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Patna High Court Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.2294 of 2015 Arising out of Civil Writ Jurisdiction Case No. 17721 of 2015 =========================================================== Amrawati Devi, wife of Sri Dinanath Yadav, Resident of Mohallla- Manik Chand Talab, P.O. Anishabad, P.S. Gardanibagh, District- Patna. .... .... Appellant Versus 1. The State of Bihar through the Principal Secretary, Urban Development and Town Planning Department, Government of Bihar, Patna. 2. The Principal Secretary, Urban Development and Town Planning Department, Government of Bihar. 3. The Principal Secretary, Department of Law and Justice Department, Government of Bihar. 4. Patna Municipal Corporation through its Chief Executive Officer, Maurya Lok Building, Bailey Road, Patna. 5. Mr. Binod Kumar, son of Sri Janak Prasad Singh, Resident of Mohalla- Mohanpur, Punaichak, P.O and P.S. Shastri Nagar, District- Patna. 6. Roop Narayan, son of Shri Ram Narayan Prasad, Resident of Mohalla- Mehandiganj, P.O and P.S. Patna City, District-Patna, Bihar. . . . . . . . . R e s p o n d e n t s =========================================================== Appearance : For the Appellant : Mr. Vinod Kanth, Sr. Advocate. Mr. S.B.K. Manglam, Advocate. Mr. Ravi Ranjan, Advocate. For the State : Mr. Lalit Kishore, P.A.A.G. Mr. U.S.S. Singh, G.P.-I Mr. R.K. Chandram, A.C. to G.P.-I For Respondent No. 6 : Mr. Jitendra Singh, Sr. Advocate. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 1 Mr. Piyush Lall, Advocate. Mr. Yash Singh, Advocate Mr. Tej Pratap Singh, Advocate. Mr. Kamal Kishore Singh, Advocate. F o r t h e C o r p o r a t i o n : M r . P r a s o o n S i n h a , A d v o c a t e . =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI, A.C.J. and HONOURABLE MR. JUSTICE HEMANT GUPTA C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 22 -06-2016 The present Letters Patent Appeal is directed against an order, dated 14th of December, 2015, passed by the learned Single Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 2 /22 Bench of this Court in C.W.J.C. No. 17721 of 2015, whereby the writ application filed by Respondent No. 6 removing him from the post of Deputy Chief Councillor-cum-Deputy Mayor of the Patna Municipal Corporation was set aside. 2. The facts, in brief, are that the elections of the Municipal Corporation, Patna, were held in the year 2012 and Respondent No. 6 herein, Roop Narayan, was elected as Deputy Chief Councillor of the Corporation. A complaint was filed by Binod Kumar, Respondent No. 5 herein, seeking removal of Roop Narayan from the post of Deputy Chief Councillor, inter alia, on the ground that he has avoided to attend three consecutive meetings of the Empowered Standing Committee and, thus, lost interest in the affairs of the Municipal Corporation. On account of failure to attend three consecutive meetings of the Empowered Standing Committee, it was submitted that Roop Narayan incurred disqualification entailing removal from the post of Deputy Chief Councillor under Section 25(5) of the Bihar Municipal Act, 2007 (hereinafter referred to as "the Act"). 3. Since no action was taken on the complaint, the Respondent No. 5, Binod Kumar, invoked the writ jurisdiction of this Court for directing the respondents to take an appropriate decision on the complaint made by him. This Court disposed of the writ Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 3 /22 application on 2nd of February, 2015, with a direction to the Principal Secretary, Urban Development and Housing Department, Government of Bihar, to take an appropriate action in accordance with law after giving an opportunity of hearing to the contesting parties, preferably, within six months of the receipt/production of a copy of the said order. The said order reads as under:- "The limited grievance raised by the petitioner in this writ petition is that an application filed before the Principal Secretary under Section 25(5) {incorrectly mentioned as 25(4)} of the Bihar Municipal Act, 2007 (hereinafter referred to as „the Act) seeking removal of the private respondent No. 4 remains pending before the Principal Secretary though it was filed on 23.9.2014. A statutory application filed before the statutory authority requires disposal in accordance with law and cannot be allowed to remain pending and thus considering Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 2 the limited grievance raised in this writ petition, the present application is disposed of with the direction to the Principal Secretary, Urban Development and Housing Department, Government of Bihar to consider the petition filed on behalf of the petitioner on 23.9.2014, a copy of which is placed at Annexure-6 to the writ petition and dispose of the same in accordance with law and after giving opportunity of hearing to the contesting parties including the respondent No. 4, expeditiously and preferably within six months from the date of receipt/production of a copy of this order." 4. Since the order, dated 2nd of February, 2015 aforementioned, was not complied with a contempt application was filed. It was during the pendency of the contempt application that a Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 4 /22 final order was passed by the Principal Secretary, Urban Development and Housing Department, Government of Bihar, on 30th of October, 2015, whereby Roop Narayan was removed from the post of Deputy Chief Councillor, Patna Municipal Corporation. 5. The argument of the writ petitioner before the learned Single Bench, inter alia, was that in terms of Section 25(5) of the Act, an order could be passed only by the State Government and that jurisdiction would vest in the Minister-in-Charge of the Department in view of Rules 5, 11, 21, 22 and 23 of the Rules of Executive Business and the schedule thereto framed by the Hon'ble Governor under Article 166 of the Constitution of India. Learned Single Bench accepted the argument and held that the removal of Roop Narayan is by an authority not authorized by law. 6. Another argument raised was that the meetings, the non attendance of which, led to the removal of the Roop Narayan, are not the meetings of the Municipality, but that of the Empowered Standing Committee. The learned Single Bench did not agree with the argument that failure to attend the meetings of the Municipality alone will not lead to violation of Section 25(5) of the Act. It was held that failure to attend meetings of Empowered Standing Committee also leads to disqualification. The learned Single Bench allowed the writ application on the ground that the impugned order has been issued by Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 5 /22 the Principal Secretary, Urban Development and Housing Department, Government of Bihar, and such order cannot be termed as an order of the State Government. Learned Single Bench has held that in terms of the Rules of Executive Business notified by the authorities of the Governor in terms of Article 166 of the Constitution of India, the executive power of the State could be exercised only by the Minister-in-Charge of the Department or in terms of the standing orders issued by the Minister-in-Charge. Since there is no standing order issued and the order has not been passed by the Minister-in- Charge, it is not an order by the State Government. 7. Before examining the respective contentions of the parties, certain provisions of the Statute, relevant issues needs to be examined, e.g., Section 25(5) and Section 44 of the Act, which are reproduced hereinbelow:- "25(5). Without prejudice to the provisions under this Act, if, in opinion of the Government, the Chief Councillor/Deputy Chief Councillor absents himself without Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 3 sufficient cause for more than three consecutive meetings or sitting or wilfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Government may, after giving the Chief Councillor/Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 6 /22 [Provided that after appointment of Lok Prahari, under section-44, the Government, may pass order under this sub-section only on the basis of recommendation of such Lok Prahari]. (Ins by Act No. 7 of 2011) 8. Learned counsel for the respondents raised a preliminary objection that the Letters Patent Appeal has been filed by a person, who was not party before the learned Single Bench. She is a stranger to the lis and not competent to file an appeal against an order passed by the learned Single Bench, more so, when the State has not appealed against the judgment in question. Reliance has been placed over an order passed by the Hon'ble Supreme Court in Poonam Vs. State of U.P. & Ors., reported in (2016) 2 SCC 779. 9. The argument of the learned counsel for the appellant is that she was elected as a Deputy Chief Councillor after removal of Roop Narayan as Deputy Chief Councillor and, therefore, her rights are affected by the order setting aside removal of Roop Narayan. It is also argued that the appeal is by member of the Municipal Corporation and, in a matter of removal of an office-bearer of the Municipality, each of the member of the House would have a right to impugn any decision, which affects the rights of the Municipal Councillors as to who should work on and for the Municipal Corporation. It is further argued that not only the Municipal Councillors, but also any resident of the Municipal Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 7 /22 Corporation shall have a right in the matter of the office-bearers, who shall manage the Municipal Corporation. It is submitted that the judgment in Poonam's case (supra) deals with the right of allotment of a business site; whereas, the present case pertains to right or management of a Municipality, which cannot be equated as a right of property. The management of the Municipality is in public interest and any person, who has a right to be administrated by the Municipality, would have a right to dispute as to who shall manage the Municipality as well. 10. We have heard learned counsel for the parties on the preliminary objection raised and find no merit in the objection so raised by Mr. Jitendra Singh, Senior Advocate representing Respondent No. 6. 11. The issue, which was examined in Poonam's case (supra), was whether a subsequent allottee of a shop is a necessary party in a matter involving allotment of site. In an appeal challenging the order of cancellation of allotment, the Court, inter alia, held as under:- "17. The term "entitled to defend" confers an inherent right to a person if he or she is affected or is likely to be affected by an order to be passed by any legal forum, for Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 4 there would be violation of natural justice. The principle of audi alteram partem has its own sanctity but the said principle of natural justice is not always put in strait jacket formula. That apart, a person or an authority must have a legal right or Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 8 /22 right in law to defend or assail." 12. The Court also observed, in Poonam's case (supra), that the person, who has been elected in the meantime from amongst the member of the Panchayat Samiti or Sabha in a situation, where Sarpanch or the Chairman is removed and the challenge is by a Sarpanch or Chairman to the order of removal, the Court held that such person is not a necessary party. The relevant extract of the said judgment reads as under:- "47. Few examples can be given so that the position can be easily appreciated. There are provisions in some legislations pertaining to Gram Panchayat or Panchayat Samiti where on certain grounds the competent authority has been conferred the power to remove the elected Sarpanch or the Chairman, as the case may be on certain counts. Against the order of the Collector, an appeal lies and eventually either a revision or a writ lies to the High Court. After his removal, someone by way of indirect election from amongst the members of the Panchayats or the Panchayat Samiti is elected as the Sarpanch or the Chairman. The removed Sarpanch assails his order of removal as he is aggrieved by the manner, method and the reasons for removal. In his eventual success, he has to hold the post of the Sarpanch, if the tenure is there. The question, thus, arises whether the person who has been elected in the meantime from amongst the members of the Panchayat Samiti or Sabha is a necessary party. The answer has to be a categorical „no, for he cannot oppose the order of removal assailed by the affected Sarpanch nor can he defend his election because he has come into being because of a vacancy, arising due different situation." Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 9 /22 13. We find that the appellant, elected consequent to the vacancy fallen on account of removal of Roop Narayan, is a proper party in the appeal even if she is not a necessary party. She has a right to impugn the decision of setting aside the removal of Roop Narayan to which she, as a Municipal Councillor, has a right being a member of the elected representative body. We find that necessary party to be impleaded as respondent, in an application, stands on a different footing than right to file an appeal aggrieved against a decision, which affects the right of the entire elected body. Therefore, in view of Poonam's case (supra), we find that the appellant would have the right to file an appeal against the setting aside of the removal of Roop Narayan. Even otherwise also, any person aggrieved has a right to prefer an appeal under Clause X of the Letters Patent. 14. The argument that the State has not chosen to file an appeal against the order passed by the learned Single Bench and the appellant will, therefore, not have any right to dispute the setting aside of the removal of Roop Narayan is, again, misconceived. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 5 15. Though the State has not filed an appeal, but Mr. Lalit Kishore, Principal Additional Advocate General, submits that State adopts the argument of Mr. Binod Kanth, learned Senior Counsel for the appellant, assailing the order passed by the learned Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 10 /22 Single Bench. 16. We do not find that non-filing of appeal by State anyway forecloses the right of an aggrieved Municipal Councillor from disputing the setting aside of removal of the office bearer of the Municipality. A Municipal Councillor has an independent right in the manner of affairs of the Municipal Corporation and how they are conducted and, therefore, omission to filing of appeal by the State has no consequences so as to affect the rights of the appellant. 17. On merits, learned counsel for the appellant refers to a Constitution Bench decision reported in A. Sanjeevi Naidu etc., etc., Vs. State of Madras and another (AIR 1970 Supreme Court 1102) to contend that the Minister is not expected to burden himself with day-to-day administration. His primary function is to lay down the policies and programmes of his ministry, while the Council of Ministers settles the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as a delegate of a Minister. He does it on behalf of the Government. Relevant extract of the said judgment reads as under:- "12. The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 11 /22 Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working Minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates. 18. Reference was also made to Samsher Singh Vs. State of Punjab and another, (A.I.R. 1974 S.C. 2192), particularly, paragraph 35 thereof, which reads as under:- Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 6 "35. The Scheme was upheld for these reasons. The Governor makes rules under Article 166 (3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 12 /22 done on the advice of the Council of Ministers. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministrys department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister." 19. Learned counsel for the appellant further argued that Roop Narayan has not objected to the jurisdiction of the Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna, to pass an order of removal in response to the show- cause notice issued nor was such a plea raised in the writ application. It is only at the stage of argument that such an argument was raised and, therefore, the appellant is estopped from challenging his removal on the ground that it was not passed by the competent authority. 20. Mr. Jitendra Singh, learned Senior Counsel appearing for Roop Narayan, controverted the argument raised by Sri Binod Kanth and asserted that the Rules of Executive Business, framed by the Governor in terms of Article 166 of the Constitution of India, relates to executive business of the State, which include all Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 13 /22 activities excluding only legislative or judicial functions and, therefore, according to Mr. Jitendra Singh, the quasi-judicial function, while exercising the power under Section 25(5) of the Act, is required to be discharged only in terms of the rules of Executive Business framed and in no other manner. The rules of Executive Business contemplate such power shall be exercised by the Minister-in-Charge or in terms of the standing orders issued. He refers to the following provisions of the Rules of Executive Business, 1979, framed under Article 166(3) of the Constitution:- "5. The business of the Government shall be transacted in the departments specified in the First Schedule and shall be classified and distributed between those departments as laid down therein. 9. The Council shall be collectively responsible for all advice tendered to the Governor and all executive orders issued in the name of the Governor in accordance with these rules whether such advice is tendered or such order are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council or however otherwise. Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 7 11. Without prejudice to the provisions of rule 9, the Minister-in-Charge of department shall be primarily responsible for the disposal of the business appertaining to the department. 21. Except as otherwise provided by any other rule, cases shall ordinarily be disposed of by or under the authority of the Minister-in-Charge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the department. Copies of such standing orders shall be sent to the Governor and the Chief Minister. Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 14 /22 22. (1) Each Minister shall by means of standing orders arrange with the Principal Secretary/Secretary of the department concerned what matters or classes of matters are to be brought to its personal notice. Copies of such standing orders shall be sent to the Governor and the Chief Minister. (2) xxxx xxxx 21. After hearing learned counsel for the parties, we find that the issues raised are required to be examined in two parts; first part being whether the powers of the State Government in terms of Section 25(5) read with Section 2(106) of the Act means the Minister- in-Charge or the Principal Secretary to the Government. This question needs to be examined in order to determine whether the quasi-judicial order of removal falls within the realm of Executive Business required to be performed in the manner prescribed therein or it can be exercised by the Principal Secretary to the Government. The second part being that if the powers of the State Government have to be exercised by the Minister-in-Charge, whether such power can be exercised only by virtue of a standing order issued under Clause (22) of the Rules or whether approval by the Minister-in-Charge of the order passed by the Principal Secretary to the Government is sufficient delegation in terms of Clause (22) of the Rules. 22. The argument of Mr. Jitendra Singh, learned Senior Counsel for the respondent, is that the executive business of the State excludes legislative and judicial functions and all other functions Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 15 /22 including quasi-judicial functions will fall within the executive business of the State and, therefore, it is required to be performed strictly in accordance with the provisions of the Rules. Reliance was placed upon Gullapalli Nageswara Rao and others Vs. Andhra Pradesh State Road Transport Corporation and another, (A.I.R. 1959 Supreme Court 308), wherein it has been held as follows:- "28. At this stage, the argument hinted at but not seriously pressed, may be noticed. The Rules the Governor is authorised to make, the argument proceeds, are only to regulate the acts of the Governor or his subordinates in discharge of the executive power of the State Government, and, therefore, will not govern the quasi- judicial functions entrusted to it. There is a fallacy in this argument. The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 8 cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power. The procedural rules made by the Governor for the convenient transaction of business of the State Government apply also to quasi-judicial acts, provided those Rules conform to the principles of judicial procedure." 23. Reference was also made to the judgment in Samsher Singh's case (supra), the relevant extract is reproduced hereinbelow:- "29. The executive power is generally described as the residue which does not fall within the legislative or judicial power. But executive power may also partake of legislative or judicial actions. All powers and functions of the President except his legislative powers as for example in Article 123, viz., ordinance making power and all powers and functions of the Governor Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 16 /22 except his legislative power as for example in Article 213 being ordinance making powers are executive powers of the Union vested in the President under Art. 53(1) in one case and are executive powers of the State vested in the Governor under Article 154 (1) in the other case. Clause (2) or clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India under Cl. (1) of Article 77. Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the Government of the State under clause (1) of Article 166. The expression "Business of the Government of India" in clause (3) of Article 77, and the expression, "Business of the Government of the State" in Cl. (3) of Article 166 includes all executive business." 24. Article 166 of the Constitution of India provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor; whereas sub-clause (3) of Article 166 of the Constitution of India provides that the Governor shall make rules for the more convenient transaction of the executive business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. We find that the executive actions of the Government, appearing in Article 166, have to be given contextual interpretation. The executive actions, in terms of sub-clause (1) of Article 166 of the Constitution, will exclude only legislative and judicial functions or quasi-judicial functions having larger Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 17 /22 implications in the State, such as, framing of scheme including policy decisions after seeking objections from the parties concerned. It may not include action against an individual person as it has no semblance of any policy decision binding on the entire State, a hallmark of parliamentary form of democracy. 25. In Gullapalli Nageswara Rao's case (supra), the Supreme Court was considering Section 68-C of the Motor Vehicles Act, as amended in State of Andhra Pradesh, dealing with preparation of a transport scheme. Such a scheme was required to be given wide publication and after considering the objections, the scheme was to be finalized by the State Government applicable to the entire State. It was while considering such provisions that the Court held, in Gullapalli Nageswara Rao Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 9 (supra), that the act of the State Government, in approving the scheme, was in discharge of a quasi-judicial function and, therefore, the Government should have given personal hearing to the objectors. Minister-in-Charge was held to be personally responsible in terms of the rules. 26. In Samsher Singh's case (supra), one of the arguments was that power of the Governor to remove sub-ordinate Judge, under Article 134 read with Punjab Civil Service Rules, cannot be allocated to a Minister as it was incapable of allocation to a Minister. In Samsher Singh's case (supra), the Court held that it is Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 18 /22 fundamental principle of English Constitutional Law that Minister must accept the responsibility for every executive act. In Shamser Singh's case (supra), the Supreme Court, after considering the judgment in Sanjeevi Naidus case (supra), has observed as follows:- "35. The Scheme was upheld for these reasons. The Governor makes rules under Article 166 (3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be done on the advice of the Council of Minister. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a Civil Servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Ministrys department, there is in law no delegation because constitutionally the act or decision of the official is that of the Minister." 27. The question is : whether an order of removal of a member of a Municipal Corporation is an executive act of the State, which binds the Council of Ministers. If it is so, only then, the Minister-in-Charge will come into picture. 28. We find that removal of an office-bearer of a Municipal Corporation is not an act, which is required to be approved Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 19 /22 by the Council of Ministers inasmuch as it is an act, which does not deal with the concept of collective responsibility of the ministers. It is an act for non-performance of his functions of an individual member of the Municipal Corporation. The Rules are framed for convenient transaction of the business of the Government of the State. Such expression will include only those functions, which are required to be performed by Council of Ministers, such as, policy decisions having large ramification. The policy decisions, which will bind the State on account of the principle of collective responsibility alone require approval of the Minister-in- Charge. The order of removal is not an order required to be authenticated in the name of the Governor. As held in the judgments referred to above, the Minister cannot possibly discharge all functions. A Minister is responsible for preparing and giving effect to the policy decisions, which binds not only his Ministry, but the entire Council of Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 10 Ministers. Therefore, it will be required to be examined in each case whether a quasi-judicial act, required to be performed by the State, would be in exercise of the executive power of the State or it deals with individual cases not relating to any policy decision and, therefore, outside the purview of the executive power of the State. 29. The removal of a member has civil consequences. Therefore, a member cannot be removed unless he is served with a Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 20 /22 show cause notice giving opportunity to defend himself. It cannot be a function assigned to a Minister inasmuch as office of the Minister is political in nature and that of the Secretary to the State Government is apolitical. Since the issue is of removal of an elected representative and not leading to any policy decision, the same is required to be exercised by apolitical person, who is free from all bias and prejudices. Therefore, in the context of Section 25(5) of the Act, the powers of the Government are not required to be exercised by the Minister-in-Charge as the Rules have no applicability in relation to removal of a member inasmuch as it does not deal with executive power of the State. 30. In respect of the second question, this Court, in a writ application, had directed the Principal Secretary, Urban Development and Housing Department, Government of Bihar, to consider the petition filed by the complainant and dispose of the same in accordance with law. It is in pursuance of this direction that the Principal Secretary has passed an order after granting opportunity of hearing to the appellant. But before issuing the order, he has sought the approval from the Minister-in-Charge on 19.10.2015. The Minister-in-Charge approved proposal to issue orders on 29.10.2015. It is thereafter that the impugned order has been issued. 31. Rule 22 of the Rules empowers the Minister to Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 21 /22 arrange, by way of standing order, with the Principal Secretary concerned as to what matters or classes of matters are to be brought to his notice. Therefore, even if the decision was required to be taken by the Minister in terms of Rules 21 and 22 of the Rules, the fact remains that once the Minister had approved the decision of the Principal Secretary, it was an approval in terms of Rule 22 of the Rules. The standing orders are required to be issued in a class of cases to bring certainty to the affairs of the Department; but in an individual case, the approval of the Minister would mean delegation to the Principal Secretary and, thus, there is compliance of the Rules as well. Though the Rules have been held to be mandatory, the fact remains that the decision approving an order passed by the Principal Secretary by the Minister does not contradict any of the provisions of the Rules; rather, it supplements such Rules. It is well settled that there cannot be any action contradictory to the Rules, but the action can always be supplemented. Therefore, approval by the Minister of an order passed by the Principal Secretary complies with the rigours of the Rules as well and. therefore, in either situation, we find that the order of the learned Single Bench is not sustainable. 32. Another argument, which needs to be noticed is that Roop Narayan has not objected to the consideration of the show cause notice by the Principal Secretary. He has consented to the exercise of Patna High Court LPA No.2294 of 2015 dt. 22-06-2016 22 /22 jurisdiction by him. Had he objected at that time, the Principal Secretary, who was acting in terms of the orders of this Court, could have taken a decision to refer the complaint to Minister-in-Charge. Having failed to raise Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 11 objection at the time of hearing of the show- cause notice before the Principal Secretary, Roop Narayan is estopped to dispute the jurisdiction of the Principal Secretary in passing the order of appellant's removal from the post of Deputy Chief Councillor-cum-Deputy Mayor of the Patna Municipal Corporation. 33. Consequently, the Letters Patent Appeal is allowed and the order, under appeal, passed by the learned Single Bench, is hereby set aside and the writ application is dismissed. (Hemant Gupta, J) I. A. Ansari, ACJ : I agree. (I. A. Ansari, ACJ) P.K.P. N.A.F.R. U Amrawati Devi vs The State Of Bihar & Ors on 22 June, 2016 Indian Kanoon - http://indiankanoon.org/doc/89912182/ 12

trial3.pdf

Andhra High Court Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO M.A.C.M.A No.1656 of 2010 05-11-2014 Bajaj Allianz General Insurance Co. Ltd, Rep by its Regional Manager, Begumpet, Hyd..... Appellant M. Sreedevi and others.. Respondents Counsel for Appellant : Sri T. Mahender Rao Counsel for Respondent Nos.1 to 5: Sri Mohd. Yousuf Counsel for Respondent No.6 : Sri M. Achutha Reddy <Gist: >Head Note: ? Cases referred: 1) 2008 ACJ 2855 2) 2008 ACJ 1307 3) 2003(5) ALD 162 4) 2004 ACJ 1 (SC) 5) 1985 ACJ 1397 (SC) 6) 1995 ACJ 358 (AP) 7) 2009 ACJ 88 (AP) HONBLE SRI JUSTICE U. DURGA PRASAD RAO M.A.C.M.A.No.1656 of 2010 JUDGMENT: Challenging the award dated 14.07.2010 in O.P.No.542 of 2007 passed by the Chairman, M.A.C.T-cum-I Additional District Judge, at Mahabubnagar (for short the Tribunal), the 2nd respondent in the OP/ Bajaj Allianz General Insurance Company Limited preferred the instant appeal. 2) The factual matrix of the case is thus: a) The first claimant is the wife, claimants 2 to 4 are children and Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 1 fifth claimant is the mother of the deceasedM. Sudhakar. Their case is that on 28.06.2007, at about 7:00pm, when the deceased was proceeding on a motorcycle as pillion rider and when he reached near a factory, one motorcycle bearing No.AP 29 E 4956 came in opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the motorcycle of the deceased. In the resultant accident, the deceased sustained head injury and other injuries all over the body and lost consciousness. Immediately, he was shifted to Government hospital, Shadnagar and from there to Yashoda Hospital at Hyderabad and while undergoing treatment he succumbed to injuries on 30.06.2007. It is averred that the accident was occurred due to the fault of the driver of offending motorcycle. On these pleas, the claimants filed O.P.No.542 of 2007 against respondents 1 and 2, who are the owner and insurer of the offending motorcycle and claimed Rs.10,00,000/- as compensation. b) Respondents 1 and 2 filed separate counters. The 1st respondents contention is that it is a Milk Production Cooperative Union and it entered into an agreement with another Organisation, viz., Baif Institute for Rural Development ( BIRD-K) to extend technical support for artificial insemination programme for the benefit of farmers and for its use the 1st respondent purchased crime motorcycle bearing No.AP-29-E 4956 in the year 2004 and handed over to BIRD-K directly from Show- room since which time the employee of BIRD-K namely Sri M.Sagar Reddy was using the same and he committed the accident. The 1st respondent though is official owner but as per Section 2(30) of the MV Act, the BIRD-K is the real owner. Similarly, though the insurance policy stands in the name of 1st respondent, BIRD-K in fact paid the premium. Hence, BIRD-K is necessary party to the proceedings. It finally contended that the claim is excessive and untenable. c) The 2nd respondent/Insurance Company denying the material averments inter alia contended that the drivers of both vehicles had no driving licence at the time of accident and the 1st respondent knowingly handed over the vehicle to its driver and thus committed breach of terms of the policy. On this plea, the 2nd respondent disowned its liability. Finally, it contended that the claim is excessive and arbitrary and prayed for dismissal of O.P. d) During trial, PWs.l to 3 were examined and Exs.A.1 to A.9 were marked on behalf of claimants. RWs.1 and 2 were examined and Exs.B.1 to B.15 were marked on behalf of respondents. e) The Tribunal on appreciation of evidence, has awarded a sum of Rs.4,67,000/- with costs and interest at 7.5% p.a under different heads as follows: Loss of dependency Rs.3,51,000/- Medical expenses Rs.1,06,150/- Funeral expenses Rs. 2,000/- Loss of estate Rs. 2,500/- Loss of consortium Rs. 5,000/- --------------------- Total Rs.4,66,650/- --------------------- (Rounded off to Rs.4,67,000/-) Hence, the appeal by Insurance Company. 3) The parties in this appeal are referred as they stood before the Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 2 Tribunal. 4) Heard arguments of Sri T. Mahender Rao, learned counsel for appellant/ Insurance Company, Sri Mohd. Yousuf, learned counsel for respondent Nos.1 to 5/claimants and Sri M. Achutha Reddy, learned counsel for respondent No.6. 5a) While impugning the award, learned counsel for appellant Sri T. Mahender Rao firstly argued that as per contention of the 1st respondent, its organisation has handed over the vehicle after purchase to its technical supporter i.e., BIRD-K whose employee in due course of his employment committed the accident. Be that as it may, he argued, the enquiries caused by the appellant/Insurance Company revealed that M.Sagar Reddy the driver of the offending vehicle had no valid and effective driving licence by the date of accident and 1st respondent knowingly handed over the vehicle to him. The Insurance Company issued notices to 1st respondent and also M.Sagar Reddy to produce the driving licence but they failed to do so. As such, for the breach of terms of the policy instead of exonerating the 2nd respondent, the Tribunal erroneously placed burden on the Insurance Company to prove that the driver of the vehicle had no driving licence and held as if the appellant/Insurance Company failed to establish the same. Learned counsel relied upon the following judgment and argued that there was no liability for Insurance Company to prove the lack of driving licence and consequential breach of policy committed by insured. United India Insurance Company Limited v. Rakesh Kumar Arora Learned counsel vehemently argued that inspite of lack of burden on it, the same, the Insurance Company promptly issued notices to 1st respondent and driver to produce the driving licence but they failed and except that the Insurance Company could do nothing. So the Tribunal ought to have held that the Insurance Company discharged its burden and exonerated it. He relied upon a decision reported in Sardari and others v. Sushil Kumar and another and argued that in that case when the owner failed to discharge its statutory obligation of seeing that his driver had valid driving licence, the Apex Court exonerated the Insurance Company. b) Secondly, challenging the quantum of compensation, learned counsel argued that the Tribunal awarded Rs.1,06,000/- towards medical expenditure without there being proper proof of Ex.A-6 medical bills by the claimants. He relied on the decision in United India Insurance Company Limited v. Mohd.Khaja Rasool Sayyed and contended that medical documents like any other documents should be proved by the concerned party and no genuinity can be attached to them without proper proof. He thus prayed to allow the appeal. 6) Per contra, learned counsel for owner of the vehicle/1st respondent in O.P while supporting the award, argued that though the Tribunal disagreed with the contention of the 1st respondent that 1st respondent is only a nominal owner and BIRD-K is real owner, still, as the policy was in force and Insurance Company failed to prove driver lacking driving licence, the Tribunal rightly held it should indemnify the liability of the 1st respondent. He thus contended that the appeal at the instance of the Insurance Company is bereft of merits and liable to be dismissed. He argued that the decision in Sardaris case (2 supra) relied upon by the Insurance Company/appellant is not applicable to the present case as in that case the concerned driver, who was examined in the court admitted that he had no driving licence, whereas in the instant case, the Insurance Company failed to produce any Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 3 reliable evidence to hold that he had no driving licence. 7) Whereas the learned counsel for the claimants in the O.P/ respondent Nos.1 to 5 in the appeal supported the award. 8) In the light of the above rival arguments, the points for determination in this appeal are: 1) Whether the Tribunal was right in fixing the liability on the Insurance Company and if so whether the Insurance Company discharged its burden? 2) Whether the compensation awarded is just and reasonable or needs interference? 3) To what relief? 9) POINT NO.1 Accident, involvement of crime motorcycle bearing No.AP-29-E-4956 and death of deceased are not in dispute. Regarding ownership of the vehicle, the contention of the 1st respondent is that though the 1st respondent-Cooperative Union is the registered owner of the vehicle, but it handed over the vehicle to its technical supporter i.e., BIRD-K and their employee M.Sagar Reddy while using the vehicle, caused the accident and, therefore, under Section 2(30) of the Motor Vehicles Act,1988, BIRD-K has to be treated as the owner of the vehicle. The award shows that the Tribunal having regard to the admission of Rw.1 that as on the date of accident crime vehicle was in the name of the 1st respondent in the RTAs records, held that 1st respondent is the owner of the crime vehicle and it is liable to pay compensation to the claimants. The Tribunal further held that Exs.B-1 to B-9 record purportedly showing the handing over of the vehicle to BIRD-K organisation will not help 1st respondent to substantiate its contention that BIRD-K organisation is the owner of the said crime motorcycle. In my view Tribunal rightly held so. First respondent did not examine any authorised officer from BIRD-K to prove the alleged agreement between them. 10) Then the liability of the appellant/Insurance Company is concerned, the Tribunal following the dictum laid down by the Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh & others to the effect that the Insurance Company in order to avoid its liability must not only establish the available defences raised in the proceedings but must also establish breach on the part of the owner of the vehicle and the burden of proof where-for would be on them, has observed that in the instant case the appellant/Insurance Company failed to discharge its burden since it failed to examine the RTA officials to establish that M.Sagar Reddy-driver of the crime vehicle did not possess the driving licence and further it did not take steps to summon and examine the said M.Sagar Reddy to prove that he did not possess valid driving licence. The Tribunal also observed that in the charge-sheet the police have not charged M.Sagar Reddy for not possessing valid driving licence. On the aforesaid observations, the Tribunal held that the Insurance Company failed to discharge its burden that the driver had no driving license and the insured was guilty of negligence in fulfilling conditions of the policy regarding driving licence of the driver. Accordingly, the Tribunal directed respondent Nos.1 and 2 to pay compensation. 11a) As against, first contention of learned counsel for appellant is that there is no burden on the Insurance Company to prove that the driver had no valid driving license Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 4 and Tribunal erroneously placed burden on it to establish that fact contrary to the principle laid down in Rakesh Kumar Aroras case (1 supra). Nextly, he argued that proving the lack of driving licence is nothing but establishing a negative fact and even then the Insurance Company discharged the said onerous task by issuing notices to owner and driver vide Exs.B12 and B13 but they failed to respond. Learned counsel would argue that the Insurance Company could do nothing more. Under those circumstances the Tribunal ought to have drawn adverse inference against the insured that he knowingly allowed the unauthorised driver to drive the vehicle and thereby caused breach of terms of policy and accordingly exempted the Insurance Company from the liability. He would submit that as per Swaran Singhs case (4 supra) the burden is on the owner to see that the driver to whom he entrusted the vehicle is having valid driving licence. b) In the light of his arguments, I perused the award. Relying upon the Full Bench decision of the Apex Court in Swaran Singhs case (4 supra) the Tribunal held that burden is on the Insurance Company to establish the breach on the part of insured. The Apex Court in that case was dealing with vide spectrum of defence pleas of Insurance Companies basing on the deficiencies in driving licences. Such deficiencies are: a) Fake driving licenses of the driver. b) Driver not having licence whatsoever. c) No renewal of driving licence as on the date of accident. d) License granted for one class or description of vehicle but vehicle involved in accident was of different class or description. e) Driver holding only a learners licence. c) The Supreme Court after discussing various issues involved in this regard, summarised its findings which were excerpted in para-38 of the award and hence I am not reproducing here. The gist of the findings is that the Insurance Company in order to succeed its defence pleas touching the driving licence issues must: a) Firstly, establish that there is a breach of policy condition in respect of driving licence issue. b) Secondly, establish that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. c) Thirdly, the breach which was committed by the insured was so fundamental as is found to have contributed to the cause of the accident. d) So, by applying the above principles, the Tribunal rightly fixed the burden of establishing the breach of terms of policy on the Insurance Company. The appellant/Insurance Company relied upon Rakesh Kumar Aroras case (1 supra) to buttress his argument that burden of proving the lack of driving licence was not on the Insurance Company and Tribunal was at fault. However, in view of Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 5 Full Bench decision in Swaran Singhs case (4 supra) fixing responsibility on the Insurance company, I am unable to follow Rakesh Kumar Aroras case (1 supra). So, the first argument raised by the appellant/Insurance Company is negatived. 12) Then coming to next argument, a perusal of Ex.B12 and B13 would no doubt show that appellant/Insurance Company issued notices to owner and driver to produce the copy of driving licence for perusal and they have not responded. Hence, point is whether by that count an adverse inference can be drawn against the insurer and driver and consequently can it be held that the insurer discharged its burden. 13) It is imperative to peruse case law in this regard. (i) In the case of Narcinva V.Kamat and another vs. Alfredo Antonio Doe Martins and others appellant No.2 who was the partner of the firm owning the crime vehicle while driving the van committed accident. The Insurance Company repudiated its liability on the ground that he was not having valid driving licence. The Tribunal and High Court absolved the Insurance Company. In that context, firstly with regard to point whether the burden lies with the Insurance Company to prove the breach of the policy the Apex Court observed thus: If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. The language and the format in which issues Nos. 7 and 8 have been cast by the Tribunal clearly casts the burden of proof on the insurance company. Then, while appreciating the argument of Insurance Company that in the cross-examination of second appellant he agreed to produce his driving licence but failed to produce the same and hence an adverse inference must be drawn against him that he did not have a valid driving licence, the Apex Court while disagreeing held thus: The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer the insurance company. (Emphasis supplied) Thus, the Apex Court did not agree that mere admission by the driver in his cross-examination to produce driving licence and his failure will discharge the burden of Insurance Company. (ii) A learned single Judge of this High Court in United India Insurance Company Limited, Kurnool vs. Madiga Thappeta Ramakka and others while relying upon the above Supreme Court judgment in Narcinva V.Kamats case (5 supra) and other High Court decisions has observed thus: Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 6 As seen from the above pronouncements of the Supreme Court and other High Courts, the best method is to summon the driver to produce the driving licence, and also to take appropriate steps to examine him. If the driver and the owner of the offending vehicle remain ex parte, a duty is cast upon the court on the application of the insurance company to take appropriate steps to summon the driver and examine him. If the driver is summoned and if he has produced the driving licence it is sufficient. If he did not respond to the summons and did not appear nor did he produce the driving licence, an adverse inference can be drawn that he was not holding a valid driving licence. It is also the duty of the Insurance Company to summon the R.T.A. officials to produce the driving licence as the R.T.A. who issues the driving licence keeps record of the licence issue and renewed by it and the insurance company could have got the evidence produced to substantiate its defence. Either of the above two steps has not been taken by the insurance company. As already stated, if the driver, in spite of receipt of summons, has not been present and subjected himself for examination, the court is entitled to draw adverse inference. From the tenor of above observation the Court is entitled to draw adverse inference it appears, drawing adverse inference in the circumstances narrated supra is the discretion of the concerned court but not mandatory because it was held in the above decision that apart from summoning the driver and owner to produce the licence, it was also the duty of the Insurance Company to summon the RTA officials to produce the driving licence. (iii) In a subsequent decision reported in The National Insurance Company Limited rep. by its Divisional Manager vs. Parital Venkateswarlu and another another learned single Judge of this High Court happened to discuss about the liability of Insurance Company to prove non-possession of driving licence by the driver. He also happened to discuss whether issuing notice to the owner and driver by the Insurance Company would discharge its liability. Regarding the first aspect, learned Judge held that though it amounts to adducing negative evidence which is difficult in the ordinary circumstances, still the obligation is cast upon the insurer to prove such negative evidence so as to eventually absolve itself from the liability. Such burden is cast upon the insurer, obviously, in view of the fact that innocent claimant may not be knowing about existence or non-existence of the licence of the driver of the offending vehicle. Then, regarding the sufficiency of issuing notice to discharge the burden, learned Judge held thus: Para-19 .It is no doubt true that the second respondent - owner did not respond to the notice got issued by the appellant-insurer for causing production of the licence. That will not absolve the insurer from discharging its obligation to show before the Court that the owner has breached the condition of policy of possessing valid driving licence by the driver. 14) When the above decisions of the Supreme Court and our High Court are summed up, we can understand that mere eliciting from the owner/driver to produce licence and their consequential failure or mere issuing notice to the owner/driver to produce licence and their non- response by themselves are not sufficient to absolve the liability of Insurance Company to pay compensation and at best from the above circumstances the Court in its discretion may draw adverse presumption under Section 114(g) of Evidence Act against the owner and driver to the effect that driver had no valid driving licence. In view of the principles in Swaran Singhs case (4 supra), the Court cannot Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 7 exonerate the Insurance Company from its liability to pay comepnsation to third party merely by drawing such an adverse inference. The further burden lies on Insurance Company to establish that the owner has wilfully committed the breach of the policy by entrusting the vehicle to an unauthorised driver and the breach was so fundamental that resulted in the accident. 15) In the instant case, as rightly observed by the Tribunal, the appellant/Insurance Company has not summoned the RTA officials to establish that driver did not possess any driving licence. Moreover, the police have not charge sheeted the driver for not possessing valid driving licence. Considering all these, it must be held that the appellant/Insurance Company failed to establish the breach of the policy committed by the insured. 16) The cited decision in Sardaris case (2 supra) also will not help the appellant. In that case the driver of the crime vehicle was examined before the Tribunal and he admitted that he had not possessed valid driving licence. In that context, it was held that owner of the vehicle had statutory obligation to see that driver of the vehicle whom he authorised to drive the same holds a valid licence. Accordingly, the Supreme Court exonerated the Insurance Company in that case. However, the facts in the instant case are different. As observed supra, there is no cogent material in this case to conclude that driver had no valid driving licence. Therefore, the question of holding the 1st respondent guilty of negligence does not arise. This point is answered accordingly. 17a) POINT No.2: This point is concerned, the grievance of the appellant is that the Tribunal awarded Rs.1,06,150/- towards medical bills without proof of Ex.A6medical bills by the claimants. Ex.A6 medical bill was issued by Yashoda Hospital for Rs.1,06,150/- towards treatment charges of the deceased. b) In the cited decision in United India Insurance Company Limited v. Mohd.Khaja Rasool Sayyed (3 supra) it was held in the absence of any evidence in proof of documents through proper witnesses they cannot be accepted nor can be relied upon by the court and there can be no exception to medical documents. c) In the instant case, relying upon the evidence of PWs.1 and 3 the Tribunal allowed the aforesaid medical expenditure. PW1 who is the wife of deceased deposed that after critically injured in the accident on 27.06.2007 her husband underwent inpatient treatment till 30.06.2007 in Yashoda Super Speciality Hospital and succumbed to injuries and they incurred medical expenditure about 1.50 lakhs to 2 lakhs. She thus produced Ex.A6medical bill. PW3 is the consultant Neurosurgeon in Yashoda Hospital who performed brain operation to the deceased. He deposed that deceased suffered brain injury and abdomen injury and there was a large acute subdural haematoma and subarachnoid haemorrhage in all basal cisterns. He deposed that Ex.A6medical bill was issued by Yashoda Hospital. d) Having regard to proof offered by claimants relating to the critical nature of injuries, treatment and more particularly, the expenditure the Tribunal rightly approved Ex.A6medical bill. Hence, I Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 8 find no conviction in the argument of the appellant. This point is answered accordingly. 18) In the result, this MACMA is dismissed by confirming the award passed by the Tribunal in O.P.No.542 of 2007. No order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed. _________________________ U.DURGA PRASAD RAO, J. Dt.05.11.2014 Bajaj Allianz General Insurance ... vs M. Sreedevi And Others on 5 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/119217784/ 9

