising argued that a designated Senior Advocate is expected to contribute intellectually to the development of law and that points for publications should not be abolished. The Supreme Court Bar Association contended that few practicing advocates have time to write books or articles and that publications do not reflect advocacy skills, also raising difficulty in ascertaining authorship and quality. The Court found merit on both sides and reduced the points for publications from fifteen to five, while expanding the criteria to include teaching assignments or guest courses delivered by advocates at law schools., The Court looked to the example of Singapore, where Senior Counsel are recognized as an elite group of advocates with top‑tier advocacy skills, professional integrity, and knowledge of law, and are required to contribute to academic teaching, writing, research, and continuing legal education. The Court left it to the Permanent Committee to decide on the manner of assigning points for publications, including the possibility of taking external assistance to gauge quality, acknowledging that this would increase the load of the Secretariat assisting the Permanent Committee., The category concerning judgments, pro bono work, and domain expertise was deemed the most important. The Court decided to enhance the number of points under this category by ten, deducting the same from the publications category, and to broaden its scope. It clarified that only judgments, not mere orders, should be considered, as judgments deal with significant and contested legal issues. The Court emphasized the need to assess the role played by the advocate in proceedings, noting that mere appearance numbers are insufficient, and that the quality of synopses filed in Court should be considered. Applicants may be permitted to submit five of their best synopses for evaluation., The Court recognized the proliferation of specialized tribunals such as the National Company Law Tribunal, Appellate Tribunal for Electricity, Appellate Tribunal under the Prevention of Money Laundering Act, 2002, Telecom Disputes Settlement and Appellate Tribunal, and Consumer Dispute Redressal Commission. Advocates with domain expertise in these specialized fields should be permitted to concentrate on their areas without being deprived of the opportunity of being designated as Senior Advocates. Accordingly, a concession regarding the number of appearances for such advocates was deemed appropriate., The Court also emphasized the importance of diversity, particularly with respect to gender and first‑generation lawyers, to encourage meritorious advocates from varied backgrounds. It noted the paradigm shift in the legal profession with the advent of newer law schools such as National Law Universities, leading to entrants from all parts of the country and different backgrounds., The requirement of allocating twenty‑five points for the personal interview was debated. While some criticized that it would delay the designation process due to the practical issue of interviewing a large number of candidates, the Court held that an interview allows for a more personal and in‑depth examination of the candidate, assessing articulation, precision, and overall suitability. The Court therefore retained the interview component, restricting the number of interviews to a feasible amount as determined by the Permanent Committee., The Court noted that, as per the 2018 Guidelines, the process of designation is to be undertaken twice a year, in January and July. However, it was observed that undertaking the elaborate process twice a year would be difficult, and the Court directed that the process should be carried out at least once a year so that applications do not accumulate. The Court expressed concern over instances where certain High Courts had not undertaken the designation exercise for many years, causing meritorious advocates to lose the opportunity for consideration., The Court clarified that younger advocates are not precluded from applying for designation, as the 2018 Guidelines require only ten years of practice. Nevertheless, such advocates must demonstrate an extra degree of ability. While the Supreme Court of India, as the highest court, has traditionally designated advocates at the age of forty‑five or above, younger advocates have also been designated. The Court stated that only exceptional advocates should be designated below this age, leaving the matter to the wisdom of the Permanent Committee and the Full Court of the Supreme Court of India., The Court reiterated that the power of suo motu designation by the Full Court of the Supreme Court of India is not being taken away and can continue to be exercised for exceptional and eminent advocates through consensus. The Court noted that the Union of India's attempt to reopen the 2017 Judgment is beyond its current remit, as the matter does not involve a review or reference to a larger Bench. The Bar Council of India, as the representative body of lawyers, is the appropriate party before the Court., The Court observed that pending applications for designation cannot be considered under the old norms once the fine‑tuned norms are in place. Existing applications may be given time to update or replace their submissions in light of the new norms, and the Secretariat was urged to process these applications expeditiously., The Court expressed hope that the endeavour to simplify aspects of the process will result in the designation of more meritorious candidates. It emphasized that the process of improvement is continuous, and that the ultimate objective is to provide better assistance to litigants and the courts.
id_1099	0	Reserved on 01.05.2023 Delivered on 03.08.2023 Case: Writ - Civil No. 2637 of 2023 Petitioner: Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad Respondent: Uttar Pradesh Power Corporation Limited and three others Counsel for Petitioner: Vivek Prakash Mishra Counsel for Respondent: Pranjal Mehrotra, Krishna Agarwal Honourable Justice Surya Prakash Kesarwani, Honourable Justice Anish Kumar Gupta (Per: Justice Anish Kumar Gupta)., In this writ petition, the petitioner, Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad, is an association of advocates registered under the Societies Registration Act, 1860. The members are advocates engaged in legal practice and have chambers at the Tehsil Sadar campus with electricity connections installed by the respondent. According to the tariff schedule for Financial Year 2016-17 available on the respondent’s website, residential premises of professionals such as advocates are treated as domestic and covered under schedule LMV-1. After the grant of electricity connections in the chambers, the respondent began charging electricity at commercial rates, which the petitioner objected to. Since their grievances were not redressed, they filed Writ Civil No. 6115 of 2019 (Tehsil Bar Association and 12 others v. State of Uttar Pradesh and 6 others), which was disposed of by the High Court of Uttar Pradesh by order dated 22.02.2019., The order observed that the tariff schedule for Financial Year 2016-17 clearly states that LMV-1 (domestic) would be applicable to the chambers of professionals such as advocates, doctors, artists, consultants etc. Under the Right to Information Act, information supplied on 13.08.2017 indicated that the meters installed in the advocates’ chambers fall under the domestic category, yet the bills were being sent for the commercial category. The writ petition was disposed of with the observation that the petitioners may make a representation to the Executive Engineer, Paschimanchal Vidyut Vitran Nigam Ltd., Meerut, and appropriate orders may be passed to correct the electricity bills within two months of producing a certified copy of the order before the Executive Engineer., The order categorically observed that the tariff schedule for Financial Year 2016-17 states that LMV-1 domestic rates apply to the chambers of professionals such as advocates, doctors, artists, consultants etc. The Right to Information response dated 13.08.2017 confirmed that the electricity connection installed in the chambers of advocates in the District and Sessions Court, Ghaziabad, was issued under the domestic category and the charges are to be levied as per LMV-1 rates determined by the Uttar Pradesh State Electricity Regulatory Commission., In terms of the order dated 22.02.2019 passed by the High Court of Uttar Pradesh, the petitioner association made a representation before Respondent No. 4, which was disposed of by order dated 27.07.2019. Respondent No. 4, relying upon clause 3.3(e) of the Uttar Pradesh Electricity Supply Code, 2005, observed that the chambers of advocates in the tehsil compound are not in the category of domestic use of electricity; therefore, the consumption cannot be treated as domestic., The reproduced order stated: Professionals such as architects, chartered accountants, engineers, doctors, lawyers and teachers may utilize a maximum of 50 square metres of residential space in their possession for carrying out professional practice or consultancy work., The order was modified by order dated 13.04.2023, providing that consumers of light, fan and power (excluding motive power loads) not covered under any rate schedule shall be categorized under LMV-2. Professionals such as architects, chartered accountants, engineers, doctors, lawyers and teachers may utilize a maximum of 50 square metres of residential space for professional practice., Aggrieved by the order dated 27.07.2019, the petitioner filed the instant petition praying for the following relief: I. Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 27.07.2019. II. Issue a writ, order or direction in the nature of mandamus directing the respondents to stop treating the chambers as commercial power users and continuously sending electricity bills at the commercial tariff of Rs. 8.50 per unit. III. Issue a writ, order or direction in the nature of mandamus directing the respondents to readjust the extra amount paid as commercial user while being treated as domestic power user. IV. Issue a writ, order or direction in the nature of mandamus directing the respondents to stop recovery of current bills from the petitioner association and its members until conversion into domestic bills. V. Issue any other suitable writ, order or direction which the Honourable court may deem fit and proper. VI. Award costs of the writ petition to the petitioner., Learned counsel for the petitioner submitted that, as per the tariff schedule for Financial Year 2016-17, residential premises of professionals such as advocates, doctors, artists, consultants etc., including their chambers, are covered under LMV-1 (domestic). Accordingly, the information annexed as Annexure-3 to the writ petition shows that the electricity connection in the advocates’ chambers is issued under the domestic category in the District and Sessions Court, Ghaziabad. Moreover, following the order dated 22.02.2019, the Noida Power Corporation Limited accepted the observations and began charging electricity in the chambers of advocates at District Bar Association, Noida, at domestic rates. The members of the petitioner association should therefore be treated as domestic consumers and charged at rates applicable to domestic users. The counsel further emphasized that the profession of an advocate is not a commercial activity but a service to society, and lawyers are active participants in the administration of justice like judges. Hence, commercial rates of electricity cannot be applied to the chambers in the court campus., The petitioner relied upon the following judgments: 1. Sakha Ram Narayan Kherdekar v. City of Nagpur Corporation, AIR 1964 Bombay 200. 2. Ramanathan v. State of Kerala, 1991 (1) KLJ 89. 3. B.N. Magon v. South Delhi Municipal Corporation, 217. 4. M.P. Electricity Board and Others v. Shiv Narayan and Another, (2005) 7 SCC 283. 5. Arup Sarkar v. C.E.S.C. Limited and others, 2020 STPL 4200 Calcutta. 6. Sasidharan v. M/s Peter and Karunakar, AIR 1984 SC 1700., The petitioner also relied upon Circular No. 4177-HC/R-83 dated 28.11.1983, which provides the rate schedule under category LMV-1 applicable to the judiciary, and Circular No. 2446-HC/R-83 dated 08.10.1985, which provides that the office of a lawyer or firm of lawyers is to be billed under rate schedule LMV-1, applicable to domestic light, fan and power consumers., The petitioner submitted that, pursuant to Clause 1.5 of the Uttar Pradesh Electricity Supply Code, 2005, the aforementioned circulars specifying applicability of LMV-1 to lawyers’ offices are saved, as there is no specific provision in the new rate schedule regarding electricity supply to lawyers’ chambers., Counsel for Respondent No. 4, Pranjal Mehrotra, relying upon the rate schedule approved for the year 2022-23 by the Uttar Pradesh Electricity Regulatory Commission, submitted that activity in lawyers’ chambers is not a domestic activity and therefore falls under non‑domestic activity. Accordingly, Clause 13 of the schedule for Financial Year 2020-23 provides that LMV-2 will apply to the supply of electricity to lawyers’ chambers. The respondent, being the distribution company, is bound by the approved rate schedule and any grievance regarding the schedule must be raised before the Uttar Pradesh Electricity Regulatory Commission. Consequently, the writ petition is not maintainable and should be dismissed., The petitioner heavily relied upon the decision of the Supreme Court in M.P. Electricity Board and Another v. Shiv Narayan and Another, (2005) 7 SCC 283, wherein the matter was referred to a larger bench doubting the correctness of the judgment in New Delhi Municipal Council v. Sohan Lal Sachdev, (2002) SCC 494. The larger bench affirmed the judgment in Sohan Lal Sachdev, holding that it does not require reconsideration. However, the Supreme Court has not addressed whether an advocate can be said to be carrying on a commercial activity., The submissions give rise to the following questions for determination by the High Court of Uttar Pradesh: 1. Whether the activities or profession of an advocate constitute a commercial activity attracting the commercial rate of electricity consumption? 2. Whether Rate Schedule LMV-2, applicable to commercial activities, can be applied to electricity supplied to lawyers’ chambers? 3. Whether the respondents can discriminate between electricity supply to advocates’ chambers in different court compounds?, Circular No. 4177-HC/R-83 dated 28.11.1983 reads: 'Central and State Government offices engaged in commercial activities shall be billed at Rate Schedule LMV-2 applicable to Commercial Light, Fan and Power, while others shall be billed at Rate Schedule LMV-1 as detailed below: A. Where LMV-2 is applicable B. Where LMV-1 is applicable 1. All India Radio 1. Revenue Departments 2. Doordarshan 2. Police Department 3. State Road Transport Corporation 3. Judiciary 4. Bridge Corporation 5. Development Authorities of Towns 6. All State Government/Central Government Undertakings and Corporations 8. Railways (up to 5 kW) [Beyond 5 kW to be billed under LMV-10(4)(b)] 9. Uttar Pradesh Rajkiya Nirman Nigam 10. Uttar Pradesh Housing Board.', Circular No. 2446-HC/R-83 dated 08.10.1985 provides: 'Office of a lawyer or firm of lawyers is to be billed under Rate Schedule LMV-1, applicable to domestic light, fan and power consumers.', As per Rate Schedule LMV-1 for Financial Year 2022-23, the applicability clause includes premises for residential/domestic purpose, accommodation for paying guests (excluding guest houses), Janata service connections, Kutir Jyoti connections, jhuggi/hutments, places of worship (e.g., temples, mosques, gurudwaras, churches) and electric crematoria, shelter homes, orphanages, old age homes, institutions for mentally retarded and forsaken children, and non‑commercial places occupied by religious persons for a maximum load up to 5 kW, subject to valid registration/recognition from a charitable trust., Rate Schedule LMV-2 for non‑domestic light, fan and power applies to all consumers using electric energy for non‑domestic purposes such as shops, hotels, restaurants, private guest houses, private transit hostels, private student hostels, marriage houses, show‑rooms, commercial/trading establishments, cinemas and theatres, banks, cable TV operators, telephone booths/PCOs, fax communication centres, photocopiers, cyber cafés, private diagnostic centres including X‑Ray plants, MRI centres, CAT scan centres, pathologies, private advertising/sign boards, commercial institutions/societies, automobile service centres, coaching institutes, private museums, power looms with load less than 5 kW, and all companies registered under the Companies Act, 1956 with loads less than 75 kW., Rate Schedule LMV-4 for light and power of public and private institutions applies to (a) Government hospitals, government research institutions and offices of government organisations other than companies registered under the Companies Act; (b) Government and government‑aided educational institutions, hostels and libraries; (c) Religious and charitable trusts and institutions having valid registration under Section 12AA and 80G of the Income Tax Act, including hospitals and colleges providing services free of cost or at charges not exceeding those in similar government‑operated institutions; (d) Railway establishments (excluding railway traction, industrial premises and metro) such as booking centres, railway stations, railway research and development organisations, railway rest houses and railway holiday homes; (e) All India Radio and Doordarshan; (f) Guest houses of government, semi‑government and public sector undertaking organisations., From careful perusal of the rate schedules approved for Financial Year 2022-23 by the Uttar Pradesh State Regulatory Commission, it is apparent that the activities of advocates and the judiciary do not find a place in any schedule. Clause 13 of the general provisions for Financial Year 2022-23 states: 'For consumers of light, fan and power (excluding motive power loads) not covered under any rate schedule or expressly excluded from any LMV rate schedule will be categorized under LMV-2.', Clause 1.5 of the Uttar Pradesh Electricity Supply Code, 2005 provides: 'Existing provisions in licensee’s own manuals: The licensee may refer to its own manual or orders in matters not specifically covered in this Supply Code, provided such guidelines are not inconsistent with any provision of this Supply Code and the Electricity Act, 2003.', Sub‑clause (e) of Clause 3.3 states: 'Professionals, architects, chartered accountants, engineers, doctors, lawyers and teachers etc. may utilize a maximum of 50 square metres of residential space in their possession for carrying out professional practice or consultancy work, and this shall not attract non‑domestic tariff.', Section 3(1) of the Electricity Act, 2003 enshrines a duty upon the Central Government to formulate tariff policy in consultation with the State Government. Section 3(3) provides for review and revision of the National Electricity Policy and tariff policy by the Central Government in consultation with the State Governments and the Authority. Section 86 empowers the State Commission to determine tariff for generation, supply, transmission and wheeling of electricity, guided by the National Electricity Policy, National Electricity Plan and Tariff Policy. Sub‑section (1) of Section 86 also empowers the State Commission to adjudicate disputes between the licensee and generating companies and to refer any dispute for arbitration., LMV-2 is applicable for non‑domestic purposes such as all types of shops, hotels, restaurants, private guest houses, private transit hospitals, private student hostels, marriage houses, show‑rooms, commercial/trading establishments, cinemas and theatres, banks, cable TV operators, telephone booths, photocopier shops, cyber cafés etc. The profession of a lawyer is not covered under the non‑domestic purpose illustrated in LMV‑2. The doctrine of noscitur a sociis requires that words take their meaning from associated words; therefore, lawyers’ chambers cannot be brought within the category of non‑domestic purposes. Supreme Court decisions in Dr. D.M. Surti v. State of Gujarat, AIR 1969 SC 63, and M.P. Electricity Board and Others v. Shiv Narayan Chopra, (2005) 7 SCC 283, have held that the legal profession is a non‑commercial activity and advocates’ offices cannot be charged at commercial rates., Black’s Law Dictionary, Sixth Edition defines 'profession' as a vocation or occupation requiring special, usually advanced education, knowledge and skill, e.g., law or medical professions. The labour and skill involved are predominantly mental or intellectual rather than physical. The term originally contemplated only technology, law and medicine, but has been extended to other vocations requiring special knowledge., The Advanced Law Lexicon, Volume 3 defines 'profession' as an occupation requiring either purely intellectual skill or manual skill such as painting, sculpture or surgery, distinguished from occupations involving production or sale of commodities. It emphasizes that a profession involves learned education and the application of specialized knowledge for the benefit of others., In V. Sasidharan v. M/s Peter and Karunakar, AIR 1984 (4) SCC 230, the Supreme Court held that the office of a lawyer or a firm of lawyers is not a commercial establishment within the meaning of the Kerala Shops and Commercial Establishments Act, 1960, observing that traditionally lawyers do not carry on a trade or business nor render services to 'customers'., In Chairman, M.P. Electricity Board v. Shiv Narayan, (2005) 7 SCC 283, the Supreme Court observed that a professional activity must be carried on by an individual using personal skill and intelligence, and there is a fundamental distinction between professional activity and commercial activity. The Court noted that non‑domestic does not automatically mean commercial., The book 'Ethics of Bar and Bench' by Hicks (pages 229‑230) states that the practice of law is not a business open to all but a personal right limited to persons of good moral character with special qualifications. The lawyer’s role affects not only individuals but the administration of justice, which is the foundation of civilized society., In Ramanathan v. State of Kerala, (1991) (1) KLJ 410, the Kerala High Court observed that the profession of a lawyer does not involve commercial or industrial activity., In Arup Sarkar v. C.E.S.C. Limited & Others, Writ Petition No. 18367 of 2019, Judgment dated 11.02.2020, the Calcutta High Court held that the chambers of litigation lawyers are used for livelihood based on personal professional skills and therefore cannot be said to be a commercial activity; consequently, they should be charged under the Domestic (Urban) category., In Sakharam v. Nagpur Corporation, AIR 1960 Bombay 200, a Division Bench of the Bombay High Court examined whether an advocate’s office could be declared an establishment under the Bombay Shops and Commercial Establishments Act. The Court concluded that the activity of a lawyer is carried out by personal skill, intelligence, study, integrity and individual characteristics, and therefore the office of a legal professional is not a commercial establishment., An advocate is duty‑bound to act as an officer of the Court and is prohibited from engaging in any business or commercial activity. The Bar Council of India rules prohibit lawyers from advertising their professional activities and from creating any self‑interest in the subject matter of a case. An advocate cannot stipulate a fee contingent on the result of a case nor share the proceeds of a case, distinguishing the legal profession from trade or business.
id_1099	1	Therefore, the legal profession by no stretch of imagination can be called a commercial activity, trade or business. Having held that the legal profession is not a commercial activity involving any trade or business, the rates schedule LMV-2, which is phrased as ‘non‑domestic users under LMV‑2’, categorically indicates commercial activities relating to trade and business. Hence the said rates schedule cannot be applied to the offices of legal professionals, whether such offices are in residential buildings or situated in the Surajpur District Court premises. The lawyers’ chambers within the Surajpur District Court compounds are part of the judicial premises, where, as per the circular dated 28‑11‑1983, LMV‑1 is applicable. The circular dated 08‑10‑1985 also mandated that the office of a lawyer or a firm of lawyers be billed at the rate schedule LMV‑1 applicable to domestic light and power consumers, which is an established practice. However, in the rate schedule issued for the financial year 2022‑23, the lawyer’s profession or activities do not find place in any of the prescribed rate schedules. Merely because Clause‑13 of the rate schedule is a residuary clause, the rate schedule LMV‑2, which is applicable to commercial activities, cannot be applied to lawyers’ chambers in Surajpur District Court premises., It has been argued by learned counsel for the petitioner that after the order dated 22‑02‑2019 passed by the Supreme Court of India in an earlier writ petition, Noida Power Corporation Limited started to charge for electricity consumption at the lawyers’ chambers situated in the Surajpur District Court compound, Gautam Budh Nagar, as per the rate schedule LMV‑1. Hence, the petitioner, being similarly situated, cannot be treated differently and the same rate schedule ought to have been applied to their chambers as well. In support of this contention, the petitioner produced a copy of the electricity bill dated 31‑12‑2022 of one such lawyers’ chamber. Learned counsel for the respondent submitted that electricity supply to lawyers’ chambers in the District Court, Gautam Budh Nagar, is governed by a different power corporation and not by the Uttar Pradesh Power Corporation, hence the said rate cannot be applied. It is apparent that throughout the State of Uttar Pradesh, the rate schedules are approved by the Uttar Pradesh Electricity Regulatory Commission and the same rates are applicable statewide. Hence, the contention of the respondent is baseless and devoid of merit. Therefore, different power corporations and companies cannot treat electricity consumers differently within the same State., The advocate’s profession cannot be categorized to be charged under LMV‑2, which is applicable to commercial activities. The lawyers’ activities are not a commercial establishment as held by the Supreme Court of India and by various High Courts., In view of the aforesaid conclusions, we sum up the answers to the issues raised in the instant petition as follows: The activities or profession of an advocate is not a commercial activity attracting the commercial rate of electricity consumption prescribed in Rate Schedule LMV‑2, as applicable in the State of Uttar Pradesh and approved by the Uttar Pradesh Electricity Regulatory Commission. The Rate Schedule LMV‑2, which is applicable for commercial activities, cannot be applied to electricity supplied to lawyers’ chambers. The lawyers’ chambers or offices shall be charged only under LMV‑1 domestic category as the lawyers neither engage in any trade or business nor are involved in any commercial activity. The respondents cannot discriminate between the electricity supply to advocates’ chambers in different court compounds within the same State, where the rate schedules are approved by the same authority., Thus, in view of the above discussion, the writ petition is allowed. The respondents are directed to charge for the consumption of electricity by the lawyers in their chambers in the Surajpur District Court premises as per the rate schedule LMV‑1 approved by the Uttar Pradesh Electricity Regulatory Commission.
id_11	0	Writ Petition (Public Interest Litigation) No. 1227 of 2024 Supreme Court of India on its own motion Petitioner versus the State of Jharkhand and Others. Respondents. For the State: Mr Ashutosh Anand, Additional Advocate General – III. Order No. 01 dated 4 March 2024., The incident of sexual assault on a 45‑year‑old Brazilian national who was on a motor‑bike tour with her husband has been reported in the newspapers., In the morning, Mrs Ritu Kumar, a practicing advocate of this Court who is incidentally holding the post of President of the Advocates’ Association, tendered copies of the news reports published in Kalimpong News, Aurangabad Samachar, Dainik Bhaskar and some news portals., It is stated at the Bar that a First Information Report has been lodged regarding the aforementioned incident of gang rape against seven accused persons and a few of them have been arrested by the police. The Jharkhand Legal Services Authority has already taken steps for providing legal and other help to the victim of the crime (hereinafter referred to as X)., The incidents of crime of any kind against a foreign national may have serious national and international repercussions, including impacting the tourism economy of the country. A sex‑related crime against a foreign woman is likely to bring adverse publicity against the country and thereby tarnish the image of India across the globe. As we read from the newspaper reports, X is a Spanish‑speaking person but it is not known whether there was a facility of a translator with the help of whom her statement was recorded. Furthermore, in view of the amendments made in the Code of Criminal Procedure and emphasis on scientific investigation in cases of offences relating to rape, there is an urgent need to seek a report from the Superintendent of Police at Dumka as to the progress of investigation so far conducted in the matter., Our attention has also been drawn to suo motu petition vide Writ Petition (Civil) No. 3283 of 2023 in which this Court recorded widespread incidents of crime against women and a response thereon from the Police Department is awaited., Therefore, this Court takes suo motu cognizance of the aforementioned incident of gang rape and directs the Registry to institute a suo motu writ petition in which the following persons shall be arrayed as party‑respondents: Chief Secretary, Government of Jharkhand, at Project Building, PO and PS Dhurwa, District Ranchi; Home Secretary, Government of Jharkhand, at Project Building, PO and PS Dhurwa, District Ranchi; Director General of Police, Government of Jharkhand, at Project Building, PO and PS Dhurwa, District Ranchi; Superintendent of Police, Dumka., The respondent shall file response by 7 March 2024., Mrs Ritu Kumar, the learned counsel, shall assist the Court in this matter., The Registry shall provide a copy of the newspaper reports and this order to the learned Amicus., Mr Ashutosh Anand, the learned Additional Advocate General – III who is present in the Court, accepts notice on behalf of the respondents.
id_1101	0	Subject: Dispute Case No. 01 of 2022 – Dispute in Shiv Sena – dispute under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968.\n\nThe Election Commission of India issued an Interim Order dated 8 October 2022 and forwarded a certified copy of the Commission's Interim Order dated 8 October 2022, passed in the matter of the dispute case of Shiv Sena Party, having its reserved symbol \Bow and Arrow\., Shiv Sena is a recognized State Party in the State of Maharashtra with the symbol \Bow and Arrow\ allotted as its reserved symbol under the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (\Symbols Order\). At the apex level, the party has a Shiv Sena Pramukh and a National Executive., On 25 May 2022, Anil Desai on behalf of Uddhav Thackeray intimated the Commission about anti‑party activities carried out by some Members of Legislative Assembly of the party under the leadership of Eknath Shinde and objected in advance to the establishment of any political party using the names \Shiv Sena\ or \Balasaheb\., By email dated 01 July 2022, three letters dated 30 June 2022 were forwarded, stating that the following members had indulged in anti‑party activities, voluntarily gave up membership of the Party, and were removed from the positions of leader or deputy leader by Shiv Sena Pramukh Uddhav Thackeray in terms of the Party Constitution:\n(a) Eknath Shinde, Shiv Sena leader;\n(b) Gulabrao Patil, Shiv Sena deputy leader;\n(c) Tanaji Sawant, Shiv Sena deputy leader;\n(d) Uday Samant, Shiv Sena deputy leader., By email dated 02 July 2022, the complete organisational structure of National Executive Representatives of the Party was submitted after convening an extraordinary National Executive Meeting on 25 June 2022 for the Commission's perusal and record. A further letter dated 04 July 2022 reiterated that Uddhav Balasaheb Thackeray is the Shiv Sena Paksha Pramukh (Party President). The communication was not accompanied by a supporting document in the prescribed format as was done in the letter dated 27 February 2018., An affidavit of Subhash Desai, General Secretary, Shiv Sena, was enclosed with a caveat filed by Advocate Vivek Singh dated 04 July 2022., On 19 July 2022, Eknath Shinde filed a petition before the Election Commission of India titled \Eknath Shinde versus Uddhav Thackeray\ under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, seeking declaration that the group led by him is Shiv Sena and that the party symbol \Bow and Arrow\ be allotted to his group. The petition inter‑alia mentioned:\n(i) The dispute had grown to the extent that the group led by Uddhav Thackeray held an unauthorized meeting on 21 June 2022 and passed a resolution by 24 of 55 votes of the Shiv Sena Legislature Party (SSLP) members to remove Eknath Shinde as Leader/Pramukh and appoint Ajay Choudhary as leader; the resolution was communicated to the Honourable Deputy Speaker who accepted it.\n(ii) On the same day, 34 Members of Legislative Assembly (including 4 independent Members of Legislative Assembly) of the group led by Eknath Shinde passed a resolution reaffirming Eknath Shinde as Leader/Pramukh of SSLP, declaring the appointment of Ajay Choudhary illegal and void, appointing Bharat Gogavale as Chief Whip and cancelling the appointment of Sunil Prabhu.\n(iii) Only 14 of 55 SSLP Members of Legislative Assembly attended the unauthorized meeting at Varsha Bungalow, Mumbai, and it was resolved that members who did not attend be disqualified.\n(iv) The facts show a split in Shiv Sena with one group led by Eknath Shinde and another led by Uddhav Thackeray, both claiming to be the real Shiv Sena.\n(v) During the dispute both groups expelled or disqualified members of the other group, further evidencing the split.\n(vi) Eknath Shinde claims support of 12 Members of Parliament out of 18, 40 Members of Legislative Assembly out of 55, and various Members of Legislative Council., On 19 July 2022, Member of Parliament Bhavana Gawali (Patil) endorsed a copy to the Election Commission of India of a letter addressed to the Honourable Speaker of Lok Sabha requesting issuance of a circular to record the name of Rahul Ramesh Shewale as Leader of the Shiv Sena Parliamentary Party., On 20 July 2022, Advocate Vivek Singh, on behalf of Subhash Desai, General Secretary, Shiv Sena, requested the Commission not to proceed with any representation from persons claiming to be the \real Shiv Sena\, stating that such proceedings would precipitate issues pending before the Honourable Supreme Court of India, where disqualification petitions against the legislators are pending, and that the Supreme Court had listed the matters for hearing on 1 August 2022., On 21 July 2022, Advocate Vivek Singh requested a copy of the Shiv Sena party constitution., On 22 July 2022, the Commission, in its letter, exchanged communications received from both factions and directed both groups to furnish their comments and supporting documents, if any, no later than 1:00 pm on Monday, 8 August 2022, for the next steps to conclude the substantive hearing under Paragraph 15 with reference to dispute No. 1 of 2022., On 22 July 2022, the Commission informed Advocate Vivek Singh that the required communications had been sent to both groups., On 29 July 2022, Advocate Vivek Singh requested a copy of the petition and the complete set of documents filed by Eknath Shinde or any other person before the Commission., On 8 August 2022, Advocate Chirag Shah, on behalf of petitioner Eknath Shinde, submitted:\n(i) Affidavits of 12 of 19 Shiv Sena Members of Parliament supporting Eknath Shinde;\n(ii) Affidavits of 40 of 55 Shiv Sena Members of Legislative Assembly supporting Eknath Shinde;\n(iii) Charts showing the number of office bearers at various levels of the party;\n(iv) True translated copies of the contents of affidavits filed by Shiv Sena members;\n(v) A Vakalatnama authorising Chirag J. Shah, Utsav Trivedi, Sidharth Dharmadhikari, Himanshu Sachdeva and Manni Roy to appear and plead on his behalf., On 8 August 2022, Advocate Vivek Singh submitted a Vakalatnama of the respondent Uddhav Thackeray authorising Vivek Singh, Devyani Gupta and Tanvi Anand, Advocates, to act and plead on his behalf in Dispute Case No. 01 of 2022., On 6 August 2022, Advocate Vivek Singh moved an application received by the Commission on 8 August 2022, requesting a four‑week adjournment of the proceedings in Dispute No. 1 of 2022. The application referred to the Commission's order dated 22 July 2022 and cited the Honourable Supreme Court of India order dated 4 August 2022 in Writ Petition (Civil) No. 493 of 2022, which granted liberty to the petitioner to file an application before the Election Commission for seeking time. The applicant sought:\n(a) deferment of the proceedings for four weeks; and\n(b) any further orders the Commission may deem fit., On 10 August 2022, the Commission granted the first extension of time and informed Advocate Vivek Singh to furnish written submissions and supporting documents, if any, by 23 August 2022., On 23 August 2022, Advocate Chirag Shah, on behalf of petitioner Eknath Shinde, in addition to his claim dated 8 August 2022, submitted thousands of affidavits (in bundles claimed to represent 1,20,192 members) filed by Shiv Sena members., On 23 August 2022, Advocate Vivek Singh, counsel for Uddhav Thackeray, moved an application requesting a four‑week adjournment of the proceedings in Dispute No. 1 of 2022 in view of the pendency of Writ Petition (Civil) No. 493 of 2022 before the Supreme Court of India., On 26 August 2022, the Commission granted a second extension of time and informed Advocate Vivek Singh that the request for deferment in Dispute Case No. 1 of 2022 for four weeks was acceded to., On 23 September 2022, Advocate Chirag Shah, on behalf of petitioner Eknath Shinde, submitted additional affidavits of 11 Rajya Prabhari/Chief of State from different states., On 23 September 2022, Advocate Vivek Singh, in a letter dated 22 September 2022, submitted that the Honourable Supreme Court of India, by order dated 7 September 2022, directed the listing of application IA No. 101776‑101777 of 2022 (seeking stay of the proceedings of Election Dispute No. 1 of 2022) for hearing on 27 September 2022 and requested the Commission to defer the proceedings by two weeks or until the Supreme Court decides the stay application., On 27 September 2022, the Supreme Court of India, in Writ Petition (Civil) proceedings, ordered that there shall be no stay of the proceedings before the Election Commission of India., On 28 September 2022, Advocate Vivek Singh, counsel for Uddhav Thackeray, requested that the documents submitted by Eknath Shinde be provided and sought an additional three‑week extension to file a reply., On 29 September 2022, the Commission, in view of the Supreme Court order dated 27 September 2022, gave a third extension of time and advised Uddhav Thackeray to furnish written submissions and supporting documents by 7 October 2022, with a clear indexed list of individual affidavits in alphabetical order and proof of service to the other group., On 29 September 2022, the Commission informed Eknath Shinde that the affidavits submitted for the organisational and legislative wings were not properly indexed and directed him to list the details of documents with proper indexing by 7 October 2022 and to serve copies to the other party with proof of service., On 4 October 2022, Advocate Chirag Shah, on behalf of Eknath Shinde, referred to the petition filed and to the Commission's Press Note No. EC‑PN‑173/2022 dated 3 October 2022, wherein the Commission decided to conduct an election to fill the vacancy for the 166‑Andheri East Constituency of Maharashtra. He warned that the rival faction could illegally attempt to field a candidate and claim the party symbol, and requested the Commission to urgently hear and dispose the petition under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, and to allot the symbol \Bow and Arrow\ to the group led by Eknath Shinde. Proof of service of the documents filed by his group to the other group was also attached., On 6 October 2022, Advocate Chirag Shah, on behalf of Eknath Shinde, submitted thousands of affidavits (in bundles claimed to represent 9,385 members) filed by Shiv Sena members and provided proof of service (via Google Drive) of the documents filed by his group to the group led by Uddhav Thackeray., On 6 October 2022, the Chief Electoral Officer, Maharashtra, sought guidance of the Election Commission of India on four points:\n(1) How the Returning Officer should decide if candidates of both factions file nomination forms for the 166‑Andheri East Assembly Constituency;\n(2) How to deal with a claim by both factions for the same election symbol \Bow and Arrow\;\n(3) How the Returning Officer/Electoral Registration Officer should handle requests by both factions for separate district chiefs and free copies of the electoral roll; and\n(4) Which faction should be regarded as the real Shiv Sena if both appoint separate star campaigners., On 7 October 2022, the Commission, in a letter dated 29 September 2022, advised the group led by Uddhav Thackeray to furnish their comments by 2 pm on 8 October 2022, along with comments on the letter dated 4 October 2022 of Advocate Chirag Shah., On 7 October 2022, Advocate Vivek Singh, counsel for Uddhav Thackeray, filed a preliminary reply at 4:35 pm stating that due to the large volume of documents it was difficult to file a reply within the stipulated time and that documents filed by the other group had not been supplied despite repeated requests. He requested that no order be passed without an oral hearing., On 7 October 2022, the Commission, in letters dated 29 September 2022 and 7 October 2022, invited comments from the group led by Uddhav Thackeray on the letter dated 4 October 2022 of Advocate Chirag Shah and advised both groups to furnish proof of service of documents to the other group by 2 pm on 8 October 2022., On 7 October 2022, Advocate Vivek Singh, counsel for Uddhav Thackeray, reiterated that the deadline for reply had been extended to 7 October 2022, that the Commission had issued directions before the end of the deadline, and that a preliminary reply had already been served to the other group. He argued that a reply to any application is required only if a notice is issued, which had not been done, and sought an additional three to four weeks to scrutinise the documents filed by the other side., On 8 October 2022, Advocate Chirag Shah, on behalf of Eknath Shinde, submitted proof of service of the documents filed to the rival group., On 8 October 2022, at 1:45 pm, Advocate Vivek Singh, for Uddhav Thackeray, stated that the petition dated 19 July 2022 is not maintainable under Paragraph 15 because (a) the petitioner must be a member of the party whose symbol is claimed; (b) the interim prayer sought is in the nature of a final prayer; (c) no prejudice will be caused to the petitioner if the status quo is maintained; and (d) the respondent’s position as Chief Executive of the party is not in dispute and the respondent is the de jure authority to decide the candidate. He prayed that the status quo be maintained till a final hearing, that the petition be rejected, and that any further orders be passed as deemed fit., Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968 provides that when the Commission is satisfied that rival sections or groups of a recognized political party each claim to be that party, the Commission shall, after taking into account all available facts and hearing representatives of the sections or groups, decide which, if any, is the recognized political party, and the decision shall be binding on all rival sections or groups., The steps envisaged under Paragraph 15 proceedings require both parties to submit documentary evidence of support in the organisational and legislative wings, including lists of members of various committees formed in internal party elections, after which the Commission initiates hearing of representatives. In the present case, the process of submission of documents was initiated by the Commission order of 22 July 2022 and the timeline has been extended several times; the required steps are still in progress., A parallel statutory development under the Representation of the People Act, 1951, is the Press Note issued by the Election Commission of India on 3 October 2022 announcing the schedule of elections for seven seats to State Legislative Assemblies. The outer limit for conduct of bye‑elections, i.e., six months from the date of vacancy, is governed by Sections 150 and 151A of the Representation of the People Act, 1951, and has been complied with. Paragraph 15 of the Symbols Order enables a recognized state party such as Shiv Sena to have a reserved symbol that may be utilised for bye‑elections and general elections in its state of registration and may be given priority in other states., Advocate Vivek Singh, in his letter of 7 October 2022, sought another four weeks of time before the start of the formal hearing to prepare and understand the documentation filed by the rival faction. While a clear timeframe is required, the Commission must balance due process with the urgency of the bye‑election schedule, as both parties claim exclusive use of the Shiv Sena symbol \Bow and Arrow\ and the party name, and nominations for the bye‑election are scheduled to close on 14 October 2022., Considering the urgency and the need for due process, the Commission issued an interim order on 8 October 2022 stating:\n(a) Neither of the two groups led by Eknath Shinde (petitioner) and Uddhav Thackeray (respondent) shall be permitted to use the name \Shiv Sena\;\n(b) Neither group shall be permitted to use the symbol \Bow and Arrow\;\n(c) Both groups shall be known by names they may choose, including linkage with the parent party \Shiv Sena\;\n(d) Both groups shall be allotted different symbols from the list of free symbols notified by the Election Commission for the current bye‑elections., The Commission directed both groups, by 10 October 2022, 1:00 pm, to furnish:\n(i) Three preferred names for their groups, any of which may be approved by the Commission; and\n(ii) Three preferred free symbols, in order of preference, for allocation to their candidates.