trial4.pdf

Delhi District Court Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Author: Sh. Manu Kharb IN THE COURT OF Ms. MANU GOEL KHARB METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI In Re: Case No. : 223/12 (Old CC no. 2663/1 dated 03.10.07) U/s. 138 Negotiable Instrument Act 1. CC No. : 223/12 2. Date of Institution : 03.10.2007 3. Name of the complainant, : The Madhav Co−operative parentage and residence Urban Thrift & Credit Society Ltd., E−17, East Uttam Nagar, Near Pali Factory, Uttam Nagar, New Delhi−59 (Through Sh. Satish Kumar Garg S/o Sh. Ghanshyam Dass Gupta, President/AR) 4. Name of accused : Sh. Alamgeer his parentage S/o Sh. Rafiq Ahmad and residence R/o B−254, JJ Colony, Hastsal, Uttam Nagar, New Delhi−59 Case No. 223/12 Madhav Co−operative Vs Alamgeer 1 of 2 5. Date when Judgment was reserved : 12.02.2014 6. Date when Judgment was pronounced : 22.02.2014 7. Offence complained of : U/s. 138 NI Act 8. Plea of accused : Not guilty 9. Final Judgment : Convicted Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 1 − :: JUDGMENT :: − BRIEF FACTS AND REASONS FOR DECISION OF THE CASE 1. By way of the present judgment, I shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant The Madhav Co−operative Urban Thrift and Credit Society Ltd through its President/AR Sh. Satish Kumar Garg against the accused Sh. Alamgeer S/o Sh. Rafiq Ahmad. 2. The facts in brief necessary for the disposal of the present case Case No. 223/12 Madhav Co− operative Vs Alamgeer 2 of 20 are that as per the allegations in the complaint, on 11.08.04, the accused took a loan of Rs.25,000/− from the complainant society vide loan account no. 2564 at interest of 18% per annum with the promise that the same shall be returned with interest and the accused executed loan agreement in this regard. The accused was irregular in making the payment of installments and therefore, settled his account upto 18.07.2007 for a sum of Rs.29,200/−. The accused for discharge of the said liability issued cheque bearing no. 284229 drawn on ICICI Bank, B−1, Milap Nagar, Najafgarh Road, Uttam Nagar, New Delhi in favour of the complainant. On presentation of the above said cheque the same was returned unpaid with the reasons "INSUFFICIENT FUNDS" vide cheque return memo dated 21.07.2007. Thereafter, the complainant served the legal notice of demand dated 13.08.2007 to the accused which was sent by Speed post with AD thereby calling upon the accused to make the payment in lieu of dishonored cheque. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. In consequence thereof the complainant has filed the instant complaint for prosecution of the accused U/s 138 Negotiable Instruments Act. Case No. 223/12 Madhav Co−operative Vs Alamgeer 3 of 20 3. After the complaint was filed, the President/Authorized Representative of the complainant society led his pre−summoning evidence by way of an affidavit and after hearing the AR for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 03.10.2007 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused, a separate notice U/s 251 Cr.P.C. dated 09.02.2012 was given to the accused to which he pleaded not guilty and claimed trial and the matter was fixed for complainant evidence. 4. In order to prove the case, Sh. Satish Kumar Garg, President/AR of the complainant got himself examined as CW−1 and reiterated the contents of the complaint on oath before this court and tendered his affidavit in evidence which is Ex. CW−1/X. He got exhibited the original cheque bearing no. 284248 dated 19.07.2007 of Rs.29,200/− drawon on ICICI Bank, B−1, Milap Nagar, Najafgarh Road, Uttam Nagar, New Delhi as Ex. CW1/A, Original cheque return memo dated 21.07.2007 as Ex. CW1/B, Copy of notice dated Case No. 223/12 Madhav Co−operative Vs Alamgeer Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 2 4 of 20 13.08.2007 as Ex. CW1/C, Postal receipt and acknowledgment Card is Ex. CW1/D and Ex. CW1/E. Sh. Satish Kumar Garg was cross− examined by the ld. Counsel for the accused. Thereafter, the complainant evidence was closed by the Ld. Counsel for the complainant. Thereafter, counsel for the complainant moved an application under section 311 CrPC for calling a bank witness to prove the dishonor of cheque. This application was allowed and Sh. Bikesh Sharma, Customer Service Officer, ICICI Bank Ltd was examined as CW2. He brought statement of account of the accused and exhibited the same as Ex. CW2/X and also identified the original cheque Ex. CW1/A and return memo already Ex. CW1/B. CW2 Bikesh Sharma was cross−examined by the ld. Counsel for the accused. Thereafter, the complainant evidence was closed by the Ld. Counsel for the complainant and the case was fixed for statement of the accused. 5. In his statement recorded U/s 313 Cr.P.C r/w Sec. 281 CrPC, all the incriminating evidence along with exhibited documents Case No. 223/12 Madhav Co−operative Vs Alamgeer 5 of 20 were put to the accused Alamgeer in which he stated that he had issued the cheque in question as a blank signed cheque for security purpose and admitted the receipt of legal notice of demand. He further stated that he complainant has mis−used the blank signed cheque given by him to the complainant prior to the disbursement of loan. Thereafter, the case was fixed for defence evidence. 6. Ld. counsel for the accused moved an application U/s 315 Cr.PC for allowing the accused to appear in his defence. The aforesaid application was allowed and accused himself deposed as DW1. Accused deposed that he was sanctioned a loan of Rs. 25000/− by the complainant and the latter also took one blank signed cheque from him at the time of disbursement of loan. He admitted the receipt of legal demand notice. Accused did not tender any document in support of his defence. Accused was cross−examined by the ld. Counsel for the complainant wherein he admitted that he did not give any reply to the legal notice of demand. In his defence, accused also examined his wife Shama Begum as DW2 who exhibited the payment receipts as Ex. DW2/A(15 pages Case No. 223/12 Madhav Co−operative Vs Alamgeer 6 of 20 colly). DW2 deposed that she was present at the time of loan and on complainant's demand, her husband Alamgeer gave them one blank signed cheque for loan. She also deposed that on some occasions no receipt was issued by the complainant. DW2 was cross−examined by the ld. Counsel for the complainant. No other defence witness was produced on behalf of the accused. Thereafter, defence evidence was closed at request of Ld. counsel for the accused and the case was fixed for final arguments. 7. Final arguments were addressed on behalf of both the parties. I have heard Ld. counsels for both the parties and perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 3 8. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:− Case No. 223/12 Madhav Co− operative Vs Alamgeer 7 of 20 (a) The accused issued a cheque on an account maintained by him with a bank. (b) The said cheque has been issued in discharge of any legal debt or other liability. (c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity. (d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured. (e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque. (f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act. 9. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the Case No. 223/12 Madhav Co−operative Vs Alamgeer 8 of 20 accused has been proved or not. 10. WHETHER THE CHEQUE WAS ISSUED OR NOT The accused has himself admitted to have signed the cheque in question while answering to the question at the time of framing of notice U/s 251 Cr. PC. Further while answering to the question U/s 313 Cr.PC the accused has admitted to have given the cheque in question to the complainant but he stated that the same was given in blank only after putting his signatures there for purpose of security at the time of taking the loan from complainant. Therefore, so far as signing and delivery of the cheque in question by the accused is concerned the same is not disputed. Moreover, in Jaipal Singh Rana Vs. Swaraj Pal 149 (2008) DLT 682 it was held by Delhi High Court that "by putting the amount and the name there is no material alteration on the cheque U/s 87 of the Negotiable Instruments Act. In fact there is no alteration but only adding the amount and the date. It was further observed in the aforesaid judgment that there is no rule of banking business that the name of the payee as well as the Case No. 223/12 Madhav Co−operative Vs Alamgeer 9 of 20 amount should be written by the drawer himself. No law provides that in case of cheques the entire body has to be written by the drawer only." Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 4 In view of the evidence on record it stands proved that the cheque in question was issued by the accused. 11. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheque in question which is Ex. CW−1/A is dated 19.07.2007 which got dishonored vide cheque returning memo which is Ex. CW−1/B dated 21.07.2007 which is not disputed by the accused clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque. 12. DISHONOUR OF CHEQUE IN QUESTION In the instant case, Satish Kumar Garg who has appeared as complainant's witness has got exhibited the cheque returning memo which is Ex. CW1/B to prove the fact of dishonour of the cheque in Case No. 223/12 Madhav Co−operative Vs Alamgeer 10 of 20 question. Complainant also examined bank witness Sh. Bikesh Sharma, to prove the dishonor of the cheque who correctly identified the cheque Ex. CW1/A and return memo Ex. CW1/B and stated that the same was issued by their bank mentioning 'insufficiency of funds' as the reason of dishonor. He produced the statement of account of the accused as Ex. CW2/X and stated that as the balance of the accused was not sufficient, so the entry of dishonor is not reflected in the statement of account. The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused. Therefore considering the entire evidence on record it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 21.07.2007 which is Ex. CW1/B with the reason "Insufficient Funds". 13. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in Case No. 223/12 Madhav Co−operative Vs Alamgeer 11 of 20 chief that the complainant got issued the legal notice of demand dated 13.08.2007 which is Ex. CW1/C and it was sent to the accused vide Spped Post with Regd. AD which are Ex. CW−1/D and Ex. CW1/E respectively. The accused has also admitted the receipt of legal notice of demand during framing of notice under section 251 CrPC and while answering to the question during his statement U/s 313 r/.w 281 Cr.PC as well as his examination in chief. In light of the evidence on record and the admission made by the accused, it stands proved that legal notice of demand was properly served upon the accused. 14. WHETHER THE CHEQUE IN QUESTION WAS ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in chief by way of affidavit that the accused was irregular in making payments and settled his account with the complainant for a sum of Rs. 29,200/− and issued the cheque in question in discharge of that Case No. 223/12 Madhav Co− operative Vs Alamgeer 12 of 20 liability. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 5 The accused has however deposed in his examination in chief that he had issued cheque in question to the complainant before the disbursement of loan as blank signed cheque, by way of security only and the same has been misused by the complainant. Before deciding this issue let us go through the relevant provisions of law. Section 46 of the Negotiable Instruments Act speaks of the delivery, it reads as follows:− "The making, acceptance or endorsement of a promisory notice, bill of exchange or cheque is completed by delivery, actual or constructive." Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made. (b) As to date − that every Negotiable Instrument bearing a a date was made or drawn on such date. Moreover, there is a presumption in favour of the complainant Case No. 223/12 Madhav Co− operative Vs Alamgeer 13 of 20 u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability. Now the Court shall examine whether the accused is successful in rebutting the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act. To rebut the presumption of section 139 of NI Act and section 118 (b) of NI Act, the sole ground of defence taken by the Ld counsel for accused is that the cheque in question was given to the complainant as blank signed cheque by way of security prior to the sanctioning of loan and that the cheque in question was issued by the Case No. 223/12 Madhav Co−operative Vs Alamgeer 14 of 20 accused in blank with only his signatures. To support this contention, the accused has failed to bring anything on record. DW2 Shama Begum, who is the wife of the accused has also stated in her examination of chief that the accused gave the cheque of ICICI Bank to the complainant for loan. A Security cheque if issued for any debt payable in presenti but such payment has been deferred to a future debt can be subject matter of proceedings under section 138 NI Act. In the present case, even it is presumed that the cheque has been issued for security purpose, it was meant for discharge of debt but the payment of which has been deferred to a future date. In this regard, the Hon'ble High Court of Delhi has observed in its judgment titled as Krish International P. Ltd & Ors Vs. State & Ors. MANU/DE/0302/2013 as :− "9. There is no dispute that the proposition of law as laid down in M/s Collage Culture that a cheque issued not for an existing due but issued by way of security would not attract the provisions of Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 6 Section 138 of the Act. In M/s Collage Culture the learned Single Judge of this Court (Pradeep Case No. 223/12 Madhav Co−operative Vs Alamgeer 15 of 20 Nandrajog, J.) drew distinction between a cheque issued for a debt in present but payable in future and second for a debt which may become payable in future upon the occurance of a contingent event. Paras 20 to 24 of the report in M/s Collage Culture are extracted hereunder :− 20. A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under Second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event. 21. The difference in the two kinds of post−dated cheques would be that the cheque issued under first circumstance would be for a debt due, only payable being postponed. The latter cheque would be by way of a security. 22. The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence Case No. 223/12 Madhav Co−operative Vs Alamgeer 16 of 20 as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event." Hence, it is sufficiently proved on record that the cheque in question was not issued by way of security but for payment of the amount received by the accused from the complainant. Further, even if we assume that the cheque in question was issued by the accused in blank with only his signatures, even then the law has been clearly laid down in this regard by Hon'ble Delhi High Court in M/s Jammu & Kashmir Bank vs. Abhishek Mittal, 2012 CD DCR 189, that :− "When a blank cheque is signed and handed over, it means that the person signing it has given the implied authority to the holder of the cheque, to fill up the blanks which he has left. A person issuing a blank cheque is supposed to understand the consequences of Case No. 223/12 Madhav Co−operative Vs Alamgeer 17 of 20 doing so. He cannot escape his liability only on the ground that blank cheque has been issued by him." "Once issuance of the cheque been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the Act for the discharge, in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque." Thus, the accused has failed to rebut the presumption under section 118 (b) of Negotiable Instruments Act. Therefore, presumption under section 118 (b) holds good and according to which cheque was issued by the accused in discharge of his legal Case No. 223/12 Madhav Co−operative Vs Alamgeer 18 of 20 liability. Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 7 Therefore, Court is of the considered opinion that the complainant has sufficiently been able to prove its case that the cheque in question was issued by the accused in discharge of his legal debt or liability. 15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case Sh. Satish Kumar Garg who has appeared as complainant's witness has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount. Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand. 16.In view of the aforesaid discussion, I am of the considered Case No. 223/12 Madhav Co−operative Vs Alamgeer 19 of 20 opinion that the complainant has sufficiently proved its case against the accused. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Alamgeer S/o Sh. Rafiq Ahmed is hereby convicted of the offence u/s 138 Negotiable Instruments Act. Let copy of this judgment be given free of cost to the convict. Announced in the open court today i.e. 22.02.2014 (MANU GOEL KHARB) METROPOLITAN MAGISTRATE DWARKA COURTS, NEW DELHI Case No. 223/12 Madhav Co−operative Vs Alamgeer 20 of 20 Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 Indian Kanoon - http://indiankanoon.org/doc/187477809/ 8

trial5.pdf

Madhya Pradesh High Court Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 1 HIGH COURT OF MADHYA PRADESH : JABALPUR. First Appeal No.961/2010 Harjas Rai Makhija -Versus- Smt. Pushparani Jain and another. PRESENT : Hon'ble Shri Justice K.K. Trivedi. Shri R.P. Agrawal, learned senior counsel assisted by Shri Sanjay Agrawal, learned counsel for the appellant. Smt. Shobha Menon, learned senior counsel assisted by Shri C.A. Thomas, learned counsel for the respondents. Shri P.S. Chouhan, learned counsel for respondent No.2. JUDGMENT (03.4.2012) 1: This appeal under Section 96 of the Code of Civil Procedure is against the Judgment and decree dated 28.9.2010, passed in regular Civil Suit No.471-A/2008 by the V Additional District Judge, Bhopal. The controversy in short involved can be summarised thus :- (i) A plot No.251 was allotted to the respondent No.1 on 19.9.1981 by the Bhopal Development Authority. For the purposes of getting the sale deed executed, the respondent No.1 has appointed respondent No.2, her real brother a general Power of Attorney. (ii) On the basis of some general Power of Attorney executed allegedly on 30.4.1983 in favour of respondent No.2 by the respondent No.1, he entered into an agreement for sale of the plot in suit to the appellant on 16.10.1988. An advance of Rs.1 lac was paid towards the sale consideration and possession of the suit plot was also said to be delivered to the appellant. The sale deed was to be executed upto 30.4.1989. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 1 (iii) The respondent No.1 filed a Civil Suit being C.S. No.51-A/1999 against the appellant as also the respondent No.2 saying that she has not executed any Power of Attorney in favour of the respondent No.2 for the purposes of sale of the suit plot. If at all there was any agreement so executed on 16.10.1988 by the respondent No.2 for sale of the plot in favour of the appellant, that was null and void. (iv) A Civil Suit No.52-A/1999 was also filed by the appellant for specific performance of contract on the strength of sale agreement dated 16.10.1988. Both the suits were tried and were decided by the Court. (v) While decreeing the suit filed by the respondent No.1, the suit filed by the appellant was dismissed vide Judgment dated 4.10.1999 and 7.10.1999 respectively passed by the District Judge, Bhopal. The appellant filed the First Appeals before this Court being F.A.No.607/99 and F.A.No.638/1999 against the aforesaid Judgment and decree. During pendency of the said appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for taking additional evidence on record. With this application, an application made by respondent No.2 before the Bhopal Development Authority, was also filed. It was stated that such an application was made on behalf of the respondent No.1, by the respondent No.2, in his capacity as General Power of Attorney holder and a copy of the General Power of Attorney was also produced before the Bhopal Development Authority. (vi) Both the appeals were heard together, the application under Order 41 Rule 27 of the Code of Civil Procedure was also considered. Both the appeals were dismissed by a common Judgment and decree dated 13.9.2002. Categorical finding with respect to the rejection of the application under Order 41 Rule 27 of the Code of Civil Procedure was recorded by this Court in the Judgment and decree passed on 13.9.2002. It was categorically held that such an application which is sought to be taken on record was not a document in the nature of secondary evidence which could be taken on record for consideration. (vii) The appellant filed Special Leave Petition before the Apex Court against the Judgment and decree of this Court passed in the said appeals on 13.9.2002. The specific ground with respect to the rejection of application under Order 41 Rule 27 of the Code of Civil Procedure was taken in the Special Leave Petition. The Special Leave Petition was dismissed on 25.7.2003 and a review application filed before the Apex Court was also dismissed on 9.8.2003. (viii) A criminal complaint was filed by the appellant in the Court of Chief Judicial Magistrate, Bhopal, against the respondents as also one Ms. Sneh Rani Jain, a sister of respondents. The criminal complaint was dismissed, a criminal revision was filed before the Additional Sessions Judge, Bhopal, which was allowed vide order dated 10.12.2002. The criminal complaint was said to be maintainable as sufficient material on record for taking cognizance in said criminal complaint was available. A revision filed before this Court was dismissed and the Criminal case is pending consideration before the Court below. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 2 (ix) The appellant obtained a certified copy of Power of Attorney said to be produced along with the application submitted by the respondent No.2 before the Bhopal Development Authority and thereafter, filed the present suit in the Court of V Additional District Judge, Bhopal, for the reliefs of declaring that the Judgment and decree obtained on 4.10.1999 in Civil Suit No.51-A/1999 by the respondent No.1 was null and void as the same was obtained fraudulently concealing the material fact relating to execution of Power of Attorney in favour of respondent No.2 by the respondent No.1; a decree of permanent injunction to the effect that the respondents shall not execute the Judgment and decree dated 4.10.1999 passed in the Civil Suit No.51-A/1999; cost of the suit; and any other reliefs. The trial Court after full dressed trial has dismissed the suit. Hence, this appeal against the Judgment and decree. 2: It is the contention of learned counsel for the appellant that since it was specifically pleaded in the plaint that a fraud was played by the respondent No.1 knowing fully well that she has executed a Power of Attorney for sale of the suit property, in favour of the respondent No.2, her own brother as the respondent No.1 was residing at United State of America and was unable to come and lookafter the property at Bhopal in India, but this document was deliberately concealed and a bald statement was made that no such Power of Attorney was executed by the respondent No.1 in favour of the respondent No.2 and hence the claim was made in the suit aforesaid. Since now the Power of Attorney has come into the light and such a written document has been obtained by getting a certified copy from the public office of Bhopal Development Authority, such a fraud played by the respondent No.1 with the Court is apparent and, as such, the decree obtained by fraud is not binding on the appellant. Thus, it is categorically contended that the Court below was not right in holding that the appellant has failed to prove his case and has wrongly dismissed the suit of the appellant. 3: Per contra it is vehemently argued by learned Senior counsel for the respondent No.1 that there was no fraud played by the respondent No.1. If at all this was the defence or claim made by the appellant that the respondent No.2 was general Power of Attorney holder for the purposes of transfer of the suit land in favour of the appellant, it was the duty on the part of the appellant to place all such facts on record and to gather all the evidence at that time and put it for the trial. Having failed to do so and losing upto highest Court of the country, the appellant cannot be permitted to reagitate the issue before trial Court. These aspects have categorically been found proved by the Court below and the suit of the appellant has rightly been dismissed. Thus, it is contended that in view of the settled position of law, no relief whatsoever can be granted to the appellant and his appeal is liable to be dismissed with exemplary cost. 4: To appreciate the rival submissions made by learned Senior counsel for the parties, it is required aptly to examine the entire evidence, the documentary as well as oral and the manner in which such claims were made before the Court below. The first and foremost question which is to be examined is whether the appellant was aware of the Power of Attorney allegedly said to be executed in favour Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 3 of the respondent No.2 by the respondent No.1 at the time when the previous suit was pending against him and when previously a claim was made by him for specific performance of the said agreement, or not ? 5: The documents which the appellant has placed on record are first an application said to be filed for grant of no objection by the respondent No.2 on behalf of respondent No.1 before the Bhopal Development Authority on 1/6/1983, which has been exhibited as Ex.P/1. The second document which is placed on record by the appellant before the trial Court in this suit is a certified copy of the Power of Attorney said to be executed by the respondent No.1 in favour of respondent No.2 on 30.4.1983. The said document is exhibited as Ex.P/2. The contents of the said documents are that the Power of Attorney is executed for the purposes of carrying on the construction, supervision, management and disposal of plot No.251 in Major Shoping Centre Zone-II, Habibganj, Bhopal, in Scheme No.13 of Bhopal Development Authority, Bhopal and for the said purposes execute any document pay and receive any sum or sums, receive or realise any outstanding to manage the above property. In the clear word, it is not said that the Power of Attorney holder is authorised to sell out the property in suit. The management and disposal word used in this Power of Attorney, more appropriately the word disposal in the said Power of Attorney is being construed as if the said person was also authorised to sell out the property of respondent No.1 to anyone else. The other documents placed on record by the appellant are with respect to the plan of construction prepared and submitted before the authorities, a statement recorded of a witness examined in the Criminal case, who is said to be an employee of the Bhopal Development Authority, for the purposes of proving the said Power of Attorney produced before the Bhopal Development Authority. The other document is with respect to the application for grant of permission to make construction, made before the Municipal Corporation Bhopal and the lease deed executed in favour of the respondent No.1. Ex.P/6 filed by the appellant is the copy of sanctioned map and a copy of the criminal complaint made, the order passed by the Additional Sessions Judge, Bhopal in Criminal Revision. The appellant has also produced a death certificate of the Notary, who was said to have notarised the said Power of Attorney and a register of Notary where the execution of Power of Attorney by respondent No.1 in favour of respondent No.2 is duly registered. However, though a reference is made to the agreement of sale, yet the sale agreement has not been produced. Another Power of Attorney executed by the respondent No.1 in favour of respondent No.2 on 14.4.1989 has been placed on record as Ex.P/15. The appellant has examined himself as a witness as PW/1, one Vinay Agrawal son of the Notary and Advocate late Shri Hari Narayan Agrawal, who has expired, as PW/2. As against this evidence, the respondent No.1 has produced an application made before the Town Improvement Trust, Bhopal, as Ex.D/1, an affidavit filed in the case No. 29- A/1994, certain letters written by her, an order passed by the Apex Court in the case of review petition filed by the appellant and the rejection of the Special Leave Petition filed by the appellant, a complete copy of the Judgment and decree delivered in the First Appeal No.607/1999 by this Court on 13.9.2002, a Judgment and decree passed in Civil Suit No.51-A/1999 and Civil Suit No.52-A/1999 by the District Judge, Bhopal. The respondent was examined as a witness by conferencing. The statement of respondent No.2 were recorded in the defence. Now this being the total evidence produced by the parties, this Court is required to examine whether fact relating to execution of the Power of Attorney by the respondent No.1 in favour of the respondent No.2 was within the knowledge of the appellant at the time when the first suit was brought by the appellant against the respondents or not, or when Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 4 he came as a defendant in the suit filed by the respondent No.1 against him. The record of the said suit was also called and kept with the suit subsequently filed. 6: In fact, it has to be noted that a definite claim was made by the appellant in his first suit which he has filed for specific performance that by virtue of a Power of Attorney, the respondent No.1 has authorised the respondent No.2 to execute a sale deed in favour of the appellant with respect to the suit plot and for the said purposes an agreement was executed by the respondent No.2 on behalf of the respondent No.1 in favour of appellant. If that was the situation, the appellant was required to remain more vigilant. He was aware that the respondent No.1 was not residing in India, was not readily available and if, for that reason she has executed any Power of Attorney in favour of her brother to sell out the property in suit, it was necessary for the appellant to get a copy of the Power of Attorney obtained before entering into any agreement with the respondent No.2 on behalf of respondent No.1. As has been found by the trial Court, the appellant had not produced the sale agreement before the lower Court, but by making an application I.A.No.4058/2012, the copy of the said agreement has been produced before this Court. The entire agreement is styled as if the same was executed by the respondent No.1 through the Power of Attorney holder. Not a single word is found in this agreement that any Power of Attorney for the said purposes was executed by the respondent No.1 in favour of respondent No.2 and, therefore, in his capacity as the Power of Attorney holder of respondent No.1, the respondent No.2 was executing the said document on 16.10.1988. This itself is enough proof of the fact that in fact, if at all any fraud was committed with the appellant, it was none else nothing but respondent No.2 who executed an agreement purportedly in respect of respondent No.1 self styling himself as Power of Attorney of respondent No.1. If a person is Power of Attorney holder of the owner, he himself is required to execute the agreement categorically saying that by virtue of such Power of Attorney executed by the owner he is acting on behalf of the owner. Such declarations are not found in the said document. This makes it clear that the Power of Attorney, said to be executed on any particular date, was not for the purposes of sale of the plot in dispute. 7: As has been stated hereinabove, the Power of Attorney said to be executed on 30.4.1988, produced as document Ex.P/2 does not contemplate a specific condition that the said Power of Attorney is being issued for the purposes of disposing of/selling the property in question. Therefore, merely because some Power of Attorney was executed, not specifically authorising the respondent No.2, by the respondent No.1 for selling the property in suit, it could not have been said that the respondent No.2 automatically become authorised to sell the suit property. This being so, since these facts were not got verified at the initial stage when the appellant had entered into such an agreement with the respondent No.2 for the sale of the plot in suit, it cannot be said that the appellant was vigilant, cautious and a bonafide purchaser. Such assertion cannot be accepted at such a stage when the appellant has lost the litigation previously brought before this Court upto the stage of Apex Court. Whether can it be said that the Power of Attorney came to the notice of the petitioner at such a belated stage only when a criminal case was launched by him making allegation of committing fraud with him by the respondents. Undisputedly, the appeal was preferred against the previous Judgment and decree passed in the Civil Suit filed by the respondent No.1 and also against the Judgment and decree passed in Civil Suit filed by the appellant himself. The Civil Suit was filed by the appellant for specific performance of the agreement. If he was stating that agreement was Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 5 executed by the respondent No.2 in his capacity of Power of Attorney holder of respondent No.1, it was the duty cast on the part of the appellant to prove that the respondent No.2 was in fact the Power of Attorney of respondent No.1. When such a fact was not proved, the suit was dismissed. In the pending appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed for taking an application made before the Bhopal Development Authority as additional evidence on record. If the appellant could have obtained a photocopy of such a document, what precluded him to make an application for grant of certified copy of the said Power of Attorney which was allegedly attached along with the application and which was produced before the Bhopal Development Authority ? Why only after losing upto the Apex Court the good sense prevailed and the appellant applied for grant of a certified copy of such a document. If it was such an important document, the appellant could have obtained a certified copy of that document at the time when the First Appeal was pending consideration before this Court and could have produced along with copy of the application submitted by the respondent No.2 before the Bhopal Development Authority and in such circumstances, this Court could have exercised the power under Order 41 Rule 23-A of the Code of Civil Procedure could have sent back the matter to the trial Court for recording of the evidence on the said particular document or even could have framed an issue on that evidence and could have obtained the findings on the same from the trial Court at that stage. The issue could have been decided at that stage only if the justified attempt would have been made by the appellant to obtain such document. This all shows that neither the appellant was vigilant nor serious to prosecute his claim. In fact, he was enjoying the possession over the suit property without making payment of any compensation and, therefore, he was prolonging the litigation. He fought upto the Apex Court unsuccessfully filed a review also and after losing in all Courts has come with this plea therefore, such a stand is not to be accepted at all. Further, this Court has categorically dealt with the application made under Order 41 Rule 27 of the Code of Civil Procedure and has recorded its finding in the First Appeal in none other than specific words that such a plea of the appellant was not to be accepted at all. For the purposes of better appreciation, findings of this Court recorded in paragraph 11 of the said Judgment are reproduced :- "11. The main crux of the matter is whether the plaintiff, Dr. Pushparani Jain had executed the power of attorney authorising Jinendra Kumar Jain, her brother to negotiate in regard to the property and execute the deed of sale. In the trial Court no document was produced to establish that the said plaintiff had executed any power of attorney in favour of her brother. It was only admitted that the power of attorney was executed to get the lease deed executed with Bhopal Development Authority. On a perusal of the evidence it is discernible that the defendant No.2 had perused the photocopy shown to him by the mediator and visited his lawyer seeking legal opinion. The learned trial Judge has referred to Ex.P/1 and recorded a finding that the said document did not so indicate. On a scrutiny of Ex.P/1, it is also noticeable that the same is silent in that regard. Before this Court an application has been filed under Order 41 Rule 27 of the Code of Civil Procedure for taking additional evidence. In the application, it has been stated that recently the plaintiff has come to know that the defendant No.2 had applied to the Bhopal Development Authority seeking permission for sale. It is apposite to mention here that the application which had been filed by the defendant No.2 before the Authority has been brought on record. Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 6 On a perusal of the same it transpires that in the said application there is mention of the fact that the photocopy of the power of attorney supposed to have been executed by the plaintiff was produced before the said authority. It is submitted by Mrs. Shobha Menon that the application filed under Order 41 Rule 27 should not be entertained inasmuch as the defendant No.2 had himself admitted that he had filed a photocopy before the Bhopal Development Authority and a photocopy of a photocopy cannot be regarded as secondary evidence. It is submitted by her that at the best what the defendant No.1 can prove that a photocopy was filed along with the said application by the defendant No.2, but that could not bind the plaintiff. Quite apart from the above, it is also purforth that the application filed under Order 41 Rule 27 is factually incorrect inasmuch as there is evidence on record that Harjas Rai Makhija had deposed that Jinendra Kumar Jain had got the matter discussed through a middle man in regard to the plot. Thus, the stand taken in the application does not fresco the correct picture and it is highlighted that the appellant who has stated that he has come to know about such power of attorney recently is blatant lie and hence, should not be accepted for consideration." 8: This being so, such findings recorded by the Court are not to be disturbed and specially the same have been approved by the Apex Court. It will be noteworthy to state here that such a rejection of the application under Order 41 Rule 27 of the Code of Civil Procedure was the ground raised before the Apex Court in Special Leave Petition filed by the appellant. After appreciating the findings recorded by this Court in the earlier First Appeal filed by the appellant, the Apex Court has dismissed the Special Leave Petition of the appellant. That means nothing, but affirmation of the finding of this Court. The review petition filed by the appellant before the Apex Court also met with the same result. Thus, in the considered opinion of this Court, in view of these facts, the reagitation of litigation was not permissible in law. 9: In the light of whatever is found by this Court, the Judgment of the trial Court is examined. There were two issues framed with respect to the grounds raised by the appellant in the suit that the decree has been obtained in Civil Suit No.51-A/1999, fraudulently concealing the execution of the Power of Attorney by the respondent No.1 in favour of respondent No.2. The trial Court in paragraph 6 onwards of its Judgment has considered the entire evidence, has taken note of all the facts and has categorically held that the evidence produced by the appellant is not such that a fraud is proved. Apart from that the lower Court has categorically held that the appellant had utterly failed to prove that there was any such Power of Attorney in existence. The lower Court has taken note of conduct of the appellant also. In view of this, it cannot be said that the Court below has committed any error of law in not appreciating the evidence available on record in appropriate manner. 10 : Learned senior counsel for the appellant has placed his reliance in various laws laid down by the Apex Court in different situations. It is contended that since the Court below has also considered as if the provisions of Section 11 of the Code of Civil Procedure would be attracted in the case and such a suit filed by the appellant was hit by principles of res judicata, therefore, the submission is made that the Judgment and decree is bad in law. It is contended by learned Senior counsel appearing for the appellant that the trial Court in its Judgment while dealing with the issue No.5 with respect to Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 7 the application of principle of re judicata has given no finding, but has simply recorded that the suit is not maintainable. It is contended that in view of the law laid down by the Apex Court, the said principle of res judicata would not be attracted at all as a Judgment and decree obtained by fraud is to be treated as nullity. Relying in the case of Ram Preeti Yadav V. U.P. Board of High School and Intermediate Education and others [(2003) 8 SCC 311], Indian Bank V. Satyam Fibres (India) Pvt. Ltd. [(1996) 5 SCC 550], S.P. Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. and others [(1994) 1 SCC 1] and Ajit Savant Majagvai V. State of Karnataka [(1997) 7 SCC 110], learned senior counsel for the appellant has, vehemently, contended that the fraud is committed either by letter or words which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter and, therefore, mere slight negligence on the part of the appellant would not amount as if fraud was not played. It is also contended by learned senior counsel that the Courts have the inherent power under Section 151 of the Code of Civil Procedure and if such a fact is brought to the notice of the Court that fraudulently a decree has been obtained by suppression of material facts by the other side, the said decree can be set aside in exercise of inherent powers also by the Court by recalling its Judgment or orders if it is proved that the same is obtained by fraud on record. It is also contended that the factum of fraud is required to be tested in each case taking into account the circumstantial evidence as well. Thus, it is said that in view of the law pronounced by the Apex Court, the Court below was not right in dismissing the suit filed by the appellant and refusing to grant a decree of declaration that the decree in previous suit was obtained by the respondent No.1 by playing fraud on Court. With due respect to the pronouncement of the Apex Court, each and every case is to be tested on the basis of the facts and circumstances which are proved or brought on record. In the given circumstances if the appellant himself was not vigilant about verifying the fact of Power of Attorney at the initial stage or if he was not careful enough to produce the document of Power of Attorney on record even when he moved an application under Order 41 Rule 27 of the Code of Civil Procedure before the appellate Court, how could it be said that the fraud was played by the respondent No.1. That apart, the Power of Attorney as has been placed on record does not authorises in any specific words the respondent No.2 to execute the sale deed or even a sale agreement of the property in suit, belonging to respondent No.1, by her, as the entire Power of Attorney deals with development of the plot, its protection and subsequently getting a construction done. If that was the intention of the original owner of the land, how could the word disposal used in the Power of Attorney in question could be termed as authorising the respondent No.2 to do away the property of the respondent N.1 by putting it on sale. This being so, the entire claim made by the appellant is totally misconceived and baseless. Even if such a Power of Attorney would have been tested at that time when the first suit was pending, in the considered opinion of this Court, no other finding could have been recorded except the one which is recorded by this Court in this Judgment. 11 : Learned senior counsel appearing for the respondent has, vehemently, contended that the law is well settled in various cases decided by the Apex Court with respect to the application of principle of res judicata, reagitating the litigation after a decision and stated that all those situations have been examined by the Apex Court in the case of Vishnu Dutt Sharma Vs. Daya Sapra [(2009) 13 SCC 729]. It is also contended by learned senior counsel for respondents that what is being stated by the appellant is that such a Power of Attorney was proved from the statement of the employee of the Bhopal Development Authority, recorded in a criminal proceeding. It is contended that in view of Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 8 the law laid down by the Apex Court in the case of Vishnu Datt Sharma (supra), the findings in a criminal proceedings by no stretch of imagination would be binding in a Civil Proceedings and as there were no statement of any witness to prove existence of such a Power of Attorney, it was rightly held by the lower Court that the appellant had not made out his case for grant of a decree as claimed. It is contended by learned senior counsel for the respondent that the trial Court has categorically recorded that opportunity was available to the appellant to prove that such a Power of Attorney was in existence, but when his application for calling the record was rejected by the trial Court, no attempts were made by him to challenge such an order. In view of this, it is contended that the appeal preferred by the appellant is liable to be dismissed. Relying on the decision of the Apex Court in the case of M. Nagabhushana V. State of Karnataka and others [(2011) 3 SCC 408], learned senior counsel for the respondents has contended that since the finality was already obtained in such a claim upto the Apex Court, reagitating the same was not permissible in view of the specific provisions made in Explanation IV as contained in Section 11 of the Code of Civil Procedure. It was nothing but an abuse of the process of Court. Learned senior counsel for respondents has further relied on certain decisions of the Madras High Court and has contended that these aspects have categorically been found by the High Court that a practice of reagitating litigation is going on and unsuccessful party always tries to reagitate the matter before the Court. To curtdail down such a tenancy, it has become necessary for the Court to dismiss such litigation with heavy cost so that such a practice may not be continued for long otherwise it will totally demolish the judicial system prevalent in this country. 12 : It is to be seen that the Madras High Court has categorically found in its order in many ways and many words that the unsuccessful person, were trying to approach the Court seeking the same relief which was earlier denied by the Court, on one pretext or another. Slightly change in the claims, change of grounds or fishing out a ground is not to be permitted for reagitating the issue before the Court. The Apex Court also considered these aspects in many cases. In the case of M. Nagabhushana (supra) in paragraphs 13 to 18, the Apex Court has categorically recorded these reasons. For proper appreciation, which according to this Court are some what similar circumstances in the present appeal, the findings of the Apex Court are reproduced from paras 13 to 18 :- "13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. 14. Tek Chand, J. delivering the unanimous Full Bench decision in Lachhmi V. Bhulli traced the history of this doctrine both in Hindu and Mohammedan jurisprudence as follows : (ILR pp.391-92). Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 9 "In the Maitakshra (Book II, Chapter I, Section V, verse 5) one of the four kinds of effective answers to a suit is 'a plea by former Judgment' and in verse 10, Katyayana is quoted as laying down that 'one against whom a Judgment had formerly been given, if he brings forward the matter again, must be answered by a plea of purva nyaya or former Judgment' (Macnaughten and Colebrooke's translation, p.22). The doctrine, however, seems to have been recognised much earlier in Hindu jurisprudence, judging from the fact that both Smriti Chandrika (Mysore Edn., pp.97-98) and Virmitrodaya (Vidya- Sagar Edn., p.77) base the defence of prang nyaya (former decision) on the following text of the ancient law-giver Harita, who is believed by some Orientalists to have flourished in the 9th century BC and whose Smriti is now extant only in fragments- 'The plaintiff should be non-suited if the defendant avers: "in this very affair, there was litigation between him and myself previously", and it is found that the plaintiff had lost his case.' There are texts of Prasara (Bengal Asiatic Society Edn., p.56) and of Mayukha (Kane's Edn., p.15) to the same effect. Among Muhammadan law-givers similar effect was given to the plea of 'Niza-i-munfasla' or 'Amar Mania taqrir mukhalif'. Under Roman Law, as administered by the Proetors' courts, a defendant could repel the plaintiff's claim by means of exceptio rei judicatoe or plea of former Judgment. The subject received considerable attention at the hands of Roman jurists and as stated in Roby' Roman Private Law (Vol. II, p.338) the general principle recognised was that 'one suit and one decision was enough for any single dispute' and that 'a matter once brought to trial should not be tried except, of course, by way of appeal." 15. The learned Judge in Bhulli case also noted that in British India the rule of res judicata was first introduced by Section 16 of Bengal Regulation 3 of 1773 which prohibited the Zila and City Courts from entertaining any cause which, from the production of a former decree or the record of the court, appears to have been heard and determined by any Judge or any Superintendent of a court having competent jurisdiction. The learned Judge found that the earliest legislative attempt at codification of the law on the subject was made in 1859, when the first Civil Procedure Code was enacted, whereunder Section 2 of the Code barred every court from taking cognizance of suits which, on the same cause of action, have been heard and determined by a Court of competent jurisdiction. The learned Judge opined, and in our view rightly, that this was partial recognition of the English rule insofar as it embodied the principles relating to estoppel by Judgment or estoppel by record. Thereafter, when the Code was again revised in 1877, the operation of the rule was extended in Section 13 and the bar was no longer confined to the retrial of a dispute relating to the same cause of action but the prohibition was extended against reagitating an issue, which had been heard and finally decided between the same parties in a former suit by a competent court. The learned Judge also noted that before the principle assumed its present form in Section 11 of the Code of 1908, the section was expanded twice. However, the learned Judge noted that Section 11 is not exhaustive of the laws on the subject. 16. It is nobody's case that the appellant did not know the contents of the FWA. From this it follows that it was open to the appellant to question, in the previous proceeding filed by it, that his land Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 10 which was acquired was not included in the FWA. No reasonable explanation was offered by the appellant to indicate why he had not raised this issue. Therefore, in our Judgment, such an issue cannot be raised in this proceeding in view of the doctrine of constructive res judicata. 17. It may be noted in this context that while applying the principles of res judicata the court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that : "... the application of the rule by courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law." 18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima facie a proceeding which has been initiated in abuse of the process of court." 13 : In view of these pronouncement and factual scenario which have come on record as indicated hereinabove, keeping in view the conduct of appellant himself, this Court is left with no option, but to dismiss this appeal with costs. Consequently, the appeal is dismissed. The appellant will bear his own cost and the cost of respondent No.1 throughout. Counsels fee is quantified at Rs.25,000/- (Rupees Twenty Five Thousand), if precertified. (K.K.Trivedi) Judge /04/2012 A.Praj. HIGH COURT OF MADHYA PRADESH AT JABALPUR First Appeal No.961/2010 Harjas Rai Makhija -Versus- Smt. Pushparani Jain and another. O R D E R ( .4.2012) Post it for /4/2012 (K. K.Trivedi) Judge /04/2012 Harjas Rai Makhija vs Smt. Pushparani Jain on 3 April, 2012 Indian Kanoon - http://indiankanoon.org/doc/122012865/ 11

trial7.pdf

Madras High Court K.K.Swaminathan vs Srinivasagam on 10 October, 2003 In the High Court of Judicature at Madras Dated: 10/10/2003 Coram The Hon'ble Mrs. Justice R.BANUMATHI C.R.P.(P.D.) No. 1147 of 2001 K.K.Swaminathan ..Petitioner -Vs- Srinivasagam ..Respondent Civil Revision Petition under section 115 of Civil Procedure Code filed against the Order dated 16.03.2001 in I.A.No.98/2001 in O.S.No.24 73/1996 on the file of Additional District Munsif Court, Coimbatore. !For Petitioner : Mr.A.Venkatesan ^For Respondent : Ms.M.B.Dominique for Mr.P.Duraisamy :ORDER This Revision Petition is directed against the order of II Additional District Munsif, Coimbatore in I.A.No.98/2001 in O.S.No.2473/1996 (dated 16.03.2001) dismissing the Application to send the Promissory Note dated 24.11.1983 to Handwriting Expert for the purpose of comparison of the signature thereon with the admitted signatures in the presence of the Officer of the Court. 2. This Revision Petition arises out of the following common grounds:- (i) O.S.No.352/1986 - II Additional Subordinate Judge, Coimbatore: The Respondent / Defendant filed this Suit for recovery of Rs.1 5,672/= on Promissory Note for Rs.12,000/= (dated 24.11.1983). Revision Petitioner contested the said suit. In the said suit, the main contention raised by the Revision Petitioner was denial of execution of the said Promissory Note. In the said suit, Revision Petitioner had filed Application in I.A.110/1987 for sending the Suit Promissory Note to obtain the opinion of the Handwriting Expert and the same was dismissed. After full trial, O.S.No.352/1986 K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 1 was decreed. (ii) A.S.No.38/1987:- Aggrieved over the decreeing of the suit, the Revision Petitioner has filed this Appeal before District Judge, Coimbatore. The Appeal was heard on merits. Confirming the judgment and decree of the trial court in O.S.No.352/1986, A.S.No.38/1987 was dismissed on 24.12 .1988. As against the concurrent findings of courts below, Revision Petitioner had also filed a Second Appeal. Finding that no substantial question of law is involved, the Second Appeal was dismissed even in the admission stage. (iii) E.P.No.162 of 1988: O.S.352/1986 Respondent has filed this Execution Petition to execute the decree passed in O.S.No.352/1986 and the Execution Petition was posted on 12.10.1988. While the Execution Petition was so pending, Revision Petitioner had filed the present suit O.S.No.656/1988 on the file of Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - DMC, Coimbatore). (iv) O.S.No.656/1988 - Sub Court, Coimbatore (re-numbered as O.S.No.2473/1996 - District Munsif Court, Coimbatore) After being unsuccessful in all the Forums, Revision Petitioner had re-opened the entire issues re-agitating the matter, attacking the Suit Promissory Note and the decree passed on merits in O.S.No.352/1986. The present suit O.S.No.2473/1996 originally filed in the Sub Court, Coimbatore in O.S.No.656/1988 is for the cancellation of the decree obtained by the Respondent in O.S.No.352/1986 as having been obtained fraudulently by the use of a false document. 3. Case of Revision Petitioner / Plaintiff is that he had borrowed a sum of Rs.3,000/= from the Defendant on 16.06.1981, for which the Respondent had taken his signatures in four stamped blank papers from the Revision Petitioner and the Respondent paid only a cash of Rs.2,7 00/= deducting advance interest of Rs.300/=. Towards discharge the Promissory Note debt, Revision Petitioner had totally paid Rs.7,600/=. Respondent had not only refused to pass receipt, but also inspite of repeated demands failed to return the Promissory Note executed by the Revision Petitioner. The Promissory Note for Rs.12,000/= filed in O.S.No.352/1986 is a concocted false document. Further case of the Revision Petitioner is that the Respondent made use of the false document in O.S.No.352/1986 and fraudulently obtained the decree thereon and the Plaintiff is entitled to have the matter re-opened under section 44 of the Evidence Act and is entitled to get a declaration that the decree in O.S.No.352/1986 is null and void and not binding upon the Plaintiff. 4. Respondent is resisting the suit by filing the written statement contending that the Suit is barred by Res Judicata and that the decree in O.S.No.352/1986 operates as Res Judicata. When the contested decree in O.S.No.352/1986 was confirmed by the Appellate Court / District Judge, Coimbatore in A.S.No.38/1987, Revision Petitioner having exhausted his remedies has filed the present suit for the purpose of harassing the Respondent. The present suit, which is highly vexatious, is nothing but abuse of process of the court and is absolutely barred by Res Judicata. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 2 5. When the Suit was taken up for trial, after the examination of the Respondent was completed, Revision Petitioner had filed I.A.No.98/2001 on the ground that the Promissory Note in O.S.No.352/1986 is a false and concocted document. According to him, the Promissory Note, which was the subject matter of the dispute in O.S.No.352/1986, is to be further examined by the Handwriting Expert by comparing with the admitted signatures in the presence of the Officer of the Court and the opinion of the Handwriting Expert is very much essential to prove his case that the contested decree in O.S.No.352/1986 was obtained by playing fraud upon the Court. 6. Respondent has filed the counter statement referring to the filing of similar Application in I.A.No.110/1987 in O.S.No.352/1986 under section 73 of Indian Evidence Act. I.A.No.110/1987 was dismissed. Against which, the Revision Petitioner had not preferred any Appeal or Revision before the High Court and the dismissal of the Application I.A.No.110/1987 has reached finality. The inconsistent stand adopted by the Revision Petitioner in the plaint averments is also pointed out in the counter statement. 7. Submitting that the decree in O.S.No.352/1986 was fraudulently obtained from the Court and to substantiate the same, an opportunity to be given to the Revision Petitioner to prove that the Promissory Note is a forged one, which could be established only by obtaining the opinion of the Handwriting Expert, who could compare the disputed signature with the admitted signatures. Contending that such a suit for setting aside the decree is maintainable under section 44 of the Indian Evidence Act, the learned counsel relied upon AIR 1995 SC 1440 in support of his contention that it is open to the party to the suit to avoid the decree if proved to have been obtained by fraud or collusion. It is the further contention of the Revision Petitioner that order in the earlier interlocutory Application 110/1987 would not operate as Res Judicata. Submitting that it is dangerous for the Court itself to compare the disputed signature, it is contended that obtaining of the opinion of the Handwriting Expert is very much essential, which the Revision Petitioner was deprived of the opportunity in the earlier suit by the dismissal of the Application in I.A.No.110/1987. 8. Countering the arguments and seriously assailing the very maintainability of the suit O.S.No.2473/1996, the learned counsel for the Respondent / Defendant submitted that the dismissal of the Application in I.A.No.110/1987 and decreeing of the suit in O.S.No.352/1986 have given quietus to the matter. It is further submitted, when the dispute regarding the Promissory Note has reached the finality in the earlier litigation, the same cannot be re-agitated by filing another Application. Submitting that the fraud committed upon the Court is not elaborated in the plaint and that the suit is not maintainable, the learned counsel further submitted that the present suit in reagitating the earlier contested matter is clearly barred by Res Judicata. It is further submitted that such re-litigation is nothing but abuse of process of the court, which needs to be halted. 9. Upon consideration of the submissions of both sides, the available materials and grounds urged in the Memorandum of Revision, in my considered view, the following points arise for determination in this Revision. (1) When the dispute regarding the validity of execution of the Promissory Note has reached finality in the earlier contested proceedings in O.S.No.352/1986 and A.S.No.38/1987, can the Revision Petitioner / Plaintiff re-agitate the same raising the same point by filing another suit under section 44 of the Indian Evidence Act ? K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 3 (2) Can the contested decree in O.S.No.352/1986, confirmed by the First Appellate Court, be allowed to be re-agitated on the ground that it was obtained fraudulently by the use of a false document ? (3) Is any fraud as contemplated under Section 44 of the Indian Evidence Act is made out ? 10. We may straightaway point out that the present Application I.A.98/2001 and the suit O.S.No.2473/1996 are nothing but re-agitating the entire points, which have already reached finality in the earlier round of litigation both on (i) adjudication upon the suit ; (ii) adjudication of the Application. O.S.No.352/1986 was determined after full trial. Revision Petitioner / Plaintiff herein contested the said suit raising the same point that the Promissory Note dated 24.11.198 3 is a forged and fabricated one. The Courts have gone into that question and that question was adjudicated upon and the suit O.S.No.352/1 986 was decreed after full contest. In that suit, Revision Petitioner herein had filed I.A.No.110/1987 for sending the Promissory Note to Handwriting Expert and the same was dismissed; against which, Revision Petitioner / Plaintiff has not preferred any Revision. Thus, in the suit O.S.No.352/1986, genuineness or otherwise of the Promissory note was directly and substantially in issue, which was adjudicated upon and determined. 11. The validity or genuineness of execution of the Promissory Note was directly and substantially in issue in O.S.No.352/1986. The contested decree of the trial court was confirmed by the First Appellate Court in A.S.No.38/1987. The Second Appeal preferred against the concurrent findings of the courts below was dismissed in the admission stage. Now, the Revision Petitioner / Plaintiff has sought to reopen the entire issue, which has reached the finality in the earlier round of litigation. 12. In I.A.No.98/2001, Revision Petitioner has sought for the document to be examined by the Handwriting Expert in the presence of the Court Officer. As discussed earlier, Courts of competent jurisdiction have already considered the validity and genuineness of execution of the Promissory Note and adjudicated and conclusively determined the same. The contention of the Revision Petitioner that the Promissory Note is a forged and fraudulent one is not well substantiated even by the plaint averments. In para (3) of the plaint, Revision Petitioner has stated that his signatures were obtained in four stamped blank forms and utilising the same, Respondent / Defendant had concocted the Promissory Note. While in para (4) of the plaint, the Revision Petitioner has averred the execution of the Promissory Note and that he had repaid the same and the Respondent has not returned the Promissory Note. On the execution of the Promissory Note, the pleadings in the plaint are only self contradictory. 13. The present suit O.S.2473/1996 is filed for the relief of " Cancellation of the decree in O.S.No.352/1986 as having been obtained fraudulently by the use of a false document". Revision Petitioner alleges fraud mainly on the ground that the decree was obtained on the basis of the Promissory Note, which, according to him, is a concocted false document. As noted earlier, admitting borrowing of Rs.3,000/= from the Respondent and execution of a Promissory Note for Rs.3,000/= in favour of the Respondent, in para (3) of the plaint, Revision Petitioner himself had admitted that his signatures were obtained in four blank papers apart from the Promissory Note. Para (4) of the Plaint refers to the payment of the debt totalling Rs.7,600/= and that the Respondent K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 4 has not returned the Promissory Note. From the plaint averments, two things emerge- (i) borrowal of the amount and execution of the Promissory Note; and (ii) that the Revision Petitioner himself had re-paid the amount and Respondent had not returned the Promissory Note. The above defence was raised in O.S.No.352/1986, which was finally adjudicated rejecting the defence, and the suit was decreed confirmed by the Appellate Court. 14. It passes one's comprehension as to how could the contested decree confirmed by the Appellate Court be sought to be set aside on the ground of forgery or fraud played upon the Court. Section 17 of the Indian Contract Act defines 'fraud' as under: "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent". 15. No such instance of fraud is averred or proved by the Revision Petitioner. In the plaint, the Revision Petitioner has not elaborated the details of fraud played upon the Court. In the cause of action, the details of fraud not shown making out a case of fraud. The Revision Petitioner has also not stated as to when and how he detected the fraud played upon the Court in obtaining the decree in O.S.No.352/19 86. If really any deception was played upon the Court, the same could have been brought to the notice of the Court either in the First Appellate Court or in the Second Appellate stage. The learned counsel for the Revision Petitioner has submitted that the Revision Petitioner has filed Copy Application for I.A.No.110/1987 and that the same was returned as no such petition was filed in O.S.352/1986. In the impugned order, the learned District Munsif has clearly referred to the earlier Application in I.A.No.110/1987 and the order passed thereon. While so, the return on the Copy application as to the nonavailability of the Petition in I.A.110/1987 may not be correct. Even if that be so, suitable direction could be issued to the concerned court to take appropriate action on the non-availability of the petition and orders in I.A.110/1987. That need not in any way detain us from considering the matter. In my view, as against the contested decree, confirmed by the First Appellate Court, no suit could be filed under section 44 of Indian Evidence Act for cancellation of K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 5 the decree. 16. Section 44 of the Indian Evidence Act lays down "when one of the parties to a suit or other proceeding tenders, or has put in evidence, a judgment, order or decree under ss 40, 41 and 42 , it is open to the party against whom it is offered to avoid its effect on any of the three grounds specified in the section, without having it set aside, viz., (a) the incompetency or want of jurisdiction of the court by which the decree was passed; (b) that the judgment was obtained through fraud; or 8 that it was obtained by collusion" 17. Sections 40 - 44 deal with the relevancy of judgments of courts of justice. Section 40 enacts that the existence of any judgment, order or decree which by the law, that is, by the provisions of the Civil Procedure Code or Criminal Procedure code (i.e. judgments in support of a plea of Res Judicata, in civil case or of autre fois acquit or autre fois convict, in criminal cases, constitutes Res Judicata, that is, bars a second suit or trial is a relevant fact. 18. Section 41 deals with what is usually called judgments in rem, that is, judgments which are conclusive not only against parties to them, but against all the world. The section does not however, give any definition of the term judgment in rem, but only enumerates four classes of judgments. 19. Section 42 deals with the admissibility of judgments relating to matters of public nature, though not between the parties or privies, without making any distinction between the words "public" and " general". 20. Section 43 says that judgments other than those mentioned in ss 40-42 are irrelevant unless the existence of such judgments is a fact in issue or is relevant under some other provisions of the Act, eg.under ss 8,11,13,54 Expl. (2) & C. 21. Section 44 says that when any judgment, order or decree has been received under ss 40-42, the adverse party may show that it was obtained by fraud or was delivered by a court without jurisdiction. Judgments vitiated by fraud can therefore be challenged under s 44 without brining a suit to set them aside. 22. By a careful reading of Sections 40 - 44 of Indian Evidence Act, the first essential requirement is that the judgment ought to have been tendered or put in evidence under sections 40, 41, 42, 43 of Evidence Act. In the case in hand, the judgment in O.S.352/1986 is not tendered in evidence as contemplated under section 44, in any of the situations arising under sections 40 to 42. The suit was decreed after full contest and the same was produced only in execution of the decree. 23. Fraud or collusion as contemplated under S.44: K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 6 The nature and kind of fraud contemplated under section 44 must be actual and positive fraud. The decree must have been fraudulently obtained keeping the adversary and the Court in ignorance of the real facts of the case. In my view, fraud as laid down in section 44 refers to the fraud practised against the court by anyone of the parties or it may also imply a fraud against any parties to the proceedings. In a case of contested decree fought out till the Appellate Court, where is the question of fraud, that too, actual positive fraud played against the Revision Petitioner ? Absolutely there could be none. 24. What is contemplated under Section 44 of Indian Evidence Act is "actual positive fraud". In this regard, we may usefully refer to the following passage in SARKAR'S LAW OF EVIDENCE, 14TH EDITION Page No.763: "It is now well established that a decree cannot be set aside as fraudulent on the allegation that it was obtained by perjured evidence, or that the claim was false. It must be shown that Plaintiff was prevented by some fraud or contrivance from appearing and placing his case before the court, i.e.the alleged fraud must be an extrinsic act. JAMES L.J, in FLOWER ..vs.. LLOYD, LR 10 Ch D 327, observed as follows:- "Where is litigation to end, if a judgment obtained in an action fought out adversely between two litigants sui juris and at arm's length could be set aside by a fresh action on the ground that perjury had been committed in the first action or that false answers had been given to interrogatories, or a misleading production of documents, or of a machine, or of a process had been given? There are hundreds of actions tried every year in which the evidence is irreconcilably conflicting, and must be on one side or other wilfully and corruptly perjured. In this case, if the plaintiffs had sustained on this appeal the judgment in their favour, the present defendants in their turn, might bring a fresh action to set aside that judgment on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum....... Perjuries, falsehoods, frauds, when detected must be punished and punished severely, but in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those every perjuries, falsehoods and frauds" ( Emphasis added). 25. In the Courts of Law, thousands of actions / suits are tried every day / every month. On the issues and the evidence let in, several matters are adjudicated upon and decrees are passed. If all those unsuccessful litigants are to allege that the judgment and decree passed against them is fraudulently obtained on forged document or on perjury, there would be no finality of litigation. If such suits are allowed to be filed, the court proceeding to hear the same would amount to Subversion of Judicial System by the onslaught from within the system. Unless such actions are stopped and sternly dealt with, a time would come where almost all the unsuccessful litigants would come to the Court alleging that the decree was obtained against them fraudulently. The fraud contemplated under section 44 is entirely different. The actual positive fraud contemplated under Sec.44 is not at all established. The decree in O.S.352/1986 earlier fought out by the parties is not vitiated by fraud as contemplated under section 44 of Indian Evidence Act. Not only the suit is barred by Res Judicata but the suit O.S.2473/1996 is sheer abuse of process of the Court. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 7 26. The learned counsel for the Revision Petitioner has relied upon AIR 1995 SC 1440 in support of his contention that it is always open to the Plaintiff to invoke section 44 of Evidence Act to set aside the earlier decree even if it is a contested one. AIR 1995 SC 1440 refers to the suit filed by the minor plaintiff represented by the next friend. In that case, inference of fraud or collusion was drawn on account of the proved negligence or gross negligence of the next friend and that it was held "it would be permissible for a minor to avoid judgment or decree passed in the earlier proceedings by invoking section 44". The factual situation arising in that case is entirely on a different footing from the case in hand, where the Plaintiff himself was a party and was strongly agitating the suit O.S.352/1986. 27. One of the most abuse of process of the court is re-litigation. It is an abuse of process of the court and contrary to justice to re-litigate the same issue, which has already been tried and decided earlier against him. If the same issue is sought to be re-agitated by frivolous and vexatious suits, it is not as if the Court is powerless to stop the proceedings when it is brought to its notice. O.S.2473 /1996 is sheer abuse of process of the court re-agitating the same issue, in my view, should not be allowed to continue. 28. Contending that the suit could be filed invoking Section 44 since no opportunity was available to the Plaintiff in the earlier proceedings to prove to the Court that the Promissory Note is a false and concocted document, further contention of the Plaintiff that such an opportunity was not available to the Plaintiff since I.A.110/1987 was dismissed without considering on merits. From the available materials, the nature of disposal of I.A.110/1987 is not known. Without accepting, for the sake of arguments, even if we assume that no opportunity was afforded to the Plaintiff in I.A.110/1987, the same could have been very well brought to the notice of the First Appellate Court and necessary steps could have been taken to substantiate that contention. If not in the First Appeal, at least in the Second Appellate stage, the same could have been brought to the notice of the court. In fact, such an opportunity was not afforded to the Plaintiff is nowhere alleged in the present plaint O.S.2473/1996 also. 29. The present suit O.S.2473/1996 was filed with the only intention to re-agitate the same issues, which were substantially in issue in O.S.352/1986. Even the present Application I.A.98/2001 was filed only when the evidence of Respondent / Defendant was completed. From the stage in which I.A.98/2001 was filed and from the chequered career of the litigation, it is obvious that the only intention of Revision Petitioner / Plaintiff seems to be that would not allow the Respondent to enjoy the fruits of the decree. The present suit is not only hopelessly barred by Res Judicata but also amounts to Subversion of Judicial System. 30. In cases of this nature, it is not as if the Court is powerless or its hands are tied merely because the matter comes to the notice of the court in the revisional Jurisdiction under Sec.115 CPC. The investiture of power u/s.115 CPC is of superintendence and visitorial....Not fettered to deal with such situations. Where there is clear abuse of process of court, the Court has to view such conduct seriously and the same is to be halted to save precious time of the public and the court being wasted. In the recent decision of the Supreme Court reported in K.K.Modi ..vs.. K.N.Modi (1998) 3 SCC 573 elaborately considering the abuse of process of the Court, the Supreme Court has held that the Court K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 8 has power to stop such frivolous and vexatious proceedings. The Supreme Court has only cautioned that such power is to be exercised with circumspection. It is necessary to refer to the observations of the Supreme Court, which are very much relevant for our purpose. "42.Under Order 6 Rule 16, the Court may, at any state of the proceeding, Order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the Court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol.II.P.1179, note 7) has stated that power under clause 8 of Order 6, Rule 15, of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the Court on the basis of what is stated in the plaint. 43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase "abuse of the process of the Court" thus: This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation....The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material". 44. One of the examples as an abuse of the process of the Court is relitigation. It is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as Res Judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the Court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the Court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the Court especially where the proceedings are absolutely groundless. The Court then has the power to stop such proceedings summarily and prevent the time of the public and the Court from being wasted. Undoubtedly, it is a matter of the Court's discretion that has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised only in special cases. The Court should also be satisfied that there is no change of the suit succeeding. 45. In the case of Greenhalgh ..vs.. Mallard the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of Res Judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the Court. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 9 46. In Mellkenny ..vs.. Chief Constable of West Midlands Police Force the Court of appeal in England struck out the pleading on the ground that the action was in abuse of the process of the Court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the Court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of Res Judicata or the requirement of issue estoppel". In my view, the above observation of the Supreme Court squarely applies to the case in hand. I find that in the interest of the System, it is just and necessary that the suit O.S.2473/1996 is to be ordered to be struck off. 31. With a view to prevent the Decree Holder from enjoying the fruits by taking delivery of possession, placing reliance upon (1998)3 SCC 573 S.S.SUBRAMANI, J., in 1999-2 L.W.781 directed the executing court to issue suitable direction to the police assistance without even waiting for any formal application. The learned single Judge held, "Dehors Order 23, on the ground of public policy and for administration of justice, such repeated attempts by litigant to thwart execution of decree and attempt to reagitate the same matter should be prevented". 32. In the case reported in Smt.Patasibal and others ..vs.. Ratanlal (JT (1990) 3 SC 68), the Supreme Court has held thus:- "The trial should not proceed when there is no controversial issue but the trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint. Since the plaint suffers from that fatal defect, the mere issuance of summons by the trial court did not require that the trial should proceed even when no triable issue is shown to arise; permitting the continuance of such a suit is tantamount to licensing frivolous and vexatious litigation, which cannot be done. The Supreme Court has also held that it is not necessary to adopt the technical course of directing the trial Court to make the consequential order of rejecting the plaint".(Emphasis added) Thus, in the case in hand, to avoid any further delay in the conclusion of the vexatious suit, the only practical course would be to order the plaint in O.S.2473/1996 to be struck off. 33. Be it under Article 227 of the Constitution of India or under section 115 CPC, the High Court has general supervisory jurisdiction. That supervisory revisional jurisdiction of the High Court is the residuary jurisdiction conferred on the High Court. Thus, exercising the supervisory jurisdiction conferred on the High Court under section 115 CPC, it is just and necessary that the plaint in O.S.2473/1996 to be ordered to be struck off. In the circumstances of the case, it is also necessary to direct the Revision Petitioner to pay the costs of the suit to the Respondent. 34. For the reasons stated above, O.S.2473/1996 on the file of II Additional District Munsif Court, Coimbatore is ordered to be struck off. Resultantly, O.S.2473/1996 stands dismissed. Revision Petitioner / Plaintiff is directed to pay the suit costs to the Respondent. K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 10 35. Resultantly, this Revision Petition is also dismissed. There is no order as to costs. Revision Petitioner / Plaintiff is directed to pay the suit costs to the Respondent / Defendant. Index: Yes. Internet: Yes. gl To The II Additional District Munsif, Coimbatore.  K.K.Swaminathan vs Srinivasagam on 10 October, 2003 Indian Kanoon - http://indiankanoon.org/doc/601533/ 11