id_1102	0	Presented on 17-01-2022, registered on 17-01-2022 and decided on 27-01-2022. Duration ten days. Gajanan Chandrakant Khergamkar, aged about 53 years, residing at Sukhniwas, 9-A Block, 3rd floor, 3rd Pasta Lane, Colaba, Mumbai-400005, is the applicant/accused. The State of Maharashtra, represented by the Colaba Police Station, Mumbai, Criminal Report No. 04/2022, is the respondent/prosecution. Appearance: Learned Advocate Mr. Karan Singh for the applicant/accused. Learned State Public Prosecutor Mr. Geeta Sharma for the respondent/prosecution., The applicant/accused Gajanan Chandrakant Khergamkar has preferred this application under the provisions of Section 439 of the Code of Criminal Procedure, 1973, seeking bail in Criminal Report No. 04/2022, registered with Colaba Police Station, under Section 354-A of the Indian Penal Code, 1860 and under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012., As per the applicant, a 17‑year‑old victim lodged a complaint on 13‑01‑2022, alleging that on 07‑01‑2022, while she was celebrating her brother’s birthday in a café, the applicant spotted her and approached her. He inquired about the victim and introduced himself as a journalist and as an advocate. He handed his visiting card to the victim and asked her to visit his office. Subsequently, the applicant contacted the victim through WhatsApp. The victim showed willingness to do an internship with the accused. On 08‑01‑2022, the victim visited the applicant’s office along with her mother. The applicant called the victim the next day for a photo‑shoot. He took the victim to various places in Colaba and, in one hotel, while taking tea, he inquired about the victim’s vital statistics and other personal matters such as her date of menses. Afterwards, the accused took the victim on his scooter towards the Gateway of India and, on the way, moved his hand over the victim’s legs. The victim was scared and did not disclose the incident to her mother on the same day. On 10‑01‑2022, the victim disclosed the incident to her mother but was unwell and did not wish to file a complaint. On 13‑01‑2022, she lodged the complaint against the applicant., The applicant claims that he is falsely implicated in this offence. He states that he is an editor, solicitor and documentary filmmaker and the founder of a media‑legal firm that takes up social causes. According to him, there is an unexplained delay in filing the complaint, no such incident actually occurred, and there is no recovery for which his custodial interrogation is required. The applicant undertakes to abide by any conditions imposed on him while granting bail., The prosecution has resisted the application by filing a statement. It is contended that the statement of the victim under Section 164 of the Criminal Procedure Code is yet to be recorded. CCTV footage of the area near Lion Gate, Colaba and the Gateway of India shows the accused and the victim going on a scooter. The call data records of the accused and the victim are to be collected. Hence, the prosecution seeks rejection of the bail application., The learned counsel for the applicant/accused and the learned State Public Prosecutor were heard at length. The court perused the bulky documentary evidence in the form of various news articles, blogs, photographs and WhatsApp chats., The learned counsel for the applicant argued that the offences under the Protection of Children from Sexual Offences Act are not applicable. WhatsApp chats of the victim’s mother dated 10‑01‑2022 prove that no such incident occurred. The applicant was arrested on the same date and was remanded to judicial custody on that day. To support his contention, he relied on the following cases: (i) Apoorv Omkar Pande v. State of Maharashtra, 2020 SCC OnLine Bom 11468 (Honourable Bombay High Court, Mumbai); and (ii) Satender Kumar Antil v. Central Bureau of Investigation & another, Special Leave to Appeal (Criminal) No. 5191/2021., The court has carefully perused the cited cases and documents filed by the accused. It is acknowledged that the accused is a solicitor and filmmaker with deep roots in society, and therefore there is no likelihood of his absconding. Regarding the recording of the victim’s statement under Section 164 of the Criminal Procedure Code and the apprehension of threat to the victim, stringent conditions can be imposed while releasing him on bail. The preliminary investigation is completed and no further ground for custodial interrogation is seen. In these circumstances, taking into consideration the nature of the offence, the incident and the background of the applicant, he is entitled to be released on bail with stringent conditions., The bail application under the Protection of Children from Sexual Offences Act, No. 30/2022, and the remand application No. 46/2022, are hereby allowed. The applicant/accused Gajanan Chandrakant Khergamkar, residing at Sukhniwas, 9‑A Block, 3rd floor, 3rd Pasta Lane, Colaba, Mumbai‑400005, shall be released upon executing a Personal Recognizance Bond of Rs.20,000 (Rupees Twenty Thousand only) with one or two sureties of like amount, in Criminal Report No. 04/2022, registered with Colaba Police Station, under Section 354‑A of the Indian Penal Code, 1860 and under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012, subject to the following conditions: (a) The accused shall not threaten or influence the victim or witnesses or directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or any police officer or tamper with the evidence of prosecution; (b) The accused shall not commit an offence similar to the offence of which he is accused; (c) The accused shall not leave the jurisdiction of the Bombay High Court without prior permission; (d) The accused shall furnish his residential address, contact details and Aadhaar Card; (e) Violation of any condition shall amount to cancellation of bail forthwith; (f) After release from jail, the accused shall quarantine himself at home for fourteen days; (g) An authenticated copy of this order shall be sent to the accused., The bail application No. 30/2022 and remand application No. 46/2022 stand disposed of accordingly. (Dictated and pronounced in open Court). Designated Judge, Bombay High Court, under the Protection of Children from Sexual Offences Act, 2012, dated 27‑01‑2021. Certified to be a true and correct copy of the original signed order. Stenographer (Grade‑I), Court Room No. 28, Mumbai City Civil Court.
id_1104	0	The petitioner, who is the mother of a 14‑year‑old girl, has approached the High Court of Kerala seeking medical termination of pregnancy of her daughter on the ground that she was raped by the accused, who is now in custody under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act); and hence is under severe mental trauma and stress., I propose to be as brief as possible in this judgment, as also to be most careful because the High Court of Kerala is aware that what is at stake are two lives, one that of the minor child who is continuing with the pregnancy, and that of the fetus, which, according to the uncontested medical report, is at 30 weeks of gestation with a good fetal heart., In fact, this matter was heard at least thrice before, and each time the High Court of Kerala passed interim orders; which, for the purpose of clarity, would require to be extracted and read in full., On 20‑11‑2023, which is the date on which this writ petition was first heard, the following interim order was issued: The learned Deputy Superintendent of Police appears for the first respondent and the learned Government Pleader appears for respondents 2 to 7., Smt. Vidya Kuriakose, learned Government Pleader, submitted that a medical board can be constituted on 22‑11‑2023. Smt. Kabani Dinesh, learned counsel appearing for the petitioner, acceded to the foregoing saying that her client’s daughter will be present before the said board., In the foregoing circumstances, the Superintendent of the sixth respondent Hospital will constitute the necessary medical board which will convene at 11.00 AM on 22‑11‑2023. The petitioner and her daughter will appear before the Superintendent at 10.30 AM on that day for medical examination., Thereafter, after obtaining the report of the medical board, the High Court of Kerala passed a second order on 23‑11‑2023, which is extracted infra: The medical board opinion has been placed on record by the learned Government Pleader Smt. Vidya Kuriakose., Suffice to say, the opinion of the board, particularly that of the gynecologist, is that the uterus corresponded to 30 weeks of gestation with good fetal heart rate. Ultrasound done on 22‑11‑2023 shows a single live intra‑uterine gestation corresponding to 29 weeks + 6 days with estimated fetal weight of 1.5 kg + 226 g, AFI 15.4 cm. Since the patient is only 13 years and the pregnancy is advanced, conventional methods of termination of pregnancy may fail and may need Caesarean section for delivery of the baby., Prima facie, therefore, it appears to be untenable for the High Court of Kerala to order termination of pregnancy because the fetus is alive and healthy, with a good heartbeat., Though this is not a final decision, I am of the view that all options will have to be explored before the High Court of Kerala decides to deal with the request of the petitioner, one way or the other., The learned Government Pleader submits that the victim child in question is housed at Children’s Home, Trivandrum. The medical board says that she has ideas of guilt, low mood and other conditions, but that this may be because she is staying in a Children’s Home away from her family., No doubt, if the High Court of Kerala is not to accede to the request of the petitioner in this case, then the victim child will have to be fully protected and allowed to stay in an atmosphere conducive to her pregnancy; which, by all accounts, can only be at her residence, along with her parents. But before I do so, I am certain that someone with empathy must meet the child and talk to her., I, therefore, direct the Secretary, District Legal Services Authority (DLSA), Trivandrum to meet the victim child and file a report before the High Court of Kerala on or before 27‑11‑2023. I request the learned Government Pleader Smt. Vidya Kuriakose to facilitate this through all necessary means., As far as the victim child is concerned, prima facie, the High Court of Kerala is of the view that she should be allowed to return to her home. In such event, obviously, she should be protected particularly from the person against whom the criminal imputation has been made., I, therefore, direct the learned Government Pleader to obtain instructions from the District Police Chief, Kollam, as to how the victim child can be protected and what safeguards are to be taken to ensure that she is not exposed to either the person against whom the criminal offence has been registered, or anyone else acting under him. This shall also be made available to the High Court of Kerala by the next posting date., I clarify that neither the Secretary, DLSA nor the police officers will inform the victim child about any decision of the High Court of Kerala and will keep all such information secret., Noticing that the pregnancy is now at the most decisive term, and taking note of the mental health of the victim child, the High Court of Kerala passed a third order on 27‑11‑2023, to the following effect: Read order dated 23‑11‑2023., As had been indicated in the foregoing order, since the pregnancy is over eight months now and the fetus has been certified to have a good heart rate, prima facie the request of the petitioner for termination of pregnancy cannot be acceded to., The report from the District Police Chief, Kollam Rural, has been placed on record by the learned Government Pleader, along with her memo dated 27‑11‑2023, wherein the following have been stated:, It is submitted that the accused was arrested on 24‑10‑2023 and remanded into judicial custody. In this context, the presence and access of the accused person is restrained to a considerable extent. It is also obvious from his wandering nature that he has not many friends. In addition, the accused does not have good terms with his parents and at present has no close contact with them. If the accused is released from custody, there is every chance of threat to the protection of the victim child., It is submitted that, if the child victim is socially safeguarded by providing a homely atmosphere, the following issues need to be settled: whether the neighbours are able to cope with the situation, how they react to the victim child in their vicinity, etc. The living area of the victim child is a tribal settlement colony congested with nearby settlements. They are all laymen following the customs and traditions of their clan. The victim’s father got acquainted with the accused while working at Kallar Estate in Kulathupuzha Police Station limit. He is a chronic drunkard and is not competent enough to look after the child victim. Moreover, the victim child was subjected to rape at her home while residing with her parents. In that perspective, how far the victim can be safeguarded in the home is a question., It is submitted that, in addition, the residential area of the victim child is a remote place named Kuryottumala far from Punalur town. It is evident that the victim child needs special medical care and attention at this stage of gestation. If any urgent medical care is needed, it will be difficult to provide due to lack of proper transportation and distance from the hospital. In that sense, the proximity of a well‑facilitated hospital is also an essential element. In addition, it would be better to consult with the Child Welfare Committee, Kollam, and allow the mother of the victim child to stay with the child for care in the shelter if law permits., It is submitted that, however, if the child victim is repatriated to her home, police would provide the service of a victim liaison officer. In this regard the police officer would be instructed to liaise with the mother of the victim child, collect the phone number, provide 24 × 7 service and furnish a daily report to the Inspector of Police, Punalur, and continue with follow‑up action. This office has already issued instruction to the Inspector of Police, Punalur Police Station for reasonable action including the aforesaid matters., No doubt, the family condition of the petitioner appears to be far from conducive to a child of 13 or 14 years. However, since she is in advanced pregnancy and the accused is in custody, I am of the view that she must be given the benefit of her mother’s company forthwith., In this regard, the averments in paragraph 5 of the statement of the District Police Chief, Kollam Rural, become important., Smt. M. Kabani Dinesh, appearing for the petitioner, submitted that her client’s daughter also wants to return home, particularly because she feels very alone in the care home. In fact, the District Police Chief has recommended, as seen above, that the mother should be allowed to stay with the child in the care home. However, this is not legally possible., Therefore, the only other option for the High Court of Kerala is to allow the victim to go back to her home along with her mother., I am guided to the foregoing view also on account of the report placed on record by the Secretary of the Thiruvananthapuram District Legal Services Authority, who reported that the victim child has revealed a desire to return home and reunite with her parents. It is also recorded that there is a hospital at Punalur which is at a distance of only ten minutes from her residence; while the SAT Medical College, from the place where she presently resides, is 25 minutes away. Pertinently, the report records that the victim child has displayed a remarkable level of maturity during the conversation and that she eloquently detailed her background. It also indicates that, according to the victim child, she had close acquaintance with the accused and developed a relationship with him., I, therefore, direct that the child victim will be allowed to go back to her home, with a consequential direction to the District Police Chief, Kollam Rural, to assign a victim liaison officer to her and provide all services as offered in paragraph 5 of the foregoing statement., Needless to say, the District Police Chief will ensure that the victim child is escorted from the care home to her house and that she is protected from all deleterious tendencies, including any person who may have a connection with the accused., Today, the learned Government Pleader Smt. Vidya Kuriakose submitted that all necessary measures have been taken to ensure that the child is brought back to her home, to be in the company and comfort of her parents, so that she can continue with the pregnancy and deliver the child without mental strain or stress. She added that the victim child has, in fact, been brought to her home as we speak and that every effort, as ordered by the High Court of Kerala in the foregoing interim order dated 27‑11‑2023, will be taken to keep her safe and away from harm. She added that respondents are willing to abide by any further directions to be issued by the High Court of Kerala., Smt. M. Kabani Dinesh, learned counsel appearing for the petitioner, submitted that since the pregnancy was the outcome of an act of rape on her client’s child, she is entitled to the protection of the Medical Termination of Pregnancy Act, 1971 (the Act); and therefore, reiteratingly prayed that the reliefs sought for in this writ petition be granted., At first blush, the foregoing argument may look lustrous because the accused certainly has been charged under the POCSO Act and is stated to be under custody, but there is a rather unusual twist at this stage because the records and reports available on file indicate that the victim child had not been forced. That said, no doubt, the child is still very young, just 13 to 14 years in age, and what happened to her is certainly statutory rape., The High Court of Kerala is saying as aforesaid only for one reason, namely that the pregnancy is now very advanced, with the medical board speaking with unanimity that the uterus corresponded to 30 weeks of gestation with good fetal heart. The fetus has, in fact, life with heart rate; and hence, termination of the pregnancy at this stage is impossible, as also untenable. The medical board is also unambiguously of the view, as available from the record, that termination is not possible, but that the baby can only be taken out through a Caesarean section – which is to say, that it will be born alive, with a prognosis of a good life in future., Apodictically, this is not a case where the victim child’s health is at risk on account of the pregnancy; nor are there any lethal fetal abnormalities detected. The pregnancy is almost in its ninth month and the fetus is gaining weight and fat, getting closer to its eventual birth weight. Its vital organs, like the brain and lungs, are almost fully developed, preparing for life outside the womb., Obviously, therefore, the High Court of Kerala cannot accede to the request of the petitioner; though I am in full empathy with the condition she and her family are going through, particularly because the victim child is so young., I am, therefore, of the firm view that this is not a case where the provisions of the Act can come to the aid of the petitioner, though she and her daughter ought to be offered every protection available in law, to ensure that the latter delivers her baby and is able to take care of her, within the parameters of the statutory and executive realm., In the foregoing circumstances, confirming the foregoing extracted interim orders, I close this writ petition; however, directing the jurisdictional Child Protection Officer to visit the victim child on a regular basis and offer the family and her every support for the purpose of continuing the pregnancy and for delivery. The said officer will also contact the doctors and other medical personnel for the foregoing purpose and, should he/she encounter any issue, will be at liberty to approach the High Court of Kerala through a clarification petition moved with the assistance of the learned Government Pleader; in which event, the matter will be listed before the High Court of Kerala for appropriate orders., Needless to say, the liberty of the petitioner and her daughter to approach the competent court under the provisions of the Juvenile Justice Act, or such other applicable laws, with respect to the child to be born, is left open; and they will also be given adequate assistance and counselling in this regard by the Child Protection Officer. I reiteratingly clarify that my observations in this case are only qua the petitioner and her daughter and not the accused; and that nothing contained herein can be construed to be in his favour in any manner whatsoever, in the pending penal proceedings.
id_1106	0	Considering the constant decline in COVID-19 positive cases and after exhaustive discussion with medical experts, it is notified that while continuing with all preventive measures for effective control and containment of spread of COVID-19, in supersession of all previous directions, regular hearing of cases in Rajasthan High Court will commence from 28 June 2021 both by physical presence and video conferencing (hybrid mode) with the following modalities: Entry to the court premises will be permitted only to persons who have completed 14 days after their second dose of COVID-19 vaccination. Relaxation will be given only to those persons whose vaccination cannot be done for medical reasons as per advisory of the Central and State Government after scrutiny. A web portal on the website of Rajasthan High Court (https://rhcraj.nic.in) has been provided for learned advocates and parties in person to upload their final vaccination certificates. The final vaccination certificate of an advocate’s clerk will be uploaded through the concerned advocate with whom the clerk is registered. After verification of vaccination certificates, online authorization cards and SMS will be issued which must be shown at entry gates. Detailed process to upload the vaccination certificates with screenshots is enclosed. For early issuance of online authorization card and SMS, all concerned are advised to upload their final vaccination certificates at the earliest to avoid any inconvenience., Other than parties in person, only litigants for whom specific directions have been given by the Honourable Rajasthan High Court will be permitted entry to the court premises. Such litigant shall produce a copy of the order of the Honourable Rajasthan High Court directing his physical presence and the final vaccination certificate. All other persons will be permitted entry on showing their final vaccination certificate at the entry gates. All benches of Rajasthan High Court shall function regularly in hybrid mode from 10:30 a.m. to 4:30 p.m. with lunch break from 1:00 p.m. to 2:00 p.m. Hearing of matters shall be permitted both through physical appearance and video conferencing. In view of prevailing conditions, as a preventive measure, all concerned may prefer the virtual mode of hearing., Learned advocates or parties in person opting for video conferencing must intimate the Court Master of the concerned Honourable Rajasthan High Court at least a day before the date of listing for the cases listed in the Daily List and before 8:00 a.m. on the day of listing for the cases listed in the Supplementary List. No request for virtual hearing sent after the stipulated time will be entertained. The name and mobile number of the Court Master shall be published in the cause list so that learned advocates may inform their option of hearing through video conferencing well within the stipulated time. The Court Master will send the link for video conferencing to concerned advocates through SMS/email on the mobile number and email address registered in the Rajasthan High Court Court Information System., Learned advocates may check their mobile number and email address registered in the Rajasthan High Court Court Information System by using the option 'Advocate details' in the electronic Services menu on the home page of the website of Rajasthan High Court. If they require any change, addition or update, they may send email to the dedicated email addresses shown on the website. There will be no separate time slot for hearing of cases through video conferencing; such cases will be taken up as per their turn in the cause list. Learned advocates and parties in person should remain ready for video conferencing well in advance according to the display board. The Standard Operating Procedure for video conferencing is enclosed. If any advocate does not turn up in the first round, the case may be passed over for the second round., For maintaining sufficient distance between court rooms, subject to the location of the court rooms, either even or odd numbered court rooms shall be used. In the courtrooms, keeping in view the size of the rooms, chairs shall be arranged maintaining social distancing by reducing the number of chairs. Vacant court rooms will be utilized for seating of lawyers by providing limited chairs with requisite distance. Benches in the court corridors will be arranged maintaining social distancing. It must also be ensured that gathering even in small groups in the entire premises is avoided., Helpline numbers for issues related to video conferencing are as follows: For Jodhpur – 4634-0291, 2888056; For Jaipur Bench – 14635-0141, 2227441., All fresh matters may be filed physically or by electronic filing. During physical filing, all precautionary measures including social distancing as mentioned in Central and State Government advisory shall be strictly followed in the filing section. In view of prevailing conditions, as a preventive measure, all concerned may prefer electronic filing. Electronic filing may be made on the electronic filing portal as per the notification dated 08 April 2020 available on the website of Rajasthan High Court. The link of the electronic filing portal (https://efiling.ecourts.gov.in) is available on the home page of the website of Rajasthan High Court in the electronic Services menu. User guide and help videos for electronic filing are available on the electronic filing portal., As per directions of the Honourable Supreme Court of India issued by order dated 27 April 2021 passed in Miscellaneous Application No. 665/2021 in SMW (C), the period of limitation for all judicial and quasi‑judicial proceedings shall stand extended until further orders of the Honourable Supreme Court. The order of the Honourable Supreme Court may be downloaded at https://main.sci.gov.in/supremecourt/2021/10651/1065t2021/1,2777., Payment of court fees may be made through the e‑pay facility, the link of which (https://pay.ecourts.gov.in/epay) is available on the home page of the website of Rajasthan High Court in the electronic Services menu. All concerned may prefer the e‑pay facility as a preventive measure., Only those learned advocates shall be allowed in the courtroom who have to argue or present the case. No learned advocate should be present in the courtroom with the purpose of seeking pass‑over. Learned senior advocates are advised to take assistance from only one advocate. Learned advocates other than senior advocates are advised to come alone in the courtroom. At any given time, learned advocates relating to the case being taken up and the next four cases on the list only are advised to remain present in the courtroom. Entry of learned advocates in the court premises will be through an electronic pass. Electronic passes shall be issued to the learned advocates who have to appear in court for the purpose of hearing and ancillary purposes. These passes will remain valid for a particular day and entry will be strictly upon presentation of the electronic pass. Learned advocates are advised to generate the electronic pass from the Rajasthan High Court website, providing specific details such as name of learned advocate, court number, case number and item number of cause list and a declaration about medical fitness. Advocate clerks will be permitted to enter the premises through identity cards only and after verification of their final vaccination certificate., Personal presence of accused persons in appeals and revisions shall remain exempted till further orders. Wearing of coat and gown for learned advocates shall remain exempted till further orders. During virtual hearing, learned advocates are requested to observe the same dress code and decorum as is required and applicable in courtroom hearing. Learned advocates, parties in person and those whose presence has been specifically directed by the court, while appearing in the courts shall be required to wear face mask and face shield. Wearing of hand gloves should be preferred. Entry of law items in the court premises is strictly prohibited. All gates for entry of learned advocates, staff members and litigants shall be equipped with requisite thermal scanners. The medical staff will permit persons after proper screening as per the standard operating procedure issued by Central and State Government. Persons having flu‑like symptoms shall not be allowed to enter the premises. Persons deputed at entry gates for the purpose of screening shall be equipped with PPE kits. Canteens, photocopying shops, book shops, e‑Mitra, bank and post office may be opened with required protocol arrangements as prescribed by Central and State Government. Proper sanitization of the entire premises must be ensured. Hand wash and sanitizer may be provided in toilets and court corridors. All section in‑charges will be under obligation to ensure compliance with the directions issued by Central and State Government. No person without a mask shall be allowed to enter and move around in the premises. Social distancing as per the guidelines of Central and State Government should be followed strictly throughout the premises. The consumption of liquor, pan, gutka, tobacco and spitting inside the premises shall be strictly prohibited and will attract prosecution and punishment as per the guidelines of Central and State Government., Fingerprint scanners at the entry points will be completely functional. All staff members are directed that in case any staff member having flu‑like symptoms is identified, he should inform the concerned authority. Awareness signage mentioning do’s, don’ts and precautions shall be placed at appropriate places. Regular cleaning with sodium hypochlorite and disinfectant may be done in the entire premises. All public toilets in court premises should be cleaned at regular intervals with chemicals. All concerned are requested to ensure both doses of vaccination at the earliest to avoid any inconvenience. COVID‑19 testing of learned advocates and court staff will also be continued., Separate committees of the Registrar (Administration), Registrar (Classification), representative of the Bar Council of Rajasthan and presidents of High Court Bar Associations at Jodhpur and Jaipur, already constituted, shall supervise and monitor the situation on a daily basis, to ensure compliance with these directions and to take appropriate remedial steps. All above guidelines are in addition to guidelines issued by Central and State Government., Copy forwarded to the following for information and necessary action: 1. The Registrar‑Cum‑Principal Private Secretary to the Honourable Chief Justice, Rajasthan High Court. 2. Principal Secretary to all Honourable Judges, Rajasthan High Court. 3. The Registrar General, Rajasthan High Court. 4. Advocate General, Rajasthan. 5. Additional Solicitor General, Rajasthan. 6. The Chairman, Bar Council of Rajasthan. 7. President, Rajasthan High Court Advocates’ Association, Jodhpur. 8. President, Rajasthan High Court Lawyers’ Association, Jodhpur. 9. President, Rajasthan High Court Bar Association, Jaipur. 10. President, the Bar Association, Jaipur (CPC)/(Judicial), Rajasthan High Court, Jodhpur/Jaipur Bench and Registrar, High Court at New Delhi. 11. Member Secretary, Rajasthan State Legal Services Authority. 12. The Director, Rajasthan State Judicial Academy, Jodhpur. 13. All Deputy Registrars, Rajasthan High Court, Jodhpur Bench, Jaipur Bench. 14. Assistant Officer, Judicial (Classification Section), Rajasthan High Court, Jodhpur Bench, Jaipur Bench., Learned advocates and parties in person are requested to install the Cisco Webex Meetings application on their mobile phones from the Android Play Store or Apple App Store. Users are not required to create any account in this application. Cisco Webex may also be used in a web browser of a laptop or desktop without installing any application., The advocates or parties in person who would opt for virtual hearing will intimate the Court Master of the concerned Honourable Rajasthan High Court at least a day before the date of listing for the cases listed in the Daily List and before 8:00 a.m. on the day of listing for the cases listed in the Supplementary List. No request for virtual hearing sent after the stipulated time will be entertained. The advocate or party in person who opts for virtual hearing will be sent a numeric meeting number through SMS or WhatsApp on their mobile number registered in the Rajasthan High Court Court Information System. Advocates or parties in person are requested not to share the meeting number with any other person., If all the listed cases are to be taken up by video conferencing by virtue of any specific order, links will be sent to the registered mobile numbers of all the advocates whose names are shown in the cause list. The advocates or parties in person shall be ready with their mobile phones or laptop/desktop during the Honourable Rajasthan High Court sitting timings. They will regularly watch the display board which is available on mobile apps and the website of Rajasthan High Court. When their case is about to come, i.e., before two to three cases, they will join Webex on their mobile or laptop/desktop by following the steps mentioned below: Open Cisco Webex app and tap on ‘Join Meeting’ option. Thereafter, enter the meeting number and in the ‘Your Name’ box, mention the item number just before your name as a prefix. For example, if the name of the learned advocate is Rajendra Kumar and he wants to join for Item No. 12, he will enter the name as ‘12 Rajendra Kumar’. If one learned advocate has more cases in one court, item numbers of all the cases may be mentioned separated by commas. After entering the name, also enter your email address. Before joining, the app will prompt to start the microphone and video. The participant will start the video but keep the microphone muted., For laptop or desktop, open the URL https://webex.com in a web browser, click on Join and enter the meeting number in the meeting information box. Thereafter, enter your name with item number as shown above and email address. If the Cisco Webex desktop app is installed by any user, please sign out of the same and use it as a guest. In both situations, mobile or laptop/desktop, please give necessary permissions for microphone, speaker and camera if prompted by the Webex app or browser. On joining Webex, the following message will be displayed: ‘You can join the meeting after the host admits you.’ Please wait in the virtual waiting room until the host admits you. The court staff will admit only those participants who have mentioned the item number as a prefix with their name. Please keep the microphone muted at all times or until asked by the Honourable Rajasthan High Court to speak. Once the hearing is over, please leave the meeting by clicking the ‘X’ button in the red circle. During video conferencing, the advocates and parties in person are requested to keep the screen rotation of their mobile on and to hold the mobile phone in landscape position. Keep the mobile on a stand so that the video is still. Please use headphones or ear plugs for clear sound quality at both ends. Strictly adhere to the instructions given in this Standard Operating Procedure. During virtual hearing, please observe the same dress code and decorum as is required and applicable in courtroom hearing., User manual for uploading vaccination certificate on the web portal of Rajasthan High Court: Go to the website of Rajasthan High Court – https://hcraj.nic.in. On the top bar, click on the electronic Services menu item, then click on e‑Pass and Upload Vaccination Certificate. A new page will be displayed. On the login page, enter the same User ID and password which you are already using for electronic pass. If you have not yet registered in the electronic pass system, click on New User Registration and follow the steps for registration. After login, a provision to choose establishment from Jodhpur or Jaipur will appear on the screen. On selection of the appropriate establishment, the option to upload vaccination certificate for self or for advocate clerk will be available., For vaccination certificate upload for self, the form requires information such as whether you have taken the second dose of vaccination (yes/no), reference ID, date of second dose of vaccination and upload of the vaccination certificate in PDF, JPEG or JPG format. File size should be between 20 KB and 200 KB. After clicking on ‘Upload Certificate’ button, a message of successful updation of vaccination certificate will be displayed. The user can then view the details entered and the uploaded document. The uploaded vaccination certificate will be verified and thereafter an SMS will be sent to the registered mobile number. An authorization card may also be downloaded., For vaccination certificate upload for advocate clerks, the form requires information such as registration number of advocate clerk, name, mobile number, whether the second dose of vaccination has been taken (yes/no), reference ID, date of second dose of vaccination and upload of the vaccination certificate in PDF, JPEG or JPG format. File size should be between 20 KB and 200 KB. After clicking on ‘Upload Certificate’ button, a message of successful updation will be displayed and the user can view the details entered and the uploaded document., New user registration process for learned senior advocates and advocates: If you are not registered on this portal, click on the green button for New User Registration. On clicking New User Registration, the following screen will appear. Select the appropriate option, Senior Advocate or Advocate and then fill the Bar Council enrolment number (for example R12341960) without using slashes. The advocate name and mobile number will be displayed against this enrolment number as available with Rajasthan High Court. Fill the email ID (which is registered with Rajasthan High Court) and click on ‘Send OTP’ button. An OTP will be sent to your mobile. Enter this OTP in the following form. After this, information such as gender, date of birth, password, address etc. is required. If all details are correctly entered, click on ‘Sign Up’ button; a message of successful registration with User ID will be displayed. Your enrolment number will be the User ID. The registration process is then complete., Registration process for Party‑In‑Person (PIP): Registration of PIP is required. On the login page, click on the green button New User Registration. On the next screen, select the PIP radio button and then fill details such as name, mobile number, email ID and establishment. After entering these details, click on ‘Send OTP’ button to get OTP on mobile. Enter the OTP on the next screen and click on ‘Submit’ button. Enter information related to PIP such as gender, date of birth, password, address, details of photo ID and upload a scanned copy of the photo ID to complete the form. Click on ‘Sign Up’ button. A message related to registration and User ID (mobile number will be the user ID) will appear on the next screen. Details entered by PIP during registration will be verified by the competent authority of Rajasthan High Court. On successful verification, an SMS will be sent for information and the PIP can log in to the system to upload vaccination certificate. Mobile number will be the user ID for PIP., Reset password: If you are registered on this portal and want to reset your password, click on the Reset Password button. The following screen will appear: the user must fill mobile number, date of birth and then click on ‘Send’ button to receive OTP on mobile. This OTP is to be entered in the system. The system will prompt to enter a new password with confirmation. On successful matching of both passwords, a message of password change will appear on the screen.
id_1107	0	I.A. No. 170-2023 (Tasleem Ahmed) Police Station Crime Branch, Delhi (Investigated by Special Cell) under sections 13, 16, 17, 18 of the Unlawful Activities (Prevention) Act, 120B read with sections 109, 114, 1247, 435, 436, 452, 454, 468, 471, 34 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 25 and 27 of the Arms Act. State versus Tahir Hussain and Others, dated 25 November 2023. Present: Learned Madhukar Pandey, Learned Special Public Prosecutor for Shri Amit Prasad, along with Inspector Anil and Sub‑Inspector Raj Bahadur, Pairavi Officer from Special Cell. Mohd. Hasan, Learned Proxy Counsel for the applicant/accused Tasleem Ahmed., The bail application was argued and put up for clarifications on 26 August 2023. During the arguments the learned counsel for the accused and the learned Special Public Prosecutor shouted at each other and made personal allegations, leading the Delhi High Court to adjourn the matter., After the adjournment, the learned counsel for the accused moved a pre‑ponement application, again alleging that the learned Special Public Prosecutor had threatened to implicate him in this case., In reply, the learned Special Public Prosecutor stated that Shri Mehmood Pracha, learned counsel for the applicant/accused, had made specific personal allegations against him. He argued that Shri Pracha claimed to have conducted a private investigation which found that the Special Public Prosecutor had taken cash from the police in an underhand manner. The learned Special Public Prosecutor said that if these allegations are correct, he is not fit to continue as Special Public Prosecutor in this case and invited the counsel to place the material and the private investigator’s affidavit on record to substantiate the false and grave allegations on his integrity. He further pointed out that, under law, Shri Pracha cannot represent the accused because he has been mentioned in the statement of a protected witness, Smith, creating a conflict of interest and a violation of Bar Council of Delhi Rules. He referred to Section 395 of the Criminal Procedure Code and requested the Delhi High Court to refer the question of law to the Hon’ble High Court of Delhi on whether Shri Pracha can represent an accused in this case. He cited the judgment of the Hon’ble High Court of Gujarat in Gohel Himatsingh Lakhaji versus Patel Motilal Garbardas and Others, MANU/GJ/0141/1965, and submitted that without a decision on this issue he cannot address arguments on the bail application., The accused submitted that he wished to continue with Shri Mehmood Pracha. The learned proxy counsel for the accused, on instructions, stated that they do not wish to comment on the submissions made by the learned prosecutor and that the Delhi High Court may pass any order it deems fit., The Delhi High Court attempted to calm the tempers between the learned counsel for the applicant/accused and the learned Special Public Prosecutor, but without any fruitful result., Two questions have arisen: first, the specific allegations made by counsel for the accused that a private investigation concluded that the learned Special Public Prosecutor had taken cash from the police; second, the alleged conflict of interest. The Delhi High Court observes that counsel for the accused and the learned prosecutor should represent their clients instead of making unsubstantiated wild allegations. The learned counsel for the accused, despite the case being adjourned, moved the pre‑ponement application alleging that the learned prosecutor wants to implicate him. The learned prosecutor later clarified the allegations made against him during the hearing., In fairness, the Delhi High Court does not wish to intervene in the allegations made by the learned counsel against the learned Special Public Prosecutor; the prosecutor may take action on his own if he desires. However, the court deprecates the unsubstantiated wild allegations against the learned prosecutor, especially when they do not concern the merits of the case. Regarding the conflict of interest, the learned Special Public Prosecutor has pointed out that Shri Mehmood Pracha has been mentioned by witness Smith in his statement under Section 164 of the Criminal Procedure Code, and therefore he may be called as a witness by the prosecution or any accused. The court does not wish to decide who may be appointed as a prosecutor or advocate; it is for the accused to decide which advocate he wants. Although the accused is aware of the alleged conflict of interest, he still insists on being represented by Shri Mehmood Pracha. Whether this constitutes a conflict of interest prohibited by Bar Council of Delhi Rules is left to the prosecutor or the Bar Council of Delhi to consider or to initiate action, if deemed fit., As far as the Delhi High Court is concerned, the proceedings must continue as they impact and hamper the case of all other accused persons and the prosecution. Consequently, the bail application of accused Tasleem Ahmed is put up for arguments on 7 December 2023.