trial2.pdf

Madras High Court Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 23/12/2011 Coram The Honourable Mr.Justice V.RAMASUBRAMANIAN Civil Revision Petition (NPD)(MD) No.1123 of 2006 And M.P.No.2 of 2006 1. Ayisha Beevi 2. Beevija 3. Hadijath Beevi 4. Yunusa Begam 5. Syed Ali 6. Sumaya Begam 7. Mohamed Yoosuf 8. Mohamed Ismail 9. Razira Beevi 10.Shabi Mohamed 11.Zakir Mugain 12.Ferosh Khan 13.Augustin 14.Dr.T.C.Joseph ..... Petitioners Vs. 1. Sheik Mydeen 2. A.P.Nelson 3. Chandrakala Ruben ..... Respondents ----- Petition under Article 227 of the Constitution of India against the fair and decretal order dated 18.10.2006 made in E.P.No.201 of 2000 in O.S.No.420 of 1976 passed by the Principal District Munsif, Padmanabhapuram. !For Petitioner ... Mr.K.N.Thampi ^For Respondent-1 ... Mr.Prabhu Rajadurai For Respondents 2&3 ... Mr.A.Arumugham ----- :ORDER Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 1 The civil revision petition arises out of an order passed by the Executing Court dismissing the application filed by the legal representatives of the judgment debtor, seeking restitution under Section 144, CPC. 2. Heard Mr.K.N.Thampi, learned counsel for the petitioners, Mr.G.Prabhu Rajadurai, learned counsel for the first respondent and Mr.A.Arumugham, learned counsel for respondents 2 and 3. 3. One Mr.Sheik Mytheen and his mother Mytheen Beevi filed a suit in O.S.No.420 of 1976 on the file of the District Munsif Court, Padmanabhapuram, against one Shahul Hameed, praying for a decree of recovery of possession, together with mesne profits. The plaint schedule described the property sought to be recovered as a Coffee Shop building located on the South-eastern portion of a land of an extent of 14. cents in Survey No.19/1, Thakkalai, situate on the North of Thuckalay-Thiruvananthapuram Road, on the West of Azhagiya Mandapam-Mekka Mandapam Road, on the East of Survey No.20 and on the South of Survey No.14. 4. By a judgment and decree dated 05.7.1977, the Additional District Munsif, Padmanabhapuram, decreed the suit, directing the defendant Shahul Hameed to vacate and deliver vacant possession of the suit property and also directing payment of arrears of rent. 5. The first appeal filed by the defendant Shahul Hameed in A.S.No.141 of 1977 was dismissed by the Sub Court, Padmanabhapuram, by a judgment and decree dated 16.7.1981. The second appeal filed by the defendant in S.A.No.1372 of 1981 was also dismissed by this Court by a judgment dated 09.11.1990. 6. Thereafter, the first plaintiff Sheik Mytheen filed E.P.No.140 of 1990 for the execution of the decree. In the Execution Petition, the Executing Court passed the following order: "16.4.91: cj;jut[ t!;Jit thH;tpj;J bgw ,k;kD jhf;fy; bra;ag;gl;L cs;sJ/ vjph;kDjhuh; I.A.30/91, O.S.179/89 vd;W kD bra;J cs;sjhf Vw;fdnt Twp cs;shh;/ I.A.30/91 Vw;fdnt 22/3/1991y; js;Sgo Mfptpl;lJ/ vdnt ,t;tHf;fpy; thH;tpg;g[ bfhLg;gjpy; vt;tpj jila[k; ,y;iy/ vdnt deliver by - 29.4.91. Id/- P.D.M. 16.4.91. " 7. However, on 19.4.1991, a petition for advancing the hearing of the E.P., filed on behalf of the decree holder was allowed, the hearing of the E.P. was advanced from 29.4.1991 to 19.4.1991 and the Executing Court not only recorded delivery, but also closed the execution petition. 8. After one year of the delivery being recorded, the judgment debtor Shahul Hameed filed an application in E.A.No.161 of 1992 before the Executing Court seeking re-delivery of the portion of the property allegedly taken possession in excess of the decree passed in the suit. This application was filed by the judgment debtor purportedly under Sections 47 and 151, CPC. Actually, the prayer made in E.A.No.161 of 1992 was "to declare the delivery effected in E.P.No.140 of 1990 as excessive and null and void". Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 2 9. By an order dated 30.10.1992, the Principal District Munsif, Padmanabhapuram, dismissed the said application, holding that there was no excess delivery and that the judgment debtor failed to prove either his right or his possession of the portion of the property in respect of which he was seeking re-delivery. 10. As against the said order dismissing E.A.No.161 of 1992, the judgment debtor filed a revision petition in CRP No.3291 of 1992 on the file of this Court. The revision petition was allowed by this Court by an order dated 26.11.1997, with a direction to the decree holder to re-deliver the excess portion of the property other than the one for which the decree was passed. It must be noted that the decree holders did not appear in the civil revision petition and the order was passed in their absence. Paragraphs 5 to 7 of the order dated 26.11.1997 passed in CRP No.3291 of 1992, reads as follows: "5. I have gone through the entire pleadings and also the order included in this revision. I am unable to countenance the reasons given by the lower court in dismissing the petition. The lower Court has failed to note that under the decree, the decree holder was entitled to take delivery of the southern shop within a plot having an extent of 14. cents. The lower Court has overlooked that the Amin who gave the delivery of property to the decree holder took delivery of the entire 14. cents of land and six shops within the plot. Undoubtedly the case was one of excess execution and therefore as rightly pointed out by the learned counsel for the petitioner, the judgment debtor was entitled to get redelivery of the property which was delivered over unauthorisedly. 6. This apart, the delivery was effected without notice to the judgment debtor and that too on a holiday. The whole procedure was carried out in haste without giving an opportunity to the judgment debtor to put forward his case. The C.R.P. therefore liable to succeed and accordingly the revision is allowed. The order of the lower court is set aside and E.A. 161/92 is allowed declaring that the delivery effected in E.P.No.140/90 in O.S.No.420/09 is excessive and is null and void. 7. In view of the order now passed, the respondent is directed to redeliver the rest of the portion other than one to which the decree is passed." 11. But, it transpires that the judgment debtor Shahul Hameed, who filed CRP No.3291 of 1992 in the year 1992, died on 09.9.1993 itself and that this fact was either unknown and/or not brought to the notice of this Court. Therefore, the civil revision petition was allowed on 26.11.1997 in favour of the sole petitioner, who had died four years before the said order. His legal representatives were not brought on record and the abatement, if there was any, was not set aside. In other words, the order was actually an order in favour of a dead person and that too in the absence of the decree holder. 12. After four years of the order allowing the civil revision petition, the decree holder Sheik Mytheen came up with a miscellaneous petition in CMP No.3538 of 2001 praying for bringing on record, the legal representatives of the judgment debtor Shahul Hameed. But, the said petition was dismissed by this Court by an order dated 15.10.2003. Paragraph 3 of the said order, which alone contains the reasons for dismissing the miscellaneous petition, reads as follows: "Be that as it may, now the only point for consideration is whether the petitioner herein who was the respondent in the main civil revision petition, admittedly did not participate in the civil revision petition proceeding since he was absent and therefore the civil revision petition had to be decided and unless the petitioner is able to Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 3 overcome and explain his absence for all these years, further filing an application to nullify the said order on legal grounds, he cannot be permitted to file an application of this sort seeking to implead the legal representatives of the deceased petitioner. Further more, the order has gone in favour of the deceased person and therefore nothing wrong in the deceased person's legal representatives claiming the right as per their entitled in law. Only if the order has gone against the dead person, it is bad in law and therefore, absolutely there is no justification on the part of the petitioner herein to have come forward to file the above civil revision petition." 13. In the meantime, in pursuance of the original order dated 26.11.1997 passed in CRP No.3291 of 1992, the legal heirs of the judgment debtor Shahul Hameed, along with two persons by name Augustin and T.C.Joseph, filed a petition in E.P.No.201 of 2000, praying for restitution and re-delivery of the excess property from the decree holder. For reasons best known to them, the said petition was filed under Sections 144 and 151, CPC and the prayer was for re- delivery of the property to the 15th petitioner by name T.C.Joseph, on behalf of the 14th petitioner Augustin. 14. It is relevant to note at this juncture that the legal heirs of Shahul Hameed were the petitioners 2 to 13 in E.P.No.201 of 2000. It was stated in the petition that the 14th petitioner Augustin got a sale deed dated 02.11.1982 from the original judgment debtor Shahul Hameed, in respect of 7. cents out of the total of 14. cents and that he also purchased 5 cents under a Court sale and delivery in O.S.No.13 of 1992 on the file of the Principal District Munsif Court, thereby becoming the owner of 12" cents, out of the total extent of 14. cents. The 14th petitioner Augustin claimed that the 15th petitioner T.C.Joseph was appointed as his Power Agent, by a registered deed dated 04.8.1992. Therefore, the petitioners actually prayed in E.P.No.201 of 2000 for re-delivery from the decree holders, to enable them to hand over possession to the 15th petitioner T.C.Joseph. 15. By an order dated 18.10.2006, the Principal District Munsif, Padmanabhapuram, dismissed E.P.No.201 of 2000, on three grounds, viz. (i) that the petition was not maintainable inasmuch as the entire suit property in O.S.No.420 of 1976 had been shown; (ii) that the sale deed dated 02.11.1982 filed as Ex.P2, on the basis of which Augustin claimed title to the property was a fraudulent document; and (iii) that the petitioners had not come to Court with clean hands. 16. Aggrieved by the said order dated 18.10.2006 passed in E.P.No. 201 of 2000 in O.S.No.420 of 1976, the legal heirs of the original judgment debtor Shahul Hameed as well as persons claiming title under Shahul Hameed, viz., Augustin and T.C.Joseph, have come up with the above civil revision petition. 17. The bone of contention of Mr.K.N.Thampi, learned counsel for the petitioners is that in the order passed in CRP No.3291 of 1992 dated 26.11.1997, a clear and unambiguous finding had been recorded to the effect that there was excess delivery and that the delivery was effected without notice to the judgment debtor on a holiday, in a hasty manner. Not stopping at recording such findings, this Court went to the extent of directing the decree holders to re- deliver the rest of the portion, other than the one for which the decree was passed in the suit. The attempt made by the decree holder Sheik Mytheen to get the order passed in CRP No.3291 of 1992 dated 26.11.1997 set aside, failed with the dismissal of CMP No.3538 of 2001. Therefore, it is the contention of the learned Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 4 counsel for the petitioners that since the order passed in the civil revision petition had attained finality, it was not open to the executing Court to over reach the said order and annul its effect. By dismissing the execution petition on the grounds mentioned in para 15 above, the executing Court, according to the learned counsel for the petitioners, had virtually set aside the order of the High Court. Therefore, the learned counsel for the petitioners contended that the order under revision is vitiated by serious illegality and infirmity. 18. Under normal circumstances, the above contention of the learned counsel for the petitioners, is liable to be accepted as perfectly valid and justified. But, insofar as the case on hand is concerned, there is a hitch. The civil revision petition CRP No.3291 of 1992 was filed by the sole judgment debtor Shahul Hameed himself, in the year 1992. Admittedly, he died on 09.9.1993. The revision was allowed on 26.11.1997, without bringing on record, his legal representatives. Thus, the order passed in civil revision petition was actually in favour of a dead person. Therefore, the primary question to be considered in this civil revision petition is as to whether the said order dated 26.11.1997 in CRP No.3291 of 1992 is a nullity or not. If the order is actually a nullity, then the next question would be about the effect of the order dated 15.10.2003 passed in CMP No.3538 of 2001 in CRP No.3291 of 1992. 19. Therefore, let me now take up the first question as to whether the order passed in CRP No.3291 of 1992 is a nullity, on account of the fact that it was passed in favour of a dead person. 20. Order XXII of the Code of Civil Procedure deals with the consequences of death, marriage or insolvency of parties to the proceedings before Court. I do not know whether it was the intention of the law makers to place death, marriage and insolvency on the same footing and whether the placement of all of them under one Order was actually a reflection of such an intention. 21. Be that as it may, the effect of Rules 1 to 12 of Order XXII, can be summarised as under: (a) The death of a plaintiff or a defendant will not cause the suit to abate if the right to sue survives. (b) If there are more plaintiffs than one or more defendants than one and one of them dies, with the right to sue surviving upon the other plaintiffs or defendants, the Court has to simply make an entry to that effect and proceed with the suit. (c) If one of the several plaintiffs dies and the right to sue does not survive on the surviving plaintiffs alone, then, the legal representatives of the deceased plaintiff have to be brought on record, on an application made in that behalf. The same procedure applies where a sole plaintiff dies and the right to sue survives. (d) If an application to bring on record the legal representatives of the deceased plaintiff is not made within the time prescribed by the law of limitation, then the suit will abate so far as the deceased plaintiff is concerned. Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 5 (e) If one of the several defendants dies and the right to sue does not survive against the surviving defendants alone, then, the legal representatives of the deceased defendant have to be brought on record, on an application made in that behalf. The same procedure applies where a sole defendant dies and the right to sue survives. (f) If an application to bring on record the legal representatives of the deceased defendant is not made within the time prescribed by the law of limitation, then the suit will abate as against the deceased defendant. (g) However, the Court has a discretion to exempt the plaintiff from the necessity of substituting the legal representatives of a deceased defendant, if such defendant had failed to file a written statement or if he had failed to appear and contest the suit at the time of hearing. (h) The Court has the power under Section 5 of the Limitation Act, 1963 to condone the delay in seeking to set aside the abatement caused due to the death of the defendant, if the plaintiff shows that he was ignorant of the death of the defendant and that as a consequence, he had sufficient cause for not making an application for substitution of the legal representatives, within the time prescribed. (i) If a party who died during the pendency of the suit, had not left behind any legal representative, the Court may proceed further without any one representing the estate of the deceased. Alternatively, the Court may appoint the Administrator General or an Officer of the Court to represent the estate of the deceased. (j) The Court has the power to decide the question whether any person is or is not the legal representative of a deceased plaintiff or defendant. If such question arises before an appellate Court, the appellate Court may direct the subordinate Court to try the question and record a finding and send it to the appellate Court. (k) If the death of either party to the suit occurs, after the conclusion of the hearing, but before the pronouncement of the judgment, there will be no abatement, irrespective of whether the cause of action survives or not. Consequently, the Court can proceed to pronounce the judgment. (l) A suit shall not abate, merely on account of the marriage of a female plaintiff or defendant. A decree in favour of the wife can be executed on an application filed by the husband, if he is by law entitled to the subject matter of the decree. Similarly, if the husband is liable by law, for the debts of his wife, the decree against the wife can also be executed against the husband, with the permission of the Court. (m) A suit which is maintainable by an assignee or receiver, for the benefit of the creditors of a plaintiff, will not abate on account of the insolvency of the plaintiff, unless the assignee or receiver declines to continue. Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 6 (n) If a suit abates or is dismissed under Order XXII, no fresh suit shall be brought on the same cause of action. (o) The plaintiff or the person claiming to be his legal representative can seek to set aside the abatement or dismissal, by showing sufficient cause. The Court has the power to condone the delay in filing such applications. (p) If there is assignment or creation of devolution of any interest, during the pendency of a suit, the suit may be continued by or against the person to or upon whom such interest has devolved. But, it shall be done with the leave of the Court. (q) A pleader appearing for a party to the suit, has a duty to inform the Court about the death of his client, if he comes to know about the death. Thereafter, the Court is obliged to give notice of such death to the other party. (r) The provisions of Order XXII are applicable to appeals. While so applying, the words "plaintiff", "defendant" and "suit" shall be taken to include the words "appellant", "respondent" and "appeal". (s) The provisions of Rules 3, 4 and 8 of Order XXII, are not applicable to proceedings in execution of a decree or order. In other words, (i) the obligation under Rule 3 to bring on record the legal representatives of the deceased plaintiff; (ii) the obligation under Rule 4 to bring on record the legal representatives of the deceased defendant; and (iii) the consequences of the insolvency of a plaintiff indicated in Rule 8, are not applicable to the proceedings in execution of a decree. 22. A reading of Rules 1 to 12 of Order XXII would show that the provisions of Order XXII, primarily concern suits. Rule 11 gives a positive indication that all these provisions are also applicable to appeals. Rule 12 gives an indication, though in a negative form, that all the provisions of Order XXII, except those under Rules 3, 4 and 8, are applicable to proceedings in execution of a decree or order. 23. In the light of the manner in which and the language in which, the provisions of Rules 1 to 12 of Order XXII are framed, a contention was raised by Mr.K.N.Thampi, learned counsel for the petitioners that these provisions are not applicable to revisions under Section 115, CPC. According to the learned counsel for the petitioners, the revisional jurisdiction of the High Court, under Section 115, CPC, is available both suo motu as well as upon an application by a party to the proceedings. Since the revisional jurisdiction of the High Court under Section 115 is only to correct an error of jurisdiction or a material irregularity, the principles underlying Order XXII, according to the learned counsel, would not apply to proceedings under Section 115. Therefore, in essence, it is the contention of the learned counsel that the death of Shahul Hameed (sole petitioner in CRP No.3291 of 1992), would not make the order passed therein, a nullity, on the basis of the principles enunciated in Order XXII. 24. But, the said contention was sought to be repelled by Mr.A. Arumugham, learned counsel for the respondents 2 and 3 on the ground that in view of Section 141, CPC, the procedure provided in the Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 7 Code in regard to suits, shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Similarly, Mr.G.Prabhu Rajadurai, learned counsel for the first respondent relied upon a few decisions and contended that the provisions of Order XXII would apply in all fours to revisions under Section 115 also. 25. Mr.K.N.Thampi, learned counsel for the petitioners, relied upon the decision of a learned Judge of the Gauhati High Court in Rahima Khatun v. Samser Ali [AIR 1985 Gauhati 40], a decision of M.Thanikachalam, J., in C.Manoharan vs. C.V.Subramaniam {2006 (4) MLJ 898} and a decision of the Supreme Court in P.Jesaya vs. Sub Collector {2004 (13) SCC 431}. In response, the learned counsel for the first respondent relied upon the following decisions in support of the contra view: (i) Pendyala Basawanjanayulu v. Lingamullu Ramalingayya [AIR 1938 Mad 115]; (ii) Bibi Rahmani Khatoon v. Harkoo Gope [(1981) 3 SCC 173]; (iii) Surinder Nath Kapoor v. Union of India [AIR 1988 SC 1777]; (iv) Ganesan & five others v. Perumal Gounder & another [1995 (II) CTC 549]; and (v) Amba Bai v. Gopal [(2001) 5 SCC 570]. 26. In Rahima Khatun, relied upon by Mr.K.N.Thampi, learned counsel for the petitioners, the Gauhati High Court was concerned with a case where a suit for eviction was decreed by the Trial Court and confirmed by the Appellate Court. The tenant died after filing a revision under Section 115 CPC. The revision was dismissed on merits, one day after the death of the revision petitioner (tenant). In the execution proceedings, it was contended that the order passed in the revision was a nullity, since the revision petitioner had died before the order was passed. While rejecting the said contention, it was held by a learned Judge of the Gauhati High Court that the death of the revision petitioner did not in any way make the judgment of the High Court invalid, inasmuch as it was passed in a revision under Section 115, in which, the High Court could even suo motu call for the records and dispose it of, after examining them and satisfying itself that the order of the Subordinate Court did not suffer from any infirmity specified in Section 115 and that the death of the petitioner did not affect the revisonal power of the High Court under Section 115. 27. The above view expressed by the Gauhati High Court, cannot be rejected outright, as an impossible view. Section 115 empowers the High Court to call for the record of any case, which has been decided by any Court subordinate to it, if such subordinate Court had exercised the jurisdiction not vested in it in law or failed to exercise a jurisdiction vested in it or acted in exercise of its jurisdiction illegally or with material irregularity. Therefore, the power of the High Court under Section 115 is actually supervisory in nature and hence, can be exercised both suo motu, as well as on application, by a party. The only restriction for the High Court under Section 115 is that it shall not vary or reverse any decision of the subordinate Court, without hearing the party likely to be Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 8 affected by such variation or reversal. Therefore, the contention raised by the learned counsel for the petitioners merits an in-depth analysis. But, before venturing to do so, let me also take note of the other decisions relied upon by the learned counsel for the petitioner as well as the learned counsel for the respondents. 28. In P.Jesaya, relied upon by the learned counsel for the petitioner, the facts out of which the appeal went to the Supreme Court is not clearly borne out from the report {2004 (13) SCC 431}. All that could be seen from the said decision is that the first respondent in the appeal before the High Court, died and his heirs were not brought on record. When it was contended that the appeal had abated, the Supreme Court held that when the counsel failed in his duty imposed under Order XXII, Rule 10 of the Code to inform the Court and the other side, the heirs of the defaulting party cannot be allowed to take advantage of their own fault. 29. In C.Manoharan, there were two plaintiffs, one of whom died and the other survived. Therefore M.Thanikachalam, J., held that though the decree passed against a dead person is a nullity as held by the Apex Court in Amba Bai vs. Gopal {AIR 2001 SC 2003}, the counsel was at fault in not bringing the death of his client to the notice of the Court. Therefore, the learned Judge followed the decision in P.Jesaya. 30. But the decisions in P.Jesaya and C.Manoharan, are not applicable to the facts of the case, since they do not deal with the question on hand directly. There is also one more reason. The focus in both these decisions, is on the failure on the part of the Pleader to perform his duties under Order XXII, Rule 10-A of the Code. In our case, who was at fault? It was the judgment- debtor's counsel, who was at fault. The judgment-debtor was the revision petitioner. His counsel argued the revision after 4 years of the death of his client. Therefore, the petitioners in this revision, who are the legal representatives of the petitioner in CRP No.3291 of 1992, whose counsel was at fault in terms of Order XXII, Rule 10-A, cannot take advantage of the fault on their own side. Moreover, the default on the part of Shahul Hameed, the petitioner in CRP 3291 of 1992, was of a more serious nature, in this case. From the pleadings made by Shahul Hameed's legal heirs and their successors, namely Augustin and T.C.Josesph, it is clear that Augustin bought 7-1/2 cents out of the total of 14-1/2 cents under a Sale Deed dated 2.11.1982 itself. Therefore when Shahul Hameed filed CRP 3291 of 1992, seeking redelivery of excess portion, he was not even the owner. Therefore, when his counsel failed to take steps in terms of Order XXII, Rule 10-A, after the death of Shahul Hameed, the legal representatives of Shahul Hameed cannot be allowed to take advantage of the same. Hence, order XXII, Rule 10, cannot be put against the decree holder and his legal heirs. Therefore, out of the 3 decisions relied upon by the learned counsel for the petitioner, the decision of the Gauhati High Court alone is of relevance to the case on hand. 31. Having discussed the 3 decisions cited by the learned counsel for the petitioner, let me now turn on to the decisions cited by the learned counsel for the first respondent. 32. The first decision cited by the learned counsel for the first respondent is in Pendyala Basavanjanayulu, (AIR 1938 Madras 115). In that case, a decree for money was passed against one Subba Rao. He filed a revision on the file of the High Court, challenging the decree (since the decree Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 9 was passed on an award against which no appeal would lie). The revision was allowed on 10.5.1934 and the suit was remitted back to the Trial Court, for a retrial. But, the said order was passed without taking note of the death of the revision petitioner on 7.1.1934 itself. Consequently, the Trial Court held that the order of the High Court was invalid, as it was passed in favour of a dead person. This decision of the Trial Court was challenged on revision before the High Court. It was contended before the High Court that in the case of petitions under Section 115 CPC, it does not matter whether the parties are dead or alive at the time when the order is passed, since in such cases the matter is entirely one between the High Court and the Trial Court. But, the said contention was rejected by this Court in the aforesaid decision, holding that 'to admit such a principle would be to deny the fundamental right of parties to a litigation to be heard and that Order XXII has always been applied to petitions under Section 115.' Therefore, this Court held that the order of the Trial Court treating the order of the High Court passed in the first civil revision petition as a nullity and one passed without jurisdiction, was perfectly in order. But this decision in Pendyala, was overruled by a Division Bench, 11 years later. I shall refer to it later. 33. In Bibi Rahmani Khatoon, the Supreme Court pointed out in paragraph 10 of its decision that if a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. But, this decision cannot be taken to be an authoritative pronouncement of law on the issue whether Order XXII will apply to proceedings under Section 115 CPC or not, since the Supreme Court was actually concerned with the abatement of proceedings, under a special enactment known as Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. However, what is stated in paragraph 10 of the decision in Bibi Rahmani Khatoon, is quoted with approval by a later decision of the Supreme Court in Amba Bai Vs. Gopal (2001 (5) SCC 570). 34. The decision in Surinder Nath, as well as the decision in Ganesan and five others (1995 (2) CTC 549), are also not on the point whether an order passed under Section 115 CPC in favour of a dead person is a nullity or not. 35. But in Amba Bai, relied upon by the learned counsel for the first respondent, a suit for specific performance was dismissed by the Trial Court, but the appeal was allowed. The defendant filed a second appeal and died before the second appeal was dismissed. The execution proceedings were resisted by the legal heirs of the judgment-debtor on the ground that the judgment in the second appeal was a nullity. The High Court agreed and the matter went to the Supreme Court. Allowing the appeal, the Supreme Court held that the judgment passed without the knowledge that the appellant had died, was a nullity. But since the legal representatives of the judgment-debtor did not take steps to get impleaded and to prosecute the second appeal, the second appeal abated and the decree for specific performance passed by the first Appellate Court attained finality. To come to such a conclusion, the Supreme Court held that the doctrine of merger would not apply to such a case. 36. Having seen the decisions cited on both sides and having taken note of the provisions of Order XXII, Rules 3, 4, 11 and 12 of the Code, let me now undertake a journey through the annuls of time, to see how different Courts have viewed the issue in the past. Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 10 37. Since Order XXII, Rule 12, makes it clear that the provisions of Rules 3, 4 and 8 do not apply to proceedings in execution of a decree, the Courts were confronted with 2 different questions in the past. They are:- (i) Whether the bar under Order XXII, Rule 12, would apply to appeals arising out of execution proceedings also ? (ii) Whether the bar under Order XXII, Rule 12, would apply to revisions arising out of execution proceedings also ? 38. On the first question, the opinion of the Courts has swung from one extreme to the other, as can be seen from the following:- (i) Mir Khan vs. Sharfu {AIR 1923 Lah. 560} (ii) Avadai Ammal vs. Krishnan Chetti {1928 (55) MLJ 497 (DB)} (iii) Hakeem Syed vs. Fateh Bahadur {AIR 1929 Pat.565 (FB)} (iv) Changa Mal vs. Chaubey Ram {AIR 1933 All. 388 (DB)} (v) Cheda Lal vs. Aijaz Hussain {AIR 1936 Lah. 1022 (DB)} (vi) Madhaorao Ghatate vs. Baliram Narayan {AIR 1938 Nag. 502(DB)} (vii) Ajudhia Pershad Ram Pershad vs. Sham Sunder {AIR 1947 Lah. 13 (FB)} (viii) Trimbak vs. Gopal {AIR 1947 Bom. 480 (DB)} (ix) Bishnu Bijoy vs. Chandra Bijoy {AIR 1955 Cal. 281 (DB)} (x) Balaram vs. Subodh Chandra {AIR 1956 Ass. 9 (DB)} (xi) Surendranath vs. Dasarathi Dutta {AIR 1960 Ori. 14} (xii) Chandravati Bai vs. Chaganlal {AIR 1962 AP 308 (DB)} (xiii) Haji Abdul vs. Phir Gulam {AIR 1970 J&K 13 (DB)} (xiv) Hanumat vs. Phuna {AIR 1971 Raj. 43} (xv) Kusun Samal vs. Banamali {AIR 1974 Ori. 105} (xvi) Sher Singh vs. Paras Ram {AIR 1979 HP 39 (DB)} I am not discussing the above cases in detail, since they address the question as to whether appeals arising out of execution proceedings would also abate or not. While some of the above Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 11 decisions hold the view that Rule 11 has to be read with Rule 12, some Courts have taken a different view, holding that appeals arising out of the execution proceedings are not in any way different from appeals arising out of other proceedings. Since we are concerned in this case only with a revision arising out of execution petition, I am not discussing the ratio of the above decisions in detail. 39. Even on the second question whether the bar under Order XXII, Rule 12, would extend to revision petitions arising out of execution proceedings, the opinion is divided. Let us now have a look at those decisions:- (i) In AIR 1949 Mad. 435 (DB) - Manickam v. Ramanathan it was held by a Division Bench of this Court that there can be no question of abatement but for the combined application of the provisions of Order 22, Rules 3 and 4 and the material articles of the Limitation Act. Overruling the decision of Stodart, J., in 'Pandyala' (AIR 1938 Mad. 115), the Division Bench held that as neither Order 22 of the Civil Procedure Code, nor the Limitation Act, applies to Civil Revision petitions, there can be no question of abatement of such petitions. (ii) In AIR 1953 Raj. 169 (FB) - Babulal v. Mannilal, it was held that Order 22 applies to suits and by virtue of Rule 11, also to the cases of appeals. It does not govern the cases of revision applications. Section 141 also does not make the provisions of Order 22 applicable to the cases of revisions as it applies only to the cases of proceedings of original nature. (iii) In AIR 1958 Punj. 171 - Jowala Singh v. Malkan, it was held that ordinarily the provisions of Order 22 govern the case of abatement during the pendency of the suit. This principle has been extended expressly by Rule 11 of Order 22 to the case of appeals, but there is no mention of its applicability to revisions. This is a case in which the maxim "inclusio unius est exclusio alterius" should apply and by restricting the application of the rule of abatement expressly to suits and appeals, the intention of the legislature was to exclude from its purview cases arising from proceedings in revision. Section 141 of the Code cannot be read in cases of abatement under Order XXII, so as to extend its scope to revisions. (iv) In AIR 1971 Del. 65 (DB) - Union of India v. Ganga Datt it was held that the provisions of Order 22 have been made specifically applicable to appeals by virtue of Rule 11. It is not applicable to revisions and inherent power of the Court to substitute parties will be exercised only in the context of exercising judicial discretion in interfering with lower court's orders and not under Section 146 of the Code. (v) In AIR 1972 All. 504 (FB) - Chandradeo Pandey v. Sukhdeo Rai, it was held that by virtue of Rule 11 of Order 22, the provisions of Rules 3 and 4 are made applicable to the appellants and the respondents in appeals as well. But these Rules, however, do not apply to revisions. (vi) In AIR 1976 Goa, Daman & Diu 2 - Teotonio Nunes v. Maria Nunes, it was held, following the decision in AIR 1958 Pun. 171 and AIR 1963 Pun. 206 that the provisions of Order XXII of C.P.C. do not apply to revision petitions. Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 12 (vii) But in AIR 1977 Cal. 241 (DB)- State Bank of India v. S.Wazir Singh, a Division Bench of the Calcutta High Court held that the provisions of Order 22 CPC apply in the case of revisional applications as well. The Division Bench took note of the decision of the Lahore High Court in AIR 1948 Lah. 186, the Full Bench decision of the Rajasthan High Court in AIR 1953 Raj. 169, the Full Bench decision of the Allahabad High Court in AIR 1972 All. 504 and also a decision of a single Judge of the Calcutta High Court itself in Md. Israil vs. S.M.Amiral Islam {1976 (1) Cal. LJ 492}. But nevertheless, the Division Bench of the Calcutta High Court took a different view in this State Bank of India case, after taking note of an earlier Division Bench decision of the Calcutta High Court in (1913) 18 Cal LJ 141 (DB) (Anandamoyi Dasi v. Rudra Mahanti). Interestingly, this earlier decision of the Division Bench of the Calcutta High Court was also taken note of by the Full Bench of the Lahore High Court, but the Lahore High Court considered the view expressed by Asutosh Mookerjee, J., in Anandamoyi Dasi, as obiter. But the Division Bench in State Bank of India did not agree with the Lahore Full Bench that the observations in Anandamoyi, were obiter. The relevant portion of the decision of the Division Bench in State of India case, is as follows:- "This point came up for decision long ago before a Division Bench of our High Court in (1913) 18 Cal LJ 141 (DB) (Anandamoyi Dasi v. Rudra Mahanti). Sir Asutosh Mookerjee, J., relying on an earlier decision reported in (1912) 16 Cal LJ 571 (Deo Saran v. Syedunnesa) held that 'the principle recognised in Rule 3 of Order 22 of the CPC is applicable not only to suits, but also to proceedings in revision'. The Division Bench of the Calcutta High Court in State Bank of India case, also took note of the observations made by the Supreme Court in Shankar Ramchandra v. Krishnaji AIR 1970 SC 1 to the effect: "When the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the C.P.C. circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the appellate jurisdiction of the high Court as a superior court. It is only one of the modes of exercising power conferred by the statute basically and fundamentally it is the appellate jurisdiction of the high Court which is being invoked and exercised in a wider and larger sense". This view of the Supreme Court was based upon AIR 1932 PC 165 (Nagendra Nath Dey v. Suresh Chandra Dey) where the Judicial Committee opined"Any application by a party to an appellate court to set aside or revise a decree or order of a Court subordinate thereto is an appeal within the meaning of Art.182 (2) of Sch.1 of the Indian Limitation Act, 1908". (viii) In AIR 1979 Raj. 179 - Jamna Lal v. Khemraj Nathulal a learned Judge of the Rajasthan High Court, following the decision of the Division Bench of the same Court in Kanhiyalal {AIR 1953 Raj. 69} and the decision of the Full Bench of the same Court in Babulal {AIR 1953 Raj. 169} held that is well settled that Order XXII does not apply to revision applications. (ix) AIR 1989 J&K 35 - Islamia College of Science and Commerce v. Hassan, a learned Judge of the Jammu and Kashmir High Court followed the Full Bench decision of the Allahabad High Court in Chandradeo Pandey v. Sukhdeo AIR 1972 All 504 (FB). Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 13 40. In Puran Singh Vs. State of Punjab (1996 (2) SCC 205), a question arose as to whether the provisions of Order XXII are applicable to proceedings under Articles 226 and 227. Till 1976, when an "Explanation" was inserted under Section 141 of the CPC, to exclude the proceedings under Article 226 from the definition of the expression "proceedings", there was a controversy as to whether the provisions of the Code would apply even to writ proceedings or not. But, the Explanation inserted by CPC (Amendment) Act, 1976 excluded the proceedings under Article 226, from the definition of the expression "proceedings" appearing in Section 141, CPC. Therefore, after taking note of the purpose for which the amendment was made, the Supreme Court held in paragraph 7 of its decision in Puran Singh that the provisions contained in Order XXII are not per se applicable to writ proceedings. While holding so, the Court also pointed out at the end of paragraph 7 that if the procedure prescribed in respect of suits in the Code are made applicable to writ proceedings, it may frustrate the extraordinary powers of the High Court under Articles 226 and 227. 41. However, after expressing the above view in paragraph 7, the Court posed a few questions in paragraph 8, such as whether the proceedings under Articles 226 and 227 could continue against a dead person and whether the Court will be empowered to pass an order without hearing the legal representatives of the deceased respondent, even when the right to sue survives against the legal representatives of the deceased respondent. After examining these questions, the Court held in paragraphs 11 and 12 as follows : "When The Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and Tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well- recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 14 respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time, the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.' 42. In Pranab Kumar Mitra vs. State of West Bengal {AIR 1959 SC 144}, a question arose whether the revision filed under Section 431 of the Code of Criminal Procedure would abate, upon the death of the revisionist. The Supreme Court held that in hearing and determining cases under Section 439 of the Code, the High Court discharges its statutory functions of supervising the administration of justice on the criminal side and that therefore, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. However, a subsequent Bench of the Supreme Court clarified this position, in the decision in Bondada Gajapathi Rao vs. State of A.P. {AIR 1964 SC 1645}. 43. In State of Kerala Vs. Narayani Amma Kamala Devi (AIR 1962 SC 1530), the cashier of a bank was convicted by the Sub.Divisional Magistrate, of an offence of theft. He was sentenced to undergo rigorous imprisonment for one year and the car purchased by him was also sold under orders of Court and the sale proceeds were appropriated to the bank. The appeal filed by the convicted person was dismissed by the Sessions Court on 13.8.1959. Within a few hours of the pronouncement of the judgment, he died. His wife and two minor sons filed a revision under Section 439, CrPC on 11.11.1959. The High Court rejected the preliminary objection raised by the State of Kerala that the revision was not maintainable and thereafter, the High Court allowed the revision and set aside the conviction. The High Court also granted a certificate of appeal to the State of Kerala under Article 134(1)(c) of The Constitution. 44. After referring to the common law maxim 'actio personalis moritur cum persona', and after citing Salmond's observations in his Jurisprudence, the Supreme Court pointed out in paragraph 3 of its decision in the above case that there is a distinction between the commencement/ continuance of criminal proceedings against a person and an action taken on behalf of an accused person against whom a criminal proceeding has ended. The Court further pointed out that in such cases the common law maxim is of little use. 45. After holding so, the Court referred to the distinction maintained in the Code of Criminal Procedure, between the Appellate Jurisdiction and Revisional Jurisdiction of the High Court. An argument was advanced before the Supreme Court that by the express provisions of the Statute, a Revisional Court is empowered to do only what an Appellate Court can do. But, that argument was Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 15 rejected in paragraph 6 of the said decision, on the ground that the conditions for the exercise of the power of revision are not to be confused with the extent of the power. 46. After pointing out distinction between the Appellate Jurisdiction and Revisional Jurisdiction, the Supreme Court also took note of a Full Bench decision of the Bombay High Court in Imperatrix Vs. Dongaji Andaji, (1878 ILR Bom 564), which was later considered by the Supreme Court in Pranab Kumar Mitra Vs. State of West Bengal, (1959 (1) SCR 63). In Pranab Kumar Mitra, the convicted person died pending a revision. But, it was held that the revisional jurisdiction remained untouched. Drawing analogy from the decision in Pranab Kumar Mitra, the Apex Court held in State of Kerala Vs. Narayani Amma that a revisional application could be entertained even after the death of the convicted person. Accordingly, the judgment of the Kerala High Court was upheld. 47. In Dhani Devi Vs. Sant Bihari Sharma, (AIR 1970 SC 759), the Supreme Court had an occasion to consider an identical question with respect to the Motor Vehicles Act. It was held therein that Order XXII of CPC does not apply to proceedings under the Motor Vehicles Act. 48. As seen from the above discussion, there are only three decisions of this Court on the question as to whether the provisions of Order XXII would apply to revision petitions or not. The first is the decision in Pendyala Basavanjanayulu {AIR 1938 Mad. 115}, relied upon by Mr.G.Prabhu Rajadurai, learned counsel for the petitioner. But the said decision was overruled by a Division Bench, in Manickam vs. Ramanathan {AIR 1949 Mad. 435}. The third decision was the one in C.Manoharan {2006 (4) MLJ 898}. But this decision went on a different footing, as pointed out in para 29 above. 49. To my knowledge, the Supreme Court has not considered the issue so far, in relation to revisions arising out of execution proceedings. The High Courts of Rajasthan, Punjab, Delhi and Allahabad have taken a view that Order XXII does not apply to revisions. The Division Bench of the Calcutta High Court alone has taken a contra view. 50. But the decision of the Division Bench of our own High Court in Manickam vs. Ramanathan {AIR 1949 Mad. 435}, may not hold good any longer, in view of an important development that had taken place after the said decision was rendered. In that decision, the Division Bench pointed out that there is nothing in the Civil Procedure Code which makes the provisions of Order XXII applicable to revisions, though it is made applicable to suits and appeals. Not stopping at that, the Division Bench also pointed out that there was no provision even in the Appellate Side Rules of this Court to make Order XXII applicable to civil revision petitions. 51. The Division Bench was right when it rendered its decision in 1949. But subsequently, the position changed. In the Appellate Side Rules of the High Court, Madras, issued by the High Court in 1965, under the provisions of Section 122 of the Code, a specific provision has been incorporated under Order IV, Rule 25. It reads as follows:- Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 16 "The provisions of Order XXII of the Code and Indian Limitation Act, relating to abatement shall apply to civil revision petitions" 52. After the introduction of the above Rule, the decision of the Division Bench in Manickam vs. Ramanathan, may not hold good anymore. Therefore, the revision petition CRP No.3291 of 1992, actually got abated after the death of the sole revision petitioner on 9.9.1993. Consequently, the order passed on 26.11.1997 allowing the civil revision petition in favour of a dead person, is only a nullity. 53. Out of something which is only a nullity, nothing can sprout. Therefore, the dismissal of the application CMP No.3538 of 2001 filed by the decree holder, to resurrect the civil revision petition by bringing the legal heirs of the sole revision petitioner on record, is of no consequence. On the contrary, if that application had been allowed, there was a possibility for the legal heirs to seek to set aside the abatement. That was also lost. 54. Once the order passed in CRP No.3291 of 1992 is found to be a nullity, the order of the Executing Court dismissing E.A.No.161 of 1992 filed by the judgment-debtor attains finality. Therefore, no restitution can be ordered, directing the decree-holder to hand over the land allegedly taken possession in excess of the property ordered to be delivered. 55. I have already taken note of one important fact that the order impugned in the civil revision petition was dated 30.10.1992. The revision was filed in 1992. When the legal heirs of the judgment-debtor filed an execution petition in E.P.No.201 of 2000, two persons joined with them as petitioners 14 and 15. The 14th petitioner Augustin claimed to have purchased a portion of the property which the judgment-debtor sought to repossess, under a Sale Deed dated 2.11.1982 itself. He also claimed to have purchased another portion from the judgment-debtor under a Court Sale and delivery in O.S.No.13 of 1992. Therefore, all these facts should have been within the knowledge of Shahul Hameed, the judgment-debtor. But in the execution application E.A.No.161 of 1992 which the judgment-debtor filed for recovery of the excess delivery, he did not take along with him this Augustin. Therefore, the attempt now made on behalf of Augustin and his power agent, leaves a lot of questions unanswered. In such circumstances, the dismissal of the application filed by the legal heirs of Shahul Hameed along with the persons claiming to be purchasers, cannot be found fault with. 56. In view of the above, the civil revision petition is dismissed. There will be no order as to costs. Consequently connected miscellaneous petition is also dismissed. Svn Ayisha Beevi vs Sheik Mydeen on 23 December, 2011 Indian Kanoon - http://indiankanoon.org/doc/66922949/ 17

trial6.pdf

Madras High Court Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09/09/2008 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.O.P.(MD).No.3102 of 2008 Indian Overseas Bank, K.Abishekapuram Branch, Mannarpuram, Tiruchirappallai - 620 020 rep. by the Authorized Officer A.Rasheed Khan ... Petitioner Vs 1.M/s.Sree Aravindh Steels Ltd., a public limited company registered under the Companies Act, 14-a, E.V.R. Road, Puthur, Trichirappalli - 620 017. 2.Sri.Arun Shankar, Managing Director, M/s.Sree Aravindh Steels Ltd., 14-A, E.V.R. Road, Puthur, Trichirappalli - 620 017. 3.Sri.S.B.Shankar, "Pathmavilla", 3-B, Bhulabai Desai Road, Chookkikulam, Madurai - 625 002. 4.The Inspector of Police, Thuvakudi Police Station, Thuvakudi, Tiruchirappalli - 620 002. ... Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 1 call for the records relating to the order dated 11.12.2007 made in Crl.M.P.No.1472 of 2007 on the file of the learned Chief Judicial Magistrate, Tiruchirappalli and set aside the same and consequently directing the learned Chief Judicial Magistrate, Tiruchirappalli to pass appropriate order in accordance with Section 14 of SARFAESI Act and take possession of the secured assets and hand over the same to the petitioner bank. !For Petitioner ... Ms.J.Maria Roselin for Mr.V.Sribalaji ^For Respondent ... Mr.P.Rajendran No.4 Government Advocate (Crl. Side) * * * * * :ORDER This petition is filed praying to set aside the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli dated 11.12.2007 in Crl.M.P.No.1472 of 2007. 2. The petitioner herein is Indian Overseas Bank, a nationalised bank, who is a secured creditor. The first respondent herein is a public limited company, who is a principal borrower and the second respondent is the Managing Director and the third respondent is the Director and also the guarantor and the fourth respondent viz., the Inspector of Police, Thuvakudi Police Station is an unnecessary party. 3. The petitioner herein filed an application before the learned Chief Judicial Magistrate, Tiruchirappalli for taking possession of secured assets under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called as SARFAESI Act). As the learned Chief Judicial Magistrate, Tiruchirappalli had dismissed the said application, the petitioner has preferred this petition before this Court under Section 482 Cr.P.C. 4. This being a case of civil nature, the question that arose immediately in the mind of this Court is that whether the application under Section 482 Cr.P.C. is maintainable. Though the petitioner could have preferred a Civil Revision Petition under Article 227 of the Constitution of India, the petitioner has not done it so. Though this is a case of civil nature, an order being passed by the learned Chief Judicial Magistrate, Tiruchirappalli, a revision is maintainable under Section 397 Cr.P.C., since, any order passed by any Magistrate can be challenged by way of revision by the aggrieved person under Section 397 Cr.P.C. Further, when the matter came up for hearing before His Lordship Mr.Justice S.Nagamuthu, Hon'ble Judge referred the matter to a Division Bench to decide the question whether the learned Chief Judicial Magistrate, Tiruchirappalli has got power to entertain an application under Section 14 of SARFEASI Act. The matter was heard by the Division bench and decided as follows: "Therefore, holding that the term 'Chief metropolitan Magistrate' will have reference to a metropolitan area and the term 'Chief Judicial Magistrate' will have reference to an area outside a metropolitan area, and therefore, the Chief Judicial Magistrate, Tiruchirappalli has got power to entertain a petition under Section 14 of the Securitisation and Reconstruction of Financial Assets Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 2 and Enforcement of Security Interest Act, 2002, we direct the Registry to place the matter before the concerned Court, for further proceedings". 5. Now, it is for this Court to decide whether the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli is to be confirmed or liable to be set aside. As per Section 14 of SARFAESI Act, a secured creditor may for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him, take possession of such assets and document relating thereto and forward such assets and documents to the secured creditor. 6. In this case, the petitioner-bank filed an application before the learned Chief Judicial Magistrate, Tiruchirappalli under Section 14 of SARFAESI Act and the learned Chief Judicial Magistrate, Tiruchirappalli also issued summons to the respondents and the third respondent alone filed a counter and the learned Chief Judicial Magistrate, Tiruchirappalli after hearing the learned counsel appearing for the petitioner and third respondent, dismissed the application mainly for the reasons as per the order, which is as follows: "10. On behalf of the petitioner a notice u/s 13(2) having been issued, even after its receipt the beneficiaries of the loan has not repaid the loan. The petitioner has filed this petition u/s 14(1). The petitioner sought for an order may be passed as prayed for taking action against Borrowers u/s 13(2). "the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within 60 days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub section(4).." Action has been initiated against the Respondents under this provision. 11. Notice has been issued under the above said provision. The beneficiaries have not repaid the amount towards principal or interest. By an Amendment to the Special Act, Sec. 13(3-A) has been introduced under Act 30 of 2004 dated 11.11.2004. This amendment came into force from the date of amendment. It is as follows: 3A:- "If, on receipt of the notice under sub section (2) the borrower makes any representation or raises any objection and if the secured creditor comes to the conclusion such representation or communicate within one week of receipt of such a representation or objection the reasons for non-acceptance of the representation or objections to the borrower". It has to be determined whether under this provision the secured creditor has considered the reply given by the Respondent/Debtors after carefully considering the reply or objections and intimate the beneficiaries that the appeal or objection cannot be acceptable or tenable and he shall communicate its reasons for not accepting the reply within one week. Whether this procedure has been followed or not as by the petitioner-bank? There is no mention in the petition about the compliance of this rule. Therefore this Court cannot grant any relief u/s 14(1) of the Special Act. This Court is of the opinion that the petition is not maintainable u/s 14(1) of the Special Act and the petition filed u/s 14(1) by Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 3 the Petitioner Bank as Secured Creditor is hereby ordered to be dismissed". 7. The learned counsel appearing for the petitioner submitted that the learned Chief Judicial Magistrate, Tiruchirappalli has erred by giving notice to the respondents and also by taking into consideration, the counter filed by the third respondent. The learned counsel appearing for the petitioner further submitted that when a petition is filed under Section 14 of SARFAESI Act, the concerned Magistrate is not required to give notice to the borrower or to the third party, but he has to only verify from the bank or financial institution whether the notice under Section 13(2) of SARFAESI Act was given or not and whether the secured assets fall within his jurisdiction and there shall be no adjudication of any kind at that stage and it is only if the above conditions are not fulfilled the concerned Magistrate can refuse to pass an order and not otherwise. 8. The learned counsel appearing for the petitioner relied on the decision of this Court in M/s. Sundaram Home Finance Limited v. K.Raja in C.R.P.PD.No.1559 of 2004, wherein it is held as under: "2. Mr. AR.L.Sundaresan, learned counsel appearing for the petitioner took me through Section 13(2) & (4) and Section 14 of the said Act and contended that, in deciding to grant the relief made to the Court under Section 14 of the said Act, no notice need be sent to the other side. A reading of Section 14 of the said Act do show that the contention of the learned counsel for the petitioner is right. Accordingly, the order of the lower Court so far as it relates to ordering notice to the respondent alone is set aside. The lower Court is directed to act as per the requirement of Section 14 of the said Act immediately on production of a copy of this order. The revision stands disposed of accordingly". 9. The learned counsel appearing for the petitioner further relied on the decision of the Division Bench of this Court in Sundaram Home Finance Limited, rep by its Manager-Recovery, Madhavan, 46, Whites Road, Royapettah, Chennai-14 vs. 1. The Tahsildar, Hosur 2. The District Collector, Krishnagiri reported in 2007 (2) CTC 1, wherein it is held as follows: "9. The words of the section and the law laid down in Mardia Chemical's case (supra) do not envisage a notice under Section 13(4). Reasons for not accepting the objection are to be communicated before taking measures like taking over possession of the secured assets. This is the fairness that is required of the lender. But if the borrower has not responded to the notice under Section 13(2), the lender has no occasion to communicate his reasons, necessarily the tender proceeds to the next stage. The borrower gets a right to challenge the action only after any of the measures contemplated under Section 13(4) have been taken. It is clear from the paragraphs extracted above from Mardia Chemical's case that the communication of the reasons may not be taken to give an occasion to resort to such proceedings which are impermissible under the Act. A person who does not respond to the notice under Section 13(2) of the Act should be considered to be aware of the consequences that will follow. In any event, it is not possible to hold that a borrower who has not responded to the notice under Section 13(2) will be entitled to a notice under Section 13(4), whereas, in respect of a borrower who has responded to a notice under Section 13(2) and has had the rejection communicated by the bank, the bank can proceed straightaway to take the Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 4 measures contemplated under Section 13(4). There is no room for visualizing two such courses of action. This will be reading words into the Section, which the legislature had not used. It is not our duty to legislate. The Supreme Court also was aware that "some of the provisions may be a bit harsh for some of the borrowers", yet has not, in its judgment, held that a pre-Section 13(4) notice must be issued. We are unable to read a requirement of such notice either in the Section or in the Judgment". 10. In view of the decision rendered by the Division Bench of this Court cited supra, this Court now holds that no notice is necessary to the borrowers and in such a case even though the notice was issued by the learned Chief Judicial Magistrate, Tiruchirappalli, it is not necessary to give notice to the respondents 1 to 3 to decide the issue. 11. The learned counsel appearing for the petitioner further submitted that the petitioner had sent a notice under Section 13(2) of the Act and also received objections from the respondents 1 to 3 and the petitioner also in turn had sent a reply, giving reasons for non-acceptance of the objections of the borrower. But mere failure to mention it in the petition would not affect the requirement of the petition. 12. The learned counsel appearing for the petitioner further submitted that even assuming that the petitioner has not communicated to the borrower, the reasons for non-acceptance of the representation or objection of the borrower, the only remedy available to the borrower is under Section 17 of the SARFAESI Act, after issuance of the possession notice. 13. The learned counsel appearing for the petitioner again relied on the decision of the Division Bench of this Court in Industrial Development Bank of India Ltd., by Deputy General Manager & the Authorised Officer, 115, Anna Salai, Saidapet, Chennai-15 vs. Kamaldeep Synthetics Ltd., rep. by its Managing Director, V. Nandakumar, No.A-1, Alankar Apartment, No.12, Raman Street, T.Nagar, Chennai-600 017 reported in 2007(2) CTC 397, wherein it is held as follows: "6. Ms. J. Anandhavalli, learned counsel appearing for the respondent, however, submitted that there has been total non-compliance of Section 13(3-A) of the SARFAESI Act and, therefore, the entire proceedings are vitiated. Learned counsel submitted that in response to the notice dated 20.12.2005 issued under Section 13(2), a reply letter dated 16.02.2006 was sent by the respondent raising objections to the said notice. The reasons for non-acceptance of the objections raised were communicated by the appellant-bank only by letter dated February 22, 2006. However, before even communicating the reasons, the appellant-bank issued the possession notice on February 20, 2006. According to the learned counsel, the notice for possession under Section 13(4) of the SARFAESI Act could be issued by the bank only after the reasons for non- acceptance of the objections were communicated by the appellant-bank to the respondent-borrower and therefore, notice under Section 13(4) is illegal and valid. 7. We are unable to accept the submission of the learned counsel for the respondent. Section 13(3-A) of the SARFAESI Act, which was incorporated by the Amendment Act 30 of 2004, provides that if, on receipt of the notice under sub- section (2), the borrower makes any representation or raises any Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 5 objection, the secured creditor must consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower. This provision is obviously incorporated in the light of the decision of the Supreme Court in Mardia Chemicals Ltd. v. Union of India, 2004(2) CTC 759 : 2004(4) SCC 311. 8. In Mardia Chemicals case, the Supreme Court held that under Section 13(2) of the SARFAESI Act, it is incumbent upon the secured creditor to serve sixty days notice before proceeding to take action under sub-section (4) of Section 13 of the SARFAESI Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief that may be, must be communicated to the borrower. The reasons so communicated shall only be for the purpose of the information/ knowledge of the borrower without giving rise to any right to approach the DRT under Section 17 of the SARFAESI Act, at that stage. The Court explained that communication of reasons not to accept the objections of the borrower is for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor, who intends to resort to harsh steps of taking over the management/business of namely, the secured assets without intervention of the Court. Such person in respect of whom steps under Section 13(4) of the SARFAESI Act are likely to be taken cannot be denied the right to know the reason for non-acceptance of his objections. This will be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly of the developments immediately before taking measures under sub-section (4) of Section 13 of the SARFAESI Act. The Court, however, made it clear that as per the provisions of the SARFAESI Act, the borrower will not be entitled to challenge the reasons communicated or the likely action of the secured creditor at the stage of communication of reasons, unless his right to approach the DRT as provided under Section 17 of the SARFAESI Act matures on any measure having been taken under sub-section (4) of Section 13 of the SARFAESI Act. 9. The proviso to sub-section (3-A) of Section 13 of the SARFAESI Act makes it abundantly clear that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the DRT under Section 17 or the Court of District Judge under Section 17-A of the Act. Thus, the basic object of sub-section (3-A) of Section 13 of the SARFAESI Act is to ensure the element of transparency and fair play in the implementation of the provisions of the SARFAESI Act. Learned counsel for the respondent is unable to demonstrate prejudice or loss that is likely to be caused to the respondent by reason of the possession notice given to it, earlier to the communication of the reasons for non-acceptance of the objections raised by the borrower. In our opinion, at the most, it would amount to a mere irregularity and having regard to the facts and circumstances of the case, we are satisfied that the appellant- bank has substantially complied with the provisions of Section 13(3-A) of the SARFAESI Act". (emphasis supplied) Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 6 14. The learned counsel appearing for the petitioner also relied on the decision of the Division Bench of Bombay High Court in Trade Well, a Proprietorship firm and Mr.Suniel K.Mehta, Proprietor of Trade Well v. Indian Bank, a Body corporate consulted Under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 and The State of Maharashtra in Crl.W.P.Nos.2767 of 2006 and 27, 124 and 343 of 2007, wherein it is held as follows: "67. When the bank takes any measures under Section 13(4), on account of failure of the borrower to repay the liability is already crystallized. Similarly when the secured creditor approaches the CMM/DM for assistance to take possession of the secured asset, the liability having been crystallized, there can be no adjudication about it at that stage. Possession has to be taken by non-adjudicatory process. There is no question of pointing out to the CMM/DM at that stage that the person who is to be dispossessed is a tenant, or that he has a prior registered sale deed or that in case of simple mortgage, ownership rights are not transferred; that the mortgagee is only entitled to an obligation to pay and, hence, possession cannot be taken or that such a course will improve or change the contract etc. Grievance that reasons for not accepting the objections were not communicated can also not be raised at that stage because consideration of reply is in the realm of adjudication which cannot be done under Section 14. Besides as per proviso to Section 13 (3-A) and explanation to Section 17, non-communication of reasons to the borrower does not confer on the borrower or any person right to prefer an application under Section 17 at the stage of communication. This is the scheme of the NPA Act. It is so framed to achieve its object. At first blush this may appear harsh. But it is not so. The borrower and the third party is not remedy-less. Remedy is provided in Section 17 where appropriate relief can be given to them. It is after measures under Section 13(4) are taken that an application under Section 17 can be filed by a borrower or any person and in that application, all grievances including the grievance that reasons were not communicated can be voiced. Prior to that, at no point of time any grievances can be raised. Section 17 offers an adequate remedy. We shall advert to Section 17 a little later. ... ... 85. In our opinion, at the time of passing order under Section 14 of the NPA Act, the CMM/DM will have to consider only two aspects. He must find out whether the secured asset falls within his territorial jurisdiction and whether notice under Section 13(2) of NPA Act is given or not. No adjudication of any kind is contemplated at that stage. ... ... 90. Following conclusions emerge from the above discussion: 1. The bank or financial institution shall, before making an application under Section 14 of the NPA Act, verify and confirm that notice under Section 13(2) of the NPA Act is given and that the secured asset falls within the jurisdiction of CMM/DM before whom application under Section 14 is made. The bank and financial institution shall also consider before approaching CMM/DM for an order under Section 14 of the NPA Act, whether Section 31 of the NPA Act excludes the application of Section 13 and 14 thereof to the case on hand. Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 7 2. CMM/DM acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the 3rd party. 3. He has to only verify from the bank or financial institution whether notice under Section 13(2) of the NPA Act is given or not and whether the secured assets fall within his jurisdiction. There is no adjudication of. 4. It is only if the above conditions are not fulfilled that the CMM/DM can refuse to pass an order under Section 14 of the NPA Act by recording that the above conditions are not fulfilled. If these two conditions are fulfilled, he cannot refuse to pass an order under Section 14. 5. Remedy provided under Section 17 of the NPA Act is available to the borrower as well as the third party. 6. Remedy provided under Section 17 is an efficacious alternative remedy available to the third party as well as to the borrower where all grievances can be raised. 7. In view of the fact that efficacious alternative remedy is available to the borrower as well as to the third party, ordinarily, writ petition under Articles 226 and 227 of the Constitution of India should not be entertained. 8. In exceptional cases of gravest injustice, a writ petition could be entertained by this Court. 9. Great care and caution must be exercised while entertaining a Writ petition because in a given case it may result in frustrating the object of the NPA Act. 10. Even if a writ petition is entertained, as far as possible, the parties should be relegated to the remedy provided under Section 17 of the NPA Act before the DRT by passing an interim order which will protect the secured assets. Adjudication and final order should be left to the DRT as far as possible". (emphasis supplied) 15. As per the above said principles, the conclusion of the learned Chief Judicial Magistrate, Tiruchirappalli that the petitioner has not complied with the provision of 13(3-A) of SARFAESI Act and therefore the relief cannot be granted under Section 14(1) of the Act, is incorrect. 16. In the result, the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli in Crl.M.P.No.1472 of 2007 dated 11.12.2007 is set aside and the learned Chief Judicial Magistrate, Tiruchirappalli is directed to consider the application afresh on the basis of the above principles laid down and proceed according to law. The petitioner is also entitled to file additional materials, if available. Accordingly, this petition is allowed. smn To 1.The Inspector of Police, Thuvakudi Police Station, Thuvakudi, Tiruchirappalli - 620 002. Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 8 2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.  Indian Overseas Bank vs M/S.Sree Aravindh Steels Ltd on 9 September, 2008 Indian Kanoon - http://indiankanoon.org/doc/1511412/ 9

trial10.pdf

Kerala High Court Moideen vs The Sub Inspector Of Police on 13 August, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl.Rev.Pet.No. 1015 of 2004(B) 1. MOIDEEN S/O.AHAMMEDKUTTY, ... Petitioner Vs 1. THE SUB INSPECTOR OF POLICE, ... Respondent 2. STATE OF KERALA, REP. BY THE For Petitioner :SRI.T.G.RAJENDRAN For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :13/08/2010 O R D E R "C.R." M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1015 of 2004 -------------------------- ORDER Can an absconding accused, whose property is attached under Section 83 of Code of Criminal Procedure, file an application, after the expiry of two years from the date of attachment, to release the property as provided under Section 85 of Code of Criminal Procedure, is the question to be settled in this revision. 2. The facts are not disputed. Petitioner was the sixth accused in C.C.No.129/1989 on the file of Judicial First Class Magistrate's Court-I, Kozhikode. As he was absconding and his presence could Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 1 not be procured and disposal of the case against the other accused was delayed unnecessarily, learned Magistrate split up the case as against the sixth accused and re-filed it as C.C.No.283/1990. The case as against the remaining accused were proceeded and as per judgment dated 30.1.1993, those accused were acquitted of all the offences. As the presence of the petitioner could not be procured, in spite of coercive steps, C.C.No. 283/1990 was subsequently included in the long pending register, as provided under Rule 16 of Criminal Rules of Practice, after complying with the procedure provided under Sections 82 and 83 of Code of Criminal Procedure, as L.P.No.43/1994. While so, petitioner surrendered on 29.5.2000 before the Magistrate and consequently, L.P.No. 43/1994 was re-filed as C.C.No.113/2000. Petitioner was released on bail. While the case as against the petitioner was being tried, on 31.7.2000, he filed C.M.P.No.3969/2000 under sub-section (3) of Section 85 of Code of Criminal Procedure to release the property attached under Section 83 of Code of Criminal Procedure. Petitioner, in the petition, contended that his properties were attached under Section 83 of Code of Criminal Procedure and he appeared before the court on 29.5.2000 and was released on bail and therefore, the attached property is to be released. Learned Magistrate, as per order dated 31.7.2000, dismissed the petition. Petitioner challenged that order before Sessions Court along with an application to condone the delay. That application was dismissed and consequently, the appeal was also dismissed. It was challenged before this Court in Crl.R.P.No. 1080/2002. This Court set aside the order dismissing the application for condonation of delay and directed the Sessions Court to dispose the appeal on merit. Learned Sessions Judge, as per impugned judgment dated 23.9.2003, dismissed the appeal confirming the order passed by the Magistrate. It is challenged in this revision. 3. Learned counsel appearing for the petitioner argued that Sections 83 to 85 of Code of Criminal Procedure do not provide that the property attached under Section 83 of Code of Criminal Procedure would vest with the Government and sub-section (3) of Section 85 of Code of Criminal Procedure provides that even if the property attached was sold, the absconding accused is entitled to file an application to release the same and the purpose of attachment is not to punish an accused or to deny his rights in his property, but, only to secure the presence of the accused for trial and once the absconding accused surrendered before the court, the property is to be released to him. It was pointed out that the property was not sold by the Government and is still in the possession of the Government and therefore, petitioner is entitled to get the property released and dismissal of the petition is illegal. 4. Learned Public Prosecutor submitted that the property was attached as petitioner absconded and proclamation was issued under Section 82 of Code of Criminal Procedure and petitioner did not appear within the period mentioned in the proclamation and though an absconding accused, on his surrender or production before the court, is entitled to get the property released, it can only be as provided under sub-section (3) of Section 85 of Code of Criminal Procedure and such an accused has to establish that he did not abscond and he was unaware of the proclamation and such an application shall be filed within a period of two years from the date of attachment and as it was not filed within the period, the petition can only be dismissed as has been done by the courts below. 5. Section 83 of Code of Criminal Procedure provides for attachment of the property of an absconding accused. Section 82 of Code of Criminal Procedure provides for proclamation for person Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 2 absconding. Under sub-section (1) of Section 82, if any court has reason to believe (whether after taking evidence or not) that any person, against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation. Sub-section (1) of Section 83 of Code of Criminal Procedure provides that the court, issuing a proclamation under Section 82, may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order attachment of any property, movable or immovable or both, belonging to the proclaimed person. It also provides that where, at the time of the issue of the proclamation, the court is satisfied that the person, in relation to whom the proclamation is to be issued, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local jurisdiction of the court, it may order attachment simultaneously with the issue of the proclamation. Under sub-section (2), such order shall authorise the attachment of any property belonging to such person within the district in which it is made and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situated. Sub-section (3) provides that if the property ordered to be attached is a debt or other movable property, attachment shall be as provided therein. Sub- section (4) provides that if the property ordered to be attached is immovable, the attachment, under the Section, shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situated and in all other cases, it shall be as provided under clauses (a) to (d). 6. Section 84 of Code of Criminal Procedure provides for claims and objections to attachment. Under sub-section (1), if any claim is preferred to or objection made to the attachment of, any property attached under Section 83, by any person other than the proclaimed person, within six months from the date of such attachment, on the ground that claimant or objector has an interest in such property and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into and may be allowed or disallowed in whole or in part. Under sub-section (4), any such person may institute a suit to establish the right, which he claims in respect of the property in dispute, within a period of one year from the date of such order, but, subject to the result of such suit, the order shall be conclusive. 7. Section 85 of Code of Criminal Procedure relates to release, sale and restoration of the property attached. Section 85 reads: 85. Release, sale and restoration of attached property - (1) If the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government, but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under Section 84 has been disposed of under that section, unless it is subject to speedy and natural Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 3 decay or the court considered that the sale would be for the benefit of the owner, in either of which cases the court may cause it to be sold whenever it thinks fit. (3) If, withing two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the court by whose order the property was attached, or the court to which such court is subordinate, and proves to the satisfaction of such court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property or if the same has been sold, the net proceeds or the sale or if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. 8. On a reading of Sections 82 to 85 of Code of Criminal Procedure, it is clear that the intention of providing for attachment of the property under Section 83 of Code of Criminal Procedure is to compel an absconding accused or a person who is concealing himself from being arrested in execution of a warrant to appear before the court. When an accused is absconding and the court, under Section 82, issues a proclamation and along with the proclamation or thereafter orders attachment of the property under Section 83, Section 84 enables a third person to file a claim petition or an objection to the attachment. The right to file a claim petition or an objection under Section 84 of Code of Criminal Procedure is not available to an absconding accused. It is only "by any person other than the proclaimed person". If such an application is dismissed after conducting an inquiry, sub- section (4) enables that person to institute a suit before a civil court to establish his right which he claimed in respect of the property in dispute and that too, within a period of one year from the date of such order. But, the right provided under Section 84(4) also cannot be availed of by an absconding accused. 9. Sub-section (1) of Section 85 of Code of Criminal Procedure enables an absconding accused to get the property attached under Section 83 released on his appearance by filing an application. If such an application is filed "within the time specified in the proclamation issued under Section 82" the court shall make an order releasing the property from the attachment. In such a case, no inquiry is contemplated to find out whether the accused was absconding or whether he was concealing himself from being arrested in execution of a warrant issued by the court. As a matter of right, an absconding accused is entitled to get the property released on his appearance within the time specified in the proclamation. 10. Sub-section (2) of Section 85 of Code of Criminal Procedure provides that if the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government. It also provides that the property, though at the disposal of the State Government, shall not be sold until the expiration of six months from the date of the attachment, evidently because, any other person, other than the proclaimed person, is entitled to file a claim petition or an objection as provided under Section 84 within a Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 4 period of six months from the date of the attachment. It also provides that if any such claim petition or objection has been preferred or made as provided under Section 84, the property, which is at the disposal of the State Government, shall not be disposed till the objection or the claim has been disposed by the court, unless the property is subject to speedy and natural decay and the court considers that sale would be for the benefit of its owner. It provides that in such a case, the court may sell the same whenever it thinks fit. 11. Sub-section (3) of Section 85 of Code of Criminal Procedure enables an absconding accused to apply for releasing the property attached after the period specified in the proclamation, but, within a period of two years from the date of the attachment. It provides that any person, whose property is or has been at the disposal of the State Government as provided under Section 83, appears voluntarily or is apprehended and brought before the court by whose order the property was attached, may apply to release the property from attachment. But, such an application is to be filed within a period of two years from the date of the attachment. Even if an application is made under sub-section (3) within the period of two years from the date of the attachment, an absconding accused is not entitled to get the property released, unless he satisfies the court the two other mandatory conditions. The first condition is that such an absconding accused must prove to the satisfaction of the court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant. The second condition is that such an absconding accused has to further prove to the satisfaction of the court that he had no notice of the proclamation so as to enable him to attend the court within the time specified therein. If these two conditions are satisfied and the application is filed within a period of two years from the date of attachment, the court shall release the property to him and if the property, in whole or part was sold, the net proceeds of the sale and the residue of the property shall be delivered to him, less the expenses incurred in consequence of the attachment. Therefore, the right available to an absconding accused under sub- section (3) of Section 85 of Code of Criminal Procedure is limited. First of all, the application shall be filed within a period of two years from the date of attachment. Secondly, he must satisfy the two conditions, namely, he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and also that he had no notice of the proclamation issued under Section 82 of Code of Criminal Procedure so as to enable him to attend the court within the time specified in the proclamation. 12. True, Sections 83 and 85 of Code of Criminal Procedure do not specifically provide that the property attached under Section 83 vests with the Government. But, a reading of Section 85, makes it clear that once the property is attached under Section 83, the property, so attached, shall be at the disposal of the State Government, subject to the provisions of sub-sections (1) to (3) of Section 85 of Code of Criminal Procedure. 13. The question is what is the meaning of "shall be at the disposal of the State Government". It only means that the property shall vest with the Government so as to enable the State to deal with the property at the wishes of the State Government. True, the rights so vested in the Government could only be the right, which was available with the absconding accused on the date of attachment under Section 83. No superior right could be claimed by the Government over that property based on the attachment under Section 83. As stated earlier, even though by an order passed under Section 83, attaching the property of the absconding accused, the property so attached is at the disposal of the Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 5 State Government, if the absconding accused is arrested or surrenders before the court within the time specified in the proclamation, in spite of the fact that the property is at the disposal of the State Government, the property shall be released to the absconding accused. Therefore, the right over the property, which vested in the Government by attachment, is subject to the right of the absconding accused to get it released on his appearance within the time specified in the proclamation. As is clear from sub-section (2) of Section 85, even though the property is at the disposal of the Statement Government from the date of attachment, it cannot be sold by the Government within a period of six months from the date of attachment, as any person other than the absconding accused is granted a right to prefer a claim or objection under Section 84 within that period. So also, even though the property is at the disposal of the State Government, it will be subject to the right of the absconding accused to get it released within a period of two years from the date of attachment as provided under sub-section (3). The absconding accused is entitled to get it released on filing an application and satisfying the conditions provided under sub-section (3). If no such application is filed within the period of two years and even if an application is filed and dismissed on the failure of the absconding accused to satisfy any of the two conditions provided thereunder, the property, which is already at the disposal of the State Government, shall vest absolutely with the Government subject to any other right available to the accused to approach the civil court. It may be that an independent suit may lie on the ground that there was no order of attachment under Section 83, as the formalities provided therein were not complied with and therefore, the property did not vest in the Government on the expiry of two years as provided under Section 85 of Code of Criminal Procedure. But, the right to get the property by approaching the court, which ordered the attachment as provided under sub-section (3) of Section 85, will not be available to an absconding accused after the expiry of two years from the date of attachment. 14. Though learned counsel appearing for the petitioner relied on the decision of the Apex Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel ((2008) 4 SCC 649) and argued that Section 82 was enacted only to secure the presence of an absconding accused and once the accused surrendered before the court, the property shall be released to him and the right to get the property released is subject to the provisions of the Code, including sub-section (3) of Section 85 of Code of Criminal Procedure. The relevant portion of the decision reads: The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused is a matter between the State and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any other passed under Section 85 of the Code. It cannot be a subject-matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 6 interest thereon. (emphasis supplied). The Honourable Supreme Court only held that on the accused surrendering before the court, the standing warrant shall be cancelled and he is no longer an absconder and as there is no further need of attaching the property, it is to be released. But, it was made clear that such release shall be subject to the provisions of the Code. Section 85 provides for release of the property after the absconding accused appears and files an application within a period of two years from the date of attachment and not after the expiry of the two years. 15. A learned single Judge of the Bombay High Court in Secretary of State v. Ahalyabhai Narayan Kulkarni (AIR 1938 Bombay 321) had considered the effect of Section 88 of Code of Criminal Procedure, 1898 and held that if a person, claiming an interest over the property, prefers a claim before the Magistrate and that claim is negatived, he can institute a suit to establish his right in a civil court within one year from the date of the Magistrate's order and it does not mean that an independent suit by that person is not maintainable. It was held that the object of the Legislature is that although the property was to be at the disposal of the Government after it was attached, it was not to be sold until the expiration of six months from the date of attachment or until the claim preferred had been disposed of under that sub-section. If no objection was raised before the Magistrate within six months from the date of the order of attachment or no stay is got from the civil court after filing a suit, Government would be free to dispose of the property as they liked, by sale or otherwise. It was then held: After the Government took any such step, the party who claims interest in the property may not perhaps be able to assert any right in the property. But, so long as the property has not been sold by Government or otherwise disposed of and so long as Government have continued to remain in possession of the attached property, it would, I think, be open to any party claiming an interest in it to obtain a decree of a civil court declaring his right in the property and if he succeeds in obtaining such a decree before Government have finally disposed of the property, that decree would be binding against Government and the property could be disposed of subject to the rights established under such decree. It is stated in sub- section (6D) that the order of attachment shall be conclusive subject to the result of a suit instituted by the person aggrieved by the Magistrate's order. But that, in my opinion, does not mean that it is not open to the interested party to obtain a decree declaring his rights before Government have proceeded to sell the property. The provision in sub-section (7) that the property shall not be sold until the claim preferred under sub-section (6-A) has been disposed of, means that the sale is to be subject to the rights of any person interested if such rights are established by a decree. If so, why should such rights be not enforceable even if they are obtained by a decree without going before any Magistrate under sub-section (6-A), so long as the property has not been sold by Government. I, therefore, agree with the lower courts in holding that the suit is maintainable in spite of the fact that the plaintiffs did not got to the Magistrate under Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 7 sub-section (6-A) and that the decree would be binding on the Government. 16. Another single Judge of the Bombay High Court in Narayan Kondaji Temkar v. Govind Krishna Abhyankar (AIR 1929 Bombay 200) considered the question whether the words "at the disposal of the State Government" imply from the moment the absconding accused fails to appear or from the date of attachment and held that the property would be at the disposal of the Government only from the date of attachment and not from the date of the accused absconded. 17. A Division Bench of Punjab and Haryana High Court considered the question of right of heirs of an absconding accused to institute a suit for restoration of the property in Daya Nand Kalu v. The State of Haryana (AIR 1976 P & H 190). The Division Bench held: The object of attaching the property of an absconder is not to punish him but to compel his appearance. If the property has not been confiscated or disposed of, the title therein continues to vest in the owner and thereafter in his heirs. In the instant case, the property had admittedly been mutated in the name of the appellant and even the learned single Judge has held that rights other than those of occupancy, viz., "the landlord's rights vest in the plaintiff". The finding that occupancy rights continued despite the coming into force of the Act does not appear to be correct. All such occupancy rights in Punjab as were held by the absconder ripened into ownership on the coming into force of Section 3. Section 3 brought about an improvement in the status of the title of the occupancy tenant and not of the receiver or of anyone "at whose disposal" the property stood on that day as a result of attachment. Title never ceases or gets transferred by attachment, but continues in the original owner. It was then held: It is true that a civil suit for the land could not be filed by the absconder himself after two years of attachment and otherwise then on the fulfilment of the two conditions laid down in Section 839, but no such shackles are attached to the right of an heir of the absconder after the latter's death. Such heir has o right to apply under Section 89. The implied bar of Section 89 is only for such person who could have applied under that provision. The present plaintiff could not have so done. The occupancy tenancy (which had been attached) had ceased to exist as such. The title in the property admittedly vested in the plaintiff. No provision of law barred the jurisdiction of the civil court to try this suit for possession of his property. No other decision has been pointed out on this point. 18. On a proper analysis of Sections 82 to 85 of Code of Criminal Procedure, it can only be found that when a property is attached under Section 83 of Code of Criminal Procedure, the property shall vest with the Government from the date of attachment, subject to the right of any person other than the absconding accused as provided under Section 84, either to file a petition within a period of six Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 8 months from the date of attachment or a suit on the rejection of the claim or objection and also subject to the right of the absconding accused to get the property released within the period specified in the proclamation by his appearance or within a period of two years from the date of attachment on his surrender and establishing that he did not abscond or conceal himself and did not receive any notice of proclamation so as to enable him to appear before the court within the period specified in the proclamation. If the said period is over, an absconding accused is not entitled to file an application to get the property released under sub- section (3) of Section 85 of Code of Criminal Procedure. The question whether petitioner is entitled to approach the civil court is not to be settled in this revision. It is also to be noted that in the application filed under sub-section (3) of Section 85 of Code of Criminal Procedure, petitioner has not contended that he was not absconding and that he did not receive notice of proclamation, which are mandatory to get the property released even within the period of two years from the date of attachment. But, as the petition itself is not maintainable, it can only be dismissed, as has been done by the courts below. Revision fails and it is dismissed. Dismissal of the petition will not affect the rights of the petitioner, if any, to approach the civil court. 13th August, 2010 (M.Sasidharan Nambiar, Judge) tkv Moideen vs The Sub Inspector Of Police on 13 August, 2010 Indian Kanoon - http://indiankanoon.org/doc/303581/ 9