id_1108	0	Criminal Appeal No(s). 793-794 of 2022 Rajesh & Anr. Appellants Versus the State of Madhya Pradesh Respondent Criminal Appeal No. 795 of 2022 Sanjay Kumar, J., Ajit Pal alias Bobby, a 15‑year‑old lad, was killed brutally in the last week of July 2013. A neighbour, Om Prakash Yadav, along with his brother, Raja Yadav, and son, Rajesh alias Rakesh Yadav, stood trial in Sessions Case No. 560 of 2013 for Ajit Pal's murder and connected offences. By judgment dated 29‑12‑2016 passed therein, the learned Additional Sessions Judge, Jabalpur, Madhya Pradesh, convicted all three of them on different counts. Om Prakash Yadav was held guilty under Section 364A read with Section 120B Indian Penal Code while Raja Yadav and Rajesh Yadav were held guilty of offences under Section 302 Indian Penal Code read with Section 120B Indian Penal Code; Section 364A read with Section 120B Indian Penal Code; and Section 201 Indian Penal Code. Sentences were passed against the three of them on the same day. Om Prakash Yadav was sentenced to life imprisonment along with default imprisonment of two months, if he failed to pay a fine of 2,000 rupees. Raja Yadav and Rajesh Yadav were sentenced to death for the offences under Sections 302 and 364A Indian Penal Code and to two months default imprisonment each, if they individually failed to pay the fine amounts of 1,000 rupees and 1,000 rupees respectively. Both of them were also sentenced to five years rigorous imprisonment and payment of fine of 500 rupees each in relation to the offence under Section 201 Indian Penal Code coupled with one month default imprisonment., Aggrieved thereby, all three convicts appealed to the Madhya Pradesh High Court. Their appeals were clubbed with In reference (CRRFC‑1 of 2017) received from the Sessions Court in the light of the death sentences. By judgment dated 10‑08‑2017 delivered in Criminal Appeal No. 83 of 2017, filed by Om Prakash Yadav, and Criminal Appeal No. 84 of 2017, filed by Rajesh Yadav and Raja Yadav, along with In reference (CRRFC‑1 of 2017), a Division Bench of the Madhya Pradesh High Court confirmed their conviction and sentences, including the death penalty visited upon Raja Yadav and Rajesh Yadav., Assailing this verdict, the three convicts are before this Court by way of these appeals by special leave. Criminal Appeal No. 793 of 2022 was filed by Rajesh Yadav and Raja Yadav in the context of Criminal Appeal No. 84 of 2017, while Criminal Appeal No. 794 of 2022 was filed by them in relation to In reference (CRRFC‑1 of 2017). Criminal Appeal No. 795 of 2017 was filed by Om Prakash Yadav against the dismissal of Criminal Appeal No. 83 of 2017., To establish its case, the prosecution had examined 17 witnesses before the Trial Court and marked 45 exhibits. The defence examined 3 witnesses and adduced 14 exhibits in evidence., In brief, the prosecution's case is as follows: Rajwant Kaur (PW 1), Ajit Pal's mother, received a substantial sum of money upon sale of some property by her father. This sale was effected on 22‑03‑2013 but prior to that, a sum of 10 lakhs was received by her in cash. On the date of registration of the sale deed, a sum of 27.5 lakhs was received by cheque, in the name of her father. The balance amount was also received in cash on the same day. Out of the 10 lakhs received by her, PW 1 created a fixed deposit for 9 lakhs and 1 lakh was kept in her account. This information was in the knowledge of Om Prakash Yadav, a neighbour, and his entire family. While so, on 26‑03‑2013, PW 1's son, Ajit Pal, left the house at 9 o'clock at night to see the Holika and did not return. PW 1 lodged a missing person report (Exhibit P1) at Gorakhpur Police Station on 27‑03‑2013 at 16:15 hours. On 28‑03‑2013, PW 1's brother, Amarjeet Singh alias Mitthu (PW 2), and Om Prakash Yadav went to the Gurudwara in Gwarighat to search for the boy. They did not find him there but while they were returning, PW 2 received a call saying, \Khan speaking, Bobby is with me. Send me 50 lakh rupees.\ PW 2 answered the call and another call came from the same number. PW 2 gave the phone to PW 1 and the caller said, \I am Khan speaking. Your Bobby is with me. Send 50 lakh rupees and if you tell the police or any other person then I will cut Bobby's throat and kill him.\ PW 1 told him not to do that and asked to speak to her child. She then heard a voice saying: \Mummy, save me, Mummy, save me, I am Bobby.\ PW 1 stated that, on hearing Bobby's voice, she fell down and the mobile fell from her hand. Om Prakash Yadav took the phone and started speaking to the caller. He said, \Tell us quickly where to get the money and I am getting the money with Didi.\ Then, Monu Gujral (PW 10), another neighbour, took the phone but it was cut. PW 10 then used his own phone to call the kidnapper on the same number and asked to speak to Bobby. When the kidnapper let him do so, PW 10 told PW 1 that it was not Bobby's voice. The caller then said to PW 10 that Bobby had told him that his mother had 3 lakh; to send the same right away and the balance 20 lakh could be given in 1 month., Om Prakash Yadav pressed upon PW 1 to arrange 1 lakh and to withdraw the rest of the 20 lakhs from the bank. However, PW 1 could not give 1 lakh to Om Prakash Yadav as there were relatives in her house. PW 10 wrote down the mobile number from which the kidnapper had called, and gave it to the police. When she came back from the police station, Om Prakash Yadav came to her and asked her not to tell the police anything and gave her a piece of paper stating that Bobby would be freed by midnight. Later, Raja Yadav came to PW 1's house at about 11 o'clock in the night and told her that her brother, PW 2, and her other brother, Major Singh, had kidnapped her son in their greed for money. Raja Yadav had a sword in his hand and told PW 1 that he would cut the throats of her brothers if she asked him to. PW 1 told him not to do any such thing as her brothers would not do something like that., On 28‑03‑2013 at about 3:30 pm, basing on the ransom calls received, PW 2 filed a report with the Gorakhpur Police Station. On that basis, FIR No. 273/13 (Exhibit P35) was registered at 18:20 hours against unknown persons under Sections 364A and 365 Indian Penal Code. Call details and IMEI data were obtained by the Investigating Officer (PW 16) from the Cyber Cell, which informed that the mobile phone handset with IMEI No. was issued to Om Prakash Yadav. On receiving this information, PW 16 went to the house of Om Prakash Yadav in Narmada Nagar, Gwarighat, on 29‑03‑2013. PW 16 took Rajesh Yadav to the police station and questioned him at 13:45 hours, whereupon he confessed to having killed Ajit Pal, along with Raja Yadav. PW 16 recorded a Memorandum (Exhibit P8) containing the confession of Rajesh Yadav, wherein he also stated that he would help recover Ajit Pal's body and the murder weapon. Rajesh Yadav and PW 16, along with witnesses, then traced the number from which the ransom calls had been made. The handset with this IMEI number was also used with the mobile number that was traced to Narmada Nagar. Rajesh Yadav led them to a well near Khandari Canal. Ajit Pal's body was found in the well, stuffed in a white plastic sack. The body was identified as that of Ajit Pal by the witnesses present. Ajit Pal's throat was cut and there was hair entangled in his right‑hand fingers. The police prepared a Panchayatnama (Exhibit P2) bearing the signature of PW 2. The Naksha Panchayatnama (Exhibit P3) was also signed by PW 2. Rajesh Yadav pointed out an empty liquor bottle lying at some distance, which was seized under a Property Seizure Memo (Exhibit P10). An iron knife with blood‑like stains was also seized at the behest of Rajesh Yadav from the canal under a Property Seizure Memo (Exhibit P11). Rajesh Yadav was then arrested on 29‑03‑2013 at 18:30 hours under an Arrest Memo (Exhibit P36)., PW 16 again went to the house of Rajesh Yadav on 30‑03‑2013; the House Search Panchnama (Exhibit P37) records that visit. On 31‑03‑2013, Rajesh Yadav was again questioned in Gorakhpur Police Station in the presence of witnesses and his statement was recorded in a Memorandum (Exhibit P15). He stated that the mobile phone from which the ransom calls were made was with his brother, Brijesh Yadav, and that he would help recover it. On the same day, Brijesh Yadav was taken to Gorakhpur Police Station and questioned in the presence of witnesses. He made a statement, recorded in a Memorandum (Exhibit P17), that he had hidden the mobile phones given by his brother, Rajesh Yadav, in a suitcase in his room. Brijesh took the police and witnesses to the house and a double‑SIM mobile phone handset, with IMEI details, was seized (Exhibit P19)., On 31‑03‑2015 at 15:00 hours, PW 16 questioned Raja Yadav in Gorakhpur Police Station in the presence of witnesses. He stated that he had hidden the blood‑stained clothes worn by him at the time of the incident and would help recover the same. On the basis of this statement, recorded in a Memorandum (Exhibit P16), Raja Yadav took the police and witnesses to his dairy in Narmada Nagar, where his clothes, with blood‑like stains, were seized under a Seizure Memo (Exhibit P18). Raja Yadav was arrested on 31‑03‑2013 under an Arrest Memo (Exhibit P20) at 17:40 hours., Om Prakash Yadav was taken to Gorakhpur Police Station on 05‑04‑2013 and questioned in the presence of witnesses. He stated that the blood‑stained clothes worn by Rajesh Yadav at the time of the incident were hidden by him in a plastic bag under some hay in a room of his house. This statement was recorded in a Memorandum (Exhibit P22) and on that basis, one black T‑shirt, one black full‑lower and one light green Bermuda were found under the hay in a room of his house. The clothes were seized at 15:15 hours. Another mobile phone of Micromax company with SIM and IMEI numbers was seized on 05‑04‑2013 under a Seizure Memo (Exhibit P23). Om Prakash Yadav was arrested on 05‑04‑2013 at 15:30 hours under an Arrest Memo (Exhibit P24)., The hair seized from the right fist of the deceased was sent for DNA analysis and for comparison with the blood samples of Rajesh Yadav and Raja Yadav. The DNA Test Report revealed that the hair belonged to Rajesh Yadav. The autopsy of the body was done by Dr. Vivek Shrivastav (PW 7). His post‑mortem report (Exhibit P7) indicated that death had occurred three to five days prior to the examination and the cause of death was haemorrhagic shock due to the throat being cut prior to death. The post‑mortem examination was conducted by him at 10:15 hours on 30‑03‑2013., According to the prosecution, the ransom calls were made by Raja Yadav by inserting the SIM card with mobile number into Om Prakash Yadav's mobile phone handset bearing the IMEI number. The prosecution, though the ransom calls were made during the morning hours on 28‑03‑2013, states that Ajit Pal was killed on the night of 26‑03‑2013 by Rajesh Yadav and Raja Yadav. They lured him by offering him alcohol, whereupon Raja Yadav and Ajit Pal drank whisky. Raja Yadav then caught hold of Ajit Pal and Rajesh Yadav cut his throat. Rajesh Yadav then got a white plastic sack and they hid the body in the well. This, in sum and substance, was the prosecution's case., Before parting with the factual narrative, we may note that the prosecution tried to project Puran Singh (PW 3) as a witness to buttress a last‑seen theory. This witness stated that his daughter was married to PW 2. He stated that he knew the accused also. He claimed that on 26‑03‑2013 at 6 pm, he had gone to Narmada Nagar to give a box of sweets to his daughter for Holi. He further stated that, after leaving her house, he reached the railway crossing and met Raja Yadav, Rajesh Yadav and Ajit Pal. Ajit Pal greeted him and he asked Ajit Pal why he was not at home as it was past 9 pm. Ajit Pal told him that he was going to see the Holika and left with the others. PW 3 stated that he then went home and was informed by his daughter on 28‑03‑2013 that Ajit Pal had been kidnapped and ransom calls had been made. On 29‑03‑2013, his daughter informed him that Ajit Pal's dead body was found inside a well and that Raja Yadav, Rajesh Yadav, Brijesh Yadav and Om Prakash Yadav had helped recover it. PW 3 stated that he went for Ajit Pal's last rites on 30‑03‑2013 and when he met the Town Inspector at the crossing, he told him that he had met Ajit Pal along with Raja Yadav and Rajesh Yadav on 26‑03‑2013. This version of PW 3 was accepted by the Trial Court but was disbelieved by the Madhya Pradesh High Court. The last‑seen theory sought to be built up by the prosecution therefore fell to the ground., A conspectus of the prosecution's case clearly reveals that it is poised entirely on circumstantial evidence as there was no eyewitness to the kidnapping and murder of Ajit Pal. In a case resting on circumstantial evidence, the prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the accused and none other. See C. Chenga Reddy and others versus State of Andhra Pradesh, Ramreddy Rajesh Khanna Reddy versus State of Andhra Pradesh, Majenderan Langeswaran versus State (National Capital Territory of Delhi) and another, and Sharad Birdhichand Sarda versus State of Maharashtra. As long back as in the year 1952, in Hanumant versus State of Madhya Pradesh, a three‑Judge Bench of this Court observed: \It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.\ Again, in Padala Veera Reddy versus State of Andhra Pradesh and others, this Court affirmed that when a case rests solely upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence., Applying these standards presently, we find that the prosecution utterly failed to pass muster in establishing its case. There are cavernous gaps in the evidence that the prosecution would offer as an unbroken chain unerringly pointing to the guilt of the appellants. Discrepancies galore in the prosecution's case tear asunder the fabric of its purported version as to how events unfolded. Oftentimes, Courts find that reckless over‑zealousness and unbridled fervour coupled with scant regard for due procedures and practices on the part of the police, in picking upon those whom they perceive to be the guilty party and then building up a case against them, accomplishes the direct opposite of what they seek to achieve, by exposing gaping holes and weak links in the chain of evidence that they ultimately offer, as is the situation now., To begin with, there is no clarity as to the time at which Ajit Pal went missing. Exhibit P1, being the missing person report lodged by Rajwant Kaur (PW 1), recorded that Ajit Pal left the house on 26‑03‑2013 at 9 o'clock and went somewhere and that he was searched for but was not found. Significantly, there is no mention therein of whether it was at 9 am or 9 pm that Ajit Pal had left the house or that it was to see the Holika. PW 6, the Chief Constable at Gorakhpur Police Station, recorded Exhibit P1 on 27‑03‑2013 and stated that PW 1 reported her son had left the house on 26‑03‑2013 at 9 o'clock without telling anyone and he had not been found despite their search. However, FIR No. 273/13 (Exhibit P35), registered on 28‑03‑2013 at 18:20 hours, recorded that Ajit Pal had left the house on 26‑03‑2013 at 9 in the morning without telling anyone and that he was searched for everywhere but was not found. Again, there is no mention therein of his having gone to see the Holika, creating ambiguity whether Ajit Pal went missing at 9 o'clock in the morning or at night. Further, the prosecution would have it that the kidnappers were not even certain as to the ransom amount they wanted. Several varying figures find mention in the prosecution's case, raising doubt about the consistency of their demand., Adding to the confusion, Rajwant Kaur (PW 1) stated during her cross‑examination that the person on the phone who made the ransom call was a stranger and then added that she had recognised the voice but, as her child's life was in danger, she did not tell the police. She further stated that she did not say she had recognized the voice until the end and admitted that she did not mention in her examination‑in‑chief that she had recognised the voice. Compounding matters, she stated that the police had used tracking dogs on 29‑03‑2013 but denied that the dogs had detected the body in the well. According to her, the dogs were used in the evening after the body was taken out from the well in the afternoon. She later said that the tracking dogs had gone to the well and washing area at 7‑8 o'clock but could not recall the exact date, only that it was after the body was found. Similarly, Jitendra Singh (PW 8), a close relation of PW 1 and a key witness to the prosecution's seizure memos, stated that he had heard of sniffer dogs being used between 28‑03‑2013 and 29‑03‑2013 but not in his presence. The use of sniffer/tracking dogs after the police had already found the dead body, the murder weapon and other material objects is not comprehensible. Notably, the Investigating Officer (PW 16) did not mention the use of sniffer/tracking dogs during investigation. This suppression, for whatever reason, does not reflect well upon the prosecution., These being glaring disparities in the very foundation of the case, things get progressively worse. Saidutt Bohare (PW 15), the Nodal Officer from Bharti Airtel Limited, who furnished the call data to the police, said that he sent those details by email to the Police Superintendent's Office when asked. He produced a copy of the email, containing the call details sent to the Police Superintendent's office (Exhibit P31). He stated that the subscriber furnished the call details and IMEI data. The call data statement (Exhibit P31) reveals that it was made available to the police at 18:05 hours on 28‑03‑2013, and the FIR was registered only thereafter at 18:20 hours. Though the call data statement was sufficient to link Om Prakash Yadav with the ransom calls, the police chose to mention in the FIR that the accused was Unknown. Further, if Exhibit P31 pointed to the involvement of Om Prakash Yadav, as claimed by the Investigating Officer (PW 16), there is no explanation as to why the police first picked up Rajesh Yadav., Further, and most crucial of all, there is no clarity as to when the appellants were actually taken into custody by the police. PW 2 stated in his examination‑in‑chief that the police caught Rajesh Yadav and took him to Gorakhpur Police Station during the afternoon hours of 28‑03‑2013. During his cross‑examination, PW 2 again asserted that the police did not take Om Prakash Yadav on 28‑03‑2013 but they took Rajesh Yadav and Raja Yadav. PW 2 categorically denied the suggestion that the police did not take Raja Yadav, Om Prakash Yadav and Rajesh Yadav on 28‑03‑2013 and that they took them on 29‑03‑2013. Shiv Prakash (PW 4), a relation of the accused, also stated that the police had taken him along with Raja Yadav, Brijesh Yadav, Om Prakash Yadav and Rajesh Yadav and held them in the police station on the night of 28‑03‑2013, where they were beaten. He was declared hostile and cross‑examined by the prosecution. He again claimed that the police took them on the night of 28‑03‑2013. He stated that he was released on the 5th from Gorakhpur Police Station but did not make a complaint due to fear, as the police had beaten him a lot., Princy Thakur (DW 2) stated that she used to visit Om Prakash Yadav's house for a long time as her mother worked for them. She claimed that the police arrested Raja Yadav and Rajesh Yadav at 3‑4 pm on 27‑03‑2013 and took them for questioning to the police station. She stated that, at about 8‑9 pm on that day, the police took her also to Gorakhpur Police Station for questioning and seized all their mobiles. According to her, the police beat Raja Yadav and Rajesh Yadav a lot. She further stated that the police pulled out Rajesh Yadav's hair and that the three were questioned all day and night. She further claimed that, on 30‑03‑2013, the police brought Om Prakash Yadav to the police station at 2‑3 o'clock, beat him a lot, and that he fell unconscious and two policemen, Rajesh Nag and Jugal Kishore, took him to Bhandari Hospital. She stated that when she was released on 01‑04‑2013, she went to see Om Prakash Yadav at Bhandari Hospital where four policemen were guarding him to ensure he did not run away. She said she used to give food to Om Prakash Yadav daily and the police were present all day and night. She said the police seized her mobile and she got it back through the Court on handing over a receipt.
id_1108	1	In other words, the exact information given by the accused while in custody, which led to recovery of the articles can be proved. It was noted that this doctrine is founded on the principle that if any fact is discovered as a search was made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true., In State of Karnataka vs. David Rozario and another, the Supreme Court of India held that information which is otherwise admissible under Section 27 of the Evidence Act would become inadmissible if it did not come from a person in the custody of a police officer or came from a person not in the custody of a police officer. It was further held that what is admissible is the information and not the opinion formed on it by the police officer, and that the exact information given by the accused while in custody which led to recovery of the articles has to be proved. The two essential requirements are that the person giving the information must be accused of an offence and he must be in police custody., In Ashish Jain vs. Makrand Singh and others, the Supreme Court of India held that once a confessional statement of the accused is found, on facts, to be involuntary, it would be hit by Article 20(3) of the Constitution of India, rendering such a confession inadmissible. It was further noted that there is an embargo on accepting self‑incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. The Court cautioned that if such a statement is made under undue pressure and compulsion from the investigating officer, the evidentiary value of such a statement leading to the recovery is nullified., In Boby vs. State of Kerala, the Supreme Court of India referred to the decision of the Privy Council in Pulukuri Kotayya vs. King Emperor, wherein Section 27 of the Evidence Act had been considered at length. It was noted that Section 27 provides an exception to the prohibition imposed by the preceding provisions and enables certain statements made by an accused in police custody to be proved. The condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and only that part of the information which relates distinctly to the fact thereby discovered may be proved. Normally, Section 27 is invoked when a person in police custody produces from some place of concealment an object such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused. The Privy Council concluded that the exception should not be held to nullify the substance of the provision and it would be fallacious to treat the fact discovered as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. For example, information supplied by a person in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife if knives were discovered earlier, but if it leads to the discovery of the fact that a knife is concealed in the house of the informant and the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant., In the case on hand, though Rajesh Yadav was taken to the police station on 29.03.2013 or even earlier, he could not be said to be in police custody until he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an accused in the FIR and was not accused of any offence till his arrest. Therefore, his arrest resulted in actual police custody, and the confession made by him before such arrest and prior to his being accused of any offence would be directly hit by Section 26 of the Evidence Act, and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. Consequently, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not accused of any offence and was not in police custody at the time he allegedly made a confession. The same applies to Raja Yadav and Om Prakash Yadav, as they also were not named as the accused in the FIR and were not accused of any offence till they were arrested and taken into police custody, well after the recording of their confessions and the alleged seizures based thereon. This lapse on the part of the police is fatal to the prosecution’s case, as it essentially turned upon the recoveries made at the behest of the appellants, purportedly under Section 27 of the Evidence Act., The manner in which the Investigating Officer (PW‑16) drew up the proceedings forms an important issue and is equally debilitative to the prosecution’s case. In Yakub Abdul Razak Memon vs. State of Maharashtra through CBI, Bombay, the Supreme Court of India noted that the primary intention behind the panchnama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating found in the premises searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and check these malpractices by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. A panchnama can be used as corroborative evidence when the respectable person who is a witness thereto gives evidence in court under Section 157 of the Evidence Act. Section 100(4) to Section 100(8) of the Code of Criminal Procedure stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, to build confidence and a feeling of safety amongst the public. The mandatory conditions for a valid panchnama are: (a) all necessary steps for personal search of the inspecting officer and panchnama witnesses should be taken to create confidence that nothing is implanted and a true search has been made; (b) search proceedings should be recorded by the inspecting officer or another person under the supervision of the panchnama witnesses; (c) all proceedings should be recorded clearly stating the identity of the place, all spaces searched and descriptions of all articles seized, and any sample drawn for analysis; (d) the inspecting officer may take assistance of subordinates, and if any superior officers are present they should also sign the panchnama after the main inspecting officer; (e) place, name of the police station, officer rank, full particulars of panchnama witnesses and the time of commencing and ending must be mentioned; (f) the panchnama should be attested by the witnesses as well as by the concerned officer; (g) any overwriting, corrections, and errors should be attested by the witnesses; (h) if a search is conducted without a warrant of court under Section 165 of the Code, the inspecting officer must record reasons and a search memo should be issued. It was held that a panchnama would be inadmissible if recorded by the investigating officer in a manner violative of Section 162 of the Code of Criminal Procedure, as the procedure requires the officer to record the search proceedings as if they were written by the panchnama witnesses themselves and not as examining witnesses, as laid down in Section 161. The Court concluded that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure, and if the deviation occurred due to practical impossibility, it should be recorded by the investigating officer so as to enable him to answer during his examination as a witness in court., In Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh, a three‑Judge Bench of the Supreme Court of India observed that the requirement of law before accepting the evidence of discovery is to prove the contents of the panchnama, and the investigating officer, in his deposition, is obliged to prove the contents of the panchnama. It was further observed that only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law will the prosecution be justified in relying upon such evidence and the Supreme Court of India may also accept the same. The Court held that, in order to enable the court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to the accused, as the statement made by him, be brought on record, and for this purpose the investigating officer is obliged to depose the exact statement and not merely say that the discovery panchnama of the weapon of the offence was drawn up as the accused was willing to take it out from a particular place., In Khet Singh vs. Union of India, the Supreme Court of India held that even if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. However, the Court pointed out that if the search and seizure were in complete defiance of law and procedure and there was any possibility that the evidence collected had been tampered with or interpolated during the course of such search and seizure, then that evidence could not be admitted. Though these observations were made in the context of a search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985, they have relevance generally., Tested against this backdrop, the manner and method in which the panchnamas and memos were prepared in the case on hand leave the prosecution high and dry. For instance, the Naksha Panchnama (Exhibit P3) dated 29.03.2013 records the names of five witnesses, including PW‑2 and PW‑8, and states that the witnesses inspected the body of deceased Ajit Pal @ Bobby; that there was a big wound on the right side of the neck of the deceased; that, in the opinion of the panchnama witnesses, the deceased was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife; that his body was stuffed in a sack; and that the sack was thrown in a well. It then records the opinion of the investigating officer (PW‑16) wherein, after noting the factual aspects, he stated that Ajit Pal was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife. Notably, the narrative is not that of the panchnama witnesses but mostly of PW‑16 himself and the witnesses merely signed the panchnama. Similarly, the Crime Details Form (Exhibit P13) notes that the scene of the crime was visited on 29.03.2013 at 15:15 hours and records that, fifteen metres from the Khandari Canal, an old well is situated; that there are bushes growing around the well; that there was a body inside a white sack floating in the water; that the width of the well was 2.70 metres; that the well was six metres deep; and that there was one metre of water in the well and five metres was empty. Although the form notes that two panchnama witnesses were present, there is no narrative by them and they simply signed the form. The same is the position with the Crime Details Form (Exhibit P14) relating to the finding of blood on the walls of the washing area and the floor, black plastic slippers, and an empty bottle of liquor. The same panchnama witnesses are mentioned and they affixed their signatures but again, it is not their narrative and there is no recording of how they went about finding these objects. Further, the form straightaway records the opinion that Rajesh Yadav and Raja Yadav had murdered Ajit Pal, put his body in a plastic sack and threw it into the well., Property Seizure Memos (Exhibits P18 and P23), relating to the seizure of the blood‑stained clothes of Rajesh Yadav and Raja Yadav respectively, are drafted likewise wherein the witnesses Bambam (PW‑9) and Surjeet Singh are named but there is no narrative on their part as to how they were led and assisted by someone to find the objects. In the same manner, Property Seizure Memo (Exhibit P9) relating to the seizure of the blood‑stained soil, controlled soil and the plastic slippers; Property Seizure Memo (Exhibit P10) relating to seizure of the liquor bottle; Property Seizure Memo (Exhibit P12) relating to seizure of the body of the deceased and his clothes along with the hair found in his right fist; Property Seizure Memo (Exhibit P11) relating to seizure of the murder weapon; and Property Seizure Memo (Exhibit P19) relating to seizure of the two mobile phones, all reflect the same style of recording. Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words how these objects were discovered, i.e., at whose instance and how. Consequently, no lawful validity attaches to these proceedings recorded by the police in the context of collection of this evidence., DNA evidence was also relied upon by the prosecution, projecting a scenario that Ajit Pal had struggled with his assailant and in the course of that scuffle he managed to pull out some hair from the head of his assailant which remained in his hand till the discovery of his body. DNA analysis of that hair proved that it was that of Rajesh Yadav. However, this story is bereft of logic. According to Raja Yadav’s Arrest Memo (Exhibit P20), he was 5.8 feet in height and the prosecution would have it that he caught hold of Ajit Pal, a 15‑year‑old boy who was 5.4 feet in height, from behind, and Rajesh Yadav, who was 5.7 feet in height according to his Arrest Memo (Exhibit P36), cut his throat. The possibility of Ajit Pal, held by a much taller Raja Yadav, managing to get his hands on Rajesh Yadav’s head, who was also taller than him, thereby plucking out hair, is inherently improbable. This scenario does not lend itself to credibility and seems concocted so that Rajesh Yadav’s hair would be conveniently available for DNA analysis to corroborate the prosecution’s case. Further, as there is doubt as to when Rajesh Yadav was taken by the police and whether his hair could have been pulled out by the police while he was in their control, the possibility of such evidence being introduced by the police themselves cannot be ruled out. In Manoj and others vs. State of Madhya Pradesh, a three‑Judge Bench of the Supreme Court of India refused to rely on DNA evidence, inter alia, as the genuineness of its recovery was suspect. Presently, as the source and origin of the DNA evidence, viz. the hair, is rendered suspect, the result of that DNA analysis serves no real purpose in establishing the prosecution’s case., The proverbial last nails in the coffin of the prosecution’s case, if at all needed, are the shocking lapses and slipshod investigation on the part of the police. It is on record that when the investigating officer (PW‑16) undertook the first search of Om Prakash Yadav’s house under Exhibit P‑37 Panchnama, nothing was found. However, a later search with the aid of Brijesh Yadav led to the seizure of two mobile phones from a trunk in one of the rooms of Om Prakash Yadav’s house. The reason why these phones were not found during the first search is not explained. Moreover, Shaival @ Bambam (PW‑9), a witness to the seizure of the phones, claimed that there were no SIM cards in the mobiles but candidly admitted that they did not open the mobiles and look inside. He said that they did not try to operate the mobiles or see the numbers inside and that both the phones were turned off. This self‑contradictory deposition does not aid the dubious investigative process adopted by the police., As regards the call data and the ransom calls, Santosh Jadhav, Assistant Nodal Officer, Reliance Communication, was examined as PW‑17 and spoke of the call data of mobile number 8305620342 from which the ransom calls were made. According to him, the SIM card with the said mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay Gandhi Ward, Tehsil Jabalpur. He produced Bhuraji’s Customer Application Form along with his attached Election ID card (Exhibit D6). The call data of 28.03.2013 showed that this SIM card was used on the mobile handset. Therefore, the mobile number from which ransom calls were made was in the name of Bhuraji, s/o Deepu, and his address was available. However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls. Even more startling is the fact that, though PW‑17 placed on record actual proof of the allotment of this mobile number to Bhuraji (Exhibit D6), no such steps were taken by the police to establish the link between Om Prakash Yadav and the mobile. The mobile number was allotted to Om Prakash Yadav but no document in proof thereof was marked in evidence. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Exhibit P31) and its contents are practically useless in establishing the prosecution’s case that the ransom calls were made from Om Prakash Yadav’s mobile phone handset., Another notable feature is that PW‑2, during his cross‑examination, gave a different account of what transpired during those crucial days. He stated that on 28.03.2013, when Om Prakash Yadav and he went to the Gurudwara, Om Prakash Yadav gave him a missed call. He claimed that he called him back at about 2 pm and Om Prakash Yadav told him that Bobby was there and had taken gutkha and left. PW‑2 claimed that he told his sister not to worry and that Bobby was with Om Prakash Yadav. He further stated that when they reached the police station at 3:30 pm, he did not tell the police about Om Prakash Yadav calling and speaking to him. He claimed that on 28.03.2013, Om Prakash Yadav threatened that he would kill him and burn down his house. According to PW‑2, he had not recognised the voice of the caller who called for ransom. He also stated that the police did not call him or PW‑1 when they took Rajesh Yadav and Raja Yadav. PW‑2 said that when they questioned him on 28.03.2013 at about 5 or 6 pm, he told them everything about who had called, etc. This new twist in the tale was suppressed by the prosecution., Dr. Vivek Shrivastav (PW‑7), who conducted the post‑mortem examination, stated that semi‑digested food was found in the stomach of the deceased and it would have been consumed less than six hours prior to death, possibly 30 minutes or one hour. He stated that if alcohol is drunk with food and death occurs within one hour thereafter, it is possible for the semi‑digested food to smell of alcohol. He admitted that he did not find any such smell of alcohol. His testimony weakens the prosecution’s claim that Ajit Pal consumed whiskey just before he was killed., Before parting with the case, we note with deep and profound concern the disappointing standards of police investigation that seem to be the invariable norm. As early as 2003, the Report of Justice V.S. Malimath Committee on Reforms of the Criminal Justice System recorded that the manner in which police investigations are conducted is of critical importance to the functioning of the Criminal Justice System. Not only serious miscarriage of justice will result if the collection of evidence is vitiated by error or malpractice, but successful prosecution of the guilty depends on a thorough and careful search for truth and collection of evidence which is both admissible and probative. In undertaking this search, it is the duty of the police to investigate fairly and thoroughly and collect all evidence, whether for or against the suspect. Protection of society being the paramount consideration, the laws, procedures and police practices must ensure that the guilty are apprehended and punished with utmost dispatch and that the innocent are not harassed. The aim of the investigation and, in fact, the entire Criminal Justice System is to search for truth. The standard of police investigation in India remains poor and there is considerable room for improvement. The Bihar Police Commission (1961) noted with dismay that during the course of tours and examination of witnesses, no complaint had been so universally made before the Commission as that regarding the poor quality of police investigation. Besides inefficiency, the public complained of rudeness, intimidation, suppression of evidence, concoction of evidence and malicious padding of cases., Echoing the same sentiment in its Report No. 239 in March 2012, the Law Commission of India observed that the principal causes of low rate of conviction in our country, inter alia, included inept, unscientific investigation by the police and lack of proper coordination between police and prosecution machinery. Despite the passage of considerable time since these gloomy insights, they remain sadly true even today. This case is a point in point. A young boy in the first flush of youth was cruelly done to death and the wrongdoers necessarily had to be brought to book for the injustice done to him and his family. However, the manner in which the police tailored their investigation, with complete indifference to the essential norms in proceeding against the accused and in gathering evidence; leaving important leads unchecked and glossing over other leads that did not suit the story they had conceived; and ultimately failing to present a cogent, conceivable and fool‑proof chain of events pointing to the guilt of the appellants, with no possibility of any other hypothesis, leaves us with no option but to extend the benefit of doubt to the appellants. The higher principle of proof beyond reasonable doubt, especially in a case built on circumstantial evidence, must prevail. It is high time, perhaps, that a consistent and dependable code of investigation be devised with a mandatory and detailed procedure for the police to implement and abide by during the course of their investigation so that the guilty do not walk free on technicalities, as they do in most cases in our country., It is indeed perplexing that, despite the innumerable weak links and loopholes in the prosecution’s case, the Trial Court as well as the High Court were not only inclined to accept the same at face value but went to the extent of imposing and sustaining capital punishment on Rajesh Yadav and Raja Yadav. No valid and acceptable reasons were put forth as to why this case qualified as the rarest of rare cases, warranting such drastic punishment. In contrast, we find that the yawning infirmities and gaps in the chain of circumstantial evidence warrant acquittal of the appellants by giving them the benefit of doubt. The degree of proof required to hold them guilty beyond reasonable doubt on the strength of circumstantial evidence is clearly not established. On the above analysis, we allow the appeals and set aside the conviction and sentences of all three appellants on all counts. They shall be set at liberty forthwith, if their continued incarceration is not validly required in connection with any other case. Fine amounts paid by them, if any, shall be refunded within eight weeks from today.
id_1109	0	Appellant: Manvir. Respondent: State. Counsel for Appellant: From Jail. Counsel for Respondent: Additional Government Advocate. Honourable Suneet Kumar, Judge. Honourable Vikram D. Chauhan, Judge (Per: Honourable Vikram D. Chauhan, Judge). Heard Ms. Abida Syed, learned Amicus Curiae for the appellant and learned Additional Government Advocate for the State., The present jail appeal is filed by the appellant through the Senior Jail Superintendent, Agra against the judgment dated 5 December 2007 and sentence dated 6 December 2007 passed by the Second Additional Sessions Judge, Gautam Budh Nagar in Sessions Trial Number 497 of 2006 (State vs. Manvir) arising out of Case Crime Number 136 of 2006 under Sections 376 and 302 of the Indian Penal Code, Police Station Sector-49, Noida. The appellant Manvir has been convicted under Sections 376 and 302 of the Indian Penal Code. He is sentenced to ten years rigorous imprisonment and a fine of Rs. 5,000 under Section 376, and life imprisonment and a fine of Rs. 5,000 under Section 302., As per the legal proviso to Section 228A of the Indian Penal Code, it is not expedient to disclose the name of the victim in this case; she is referred to as the victim in the judgment., On 2 July 2006 at 6:15 a.m., a First Information Report was lodged by Sunil Singh, son of the late Kailash Singh, at Police Station Sector 49, Gautam Budh Nagar against the appellant Manvir under Sections 376 and 302 of the Indian Penal Code., The prosecution case, as per the First Information Report, states that the informant Sunil Singh was a tenant of Sri Rajendra Singh and was residing with his wife and mother. The mother, about 80 years old, was sleeping in an open space adjacent to the informant’s room on the night of 1–2 July 2006. The informant and his family were sleeping on the terrace. At about 12:00 midnight, the neighbour Manvir, son of Ram Prasad, was walking near the place where the mother was sleeping. At about 5:00 a.m., when the informant and his family (wife Renu Devi and son Deepak) came down, they saw Manvir washing blood stains with water and the door could not be opened. Deepak crossed the boundary wall and opened the door. Manvir, on seeing the informant’s family, ran away. The informant’s 80‑year‑old mother was found blood‑stained with her petticoat up to the knee level, and blood was coming from her private part. Manvir is alleged to have committed rape and killed the mother., On the basis of the First Information Report dated 2 July 2006, a case was registered as Case Crime Number 136 of 2006 under Sections 376 and 302 of the Indian Penal Code against the appellant Manvir., In pursuance of the First Information Report, investigation was carried out. The investigating officer prepared a recovery memo dated 2 July 2006 (Exhibit Ka‑7) for the recovery of a pillow, three bedsheets and a broom. The recovery was witnessed by Naresh Mahto, son of Ram Chandra, and Sushil Kumar Singh, son of Thakur Maheshwar Singh. The recovery memo was prepared by Investigating Officer Matadeen Verma (Prosecution Witness 5)., On 2 July 2006, the investigating officer recovered the underwear of the accused Manvir in the presence of Naresh Mahto and Sushil Kumar Singh. The recovery memo (Exhibit Ka‑8) recorded that the undergarment had blood stains., An inquest of the deceased was conducted on 2 July 2006 by Investigating Officer Matadeen Verma (Prosecution Witness 5) on the direction of Station House Officer Vishwajeet Singh. The inquest report (Exhibit Ka‑2) noted the injuries on the deceased., Station House Officer Vishwajeet Singh (Prosecution Witness 8) prepared a site plan of the place of occurrence on 2 July 2006., The post‑mortem of the deceased was conducted on 2 July 2006 at 4:30 p.m. by Dr. Madan Lal (Prosecution Witness 7). The injuries recorded were: (i) blackening over an area of 7 × 7 cm on the right side of the eye and face; (ii) bleeding and laceration around the vagina over an area of 20 × 20 cm; (iii) bite marks on the front of the left side of the neck over an area of 6 × 2 cm., After investigation, a charge sheet was submitted against the accused Manvir. The charge under Sections 376 and 302 of the Indian Penal Code was framed by the Second Additional Sessions Judge, Gautam Budh Nagar on 6 November 2006., The prosecution examined nine witnesses: Sunil Singh (Informant), Madan Lal, Vishwajeet Singh, Head Constable Intazar Ahmad, and others. Documentary evidence produced included the written report, Panchayatnama, medical forms, specimen seal, letter to the Chief Medical Officer, recovery memos, charge sheet, post‑mortem report, and site plan., Prosecution Witness 1, Sunil Singh, stated that he was living in a tenanted accommodation in the house of Rajendra Singh with his family. On the night of the occurrence his mother (the victim) was sleeping in the veranda outside his room, while he and his wife were sleeping on the terrace. At about 12:00 midnight he saw neighbour Manvir walking near his mother’s sleeping place. At 5:00 a.m., when he, his wife Renu Devi and his son Deepak came down, they saw Manvir washing blood stains from the floor and the door locked. The mother was found dead, blood‑stained, with her petticoat torn and blood oozing from the private part. Manvir attempted to run away but was caught. He was alleged to have raped and murdered the mother between midnight and 5 a.m., Prosecution Witness 2, Smt. Renu Devi, wife of Sunil Singh, testified that she was residing at Village Agdhapur in a tenanted accommodation of Rajendra Singh with her husband and family. On the night of 1–2 July 2006 her mother‑in‑law was sleeping in the veranda on the ground floor while the family slept on the terrace. At about 12:00 midnight neighbour Manvir was walking near the mother‑in‑law’s sleeping place. At 5:00 a.m. she came down and found blood on the floor and Manvir washing the stains. Manvir left the cleaning and entered his room, which he locked from inside. The mother‑in‑law was found dead with blood oozing from the private part and a bite injury on the cheek, leading her to believe she had been raped., Prosecution Witness 3, Deepak, son of Sunil Singh, stated that the deceased was his grandmother and that she was murdered on 2 July 2006. He identified his signature on the inquest report., Prosecution Witness 4, Anil, son of Rajendra Singh, stated that the incident occurred on 2 July 2006 and that he saw the body of the deceased. He identified his signature on the inquest report., Prosecution Witness 5, Sub‑Inspector Matadeen Verma, stated that on 2 July 2006 he was posted at Police Station Sector 49, Noida as Sub‑Inspector. On the direction of Station House Officer Vishwajeet Singh he prepared the Panchayatnama and the inquest report at the informant’s tenanted accommodation. He prepared the recovery memo (Exhibit Ka‑7) for the pillow, three bedsheets and a broom, all blood‑stained, and the recovery memo (Exhibit Ka‑8) for the accused’s underwear, also blood‑stained. He identified his handwriting and signature on these documents and sealed the recovered articles. He also sealed the dead body and sent it for post‑mortem through Constable Manjeet Singh., Prosecution Witness 6, Sub‑Inspector R. B. Kaul of Thana Dadri, Gautam Budh Nagar, stated that on 2 July 2006 he was posted as Station House Officer of Police Station Sector 49, Noida; on 3 July 2006 he received the pathology report of the deceased; on 8 August 2006 he recorded statements of Sub‑Inspector Matadeen Verma, Constable Manik Chand and Constable Manjeet Singh in the case diary; and on the same day he submitted the charge sheet against the accused Manvir (Exhibit Ka‑9)., Prosecution Witness 7, Dr. Madan Lal, Eye Surgeon at District Hospital Noida, Gautam Budh Nagar, stated that he conducted the post‑mortem of the deceased, aged about 80 years, on 2 July 2006 at about 4:30 p.m. The dead body was brought by Sipahi C.P. No. 777 Manik Chandra and C.P. No. 917 Manjeet Singh, Police Station Sector 49, Noida. He recorded the injuries described in Paragraph 11 and noted that the injuries were one day old and the death resulted from shock due to ante‑mortem injuries. The post‑mortem report is Exhibit Ka‑10., Prosecution Witness 8, Vishwajeet Singh, stated that on 2 July 2006 he took statements of First Information Report writer H. C. Intazar Ahmad, informant Sunil Singh and recorded them in the case diary; on his direction the inquest report was prepared by Sub‑Inspector Matadeen Verma and the body was sealed for post‑mortem; he arrested Manvir and recorded his statement; the accused’s underwear was recovered and the recovery memo prepared; he recorded statements of Smt. Renu Devi, Deepak and witness Tinku; on 6 July 2006 he recorded statements of Anil Kumar, Satveer Singh, Rajvir, Deepak, Naresh Mahto and Sushil Kumar; on 10 July 2007 he sent the recovered articles for forensic examination., Prosecution Witness 9, H. C. Intazar Ahmad, Police Station Sector 49, Gautam Budh Nagar, stated that on 2 July 2006, on information from Sunil Kumar, son of Kailash Singh, he prepared the First Information Report No. 105/06 in Case Crime No. 136/06 under Sections 376 and 302 of the Indian Penal Code and registered it. The FIR entry is Exhibit Ka‑12., In the present case, there are no eye witnesses of the occurrence; the incident occurred at night outside the informant’s room. The prosecution case is based on circumstantial evidence. The informant and his wife testified that the deceased was sleeping outside the informant’s room and that the accused Manvir was seen cleaning blood stains on the floor with a broom. They further stated that the accused entered his room and locked it., Section 8 of the Indian Evidence Act, 1872 provides that any fact showing motive, preparation, or previous or subsequent conduct of a party is relevant if it influences or is influenced by any fact in issue. The conduct of the accused is therefore relevant to the crime., The conduct of the accused, as described, is relevant because it relates directly to the commission of the crime. Previous or subsequent conduct can illuminate guilt or innocence, and in this case the accused’s actions after the alleged offence are indicative of guilt., It is noted that the broom used by the accused was recovered by the investigating officer and the recovery memo dated 2 July 2006 (Exhibit Ka‑7) shows that the broom was stained with blood. Sub‑Inspector Matadeen Verma proved the recovery memo and stated that the broom was recovered from the place of occurrence and was blood‑stained., The investigating officer also recovered a pillow from the place of occurrence. The pillow was blood‑stained. The recovery memo dated 2 July 2006 (Exhibit Ka‑7) records this recovery., The investigating officer further recovered three bedsheets from the place of occurrence. The bedsheets were blood‑stained. The recovery memo dated 2 July 2006 (Exhibit Ka‑7) records this recovery., The body of the deceased was sent by the investigating officer for post‑mortem examination. The post‑mortem was held on 2 July 2006 at 4:30 p.m. by Dr. Madan Lal (Prosecution Witness 7) at District Government Hospital, Noida, Gautam Budh Nagar. The post‑mortem report is Exhibit Ka‑10., The nature of the injuries indicates that the death was not natural. In the opinion of the doctor who conducted the post‑mortem, the deceased died as a result of shock due to ante‑mortem injuries., The investigating officer also prepared an inquest report of the deceased on 2 July 2006. The inquest was held at 7:15 a.m. The inquest report (Exhibit Ka‑2) was prepared by Sub‑Inspector Matadeen Verma and signed by him. The purpose of the inquest is to ascertain whether a person has died under unnatural circumstances and, if so, the cause of death., According to the Panch witnesses, the death was unnatural and resulted from injuries sustained after rape. The investigating officer concurred with the Panch witnesses. The deceased’s private part contained blood and bite injuries were observed on the cheeks, supporting the conclusion of rape prior to death., Prosecution Witness 1 (Sunil Singh) and Prosecution Witness 2 (Smt. Renu Devi) gave statements before the trial court describing the circumstances of the death and the injuries observed., The prosecution has brought on record the circumstantial evidence and medical evidence, including the conduct of the accused immediately after the alleged occurrence, which points towards the guilt of the accused. The prosecution has therefore proved its case beyond reasonable doubt., Learned counsel for the appellant submitted that there are no independent witnesses of the alleged crime and that the witnesses are relatives of the deceased, and therefore their testimony cannot be relied upon., A witness is normally considered independent unless he or she springs from sources likely to be tainted. A close relative is a natural witness and not automatically an interested witness. The Apex Court in Kartik Malhar v. State of Bihar (1996) 1 SCC 614 held that a close relative who is a natural witness cannot be regarded as an interested witness., The Supreme Court in State of Uttar Pradesh v. Samman Dass (1972) 3 SCC 201 observed that close relatives of a murdered person are often reluctant to spare the real assailant and may falsely implicate another person., In Khurshid Ahmed v. State of Jammu and Kashmir (2018) 7 SCC 429, the Supreme Court observed that there is no legal proposition that relatives are to be treated as untruthful witnesses; a plea of partiality must be specifically shown., The prosecution case is that the incident occurred at night inside a private house where the informant and his family and the accused were residing as tenants, making independent witnesses unlikely. Consequently, the related witnesses are natural witnesses and circumstantial evidence plays a vital role in establishing the truth., The court finds the testimony of the witnesses to be consistent and reliable and therefore rejects the appellant’s contention that the witnesses, being close relatives of the deceased, are interested and their evidence must be disbelieved., Counsel for the appellant argued that there is a difference in the injuries stated by the prosecution witnesses and the medical evidence. The court held that the injuries common to both accounts—bite injury on the cheeks and injury to the private part—indicate that the deceased was subjected to rape prior to death. Although the post‑mortem report does not explicitly mention rape, the nature of the injuries supports that conclusion, and the defence offered no contrary suggestion to the doctor., Counsel for the appellant contended that the First Information Report was lodged on the dictation of the Station House Officer at 6:15 a.m., whereas the witness stated it was scribed at 9:00 a.m. The court noted that the First Information Report dated 2 July 2006 (Exhibit Ka‑12) records information received at 6:15 a.m. and was lodged by Sunil Singh. The witness’s cross‑examination indicated that the report was scribed by Tinku on the Station House Officer’s directions at 9:00 a.m. The court held that assistance by the police officer in lodging the report does not undermine the prosecution case.
id_1109	1	It is to be noted that the officer concerned was not having the knowledge of the facts stated in the First Information Report and as such, he could not have in any manner changed the circumstances stated in the First Information Report. Insofar as the time when the First Information Report was lodged is concerned, as per the First Information Report, it was lodged at 6:15 am whereas as per the statement of Prosecution Witness No. 1, the information was lodged at 9:00 am. Prosecution Witness No. 1 has proved the First Information Report. It is to be noted that the witness was examined on 4 April 2007 and the cross‑examination was extended to 23 July 2007. A person who is subjected to long cross‑examination may not be able to describe the incident and the time as accurately by lapse of time and the same will not in any manner dislodge the prosecution case., It is submitted by counsel for the appellant that at the time of preparation of the inquest report, the First Information Report was not in existence. The inquest of the deceased was conducted on 2 July 2006 at 7:15 am. The inquest report was marked as Exhibit Ka‑2 before the trial court. The inquest report specifies the case crime number of the First Information Report and the date and time when the information was received at the police station. The object of the inquest proceedings under Section 174 of the Criminal Procedure Code is to ascertain whether a person had died under unnatural circumstances or unnatural death and, if so, what is the cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted her or under what circumstances she was assaulted is foreign to the ambit and scope of the proceedings under Section 174 of the Criminal Procedure Code. Mention of the name of the accused and the eyewitness in the inquest report is not necessary. Due to non‑mentioning of the name of the accused in the inquest report, it cannot be inferred that the First Information Report was not in existence at the time of the inquest proceedings., It is urged on behalf of the appellant that in the pathological report no spermatozoa was found and as such the prosecution story is not reliable. In the present case the circumstantial evidence as stated hereinabove points towards the guilt of the accused. It is further to be seen that in all cases the spermatozoa may not be traced. At times it happens that the accused is not able to commit the crime completely and in such a situation the spermatozoa may not be found. In a case where the slide is sent for examination with delay there are chances that the spermatozoa may not be found. In the present case Prosecution Witness No. 8 has stated that he had sent the slide for examination on 10 July 2007 to the Forensic Science Laboratory. Under the circumstances, if the spermatozoa is not found the same would not affect the prosecution case., It is further submitted on behalf of the appellant that the blood‑stained soil was not recovered by the Investigating Officer and as such the prosecution case is not trustworthy. Blood‑stained soil is recovered from the place of occurrence in order to establish the place of occurrence. The accused has not stated that the place of occurrence is somewhere else. The accused has not given suggestion to any of the witnesses that the occurrence took place at some other place. It is further to be seen that the Investigating Officer has prepared the site plan of the place of occurrence and the same was marked as Exhibit Ka‑11 before the trial court. The site plan was duly proved by Prosecution Witness 8. The site plan was prepared on 2 July 2006. Further, the witnesses of fact have also given detailed account of the place of occurrence and the circumstances which prove towards the guilt of the accused., It is submitted on behalf of the appellant that the informant and other witnesses of fact have stated that the accused was caught on the place of occurrence and was handed to the police whereas the Investigating Officer has arrested the accused from a petrol pump. The contradiction pointed out by counsel for the appellant with regard to the place and manner of arrest of the accused is without any force. In this respect, it is to be seen that the police try to show the arrest of the accused in order to enhance their service record. The contradiction pointed out will not demolish the prosecution case when there is other cogent and trustworthy evidence pointing towards the guilt of the accused., On the basis of the aforesaid facts and circumstances, the prosecution has proved its case beyond reasonable doubt. The allegations against the accused appellant under Sections 376 and 302 of the Indian Penal Code stand proved by the prosecution., We do not find any infirmity in the impugned judgement dated 5 December 2007 and sentence dated 6 December 2007 passed by the trial court convicting the accused appellant for offence under Sections 376 and 302 of the Indian Penal Code. The sentence awarded by the trial court is in accordance with law and needs no interference. As a result, the present appeal lacks merit and is dismissed., Registrar General of the High Court is directed to pay an honorarium of Rupees 20,000 to Ms. Abida Syed, learned Amicus Curiae for rendering effective assistance in the matter. Let the lower court record be transmitted back to the court below along with a copy of this order.
id_111	0	Case: Writ Petition (Civil) No. 7796 of 2023. Petitioner: Neha Singh. Respondent: State of Uttar Pradesh and two others. Counsel for Petitioner: Ram Janam Shahi, Pramod Kumar Yadav. Counsel for Respondent: Chief Standing Counsel Honourable Ajit Kumar, Judge., Heard Sri Atul Kumar, learned Advocate holding brief of Sri P. K. Yadav, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents., The petitioner, who is presently working as a Woman Constable in Uttar Pradesh Police, as per her own assessment of her personality characteristics, finds in herself all the traits of a male personality and has always an urge to develop nearness with females as opposed to her physical characteristics of a male. She claims to have a feeling of a male in herself trapped in a female body. Accordingly, she claims to be suffering from Gender Dysphoria. This has been diagnosed also by an authorized medical practitioner who runs a mind clinic at New Delhi after conducting psychological tests of her. The petitioner is admittedly an unmarried woman. In the circumstances, she is desirous of undergoing Sex Reassignment Surgery to get herself ultimately identified and personalized as a male with true male physical character., She traces this fundamental right of hers from the judgment of the Supreme Court of India in the case of National Legal Services Authority v. Union of India and Others, 2014 5 SCC 438, in which the Court dealt with the issue of transgender rights and the right of third gender, bringing under its umbrella all such persons in true perspective of the provisions contained under Chapter III of the Constitution of India relating to fundamental rights., The Supreme Court of India held that gender identity is integral to the dignity of an individual and is at the core of personal autonomy and self‑determination. The Court used the expression “third gender” over and above binary genders under our constitution and the laws. Referring to Articles 14, 15, 16, 19 and 21 as contained in Part III of the Constitution, the Court held that the provisions are also applicable to transgenders as well. The use of the words ‘person’, ‘citizen’, ‘sex’ under those articles are gender neutral and so evidently refer to human beings. The Court thus held that gender identity is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender. The Court finally concluded that any discrimination on the ground of sex or gender identity in terms of exclusion, restriction or preference or any other act in society that has the effect of giving a treatment that renders citizens who are third gender discriminated against deserves protection and emphasized safeguarding their constitutional rights., Elaborating further the rights of a citizen to have a gender of his or her choice, the Court addressed the core issue when for any genital defect it may be difficult for such a person; innate perception may be that of a female and so the actions and behaviour too even though a person was born as a male and could even be vice versa. The Court referred to scientific and psychological studies wherein behavioural science explorations showed mismatch in anatomical structure and psychological aspect of human nature, conduct and mindset. The Court observed that medical science has leapt forward to such an extent that even physiological appearance of a person can be changed through surgical procedures from male to female and vice versa., The Supreme Court of India discussed the principle of ‘right of choice’ as germane to the fundamental rights of liberty and to live with dignity in his or her own dignified way as a human. The Court stressed that respect for human rights is the root for human development and realisation of the full potential of each individual. For an individual, his dignity remains intact if his or her values of life are respected. For a person, including a third gender, what matters is that society has a space for him to have a dignified living. If a person's anatomical structure is coming in that person's way to live a happy and dignified life, the State is duty‑bound to give such a person adequate opportunity to have a personality of choice, a right well guaranteed under the Constitution. Citing two instances where males were transformed physically into females as published in the magazine “Eye” of the Sunday Indian Express (15 March 2014), the Court stressed the need to resolve identity crisis so that it may not become a lifelong trauma for an individual. The Court cautioned that deciding to undergo Sex Reassignment Surgery requires a strong mental state of affairs and is not an overnight process. The Court appreciated the statement of a person who had undergone Sex Reassignment Surgery as published in the article: “I am a person who likes to laugh. Till my surgery, behind every smile of mine, there was a struggle. Now it is about time that I laugh for real.” The struggle to be identified as a girl in a dignified way was over, she said. She never felt trapped any more and was ready to give her maximum to society. She had the freedom to live life in its fullness, a dream come true., The Supreme Court of India upheld the constitutional right of such an individual to get recognition as male or female. In paragraphs 105 and 106 the Court upheld these rights: “105. If a person has changed his or her sex in tune with his or her gender characteristics and perception, which has become possible because of the advancement in medical science, and when that is permitted by medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing Sex Reassignment Surgery. 106. For these reasons, we are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get recognition as male or female after Sex Reassignment Surgery, which was not only his or her gender characteristic but has become his or her physical form as well.”, In paragraph 12 the Supreme Court of India directed the States and the Union to frame appropriate legislation and issued a number of directions, reproduced hereunder: (1) Hijras, eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. (2) Transgender persons’ right to decide their self‑identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or third gender. (3) The Centre and the State Governments are directed to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. (4) The Centre and State Governments are directed to operate separate HIV Sero‑surveillance Centres since hijras and transgenders face several sexual health issues. (5) The Centre and State Governments should seriously address the problems being faced by hijras and transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc., and any insistence for Sex Reassignment Surgery for declaring one’s gender is immoral and illegal. (6) The Centre and State Governments should take proper measures to provide medical care to transgenders in hospitals and also provide them separate public toilets and other facilities. (7) The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. (8) The Centre and State Governments should take steps to create public awareness so that transgenders will feel that they are also part and parcel of social life and not treated as untouchables. (9) The Centre and the State Governments should also take measures to regain their respect and place in society which once they enjoyed in our cultural and social life., It is submitted by learned counsel for the petitioner that, in assailing the right to get Sex Reassignment Surgery done, the petitioner has applied for necessary sanction by an application dated 11 March 2023 made to the Director General of Police, Uttar Pradesh, Lucknow, but no decision has been taken in that regard to date., Learned counsel for the petitioner submits that, in view of the direction issued by the Supreme Court of India, respondents are not justified in withholding the application of the petitioner because even in the absence of any statutory provisions, authorities are bound to obey the command issued by the Supreme Court of India. He submits that, in this regard, the Central Government has also framed an Act, namely, the Transgender Persons (Protection of Rights) Act, 2019., He has drawn the attention of the Court toward Section 15 of the Central Act, which deals with health‑care facilities including Sex Reassignment Surgery and hormonal therapy. The relevant provisions of Section 15 of the Transgender Persons (Protection of Rights) Act, 2019 are reproduced hereunder: “15. Healthcare facilities. The appropriate Government shall take the following measures in relation to transgender persons, namely: (a) to set up separate human immunodeficiency virus Sero‑surveillance Centres to conduct sero‑surveillance for such persons in accordance with the guidelines issued by the National AIDS Control Organisation in this behalf; (b) to provide for medical care facilities including Sex Reassignment Surgery and hormonal therapy; (c) before and after Sex Reassignment Surgery and hormonal therapy counselling; (d) bring out a Health Manual related to Sex Reassignment Surgery in accordance with the World Professional Association for Transgender Health guidelines; (e) review of medical curriculum and research for doctors to address their specific health issues; (f) to facilitate access to transgender persons in hospitals and other healthcare institutions and centres; (g) provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons.”, Learned counsel for the petitioner has also relied upon a division‑bench order dated 4 July 2018 of the Bombay High Court in the case of Myra Grace Bandikalla (formerly known as Mr. Swaroop Rajarao Bandikalla) v. Airport Authority of India and Others (Writ Petition (L) No. 1976 of 2018), wherein an application made by a third gender was granted for the purpose of facilitating her visit to Bangkok for getting Sex Reassignment Surgery done. In that case the petitioner was suffering from gender dysphoria and was desirous of Sex Reassignment Surgery. The Court quoted paragraphs 105 and 106 of the Supreme Court of India judgment and passed an interim order, keeping the petition pending., Learned counsel has further placed reliance upon the judgment of the Rajasthan High Court in the case of Chinder Pal Singh v. The Chief Secretary, Government of Rajasthan, Government Secretariat, Jaipur and others (S.B. Civil Writ Petition No. 14044 of 2021 decided on 25 May 2023), in which a female gender wanted to undergo Sex Reassignment Surgery to get her gender identity changed from female to male, possibly for a gender identity disorder. In that case the application was granted for the purpose of Sex Reassignment Surgery taking reference to the provisions contained under the Central Act., One should not have any doubt that if a person suffers from gender dysphoria and, except for physical structure, feels the traits of the opposite sex so much that such a person experiences a complete misalignment of personality with physical body, such a person does possess a constitutionally recognised right to get his or her gender changed through surgical intervention. If modern society does not acknowledge this vested right, it would only encourage gender identity disorder syndrome. At times such a problem may be fatal as the person may suffer from disorder, anxiety, depression, negative self‑image, dislike of one’s sexual anatomy. If psychological interventions to alleviate such distress fail, surgical intervention should become a must and should be encouraged., In view of the above, I do not find any justification for the Director General of Police to withhold the application of the petitioner., Upon a pointed query made to the learned Standing Counsel as to whether the State Government has also framed any rules in the light of directions issued by the Supreme Court of India in the case of National Legal Services Authority, the learned Standing Counsel seeks time to obtain instructions in the matter., Let an appropriate affidavit be filed on behalf of the State Government as to whether it has also framed any such Act in compliance with the directions issued by the Supreme Court of India and, if so, the same may also be brought on record. However, it is provided that if any such Act or Rule has not been framed to date, the State Government will ensure to frame such an Act at par with the Central legislation referred to hereinabove and file a comprehensive affidavit in that regard as to what steps have been taken so far, by the next date fixed., Put this matter on 21 September 2023 in the list of top ten cases., In the meanwhile, the Director General of Police, namely the second respondent, is directed to dispose of the pending application of the petitioner strictly in the light of the judgments referred to hereinabove and file an affidavit of compliance annexing a copy of the order. The authority may ask for such material and documents so as to form a view that such an application really deserves consideration and must be based upon cogent material., The Registrar, Compliance, shall send a copy of this order to the Chief Secretary, Government of Uttar Pradesh.
id_1110	0	Date of Institution: 08.03.2022 Date of Order: 20.04.2022 In the case of (Name withheld) through his father, Applicant/Child in Conflict with Law (CICL), represented by Advocate Mr. Mir Tashveeq & Associates, Police Station Nowhatta, Srinagar (Non‑Applicants). Through Additional Public Prosecutor Mr. Zaffar Iqbal Shaheen. Case FIR No. 08/2022 of Police Station Nowhatta, Srinagar. Offences under Sections 326‑A of the Indian Penal Code. Application under Section 12 of the Juvenile Justice Act, 2015 seeking bail of the Child in Conflict with Law., The Applicant/Child in Conflict with Law (hereinafter referred to as Child in Conflict with Law) has filed this bail application stating that the Child in Conflict with Law was arrested in connection with FIR No. 08/2022 for the alleged commission of offences falling under Section 326‑A read with Section 120‑B of the Indian Penal Code by Police Station Nowhatta. The Applicant is a Child in Conflict with Law as defined by the Juvenile Justice (Care and Protection of Children) Act, 2015 because at the time of the alleged commission of the offence the Applicant had not attained majority. The date of birth certificate issued by the Srinagar Municipal Corporation indicates the date of birth as 20.09.2004. On 02.02.2022 the Applicant was arrested by the personnel of the above‑mentioned Police Station and since then has been languishing in Observation Home, Harwan, Srinagar. The principle of presumption of innocence is recognized as a fundamental principle by the Juvenile Justice Act, 2015 and accordingly it shall be presumed that the juvenile is innocent of any malafide or criminal intent. Therefore the Applicant has a right to be treated in accordance with this presumption. The Applicant is a student studying in Class 8 and his studies are being marred because of continued incarceration. Continuous confinement will be detrimental to his studies. A chance to learn in person at school will create a favourable environment for reformation and recreation. Allowing detention at this stage of the trial would drain a productive period of his life. Bail under the Juvenile Justice Act, 2015 is child‑centric and reformative; the object of the Act is to rehabilitate and reform the Child in Conflict with Law, not to penalise him. Therefore a chance should be given to the Applicant to become a model citizen. There is no likelihood that release on bail will bring him into association with any known criminal or expose him to moral, physical or psychological danger, nor will his release defeat the ends of justice. The family setting is best for the overall development of the juvenile. The welfare of the juvenile is of paramount importance and can be best served when the juvenile is placed in a friendly and caring environment provided by his family. The fundamental principles of the Juvenile Justice Act, 2015 provide that detention pending trial should be used only as a measure of last resort and for the shortest possible period. Section 12 of the Act is worded to ensure that children are released on bail at the earliest, irrespective of the nature of the offence. The grant of bail is the rule and rejection is the exception. The Applicant belongs to a family of modest means. The Applicant has no prior criminal record nor has been previously convicted for a cognizable offence. Therefore there is minimal possibility of the Applicant committing similar or other offences. The parents are determined to provide him with the best education and a nurturing atmosphere for his professional and personal development. Granting bail does not amount to acquittal; rather the Board transfers the alleged accused from the custody of law momentarily and entrusts him to the custody of sureties under the supervision of the Board, with the sureties bound to produce the Applicant before the Board to face trial. The parents are ready to abide by any terms and conditions imposed by the Board while granting bail under their supervision. Lastly, the instant application is prayed to be allowed., The learned Additional Public Prosecutor Mr. Zaffar Iqbal Shaheen has filed objections stating that the Child in Conflict with Law is involved in the commission of a non‑bailable offence and therefore cannot claim bail as a matter of right. The Child in Conflict with Law is involved in the commission of a heinous offence under Section 2(33) of the Juvenile Justice Act, 2015. The Child has committed and actively aided in the commission of this horrendous act which shows depravity of mind and cannot be treated as a child’s mistake during youth. It is a ghastly act done with passion to ravish the life of the victim. If released, the Child would be exposed to moral, physical or psychological danger and the prevailing rage in society against the offender could expose him to physical injury or mob‑lynching by relatives or friends of the victim or other anti‑social elements. His release would also defeat the ends of justice as the victim’s family would be psychologically affected. Further, it would embolden other delinquents to commit similar offences. The Child has lost parental control and therefore cannot be reformed or reintegrated by parental care, love or attention. Hence his safety and reformation can be possible only if he continues to be lodged at the observation home. The prosecution prays that the instant application be rejected in the interest of justice, equity and public order., Perusal of the final report of the case, as presented before this Board on 22.02.2022, shows that the investigating officer has concluded that the offences under Sections 326‑A and 120‑B of the Indian Penal Code are prima facie attributable to the Child in Conflict with Law. The case is listed before the Board for preliminary assessment in accordance with the mandate of the Juvenile Justice Act, 2015, with the next hearing on 04.05.2022., The Legal Cum Probationary Officer, Srinagar, associated with the District Child Protection Unit, submitted a Social Investigation Report stating that the Child in Conflict with Law was manipulated by the main culprit. He accompanied the main culprit to the spot of the offence. The main culprit, Sajid, asked the Child to accompany him, promising new clothes in exchange for throwing acid on the victim. The Child denied throwing the acid but agreed to accompany the main accused. The report recommends that the Child undergo strict and proper rehabilitation and be kept under stringent supervision., The case history submitted by the Probation Officer of Observation Home Harwan, Srinagar indicates that the Child lives in a nuclear family, is a student of Class 8, and that peer‑group influence, parental neglect and lack of moral and social education are basic reasons for his delinquency. The Child needs proper counselling and guidance, and the parents should also receive moral and ethical sessions to guide their child., The learned counsel for the Applicant reiterated that there are reasonable grounds to believe that the Applicant is innocent and not likely to commit any offence while on bail. Continuous detention of the child, given his tender age, may not serve any useful purpose for his growth and development. The Applicant will appear before the Board or any other court during the pendency of the investigation or trial, and his guardian shall look after him and keep him away from known criminals. A plain reading of Section 12 of the Juvenile Justice Act, 2015 shows that the legislature intends to grant bail to a juvenile irrespective of the gravity of the offence, and bail can be declined only where reasonable grounds exist that release would bring the juvenile into association with known criminals, expose him to moral, physical or psychological danger, or defeat the ends of justice. The counsel cited Jiya‑Uddin (Minor) v. State of U.P. & Anr, Criminal Revision No. 1234 of 2018, and Pradeep Kumar Vishwakarma v. State of U.P., Criminal Appeal No. 3526 of 2018., The learned Additional Public Prosecutor submitted that the Board should consider the Social Investigation Report prepared by the Probation Officer or Child Welfare Officer within fifteen days of the first production of the Child before the Board, to ascertain the circumstances of the alleged offence under Section 8(e). Rejecting a bail application solely on the basis of a police report should not be the norm; a wholesome view of the circumstances must be taken into account. The Board should also consider the third condition for denial of bail, namely that release would defeat the ends of justice, which means preserving a proper balance between constitutional or statutory rights of an individual and the rights of the people at large to have the law enforced. The Board must also consider the impact of granting bail on the victim’s family and society. The offence is heinous under Section 2(33) read with Section 15 of the Juvenile Justice Act, and the Child, being sixteen years of age, must undergo preliminary assessment under Section 15(1) to ascertain his ability to understand the consequences of the offence, as required by Section 14(3). The exception for heinous offences committed by juveniles aged sixteen to eighteen with mature mental capacity was introduced after the Nirbhaya case. The prosecution humbly submits that the bail application be rejected in the interest of justice., The Board perused the bail application, final report, objections filed by the Additional Public Prosecutor, the entire record, and considered the rival arguments advanced by counsel for the Applicant and the Additional Public Prosecutor. Social Investigation Report and case history prepared by probation officers were also examined. Various judgments of the Supreme Court of India and High Courts have laid down material considerations for granting or refusing bail to juveniles in non‑bailable offences, namely: the nature and circumstances of the case; balancing the liberty of the child against the larger interest of society and the State; the nature of the charge and its facts; the possibility of rehabilitation or reformation; exercising judicial discretion with utmost care; the peculiar facts and circumstances; the social position of the Child in Conflict with Law; and whether the grant of bail would thwart the ends of justice., The Fundamental Principles of Care and Protection of Children guaranteed under the Juvenile Justice (Care and Protection of Children) Act, 2015 read as follows: the child’s right to dignity and worth must be respected and protected throughout the entire process from first contact with law enforcement agencies to implementation of all measures; the principle of best interest of the child shall be the primary consideration in all decisions; all measures shall ensure that the child is safe and not subjected to any harm, abuse or maltreatment while in contact with the care and protection system and thereafter; and institutional care shall be a step of last resort after a reasonable inquiry., Testing against the totality of the foregoing principles, the peculiar facts and circumstances of the case, and considering the welfare of the child, although the offences are classified as heinous under the Juvenile Justice (Care and Protection of Children) Act, 2015, the liberty of the child must be balanced against the larger interest of society and the State. Bail to a juvenile shall be the norm and denial the exception, only if the case falls within one of the exceptions carved out in the proviso to Section 12(1) of the Juvenile Justice Act., The Board observed that a plain reading of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 indicates that the legislature intends to grant bail to children irrespective of the nature or gravity of the offence, and bail can be declined only on reasonable grounds. A juvenile must be released on bail unless the exceptions in the proviso to Section 12(1) are made out, namely: a reasonable ground for believing that release is likely to bring the juvenile into association with any known criminal; release is likely to expose him to moral, physical or psychological danger; or release would defeat the ends of justice., The prosecution alleges that on 01.02.2022 at about 17:30 hours, an unknown person or persons threw acid over the face of an unidentified girl at Usmania Colony, Wantpora, Nowhatta. FIR No. 08/2022 under Section 326‑A was registered. Investigation revealed a well‑planned criminal conspiracy between the main accused Sajid Altaf Rather (A‑1), his associates Mohammad Saleem Ali (A‑2) and the Child in Conflict with Law. The motive was to teach the victim a lesson for rejecting the marriage proposal of the main accused. The main accused obtained sulphuric acid from an associate and threw it on the victim’s face, with the Child accompanying him on a scooter. After the act, the Child returned with the main accused and did not inform anyone, indicating participation in the conspiracy. All three accused are residents of the same locality and well known to each other, reinforcing the meeting of minds., Bail in the instant case can be refused on the ground that release of the Child in Conflict with Law at this juncture would defeat the ends of justice. The ends of justice have been interpreted by courts in various ways, but the overarching consideration is the interest of society as a whole. While the merits of the case or prima facie tenability of the charge are not the sole determinants of bail, the gravity of the charge, manner of its perpetration, circumstances of the alleged offence, its impact on society and the aggrieved family are relevant under the last disentitling clause of the proviso to Section 12(1). Defeat of the ends of justice is intended to empower the Board to deny bail where release would adversely impact law and order and societal equilibrium., The Supreme Court of India in Essa @ Anjum Abdul Razak Memon v. State of Maharashtra (2013) (13) SCC 456 provided guidance on the term ‘ends of justice’. It observed that the phrase refers to the best interest of the public within the statute, preserving a proper balance between constitutional or statutory rights of an individual and the rights of the people at large to have the law enforced, and does not denote vague notions of justice., In the instant case, the Applicant’s accompaniment of the main accused and his post‑occurrence behaviour indicate that he requires the highest degree of reformation to understand societal norms and laws. Release on bail at this stage would not serve the ends of justice; his placement at Observation Home, Harwan, Srinagar is in his best interest as he has shown signs of reformation., Consequently, the Board is not inclined to grant bail to the Applicant at this stage. Considering the nature and gravity of the allegations and overall circumstances, the Board is of the opinion that release on bail would defeat the ends of justice. The instant bail application is therefore dismissed and shall be attached to the final report of the case., Any observation made hereinabove is confined to the disposal of this bail application and shall not affect the enquiry pending before the Board with respect to the Applicant, which will be conducted in accordance with the general principles of care and protection of children envisaged under Section 3 of the Juvenile Justice Act, 2015. Disposed off.