trial13.pdf

Madras High Court R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02/08/2006 CORAM THE HON'BLE MR.A.P.Shah, CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE D.MURUGESAN W.A. No.443 of 2006 to W.A. No.445 of 2006 and W.A. No.485 of 2006 to W.A. No.487 of 2006 And WAMP. No.1002 of 2006 and WAMP. NO.1003 of 2006 R. Shanmugam ..Appellant in WA 443 of 2006 Ammasi Kutty .. Appellant in WA 444 of 2006 1. M. Duraisamy 2. M. Mani .. Appellants in WA 445 of 2006 1. M. Manimekalai 2. S. Maruthachalam .. Appellants in WA 485 of 2006 1. Perichiappa Gounder 2. Kumarasamy 3. Maruchamy Gounder 4. A. Natarajan 5. Ramasamy Gounder 6. Marathal 7. Ganesh R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 1 8. Radhamani .. Appellants in WA 486 of 2006 1. Sellappa Gounder 2. G. Karunanidhi .. Appellants in WA 487 of 2006 -Vs- 1. The State of Tamil Nadu rep. by its Secretary Housing and Urban Development Fort St. George, Chennai 600 009 2. The Tamil Nadu Housing Board represented by its Managing Director No.331, Anna Salai, Nandanam Chennai-35. 3. The Special Tahsildar Housing Scheme Unit-II Coimbatore-18. ..Respondents in all W.As. Memorandum of Grounds of Writ Appeals under Clause 15 of the Letters Patent, against the order of the learned Judge dated 23.12.2005 passed in W.P.No.37583 of 2004,20237 of 2005,24968 of 2005,37578 of 2004,37580 of 2004 and 20176 of 2005 respectively. !For Appellants : Mr.K.Chandru in all Appeals Senior counsel for Mr.R.N.Amarnath ^For 2nd Respondents : Mr.R. Vidhuthalai in all appeals Advocate General For Mr.D.Veerasekaran For respondents : Mr.J.Rajakalifullah 1 and 3 in all appeals Govt. Pleader :JUDGMENT D.MURUGESAN, J. R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 2 These Writ Appeals raise the following points for our consideration. 1. Whether the Government have right to repossess the land acquired and transferred to the Tamil Nadu Housing Board that remains unutilized by the Board for a long number of years in terms of Section 16-B of the Land Acquisition Act 1894? 2. Whether the erstwhile land owners have vested right to seek for re-conveyance of unutilised land under Section 48-B on expressing their willingness to repay the amount that was paid to them under the Act for acquisition of land, inclusive of the amount referred to in Sub-section (1-A) and (2) of Section 23, if any, paid under this Act, and the Government is obligated to accept the request as such? 2. The following are the few facts that led to the controversy before us. The Tamil Nadu Housing Board (hereinafter referred shortly as " TNHB") forwarded a proposal to the Government for acquiring an extent of 1997.02 acres of patta land for the Kalapatti Neighbourhood Scheme, Coimbatore. Notifications under Section 4(1) of the Land Acquisition Act (hereinafter referred to as "the Central Act), were issued on various dates during the year 1991 in respect of 821.33 acres of land in different survey numbers. An extent of 1175.69 acres of land was not notified even as on today. After enquiry under section 5-A, Section 6 declarations were made and awards were also passed in respect of 662.96 acres of land. An extent of 105.61 acres of land was taken over by the Government and handed over to "Board" and an extent of 21.47 acres of land alone was utilized for Housing Scheme. As large extent of lands were unutilized by the Housing Board, the owners of the land approached the Government under Section 48-B of the Land Acquisition Act(hereinafter referred to as "The State Amendment Act") seeking for re-conveyance of the unutilized lands. Their common claim was that in the event, the lands acquired for construction of houses by the Board remain unutilized for quite long number of years, the Government shall have the power to take back the lands from the Board and re-convey the unutilised lands to the land owners. By the orders impugned in the Writ Petitions, their claim was rejected on the ground that awards were passed, compensation amounts were paid and the lands were still required for Housing Scheme. On a challenge to the orders of the Government more or less on the same ground, the learned Judge while dismissing the Writ Petitions, has held that there cannot be two vesting of the same land, one in the Government and another in Housing Board. The learned Judge has further held that in view of the specific provisions of Section 17-A, the claim for forfeiture of the land by the Government under Section 16-B of the Act is unsustainable. 3. We have heard the respective learned senior counsel on either side. Before embarking upon the issue, it is necessary to trace the history of TNHB Act and the object for which the Housing Board was constituted. For improvement of the City of Madras, the Board of Trustees was constituted under the Madras City Improvement Trust Act, 1950 and the Board of Trustees was in-charge of Housing, Land Development and general improvement of the City. Every project proposed by the Board must get sanction of the Government before i t is executed. Basically, the powers of the Board are limited and only to formulate the project for land Development, Housing and General improvement within the City and there was no independent power entrusted with the Board for R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 3 execution of other Housing Projects of the Government not framed under the said Act. For the purpose of implementing the Scheme by the Board of Trustees, the Government in exercise of power of Eminent Domain, acquired the land under the provisions of The Central Act. Section 16 of the Central Act empowers the Collector to take possession of the land in respect of which award is passed under Section 1 1 of the Act. Once possession is taken, the land shall vest in the Government free from all encumbrances. Under Section 17 of the Central Act, in case of urgency and if the appropriate Government so directs, the collector, though no award is made, may on the expiration of 1 5 days from the publication of the notice mentioned under Section 9, take possession of the land needed for public purpose and such land shall thereupon vest absolutely in the Government free from all encumbrances. 4. In order to enable the Government to hand over possession of the lands so acquired to the Board, Section 17-A of the Madras City Improvement Act was introduced by the State Amendment Act to the Central Act which reads as follows: 17-A Transfer of land to Board:- In every case referred to in Section 16 or 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Board; and the land shall thereupon vest in the Board, subject to the liability of the Board to pay any further costs which may be incurred on account of its acquisition 5. By the said provision, lands handed over to the Board shall vest in the Board. By the enactment of TNHB Act and by virtue of the specific provisions of Section 162 of the Act, the Madras City Improvement Trust Act, 1950, was repealed and therefore, the provision of Section 17-A of the Madras City Improvement Trust Act also stood deleted after TNHB Act was enacted. 6. As both the Central and State Government felt that the minimum need of Housing Programme should not be restricted only for the Cities and must also be extended to other areas as well, constitution of a statutory authority having State wide jurisdiction for execution of Housing Project was seriously considered. On the above backdrop, the Tamil Nadu State Housing Board Act, 1961 (Act 17/1961)( hereinafter referred to "the TNHB Act), was enacted with the object basically to provide for execution of housing and improvement schemes and for establishment of State Housing Board. Section 12 to 15 of Chapter III relates to transfer of assets and liabilities of the City Improvement Trust to the Board. The Board is constituted under Section 4 of the Act. Chapter VII of the Act relates to Housing or Improvement Scheme. Section 35 of the Act relate to the power of the Board to undertake Housing or Improvement Scheme and incur expenditure. Under Subsection (1) of Section 35, the Board may undertake works for the training and execution of such housing or improvement schemes. Further, under Sub-Section (2) of Section 35, the Government may transfer to the Board the execution of any housing or improvement scheme not provided under the Act and on such transfer, the Board shall thereupon undertake the execution of such schemes, as if, it has been provided for by the Act. Under Sub-Section (3) of Section 35, the Board may on such terms and conditions as may be agreed upon, take over for execution of any housing or improvement scheme undertaken by a local authority and the Board shall execute such scheme as if it has been provided for by the Act. R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 4 7. In addition to the above, under Section 36, when the Government considers it expedient or necessary for the purpose of clearance or improvement of any slum area, transfer any land in such area belonging to or vested in them or acquired under the provisions of the Madras Slum Improvement Acquisition of Land Act, 1954 and they may do so on such terms and conditions as they may think f it to impose and direct the Board to undertake the clearance or improvement of that area and to frame and execute such housing or improvement scheme, as if, it has been provided for by the Act. A housing or improvement scheme may be framed by the Board on its own motion or at the instance of the Government or a local authority under Section 37 of the Act. A housing or improvement Scheme framed by the Board under Section 37 of the Act may provide the following: a)the acquisition by purchase, exchange, or otherwise of any property necessary for or affected by the execution of the scheme; b)the laying or relaying out of any land comprised in the scheme; c)the closure or demolition of dwellings or portions of dwellings unfit for human habitation; d)the sale, lease or exchange of any property comprised in the scheme; e)the construction and alteration of road, streets back lanes, bridges, culverts and causeways; f)the draining, water supply and lighting of the streets included in the scheme; g)the provision of open parks, playing fields and open spaces for the benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks, playing field, open spaces and approaches; h)the provision of schools, parks, swimming pools, restaurants, shops markets, fuel depots, laundries hair dressing saloons and other amenities in the scheme and i)any other matter for, which, in the opinion of the Government, it is expedient to make provision with a view to provide house accommodation and to the improvement of any area comprised in the scheme, or of any adjoining area or the general efficiency of the scheme. 8. The power of the Board for framing a Housing Accommodation Scheme is contemplated under Section 41 of the Act. Under Section 44 of the Act, whenever the Board is of the opinion that it is expedient to control and provide for the future expansion or development of a city, town or village, it may frame an expansion scheme. The expansion scheme so framed may be in respect of an area which has wholly within or wholly outside the limits of the city, town or village. Under Section 47 of the Act, whenever the Board is of the opinion that it is expedient to provide building sites in any area, the Board may frame a land development scheme. Such scheme shall specify the proposed lay R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 5 out of the area to be developed and the purposes for which the particular portions thereof are to be utilized. The Board may provide for roads, streets, open spaces drainage, water supply and street lighting and other amenities for the scheme area. 9. In addition to the above, in terms of Section 66, the Board has further duties, such as, to plan and coordinate all housing activities in the State and to ensure expeditious and efficient implementation of housing or improvement schemes in the State and to provide technical advice and scrutinize all projects under housing and improvement scheme sponsored by Central or State Government. 10. A conjoint reading of the above provisions and the scheme of " the TNHB Act" shows that the primary duty of the Board is to frame a housing or improvement scheme in an area either within the City or town or village and execute the Scheme. Framing of a housing or improvement scheme and its execution is not only restricted to the scheme framed by the Board but also extended to the execution of work under a scheme either by the State or the local authority. The Board has no power to directly acquire the land for execution of the schemes, as it is the sovereign power of the State Government or Central Government as the case may be, in their realm of Eminent Domain, to acquire the land under the provisions of the Central Act. When once a scheme is framed by the Board, a proposal is forwarded to the State Government as to the requirement of the lands in a specified extent and on acceptance of the proposal by the Government, the lands are acquired by the State and are handed over to the Board. Inasmuch as the Madras City Improvement Trust Act, 1950 was repealed under Section 1 62 of the Tamil Nadu Housing Board Act, a provision was made to bring the Housing and Improvement Scheme as one of the public purposes and for applicability of the provisions of the Land Acquisition Act, a provision is made under Section 70 of the TNHB Act which reads as under: Any land or any interest therein required by the Board for any of the purposes of this Act may be Acquired under the provisions of the Land Acquisition Act,1894(Central Act of 1894) 11. Much reliance was placed on the provisions of Section 72 of the Act to sustain the plea that the land handed over to TNHB shall vest with the Board and it has absolute power to dispose of the land. The said Section reads as under: Power to dispose of land: (1)The Board may retain or may lease, sell exchange or otherwise dispose of any land vested in or acquired by it under this Act, (2)whenever the Board decides to lease or sell any land acquired by it under this Act from any person, it a)shall give notice advertisement in one of the leading local newspaper in the State and b)shall offer to the said person, or his heirs executors or administrators, a prior right to take on lease or to purchase such land for an amount or at a rate to be fixed by the Board, if the Board considers that such an offer can be made without reference detriment to the carrying out of the purposes of this Act. R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 6 c)If any case two or more persons claim to have the prior right referred to in clause (b) of Sub-section(2) preference shall be given to the person who agrees to pay the highest amount or rate for the land, not being less than the amount or rate fixed by the Board under that clause. 12. An incidental question therefore arises as to whether the land handed over to TNHB shall absolutely vest in TNHB, and on such vesting, the Government would be disentitled from taking back the possession of the unutilised land from the Board. The Central Act was enacted with the object to empower the Government to acquire the land only for public purpose and for determining the amount of compensation to be made for such acquisition. Planning for development, improvement and housing by the Board is also a public purpose. At the request of the Board, the State Government acquires the land by issuance of 4(1) Notification and after the award proceedings are over under Section 11 and possession is taken by the Collector, the land shall absolutely vest in the Government free from all encumbrances under Section 16 and only after such vesting, the lands are handed over to the Board as contemplated under Section 70 of the "Housing Board Act". 13. Before we dwell upon the purport and meaning of the word vest employed in Section 16 of the Central Act, it would be relevant to refer the use of the word vest in certain other enactments. Section 61 of the Tamil Nadu District Municipalities Act contemplates vesting of public streets and appurtenances in the Municipal Council. In terms of that Section, all public streets in municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts shall vest in Council. Section 203 of the Madras City Municipal Corporation Act contemplates a similar provision of vesting public streets and appurtenances in Corporation. In fact other City Municipal Corporation Acts viz., Tiruchi, Madurai, Coimbatore and Salem have similar provisions for vesting public streets and appurtenances in their respective Corporations. Section 126 of the Tamil Nadu Panchayats Act,1994 contemplates a similar provision of vesting of public roads in Panchayat Union Councils. 14. The word vest has no fixed connotation, meaning in all cases that the property is owned by the persons or the authority in whom it vests. It may vest in title, or in possession, or it may vest in a limited sense, as indicated in the context in which it is used in a particular statute. It has variable import depending upon the use in a given statute and the word vest used in different statutes, should be construed in the context of the provision of particular statute. Insofar as the word vest used in the law relating to local bodies like Corporation, Municipalities, Panchayats, it should be construed to mean conferring the power on the Corporation or the council as the case may be, only for the purpose of executing any improvement scheme which it has undertaken for maintenance and in order to maintain such public streets and appurtenances and not with a view to clothing it with complete title. In fact, when the provisions of the City Municipal Corporation Acts, District Municipalities Act and Town Panchayat Act speak of the word vesting of the streets, appurtenances in Corporation or Municipality as the case may be, it does not necessarily mean that ownership of the land has passed on to any of them. Section 56 of the Provincial Insolvency Act ( 5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and to further provide that such property shall thereupon vest in such receiver. The word vest employed therein is only for the purpose of the R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 7 receiver to administer the estate of insolvent for payment of the debts after realizing, and the property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. Referring to the provisions of Section 134 of the Lunacy Act,1890 in the case of In re Brown, it has been laid down by Lindley, L.J., that the word vested in that section included the right to obtain and deal with, without being actual owner of, the lunatics personal estate. 15. With the above understanding of the word "vesting", let us now consider the word vest used in Section 16 of the Tamil Nadu Amendment Act. Power to take possession: When the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances" The word vest used in Section 16 must include vesting of land in Government, not only in regard to title but also possession. It is well accepted principle of interpretation that if the plain language of the provision is clear and unambiguous, it would be only proper for the Courts to interpret and give plain grammatical meaning to such provision. In our opinion, the word vest used in Section 16 means and includes not only conferring mere right to possess the land acquired by the Government but also confer title on it. This is more so in view of the specific provisions of Section 16 of the Central Act, which provides that once possession of the land is taken by the Collector, the same shall absolutely vest in the Government free from all encumbrances. 16. Coming to the word vest employed in Section 72 of Housing Board Act, again the said word must be construed in the context it is used. The object of the Act is only to enable the Board to frame a Housing or Improvement Scheme and execute such scheme. In the above context, the word vesting may relate to title or possession or some limited purpose of disposing of the same as contemplated under Section 72. As the Board has also the power to sell or dispose of the plots/ flats as the case may be, the word "vesting" employed in Section 72 shall be construed to mean and include only the purpose of discharging its functions under the scheme. Such power of vesting cannot be equated to the power of vesting of the land in Government under Section 16 of the Central Act, where the lands acquired shall vest absolutely in Government free from all encumbrances. 17. This leads us to the further question as to the exercise of the power under Section 16-B by the Government to forfeit the land vis-a-vis the power of the TNHB to exercise the power to sell, mortgage etc., under Section 72 of the TNHB Act. In this context, it would be relevant to refer to the circumstances under which the provision of Section 16-B was introduced and the object behind it. Attention of the Government was drawn to the fact that the lands acquired by Government on behalf of several requisitioning bodies and handed over to them are transferred to others without prior permission of the Government. With a view to avoid the requisitioning bodies from transferring the acquired lands or any part thereof by sales, mortgage, gift etc., without prior permission of the Government, it became necessary for the Government to make a provision in the Central Act. The attention of the Government was also drawn to the fact that in certain cases the requisitioning bodies do not use the land acquired for them and the land is not put to use for the purpose for which R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 8 it was originally acquired and the lands are kept idle for years together without utilising the same. In order to prohibit such events, the Government decided to insert a new provision viz., Section 16-B in the Central Act so as to provide that such land may be forfeited as penalty and on such forfeiture the land shall vest in the Government in Revenue Department. Section 16-B of the Tamil Nadu Amendment Act, 1996 ( Act XVI of 1 997) reads as under: 16-B Land to be forfeited in certain cases: Where the Government are satisfied that the land Acquired under this Act for any public purpose as referred to in sub-section (1) of Section 4 is not used for the purpose for which it was acquired, they may, by an order, forfeit the land as penalty and the land shall vest in the Government in Revenue Department free from all encumbrances. 18. Insofar as the lands acquired for public purpose for being utilised by the State Government, there is no difficulty in holding that in the event, such lands are not utilized for the purpose for which it was acquired, the Government may utilize the same for other public purpose. In the event the Government decides not to utilize the land for any other public purpose, it may, in exercise of powers under Section 48-B, re-convey the land to the erstwhile owners or may sell the land in public auction. Can it be said that the same principle would apply to TNHB as well for disposal of unutilised land by itself in exercise of power under Section 72 of the TNHB Act. In our opinion, TNHB has no such power. 19. Whether Section 16-B could be invoked for forfeiting the land as penalty, when the land was acquired and transferred to the Board for execution of the housing scheme or improvement scheme by the Board and such land is not utilized by the Board, more particularly, in view of Section 72 of the TNHB Act? As per Section 70, the land required by the Board for implementation of the scheme shall be acquired under the Central Act. Once the lands are acquired and transferred to the Housing Board, such lands shall vest in Housing Board in order to develop, to form layout, to construct houses or to make plots and to dispose of such plots or houses under Section 72 under the Scheme. A plain reading of Section 72 shows that the Housing Board is empowered to retain or lease, sell exchange or otherwise to dispose of the land vested in or acquired by it under the Act. In the event the lands are unutilized and are kept vacant, such lands cannot be dealt with by Housing Board in exercise of its power under Section 72 as such disposal will be outside the scope of the scheme. The power of the Board to dispose of the land under section 72 must be read in the context of the power of the Board to frame a housing and improvement scheme and such disposal must be as per the scheme and not otherwise. 20. It must be kept in mind that the Housing Board was constituted only for framing and implementing Housing and Improvement Schemes. Incidentally, it is also conferred with the power to dispose such land or houses to eligible buyers at the affordable market price. The legislature never intended to confer a power on the Housing Board to frame schemes and to make profit out of such schemes. R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 9 21. Section 17-A of the Tamil Nadu Amendment Act which was later repealed, contemplates payment of cost of acquisition by the Board constituted under City Improvement Trust Act. However, there is no such provision for payment of cost of acquisition by Housing Board to the Government as the entire cost of acquisition is borne by the Government. The provisions of Section 16-B must also be considered in this context. The lands are acquired under the Central Act only on the proposal of Housing Board. On acquisition, the land vest in Government under Section 16 of the Act and thereafter it is transferred to Housing Board only for the limited purpose of implementation of the Scheme. In the event, the State Government is satisfied that the land acquired and transferred to the Housing Board is not utilized for housing or improvement scheme for the purpose for which it was acquired, in exercise of the provisions of Section 16-B, it shall forfeit the land as penalty and thereafter the land shall vest with the Government in Revenue Department free from all encumbrances. 22. Section 48-B was introduced by the Land Acquisition(Tamil Nadu Amendment Act, 1996-Act 16/1997), keeping in mind that there is no provision in the Central Act for re-conveyance of the land to the original owner after taking possession of the land if the land is not required by the Government. Section 48-B of the Tamil Nadu Amendment Act reads as follows: Transfer of land to original owner in certain cases: Where the Government are satisfied that the land vest In the Government under this Act is not required for the purpose for which it was acquired, or for any other public, the Government may transfer such land to the original owner who is willing to repay the amount paid to him under this Act for the acquisition of such land inclusive of the amount referred to in sub-section (1-A) and (2) of Section 23, if any, paid under this Act 23. The inserted provision contemplates that in case the Government are satisfied that the land vest in the Government is not required for the purpose for which it was acquired or for any other public, they may transfer such land to the original owner who is willing to repay the amount paid to him for the acquisition of such land inclusive of the amount referred to in sub-section(1-A) and (2) of Section 23, if any, paid under the Act. When once the land vest in Government under Section 16-B, it is obligated to consider the request of the original owner who is willing to repay the amount for transfer of the land to such original owner. 24. The next question that arises for our consideration is as to whether the original owner has any vested right? 25. Right to property is not a fundamental right after the insertion of Article 300-A by the Constitution (Forty Fourth Amendment) Act, 1978, but such right is still a constitutional right. In terms of Article 300-A,  No person shall be deprived of his property save by authority of law. The provisions of the Principal Act provide such authority to the State and Central Government, as the case may be, to acquire the land for public purpose. As the acquisition of land deprives the constitutional rights of the land owners, stringent provisions are made for acquisition and payment of reasonable compensation. The right to acquire land by the Government is sovereign power of R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 10 eminent domain as held by the Supreme Court in JILUBHAI NANBHAI KHACHAR VS STATE OF GUJARAT ( 1995 Supp.(1) SCC 596) 26.. In CHANDRAGAUDA RAMGONDA PATIL VS STATE OF MAHARASHTRA ( 1996(6) SCC 405) the Supreme Court has observed as follows:  We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the validity of the notification in either of the Writ Petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any other public purpose, though use of it was intended for the original public purpose. It is not intended that any land which remained un- utilized, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on the date of the notification. Under these circumstances, the High Court was well justified in refusing to grant relief in both the Writ Petitions 27. In S.P.SUBRAMANIA CHETTY VS K.S.R.T.C ( A.I.R.1997 SC 2076), the Supreme Court observed that the Court cannot compel the Government to withdraw the acquisition proceedings or to restore the possession to the owners of the land. 28. In C. PADMA VS DEPUTY SECRETARY TO THE GOVERNMENT OF TAMIL NADU ( 1997 (2) SCC 627), the Supreme Court observed that when the acquired land having vested in the State and the compensation having been paid to the claimant, the claimant was not entitled to restitution of possession on the ground that either original public purpose had ceased to be in operation or the land could not be used for other purpose. 29. In NORTHERN INDIAN GLASS INDUSTRIES VS JASWANT SINGH ( 2003(1) SCC 335), the Supreme Court has held as follows: If the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any right on the respondents to ask for restitution of the land 30. In GOVERNMENT OF A.P. AND ANOTHER VS SYED AKBAR ( 2005(1) SCC 558) the Supreme Court has held as follows: When the land is acquired under the Land Acquisition Act which is vested in the State Government free from all encumbrances, the Question of re-conveying the land as claimed by the respondent could not be accepted in view of the clear position of law stated in the decisions of this Court aforementioned" R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 11 31. In fact, the Supreme has observed that the Government is also entitled to dispose of the unutilized land, of course, by public auction and necessarily need not be re-conveyed to the erstwhile owner in the judgment reported in STATE OF KERALA VS.M. BHASKARAN PILLAI ( 1997(5) SCC 432) The relevant portion reads as follows:  In view of the admitted position that the land in question was acquired under the Land Acquisition Act, 1894 by operation of Section 16 of the Land Acquisition Act, it stood vested in the State free from all encumbrances. The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public action can be better utilized for the public purpose envisaged in the directive principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value  32. As the very object of the Amendment Act introducing Section 48B indicates that for insertion of the said provision enabling the State Government to re-convey the unutilised lands to the erstwhile owners subject to the conditions enumerated in that Section. This provision was inserted keeping in mind that there is no provision in the Central Act enabling the Government to re-convey the unutilised land. Of course, the Supreme Court in all the above judgments had considered the power of the Government to withdraw the land acquisition proceedings under Section 48 of the Central Act. That Section contemplates that the Government shall be at liberty to withdraw the acquisition proceedings of any land of which possession has not been taken. While considering the scope of Section 48, the Supreme Court has held that the Government is empowered to withdraw the acquisition but even then, in the absence of any vested right on the erstwhile owners, the Government cannot be compelled to withdraw the acquisition proceedings and re-convey the land. Equally, the Government also cannot unilaterally withdraw the acquisition without the consent of the erstwhile owners. 33. As the provision of Section 48B is unique and is contemplated only by Tamil Nadu Amendment Act, the purport of that Section must be considered with reference to the object and reasons. By the above provision, the erstwhile owners are entitled to make request to the Government for re-conveyance of the land, of course, subject to their willingness to repay the amount paid to them under the Act for acquisition of land inclusive of the amount referred to in Sub-section (1-A) and (2) of Section 23, if any, paid under this Act. By the provision of Section 48-B an element of right to R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 12 repossess the land by way of re-conveyance is conferred on the owners, of course, subject to the compliance of Section 48-B. Issue of re-conveyance under Section 48-B, came up for consideration before a Division Bench of this Court in the judgment reported in SOUTHERN RAILWAYS ETC., VS S. PALANIAPPAN AND OTHERS ( 2005(2) LW 325). In the said judgment, the Division Bench while considering the issue as to the willingness of the land owners and the right of the Government to accept the willingness, has held in para 33,34 and 35 as follows: 33. Mr. R. Krishnamoorthy, learned senior counsel for the respondents-land owners placed reliance on the decision of a learned single Judge in M. Manimegalai vs State of Tamil Nadu,2004 Writ L.R.789 (vide paragraph-10) wherein it was observed: "Section 48-B has been introduced with a view to protect the interest of the persons from whom the land has been acquired but not utilised. Such provision is a benevolent provision. Even though it is not specifically indicated in Section 48-B regarding the right of such a person to file application, it is obvious that such a person has to indicate his willingness to get the land back subject to repayment of the compensation" 34. We respectfully do not agree with the learned single Judge that Section 48-B has been introduced only to protect the interest of the persons from whom the the land has been acquired. In our opinion, Section 48-B can also protect the interest of the State Government which wants to re-convey the land which it had acquired, but in such a case the State Government must get the consent of the erstwhile land owner before it can re-convey the land to him under Section 48-B. The State Government cannot act unilaterally in this connection as already held above. 35. For the reasons given above, we are of the opinion that the impugned order dated 3.12.2003 does not fall within the ambit of Section 48-B as it is a unilateral act and hence, it has to be declared as invalid, because by a mere executive order, unsupported by statute, land which stands vested in the State Government under Section 16 of the Land Acquisition Act cannot be unilaterally re-conveyed by the State Government to the erstwhile land owners. 34. It is well settled principle of law that ordinarily the Court should give a plain and literal meaning while interpreting the statute. In SWEDISH MATCH AB VS SECURITIES AND EXCHANGE BOARD, INDIA ( AIR 2004 SC 429), the Supreme Court has held that where the words of a statute are absolutely clear and unambiguous, recourse cannot be resorted to the principles of interpretation other than the literal rule. In PRAKASH NATH KHANNA VS CIT (2004(9) SCC 686, the Supreme Court has held that the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency especially when a literal reading of produces an intelligible result. 35. In order to apply the provisions of Section 48-B of the Tamil Nadu Amendment Act, 1996, firstly, the land must vest with the Government under the Act in Revenue Department, and secondly, in the opinion of the State Government, such land is not required for any other public purpose and thirdly, R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 13 the said land can be re-conveyed to the original owner who is willing to repay the amount that was paid to him under the Act for the acquisition of such land inclusive of the amount referred to in Sub-section (1-A) and (2) of Section 23, if any, paid under the Act. The power of the Government to transfer such land to the original owner is only discretionary. Where the lands are forfeited by the Government from the Housing Board, it can be utilised by the Government for any other public purpose. In the event, the Government is of the opinion that the lands are not required for any other public purpose, then it must consider re-conveyance of the land under Section 48-B. Only in the event, the Government is of the view that the lands cannot be re-conveyed, it may resort to dispose the land by public auction. However, the exercise of the power under Section 4 8-B cannot be mechanical and whenever the discretion to take a decision is conferred on the authority by a statute, concept of fairness inherent in the guarantee of equality under Article 14 of the Constitution of India must be ensured. Exercise of such discretion could be tested on fairness and reasonableness. This is more so when such authority is bound to determine the questions affecting the right to property of individual. The decision must be supported by reasons with materials and necessarily be an informed one. In this context, the exercise of such discretionary power as to whether the land should be re-conveyed to the original owner or should it be sold by public auction, should not be arbitrary and unreasonable and fairness must prevail in such decision. Though the land owners cannot have any vested or absolute right to seek for automatic re-conveyance of the land, they have an element of right for consideration of their claim for reconveyance in terms of Section 48-B. 36. . In view of the above discussions, we hold that the Government in exercise of the power under Section 16-B of the Act can forfeit the land from the Tamil Nadu Housing Board as penalty and on such forfeiture, the land shall vest in the Government in Revenue Department free from all encumbrances. Once such vesting takes place, the Government shall consider the request, if any, received from the land owners expressing their willingness for re-conveyance and may accept or reject. Such exercise of power is discretionary and the owners have no right to seek for automatic re-conveyance of land. The Tamil Nadu Housing Board has no power under Section 72 of the Act to dispose of unutilized land and such power shall only vest with the Government under Section 16-B of the Land Acquisition Act. 37. Coming to the facts in issue in all these Writ Appeals, though award was passed in respect of 662.96 acres of land, possession was taken only in respect of 105.61 acres of land and handed over to the Board, out of which, only an extent of 21.47 acres of land alone was utilised. The acquisition proceedings were completed in the year 1991 and the award was passed in the year 1994. Possession was taken and compensation was also paid to the owners. It is the specific case of the appellants that large number of buildings have come up in the land notified, and the implementation of the scheme is not really possible. By the impugned orders, the respondent-State Government has rejected the request of the erstwhile land owners for re-conveyance on the ground that possession of the land was taken and handed over to the Housing Board and the compensation was also paid to the erstwhile land owners and that the lands are still required for Housing Scheme. Except the above, we do not find any consideration of the individual grievance of the appellants. 38. For rejecting the request of the land owners,the Government has given two reasons viz.,(1) the land owners have been awarded compensation and possession of the land has been given to the R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 14 Housing Board and (2) the land is still required for Housing scheme. Insofar as the first reason, we are of the opinion that the same cannot be held good in view of the specific provisions of Section 48-B enabling the land owners to make the application for reconveyance. Mere fact that they have received compensation does not prevent them from making a request to the Government invoking Section 48-B of the Act for reconveyance of the unutilised lands. Insofar as the second reason, it must be kept in mind that though the proposal was made by the Housing Board to the Government for acquiring an extent of 1997.02 acres of patta land, ultimately, the Government could pass award only in respect of 662.96 acres and even out of the said extent of the land, only an extent of 105.61 acres was taken possession and handed over to the Housing Board. But the Board could utilise only an extent of 21.47 acres of land for Housing Scheme. In view of the above undisputed facts, we are of the considered view that the Government have not applied their mind to the above aspects while they came to the conclusion that the land is still required for Housing Scheme. 39. In our opinion, merely because possession is taken and the lands are handed over to the Housing Board, the power of the State Government to forfeit the land under section 16-B of the Act, is not curtailed. The said power is independent and exclusive. In the event, the lands are unutilised by the Board for quite long number of years, the State Government has the power to forfeit the lands by way of penalty. Of course, the fact that Section 17-A was repealed was not brought to the notice of the learned single Judge and consequently, the learned single Judge has held that there is vesting of land in Housing Board under Section 17-A. In view of Section 162 of TNHB Act, 1961 the City Improvement Trust Act, 1950 was repealed and consequently, Section 17-A was also repealed. In the circumstances, there cannot be any vesting of the land on the Housing Board under Section 17-A as well as the Government under Section 16 of the Central Act simultaneously. 40. On a challenge to the above impugned orders, the learned Single Judge has dismissed the Writ Petitions mainly on the ground that the land handed over to the Housing Board shall vest in the Housing Board under Section 17-A of the Act and there cannot be a further vesting in the State Government under Section 16-B. In our opinion, the said finding is unsustainable in view of the fact that Section 17-A was repealed by the provisions of Section 162 of the Tamil Nadu Housing Board Act which was enacted in the year 1964. As on today, Section 1 7-A is not in the Text Book and the only provision holding the field is Section 16-B, empowering the State Government for forfeiture of the unutilised lands from the Housing Board by way of penalty. 41. For the foregoing reasons, all the Writ Appeals are allowed and the impugned orders are set aside and the matters are remitted to the State Government for reconsideration of the applications made by the appellants for re-conveyance under Section 48-B of the Act on merits in accordance with law and in the light of the findings rendered by us in this judgment. Such exercise shall be completed within a period of three months from the date of receipt of copy of this judgment. No costs. Consequently, W.P.M.P.Nos.1002 and 1003 of 2006 are closed. vbs To 1.The Secretary State of Tamil Nadu Housing and Urban Development Fort St. George, Chennai 600 009 R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 15 2.The Managing Director Tamil Nadu Housing Board No.331, Anna Salai, Nandanam Chennai-35. 3. The Special Tahsildar Housing Scheme Unit-II Coimbatore-18.  R. Shanmugam vs The State Of Tamil Nadu on 2 August, 2006 Indian Kanoon - http://indiankanoon.org/doc/1751544/ 16