id_1111	0	The Supreme Court Collegium has recommended the name of Shri Justice Rahul Bharti, Additional Judge, for appointment as permanent Judge of the High Court of Jammu & Kashmir and Ladakh in the following terms: On 21 August 2023, the Collegium of the High Court of Jammu & Kashmir and Ladakh unanimously recommended the name of Shri Justice Rahul Bharti for appointment as permanent Judge of that High Court. In terms of the Memorandum of Procedure, the Judges of the Supreme Court conversant with the affairs of the High Court of Jammu & Kashmir and Ladakh were consulted with a view to ascertain the suitability of Shri Justice Rahul Bharti for being appointed as permanent Judge. A Committee of two Judges of the Supreme Court constituted by the Chief Justice of India in terms of the Resolution dated 26 October 2017 of the Supreme Court Collegium has assessed the judgments of Shri Justice Rahul Bharti. The Committee has rated the quality of his judgments as Good and fairly reasonable. With a view to assess the merit and suitability of Shri Justice Rahul Bharti for appointment as permanent Judge, we have scrutinized and evaluated the material placed on record. Having taken into consideration all aspects of the matter, the Collegium is of the view that Shri Justice Rahul Bharti, Additional Judge, is fit and suitable for being appointed as permanent Judge. In view of the above, the Collegium resolves to recommend that Shri Justice Rahul Bharti, Additional Judge, be appointed as permanent Judge of the High Court of Jammu & Kashmir and Ladakh against one of the existing vacancies.
id_1114	0	Khadi & Village Industries Commission, Applicant / Plaintiff, Board of Trustees, Mumbai; Khadi and Village Industries Association, Respondent / Defendant; Dr. Birendra Saraf, Senior Advocate as well as Ms. Shwetasree Majumdar, Ms. Shreya Ganguly and Mr. Jay Sanklecha in behalf of Bimal Rajasekhar for Applicant / Plaintiff. Mr. Venkatesh Dhond, Senior Advocate as well as Mr. Rashmin Khandekar, Ms. Karishni Khanna, Mr. Atmaram Patade, Ms. Mohini Thorat and Mr. Suraj Naik in behalf of Mr. Atmaram Patade for Respondent / Defendant., The plaintiff, Khadi and Village Industries Commission, a statutory Commission, has approached the Supreme Court of India by filing this suit and application for interim reliefs in the context of its registered trademark KHADI and its variants. The plaintiff has placed on record in paragraph 10 of the plaint the details of various registrations pertaining to the trademark KHADI, which include word mark, device mark and label mark in various classes. The plaintiff alleges that by using the impugned marks, the defendant has indulged in infringement and passing‑off. The plaintiff prays for interim reliefs in respect of both the causes of action., Dr. Birendra Saraf, learned senior counsel appearing for the applicant / plaintiff, invited the attention of the Supreme Court of India to the pleadings in the plaint, as well as the application and the documents placed on record. It was submitted that the registration of various trademarks of the plaintiff dates back to the year 2014 onwards and that the user dates back to September 1956. It is submitted that the trademarks of the plaintiff are identified with quality khadi products, not limited to textile products. The plaintiff claims that the products bearing the registered trademarks of the plaintiff have come to be recognized as a guarantee for high‑quality khadi products. It is also brought to the notice of the Supreme Court of India that the registered trademark KHADI of the plaintiff is included in the list of well‑known trademarks by the Office of the Registrar of Trademarks., Learned senior counsel referred to the provisions of the Khadi and Village Industries Commission Act, 1956 (KVIC Act) to submit that the establishment of the plaintiff Commission under the KVIC Act was intended to ensure quality control of khadi products and to encourage use and spread of the same throughout the country. By referring to Section 2(d), which defines khadi, and to Section 15 of the KVIC Act, it was submitted that the plaintiff Commission is required to perform various functions to ensure the development and operation of khadi and village industries, which also helps generate employment in rural areas. Learned senior counsel also referred to Section 22 of the KVIC Act to submit that all contracts and matters connected with its predecessor were transferred to the plaintiff Commission upon enactment of the KVIC Act., Learned senior counsel further submitted that the defendant, in the present case, has been using the impugned marks consisting of the word KHADI and the depiction of the Charkha logo in conjunction with its name, which infringes the word mark, label mark and device mark registered in favour of the plaintiff. It is stated in the plaint that in December 2021 the plaintiff discovered the use of the impugned marks by the defendant. It was shocking for the plaintiff Commission because, till recently, the defendant was operating in the market to sell khadi products on the basis of a certification issued by the plaintiff in exercise of powers under the KVIC Act. According to the plaintiff, this is not the first litigation instituted between the parties, as the plaintiff was constrained to file Suit (L) No. 16451 of 2021, with application for interim reliefs against the defendant, alleging that the defendant had indulged in infringement and passing‑off by selling khadi products, despite suspension of the certificate and subsequent withdrawal of the same by the plaintiff under the KVIC Act., It was submitted that the aforesaid suit was withdrawn on the basis of a solemn statement made on behalf of the defendant that it was not selling any products called, labelled or described as KHADI and on an undertaking that the defendant would not sell any KHADI product without a certificate from the plaintiff. It was further submitted that the actions of the defendant not only infringed the registered trademarks of the plaintiff, but the adoption of the impugned mark was dishonest and contrary to the solemn undertaking given to the Supreme Court of India in the aforementioned suit. The plaintiff was also required to file Suit (L) No. 4255 of 2022 for recovery and possession of the premises from where the defendant is operating and also for damages. The said suit is pending. It is brought to the notice of the Supreme Court of India that in the said suit a prayer was made to seek an order restraining the defendant from using in any manner the name and style Mumbai Khadi and Village Industries Emporium and selling any cloth or products in the name of Khadi, but subsequently the prayer was withdrawn. On this basis, it was submitted that the pending suit concerned a cause of action different from the one being pressed in the present suit., Learned senior counsel emphasized sub‑sections (4) and (5) of Section 29 of the Trademarks Act, 1999, to contend that when a person who is not a registered proprietor uses a mark as part of its corporate name, it amounts to infringement of the registered trademark. It was submitted that therefore, not only is the defendant prevented from selling any products using the name Khadi, it cannot use the word in its corporate name. It was further submitted that the requirement of taking a certificate from the plaintiff under the provisions of the KVIC Act for selling Khadi products is akin to the issuance of a licence and, upon the certificate being withdrawn, the defendant cannot be permitted to use the registered trademark of the plaintiff. In support of the proposition, learned senior counsel for the plaintiff relied upon the judgment of the Delhi High Court in Helamin Technology Holding Sa and another v. Haribansh Rai and others (2016) 65 PTC 452 and the judgment of the Supreme Court of India in Velcro Industries B.V. and another v. Velcro India Limited (1993) 1 Arb LR 465., It was further submitted that the defendant was not justified in claiming that the word khadi is generic or descriptive in nature, because the defendant itself had applied for registration of the word KHADI. It was also submitted that the claims of prior use on behalf of the defendant are not well founded and that, in view of the undertaking given to the Supreme Court of India, recorded in the aforementioned order, and the statutory scheme of the KVIC Act, the defendant cannot claim the benefit of Section 34 of the Trademarks Act. Learned senior counsel submitted that the statement made before the Supreme Court of India that the defendant was not selling any textile item was obviously false, in light of two kurtas purchased with invoices issued by an outlet of the defendant, produced during the arguments. He emphasized that the defendant, who had made false statements before the Supreme Court of India, does not deserve any indulgence and that the application for interim relief deserves to be allowed., Mr. Dhond, learned senior counsel appearing for the defendant, submitted that the claims made on behalf of the plaintiff, based on the elaborate certificates of registration for trademark, label mark and device mark, were of no consequence because the defendant had placed on record sufficient material in the form of annual reports, etc., to show prior use of the word KHADI by the defendant from the year 1946. It was submitted that even if the registration certificates issued in favour of the plaintiff recorded user since September 1956, the material on record clearly indicated that the defendant was a prior user and therefore protected under Section 34 of the Trademarks Act. In support of this proposition, learned senior counsel for the defendant relied upon the judgment of the Supreme Court in S. Syed Mohideen v. P. Sulochana Bai., It was further submitted that the contentions raised on behalf of the plaintiff by relying upon the provisions of the KVIC Act were misplaced in the present suit, which is purely a suit based on the registered trademark held by the plaintiff and alleged infringement as well as passing‑off by the defendant. In such a suit concerning infringement and passing‑off, there is no place for claiming relief on the basis of the statutory scheme envisaged under the KVIC Act. It was also submitted that the definition of khadi given in Section 2(d) of the Act concerns only cloth and no other product. According to the learned senior counsel appearing for the defendant, reliance on Section 22 of the KVIC Act was also misplaced because a proper reading would show that the liabilities and obligations inherited by the plaintiff from its predecessor concerned all matters undertaken by the predecessor for or on behalf of the Central Government., As regards the undertaking recorded on behalf of the defendant in the order dated 21 September 2021 in the earlier suit bearing Suit (L) No. 16451 of 2021, it was submitted that the undertaking was given in the context of the pleadings in that suit and could not be read in a wide manner outside those pleadings. It was submitted that the defendant was abiding by the undertaking and that if the plaintiff had any grievance, the proper remedy was to file an application under Section XXXIX, Rule 2A of the Code of Civil Procedure, 1908 in the disposed suit. It was further submitted that the plaintiff had not come clean before the Supreme Court of India as the suit bearing Suit (L) No. 4255 of 2022, concerning recovery and possession of premises, was not brought to the notice of the Court, particularly the fact that prayer clause (c) therein was deleted. It was submitted that the defendant, having been in existence since 1946, has outlets in various places and the plaintiff cannot claim exclusivity to completely shut down the business of the defendant, particularly when it has failed to make out a strong prima facie case in its favour., As regards the plaintiff having produced two cloth items purchased from the outlet of the defendant, an additional affidavit was relied upon, wherein it was stated that the statement was inadvertently made by the counsel appearing for the defendant. It was submitted that the defendant is selling textile products, but it is abiding by the undertaking given to the Supreme Court of India by placing a specific disclaimer on its outlets stating, 'In this shop we do not sell any products as Khadi or under the Khadi Mark.' By placing much emphasis on the aspect of prior use, it was submitted that the present application deserved to be dismissed., The Supreme Court of India has considered the elaborate submissions made on behalf of the rival parties, in the backdrop of the material placed on record. There is no dispute that the plaintiff holds a number of registrations in various classes, which include trademark, label mark and device mark concerning the word KHADI. The applications date back to the year 2014 onwards and the user in all of them is claimed from 25 September 1956. It appears that the user dates back to the establishment of the plaintiff Commission under the KVIC Act. There can also be no serious dispute that the impugned marks used by the defendant contain the word KHADI and a depiction of the Charkha, which is similar to the device mark of the plaintiff depicting the Charkha. On the face of it, the defendant cannot dispute that the prominent, essential, fundamental and substantial features of the registered trademarks of the plaintiff are copied in the impugned marks of the defendant. This would ordinarily satisfy the requirement of demonstrating a prima facie case as regards infringement and passing‑off., However, the defendant has specifically relied upon Section 34 of the Trademarks Act to oppose the exclusive rights claimed by the plaintiff on the basis of its registration certificates. The defendant relies upon documents filed with the reply affidavit to claim that annual reports of the defendant, dating back to 1946, demonstrate prior use of the word KHADI by the defendant, thereby protecting the defendant from any infringement action initiated by the plaintiff on the strength of the registration certificates. A perusal of the copies of the annual reports shows that the contention is attractive at first blush, but when appreciated in the context of the other material on record, it appears that the defendant cannot escape the consequence of using a similar or deceptively similar mark by taking recourse to Section 34 of the Trademarks Act., In this context, the earlier suit filed by the plaintiff, Suit (L) No. 16451 of 2021, against the defendant assumes significance. A perusal of the plaint in that suit shows that the plaintiff elaborately pleaded about the grievance against the defendant, particularly the attempt by the defendant to mislead customers into believing the products were KHADI products. The plaintiff emphasized that the trademark KHADI was associated with products and services provided by the plaintiff and that the defendant's action amounted to encashing upon the reputation and goodwill of the plaintiff in respect of its national and global presence with various products bearing the registered trademark KHADI. The prayers in that plaint show that the plaintiff sought an injunction restraining the defendant from dealing with khadi products, as well as an injunction restraining the defendant from using the trademark KHADI or logo owned by the plaintiff, apart from prayers pertaining to passing‑off. It is against this backdrop that the undertaking given on behalf of the defendant in that suit, recorded in the order dated 21 September 2021, becomes important. The undertaking reads as follows: The defendant, through counsel Mr. Dwarkadas, stated that the defendants are not selling any products called, labelled, or described as Khadi and agreed that the defendants will not sell any Khadi product without a certificate from the appropriate authority. The statement was noted. The defendants' application for a certificate or renewal of certificate will be considered by the plaintiffs on merits, uninfluenced by the order., A perusal of the quoted undertaking shows that the defendant represented before the Supreme Court of India that it was not selling any product called, labelled or described as KHADI and it agreed not to sell any KHADI product without a certificate from the plaintiff. Therefore, it becomes clear that the defendant cannot now rely upon the definition of the term khadi in Section 2(d) of the KVIC Act as being limited to cloth or textile. For the same reason, reliance on its annual reports from 1946 onwards cannot be of much avail, as the reports primarily pertain to cloth products of KHADI, with marginal reference to other products. In fact, the reference to other products is in the context of the word Kora. This must be appreciated in the context that the defendant itself approached the plaintiff for certification in order to sell KHADI products. The defendant was selling KHADI products pursuant to such certificate issued by the plaintiff. It was only when complaints were received that the defendant was indulging in the sale of textile and cloth products containing polyester and not khadi material that the plaintiff was constrained to first suspend the certificate and then withdraw the same., The attempt by the defendant to continue selling KHADI products by infringing the registered trademark of the plaintiff and in the absence of such certification, contrary to the statutory scheme under the KVIC Act, were the reasons why the plaintiff filed the earlier suit in which the undertaking was recorded. This does not mean that either the earlier suit or the present suit is based solely on statutory rights under the KVIC Act, which the plaintiff is seeking to assert. Even if the present suit is purely based on the cause of action of infringement and passing‑off pertaining to the registered trademark of the plaintiff, it must be appreciated in the backdrop of the defendant having sought certification for selling KHADI products and later having suffered suspension and withdrawal of the certificate. For this reason, the order dated 21 September 2021 recorded that the defendant's application for a certificate or renewal of its certificate would be considered by the plaintiff on merits, uninfluenced by the order. It is a matter of fact that the renewal of the certificate was rejected., The Supreme Court of India is of the opinion that in such circumstances, prima facie, the plaintiff has made out a strong case in its favour for protection of its proprietary rights as regards the registered trademark and the defendant cannot avoid an interim injunction by relying upon Section 34 of the Trademarks Act. It is also significant to note that the plaintiff holds registration for its word mark KHADI, label mark and device mark for a plethora of classes, not limited to cloth or textile products., There is also no substance in the contention raised on behalf of the defendant that the plaintiff ought not to be granted an interim injunction because it had suppressed filing of Suit (L) No. 4255 of 2022 and because a prayer akin to the prayers made in the present suit was deleted, simply because the cause of action of that suit is clearly distinguishable and pertains to recovery and possession of the premises of the defendant., On the contrary, the material placed on record during the arguments on behalf of the plaintiff, in the form of two kurtas purchased on the date of the hearing along with invoices issued by the outlet of the defendant, demonstrates dishonesty and falsity on the part of the defendant. Although the additional affidavit placed on record by the defendant states that the counsel appearing for it inadvertently made a statement that it was not selling any textile products, such explanation cannot assist the defendant. The Supreme Court of India has perused the invoices dated 7 December 2022 issued by the outlet of the defendant and the two kurtas, i.e., cloth products, which use the word KHADI and display the Charkha device with the word KHADI, thereby demonstrating that the defendant's actions are dishonest. The defendant cannot escape by contending that the plaintiff would be at liberty to move an application under Order XXXIX, Rule 2A of the Code of Civil Procedure if there is a violation of the undertaking recorded in the order dated 21 September 2021 in Suit (L) No. 16451 of 2021, because the conduct and dishonesty of the defendant is a factor that the Supreme Court of India can consider while deciding the present application., There is substance in the contention raised on behalf of the plaintiff, by relying on Sections 29(4) and 29(5) of the Trademarks Act, as the use of the word KHADI, which is the prominent, essential, fundamental and substantial feature of the plaintiff's registered trademark, in the corporate name of the defendant, prima facie amounts to infringement and passing‑off., Reliance placed on the judgment of the Supreme Court in S. Syed Mohideen v. P. Sulochana Bai (supra) on behalf of the defendant can be of no avail, in view of the findings rendered above regarding the defendant's claim based on Section 34 of the Trademarks Act., The reliance placed by the plaintiff on the judgments in Helamin Technology Holding Sa and another v. Haribansh Rai and others (supra) and Velcro Industries B.V. and another v. Velcro India Limited (supra) need not be dealt with at this stage, because the Supreme Court of India, by application of Section 29(5) of the Trademarks Act, is prima facie convinced that the defendant cannot use the word KHADI in its corporate name., The Supreme Court of India is of the opinion that unless the defendant is temporarily restrained from further indulging in such conduct, the plaintiff will suffer grave and irreparable loss, indicating that the balance of convenience is also in favour of the plaintiff., In view of the above, the interim application is allowed in terms of prayer clauses (a) and (b), which read as follows: (a) Pending the hearing and final disposal of the suit, an injunction restraining the Defendant its partners, servants, representatives, agents and all others acting for and on its behalf from manufacturing, selling, offering for sale, advertising directly or indirectly or providing any kind of goods and/or services under the mark KHADI, either as a word or as part of its trademark or logos, including but not limited to the logo and/or any mark identical or deceptively similar to the Plaintiff's registered KHADI trademarks and Charkha logos, and/or using the mark KHADI or a deceptively similar variant thereof as a part of its trade name/business name including but not limited to Khadi Gramodyog Bhandar, Mumbai Khadi & Village Industries Association and Mumbai Khadi Gramodyog Sandh Sachalith or any other mark which amounts to an infringement of the Plaintiff's registered trademarks; (b) Pending the hearing and final disposal of the suit, an injunction restraining the Defendant, its partners, servants, representatives, agents and all others acting for and on their behalf from manufacturing, selling, offering for sale, advertising, directly or indirectly providing any kind of goods and/or services under the trademark KHADI either as a word or as a part of any of its trademark, trade name or logos including but not limited to the logo, and/or any mark identical or deceptively similar to the Plaintiff's KHADI trademarks and Charkha logos, in a manner as may amount to passing off of the Defendant's goods, services and business as those of the Plaintiff's., Application is disposed of., Upon the order being pronounced, learned counsel appearing for the defendant sought a stay of the order for a limited period in order to facilitate the defendant in challenging the order., The said prayer is rejected for the reason that in the order passed today, the Supreme Court of India has found the conduct of the defendant to be dishonest.
id_1116	0	High Court of Himachal Pradesh Criminal Miscellaneous Petition (M) No. 1425 of 2023 Reserved on 26 June 2023 Decided on 24 July 2023 Dr. Nadeem Akhtar Applicant versus State of Himachal Pradesh Respondent Coram Hon’ble Mr. Justice Virender Singh, Judge. For the applicant: Mr. Adarsh K. Vashishta, Advocate. For the respondent: Mr. H. S. Rawat and Mr. Tejasvi Sharma, Additional Advocates General, with Ms. Leena Guleria and Ms. Avni Kochhar Mehta, Deputy Advocates General, for the respondent‑State. Mr. Ashok Sharma, Senior Advocate, with Mr. Onkar Jairath, Mr. Jyotirmay Bhatt, Mr. Ankit Dhiman, Mr. Gaurav Kaushal, Mr. Sushmit Bhatt and Mr. Shyam Singh Chauhan, Advocates, for the complainants. ASI Kuldeep Singh, Investigating Officer, Police Station Mehatpur, District Una, Himachal Pradesh., The applicant, Dr. Nadeem Akhtar, has filed the present application under Section 438 of the Code of Criminal Procedure. By way of the present application, the applicant seeks the indulgence of this Court to direct the Police/Investigating Officer of Police Station Mehatpur, District Una, to release him on bail in the event of his arrest in FIR No. 54 of 2023 dated 3 June 2023, registered under Section 295‑A of the Indian Penal Code., The applicant is a qualified ophthalmologist running a private clinic at Mehatpur. He has been residing in the area for more than twenty years and renders services as a doctor. He states that he is a law‑abiding citizen who holds all religions in high estimation and respects them equally., It is the case of the applicant that a false FIR has been registered against him, whereas he is completely innocent and has nothing to do with the allegations levelled against him. The applicant apprehends his arrest in the above‑mentioned case, fearing hardship to himself and his family and damage to his reputation and goodwill as a doctor and law‑abiding citizen. He terms the contents of the FIR as based upon misconception., The applicant has given certain undertakings, which he is ready to abide by, in case directions under Section 438 CrPC are issued to the Police/Investigating Officer. On this basis, Mr. Adarsh K. Vashishta, learned counsel for the applicant, has prayed that the bail application may be allowed., When put to notice, the police filed a status report on 8 June 2023 disclosing that a complaint was received on 3 June 2023 from the SP Office, Una. The complaint was moved by Shri Vivek Bhardwaj, Ex‑Councillor, Ward No. 4, Mehatpur Basdehda; Deepak Diwedi, Chairman, Vyapaar Mandal Mehatpur Basdehda; and Subhash Arey, President, Vyapaar Mandal Mehatpur Basdehda. The complaint alleged that the applicant, who runs an eye hospital named Eshan Hospital, posted derogatory comments on Facebook against Bhagwan Bhole Shankar and Shivling., The complainant stated that the applicant is habitual in posting such type of posts on his Facebook account and that his act outraged religious feelings. The complainants also mentioned that the applicant later claimed that his Facebook ID had been hacked. Considering his posts, his activities were said to be under suspicion., The complaint requested a thorough investigation to determine whether the applicant was associated with any anti‑national activities. The complainants further alleged that in the Facebook post/comment the applicant insulted Nandi, the bull on which Lord Shiva rides, causing resentment among persons residing in nearby villages., On the basis of the complaint, the police registered FIR under Section 295‑A IPC. During investigation, the police took print‑outs of screenshots of the applicant’s Facebook ID. In the screenshot of the first page, an ox was shown licking the Shivling, upon which the applicant commented: ‘Are par wahan mila kya murkhon ye to bata do apne bachchon ko. Bata do baba nahin babaji ka mil gaya. Jab ye bachche kabhi bahar jayenge to inhi ke dost inka mazaak udayenge ki tumhare desh mein to ling is king. Saari duniya mein ye nautanki karke bhartiyo ko hansi ka patra bana diya. Dharm ki kuch baatein dabi chupi rehti hain wahin achcha hai. Ye saari nautanki se sari duniya ab hum par hansegi.’, On the second page, the applicant was stated to have made the following post: ‘Gaubar aur gaumutra ki aapar safalta ke baad andhbhakton ke liye pesh hai Naya brain tonic Gadhe ki lehd.’ The third page showed the URL of the applicant’s Facebook ID., The police initially recorded statements of witnesses and attempted to locate the applicant, but he was not found. The police reported that on 5 June 2023 a rally was organized in Mehatpur Bazar and the effigy of the applicant was burnt. Similar demonstrations were held on 8 June 2023 in Una Bazar., After perusing the status report, interim protection was granted to the police to release the applicant on bail in the event of his arrest. On 16 June 2023 the police filed a supplementary status report stating that on 13 June 2023 the applicant was released on bail as per the directions of this Court., The status report noted that on 15 June 2023 demonstrations were made against the applicant by Hindu Ekta Manch and Vyapaar Mandal, Mehatpur. The matter was adjourned to 26 June 2023. On that day the police filed another supplementary status report indicating that, based on the High Court of Himachal Pradesh’s statements, Sections 153‑A and 505(2) IPC were added to the case., The applicant disclosed that he created a Facebook ID in his own name and has been using it for a considerable time. He claimed ignorance when shown a second screenshot. He stated that the comment about ‘gobar and gaumutra’ was made on his Facebook account on 17 December 2020 at about 3.06 p.m. His mobile phone was seized and sent for analysis to the Forensic Science Laboratory, Dharamshala on 18 June 2023; the report is still awaited., On 20 June 2023 a Special Investigation Team was constituted under the leadership of ASI Kuldeep Singh. The investigating officer seized ten coloured screenshots and one pen drive submitted by the complainants., The seized material contained screenshots of the applicant’s Facebook profile, including pages with comments outraging religious feelings and eight pages with indecent comments on leaders. The pen drive was said to contain a post for which the applicant had expressed regret., On 21 June 2023 the applicant informed the police that his Facebook account had been hacked or that a fake ID had been used to post the derogatory comments on Nandi and Shivling., On 22 June 2023 the applicant’s Facebook friend, Sanjeev Kumar, submitted five screenshots confirming that the applicant had made derogatory comments on Nandi, Bhagwan, and Shivling. On 23 June 2023 C. Ajay Kumar of the Cyber Cell submitted a printout of the applicant’s mobile phone showing that the applicant had searched on Google how to delete Facebook history from mobile and how to modify screenshots of Facebook comments., The investigating agency sent a letter dated 19 June 2023 to the organizer of Meta Platforms requesting registration details of the applicant’s Facebook ID, mobile number linked to the account, and IP details. The report is still awaited., The police contend that the applicant’s act of insulting religious feelings has created resentment in the area and led to demonstrations. They apprehend that if the interim order is made absolute, the locality may indulge in aggressive demonstrations, possibly resulting in ethnic disputes, and that the applicant, being influential, may coerce witnesses or become unavailable for trial., Mr. Tejasvi Sharma, Additional Advocate General, and Mr. Ashok Sharma, Senior Counsel, assisted by Mr. Onkar Jairath, counsel for the complainants, have prayed for the dismissal of the bail application., The applicant has been named as accused in a case registered under Sections 295‑A, 153‑A and 505(2) IPC. While he has cooperated with the investigation, the allegations that he posted derogatory comments on his Facebook account, hurting religious sentiments, are serious. As an educated person, he is aware of the effect of such posts and should have exercised caution. While deciding bail, this Court must balance individual liberty with societal interest. The police apprehensions regarding law and order cannot be said to be unfounded. Allowing bail would send a wrong signal and could encourage similar conduct, affecting the secular fabric of the country., Considering the facts and the ramifications of the offences, this Court is of the view that the applicant is not entitled to any relief under Section 438 CrPC. Consequently, the bail application is dismissed. Any observations made herein shall not be taken as an expression of opinion on the merits of the case, as they are confined to the disposal of the present bail application. Record be returned to the quarter concerned. (Virender Singh) Judge 24 July 2023.
id_1117	0	Judgment reserved on 15 November 2022 and pronounced on 9 February 2023. The petition was filed through Ms. Rebecca John, Senior Advocate, assisted by Mr. Rony John, Mr. Shivam Batra, Mr. Akhil Ranganathan, Mr. Subir Sarkar, Mr. Ankit Bhushan, Mr. Arshdeep Singh, Mr. Aditya Luthra, Mr. Piyush Swami and Mr. Anuj Dubey, Advocates, versus the Respondent through Mr. Zoheb Hossain, Advocate, assisted by Mr. Vivek Gurnani and Mr. Siddharth Sharma, Advocates., This is a petition seeking the grant of regular bail to the applicant in Enforcement Case Information Report (ECIR) DLZO‑I/28/2022 dated 11 July 2022 for offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002., The ECIR was registered by the Respondent after the Central Bureau of Investigation filed a First Information Report on 7 July 2022 for offences punishable under Sections 120‑B, 420 and 409 of the Indian Penal Code read with Sections 20, 21, 24 and 26 of the Indian Telegraph Act, Sections 3 and 6 of the Indian Wireless Telegraphy Act, Sections 69B, 72 and 72A of the Information Technology Act, and Sections 13(1)(d) read with 13(2) of the Prevention of Corruption Act., The applicant has been in custody since 14 July 2022 in relation to the present ECIR., The applicant and other persons are alleged to have illegally intercepted and monitored telephone calls of employees of the National Stock Exchange Limited (NSE). It is stated that illegal tapping of NSE employees’ phone calls was conducted under the guise of an agreement between NSE and Messrs ISEC Services Private Limited (ISEC)., To conduct a Periodic Study of Cyber Vulnerabilities, a payment of approximately Rs 4.54 crores was made by NSE to ISEC for the work performed between 1 January 2009 and 13 February 2017., It has been alleged that ISEC monitored and intercepted the calls of four MTNL Primary Rate Interface (PRI) lines, each having a capacity of thirty telephone connections used by NSE employees., ISEC is also alleged to have submitted transcripts of the conversations to the top management of NSE during the period 1 January 2009 to 13 February 2017. The applicant was the Deputy Managing Director of NSE until 2010, Joint Managing Director until March 2013 and Managing Director until December 2016. The applicant’s statement was recorded on 21 May 2022 under Section 50 of the Prevention of Money Laundering Act, pursuant to the permission granted to the Enforcement Directorate on 20 May 2022, and also on 14‑17, 19 and 21 July 2022 pursuant to her remand orders. The charge sheet was filed on 9 September 2022., On 5 August 2022, the applicant sought regular bail before the learned Special Judge, Rouse Avenue, New Delhi, in connection with the present ECIR; the application was dismissed on 29 August 2022., The prosecution complaint alleges that during the initial meeting for award of the contract in 2009, Shri Sanjay Pandey, a founding director of ISEC, visited NSE to represent ISEC. NSE was represented by Shri Ravi Narayan (then Managing Director) and Ms. Chitra Ramkrishna (then Deputy Managing Director). The telephone numbers to be monitored were identified by Ms. Ramkrishna and conveyed to ISEC through NSE employees. The identified officers and departments included Market Watch, Market Surveillance and Risk Management, which had access to critical online information and real‑time databases. The payment of Rs 4.54 crore was made by NSE to ISEC for this work. The allegations state that between 2009 and 2017, Shri Ravi Narayan, Ms. Ramkrishna and the then Managing Director conspired with ISEC to illegally intercept phone calls of NSE employees under the pretext of a Periodic Study of Cyber Vulnerabilities., Ms. Rebecca John, learned senior counsel for the applicant, contends that: (i) Sanjay Pandey’s statement indicates that it was Ravi Narayan who introduced the applicant to Sanjay Pandey in 2009; (ii) Ravi Narayan asked Sanjay Pandey to send a proposal for the work and decided to utilise ISEC’s services, not the applicant; (iii) Ravi Narayan, as Managing Director of NSE, approved the ISEC proposal and directed the applicant, then Deputy Managing Director, to implement his instructions; (iv) the scheduled offences against the applicant are under Section 120‑B/420 of the Indian Penal Code, Section 72 of the Information Technology Act, 2000 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, none of which are attracted by the facts of the present case., Counsel further submits that Section 420 of the Indian Penal Code is not an offence that any member of the public can report under Section 39 of the Code of Criminal Procedure, and therefore a person aggrieved must exist to invoke its ingredients. She argues that NSE is not the aggrieved party because it neither lodged the FIR nor were its employees’ lines tapped by the applicant. She also states that there was no deception, fraud or dishonest inducement because NSE was aware that the scope of the Periodic Study of Cyber Vulnerabilities included electronic monitoring, as reflected in proposals dated 5 February 2013, 27 June 2013, 7 February 2014, 9 February 2015 and 22 January 2016 submitted by ISEC to NSE., Regarding Section 120‑B of the Indian Penal Code, counsel notes that it is not a standalone scheduled offence; the Enforcement Directorate’s remand applications refer to it read with other scheduled offences. Concerning Section 72 of the Information Technology Act, she observes that neither the applicant nor NSE possessed any powers under the Act, and no such allegation appears in the FIR. With respect to Section 13(1)(d) of the Prevention of Corruption Act, she asserts that the applicant is not a public servant within the meaning of the Act and, even assuming public duty, no illegal gain was obtained; the applicant did not receive any kickbacks from the Rs 4.54 crore fee paid to ISEC., Counsel cites the Delhi High Court order dated 15 April 2010 in Writ Petition No. 4748 of 2007, which held NSE to be a public authority under the Right to Information Act, but notes that the order was stayed by the Division Bench on 4 May 2010 and the stay made absolute on 21 August 2012, thereby indicating that NSE is not a public authority. She also submits that the proviso of Section 45 of the Prevention of Money Laundering Act applies to the applicant as a woman, drawing an analogy with Section 437 of the Code of Criminal Procedure, which provides an exception for women in bail matters., Counsel emphasizes that the applicant has been in custody since 14 July 2022, the charge sheet has been filed, and she deserves release on bail. She relies on the Supreme Court judgment in Vijay Madanlal Choudhary and Others v. Union of India, 2022 SCC OnLine SC 929, wherein the Court held that the classification of money‑laundering offenders must be reasonable and that at the bail stage the Court need not record a positive finding of guilt but should consider broad probabilities and the possibility of the accused committing a further offence., Mr. Zoheb Hossain, learned standing counsel for the Enforcement Directorate, argues that Section 120‑B of the Indian Penal Code is a standalone scheduled offence and that criminal conspiracy is complete upon the agreement to commit an illegal act, irrespective of whether the act is carried out. He cites the definition of criminal conspiracy under Section 120A of the Indian Penal Code and case law (Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, 2008) to support that the mere agreement to tap telephone lines violates the Telegraph Act. He also points to the Information Technology Act, alleging breach of Section 69B(2) read with subsection 4, and to statements of the equipment supplier confirming that the PRI lines were split and recorded by a voice‑logging system., Mr. Hossain further relies on Section 25(b) of the Indian Telegraph Act, which penalises intentional tampering with telegraph lines to intercept messages, and contends that the FIR, although not enumerating every section, contains the ingredients of this offence. He notes that the prosecution complaint dated 9 September 2022 identifies Ms. Chitra Ramkrishna as holding senior positions in NSE from 2009 to 2017 and that she authorised the engagement of ISEC, directed the monitoring of calls, and approved the payment of Rs 4.54 crore, thereby constituting money‑laundering under Section 3 of the Prevention of Money Laundering Act., Mr. Hossain maintains that the applicant was the mastermind of the conspiracy, representing NSE in the initial meetings, identifying the telephone numbers to be monitored, and processing all approvals. He asserts that the fee of Rs 4.54 crore received by ISEC constitutes proceeds of crime and that the applicant, as Managing Director, oversaw the operation. He also cites the Supreme Court observation that money‑laundering is a cognisable, non‑bailable offence and that Section 45 of the Prevention of Money Laundering Act requires satisfaction of twin conditions for bail, except for categories such as women or sick persons, which are subject to judicial discretion., The learned Special Judge, after hearing counsel for both parties, noted that the present proceeding is limited to determining prima facie whether the scheduled offences are made out against the applicant. The scheduled offences alleged are: Section 72 of the Information Technology Act; Section 120‑B of the Indian Penal Code read with Section 420 of the Indian Penal Code; and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act., Section 72 of the Information Technology Act provides for a penalty of up to two years imprisonment, a fine of up to one lakh rupees, or both, for a person who, in pursuance of powers conferred under the Act, accesses any electronic record without consent and discloses it to another person. The elements of the offence are: (i) the person is vested with powers under the Act; (ii) the person secures access to an electronic record without consent; and (iii) the person discloses the record to another. In the present case, neither the applicant nor NSE was vested with such powers, nor acted pursuant to them; therefore, the elements of Section 72 are not satisfied., In Sanjay Pandey v. Directorate of Enforcement, Bail Application No. 2409/2022, dated 8 December 2022, this Court held that Section 72 of the Information Technology Act penalises only persons acting under powers conferred by the Act or its rules. The present prosecution under the Prevention of Money Laundering Act is predicated on the allegation that the applicant, by tapping NSE telephone lines, accessed electronic records without consent; however, as established, the statutory conditions for Section 72 are not met.