trial12.pdf

Andhra High Court Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 HON'BLE SRI JUSTICE K.C.BHANU HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO CRIMINAL APPEAL Nos.1012 of 2008 and batch dated:14-03-2013 Muddana Goud and others....APPELLANTS State of AP, rep by Public Prosecutor, High Court, Hyderabad....RESPONDENT <GIST: >HEAD NOTE: !Counsel for Appellants in Crl.A.No.1012 of 2008 and for respondents in Crl.A.No.475 of 2010:Smt. D.Sangeetha Reddy ^Counsel for State: Addl. Public Prosecutor ?Cases referred: 1 2007 (2) ALT Crl 1 (D.B.) (A.P.) COMMON JUDGMENT: (Per Hon'ble Sri Justice K.C.Bhanu) 1. Since both these appeals arise out of the judgment dt.09-07-2008 rendered in S.C.No.346 of 2007 on the file of II Additional Sessions Judge, Kurnool at Adoni, they are being disposed of by this common judgment. 2. Crl.A.No.1012 of 2008 is preferred challenging the conviction of the appellants - A-1 to A-3 of the offence punishable under Section 302 IPC and sentence of life imprisonment and to pay a fine of Rs.2,000/- each, in default, to suffer further imprisonment for a period of six months each; and conviction of A-1 to A-7 of the offence punishable under Section 148 IPC and sentence of rigorous imprisonment for a period of six months each; and conviction of A-4 to A-7 of the offence punishable under Section 302 read with Section 149 IPC and sentence of imprisonment for life and to pay a fine of Rs.2,000/- each and in default to undergo further imprisonment for six months each, and conviction of A-4 to A-6 of the offence punishable under Section 506 IPC and sentence of rigorous imprisonment for a period of six months rendered in the aforesaid judgment. Whereas, Crl.A.No.475 of 2010 is preferred by the State against the acquittal of the appellants - A-1 to A-10 of the offence punishable under Section 307 IPC and the acquittal of appellants - A-8 to A-10 of the offences punishable under Sections 148, 307, 506 and 302 read with 149 IPC. Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 1 3. The prosecution case in brief may be stated as follows: On 16-02-2006, at 04:00 p.m. the deceased - Sanjeevaiah along with P.Ws.1 to 3 was proceeding towards Yemmiganur on motorcycle. When they crossed Banavasi Farm, which is half kilometer away from Bodeband village, a jeep came from their behind and hit the motorcycle, as a result, the deceased and P.W.1 fell on the road and P.W.1 received injury on his left hand and left leg knee. Then, all the accused armed with sticks, got down from the jeep and dragged the deceased to the margin of the road and A-1 to A-3 hacked him on his neck, face and left ear. When P.Ws.1 to 3 tried to intervene, A-4 to A-6 threatened P.W.1, and A-7 to A-10 threatened P.Ws.2 and 3 that if they come forward, they would also be killed. Thereafter, all the accused fled away in the jeep. At about 05:00 p.m., when P.Ws.5 to 7 were at Dovabolla bus stop, they saw A-1 to A-3, A-5 and others coming in the jeep from Yemmiganur side by raising cries that they killed the deceased and A-7 was driving the jeep. Meanwhile, P.Ws.1 to 3 shifted the deceased in the auto of P.W.4 to the Government Hospital. P.W.12- Civil Assistant Surgeon, Community Health Centre, Yemmiganur, admitted the patient who was battling for life and started treatment at 05.45 p.m., but within ten minutes i.e. at 05.55 p.m., the deceased - Sanjeevaiah died. After his death, P.W.12 intimated the same to the police, Yemmiganur. On 16-02-2006, on receiving Ex.P-1 - report from P.W.1, P.W.14 - Sub Inspector of Police, Yemmiganur Rural Police Station registered as case in Cr. No.21 of 2006 and issued First Information Report (F.I.R.) which is marked as Ex.P-11 and referred P.W.1 to Government Hospital for treatment. On 17-02-2006, he got the scene of offence and the dead body photographed through P.W.13- photographer. P.W.15 - Inspector of Police investigated into the matter and held inquest over the dead body of the deceased in the presence of P.W.9 - the Panchayat Secretary at the relevant point of time of the incident and the same is marked as Ex.P-2. He prepared an observation report and seized case properties viz., M.O.1- motorcycle, M.O.7 - a pair of chappals and M.O.8 - spectacles and other material objects under Ex.P-3 - panchanama. Ex.P-13 is the rough sketch of the scene of offence. On 17-02-2006, on requisition, P.W.12 - Doctor, held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and hemorrhage. Ex.P-10 is the postmortem report. He examined P.W.1 and issued Ex.P-9 - Wound Certificate on the same day. After completion of investigation, P.W.16 filed the charge sheet. 4. The learned Sessions Judge framed the following charges against the accused: "FIRSTLY: That you A-1 to A-10 on 16-02-2006 at 5 p.m. near Park opposite to M.B.Petrol Bunk, at Yemmiganur village, were members of an unlawful assembly and did in prosecution of the common object of such assembly to wit, to attack and kill Boya Gundralla Sanjeevaiah and to attack Boya Gaddam Peddaiah, committed the offence of rioting and at that time were armed with deadly weapons, the weapons of offence likely to cause death, to wit, attacked and killed Boya Gundralla Sanjeevaiah and attempted to kill Boya Gaddam peddaiah and that you thereby committed an offence punishable U/Sec. 148 IPC and within my cognizance. SECONDLY: That you A-1 to A-10 on the same day, time and at a distance of half kilometer to Bodabanda village, after passing Banavasi Farm, did an act to wit, dashed the motorcycle on which the deceased Boya Gundralla Sanjeevaiah and Boya Gaddam Peddaiah were traveling, from behind with the jeep bearing No.AP-21V-5019, with such intention or knowledge and under such circumstances viz., by such dashing, that if by that act you had caused the death of Boya Gundralla Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 2 Sanjeevaiah and Boya Gaddam Peddaiah, you would have been guilty of murder and that you caused hurt to the said Boya Gundralla Sanjeevaiah and Boya Gaddam Peddaiah by the said act, and that you thereby committed an offence punishable U/Sec.307 IPC and within my cognizance. THIRDLY: That you A-4 to A-6 on the same day, time and place as mentioned in Charge No.2 supra, committed criminal intimidation by threatening Boya Gaddam Peddaiah with injury to his person, at the point of sickles, and that you thereby committed an offence punishable U/Sec.506 IPC and within my cognizance. FOURTHLY: That you A-4 to A-10, on the same day, time and place as mentioned in Charge No.2 supra, committed criminal intimidation by threatening Boya Bandakanti Sreenivasulu and Boya Gaddam Chinna Thayanna with injury to their person, at the point of sickles, and that you thereby committed an offence punishable U/Sec.506 IPC and within my cognizance. FIFTHLY: That you A-1 to A-3 on the same day, time and place as mentioned in Charge No.2 supra, did commit murder by intentionally or knowingly causing the death of Boya Gundralla Sanjeevaiah, by you A-1 hacking with hunting sickle on the left side of the head above the ear, you A-2 and A-3 hacking with hunting sickles on throat, face, chest and shoulders, and that you thereby committed an offence punishable U/Sec.302 IPC and within my cognizance. SIXTHLY: That you A-4 to A-10, on the same day, time and place as mentioned in charge No.2 supra, were members of an unlawful assembly and in prosecution of common object of you A-1 to A-10, when A-1 to A-3, committed the murder of Boya Gundralla Sanjeevaiah, an offence punishable with death or imprisonment for life, you are thereby U/Sec.149 IPC guilty of committing the said offence punishable U/Sec.302 IPC and within my cognizance." 5. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 6. To substantiate the charges, the prosecution examined P.Ws.1 to 16 and got marked Exs.P-1 to P-23 besides case properties M.Os.1 to 26. 7. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. On behalf of the accused, no oral evidence was adduced, but Exs.D-1 to D-9 were marked. Exs.X-1 to X-6 were marked by third parties. They denied the same and reported no oral evidence. 8. The trial Court after considering both oral and documentary evidence on record, found the appellants - A-1 to A-7 guilty of the charges leveled against them and convicted and sentenced them as stated supra and found the appellants - A-8 to A-10 not guilty of the charges leveled against them and acquitted them as indicated above. Being aggrieved by that judgment, A-1 to A-7 filed Crl.A.No.1012 of 2008 and the State filed Crl.A.No.475 of 2010. Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 3 9. Now, the point for determination is whether the prosecution has proved its case against the accused for the charges leveled against all the accused i.e. A- 1 to A-10 beyond all reasonable doubt and whether the judgment under challenge is correct 10. The learned counsel for the appellants in Crl.A.No.1012 of 2008 and for respondents in Crl.A.No.475 of 2010 contended that though the prosecution examined P.Ws.2 and 3 as eye-witnesses to the incident, the trial Court disbelieved their evidence to the extent of their witnessing the incident in causing injuries to the deceased by the accused, and that the trial Court solely relied upon the evidence of P.W.1 and came to the wrong conclusion, that P.W.1 is a partisan witness who belongs to one group of faction namely the group led by the deceased, and therefore his evidence has to be viewed with suspicion, that the evidence of P.W.1 is disbelieved by the trial Court with regard to the offence punishable under Section 506 IPC for criminal intimidation of P.W.1 and also threatening of P.W.2 by A-4 to A-10, his evidence cannot be relied upon for other charges, that similarly, the act of attempt to murder against P.W.1 was disbelieved by the trial Court; that, in these circumstances, it cannot be said that P.W.1 is a wholly reliable witness as some part of his evidence was disbelieved by the trial Court, and so, it requires corroboration; that admittedly, there are two factions in the village of Potekal and the medical evidence does not fit into the overt acts attributed to the accused and the ocular testimony is highly improbable as the evidence would go to show that the deceased was dragged to some extent on the road but there were no abrasions or contusions on the back of the body of the deceased; that the case against A-4 to A-7 is standing on the same footing as that of A-8 to A-10 who were acquitted of the charge under Section 302 read with 149 IPC; that the prosecution has not come to the Court with clean hands; and that the incident had not taken place at the time and date as mentioned and testified by the witnesses, but the incident took place about 2.00 or 2.30 p.m., and the said incident has not been witnessed by anybody, and due to political factions in the village, the accused who are the inimical terms with the deceased, were falsely implicated in the case taking advantage of the death of the deceased; that Ex.X-4 would clearly go to show that a correction was made on it with regard to the time when the deceased was brought to the Government Hospital, Yemmiganur; that in view of these circumstances, it is not safe to place an implicit reliance on the evidence of P.W.1 alone so as to convict A-1 to A-7; and therefore, she prays to acquit the accused. 11. On the other hand, the learned Additional Public Prosecutor appearing for the State contended that P.Ws.2 and 3 are also eye witnesses to the incident and the reasons given by the trial Court for rejecting their evidence are not justifiable and proper; and that the presence of P.Ws.2 and 3 has been clearly mentioned in the F.I.R. which was given two hours after the incident and there was no scope or possibility for P.W.1 to speak about the presence of these two witnesses; that the Doctor's evidence would clearly go show that the deceased was taken to Government Hospital, Yemmiganur by P.W.1 which suggests that he was present at the time of the incident; that unless P.W.1 was present, he could not be in a position to narrate as to how the incident took place and the discrepancies with regard to disbelieving the part of evidence of P.W.1 cannot be a ground to discredit the entire testimony; that the medical evidence would clearly go to show that there are injuries on the body of P.W.1 said to have been caused as narrated by P.Ws.1 to 3 and some of the witnesses saw the accused running away from the scene of offence, and therefore, the order of conviction needs no interference by this Court. Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 4 12. With regard to Crl.A.No.475 of 2010, she stated that A-8 to A-10 were also travelling along with the other accused and all the accused were armed with sickles and deadly weapons, and that mere presence by itself is an offence to bring them under the purview of Section 302 read with 149 IPC; that unless A-8 to A-10 had shared their common object with A-1 to A-7 with an intention to eliminate the deceased, they would not have travelled in the same jeep and that A-7 was the driver of the jeep and he should be having knowledge that the other accused are likely to cause the death of the deceased, and therefore, they are also liable for punishment and can be convicted as in the case of A-4 to A-7. Hence, she prays to allow the Crl.A.No.475 of 2010. 13. It is not in dispute that the place of the incident is half kilometer away from Bodeband village, Yemmiganur Mandal after crossing Banavasi Farm. The incident took place on 16-02-2006 at about 05:00 p.m. The police seized the blood-stained earth and control earth i.e. M.Os.9 and 10 respectively and also a pair of cheppals and spectacles from the scene of occurrence of offence. When those material objects have been sent to the Forensic Science Laboratory, it was found that they contained human blood. P.W.9 - the Panchayat Secretary at the relevant point of time of the incident was present at the time of preparing Ex.P-3 - panchanama. From these documents and the evidence of P.W.9 and P.W.16 - Investigating Officer, it is clear that the incident occurred at the place indicated above. Even the accused are not seriously disputing about the place of occurrence. 14. P.W.15 - Inspector of Police conducted inquest on the dead body of the deceased on 17-02-2006 at about 07:00 a.m. and recorded statements of P.Ws.1 to 3 and 8. Ex.P-2 is the inquest report. As seen from Ex.P-2, the injuries sustained by the deceased have been clearly mentioned. The inquest mediators opined that the deceased died as a result of incised injuries found on the dead body of the deceased. 15. P.W.12 - Doctor who conducted autopsy over the dead body of the deceased at about 10.15 a.m. and 10.30 a.m. on 17-02-2006, found the following injuries: "1. An incised injury of 6x3x2 cms seen vertically at left shoulder joint. 2. An incised in jury of 8x2 cms. bone deep seen at horizontally left temporal region. 3. An incised injury of 6x1 cms. bone deep obliquely situated above to the left eye. 4. An incised injury of 6x1 cms. bone deep situated vertically at left fore head. 5. An incised injury of 10x3x2 cms. situated at left part of the neck. 6. An incised injury of 6x2 cms. bone deep obliquely situated at left parietal bone. 7. An incised injury of 8x2 cms. skin deep horizontally situated at right chest. Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 5 8. Contusion of 6x6 cms. seen at medial aspect of the right knee joint. 9. Abrasions of 4x2 cms. epithelial deep seen at later to the right knee joint. 10. Abrasions of 6x2 cms. epithelial deep seen at posterior to the right elbow joint. 11. Abrasions of 3x1 cms. epithelial deep seen at front part of the right shoulder joint." The doctor opined that the cause of the death was due to shock and hemorrhage because of the hacking injuries found on the body. He also found that injuries 1 to 7 in Ex.P-10 would have been caused with a sharp-edged weapons like hunting sickles similar to M.Os.13 to 22, whereas injuries 8 to 11 have been caused by falling on the ground in a motorcycle accident. Even after lengthy cross- examination nothing has been elicited so as to doubt the testimony of P.W.12 and the recitals in Ex.P.10. So, the homicidal nature of the death of the deceased has been established. No suggestion was given to this witness that his opinion as to the cause of death of the deceased is not correct. Therefore homicidal nature of the death of the deceased is established beyond all reasonable doubt. 16. Now it is to be seen whether the accused are assailants of the deceased or not 17. P.Ws.1 to 3 were examined by the police to speak about the actual incident narrating the specific overt acts attributing with regard to each of the accused. P.Ws.5 to 7 were examined by the police to speak about the accused running away from the scene of offence. The trial Court disbelieved the evidence of P.Ws.2 to 7 and placed reliance on the evidence of P.W.1 alone. 18. The trial Court disbelieved the evidence of P.Ws.2 and 3 solely on the ground that they might have arrived to the scene of occurrence after the assault on the deceased. But there is no basis for arriving at such a conclusion that P.Ws.2 and 3 have come to the scene of occurrence while the accused were running away from the place of the incident. The other reason given by the trial Court is that P.W.2 stated in his evidence that while himself and P.W.3 tried to rescue the deceased, A-7 to A-10 threatened them saying that they would be killed when P.W.1 interfered, A-4 to A-6 threatened him which is totally contradictory to the evidence of P.W.3 who stated that while himself and P.W.2 tried to interfere, A-7 to A-10 threatened them and when P.W.1 intervened, A-4 to A-6 threatened him throwing sickles, whereas the version of P.W.1 was that he was the person threatened by A-4 to A-6 in the first instance and thereafter P.Ws.2 and 3 reached and at that juncture they were threatened. Therefore, P.Ws.2 and 3 ought not have seen the incident of threatening P.W.1 by A-4 to A- 6. Credibililty of testimony of a witness depends considerably on a judicial evaluation of totality of the evidence, not isolated scrutiny. In other words evidence should be considered on the basis of total effect of the entire statement of a witness. The incident took place in the month of February, 2006, whereas nearly 11/2 years thereafter the witnesses were deposing in the Court. Some minor contradictions or deviations are bound to occur even in a case of truthful witnesses when they were made to depose about the actual incident after lapse of a long time. So, on those minor discrepancies or contradictions, it cannot be presumed that P.Ws.2 and 3 came to the scene of offence after the Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 6 attack was made on the deceased. The main substratum of the prosecution case has to be looked into for the purpose of verifying whether P.Ws.2 and 3 were in fact present at the time when the actual attack was made. For that purpose, the earliest report given by P.W.1 and other facts and circumstances have to be looked into. 19. No doubt, First Information Report in a criminal case is a valuable piece of evidence which can be used to corroborate the evidence of the maker under Section 157 of the Indian Evidence Act, 1872 or for contradictory in the maker as provided under Section 145 of the Indian Evidence Act, 1872 or for impeaching the credit of witnesses under Section 155 of the Indian Evidence Act, 1872. The incident took place on 16-02-2006 at 05:00 p.m.; The First Information Report was lodged at 07:00 p.m. In the first instance, P.W.1 took the deceased in an Auto and reached the Government Hospital, Yemmiganur at about 05.50 p.m. After preparing a Ex.P-1 - report, he went to the police station at about 07:00 p.m. A perusal of Ex.P-1 would go to show that himself, the deceased, P.Ws.2 and 3 were proceeding from Yemmiganur to Kotekal village and the deceased - Sanjeevaiah and P.W.1 were sitting on one motorcycle whereas P.Ws.2 and 3 were coming on another moped; that after crossing Banavasi Farm, which is half kilometer away from Bodeband village, all the accused armed with sickles got down from the jeep and dragged the deceased to the margin of the road and then A-1 to A-3 hacked him on his neck, face and left ear; that some of the accused threatened P.Ws.1 to 3. It is also stated that P.Ws.2 and 3 were coming behind them and when they reached the place of incident they were also threatened. Once the recitals in First Information Report were found to be true, they can be used to corroborate with the evidence of P.W.1. The evidence of P.W.1 is more or less in support with the recitals as stated in Ex.P-1. But, in his evidence, he specifically stated that A-1 to A-3 hacked Sanjeevaiah on his neck and left ear whereas A-4 to A-6 threatened that he would be killed; and when P.Ws.2 and 3 came to the rescue of Sanjeevaiah, A-7 to A-10 threatened that they would be killed if they come forward. Therefore, all the three witnesses stood there without moving towards the place where the deceased was attacked. The evidence of P.Ws.1 to 3 is consistent with regard to A-1 to A-3 causing injuries to the deceased. There were no discrepancies in this regard in the evidence. 20. It is not in dispute that there were a serious disputes in the village among two groups for the last 30 years, and as on the date of the incident, the deceased Sanjeevaiah was the leader of the people belonging to Boya caste whereas A-1 was the leader of the people belonging to Lingayat caste, and the deceased and his group were in Congress Party while all the accused were in Telugu Desam Party. It is also not in dispute that the junior paternal uncle of A-1 was murdered in the year 1992. In that case, admittedly, P.W.1 and the deceased were shown as accused and they were convicted by the learned Sessions Judge, Kurnool. On appeal, their conviction and sentence were set aside by this Court. Therefore, in view of this long standing rivalry between the two groups, the evidence of P.Ws.1 to 3 has to be appreciated in a right perspective in arriving at a correct conclusion. No doubt, in the cross- examination of P.Ws.1 to 3, some discrepancies are elicited but that cannot be a ground to disbelieve this evidence when those discrepancies are trivial in nature. 21. It is the contention of the learned counsel for the appellants/accused that in view of the fact that a part of the testimony of P.W.1 has been disbelieved, the entire evidence has to be disbelieved on that ground. We are unable to accept the contention that the latin maxim, falsus in uno and falsus in Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 7 omnibus (false in one thing and false in every thing) has no application to the Indian Law. The Court has to apprise the evidence to see to what extent it is worthy of acceptance and merely because the Court considers it unsafe to rely on the testimony of a witness, it does not necessary follow as a matter of law that it should be discarded in all other respects. The Court can sift the evidence and separate the truth from the falsehood. Court can disengage the truth from the falsehood. If the evidence of witness is found to be acceptable, then his evidence can be acted upon. In evaluating the evidence of the eye-witnesses, two important considerations are that; (1) in the facts and circumstances of the case whether the presence of P.Ws.1 to 3 is probable and (2) whether there is anything inherently improbable in their evidence so as to discard the said evidence. 22. Within two hours after the incident, the First Information Report was given by P.W.1. All the material particulars with regard to the incident in question have been clearly stated and the same is completely in corroboration with the evidence of P.W.1. Further, if really P.W.1 was not present at the time of the incident, he would not have sustained injuries on his body. When the jeep dashed against the motorcycle, the deceased and P.W.1 fell down from the motorcycle and received those injuries. 23. P.W.12, Doctor, who examined P.W.1 at about 8 p.m., found abrasions of 2 x 1/2 x 1/8 cm at left arm and 3 x 1 x 1/8 cms on left knee joint. The infliction of those injuries can be possible by falling from a vehicle and those injuries might have been caused about 3 to 4 hours before his examination. Ex.P-9 is the Wound Certificate. The Doctor - P.W.12 has categorically stated that while he was present in Community Health Centre, Yemmiganur on 16-02-2006, at about 5 p.m., the deceased was brought to the hospital at about 5.45 p.m. by P.W.1 and in the colum of relevant register, it is alleged to have been injured due to attack by a group of known persons with a hit and sharp edged weapon. Therefore, if really, P.W.1 was not present, he could not have taken the deceased to the hospital within 45 minutes after the incident. The distance between the place of incident and the hospital at Yemmiganur is about 15 kilometers. So, the evidence of P.Ws.1 and 2 and also Ex.P-8, which is the Medico Legal Case Intimation to the police, would clearly go to show that P.W.1 was present at the time of occurrence. Therefore, presence of P.W.1 at the relevant point of time of the incident has been established beyond all reasonable doubt. The totality of the evidence of a witness has to be taken into consideration for fixing the probative value. The evidence of a witness will have to be assessed by its intrinsic worth. The probative value of a piece of evidence means the weight to be given to it. The evidence should be free from infirmity and doubts. Such is the case, he could be in a position to witness the incident as the incident took place in the evening when there would be sufficient light. 24. The deceased sustained as many as seven incised injuries. If really, P.W.1 wanted to implicate all the remaining accused also, he would have stated in the complaint as well as in the Court that A4 to A7 also caused injuries to the deceased. But he did not state any specific overt acts against any one of the other accused except A-1 to A-3. Thus, in our considered opinion, P.W.1 was telling facts which are with in his exclusive knowledge. If really he wanted to complicate the other accused, he would have stated specific overt acts with regard to causing injuries to the deceased by the other accused. He categorically stated that at about 04:00 p.m. the deceased and himself started on motorcycle driven by the deceased whereas P.Ws.2 and 3 were coming on moped belonging to P.W.2 and they Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 8 were proceeding towards Kotekal village from Yemmiganur. The presence of P.Ws.2 and 3 is spoken to by P.W.1 in his evidence. When there was clinching evidence on record with regard to the presence of P.Ws.2 and 3, the trial Court simply presumed that they might have come to the scene of occurrence after the incident. That finding appears to be incorrect. No doubt, they also belong to a group of the deceased-Sanjeevaiah, but at the same time, their evidence has to be scrutinized carefully and cautiously. On this aspect, the learned counsel for the appellants/accused placed reliance on the decision reported in Golla Peramasani Sivaiah and Others Vs. State of A.P. Rep. by Public Prosecutor, High Court of A.P.1, wherein it was held as follows: "27. The law is well settled that the evidence of partisan witnesses cannot be brushed aside on the ground that it is not corroborated by independent witnesses and that the conviction can be based on the uncorroborated testimony of partisan witnesses depending upon the circumstances of each case, provided that their evidence is reliable and trustworthy. It is also well settled that the evidence of partisan witnesses has to be scrutinized carefully with more than ordinary care and caution with reference to the probabilities, medical evidence and other circumstances of each case." 25. Even from the law laid down by this Court in the above mentioned case, it is necessary to scrutinize the evidence of partisan witnesses carefully who are close and belong to one faction in the village. The evidence of P.W.2 would go to show that the moment he reached the scene of occurrence, a jeep came and hit the motorcycle, as a result, the deceased and P.W.1 fell down and all the accused persons armed with sickles came out of the jeep and dragged Sanjeevaiah to the margin of the road. Among the accused, A-1 to A-3 hacked Sanjeevaiah on his neck, face and left ear. When P.Ws.2 and 3 tried to intervene, they were threatened by A-7 to A-10 with dire consequences. While P.W.1 tried to interfere to save the deceased, he was threatened by A-4 to A-6 showing the sickles. 26. Similarly, the evidence of P.W.3 is to the same effect as testified by P.W.2. Both the witnesses have stated that on 16-02-2006, they went to Yemmiganur on their own work and after the work, they returned to Kotekal, by which time, they saw the deceased going and some of them at a distance. Except giving suggestion that he was not going to Kotekal at any point of time of the incident, nothing has been elicited to discredit the testimony of P.Ws.2 and 3. No doubt, P.W.2 made an admission that after taking the deceased to the hospital, himself, P.Ws.1 and 3 were in the hospital till they were examined on the next day. Based on the admission, the learned counsel for the appellants/accused contended that giving a report by P.W.1 is highly doubtful and that since P.W.1 was present in the hospital itself, Ex.P-1 - report cannot be given by him. A small inadvertent admission of one of the witnesses cannot be a ground to discredit the testimony of P.W.1. When P.W.1 has categorically stated that after admitting the deceased in the hospital, he went to the police station and lodged Ex.P-1 at about 07:00 p.m. Similarly, P.W.14 - Sub Inspector of Police has categorically stated that on 16-02-2006, at about 07:00 p.m., P.W.1 came to the police station and lodged Ex.P-1 - report, and then he registered a case against the accused. Though it is suggested to him that after due deliberations and consultations with the local MLA and his son-in-law - Basi Reddy and also after consulting his superior officers, P.W.1 was planted as an eye witness, the same was denied. If P.W.1 was planted as a witness, the doctor who examined the deceased would not have stated that the deceased was brought by P.W.1. Therefore, the contention that P.W.1 was planted as an eye witness cannot be accepted because the documentary evidence would clearly indicate that he had taken the deceased to the hospital within 45 minutes after occurrence of the Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 9 incident and he is an injured witness. 27. In view of the fact that there are serious discrepancies with regard to some of the accused threatening either P.W.1 or P.W.2 or P.W.3, at best, the trial Court ought to have discarded the evidence of P.Ws.2 and 3 with regard to the other accused viz., A-4 to A-10. On that aground the entire evidence of P.Ws.2 and 3 cannot be disbelieved. From the above omissions elicited in the evidence of witnesses, it can be said that they are innocuous which are inconsequential. Such of those omissions amount to contradictions that militate against the meat or core of the prosecution case are alone material. An omission would not discredit the evidence of a witness. If it is a material omission with regard to actual incident, it merits consideration. So from the evidence of P.Ws.1 to 3, it is clear that it is A-1 to A-3 who caused severe injuries to the body of the deceased which resulted in his death. 28. Insofar as A-1 to A-10 are concerned, the offence leveled against them is one punishable under Section 302 read with Section 149 IPC. There cannot be any dispute that in order to convict the accused under vicarious liability, it must be shown that those persons shared the common object with other accused an intention to eliminate the deceased. In view of the fact that the object for which they were traveling in the jeep is locked up in the minds of the accused, it is difficult for the prosecution to establish that with what object the other accused were traveling in the jeep. If an offence has been committed by any member of unlawful assembly in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed, each member is equally guilty though he may not be directly responsible for the death of the deceased and in case where Section 149 IPC is applicable, it is not necessary for the prosecution to prove individual lover acts of each of the accused. Therefore, it is a matter of inference from the proved circumstances. The expression "knew to be likely to be committed" in Section 149 IPC founded upon facts known to the members of the assembly an offence of particular kind would be committed. Common object of an assembly has to be derived by reasoning or implication from various factors like weapons with which the members were armed, their movements, acts of violence, or the result thereof, conduct and behaviour, animosity or grouse if any. Some of the circumstances to draw an inference that the accused shared the common object with the other accused are: whether which of the accused proceeded to the scene of occurrence, whether they were armed with any weapons; whether they had any common object so as to cause the death of the deceased and whether they have participated in commission of the offence in the absence of any intervening circumstances where the common object can be culled out from such circumstances. 29. P.Ws.1 to 3 did not state to police that on 08-06-2005, A-2, A-4 to A-6, A-8 to A-10 came in the jeep along with A-3 and A-7 and they were assaulted in the village Kotekal. P.Ws.1 and 3 did not state to police that P.W.2 went to Yemmiganur on a moped separately after seeing the incident. P.Ws.2 and 3 did not state to police that A-4 to A-6 threatened P.W.1 when he tried to intervene when the assault was going on; that P.W1 was found with injuries on left hadn and left leg; that P.W.1 reported the matter to police. Exs.D-1 to D-6 are minor contradictions. P.Ws.4, 6 and 7 did not state to police that A-1 to A-3, A-5 and A-7 and some others were present in the jeep. Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 10 30. Except their presence at the scene of occurrence, there is no other evidence to show that they participated in commission of the offence in view of the fact that the incident occurred in an isolated place. If really A-4 to A-10 shared the common object with A-1 to A-3 so as to eliminate the deceased, definitely they would have caused injuries to the deceased and they might have assisted in some way to A-1 to A-3 to eliminate the deceased. They have not stated or uttered anything either at the time prior to or after the incident. They did not cause any injuries to P.Ws.1 to 3 except threatening them. They did not cause any injuries to the deceased. They even did not threaten the deceased. In the absence of any intervening circumstances, if really they had shared the common object, they would have caused some injuries to the deceased, but that was not done so. They might be traveling in the jeep of A-1 to A-3 without having any knowledge that A-1 to A-3 would attack the deceased in case the deceased happened to come in their direction or in the opposite direction. Therefore, the presence of A-4 to A-10 in the zeep of A-1 to A-3 was coincidence and the mere presence of A-4 to A-10 itself is not a ground to infer that they shared the common object with A-1 to A-3 to cause the death of the deceased. Therefore, the conviction of A-4 to A- 10 for the offences punishable under Sections 302 read with 149 IPC has to be set aside. 31. But the evidence on record would clearly go to show that A-1 to A-3 armed with deadly weapons caused severe injuries to the deceased and because of such injuries, the deceased died within half an hour after the incident. Therefore, the findings of the trial Court in convicting A-1 to A-3 of the offence punishable under Section 302 IPC are correct and the same need not be interfered with. 32. Insofar as Crl.A.No.475 of 2010 is concerned, since the case of A-8 to A-10 stands on the same footing as that of A-4 to A-7, their case needs no interference, and accordingly, A-8 to A-10 are acquitted of the offences punishable under Sections 148, 307, 506 and 302 read with Section 149 IPC and Section 307 IPC. 33. In the result, the conviction and sentence imposed against appellants 1 to 3/A-1 to A-3 in Crl.A.No.1012 of 2008, vide judgment dated 09.07.2008 in S.C. No.346 of 2007 on the file of II Additional Sessions Judge, Kurnool at Adoni for the offence punishable under Section 302 IPC, are confirmed. The appellants 4 to 7/A.4 to A.7 are found not guilty of the offence punishable under Section 302 read with 149 IPC; appellants 1 to 7/A.1 to A.7 are found not guilty of the offence punishable under Section 148 IPC; and appellants 4 to 6/A.4 to A.6 are found not guilty of the offence punishable under Section 506 IPC, and they are acquitted of the respective charges. The fine amount, if any paid by them, shall be refunded to them. Appellants 4 to 7/A.4 to A.7 shall be released forthwith if they are not required in any other case. Accordingly, Criminal Appeal No.1012 of 2008 is partly allowed. Criminal Appeal No.475 of 2010 preferred by the State is dismissed confirming the findings of the trial court in respect of A.8 to A.10. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J U S T I C E K . C . B H A N U __________________________________ JUSTICE M.S.RAMACHANDRA RAO 14- 03-2013 Muddana Goud And Others vs State Of Ap, Rep By Public ... on 14 March, 2013 Indian Kanoon - http://indiankanoon.org/doc/167616882/ 11