id_1117	1	However, the key words in section 72 of the Information Technology Act state that the person who secures access to an electronic record, book, register, correspondence, information, document or other material has to be in pursuance of powers conferred under the Act or rules and regulations made thereunder. The contract between National Stock Exchange and Messrs ISEC permitted recording of conversations. Recording or tapping of phone calls without consent of the concerned persons is an offence punishable under the Indian Telegraph Act and Indian Wireless Telegraphy Act. However, the same are not scheduled offences. Thus, invocation of section 72 of the Information Technology Act is misplaced in the present case., The Enforcement Directorate has vehemently argued that section 120B of the Indian Penal Code is a standalone scheduled offence. However, the pleadings and case set up by the Enforcement Directorate are to the contrary. A bare perusal of the FIR, Prosecution Complaint as well as the Remand Applications makes it evident that section 120B of the Indian Penal Code has not been invoked as an independent standalone scheduled offence as it is read with section 420 and section 409 of the Indian Penal Code. Section 409 of the Indian Penal Code is not a scheduled offence., The Remand Application dated 14 July 2022 reads as follows: That Sections 120B read with 420 of the Indian Penal Code, Section 72 of the Information Technology Act, 2000 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, are covered under the definition of Scheduled Offences as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002. As such, investigation has been initiated by the applicant under the Prevention of Money Laundering Act, 2002 for the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, 2002., The Remand Application dated 18 July 2022 reads as follows: That Sections 120B read with 420 of the Indian Penal Code, Section 72 of the Information Technology Act, 2000 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, are covered under the definition of 'Scheduled Offences' as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002. As such, investigations have been initiated by the applicant under the Prevention of Money Laundering Act, 2002 for the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, 2002., The Remand Application dated 22 July 2022 reads as follows: That Central Bureau of Investigation registered FIR/RC bearing number RC2212022E0030 dated 07 July 2022 inter alia for the commission of offences punishable under section 120B read with 409 and 420 of the Indian Penal Code, 1860, sections 20, 21, 24 and 26 of the Indian Telegraph Act, 1885, sections 3 and 6 of the Indian Wireless Telegraphy Act, 1933, Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sections 69B, 72 and 72A of the Information Technology Act, 2000 at EO‑III, Central Bureau of Investigation, New Delhi against Messrs ISEC Services Private Limited and other accused including Ms. Chitra Ramkrishna, the then Deputy Managing Director/Managing Director of National Stock Exchange regarding illegal interception/monitoring of telephone calls of National Stock Exchange employees. That Sections 120B read with 420 of the Indian Penal Code, Section 72 of the Information Technology Act, 2000 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, are covered under the definition of 'Scheduled Offences' as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002. As such, investigations have been initiated by the applicant under the Prevention of Money Laundering Act, 2002 for the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, 2002., The Prosecution Complaint records the following: Brief facts of the offence, allegation, charge and amount involved under the Prevention of Money Laundering Act: That an investigation under the Prevention of Money Laundering Act was initiated vide F. No. ECIR/DLZ0‑1/28/2022 in Enforcement Directorate, Delhi Zone‑I and is under investigation in Delhi Zone‑I. The law enforcement agency case of predicate offence vide RC2212022E0030 dated 07 July 2022 under Sections 120B read with 409 and 420 of the Indian Penal Code, 1860, sections 20, 21, 24 and 26 of the Indian Telegraph Act, 1885, sections 3 and 6 of the Indian Wireless Telegraphy Act, 1933, Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sections 69B, 72 and 72A of the Information Technology Act, 2000, is pending investigation with EO‑III, Central Bureau of Investigation, New Delhi., In the reply filed by the Enforcement Directorate to the bail application moved in the Trial Court, the Enforcement Directorate continues to treat the offence under section 120B as being read with the other scheduled offences. The relevant paragraphs of the reply read as follows: That Sections 120B read with 420 of the Indian Penal Code, Section 72 of the Information Technology Act, 2000 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, are covered under the definition of 'Scheduled Offences' as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002. As such, investigations have been initiated by the applicant under the Prevention of Money Laundering Act, 2002 for the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, 2002., The order dated 29 August 2022 reads as follows: As per record, Central Bureau of Investigation had registered FIR/RC bearing number RC2212022E0030 dated 07 July 2022 inter alia for commission of offences punishable under section 120B read with sections 409 and 420 of the Indian Penal Code, sections 20, 21, 24 and 26 of the Indian Telegraph Act, sections 3 and 6 of the Indian Wireless Telegraphy Act, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and sections 69B, 72 and 72A of the Information Technology Act at EO‑III, Central Bureau of Investigation, New Delhi against Messrs ISEC Services Private Limited and other accused persons including the applicant regarding illegal interception/monitoring of telephone calls of National Stock Exchange employees. Since some of the aforementioned offences punishable under section 120B read with 420 of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 72 of the Information Technology Act, 2000 are covered under the definition of 'Scheduled Offences' as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002, the Enforcement Directorate also registered instant case ECIR/DLZ0‑1/28/2022 dated 11 July 2022 under the Prevention of Money Laundering Act for the offence of money laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act., In this view of the matter, section 120B has not been invoked as a standalone charging section but has been invoked along with section 420 and section 409 of the Indian Penal Code vis‑à‑vis the applicant., Section 120B of the Indian Penal Code reads as follows: 120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both., With regard to section 120B of the Indian Penal Code, I am of the view that the ingredients of the said offence are not established since the criminal intent, i.e., agreement to do an illegal act as defined under section 120A of the Indian Penal Code, is not made out., In Sanjay Pandey (supra), I have held the following: The offence under section 120B of the Indian Penal Code (which is also a Prevention of Money Laundering Act scheduled offence) is also not made out insofar as the criminal intent, i.e., agreement to do an illegal act as defined under section 120A of the Indian Penal Code, is not established. National Stock Exchange has been involved in call recording since 1997 through other vendors such as Messrs Comtel, prior to ISEC being brought into the picture to analyse recorded calls. Since call recording was being done prior to the arrival of ISEC, there is no criminal conspiracy entered into between ISEC and National Stock Exchange with the intention of committing an illegal act, namely, call recording. Thus, the element of criminal intent is not made out in the present case and no offence under section 120B read with sections 409 and 420 of the Indian Penal Code is established., As per the documents placed before me, it is observed that National Stock Exchange was recording conversations since 1997 through other vendors and the transactions with ISEC occurred from 2009 to 2017. The applicant was Deputy Managing Director of National Stock Exchange till 2010 and Joint Managing Director till 2013 and Managing Director till 2016. As call recording was done by National Stock Exchange prior to ISEC's involvement, it is wrong to allege that the applicant conspired with ISEC to illegally tap and record calls. Thus, the ingredients of section 120B of the Indian Penal Code are not made out in the present case., Section 420 of the Indian Penal Code reads as follows: 420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., The Apex Court in Prof. R.K. Vijayasarathy and Anr. v. Sudha Seetharam and Anr. (2019) 16 SCC 739 held that for the offence of cheating to manifest under section 420 of the Indian Penal Code, the following ingredients need to be present: (i) A person must commit the offence of cheating under section 415; and (ii) The person cheated must be dishonestly induced to (a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Cheating is an essential ingredient for an act to constitute an offence under section 420., In the present case, there was no complaint from National Stock Exchange or any employee of the National Stock Exchange that the applicant cheated National Stock Exchange or its employees. Furthermore, there is no allegation that the applicant deceived or fraudulently induced National Stock Exchange to deliver any property to any person., As far as the business arrangement with Messrs ISEC is concerned, there is no difference between National Stock Exchange and the management of National Stock Exchange, including the applicant. The business contract was between Messrs ISEC and National Stock Exchange for which National Stock Exchange made payments to Messrs ISEC., The applicant was at all times acting on behalf of National Stock Exchange and representing National Stock Exchange in her capacity as Deputy Managing Director/Joint Managing Director/Managing Director of National Stock Exchange. She carried out her duties in that capacity; therefore, it is wrong to allege that the applicant deceived or fraudulently induced National Stock Exchange to enter into an agreement with Messrs ISEC and make payments to Messrs ISEC., The documents titled Periodic Study of Cyber Vulnerabilities clearly record that Messrs ISEC proposes to continue its services in the area of electronic monitoring services at National Stock Exchange. Since National Stock Exchange was at all times aware that the scope of the Periodic Study of Cyber Vulnerabilities includes electronic monitoring, there is no deception, fraud or dishonest inducement on the part of the applicant., Pertinently, no victim has been identified by the Enforcement Directorate who has suffered a wrongful loss on account of deception or cheating by the applicant. Except for a vague and bald averment that customers have been cheated, there is no mention of the names of the persons who have been cheated. Thus, the ingredients of section 420 of the Indian Penal Code are not made out in the present case., In view of the above, prima facie the ingredients of the scheduled offences under the Indian Penal Code viz., section 120B read with section 420 are not made out against the applicant., Section 13(1)(d) and 13(2) of the Prevention of Corruption Act (pre‑amended) are reproduced below: 13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct, (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine., The Honorable Supreme Court has outlined the essential ingredients for determining the offence under section 13(1)(d) of the Prevention of Corruption Act in A. Subair v. State of Kerala (2009) 6 SCC 587, stating that its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and (iii) that he should have obtained a valuable or pecuniary advantage for himself or for any other person., The ingredients of section 13(1)(d) of the Prevention of Corruption Act are not made out in the present case as the applicant is not a public servant within the meaning of the Prevention of Corruption Act. National Stock Exchange is not a public authority. In this regard, the learned senior counsel for the applicant had brought to my notice the order dated 04 May 2010 of the Division Bench of the Delhi High Court in LPA No. 315 of 2010 where this court stayed the order of the learned Single Judge holding National Stock Exchange to be a public authority. The stay was made absolute on 21 August 2012. Thus, since National Stock Exchange is not a public authority, the applicant is not a public servant., In addition, the Enforcement Directorate has also failed to show how the applicant has obtained for herself or for any other person any valuable thing or pecuniary advantage within the meaning of section 13 of the Prevention of Corruption Act., There is no evidence placed on record to prove corruption or abuse of position by the applicant. The consideration received by Messrs ISEC is pursuant to a contract entered into with National Stock Exchange and work orders issued with the approval of Mr. Ravi Narain, the Managing Director. Thus, the ingredients of section 13(1)(d) read with 13(2) of the Prevention of Corruption Act are not made out against the applicant. Hence, scheduled offence under section 13 of the Prevention of Corruption Act is not established against the applicant., Since I have held above that prima facie no scheduled offences against the applicant are established, the provisions of the Prevention of Money Laundering Act cannot be attracted to the present case., After conclusion of arguments, I was informed that the applicant has been granted regular bail by the Learned Special Judge, Rouse Avenue in RC No. 2212022E0030 dated 07 July 2022 vide order dated 21 December 2022., The applicant has sought bail under section 45 of the Prevention of Money Laundering Act. According to section 45 of the Prevention of Money Laundering Act, the two conditions for grant of bail are: (i) the public prosecutor has to be given an opportunity to oppose bail; and (ii) there are reasonable grounds to believe that the accused is not guilty of the offence and the accused is not likely to commit any offence while on bail., Addressing the second condition, the ingredients of section 3 of the Prevention of Money Laundering Act are culled out as follows: A person who 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., This Court in Sanjay Pandey (supra) has held as follows: In the present case, no scheduled offence is prima facie made out; consequently there cannot be proceeds of crime having been generated as there is no criminal activity relating to a scheduled offence. This position is in consonance with the dicta of Vijay Madanlal Choudhary (supra) where the Honorable Supreme Court held that the fact that proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non‑cognizable 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 then indulges in process or activity connected with such proceeds of crime. The argument is completely misplaced and needs to be rejected., Since none of the ingredients of the scheduled offences viz., Section 72 of the Information Technology Act, Section 120B read with 409 and 420 of the Indian Penal Code, Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act are made out, there is no occasion to allege acquisition or retention of proceeds of crime, which under Section 2(u) of the Prevention of Money Laundering Act is defined to mean proceeds arising out of scheduled offences., In the case of Vijay Madanlal Choudhary (supra) the Honorable Supreme Court has opined that provisions of the Prevention of Money Laundering Act would apply when a person has derived or obtained property as a result of a scheduled offence, and then indulged in any process or activity connected with such property., In the present case there is no allegation that the applicant has derived or obtained any property or proceeds of crime. Additionally, there is no allegation or evidence produced before me to suggest that the applicant has concealed, possessed, used, projected or claimed any proceeds of crime as untainted property., The respondent has relied upon the judgment of this Honorable Court in Mrs Shivani Rajiv Saxena v. Directorate of Enforcement & Anr, order dated 15 September 2017 in Bail Application 1518/2017 to contend that the discretion under the proviso to section 45 of the Prevention of Money Laundering Act may not be exercised in cases where the accused has played an active role in the offence of money laundering. The said decision of this court is not applicable to the present case as the facts of that case stand on a different footing., In Shivani Saxena's case, the court was of the view that the applicant therein was a partner/director in both the companies which were accused of money laundering. The court was of the view that they were carriers of proceeds of crime. The present case is distinguishable as I have already given a prima facie finding that the applicant is not guilty of scheduled offences., In view of my findings above, I have not dealt with the argument of the applicant being entitled to bail on account of being a woman under the proviso to section 45 of the Prevention of Money Laundering Act., Prima facie there are reasonable grounds to believe that the applicant is not guilty of the offence and she is not likely to commit any offence while on bail. I have given an opportunity to the Enforcement Directorate to oppose the bail application thereby satisfying the twin conditions enumerated under section 45., Even though not relevant for the purpose of deciding this bail application, it is noted that Mr. Ravi Narain (co‑accused) has been granted bail on humanitarian grounds by the Learned Additional Sessions Judge on 07 November 2022 in CBI v. Ravi Narain, Bail Matter No. 02/2022 and Bail Matter No. 58., For the aforesaid reasons, the application is allowed and the applicant is granted bail in ECIR/DLZO‑I/28/2022 dated 11 July 2022 on the following terms and conditions: (i) The applicant shall furnish a personal bond in the sum of Rs 1,00,000 with two sureties in the like amount to the satisfaction of the Trial Court; (ii) The applicant shall join investigation as and when called by the Investigating Officer concerned; (iii) The applicant shall appear before the Court as and when the matter is taken up for hearing; (iv) The applicant shall provide her mobile number to the Investigating Officer concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the Investigating Officer concerned, during the period of bail; (v) In case the applicant changes her address, she will inform the Investigating Officer concerned and this Court also; (vi) The applicant shall not leave the country during the bail period and surrender her passport at the time of release before the Investigating Officer concerned; (vii) The applicant shall not indulge in any criminal activity during the bail period; (viii) The applicant shall not communicate with, or come into contact with any of the prosecution witnesses or tamper with the evidence of the case., In view of the above, the bail application is disposed of., The relevant documents handed over in Court are taken on record.
id_1118	0	F. No. 53/Judl./2023 28th June, 2023 The following procedure shall be adopted and followed for mentioning of matters before the Supreme Court of India with effect from 03.07.2023: Miscellaneous Fresh matters., Miscellaneous fresh matters which are verified on Saturday, Monday and Tuesday shall be automatically listed on the following Monday. Miscellaneous matters which are verified on Wednesday, Thursday and Friday shall be automatically listed on the following Friday., As an exception, where a date of listing earlier than above is sought, mentioning of matters of an urgent nature in terms of the categories specified in the Circular dated 23.1.2019 (Annexure A) will be permitted only after registration and verification of cases., Members of the Bar and parties in person should submit their Mentioning Proforma with a letter of urgency to the Mentioning Officer until 3:00 pm on the day previous to mentioning. A list of such cases shall be prepared by the Mentioning Officer., If any other ground of urgency not set out in Annexure A has been relied upon by the advocates, a list of such matters shall be prepared separately by the Mentioning Officer. Both lists shall be placed before the Registrar (Judicial Administration), who after obtaining due approval shall notify the list of matters to be mentioned on the next day on the website., In case of an exceptionally urgent matter which is required to be taken up at the earliest, the Mentioning Proforma together with the letter of urgency must be handed over to the Mentioning Officer by 10:30 am. The Mentioning Officer shall place the Mentioning Proforma together with the letter of urgency before the Registrar (Judicial Administration) for seeking orders of the Chief Justice of India during lunch recess or as the exigency may warrant. The letter of urgency shall indicate why the matter cannot be taken up for urgent mentioning along with other urgent cases on the next day., After the Mentioning Proforma with letter of urgency is submitted to the Mentioning Officer, he will check the status of such matters referred to in the Mentioning Proforma and will prepare two separate lists: List relating to cases which are not to be deleted from being listed on the assigned dates; and List relating to cases where no coram or date is assigned. Both lists shall be placed before the Registrar (Judicial Administration). In respect of the first list, the Registrar (Judicial Administration) shall notify the list after seeking instructions of the Chief Justice of India to place them before the concerned bench for mentioning in the Mentioning List to be notified. In respect of the second list, the Registrar (Judicial Administration) shall obtain the coram from the Honourable Chief Justice and include such cases in the Mentioning List of the benches as assigned., No mentioning of cases other than those notified in the Mentioning Lists published on the previous day shall be permitted., Puneet Sehgal, Registrar (Judicial Administration); Pavanesh D., Registrar (Judicial Listing)., Copy to: Supreme Court Bar Association with five spare copies of the Circular with request to display on the notice board of the Bar Association for information to the members of the Bar. Supreme Court Advocates-on-Record Association with five spare copies of the Circular with request to display on the notice board of the Association for information to the members of the Bar.
id_1119	0	This is a petition seeking the following prayers: quashing of search warrants dated 22 December 2020 issued by learned Chief Metropolitan Magistrate, District Court, Patiala House Courts, New Delhi in FIR No. 212/2020, Police Station Special Cell; setting aside order dated 02 March 2021 passed by learned Chief Metropolitan Magistrate, District Court, Patiala House Courts, New Delhi in FIR No. 212/2020, Police Station Special Cell; quashing the search warrant dated 04 March 2021 passed by learned Chief Metropolitan Magistrate, District Court, Patiala House Courts, New Delhi in FIR No. 212/2020, Police Station Special Cell; setting aside the order of 25 March 2021 passed by learned Chief Metropolitan Magistrate, District Court, Patiala House Courts, New Delhi in FIR No. 212/2020, Police Station Special Cell; and setting aside the order dated 05 November 2022 passed by learned Assistant Sessions Judge, Court No. 07, District Court, Patiala House Courts, New Delhi in Criminal Revision No. 159/2021., It is stated by Mr. Sikander, learned counsel for the petitioner, that in the present case no notice under Section 91 of the Code of Criminal Procedure has been served on the petitioner. He further states that Section 93 of the Code of Criminal Procedure proceeds on the assumption that a Section 91 notice has been given and not complied with, and thereafter only Section 93(1)(a) notice is to be issued. He states that the computer processing unit is lying sealed in his premises. He further states that pursuant to the first search warrant, the respondent has already searched the office premises of the petitioner on 24 December 2020 for more than ten hours and has taken whatever documents were required by them. He further states that the petitioner is ready and willing to comply with all documents which are required by the respondent along with Section 65B certificates under the Indian Evidence Act., Mr. Prasad, learned counsel for the respondent, states that in the present case he cannot disclose the course of investigation. However, he states that the computer processing unit which is lying sealed in the premises of the petitioner may be sent to the Forensic Science Laboratory or Central Forensic Science Laboratory and the petitioner may be permitted to be present at the laboratory. He further states that Section 65B will not have any relevance as the moment metadata is changed, the Section 65B certificate will lose its relevance. Lastly, he submits that the fact of searching the premises of the petitioner for ten hours on 24 December 2020 is also disputed and the search was obstructed and an FIR in that regard has already been lodged., Issue notice. Mr. Prasad, learned Special Public Prosecutor, accepts notice, seeks and is granted two weeks to file a response or status report. This is an application seeking ex parte stay. Prima facie, I am of the view that the respondent has searched the office premises of the petitioner on 24 December 2020. In addition, there also seems to be no service of notice under Section 91 of the Code of Criminal Procedure. For the reasons recorded hereinabove, the orders dated 02 March 2021, 04 March 2021, 25 March 2021 passed by learned Chief Metropolitan Magistrate in FIR No. 212/2020 and the order dated 05 November 2022 passed by learned Assistant Sessions Judge, Court No. 07, District Court, Patiala House Courts, New Delhi in Criminal Revision No. 159/2021 and the search warrant dated 04 March 2021 shall remain stayed till the next date of hearing. The learned counsel for the respondent is at liberty to file his response or status report.
id_112	0	BE it enacted by Parliament in the Seventy‑fourth Year of the Republic of India as follows: (1) This Act may be called the Bharatiya Nyaya (Second) Sanhita, 2023. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Sanhita., Short title, commencement and application. TO BE INTRODUCED IN LOK SABHA Bill No. 173 of 2023. (3) Every person shall be liable to punishment under this Sanhita and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. (4) Any person liable, by any law for the time being in force in India, to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Sanhita for any act committed beyond India in the same manner as if such act had been committed within India. (5) The provisions of this Sanhita shall also apply to any offence committed by (a) any citizen of India in any place without and beyond India; (b) any person on any ship or aircraft registered in India wherever it may be; (c) any person in any place without and beyond India committing offence targeting a computer resource located in India., Explanation. In this section, the word offence includes every act committed outside India which, if committed in India, would be punishable under this Sanhita. Illustration. A, who is a citizen of India, commits a murder in any place without and beyond India. He can be tried and convicted of murder in any place in India in which he may be found., Nothing in this Sanhita shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law., In this Sanhita, unless the context otherwise requires, (1) act denotes as well a series of acts as a single act; (2) animal means any living creature, other than a human being; (3) \child\ means any person below the age of eighteen years; (4) counterfeit. A person is said to counterfeit who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced. Explanation 1. It is not essential to counterfeiting that the imitation should be exact. Explanation 2. When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced; (5) Supreme Court of India means a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially; (6) death means the death of a human being unless the contrary appears from the context; (7) dishonestly means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another person; (8) document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter. Explanation 1. It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a Supreme Court of India or not., Definitions. Illustrations. (a) A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. (b) A cheque upon a banker is a document. (c) A power‑of‑attorney is a document. (d) A map or plan which is intended to be used or which may be used as evidence, is a document. (e) A writing containing directions or instructions is a document. Explanation 2. Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed. Illustration. A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and shall be construed in the same manner as if the words pay to the holder or words to that effect had been written over the signature; (9) fraudulently means doing anything with the intention to defraud but not otherwise; (10) gender. The pronoun he and its derivatives are used of any person, whether male, female or transgender. Explanation. transgender shall have the meaning assigned to it in clause (k) of section 2 of the Transgender Persons (Protection of Rights) Act, 2019; (11) good faith. Nothing is said to be done or believed in good faith which is done or believed without due care and attention; (12) Government means the Central Government or a State Government; (13) harbour includes supplying a person with shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this clause or not, to evade apprehension; (14) injury means any harm whatever illegally caused to any person, in body, mind, reputation or property; (15) illegal and legally bound to do. The word illegal is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever it is illegal in him to omit; (16) Judge means a person who is officially designated as a Judge and includes a person, (i) who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive; or (ii) who is one of a body or persons, which body of persons is empowered by law to give such a judgment. Illustration. A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge; (17) life means the life of a human being, unless the contrary appears from the context; (18) local law means a law applicable only to a particular part of India; (19) man means male human being of any age; (20) month and year. Wherever the word month or the word year is used, it is to be understood that the month or the year is to be reckoned according to the Gregorian calendar; (21) movable property includes property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth; (22) number. Unless the contrary appears from the context, words importing the singular number include the plural number, and words importing the plural number include the singular number; (23) oath includes a solemn affirmation substituted by law for an oath, and any declaration required or authorised by law to be made before a public servant or to be used for the purpose of proof, whether in a Supreme Court of India or not; (24) offence.
id_112	1	Except in the Chapters and sections mentioned in sub‑clauses (a) and (b), the word offence means a thing made punishable by this Sanhita, but (a) in Chapter III and in the following sections, namely, sub‑sections (2), (3), (4) and (5) of section 8, sections 9, 49, 50, 52, 54, 55, 56, 57, 58, 59, 60, 61, 119, 120, 123, sub‑sections (7) and (8) of section 127, 222, 230, 231, 240, 248, 250, 251, 259, 260, 261, 262, 263, sub‑sections (6) and (7) of section 308 and sub‑section (2) of section 330, the word offence means a thing punishable under this Sanhita, or under any special law or local law; and (b) in sub‑section (1) of section 189, sections 211, 212, 238, 239, 249, 253 and sub‑section (1) of section 329, the word offence shall have the same meaning when the act punishable under the special law or local law is punishable under such law with imprisonment for a term of six months or more, whether with or without fine., (25) Omission denotes a single omission as well as a series of omissions. (26) Person includes any company, association or body of persons, whether incorporated or not. (27) Public includes any class of the public or any community. (28) Public servant means a person falling under any of the following descriptions: (a) every commissioned officer in the Army, Navy or Air Force; (b) every Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; (c) every officer of a Court, including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, to make, authenticate or keep any document, to take charge of or dispose of any property, to execute any judicial process, to administer any oath, to interpret, or to preserve order in the Court, and every person specially authorised by a Court to perform any of such duties; (d) every assessor or member of a panchayat assisting a Court or public servant; (e) every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court, or by any other competent public authority; (f) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; (g) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; (h) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, to make any survey, assessment or contract on behalf of the Government, to execute any revenue process, to investigate or report on any matter affecting the pecuniary interests of the Government, to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; (i) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, and to make, authenticate or keep any document for ascertaining the rights of the people of any village, town or district; (j) every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; (k) every person (i) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (ii) in the service or pay of a local authority as defined in clause (31) of section 3 of the General Clauses Act, 1897, a corporation established by or under a Central or State Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013., Explanation. (a) Persons falling under any of the descriptions made in this clause are public servants, whether appointed by the Government or not. (b) Every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation, is a public servant. (c) Election means an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection being by, or under any law for the time being in force. (29) Reason to believe means a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise. (30) Special law means a law applicable to a particular subject. (31) Valuable security means a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. Illustration: A writes his name on the back of a bill of exchange; as the effect of this endorsement is to transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a valuable security. (32) Vessel means anything made for the conveyance by water of human beings or of property. (33) Voluntarily means a person is said to cause an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it. Illustration: A sets fire, by night, to an inhabited house in a large town for the purpose of facilitating a robbery and thus causes the death of a person; A may not have intended to cause death, but if he knew that he was likely to cause death, he has caused death voluntarily. (34) Will means any testamentary document. (35) Woman means a female human being of any age. (36) Wrongful gain means gain by unlawful means of property to which the person gaining is not legally entitled. (37) Wrongful loss means the loss by unlawful means of property to which the person losing it is legally entitled. (38) Gaining wrongfully and losing wrongfully: a person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully; a person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property. (39) Words and expressions used but not defined in this Sanhita but defined in the Information Technology Act, 2000 and the Bharatiya Nagarik Suraksha Sanhita, 2023 shall have the meanings respectively assigned to them in that Act and Sanhita; provided that any reference in this Sanhita to the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be construed as a reference to the Bharatiya Nagarik Suraksha (Second) Sanhita, 2023., (1) Throughout this Sanhita every definition of an offence, every penal provision, and every illustration of every such definition or penal provision shall be understood subject to the exceptions contained in the Chapter entitled General Exceptions, though those exceptions are not repeated in such definition, penal provision, or illustration. Illustration: (a) The sections in this Sanhita which contain definitions of offences do not express that a child under seven years of age cannot commit such offences; the definitions are to be understood subject to the general exception which provides that nothing shall be an offence which is done by a child under seven years of age. (b) A police officer, without warrant, apprehends a person who has committed murder. The officer is not guilty of the offence of wrongful confinement because he was bound by law to apprehend the person, and therefore the case falls within the general exception which provides that nothing is an offence which is done by a person who is bound by law to do it. (2) Every expression which is explained in any Part of this Sanhita is used in every Part of this Sanhita in conformity with the explanation. (3) When property is in the possession of a person’s spouse, clerk or servant, on account of that person, it is in that person’s possession within the meaning of this Sanhita. Explanation: a person employed temporarily or on a particular occasion in the capacity of a clerk or servant is a clerk or servant within the meaning of this sub‑section. (4) In every Part of this Sanhita, except where a contrary intention appears from the context, words which refer to acts done extend also to illegal omissions. (5) When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. (6) Whenever an act which is criminal only by reason of its being done with a criminal knowledge or intention is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention. (7) Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence. Illustration: A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z; A has committed murder. (8) When an offence is committed by means of several acts, whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Illustrations: (a) A and B agree to murder Z by administering small doses of poison at different times; Z dies from the combined effect; both A and B intentionally cooperate in the commission of murder and are guilty of the offence. (b) A and B are joint jailors, each attending to prisoner Z alternately for six hours; both intend to cause Z’s death and each illegally omits to furnish Z with food; Z dies of hunger; both A and B are guilty of murder. (c) A, a jailor, intends to cause Z’s death by illegally omitting food; Z’s strength is reduced but does not die; A is dismissed and B succeeds him; B, without collusion with A, illegally omits food knowing it is likely to cause Z’s death; Z dies of hunger; B is guilty of murder, while A is guilty only of an attempt to commit murder. (9) Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Illustration: A attacks Z under grave provocation, making the killing culpable homicide not amounting to murder; B, with ill‑will and intending to kill, assists A; B is guilty of murder, while A is guilty only of culpable homicide., The punishments to which offenders are liable under the provisions of this Sanhita are: (a) Death; (b) Imprisonment for life; (c) Imprisonment, which is of two descriptions, namely: (1) Rigorous, that is, with hard labour; (2) Simple; (d) Forfeiture of property; (e) Fine; (f) Community Service., The appropriate Government may, without the consent of the offender, commute any punishment under this Sanhita to any other punishment in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Explanation: for the purposes of this section the expression appropriate Government means (a) where the sentence is a sentence of death or is for an offence against any law relating to a matter to which the executive power of the Union extends, the Central Government; and (b) where the sentence, whether of death or not, is for an offence against any law relating to a matter to which the executive power of the State extends, the Government of the State within which the offender is sentenced. In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided. In every case in which an offender is punishable with imprisonment which may be of either description, it shall be competent to the Supreme Court of India which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple., (1) Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. (2) In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, or punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Supreme Court of India which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one‑fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence is punishable with imprisonment as well as fine. The imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence. If the offence is punishable with fine or community service, the imprisonment imposed in default shall be simple, and the term shall not exceed two months when the fine does not exceed five thousand rupees, four months when the fine does not exceed ten thousand rupees, and one year in any other case. (a) The imprisonment imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law; (b) if, before the expiration of the term of imprisonment fixed in default, a proportion of the fine is paid or levied such that the term of imprisonment suffered in default is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate. Illustration: A is sentenced to a fine of one thousand rupees and to four months imprisonment in default of payment; if seven hundred and fifty rupees of the fine are paid before the expiration of one month, A will be discharged as soon as the first month has expired, etc. The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender is liable to imprisonment for a longer period than six years, then at any time prior to the expiration of that period; the death of the offender does not discharge from liability any property which would, after his death, be legally liable for his debts., (1) Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it is expressly provided. (2) Where (a) anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or (b) several acts, of which one or more would by themselves constitute an offence, together constitute a different offence, the offender shall not be punished with a more severe punishment than the Court could award for any one of such offences. Illustrations: (a) A gives Z fifty strokes with a stick; A may have committed the offence of voluntarily causing hurt to Z by the whole beating and also by each of the blows; he is liable only to one punishment for the whole beating. (b) While A is beating Z, Y interferes and A intentionally strikes Y; A is liable to one punishment for voluntarily causing hurt to Z and another for the blow given to Y., In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but it is doubtful which of these offences he is guilty of, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all. Whenever any person is convicted of an offence for which under this Sanhita the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale: (a) not exceeding one month if the term of imprisonment shall not exceed six months; (b) not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year; (c) not exceeding three months if the term of imprisonment shall exceed one year. In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods., Whoever, having been convicted by a Court in India of an offence punishable under Chapter X or Chapter XVII of this Sanhita with imprisonment of either description for a term of three years or upwards, and who is subsequently guilty of any offence punishable under either of those Chapters with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life, or to imprisonment of either description for a term which may extend to ten years., Nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be bound by law to do it. Illustration: (a) A soldier fires on a mob by the order of his superior officer, in conformity with the commands of the law; A has committed no offence. (b) An officer of a Court, being ordered by that Court to arrest Y, and after due enquiry believing Z to be Y, arrests Z; the officer has committed no offence. Nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Nothing which is done in pursuance of, or which is warranted by, the judgment or order of a Court; if done whilst such judgment or order remains in force, is an offence, notwithstanding the Court may have had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction. Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it. Illustration: A sees Z commit what appears to A to be a murder; acting in good faith, A apprehends Z to bring him before the proper authorities; A has committed no offence, though it may turn out that Z was acting in self‑defence. Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge, in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Illustration: A is at work with a hatchet; the head flies off and kills a man who is standing by; if there was no want of proper caution on the part of A, his act is excusable and not an offence. Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation: it is a question of fact whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause that effect. Illustrations: (a) A, the captain of a vessel, must inevitably run down boat B to avoid greater danger; if A alters course without intention to run down boat C and in good faith to avoid danger to boat B, A is not guilty of an offence, though he may run down boat C. (b) A, in a great fire, pulls down houses to prevent the conflagration from spreading; acting in good faith to save life or property, A is not guilty of an offence., Nothing is an offence which is done by a child under seven years of age. Nothing is an offence which is done by a child above seven years of age and under twelve years of age who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law, provided that the intoxicant was administered to him without his knowledge or against his will. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable as if he had the same knowledge as he would have had if he had not been intoxicated, unless the intoxicant was administered to him without his knowledge or against his will., Nothing which is not intended to cause death or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person above eighteen years of age who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. Illustration: A and Z agree to fence with each other for amusement; the agreement implies consent to suffer any harm which may be caused without foul play; if A, while playing fairly, hurts Z, A commits no offence. Nothing, which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given consent, whether express or implied, to suffer that harm or to take the risk of that harm. Illustration: A surgeon, knowing that a particular operation is likely to cause the death of Z but not intending to cause Z’s death and intending, in good faith, Z’s benefit, performs the operation on Z with Z’s consent; the surgeon has committed no offence.
id_112	2	Nothing which is done in good faith for the benefit of a person under twelve years of age, or person of unsound mind, by or with consent, either express or implied, of the guardian or other person having lawful charge of that person, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause to that person: Provided that this exception shall not extend to (a) the intentional causing of death, or to the attempting to cause death; (b) the doing of anything which the person doing it knows to be likely to cause death for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; (c) the voluntary causing of grievous hurt, or the attempting to cause grievous hurt, unless it be for the purpose of preventing death or grievous hurt, or the curing of any grievous disease or infirmity; (d) the abetment of any offence to which this exception would not extend. Act of a child above seven and under twelve years of age of immature understanding. Act of a person of unsound mind. Act of a person incapable of judgment by reason of intoxication caused against his will. Offence requiring a particular intent or knowledge committed by one who is intoxicated. Act not intended and not known to be likely to cause death or grievous hurt, done by consent. Act not intended to cause death, done by consent in good faith for person's benefit. Act done in good faith for benefit of child or person of unsound mind, by, or by consent of guardian. Act of a child under seven years of age., Illustration: A, in good faith, for his child's benefit without his child's consent, has his child undergo surgery for a stone by a surgeon knowing it to be likely that the operation will cause the child's death, but not intending to cause the child's death. A is within the exception, in as much as his object was the cure of the child., A consent is not such a consent as is intended by any section of this Sanhita, (a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or (b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or (c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age., The exceptions in sections 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Illustration: Causing miscarriage (unless caused in good faith for the purpose of saving the life of the woman) is an offence independently of any harm which it may cause or be intended to cause to the woman. Therefore, it is not an offence by reason of such harm; and the consent of the woman or of her guardian to the causing of such miscarriage does not justify the act., Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person's consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit: Provided that this exception shall not extend to (a) the intentional causing of death, or the attempting to cause death; (b) the doing of anything which the person doing it knows to be likely to cause death, for any purpose other than the preventing of death or grievous hurt, or the curing of any grievous disease or infirmity; (c) the voluntary causing of hurt, or the attempting to cause hurt, for any purpose other than the preventing of death or hurt; (d) the abetment of any offence to which this exception would not extend., Illustrations. (1) Z is thrown from his horse, and is insensible. A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence. (2) Z is carried off by a tiger. A fires at the tiger knowing it to be likely that the shot may kill Z, but not intending to kill Z, and in good faith intending Z's benefit. A's bullet gives Z a mortal wound. A has committed no offence. (3) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence. (4) A is in a house which is on fire, with Z, a child. People below hold out a blanket. A drops the child from the house top, knowing it to be likely that the fall may kill the child, but not intending to kill the child, and intending, in good faith, the child's benefit. Here, even if the child is killed by the fall, A has committed no offence. Explanation. Mere pecuniary benefit is not benefit within the meaning of sections 26, 27 and this section., No communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Illustration. A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death., Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint. Explanation 1. A person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, on the ground of his having been compelled by his associates to do anything that is an offence by law. Explanation 2. A person seized by a gang of dacoits, and forced, by threat of instant death, to do a thing which is an offence by law; for example, a smith compelled to take his tools and to force the door of a house for the dacoits to enter and plunder it, is entitled to the benefit of this exception., Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm., Nothing is an offence which is done in the exercise of the right of private defence., Every person has a right, subject to the restrictions contained in section 37, to defend (a) his own body, and the body of any other person, against any offence affecting the human body; (b) the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass., When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. Illustration: (a) Z, a person of unsound mind, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. (b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception., (1) There is no right of private defence, (a) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law; (b) against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law; (c) in cases in which there is time to have recourse to the protection of the public authorities. (2) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Explanation 1. A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such public servant. Explanation 2. A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded., The right of private defence of the body extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: (a) such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (b) such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; (c) an assault with the intention of committing rape; (d) an assault with the intention of gratifying unnatural lust; (e) an assault with the intention of kidnapping or abducting; (f) an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release; (g) an act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act., If the offence is not of any of the descriptions specified in section 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in section 37, to the voluntary causing to the assailant of any harm other than death., The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues., The right of private defence of property extends, under the restrictions specified in section 37, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely: (a) robbery; (b) house-breaking after sunset and before sunrise; (c) mischief by fire or any explosive substance committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; (d) theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised., If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions specified in section 41, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions specified in section 37, to the voluntary causing to the wrong-doer of any harm other than death., The right of private defence of property, (a) commences when a reasonable apprehension of danger to the property commences; (b) against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered; (c) against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues; (d) against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief; (e) against house-breaking after sunset and before sunrise continues as long as the house-trespass which has been begun by such house-breaking continues., If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Illustration. A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children., A person abets the doing of a thing, who (a) instigates any person to do that thing; or (b) 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; or (c) intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration. A, a public officer, is authorised by a warrant from a Court to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act., A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1. The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2. To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Illustrations. (a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to commit murder. (b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder., Explanation 3. It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Illustrations. (a) A, with a guilty intention, abets a child or a person of unsound mind to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as A. Here A, whether the act be committed or not, is guilty of abetting an offence. (b) A, with the intention of murdering Z, instigates B, a child under seven years of age, to do an act which causes Z's death. B, in consequence of the abetment, does the act in the absence of A and thereby causes Z's death. Here, though B was not capable by law of committing an offence, A is liable to be punished in the same manner as if B had been capable by law of committing an offence, and had committed murder, and he is therefore subject to the punishment of death. (c) A instigates B to set fire to a dwelling-house. B, in consequence of his unsoundness of mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A's instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling-house, and is liable to the punishment provided for that offence. (d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it to be A's property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft., Explanation 4. The abetment of an offence being an offence, the abetment of such an abetment is also an offence. Illustration. A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment., Explanation 5. It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Illustration. A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder., A person abets an offence within the meaning of this Sanhita who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India. Illustration. A, in India, instigates B, a foreigner in country X, to commit a murder in that country, A is guilty of abetting murder., A person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India. Illustration. A, in country X, instigates B, to commit a murder in India, A is guilty of abetting murder., Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Sanhita for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation. An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Illustrations. (a) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B. (b) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder., Whoever abets the commission of an offence shall, if the person abetted does the act with a different intention or knowledge from that of the abettor, be punished with the punishment provided for the offence which would have been committed if the act had been done with the intention or knowledge of the abettor and with no other., When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it: Provided that the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Illustrations. (a) A instigates a child to put poison into the food of Z, and gives him poison for that purpose. The child, in consequence of the instigation, by mistake puts the poison into the food of Y, which is by the side of that of Z. Here, if the child was acting under the influence of A's instigation, and the act done was under the circumstances a probable consequence of the abetment, A is liable in the same manner and to the same extent as if he had instigated the child to put the poison into the food of Y. (b) A instigates B to burn Z's house, B sets fire to the house and at the same time commits theft of property there. A, though guilty of abetting the burning of the house, is not guilty of abetting the theft; for the theft was a distinct act, and not a probable consequence of the burning. (c) A instigates B and C to break into an inhabited house at midnight for the purpose of robbery, and provides them with arms for that purpose. B and C break into the house, and being resisted by Z, one of the inmates, murder Z. Here, if that murder was the probable consequence of the abetment, A is liable to the punishment provided for murder., If the act for which the abettor is liable under section 51 is committed in addition to the act abetted, and constitute a distinct offence, the abettor is liable to punishment for each of the offences., Illustration. A instigates B to resist by force a distress made by a public servant. B, in consequence, resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the officer executing the distress. As B has committed both the offence of resisting the distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment for both these offences; and, if A knew that B was likely voluntarily to cause grievous hurt in resisting the distress, A will also be liable to punishment for each of the offences., When an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment, causes a different effect from that intended by the abettor, the abettor is liable for the effect caused, in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Illustration. A instigates B to cause grievous hurt to Z. B, in consequence of the instigation, causes grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt abetted was likely to cause death, A is liable to be punished with the punishment provided for murder., Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence., Whoever abets the commission of an offence punishable with death or imprisonment for life, shall, if that offence is not committed in consequence of the abetment, and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment, and which causes hurt to any person, is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. Illustration. A instigates B to murder Z. The offence is not committed. If B had murdered Z, he would have been subject to the punishment of death or imprisonment for life. Therefore, A is liable to imprisonment for a term which may extend to seven years and also to a fine; and if any hurt is done to Z in consequence of the abetment, he will be liable to imprisonment for a term which may extend to fourteen years, and to a fine., Whoever abets an offence punishable with imprisonment shall, if that offence is not committed in consequence of the abetment, and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both; and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both. Illustrations. (a) A instigates B to give false evidence. Here, if B does not give false evidence, A has nevertheless committed the offence defined in this section, and is punishable accordingly.
id_112	3	Abetment of offence punishable with death or imprisonment for life. Abetment of offence punishable with imprisonment. A, a police officer, whose duty it is to prevent robbery, abets the commission of robbery. Here, though the robbery is not committed, A is liable to one-half of the longest term of imprisonment provided for that offence, and also to fine. B abets the commission of a robbery by A, a police officer, whose duty it is to prevent that offence. Here, though the robbery is not committed, B is liable to one-half of the longest term of imprisonment provided for the offence of robbery, and also to fine., Whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten shall be punished with imprisonment of either description for a term which may extend to seven years and with fine. Illustration: A affixes in a public place a placard instigating a sect consisting of more than ten members to meet at a certain time and place for the purpose of attacking the members of an adverse sect while engaged in a procession. A has committed the offence defined in this section., Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any act or omission, or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design shall, (a) if that offence is committed, be punished with imprisonment of either description for a term which may extend to seven years; or (b) if the offence is not committed, with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Illustration: A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and thereby misleads the Magistrate with intent to facilitate the commission of the offence. The dacoity is committed at B in pursuance of the design. A is punishable under this section., Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent, voluntarily conceals by any act or omission or by the use of encryption or any other information hiding tool the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall, (a) if the offence is committed, be punished with imprisonment of any description provided for the offence for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both; (b) if the offence is punishable with death or imprisonment for life, with imprisonment of either description for a term which may extend to ten years; or (c) if the offence is not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth of the longest term of such imprisonment or with such fine as is provided for the offence, or with both. Illustration: A, an officer of police, being legally bound to give information of all designs to commit robbery which may come to his knowledge, and knowing that B designs to commit robbery, omits to give such information, with intent to so facilitate the commission of that offence. Here A has by an illegal omission concealed the existence of B's design and is liable to punishment according to the provision of this section., Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals by any act or illegal omission the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design shall, (a) if the offence is committed, be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth; and (b) if the offence is not committed, to one-eighth of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both., When two or more persons agree with the common object to do, or cause to be done, (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Whoever is a party to a criminal conspiracy, (a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; (b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both., Whoever attempts to commit an offence punishable by this Sanhita with imprisonment for life or imprisonment, or to cause such offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Sanhita for the punishment of such attempt, be punished with imprisonment of any description provided for the offence for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Illustrations: (a) A makes an attempt to steal some jewels by breaking open a box, and finds after opening the box that there is no jewel in it. He has done an act towards the commission of theft, and therefore is guilty under this section. (b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt because Z has nothing in his pocket. A is guilty under this section., A man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions: (i) against her will; (ii) without her consent; (iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt; (iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; (vi) with or without her consent, when she is under eighteen years of age; (vii) when she is unable to communicate consent. Explanation 1: For the purposes of this section, vagina shall also include labia majora. Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non‑verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact be regarded as consenting to the sexual activity. Exception 1: A medical procedure or intervention shall not constitute rape. Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape., Whoever, except in the cases provided for in sub‑section (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever, (a) being a police officer, commits rape within the limits of the police station to which such police officer is appointed; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central Government or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or (i) commits rape on a woman incapable of giving consent; or (j) being in a position of control or dominance over a woman, commits rape on such woman; or (k) commits rape on a woman suffering from mental or physical disability; or (l) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (m) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Explanation: For the purposes of this sub‑section, (a) armed forces means the naval, army and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) hospital means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) police officer shall have the same meaning as assigned to the expression police under the Police Act, 1861; (d) women’s or children’s institution means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children., Whoever commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and shall also be liable to fine, provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim. Whoever commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and with fine or with death, provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim., Whoever commits an offence punishable under sub‑section (1) or sub‑section (2) of section 64 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, or with death., Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation: In this section, sexual intercourse shall mean any of the acts mentioned in clauses (a) to (d) of section 63., Whoever, being (a) in a position of authority or in a fiduciary relationship; or (b) a public servant; or (c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or (d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine. Explanation 1: In this section, sexual intercourse shall mean any of the acts mentioned in clauses (a) to (d) of section 63. Explanation 2: For the purposes of this section, Explanation 1 to section 63 shall also be applicable. Explanation 3: Superintendent, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates., Whoever, by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Explanation: deceitful means shall include inducement for, or false promise of employment or promotion, or marrying by suppressing identity., Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, and with fine, provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim. Where a woman under eighteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life and with fine, or with death, provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and shall be paid to the victim., Whoever has been previously convicted of an offence punishable under section 64 or section 65 or section 66 or section 70 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death., Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 is alleged or found to have been committed (hereafter referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Nothing in sub‑section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is (a) by or under the order in writing of the officer‑in‑charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or a child or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim, provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation: For the purposes of this sub‑section, recognised welfare institution or organisation means a social welfare institution or organisation recognised in this behalf by the Central Government or the State Government., Whoever prints or publishes any matter in relation to any proceeding before the Supreme Court of India with respect to an offence referred to in section 72 without the previous permission of such Supreme Court of India shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation: The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section., Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine., A man committing any of the following acts: (i) physical contact and advances involving unwelcome and explicit sexual overtures; (ii) a demand or request for sexual favours; (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. Any man who commits the offence specified in clause (iv) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished with imprisonment of either description 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., Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction with imprisonment of either description 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 purposes of this section, private act includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. Explanation 2: Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section., Any man who (i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, e‑mail or any other form of electronic communication, commits the offence of stalking: Provided that such conduct shall not amount to stalking if the man who pursued it proves that (i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or (ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or (iii) in the particular circumstances such conduct was reasonable and justified. Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine., Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object in any form, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine., Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation: For the purposes of this sub‑section, dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life., Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception: This sub‑section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent. Whoever commits the offence under sub‑section (1) having concealed from the person with whom the subsequent marriage is contracted the fact of the former marriage shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purposes of section 85, cruelty means (a) any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
id_112	4	Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Sanhita or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid., Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage is not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation. A woman who causes herself to miscarry is within the meaning of this section., Whoever commits the offence under section 88 without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Where the act referred to in sub‑section (1) is done without the consent of the woman, shall be punishable either with imprisonment for life, or with the punishment specified in said sub‑section. Explanation. It is not essential to this offence that the offender should know that the act is likely to cause death., Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act is not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both., Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Illustration: A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section., Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation. This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure., Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine; and if the offence is committed shall also be punished with the punishment provided for that offence as if the offence has been committed by such person himself. Explanation. Hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this section., Whoever, by any means whatsoever, induces any child to go from any place or to do any act with intent that such child may be, or knowing that it is likely that such child will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine., Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever sells, lets to hire, or otherwise disposes of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation 1. When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution. Explanation 2. For the purposes of this section illicit intercourse means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi‑marital relation., Whoever buys, hires or otherwise obtains possession of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to fourteen years, and shall also be liable to fine. Explanation 1. Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. Explanation 2. Illicit intercourse has the same meaning as in section 98., Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations: (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. (c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1. A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death., Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death; or if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause death; or if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations: (a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder. (b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. (c) A intentionally gives Z a sword‑cut or club‑wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s death. (d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a pre‑meditated design to kill any particular individual., Exception 1. Culpable homicide is not murder if the offender, whilst deprived of the power of self‑control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident: provided that the provocation is not (a) sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; (b) given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; (c) given by anything done in the lawful exercise of the right of private defence. Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact., Illustrations of murder: (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder., Exception 2. Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration: Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A, believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide., Exception 3. Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill‑will towards the person whose death is caused., Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault., Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration: A, by instigation, voluntarily causes Z, a child to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder., If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause., Whoever commits murder shall be punished with death or imprisonment for life, and shall also be liable to fine. When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine., Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life., Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years and with fine, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death., Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine. Whoever causes death of any person by rash and negligent driving of a vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., If any child, any person of unsound mind, any delirious person or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine., If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned., When any person offending under sub‑section (1) is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death or with imprisonment for life, which shall mean the remainder of that person’s natural life. Illustrations: (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section. (b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue. (c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and, if by such firing he wounds Z, he is liable to the punishment provided by the latter part of sub‑section (1). (d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined in this section., Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration: A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death, he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section., Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber‑crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organised crime. Explanation. For the purposes of this sub‑section, (i) organised crime syndicate means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang indulge in any continuing unlawful activity; (ii) continuing unlawful activity means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge‑sheet has been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence; (iii) economic offence includes criminal breach of trust, forgery, counterfeiting of currency‑notes, bank‑notes and Government stamps, hawala transaction, mass‑marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form., Whoever commits organised crime shall, if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine which shall not be less than ten lakh rupees; in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees., Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees., Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees., Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees: provided that this sub‑section shall not apply to any case in which the harbour or concealment is by the spouse of the offender., Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than two lakh rupees., If any person on behalf of a member of an organised crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees., Whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime. Explanation. For the purposes of this sub‑section 'theft' includes trick theft, theft from vehicle, dwelling house or business premises, cargo theft, pick pocketing, theft through card skimming, shoplifting and theft of Automated Teller Machine., Whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine.
id_112	5	Whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, (a) by using bombs, dynamite or other explosive substance or inflammable substance or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substance (whether biological, radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause, (i) death of, or injury to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iv) damage to the monetary stability of India by way of production or smuggling or circulation of counterfeit Indian paper currency, coin or of any other material; or (v) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatening to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter‑governmental organisation or any other person to do or abstain from doing any act, commit a terrorist act. Explanation. For the purpose of this sub‑section, (a) public functionary means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; (b) counterfeit Indian currency means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features of Indian currency., Whoever commits a terrorist act shall, (a) if such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to fine; (b) in any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine., Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Terrorist act.37, Whoever organises or causes to be organised any camp or camps for imparting training in terrorist act, or recruits or causes to be recruited any person or persons for commission of a terrorist act, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine., Any person who is a member of an organisation which is involved in terrorist act, shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine., Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person has committed a terrorist act shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this sub‑section shall not apply to any case in which the harbour or concealment is by the spouse of the offender., Whoever knowingly possesses any property derived or obtained from commission of any terrorist act or acquired through the commission of any terrorist act shall be punished with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. Explanation. For the removal of doubts, it is hereby declared that the officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967., Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt., Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and thereby causes hurt to any person, is said voluntarily to cause hurt. Whoever, except in the case provided for by sub‑section (1) of section 122 voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both., The following kinds of hurt only are designated as grievous, namely: (a) Emasculation; (b) Permanent privation of the sight of either eye; (c) Permanent privation of the hearing of either ear; (d) Privation of any member or joint; (e) Destruction or permanent impairing of the powers of any member or joint; (f) Permanent disfiguration of the head or face; (g) Fracture or dislocation of a bone or tooth; (h) Any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits., Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt. Whoever, except in the case provided for by sub‑section (2) of section 122, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Whoever commits an offence under sub‑section (1) and in the course of such commission causes any hurt to a person which causes that person to be in permanent disability or in persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life. When a group of five or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever, except in the case provided for by sub‑section (1) of section 122, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to twenty thousand rupees, or with both. Whoever, except in the case provided for by sub‑section (2) of section 122, voluntarily causes grievous hurt by any means referred to in sub‑section (1), shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than one year but which may extend to ten years, and shall also be liable to fine., Whoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever voluntarily causes grievous hurt for any purpose referred to in sub‑section (1), shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Illustrations. (a) A police officer tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section. (b) A police officer tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence under this section. (c) A revenue officer tortures Z in order to compel him to pay certain arrears of revenue due from Z. A is guilty of an offence under this section. Whoever voluntarily causes grievous hurt for any purpose referred to in sub‑section (1), shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to ten years, and shall also be liable to fine., Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both. Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine which may extend to ten thousand rupees, or with both. Explanation. This section is subject to the same proviso as Exception 1 of section 101., Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt or causes a person to be in a permanent vegetative state shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim. Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. Explanation 1. For the purposes of this section, acid includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability. Explanation 2. For the purposes of this section, permanent or partial damage or deformity or permanent vegetative state shall not be required to be irreversible., Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two thousand five hundred rupees, or with both, but (a) where hurt is caused, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both; (b) where grievous hurt is caused, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both., Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person. Exception. The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section. Illustration. A obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z. Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both., Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said wrongfully to confine that person. Illustration. (a) A causes Z to go within a walled space, and locks Z in. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z. (b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z. Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both. Whoever wrongfully confines any person for ten days or more, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine which shall not be less than ten thousand rupees. Whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of that person has been duly issued, shall be punished with imprisonment of either description for a term which may extend to two years in addition to any term of imprisonment to which he may be liable under any other section of this Chapter and shall also be liable to fine. Whoever wrongfully confines any person in such manner as to indicate an intention that the confinement of such person may not be known to any person interested in the person so confined, or to any public servant, or that the place of such confinement may not be known to or discovered by any such person or public servant as hereinbefore mentioned, shall be punished with imprisonment of either description for a term which may extend to three years in addition to any other punishment to which he may be liable for such wrongful confinement and shall also be liable to fine. Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine., A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the following three ways, namely: (a) by his own bodily power; (b) by disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person; (c) by inducing any animal to move, to change its motion, or to cease to move., Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. Illustrations. (a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A intentionally causes motion to Z, and he does this by disposing substances in such a manner that the motion is produced without any other action on any person’s part. A has therefore intentionally used force to Z; and if he has done so without Z’s consent, in order to the committing of any offence, or intending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z. (b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z. (c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin. Here A has caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used criminal force to Z., Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation. Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Illustrations. (a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault. (b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z. (c) A takes up a stick, saying to Z, I will give you a beating. Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault., Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both. Explanation 1. Grave and sudden provocation will not mitigate the punishment for an offence under this section, (a) if the provocation is sought or voluntarily provoked by the offender as an excuse for the offence; (b) if the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful exercise of the powers of such public servant; or (c) if the provocation is given by anything done in the lawful exercise of the right of private defence. Explanation 2. Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact., Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both., Whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both. Explanation. This section is subject to the same Explanation as section 131.
id_112	6	Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship. Whoever conveys any person beyond the limits of India without the consent of that person, or of a person legally authorised to consent on behalf of that person, is said to kidnap that person from India. Whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship. Explanation: The words lawful guardian in this clause include any person lawfully entrusted with the care or custody of such child or other person. Exception: This clause does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose., Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Whoever kidnaps any child, or, not being the lawful guardian of such child, obtains the custody of the child in order that such child may be employed or used for the purposes of begging shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. Whoever maims any child in order that such child may be employed or used for the purposes of begging shall be punishable with imprisonment which shall not be less than twenty years, but which may extend to life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine., Where any person, not being the lawful guardian of a child, employs or uses such child for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of such child in order that the child might be employed or used for the purposes of begging. In this section begging means: (i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune telling, performing tricks or selling articles or otherwise; (ii) entering on any private premises for the purpose of soliciting or receiving alms; (iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal; (iv) using such child as an exhibit for the purpose of soliciting or receiving alms., Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations: (a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. (b) A forcibly carries or entices B away from his home in order that B may be murdered., Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter‑governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever imports into India from any country outside India any girl under the age of twenty‑one years or any boy under the age of eighteen years with intent that the girl or boy may be, or knowing it to be likely that the girl or boy will be, forced or seduced to illicit intercourse with another person, shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine., Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement., Whoever, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives a person or persons, by using threats; by using force or any other form of coercion; by abduction; by practising fraud or deception; by abuse of power; or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation 1: The expression exploitation shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, beggary or forced removal of organs. Explanation 2: The consent of the victim is immaterial in determination of the offence of trafficking. Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. Where the offence involves the trafficking of a child, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Where the offence involves the trafficking of more than one child, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. If a person is convicted of the offence of trafficking of a child on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine., Whoever, knowingly or having reason to believe that a child has been trafficked, engages such child for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine. Whoever, knowingly or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous 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., Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished with imprisonment for life, or with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine., Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine. Illustration: A joins an insurrection against the Government of India. A has committed the offence defined in this section., Whoever within or without and beyond India conspires to commit any of the offences punishable by section 147, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine. Explanation: To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof., Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine., Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whoever, with the intention of inducing or compelling the President of India, or the Governor of any State, to exercise or refrain from exercising in any manner any of the lawful powers of such President or Governor, assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by means of criminal force or the show of criminal force, or attempts so to overawe, such President or Governor, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers the sovereignty, unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine. Explanation: Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section., Whoever wages war against the Government of any foreign State at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine., Whoever commits depredation, or makes preparations to commit depredation, on the territories of any foreign State at peace with the Government of India, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired by such depredation. Whoever receives any property knowing the same to have been taken in the commission of any of the offences mentioned in sections 153 and 154, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and to forfeiture of the property so received., Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is confined, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever, being a public servant and having the custody of any State prisoner or prisoner of war, negligently suffers such prisoner to escape from any place of confinement, shall be punished with simple imprisonment for a term which may extend to three years, and shall also be liable to fine. Whoever knowingly aids or assists any State prisoner or prisoner of war in escaping from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful custody, or offers or attempts to offer any resistance to the recapture of such prisoner, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: A State prisoner or prisoner of war, who is permitted to be at large on parole within certain limits in India, is said to escape from lawful custody if he goes beyond the limits within which he is allowed to be at large., Whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India or attempts to seduce any such officer, soldier, sailor or airman from his allegiance or his duty, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever abets an assault by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India on any superior officer being in the execution of his office, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Whoever abets an assault by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India on any superior officer being in the execution of his office, shall, if such assault be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever abets the desertion of any officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Whoever, except as hereinafter excepted, knowing or having reason to believe that an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India has deserted, harbours such officer, soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both. Exception: This provision does not extend to the case in which the harbour is given by the spouse of the deserter. The master or person in charge of a merchant vessel on board of which any deserter from the Army, Navy or Air Force of the Government of India is concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding three thousand rupees, if he might have known of such concealment but for some neglect of his duty as such master or person in charge, or but for some want of discipline on board of the vessel. Whoever abets what he knows to be an act of insubordination by an officer, soldier, sailor or airman in the Army, Navy or Air Force of the Government of India, shall, if such act of insubordination be committed in consequence of that abetment, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. No person subject to the Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957, shall be subject to punishment under this Sanhita for any of the offences defined in this Chapter. Whoever, not being a soldier, sailor or airman in the Army, Naval or Air service of the Government of India, wears any garb or carries any token resembling any garb or token used by such a soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two thousand rupees, or with both., For the purposes of this Chapter, (a) candidate means a person who has been nominated as a candidate at any election; (b) electoral right means the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. Whoever gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right, or accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery: Provided that a declaration of public policy or a promise of public action shall not be an offence under this section. A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification. A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, and a person who accepts a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, shall be deemed to have accepted the gratification as a reward., Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election. Without prejudice to the generality of the provisions of sub‑section (1), whoever threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind; or induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of sub‑section (1). A declaration of public policy or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right shall not be deemed to be interference within the meaning of this section., Whoever at an election applies for a voting paper in the name of any other person, whether living or dead, or in a fictitious name, or who having voted once at such election applies at the same election for a voting paper in his own name, and whoever abets, procures or attempts to procure the voting by any person in any such way, commits the offence of personation at an election: Provided that nothing in this section shall apply to a person who has been authorised to vote as proxy for an elector under any law for the time being in force in so far as he votes as a proxy for such elector., Whoever commits the offence of bribery shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both: Provided that bribery by treating shall be punished with fine only. Explanation: Treating means that form of bribery where the gratification consists in food, drink, entertainment, or provision., Whoever commits the offence of undue influence or personation at an election shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both. Whoever with intent to affect the result of an election makes or publishes any statement purporting to be a statement of fact which is false and which he either knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate shall be punished with fine., Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to ten thousand rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate. Whoever being required by any law for the time being in force or any rule having the force of law to keep accounts of expenses incurred at or in connection with an election fails to keep such accounts shall be punished with fine which may extend to five thousand rupees., Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any coin, stamp issued by Government for the purpose of revenue, currency‑note or bank‑note, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: For the purposes of this Chapter, (1) the expression bank‑note means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money; (2) coin shall have the same meaning as assigned to it in section 2 of the Coinage Act, 2011 and includes metal used for the time being as money and is stamped and issued by or under the authority of any State or Sovereign Power intended to be used as money; (3) a person commits the offence of counterfeiting Government stamp who counterfeits by causing a genuine stamp of one denomination to appear like a genuine stamp of a different denomination; (4) a person commits the offence of counterfeiting coin who, intending to practise deception, or knowing it to be likely that deception will thereby be practised, causes a genuine coin to appear like a different coin; and (5) the offence of counterfeiting coin includes diminishing the weight or alteration of the composition, or alteration of the appearance of the coin. Whoever imports or exports, or sells or delivers to, or buys or receives from any other person, or otherwise traffics or uses as genuine, any forged or counterfeit coin, stamp, currency‑note or bank‑note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever has in his possession any forged or counterfeit coin, stamp, currency‑note or bank‑note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation: If a person establishes the possession of the forged or counterfeit coin, stamp, currency‑note or bank‑note to be from a lawful source, it shall not constitute an offence under this section., Whoever makes or mends, or performs any part of the process of making or mending, or buys or sells or disposes of, or has in his possession, any machinery, die, or instrument or material for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for forging or counterfeiting any coin, stamp issued by Government for the purpose of revenue, currency‑note or bank‑note, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Whoever makes, or causes to be made, or uses for any purpose whatsoever, or delivers to any person, any document purporting to be, or in any way resembling, or so nearly resembling as to be calculated to deceive, any currency‑note or bank‑note shall be punished with fine which may extend to three hundred rupees. If any person, whose name appears on a document the making of which is an offence under sub‑section (1), refuses, without lawful excuse, to disclose to a police officer on being so required the name and address of the person by whom it was printed or otherwise made, he shall be punished with fine which may extend to six hundred rupees. Where the name of any person appears on any document in respect of which any person is charged with an offence under sub‑section (1) or on any other document used or distributed in connection with that document it may, until the contrary is proved, be presumed that the person caused the document to be made., Whoever fraudulently or with intent to cause loss to the Government, removes or effaces from any substance bearing any stamp issued by Government for the purpose of revenue, any writing or document for which such stamp has been used, or removes from any writing or document a stamp which has been used for such writing or document, in order that such stamp may be used for a different writing or document, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
id_112	7	Whoever, fraudulently or with intent to cause loss to the Government, uses for any purpose a stamp issued by Government for the purpose of revenue, which he knows to have been before used, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, fraudulently or with intent to cause loss to Government, erases or removes from a stamp issued by Government for the purpose of revenue any mark put or impressed upon such stamp for the purpose of denoting that the same has been used, or knowingly has in his possession or sells or disposes of any such stamp from which such mark has been erased or removed, or sells or disposes of any such stamp which he knows to have been used, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., (1) Whoever (a) makes, knowingly utters, deals in or sells any fictitious stamp, or knowingly uses for any postal purpose any fictitious stamp; (b) has in his possession, without lawful excuse, any fictitious stamp; or (c) makes or, without lawful excuse, has in his possession any die, plate, instrument or materials for making any fictitious stamp, making or possessing instruments or materials for forging or counterfeiting coin, Government stamp, currency‑notes or bank‑notes; making or using documents resembling currency‑notes or bank‑notes; effacing writing from substance‑bearing Government stamp, or removing from a document a stamp used for it, with intent to cause loss to Government; using Government stamp known to have been before used; erasure of mark denoting that stamp has been used; prohibition of fictitious stamps; shall be punished with fine which may extend to two hundred rupees., (2) Any such stamp, die, plate, instrument or materials in the possession of any person for making any fictitious stamp may be seized and, if seized shall be forfeited., (3) In this section fictitious stamp means any stamp falsely purporting to be issued by Government for the purpose of denoting a rate of postage, or any facsimile or imitation or representation, whether on paper or otherwise, of any stamp issued by Government for that purpose., (4) In this section and also in sections 178 to 181 (both inclusive), and sections 183 to 185 (both inclusive) the word Government, when used in connection with, or in reference to any stamp issued for the purpose of denoting a rate of postage, shall, notwithstanding anything in clause (12) of section 2, be deemed to include the person or persons authorised by law to administer executive Government in any part of India or in any foreign country., Whoever, being employed in any mint lawfully established in India, does any act, or omits what he is legally bound to do, with the intention of causing any coin issued from that mint to be of a different weight or composition from the weight or composition fixed by law, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever, without lawful authority, takes out of any mint lawfully established in India any coining tool or instrument, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is (a) to overawe by criminal force, or show of criminal force, the Central Government or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; (b) to resist the execution of any law, or of any legal process; (c) to commit any mischief or criminal trespass, or other offence; (d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly., Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly and such member shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever joins or continues in an unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law to disperse, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever knowingly joins or continues in any assembly of five or more persons likely to cause a disturbance of the public peace, after such assembly has been lawfully commanded to disperse, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. If the assembly is an unlawful assembly within the meaning of sub‑section (1), the offender shall be punishable under sub‑section (3)., Whoever hires or engages, or employs, or promotes, or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such person as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence., Whoever harbours, receives or assembles, in any house or premises in his occupation or charge, or under his control any persons knowing that such persons have been hired, engaged or employed, or are about to be hired, engaged or employed, to join or become members of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or assist in doing any of the acts specified in sub‑section (1), shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever, being so engaged or hired as referred to in sub‑section (8), goes armed, or engages or offers to go armed, with any deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence., Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both., Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting is not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whenever an owner or occupier of the land upon which an unlawful assembly or riot is held, or any person having or claiming an interest in such land, knows that such offence is being or has been committed, or has reason to believe it is likely to be committed, and does not give the earliest notice thereof in his or their power to the officer in charge at the nearest police station, and does not, in the case of his or their having reason to believe that it was about to be committed, use all lawful means in his or their power to prevent it, and, in the event of it taking place, does not use all lawful means in his or their power to disperse or suppress the riot or unlawful assembly, he shall be punishable with a fine not exceeding one thousand rupees., Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, such person shall be punishable with a fine if he or his agent or manager, having reason to believe that such riot was likely to be committed or that the unlawful assembly by which such riot was committed was likely to be held, does not respectively use all lawful means in his or their power to prevent such assembly or riot from taking place, and for suppressing and dispersing the same., Whenever a riot is committed for the benefit or on behalf of any person who is the owner or occupier of any land respecting which such riot takes place, or who claims any interest in such land, or in the subject of any dispute which gave rise to the riot, or who has accepted or derived any benefit therefrom, the agent or manager of such person shall be punishable with a fine if such agent or manager, having reason to believe that such riot was likely to be committed, or that the unlawful assembly by which such riot was committed was likely to be held, does not use all lawful means in his power to prevent such riot or assembly from taking place and for suppressing and dispersing the same., When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. Whoever commits an affray shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one thousand rupees, or with both., Whoever assaults or obstructs any public servant or uses criminal force on any public servant in the discharge of his duty as such public servant in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which shall not be less than twenty‑five thousand rupees, or with both., Whoever threatens to assault or attempts to obstruct any public servant or threatens or attempts to use criminal force to any public servant in the discharge of his duty as such public servant in endeavouring to disperse an unlawful assembly, or to suppress a riot or affray, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., (1) Whoever, by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever disharmony or feelings of enmity, hatred or ill‑will between different religious, racial, language or regional groups or castes or communities; or commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbs or is likely to disturb the public tranquillity; or organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (2) Whoever commits an offence specified in sub‑section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies shall be punished with imprisonment which may extend to five years and shall also be liable to fine., (1) Whoever, by words either spoken or written or by signs or by visible representations or through electronic communication or otherwise, (a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India; or (b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied, or deprived of their rights as citizens of India; or (c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill‑will between such members and other persons; or (d) makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (2) Whoever commits an offence specified in sub‑section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies shall be punished with imprisonment which may extend to five years and shall also be liable to fine., Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will by such disobedience cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both., Whoever, being a public servant, (a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter; or (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation; or (c) fails to record any information given to him under sub‑section (1) of section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 in relation to cognizable offence punishable under sections 64, 65, 66, 67, 68, 70, 71, 74, 76, 77, 79, 124, 143 or 144, shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine., Whoever, being in charge of a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, contravenes the provisions of section 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both., Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both or with community service., Whoever, being a public servant, and being legally bound as such public servant not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated., Whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment of either description for a term which shall not be less than six months but which may extend to three years and with fine., Whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both., Whoever absconds in order to avoid being served with a summons, notice or order proceeding from any public servant legally competent to issue such summons, notice or order, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both; where such summons or notice or order is to attend in person or by agent, or to produce a document or an electronic record in a Court, the punishment shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever in any manner intentionally prevents the serving on himself, or on any other person, of any summons, notice or order proceeding from any public servant legally competent to issue such summons, notice or order, or intentionally prevents the lawful affixing to any place of any such summons, notice or order or intentionally removes any such summons, notice or order from any place to which it is lawfully affixed or intentionally prevents the lawful making of any proclamation, under the authority of any public servant legally competent to direct such proclamation to be made, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both; where the summons, notice, order or proclamation is to attend in person or by agent, or to produce a document or electronic record in a Court, the punishment shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order, or proclamation proceeding from any public servant legally competent to issue the same, intentionally omits to attend at that place or time or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both; where the summons, notice, order or proclamation is to attend in person or by agent in a Court, the punishment shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub‑section (1) of section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both, or with community service, and where a declaration has been made under sub‑section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine., Whoever, being legally bound to produce or deliver up any document or electronic record to any public servant, intentionally omits to produce or deliver up the same, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both; where the document or electronic record is to be produced or delivered up to a Court, the punishment shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both; where the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, the punishment shall be simple imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; where the notice or information required to be given is required by an order passed under section 394 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the punishment shall be imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both., Whoever, being legally bound to furnish information on any subject to any public servant, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both; where the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, the punishment shall be imprisonment of either description for a term which may extend to two years, or with fine, or with both.
id_112	8	Whoever refuses to bind himself by an oath or affirmation to state the truth, when required so to bind himself by a public servant legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to three thousand rupees, or with both., Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorised by law to administer such oath or affirmation, makes to such public servant or other person any statement touching that subject which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine., Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will cause, such public servant (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him; or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both., Whoever offers any resistance to the taking of any property by the lawful authority of any public servant, knowing or having reason to believe that he is such public servant, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever intentionally obstructs any sale of property offered for sale by the lawful authority of any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five thousand rupees, or with both., Whoever, at any sale of property held by the lawful authority of a public servant, as such, purchases or bids for any property on behalf of any person, whether himself or any other, whom he knows to be under a legal incapacity to purchase that property at that sale, or bids for such property not intending to perform the obligations arising from such bidding, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both., Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two thousand five hundred rupees, or with both., Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two thousand five hundred rupees, or with both; and where such assistance is demanded by a public servant legally competent to make such demand for the purposes of executing any process lawfully issued by a Supreme Court of India or of preventing the commission of an offence, or suppressing a riot or affray, or of apprehending a person charged with or guilty of an offence, or having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand five hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both., Whoever holds out any threat of injury to any public servant, or to any person in whom he believes that public servant to be interested, for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever holds out any threat of injury to any person for the purpose of inducing that person to refrain or desist from making a legal application for protection against any injury to any public servant legally empowered as such to give such protection, or to cause such protection to be given, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever attempts to commit suicide with the intent to compel or restrain any public servant from discharging his official duty shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both, or with community service., Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence., Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record, or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding, is said to fabricate false evidence., Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine which may extend to ten thousand rupees., Whoever intentionally gives or fabricates false evidence in any case other than that referred to in sub‑section (1), shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine which may extend to five thousand rupees., Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will cause, any person to be convicted of an offence which is capital by the law for the time being in force in India, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to fifty thousand rupees. If an innocent person is convicted and executed in consequence of such false evidence, the person who gives such false evidence shall be punished either with death or the punishment specified in the preceding sub‑section., Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will cause, any person to be convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished., Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. If an innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent as that innocent person is punished and sentenced., Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence., Whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence., Whoever corruptly uses or attempts to use any such certificate as a true certificate, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence., Whoever, in any declaration made or subscribed by him, which any Supreme Court of India or any public servant or other person is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence., Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence., 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 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 the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if the offence is punishable with imprisonment for any term not extending to ten years, 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 imprisonment provided for the offence, or with fine, or with both., Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever secretes or destroys any document or electronic record which he may be lawfully compelled to produce as evidence in a Supreme Court of India or in any proceeding lawfully held before a public servant, as such, or obliterates or renders illegible the whole or any part of such document or electronic record with the intention of preventing the same from being produced or used as evidence before such Supreme Court of India or public servant, or after he shall have been lawfully summoned or required to produce the same for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both., Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced, by a Supreme Court of India or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Supreme Court of India in a civil suit, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both., Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing that he has no right or rightful claim to such property or interest, or practises any deception touching any right to any property or any interest therein, intending thereby to prevent that property or interest from being taken as a forfeiture or in satisfaction of a fine, under a sentence which has been pronounced, or which he knows to be likely to be pronounced by a Supreme Court of India or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Supreme Court of India in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever fraudulently causes or suffers a decree or order to be passed against him at the suit of any person for a sum not due or for a larger sum than is due to such person or for any property or interest in property to which such person is not entitled, or fraudulently causes or suffers a decree or order to be executed against him after it has been satisfied, or for anything in respect of which it has been satisfied, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever fraudulently makes any claim in a Supreme Court of India which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine., Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine which may extend to two lakh rupees, or with both; and if such criminal proceeding is instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for ten years or upwards, shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if the offence is punishable with imprisonment which may extend to one year and not to ten years, 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 imprisonment provided for the offence, or with fine, or with both. This section does not extend to any case in which the harbour or concealment is by the spouse of the offender.
id_112	9	Whoever accepts or attempts to obtain, or agrees to accept, any gratification for himself or any other person, or any restitution of property to himself or any other person, in consideration of his concealing an offence or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to legal punishment shall, if the offence 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 the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if the offence is punishable with imprisonment not extending to ten years, 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 imprisonment provided for the offence, or with fine, or with both., Whoever gives or causes, or offers or agrees to give or cause, any gratification to any person, or restores or causes the restoration of any property to any person, in consideration of that person’s concealing an offence, or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to legal punishment shall, if the offence 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 the offence is punishable with imprisonment for life or with imprisonment which may extend to ten years, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if the offence is punishable with imprisonment not extending to ten years, 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 imprisonment provided for the offence, or with fine, or with both. Exception: The provisions of this section and section 250 do not extend to any case in which the offence may lawfully be compounded., Whoever takes or consents to take any gratification under pretence or on account of helping any person to recover any movable property of which he has been deprived by any offence punishable under this Sanhita, shall, unless he uses all means in his power to cause the offender to be apprehended and convicted, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody, or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended, shall be punished as follows: if the offence for which the person was in custody or is ordered to be apprehended is punishable with death, imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if the offence is punishable with imprisonment for life or imprisonment for ten years, imprisonment of either description for a term which may extend to three years, with or without fine; if the offence is punishable with imprisonment which may extend to one year and not to ten years, imprisonment of the description provided for the offence for a term which may extend to one‑fourth part of the longest term of imprisonment provided for such offence, or with fine, or with both. Explanation: Offence in this section includes any act or omission of which a person is alleged to have been guilty outside India, which, if he had been guilty of it in India, would have been punishable as an offence, and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in India; such act or omission shall be deemed to be punishable as if the accused had been guilty of it in India. Exception: The provisions of this section do not extend to the case in which the harbour or concealment is by the spouse of the person to be apprehended., Whoever, knowing or having reason to believe that any persons are about to commit or have recently committed robbery or dacoity, harbours them or any of them, with the intention of facilitating the commission of such robbery or dacoity, or of screening them or any of them from punishment, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. Explanation: For the purposes of this section it is immaterial whether the robbery or dacoity is intended to be committed, or has been committed, within or without India. Exception: The provisions of this section do not extend to the case in which the harbour is by the spouse of the offender., Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or to subject him to a lesser punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both., Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both., Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person charged with or liable to be apprehended for an offence, intentionally omits to apprehend such person, or intentionally suffers such person to escape, or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows: (a) with imprisonment of either description for a term which may extend to seven years, with or without fine, if the person in confinement, or who ought to have been apprehended, was charged with, or liable to be apprehended for, an offence punishable with death; (b) with imprisonment of either description for a term which may extend to three years, with or without fine, if the person was charged with, or liable to be apprehended for, an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years; (c) with imprisonment of either description for a term which may extend to two years, with or without fine, if the offence was punishable with imprisonment for a term less than ten years., Whoever, being a public servant, legally bound as such public servant to apprehend or to keep in confinement any person under sentence of a Court for any offence or lawfully committed to custody, intentionally omits to apprehend such person, or intentionally suffers such person to escape or intentionally aids such person in escaping or attempting to escape from such confinement, shall be punished as follows: (a) with imprisonment for life or with imprisonment of either description for a term which may extend to fourteen years, with or without fine, if the person in confinement, or who ought to have been apprehended, is under sentence of death; (b) with imprisonment of either description for a term which may extend to seven years, with or without fine, if the person is subject, by a sentence of a Court or by virtue of a commutation of such sentence, to imprisonment for life or imprisonment for a term of ten years or upwards; (c) with imprisonment of either description for a term which may extend to three years, or with fine, or with both, if the person is subject by a sentence of a Court to imprisonment for a term not extending to ten years or if the person was lawfully committed to custody., Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both., Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation: The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted., Whoever, intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence, shall be punished as follows: (a) with imprisonment of either description for a term which may extend to two years, or with fine, or with both; (b) if the person rescued is charged with or liable to be apprehended for an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years, imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; (c) if the person rescued is charged with or liable to be apprehended for an offence punishable with death, imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; (d) if the person rescued is liable, by a sentence of a Court or by virtue of a commutation of such a sentence, to imprisonment for life, or imprisonment for a term of ten years or upwards, imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; (e) if the person rescued is under sentence of death, imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine., Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 259, section 260 or section 261, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished as follows: (a) if he does so intentionally, with imprisonment of either description for a term which may extend to three years, or with fine, or with both; (b) if he does so negligently, with simple imprisonment for a term which may extend to two years, or with fine, or with both., Whoever, in any case not provided for in section 262 or section 263 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever, having accepted any conditional remission of punishment, knowingly violates any condition on which such remission was granted, shall be punished with the punishment to which he was originally sentenced, if he has not yet served any part of that punishment; if he has already served part of that punishment, he shall be punished with the remaining portion of that punishment., Whoever intentionally offers any insult, or causes any interruption to any public servant while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, by personation or otherwise, intentionally causes, or knowingly allows himself to be returned, empanelled or sworn as an assessor in any case in which he knows that he is not entitled by law to be so returned, empanelled or sworn, or who, knowing himself to have been so returned, empanelled or sworn contrary to law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, having been charged with an offence and released on bail bond or on bond, fails without sufficient cause (the burden of proving which shall lie upon him) to appear in Supreme Court of India in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Explanation: The punishment under this section is (a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and (b) without prejudice to the power of Supreme Court of India to order forfeiture of the bond., A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right; a common nuisance is not excused on the ground that it causes some convenience or advantage., Whoever unlawfully or negligently does any act which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever malignantly does any act which he knows or has reason to believe to be likely to spread the infection of any disease dangerous to life shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever knowingly disobeys any rule made by the Government for putting any mode of transport into a state of quarantine, or for regulating the intercourse of any such transport in a state of quarantine or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both., Whoever adulterates any article of food or drink so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever adulterates any drug or medical preparation in such a manner as to lessen the efficacy or change the operation of such drug or medical preparation, or to make it noxious, intending that it shall be sold or used for any medicinal purpose as if it had not undergone such adulteration, or knowing it to be likely that it will be sold or used for any medicinal purpose as if it were unadulterated, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both., Whoever, knowing any drug or medical preparation to have been adulterated in such a manner as to lessen its efficacy, to change its operation, or to render it noxious, sells the same, or offers or exposes it for sale, or issues it from any dispensary for medicinal purposes as unadulterated, or causes it to be used for medicinal purposes by any person not knowing of the adulteration, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever voluntarily corrupts or fouls the water of any public spring or reservoir so as to render it less fit for the purpose for which it is ordinarily used shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way shall be punished with fine which may extend to one thousand rupees., Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both., Whoever navigates any vessel in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both., Whoever exhibits any false light, mark or buoy, intending or knowing it to be likely that such exhibition will mislead any navigator, shall be punished with imprisonment of either description for a term which may extend to seven years, and with fine which shall not be less than ten thousand rupees., Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any person by water in any vessel, when that vessel is in such a state or so loaded as to endanger the life of that person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished with fine which may extend to five thousand rupees., Whoever, with any poisonous substance, does any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, with fire or any combustible matter, does any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both., Whoever, with any explosive substance, does any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, with any machinery, does any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever, in pulling down, repairing or constructing any building, knowingly or negligently omits to take such measures with that building as is sufficient to guard against any probable danger to human life from the fall of that building or any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever knowingly or negligently omits to take such measures with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., Whoever commits a public nuisance in any case not otherwise punishable by this Sanhita shall be punished with fine which may extend to one thousand rupees., Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both., For the purposes of sub‑section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including a display of any content in electronic form, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect, or, where it comprises two or more distinct items, the effect of any one of its items, taken as a whole, tends to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
id_112	10	Whoever (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever in whatever manner; or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation; or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation; or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person; or (e) offers or attempts to do any act which is an offence under this section, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to five thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to ten thousand rupees. Exception. This section does not extend to (a) any book, pamphlet, paper, writing, drawing, painting, representation or figure (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958; or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose., Whoever sells, lets to hire, distributes, exhibits or circulates to any child any such obscene object as is referred to in section 294, or offers or attempts so to do, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees., Whoever, to the annoyance of others, (a) does any obscene act in any public place; or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both., (1) Whoever keeps any office or place for the purpose of drawing any lottery not being a State lottery or a lottery authorised by the State Government, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. (2) Whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or forbear from doing anything for the benefit of any person, on any event or contingency relative or applicable to the drawing of any ticket, lot, number or figure in any such lottery, shall be punished with fine which may extend to five thousand rupees., Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or through electronic means or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulchre, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1. A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2. A moving effected by the same act which affects the severance may be a theft. Explanation 3. A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4. A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5. The consent mentioned in this section may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied., A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft., A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z's consent, A has committed theft as soon as Z's dog has begun to follow A., A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure., A being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft., Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession, and A has not committed theft, though he may have committed criminal breach of trust., A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes it, A commits theft., A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property., A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft., A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop. A, not owing to the jeweler any debt for which the jeweler might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z's hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly., If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly., Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property in as much as he takes it dishonestly., A takes an article belonging to Z out of Z's possession without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft., A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's book. If this was A's impression, A has not committed theft., A asks charity from Z's wife. She gives A money, food and clothes, which A knows to belong to Z his husband. Here it is probable that A may conceive that Z's wife is authorised to give away alms. If this was A's impression, A has not committed theft., A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft., A, in good faith, believing property belonging to Z to be A's own property, takes that property out of Z's possession. Here, as A does not take dishonestly, he does not commit theft., Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine: Provided that in cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, be punished with community service., Theft is snatching if, in order to commit theft, the offender suddenly or quickly or forcibly seizes or secures or grabs or takes away from any person or from his possession any movable property. Whoever commits snatching shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine., Whoever commits theft (a) in any building, tent or vessel used as a human dwelling or used for the custody of property; or (b) of any means of transport used for the transport of goods or passengers; or (c) of any article or goods from any means of transport used for the transport of goods or passengers; or (d) of idol or icon in any place of worship; or (e) of any property of the Government or of a local authority, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations. (a) A commits theft on property in Z's possession; and while committing this theft, he has a loaded pistol under his garment, having provided this pistol for the purpose of hurting Z in case Z should resist. A has committed the offence defined in this section. (b) A picks Z's pocket, having posted several of his companions near him, in order that they may restrain Z, if Z should perceive what is passing and should resist, or should attempt to apprehend A. A has committed the offence defined in this section., (1) Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. Illustrations. (a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A has committed extortion. (b) A threatens Z that he will keep Z's child in wrongful confinement, unless Z will sign and deliver to A a promissory note binding Z to pay certain monies to A. Z signs and delivers the note. A has committed extortion. (c) A threatens to send club-men to plough up Z's field unless Z will sign and deliver to B a bond binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sign and deliver the bond. A has committed extortion. (d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A. Z signs and delivers the paper to A. Here, as the paper so signed may be converted into a valuable security. A has committed extortion. (e) A threatens Z by sending a message through an electronic device that Your child is in my possession, and will be put to death unless you send me one lakh rupees. A thus induces Z to give him money. A has committed extortion. (2) Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. (3) Whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in fear, of any injury, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (4) Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (5) Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any other, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (6) Whoever, in order to the committing of extortion, puts or attempts to put any person in fear of an accusation, against that person or any other, of having committed, or attempted to commit, an offence punishable with death or with imprisonment for life, or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (7) Whoever commits extortion by putting any person in fear of an accusation against that person or any other, of having committed or attempted to commit any offence punishable with death, or with imprisonment for life, or with imprisonment for a term which may extend to ten years, or of having attempted to induce any other person to commit such offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., (1) In all robbery there is either theft or extortion. (2) Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. (3) Extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation. The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations. (a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery. (b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery. (c) A meets Z and Z's child on the high road. A takes the child, and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z. (d) A obtains property from Z by saying Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees. This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child. (4) Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. (5) Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. (6) If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine., (1) When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit dacoity. (2) Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. (3) If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which shall not be less than ten years, and shall also be liable to fine. (4) Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. (5) Whoever is one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine. (6) Whoever belongs to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine., If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years., If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years., Whoever belongs to any gang of persons associated in habitually committing theft or robbery, and not being a gang of dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine., Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which shall not be less than six months but which may extend to two years and with fine. Illustrations. (a) A takes property belonging to Z out of Z's possession, in good faith believing at the time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section. (b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent. Here, if A was under the impression that he had Z's implied consent to take the book for the purpose of reading it, A has not committed theft. But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this section. (c) A and B, being joint owners of a horse. A takes the horse out of B's possession, intending to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this section. Explanation 1. A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Illustration. A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has committed an offence under this section. Explanation 2. A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it. What are reasonable means or what is a reasonable time in such a case, is a question of fact. It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believe that the real owner cannot be found., A finds a rupee on the high road, not knowing to whom the rupee belongs, A picks up the rupee. Here A has not committed the offence defined in this section., A finds a letter on the road, containing a bank-note. From the direction and contents of the letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence under this section., A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost the cheque. But the name of the person, who has drawn the cheque, appears. A knows that this person can direct him to the person in whose favour the cheque was drawn. A appropriates the cheque without attempting to discover the owner. He is guilty of an offence under this section., A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z, but afterwards appropriates it to his own use. A has committed an offence under this section., A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it belongs to Z, and appropriates it to his own use. A is guilty of an offence under this section., A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to discover the owner. A is guilty of an offence under this section., Whoever dishonestly misappropriates or converts to his own use any property, knowing that such property was in the possession of a deceased person at the time of that person's death, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine, and if the offender at the time of such person's death was employed by him as a clerk or servant, the imprisonment may extend to seven years. Illustration. Z dies in possession of furniture and money.
id_112	11	His servant A, before the money comes into the possession of any person entitled to such possession, dishonestly misappropriates it. A has committed the offence defined in this section. Of criminal breach of trust 316. (1) Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person to do so, commits criminal breach of trust. Explanation 1. A person, being an employer of an establishment whether exempted under section 17 of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 or not who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2. A person, being an employer, who deducts the employee's contribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act, 1948 shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Illustrations. A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust. Dishonest misappropriation of property possessed by deceased person at the time of his death. Criminal breach of trust. A, a warehouse-keeper, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust. A, residing in Kolkata, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits one lakh rupees to A, with directions to A to invest the same in Company’s paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust. A, a revenue officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust. A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust., (2) Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. (3) Whoever, being entrusted with property as a carrier, wharfinger or warehouse keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (4) Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (5) Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Of receiving stolen property 317. (1) Property, the possession whereof has been transferred by theft or extortion or robbery or cheating, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India, but, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. (2) Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (3) Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. (4) Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (5) Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Of cheating 318. (1) Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation. A dishonest concealment of facts is a deception within the meaning of this section. Illustrations. A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats. A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats. A, by exhibiting to Z a false sample of an article intentionally deceives Z into believing that the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats. A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats. A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats. A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract. A intentionally deceives Z into a belief that A has performed A's part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats. A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats. (2) Whoever cheats shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (3) Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. (4) Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Of cheating by personation 319. (1) A person is said to cheat by personation if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation. The offence is committed whether the individual personated is a real or imaginary person. Illustrations. A cheats by pretending to be a certain rich banker of the same name. A cheats by personation. A cheats by pretending to be B, a person who is deceased. A cheats by personation. (2) Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both., Of fraudulent deeds and dispositions of property 320. Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or transfers or causes to be transferred to any person, without adequate consideration, any property, intending thereby to prevent, or knowing it to be likely that he will thereby prevent, the distribution of that property according to law among his creditors or the creditors of any other person, shall be punished with imprisonment of either description for a term which shall not be less than six months but which may extend to two years, or with fine, or with both. 321. Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 322. Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed or instrument which purports to transfer or subject to any charge any property, or any interest therein, and which contains any false statement relating to the consideration for such transfer or charge, or relating to the person or persons for whose use or benefit it is really intended to operate, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 323. Whoever dishonestly or fraudulently conceals or removes any property of himself or any other person, or dishonestly or fraudulently assists in the concealment or removal thereof, or dishonestly releases any demand or claim to which he is entitled, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Of mischief 324. (1) Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief. Explanation 1. It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2. Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. Illustrations. A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has committed mischief. A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief. A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief. A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed mischief. A, having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to the underwriters. A has committed mischief. A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship. A has committed mischief. A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A has committed mischief. A causes cattle to enter upon a field belonging to Z, intending and knowing that he is likely to cause damage to Z's crop. A has committed mischief. (2) Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. (3) Whoever commits mischief and thereby causes loss or damage to any property including the property of Government or Local Authority shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. (4) Whoever commits mischief and thereby causes loss or damage to the amount of twenty thousand rupees and more but less than one lakh rupees shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (5) Whoever commits mischief and thereby causes loss or damage to the amount of one lakh rupees or upwards shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. (6) Whoever commits mischief, having made preparation for causing to any person death, or hurt, or wrongful restraint, or fear of death, or of hurt, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine., Section 325. Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Section 326. Whoever commits mischief by, (a) doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both; (b) doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both; (c) doing any act which causes or which he knows to be likely to cause an inundation or an obstruction to any public drainage attended with injury or damage, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both; (d) destroying or moving any sign or signal used for navigation of rail, aircraft or ship or other thing placed as a guide for navigators, or by any act which renders any such sign or signal less useful as a guide for navigators, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; (e) destroying or moving any landmark fixed by the authority of a public servant, or by any act which renders such landmark less useful as such, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; (f) fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property including agricultural produce, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; (g) fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 327. (1) Whoever commits mischief to any rail, aircraft, or a decked vessel or any vessel of a burden of twenty tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he will thereby destroy or render unsafe, that rail, aircraft or vessel, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (2) Whoever commits, or attempts to commit, by fire or any explosive substance, such mischief as is described in sub‑section (1), shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Section 328. Whoever intentionally runs any vessel aground or ashore, intending to commit theft of any property contained therein or to dishonestly misappropriate any such property, or with intent that such theft or misappropriation of property may be committed, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Of criminal trespass 329. (1) Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence is said to commit criminal trespass. (2) Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit house‑trespass. Explanation. The introduction of any part of the trespasser’s body is entering sufficient to constitute house‑trespass. (3) Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both. (4) Whoever commits house‑trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. (5) Whoever commits house‑trespass having taken precautions to conceal such house‑trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit lurking house‑trespass. (6) A person is said to commit house‑breaking who commits house‑trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or having committed an offence therein, he quits the house or any part of it in any of the following ways, namely: (a) if he enters or quits through a passage made by himself, or by any abettor of the house‑trespass, in order to the committing of the house‑trespass; (b) if he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building; (c) if he enters or quits through any passage which he or any abettor of the house‑trespass has opened, in order to the committing of the house‑trespass by any means by which that passage was not intended by the occupier of the house to be opened; (d) if he enters or quits by opening any lock in order to the committing of the house‑trespass, or in order to the quitting of the house after a house‑trespass; (e) if he effects his entrance or departure by using criminal force or committing an assault, or by threatening any person with assault; (f) if he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house‑trespass. (7) Whoever commits lurking house‑trespass or house‑breaking shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine. (8) Whoever commits lurking house‑trespass or house‑breaking after sunset and before sunrise shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. (9) Whoever commits lurking house‑trespass or house‑breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of imprisonment may be extended to ten years. (10) Whoever commits lurking house‑trespass or house‑breaking after sunset and before sunrise, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of imprisonment may be extended to fourteen years. (11) Whoever commits lurking house‑trespass or house‑breaking, having made preparation for causing hurt to any person, or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt or of assault or of wrongful restraint, shall be punished with imprisonment of either description or a term which may extend to ten years, and shall also be liable to fine. (12) Whoever commits lurking house‑trespass or house‑breaking after sunset and before sunrise, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine. (13) Whoever, whilst committing lurking house‑trespass or house‑breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (14) If, at the time of the committing of lurking house‑trespass or house‑breaking after sunset and before sunrise, any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house‑trespass or house‑breaking after sunset and before sunrise shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. (15) Whoever commits house‑trespass in order to the committing of any offence punishable with death, shall be punished with imprisonment for life, or with rigorous imprisonment for a term not exceeding ten years, and shall also be liable to fine; (b) punishable with imprisonment for life, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine; (c) punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine: Provided that if the offence intended to be committed is theft, the term of imprisonment may be extended to seven years. (16) Whoever commits house‑trespass, having made preparation for causing hurt, assault, wrongful restraint or fear of hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (17) (1) Whoever breaks open or unfastens any closed receptacle which contains or which he believes to contain property, dishonestly or with intent to commit mischief, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
id_112	12	Whoever, being entrusted with any closed receptacle which contains or which he believes to contain property, without having authority to open the same, dishonestly, or with intent to commit mischief, breaks open or unfastens that receptacle, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., A person is said to make a false document or false electronic record when: (A) He dishonestly or fraudulently (i) makes, signs, seals or executes a document or part of a document; (ii) makes or transmits any electronic record or part of any electronic record; (iii) affixes any electronic signature on any electronic record; (iv) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or (B) without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or (C) dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person, by reason of unsoundness of mind or intoxication, cannot, or that by reason of deception practised upon him, does not know the contents of the document or electronic record or the nature of the alteration., Illustrations: (a) A has a letter of credit on B for rupees ten thousand, written by Z. To defraud B, A adds a cipher to make the sum one lakh, intending B to believe Z wrote the letter; A has committed forgery. (b) A, without Z's authority, affixes Z's seal to a document purporting to convey an estate from Z to A, intending to sell the estate to B and obtain purchase money; A has committed forgery. (c) A picks up a cheque signed by B, payable to bearer, with no sum entered, and fraudulently inserts ten thousand rupees; A commits forgery. (d) A leaves a cheque signed by A with his agent B, authorising B to insert a sum not exceeding ten thousand rupees; B fraudulently inserts twenty thousand rupees; B commits forgery. (e) A draws a bill of exchange on himself in the name of B without B's authority, intending to discount it as a genuine bill and to take it up on maturity; A is guilty of forgery. (f) Z's will states that the remaining property be equally divided between A, B and C. A dishonestly scratches out B's name, intending the whole to be left to himself and C; A has committed forgery. (g) A endorses a Government promissory note payable to Z or his order, writing \Pay to Z or his order\ and signing the endorsement; B dishonestly erases those words, converting the special endorsement into a blank endorsement; B commits forgery. (h) A sells and conveys an estate to Z and later, to defraud Z, executes a conveyance of the same estate to B dated six months earlier than the conveyance to Z, intending it to be believed that the estate was conveyed to B before Z; A has committed forgery. (i) Z dictates his will to A; A intentionally writes a different legatee than the one named by Z, represents to Z that he has prepared the will according to Z's instructions, and induces Z to sign; A has committed forgery. (j) A writes a letter and signs it with B's name without B's authority, certifying that A is a man of good character and in distressed circumstances, intending to obtain alms from Z and others; A has committed forgery. (k) A, without B's authority, writes a letter and signs it in B's name certifying A's character, intending to obtain employment under Z; A has committed forgery., Explanation 1: A man's signature of his own name may amount to forgery. Illustrations: (a) A signs his own name to a bill of exchange, intending it to be believed that the bill was drawn by another person of the same name; A has committed forgery. (b) A writes the word \accepted\ on a piece of paper and signs it with Z's name, so that B may later draw a bill of exchange on Z and negotiate it as though Z had accepted it; A is guilty of forgery, and if B, knowing the fact, draws the bill pursuant to A's intention, B is also guilty of forgery. (c) A picks up a bill of exchange payable to the order of a different person of the same name, endorses the bill in his own name, intending it to be believed that it was endorsed by the person to whose order it was payable; A has committed forgery. (d) A purchases an estate sold under execution of a decree against B. After the seizure, B, in collusion with Z, executes a lease of the estate to Z at a nominal rent for a long period and antedates the lease by six months, intending to defraud A; B, though executing the lease in his own name, commits forgery by antedating it., Explanation 2: The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Illustration: A draws a bill of exchange upon a fictitious person and fraudulently accepts the bill in the name of that fictitious person with intent to negotiate it; A commits forgery., Explanation 3: For the purposes of this section, the expression \affixing electronic signature\ shall have the meaning assigned to it in clause (d) of sub‑section (1) of section 2 of the Information Technology Act, 2000., Section 336: (1) Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. (2) Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (3) Whoever commits forgery, intending that the forged document or electronic record shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (4) Whoever commits forgery, intending that the forged document or electronic record shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine., Section 337: Whoever forges a document or an electronic record purporting to be a record or proceeding of or in the Supreme Court of India, or an identity document issued by the Government including voter identity card or Aadhaar Card, or a register of birth, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation: For the purposes of this section, \register\ includes any list, data or record of any entries maintained in electronic form as defined in clause (r) of sub‑section (1) of section 2 of the Information Technology Act, 2000., Section 338: Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Section 339: Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 337 of this Code, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 338, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Section 340: (1) A false document or electronic record made wholly or in part by forgery is designated a forged document or electronic record. (2) Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record shall be punished in the same manner as if he had forged such document or electronic record., Section 341: (1) Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under section 338 of this Code, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (2) Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any section of this Chapter other than section 338, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (3) Whoever possesses any seal, plate or other instrument knowing the same to be counterfeit shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. (4) Whoever fraudulently or dishonestly uses as genuine any seal, plate or other instrument knowing or having reason to believe the same to be counterfeit shall be punished in the same manner as if he had made or counterfeited such seal, plate or other instrument., Section 342: (1) Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document described in section 338, intending that such device or mark shall be used to give the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which such device or mark has been counterfeited, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (2) Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document or electronic record other than the documents described in section 338, intending that such device or mark shall be used to give the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who with such intent has in his possession any material upon or in the substance of which such device or mark has been counterfeited, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Section 343: Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or secretes or attempts to secrete any document which is or purports to be a will, an authority to adopt a son, or any valuable security, or commits mischief in respect of such document, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Section 344: Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully, and with intent to defraud, makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Explanation: It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded or specifying any particular sum of money intended to be the subject of the fraud, or any particular day on which the offence was committed., Section 345: (1) A mark used for denoting that movable property belongs to a particular person is called a property mark. (2) Whoever marks any movable property or goods or any case, package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not belong, is said to use a false property mark. (3) Whoever uses any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Section 346: Whoever removes, destroys, defaces or adds to any property mark, intending or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Section 347: (1) Whoever counterfeits any property mark used by any other person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (2) Whoever counterfeits any property mark used by a public servant, or any mark used by a public servant to denote that any property has been manufactured by a particular person or at a particular time or place, or that the property is of a particular quality or has passed through a particular office, or that it is entitled to any exemption, and uses as genuine any such mark knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine., Section 348: Whoever makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a property mark, or has in his possession a property mark for the purpose of denoting that any goods belong to a person to whom they do not belong, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both., Section 349: Whoever sells, or exposes, or has in his possession for sale, any goods or things with a counterfeit property mark affixed to or impressed upon the same or upon any case, package or other receptacle in which such goods are contained, shall, unless he proves (a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark; (b) that, on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained such goods or things; and (c) that otherwise he had acted innocently, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Section 350: (1) Whoever makes any false mark upon any case, package or other receptacle containing goods, in a manner reasonably calculated to cause any public servant or any other person to believe that such receptacle contains goods which it does not contain or that it does not contain goods which it does contain, or that the goods contained in such receptacle are of a nature or quality different from the real nature or quality thereof, shall, unless he proves that he acted without intent to defraud, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. (2) Whoever makes use of any false mark in any manner prohibited under sub‑section (1) shall, unless he proves that he acted without intent to defraud, be punished as if he had committed the offence under sub‑section (1)., Section 351: (1) Whoever threatens another by any means, with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. (2) Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (3) Whoever commits the offence of criminal intimidation by threatening to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. (4) Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence under sub‑section (1)., Section 352: Whoever intentionally insults in any manner, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Section 353: (1) Whoever makes, publishes or circulates any statement, false information, rumor or report, including through electronic means (a) with intent to cause, or which is likely to cause, any officer, soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or otherwise disregard or fail in his duty as such; or (b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against public tranquility; or (c) with intent to incite, or which is likely to incite, any class or community of persons to commit any offence against any other class or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (2) Whoever makes, publishes or circulates any statement or report containing false information, rumor or alarming news, including through electronic means, with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (3) Whoever commits an offence specified in sub‑section (2) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies shall be punished with imprisonment which may extend to five years and shall also be liable to fine. Exception: It does not amount to an offence when the person making, publishing or circulating any such statement, false information, rumor or report has reasonable grounds for believing that such statement, false information, rumor or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid., Section 354: Whoever voluntarily causes or attempts to cause any person to do anything which that person is not legally bound to do, or to omit to do anything which he is legally entitled to do, by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of divine displeasure if he does not do the thing, or if he does the thing which the offender seeks to cause him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Illustrations: (a) A sits dharna at Z's door with the intention of causing it to be believed that, by so sitting, he renders Z an object of divine displeasure; A has committed the offence defined in this section. (b) A threatens Z that, unless Z performs a certain act, A will kill one of A's own children, under such circumstances that the killing would be believed to render Z an object of divine displeasure; A has committed the offence defined in this section., Section 355: Whoever, in a state of intoxication, appears in any public place, or in any place which it is a trespass for him to enter, and there conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to twenty‑four hours, or with fine which may extend to one thousand rupees, or with both, or with community service., Section 356: (1) Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner 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, except in the cases hereinafter excepted, to defame that person. 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 hurtful to the feelings of his family or other near relatives. Explanation 2: It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3: An imputation in the form of an alternative or expressed irony may amount to defamation. Explanation 4: 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, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. Illustrations: (a) A says Z is an honest man; he never stole B's watch; intending to cause it to be believed that Z did steal B's watch. This is defamation, unless it falls within one of the exceptions. (b) A is asked who stole B's watch. A points to Z, intending to cause it to be believed that Z stole B's watch. This is defamation, unless it falls within one of the exceptions. (c) A draws a picture of Z running away with B's watch, intending it to be believed that Z stole B's watch. This is defamation, unless it falls within one of the exceptions. Exception 1: It is not defamation to impute anything which is true concerning any person, if it is for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Exception 2: It is not defamation to express in good faith any opinion whatsoever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Exception 3: It is not defamation to express in good faith any opinion whatsoever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.

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