trial16.pdf

Delhi District Court State vs Abid @ Guddu on 26 September, 2014 Author: Ms. Veena Rani 1 IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN MAGISTRATE, DISTRICT SOUTH EAST, SAKET COURT, NEW DELHI. STATE VERSUS Abid @ Guddu FIR No:196/2011 U/s 25/54/59 Arms Act P. S. Kalkaji Date of filing of the charge sheet : 06−08−2011 Date of reserving order : Not reserved. Date of pronouncement : 26−09−2014 JUDGMENT (a) Serial Number of the case : 84/5 of 2011 (b) The date of the commission of : 09−06−2011 the offence (c) The name of the complainant : HC Sunil Gaur (d) The name of the accused : Abid @ Guddu S/o person, his parentage and Riyazuddin, R/o residential address B−1139, B−Block, Transit Camp, Govindpuri, New Delhi (e) The offence complained of : (i)Section 25/54/59 Arms and Final Orders. Act− Acquitted vide the present judgment. (ii) U/s 3/181 MV Act: Accused convicted for the this offence and sentenced to pay fine of Rs.100/−. (iii) U/s 103 DP Act. : FIR No. 196/2011, State Vs. Abid Guddu Accused pleaded guilty , convicted and sentenced to pay fine of Rs.100/− vide separate order sheet. (iv)U/s 174 IPC :Accused State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 1 pleaded guilty, convicted and sentenced for the period for which he has already undergone, vide separate order sheets. (f) The plea of the accused : Pleaded not guilty to the charges u/s 25/54/59 Arms Act. & U/s 3/181 MV Act. (g) The date of the order : 26−09−2014 PROSECUTION CASE: 1. In the present case, the charge sheet was filed on 06−08−2011 alleging therein that on 25−08− 2011, at about 7:30 pm, in front of Shamshan Ghat, Kalkaji, accused Abid @ Guddu was found in possession of one Katta with two live cartridges in contravention of notification issued by Delhi Administration for which he committed offence u/s 25/54/59 Arms Act and also found driving the motorcycle No:DL−7S−AX−2496 without licence and also committed the offence u/s 3/181 MV Act. Accused Abid @ Guddu was arrested and necessary documents were prepared at the spot. On completion of investigation, charge−sheet U/s 25 of the Arms Act u/s 3/181 MV Act and also Kalandara u/s 103 DP Act were filed against the accused. 2. Cognizance of the offence was taken by the Ld. Predecessor of FIR No. 196/2011, State Vs. Abid Guddu this court vide order dated 18−08−2012 against the accused and copies of charge sheet supplied to accused. 3. Charge was framed against the accused for an offence U/s 25 of Arms Act on 11−08−2011 to which accused had pleaded not guilty and claimed trial. 4. The prosecution in order to prove its case had examined as well as 7 witnesses namely PW1 HC Mukesh Kumar, PW2 HC Suresh Chand, PW3 Ct. Vipin Gyagi, PW4 HC Kailash Chand, PW5 Sh. V.R. Anand, AD, FSL, Rohini, PW6 Ct. Ravinder Giri and PW7 HC Sunil Gaur. 5. IO/PW7 Sunil Gaur in his chief examination deposed that on 09.06.11 he was posted at AATS, South East as a Head Constable. On that day at about 4:00 pm he alongwith Constable Ravinder and Constable Vipin Tyagi left their office for patrolling. At about 6:00 pm they were present at Nehru Place bus terminal, a secret informer met him and informed him that a person namely Abid @ Guddu who is a BC of PS Govindpuri will came at near Shamshan Ghat, Kalkaji to meet some person at around 7:00 pm on motorcycle bearing no. 2496 alongwith illegal arms with him. He requested few public persons to join the investigation but they all refused without disclosing their names and addresses. At about 6:15 pm they reached near Shamshan Ghat, Kalkaji and started waiting alongwith secret informer. At around 7:30 pm they saw a person coming from Nehru Place side on a motorcycle bearing no. DL7SAX 2496 and he stopped his motorcycle in front of Shamshan Ghat, Kalkaji. Secret informer pointed out towards that person as Abid @ Guddu and therefore secret informer left the FIR No. 196/2011, State Vs. Abid Guddu spot. Accused got down from his State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 2 motorcycle and started waiting. PW7 further deposed that they all managed to apprehend accused Abid. During enquiry he revealed his name as Abid @ Guddu. Formal search of accused was conducted and desi katta was recovered from the right side dub of his pant. Katta was found to be loaded with one live cartridge. A live cartridge was also recovered from the left side pocket of the pant of the accused. It is deposed by PW7 that he prepared sketch of the katta and cartridges vide Ex. PW 3/E bearing my signatures at point C and kept the katta and the cartridges in a white cloth and prepared a pulanda of the same and duly sealed it with the seal of SG vide seizure memo Ex. PW 3/A bearing his signatures at point C. FSL form was filled up. Seal after use was handed over to Constable Vipin. PW7 further deposed that they found a green polythene was hanging on the handle of motorcycle of the accused. Same was opened and was found containing five mobile phones. A driving license was also recovered from the pocket of the shirt of the accused in the name of Basim. The mobile phones, driving license and motorcycle alongwith key and helmet were seized as per seizure memo Ex. PW 3/B, Ex. PW 3/C and Ex. PW 3/D all bearing his signatures at point C. IO/PW7 prepared the rukka Ex. PW 7/A bearing his signatures at point B and give it to Constable Vipin and sent him to PS Kalkaji for registration of FIR. He/IO/PW7 also recorded disclosure statement vide Ex. PW 6/A bearing his signatures at point B. Accused was arrested and his personal search was conducted vide Ex. PW 6/B and Ex. PW 6/C, both bearing his signatures at point B. PW7 deposed that he prepared site FIR No. 196/2011, State Vs. Abid Guddu plan Ex. PW 7/B bearing his signatures at point A, he recorded the statement of the witnesses. Accused was got medically examined and sent to lock up. Case property was deposited in the malkhana. It is deposed by PW7 that thereafter they went to their office where Constable Vipin also arrived and handed over copy of FIR and original rukka to him, he also collected FSL result and obtained sanction u/s 39 Arms Actm prepared the challan and submitted in the Court. PW7 identified the desi katta, one cloth pulanda with seal impression, one live cartridge and one used cartridge and same are already Ex. P1 to P4. PW7 also identified five mobile phones of make one Nokia, two GFIVE, one MAXX and one Samsung which are Ex. P5 to P9. During the his cross examination, by Sh. Vinay Kumar Verma, Counsel for the accused from Legal Aid, PW7 stated that Secret informer gave him secret information at Nehru Place terminal. From there he alongwith his staff directly proceeded towards the spot alongwith secret informer. He shared the secret information to his Senior officials. They did not offer their personal search to the accused before taking his personal search. PW7 stated that he does not remember what clothes were worn by the accused at that time. Seal after use was handed over to Constable Vipin Tyagi by the him and he received back the seal on the next day. Constable Vipin Tyagi left the spot for registration of FIR at about 9:00 pm on TSR. He had prepared site plan, seizure memo of desi katta, mobile phone, motorcycle and DL, sketch of katta, disclosure statement at the spot alongwith rukka at the FIR No. 196/2011, State Vs. Abid Guddu spot. No tampering was done by the me on the said documents. The FIR number on the documents were mentioned after the FIR was got registered. All writing work was done under street light. PW7 admitted that existence of street light is not mentioned in the site plan. PW7 denied that accused was apprehended from his house at Noida or that katta, cartridge and mobile phones were not recovered from the possession of the accused or that accused has been falsely implicated in this case at the behest of his senior Officials. State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 3 6. PW3 & 6 were also the member of raiding party and they deposed on the same line & statement of PW7. 7. PW1 was the duty officer on 09−06−2011, who recorded the present case FIR Ex.PW1/A on the basis of rukka Ex.PW1/B. 8. PW2 was the MHC(M), posted at PS Kalkaji on 9−6−2011 to whom HC Sunil Gaud deposited one sealed pullinda sealed with SG and FSL Report and 5 mobiles phone and one Motorcycle No:DL7SAX2496. PW2 produced the copy of register no:19 whichis Ex.PW2/A (OSR). PW2 further deposed that sealed pullinda was sent to FSL through HC Kailash on 21−6−2011 and the report and case property was received back in Malkhana on 2−8−2011 through Ct. Ghanshyam and he made the entries in register No:19 (OSR). 9. PW4 HC Kailash Chand deposed that on 21−06−2011, IO HC Sunil Gaur gave him documents and sent him to PS Kalkaji and to collected a pullanda from there and deposit the same at FSL and he went to the PS Kalkaji and collected a pullanda from there,sealed with the seal of SG and deposited the same at FSL Rohini and handed over the receipt to FIR No. 196/2011, State Vs. Abid Guddu the IO. PW4 deposed that pullanda was not tampered till the same remained in his possession. 10. PW5 is Sh. V.R. Anand, Assistant Director−Ballistic, FSL, Rohini proved the FSL report which is Ex.PW5/A. PW5 deposed that country made pistol was in working order and test fire conducted successfully. 11. Thereafter, the statement of the accused was recorded on 26−09−2014 and accused chosen not to lead defence evidence. It is stated by accused that he has been falsely implicated in the present case and the witnesses deposed against him are interested witnesses and he has nothing to do with the present case and nothing has been recovered from his possession. 12. I have heard the Ld. APP for State and Ld. Defence counsel and perused the material available on record. 13. It is argued by the Ld. APP for State that the case has been duly proved against the accused person beyond any reasonable doubt and he should be convicted. He argued that competent authority had given its Sanction for prosecution of accused person by applying its mind to the facts of the case and after considering relevant material. He had argued that the prosecution had been able to successfully prove that accused was in possession of illegal Arms and accused was also found in possession of two mobiles without having any ownership and therefore, he is liable to be held guilty for committing offence U/s 25 of Arms Act and u/s 3/181 of MV Act. 14. After going through the complete evidence and records of this case I am of the view that the accused deserves acquittal U/S 25/54/59 FIR No. 196/2011, State Vs. Abid Guddu of Arms Act, in this case on the following grounds. State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 4 (a) No independent public witnesses have been joined at the time of recovery or during investigation despite their easy availability as the place where the alleged recovery had been affected was a public place. It is argued that merely a general allegation /averment that IO had asked few public persons to join the investigation but they had refused to participate and left the place by telling their genuine problem was not sufficient to evade the mandatory requirement of law of joining public witnesses. It is submitted that no written notice was given to those persons who had refused to join the investigation nor their particulars were recorded and the bald allegations of witnesses and IO in this regard were of no legal consequence. (b) The mentioning of FIR Number on sketch memos and seizure memos clearly shows that these memos were prepared after registration of FIR and not prior to registration of FIR as alleged in the prosecution story. This fact clearly shows that all the proceeding have been done at the police station and not at the spot as alleged by PWs which proves that PWs were not stating the truth before the court. (c) Even the notification, the violation of which had been alleged in the present case was also never placed on judicial record. Hence, all these short falls appearing in the story of prosecution are sufficient enough to cast a dent in the story of prosecution and its authenticity and genuineness and casts a serious shadow of doubt and suspicion over the same. (D) There is contradiction between the deposition made by PW1 and FIR No. 196/2011, State Vs. Abid Guddu PW2. PW1 during his examination deposed that On the formal search of accused one English made pistol was recovered from his right side dub of the pant whereas the HC Ombir Singh, who is the IO of the case, deposed that accused tried to pull out one English made pistol from his left side dub ot his pant. PW1 deposed that they reached at the spot at about 7 p.m, whereas PW2 deposed that they reached at the spot at 6:20 p.m. 15. Reliance has also been placed by the learned Defence Counsel on the ratio of the case titled as "Abdul Sattar & Anr. Vs. State", reported in 2009 (4) JCC 3179 (Del.) wherein it has been held by our own Hon'ble High Court of Delhi that in the absence of a notification being placed or proved on record by the prosecution, it would be difficult to conclude that the possession of the recovered weapon from an accused was actuallyin contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of the Arms Act. The prosecution however, has neither placed nor proved any such Notification. Thus, in the absence of any evidence to that effect, it is difficult to conclude that the possession of above recovered knife and dagger by the respective appellants was in contravention of Section 5 of the Arms Act, which is one of the main ingredients for offence punishable under Section 25 of Arms Act. As per Judgment of Manpreet Singh vs. State 2004 (1) JCC 1 it was held that: FIR No. 196/2011, State Vs. Abid Guddu "seal after sealing not handed over to the independent witness creates doubts and also not joining the independent witness creates doubt and violation of Section 100 (4) Cr.P.C." State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 5 16. In case titled as State of Haryana Vs. Ram Singh 2002 SCC (CRL) 351 Hon'ble Apex court had observed that when disclosure, discoveries and arrest are made in the absence of independent witness it creates a doubt or suspicion which must go to the benefit to the accused. That if there are material contradictions in the statements of witn esses and no documentary proof of DD entry, then the prosecution case i s not free from shadow of the doubts and failed to prove its case beyond any reasonable doubts then prosecution had failed as held in Satish Kumar vs. State 2013 (JCC) 441. 17. In case titled as Prithivi Pal Singh @ Munna Vs. State of Delhi 2000 Law Suit (Delhi) 197 it was held in Para 6 that: "that the provision of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the act also to the extent they are not inconsistent with the provisions of the act. Thus while conducting search and seizure, in addition to the safeguard provided under Cr.P.C., the safe guard provided under the act are also required to be followed. It is well settled that failure to comply with the provisions of the Code of Criminal Procedure in respect of search and seizure and particularly those of sections 100, 102, 103, FIR No. 196/2011, State Vs. Abid Guddu 164 per se does not vitiate the trial under the Act. But it has to be borne in mind that conducting a search and seizure in violation of statutory safeguardwould be violative of the reasonable fair and just procedure...................." 18. In Menka Gandhi Vs. Union of India it was held that when the statue itself provides for a reasonable, fair and just procedure, it must be honoured. Thus an accused has right to reasonable fair and just procedure. The statutory provisions embodied in section 41 to 55 and\ section 57 of the Act and Sections 100, 102, 103 and 165 of the Cr.P.C. Fair and reasonable, fair and just proper. 19. Section 43 of the act read alongwith sub section 4 of the Section 100 Cr.P.C. contemplates that search should as far as practicable be made in presence of two independent and respectable witnesses of the locality and if the designated officers fail to do so, the onus would be on the prosecution to establish that the association of such witnesses was not possible on the facts and circumstances of a particular case." "............. thus, the statutory desirability in the matter of search and seizure is that there should be two or more independet and respectable witnesses. 20. In the present case, only general allegations were being made that IO had made efforts to join public witnesses but nothing material had come on record to show the same such as the names of the persons who were asked to join the proceeding etc. Not only this, but also, no finger prints of accused persons were FIR No. 196/2011, State Vs. Abid Guddu taken or lifted from the weapons alleged to have been recovered from their possession so as to link them with the said alleged possession and recovery. Though, it is not the case that police witnesses were not material witnesses or on their sole testimonies accused could not have been convicted but it is well settled that in the absence of any independent witness, the contradictions in the testimonies though minor in nature should also be viewed seriously as decided in Kuldeep Singh Vs State of Haryana, 2004(4) RCR 103 wherein it was held that:− "Recovery effected at a place where independent witness were available but not joined− State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 6 Discrepancies in statement of official witnesses− Discrepancies assume importance when no independent witness was joined. 21. In Passi @ Parkash V State of Haryana, 2001(1) RCR 435 wherein it was held that:− "Discrepancies in statement of witnesses assumed importance due to non joining with independent witness. Had an independent witness been joined these discrepancies would not have affected the prosecution. 22. In Pawan Kumar Vs Delhi Admn. 1987 CC. Cases 585(HC) wherein it has been held that:− In the normal circumstances, the FIR number should not find mention on the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch FIR No. 196/2011, State Vs. Abid Guddu plan does not show the number of FIR. It is not explained as to how and under what circumstances, the recovery memo came to bear the FIR number which had already come into existence before the registration of the case. These are few of the circumstances which created a doubt about the genuineness of the weapon of offence alleged to have been recovered from the accused. If in the recovery memo description of the weapon shows defers or did not find mentioned in the sketch plan, it creates a doubt about the identify of the weapon from the accused. It was also held that where the IO does not make any attempt to make any public witness despite the presence of large number of persons on the spot and no plausible explanation comes from the side of prosecution in forth coming for non joining of independent witnesses in a case of serious nature like 25 Arms Act, it creates a doubt on the arrest and the recovery of the weapon from the person of the accused. 23. In view of above mentioned judgments, I am of the opinion that merely on the basis of routine identical statements of police witnesses, it would not be safe to hold accused guilty as there are above mentioned shortcomings in the case of prosecution which cast a doubt and makes the accused entitled for every benefit of doubt, hence I am of the opinion that prosecution has failed to prove its case beyond reasonable doubt against the accused and accused namely Abid @ Guddu stands acquitted for the offence U/s 25 of Arms Act. 24. In respect of offence u/s 3/181 MV Act, during the course of final argument, accused Abid @ Guddu admitted before this court that he FIR No. 196/2011, State Vs. Abid Guddu was driving the motorcycle without having any driving licence, as alleged by the IO/PW7 in his chief examination. Therefore, on the admission of accused, he is convicted u/s 3/181 of MV Act and he is sentenced to pay a fine of Rs.100/− in default simple imprisonment for one day. File paid by accused. 25. At the request of ld. Counsel for the accused the existing bail bond and surety bond of the accused is accepted as per the compliance of Section 437(A) of Cr.P.C. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ( VEENA RANI) TODAY ON 26−09−2014 CMM/SE/SAKET COURT/ND. State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 7 FIR No. 196/2011, State Vs. Abid Guddu State vs Abid @ Guddu on 26 September, 2014 Indian Kanoon - http://indiankanoon.org/doc/101231420/ 8

trial8.pdf

Supreme Court of India Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Equivalent citations: 1985 AIR 1211, 1985 SCR Supl. (1) 750 Author: Y Chandrachud Bench: Chandrachud, Y.V. ((Cj) PETITIONER: KHANDELWAL METAL & ENGINEERING WORKS AND ANOTHER ETC. Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT11/06/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. MUKHARJI, SABYASACHI (J) CITATION: 1985 AIR 1211 1985 SCR Supl. (1) 750 1985 SCC (3) 620 1985 SCALE (1)1073 ACT: Customs Act 1962, Section 12 & Customs Tariff Act 1975, Section 3(1)- 'Additional duty'-Whether in the nature of a counter-vailing duty-Import of brass scrap-Test of taxability-Imported brass scrap-'Like Article if produced or manufactured in India'-Meaning of-Taxable event is whether import and not manufactured in India-Whether nature and quality of goods imported relevant- Whether imported brass scrap need be capable of being produced or manufactured in India-Manufacturing process-What is-Being a bye-product of manufacturing process-Whether liable to duty-Sections 2. 25, 1st Schedule, (Import Tariff) Chapter 74, Heading 74.01/02, Rules for interpretation of the Ist Schedule, Rules 1 to 4, Notes 2 Section XV of the Ist Schedule, Notes 3 and 4- 'Copper waste and scrap'-Whether brass scrap is comprehended within the expression and whether is 'master alloy'-Whether imported brass scrap entitled to exemption under Notification No. 97 dated June 25 1977. Customs Tariff Act 1975-Ist Schedule (Import Tariff), Chapter 74, Heading 74.01/02-Classification of goods under import tariff-Contemporary notification-Whether can be relied upon-Rules of interpretation-Whether should have precedence over other aids of interpretation-Rules for interpretation of the Ist Schedule-Rules 1 to 4-Application of. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 1 Central Excises and Salt Act 1944, Section 3(1) Schedule 1, Entry 26A Clause (1b)-Whether ultra vires Section 3(1)-Whether within the legislative competence of Parliament. Words and phrases-'Brass Scrap'-'Copper waste and scrap'/'Master alloy'-Meaning of. HEADNOTE: Section 2(15) of the Customs Act, 1962 defines "duty" to mean a duty of customs leviable under the Act. Chapter V of the Act contains provisions for the levy of, and exemption from, customs duties. By s. 12(1) of the Act, "Except otherwise provided in the Act or in any other law for the time being in force", duties of customs shall be levied at such rates as may be specified 751 under the Customs Tariff Act, 1975 or under any other law for the time being in force, on goods imported into or exported from India. Section 25 of the Customs Act, empowers the Central Government to grant exemption from the payment of Customs duty. The rates at which duties of customs shall be levied under the Customs Act, 1962 are specified in the First and Second Schedules of Tariff Act. Section 3 of the Tariff Act deals with the levy of "additional duty equal to excise duty". Sub-s.(1) thereof provides that any article which is imported into India shall in addition be leviable to a duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the Imported article shall be so liable shall be calculated at that percentage of the value of the imported article. The expression "the excise duty for the time being leviable on a like article if produced or manufactured in India", according to the Explanation in the section, means, the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured which would be leviable, on the class or description of article to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. On June 25, 1977 the Central Government issued Notification No. 97 under s. 25 of the Customs Act 1962, exempting articles other than copper waste and scrap and unwrought copper (refined or not) falling under Heading No. 74.01/02 of the First Schedule to the Customs Tariff Act, 1975) (51 of 1975) when imported into India, from so much of duty of customs leviable thereon which is specified in the First Schedule as is in excess of 40 per cent ad valorem. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 2 Another Notification No. 156 was issued by the Central Government on July 16, 1977 by which copper waste and scrap falling under the same heading were exempted from so much of the duty of customs leviable thereon which is specified in the First Schedule, "as is in excess of 80 per cent ad valorem". The appellants carry on the business, of importing brass scrap from other countries. According to them they are liable to pay customs duty at the rate of 40 per cent only by reason of the exemption granted by the first notification while as per the respondent-Union Government they are liable to pay duty at the rate of 80 per cent since the second notification is attracted. The appellants filed Writ Petitions under Art, 226 of the Constitution and the same were dismissed by the High Court. 752 In the appeals to this Court it was contended on behalf of the appellants : (1) that the 'additional duty' of customs, which is in the nature of countervailing duty, cannot be levied on brass scrap because, such scrap which consists of damaged brass articles like taps and pipes, is not "manufactured" in India (or elsewhere), as indeed it cannot be and (2) that they are liable to pay duty of customs on the brass scrap at the rate of 40 per cent only and not at the rate of 80 per cent because, brass scrap is a 'master alloy.' Dismissing the Appeals and the Special Leave Petitions, ^ HELD : 1. Notification No. 156 of July 16, 1977 exempts copper waste and scrap from so much of the duty of customs as is in excess of 80 per cent ad valorem. Since brass scrap is includible in the expression 'copper waste and scrap' and since, brass scrap is not a 'Master alloy', the appellants' case would fall under this notification. Accordingly, they would be entitled to exemption from customs duty to the extent of 20 per cent only. [774 C-D] 2. The charging section is s 12 of the Customs Act, 1962 and not s. 3(1) of the Customs Tariff Act, 1975. Section 12 of the Customs Act incorporates the different ingredients embodied in the concept of a fiscal imposition. It levies a charge, it indicates the taxable event (the import or export of goods) and it indicates the rate of the levy. The rates are such "as may be specified under the Customs Tariff Act 1975". Section 2 of the Tariff Act lays down that "the rates at which the duties of customs shall be levied under the Customs Act are specified in the first or Second Schedules." The scheme incorporated in s.12 of the Customs Act read with s.2 of the Tariff Act is analogous to the scheme embodied in s.4, Income Tax Act read with the relevant provisions of the Finance Act. The levy specified in s.3(1) of the Tariff Act is a supplementary levy, in enhancement of the levy charged by s.12 of the Customs Act Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 3 and with a different base constituting the measure of the import. The 'additional duty' which is mentioned in s.3(1) of the Tariff Act is not in the nature of countervailing duty. [758 G-H; 759 A-C] Ashok Service Centre v. State of Orissa, [1983] 2 SCR 363, relied upon. 3. Under s.12 of the Customs Act duty is leviable on the taxable event of export of goods from India or the import of the goods into India, which is relatable to Entry No. 83 is List I of the Seventh Schedule to the Constitution. The taxable event is not the manufacture of the goods. Under s.3(1) of Tariff Act, "the excise duty for the time being leviable on a like article if produced or manufactured in India" is only the measure of the duty leviable on the imported article. Section 3(1) does not require that the imported article should be such as to be capable of being produced or manufactured in India. [761 F- H] 4. The provisions contained in Explanation to s.3(1) of the Tariff Act make it clear that the duty referred to in s.3(1) of the Tariff Act does not bear any nexus with the nature and quality of the goods imported in to India. [762 A-C] 753 5. Section 3(5) of the Tariff Act which provides, that the duty "chargeable under this section" shall be in addition to any other duty imposed under the Act, does not help s.3(1) becoming a charging provision. The word 'chargeable' occurring in sub-s. (5) has to be read alongwith the expression "imposed under this Act". Section 2 of the Tariff Act does not charge a duty but only prescribes the rates of duty leviable under s.12 of the Customs Act. Besides, s.3(5) of the Tariff Act refers not merely to any other duty imposed under the Tariff Act but also "under any other law for the time being in force", which would include s.12 of the Customs Act. Therefore, in the instant case, it cannot be said that s.3(1) of the Tariff Act is not attracted because the damaged articles, which are in the nature of brass scrap, are outside the scope of that Act since, such articles are not and cannot be produced or manufactured. [762 C-F] 6.(i) Even if the duty "chargeable" under s.3(1) of the Tariff Act is a countervailing or counterbalancing duty, the brass scrap imported by the appellants will attract the charge on that basis also. The damaged goods of brass, which are compendiously called 'brass scrap', can come into existence during the process of manufacturing brass articles and such brass scrap has an established market in India. The scrap is re-cycled for extracting metal and since excise duty is payable on such scrap, the imported brass scrap is subjected to the additional duty in order that indigenous brass scrap may not suffer in competition with the imported brass scrap. The true test is as to what is the description Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 4 of the articles imported. [762 G-H; 763 A-C] (ii) The limited inquiry which has to be made is whether brass scrap can come into being during the process of manufacture. If the answer is in the affirmative, the imported brass scrap will be chargeable to additional duty in accordance with s 3(1) of the Tariff Act. [763 C-E] 7. In the instant case, the appellants claim that the goods imported by them fall in the class of 'master alloy' is against the tenor of their own documents. The appellants imported the articles under Open General Licence in pursuance of Entry 44 of Appendix 10 of the 'Import Policy'. They could not have been granted permission to import 'master alloy' under the Open General Licence because under the OGL the import of brass scrap was permissible at the relevant time but not of any 'master alloy'. [765 E-G] 8. An 'alloy' is a substance possessing metallic properties and composed of two or more elements of which at least one must be a metal. A 'master alloy' is generally called a foundry alloy for the simple reason that it is an alloy used for adding elements in the foundry. Brass scrap does not square with that description and use. It is not an alloy of mixture of elements used for introducing desired elements into melted metals in the foundry. Brass is but an alloy of copper and zinc and is complete and finished product by 754 itself. Brass or brass scrap is not used as a raw material in the manufacture of other alloys, therefore, it is not a master alloy. The appellants cannot claim the benefit of Notification No. 97 dated June 25, 1977 on the basis that brass scrap is a master alloy. [767 G-H; 770 C-D 768 C-D; 770 F-G] "A Dictionary of Metallurgy by A.D. Merriman". "Materials Handbook" by George S. Brady, 'World Trade and the law of Gatt' by John H. Jackson, Ed. 1969. Henderson's 'Metallurgical Dictionary' Osborne's 'Encyclopaedia of the Iron and Steel Industry', Encyclopaedia Britannica, referred to. 9. The question of classification of goods under the 'Import Tariff' cannot be decided by implications, when there are Rules of Interpretation which are specifically framed to aid and assist the classification of goods under appropriate Heading. Those rules must have precedence over other aids of interpretation. [774 B-C] Desh Bandhu Gupta v. Delhi Stock Exchange Association, [1979]3 SCR 373, K.P. Verghese v. I.T.O , [1982]1 SCR 629 referred to. 10. Rule 1 of the Rules for the Interpretation of the First Schedule (Import Tariff) to the Tariff Act, 1975 provides that classification has to be determined according to the provisions of the Rules unless, a particular Heading or Note excludes the application of the Rules other than Rule 1. In the instant case, the terms of the Heading No. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 5 74.01/02 by themselves, yield an answer to the question whether copper waste and scrap includes brass scrap and the Heading does not require or provide that the other rules should be excluded while determining the classification of articles under the Heading. That is how Rules 2 to 4 become relevant for deciding the question whether 'copper waste and scrap' includes brass scrap. By reason of the concluding part of Rule 2(b) classification of goods consisting of more than one material or substance shall be according to the principles contained in Rule 3. Applying the principle contained in Rule 3(b) brass is a mixture of copper and zinc, usually in the proportion of 60:40 but, in which the component of copper may be anywhere between 67 per cent and 70 per cent. Since copper gives its 'essential character' to brass, brass scrap has to be classified as 'copper waste and scrap' within the meaning of Heading No. 74.01/02. Even if it is assumed that brass scrap does not fall within any Heading of the First Schedule, Rule 4 would yield the same result because Rule 4 provides that goods not falling within any Heading of the First Schedule shall be classified under the Heading appropriate to the goods to which they are most akin. Brass, unquestionably, is most akin to copper and, therefore, brass scrap has to be classified as 'Copper Waste and Scrap'. [772 A-H; 773 A-C] 11. Clause (a) of Note 3 of Section XV of the First Schedule (Import Tariff) provides that an alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals. Since brass is an alloy of copper and zinc in which copper predominates by weight, 755 brass has to be classified as an alloy of copper. According to Note 4, unless the context otherwise requires any reference in the First Schedule to a base metal is to be taken to include a reference to alloy which by virtue of Note 3, is to be classified as alloys of that metal. Heading No. 74.01/02 of the First Schedule refers to waste copper and scrap. Copper is a base metal. Reference to copper in that heading would include reference to brass since, by virtue of Note 3, brass has to be classified as an alloy of copper. Therefore, 'copper waste and scrap' includes brass scrap. [773 C-F] 12. Considerations based on documents issued by the Merchants' Association and upon extracts from 'Indian Standard Coding and Classification for non-ferrous scrap metals' showing that brass scrap and copper scrap are regarded as distinct and separate items for commercial purposes cannot furnish a true answer to the question, because the distinguishing feature is brass and copper are not mentioned as separate items in the Import Tariff. [773 F-H] 13. (i) Imposition of excise duty on 'waste and scrap', referred to in Cl. 1(b) of Entry 26A of the First Schedule Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 6 to the Central Excises and Salt Act, 1944 is not ultra vires s. 3 of that Act. Section 3 provides for levy of excise duty on all exciseable goods produced or manufactured in India. The production of waste and scrap is a necessary incident of the manufacturing process. Waste and scrap are the bye- products of the manufacturing process. Sub-standard goods which are produced during the process of manufacturing may have to be disposed of as 'rejects' or as scraps. But they are still the products of the manufacturing process. [774 D-H] (ii) 'Intention' is not the gist of the manufacturing process. [774 H] 14. Section 2(d) of the Act of 1944 defines 'excisable goods' to mean good s which are specified in the First Schedule as being subject to a duty of excise under s. 3 of the Act. The goods mentioned in the First Schedule will attract excise duty under s. 3 only if they are manufactured in India and not otherwise. Entry 26A (1b) of the First Schedule of the Act of 1944 cannot be held to be beyond the legislative competence of the Parliament because the precondition of the excisability of the articles mentioned therein, namely, waste and scrap is in the manufacturability of those articles. Since the production of waste and scrap is an integral part and an inevitable incident of the manufacturing process, Parliament has the legislative competence to make 'waste and scrap' excisable under Entry 84 of List 1 of the Seventh Schedule to the Constitution. Parliament would even otherwise have the legislative competence to pass the law by virtue of Article 248 read with the residuary Entry 97 of List I, because the subject matter of Legislation does not fall within List II, the State List. [775 A-E] Second Gift Tax Officer, Managalore v. D.H. Nazareth [1971] 1 S.C.R 195 and Union of India v. H.S. Dhillon [1972] 2 SCR 33 followed. 756 The Hingir-Rampur Coal Co. Ltd. v. The State of Orissa [1961] 2 SCR 537 Kalyani Stores v. The State of Orissa [1966] SCR 865, 1 A.B. Abdul Kadir v. State of Kerala [1976]2 SCR 690 and Mc. Dowell & Company Ltd. v. Commercial Tax Officer, VII Circle, Hyderabad [1977] SCR 914 referred to. JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 338- 349 of 1983 etc etc. From the Judgment and Order dated 19th October, 1982 of the Delhi High Court in Civil Writ Petitions Nos. 2684, 2685, 2686, 1687, 2688, 2724, 2725, 2507, 2508, 2509 and 1432 of 1981. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 7 R.N. Bajoria, Soli J. Sorabji, Anil B. Dewan, Gobind Dass, A.K. Sen, I.R. Gupta, M.M. Abdul Khadar, S.K. Bagaria, Kamal Persuram Puria, A.M. Shah, V.N. Deshpande, E.C. Agarwala, R. Sathish, Vijaya Pandita, Prakash Mittal, Madan Sharma, Ravinder Narain, O.C. Mathur, J.B. Dadachanji, Talat Ansari, D.N. Mishra, Harish Salve, Miss Rainuwalia, Ashok Gupta, P.H. Parekh, D.K. Chhaya, Miss Nisha Srivastava, JP. Devadhar, Aruneshwar Gupta, Brij Bhushan, S.P. Mangla, Rajesh Gupta, J.N. Aggarwal, P.D. Sharma, P.K. Mukherjee, A.S. Pundir, N.D. Garg, P.K. Aggarwal, V.K. Varma, S. Sriniasan, Sushil Kumar Jain, M.K.D. Namboodiry, R.C. Pathak, Mrs. Rani Chhabra, Mrs. Shobha Dixit. A.T.M. Sampath, K.J. John, Shri Narain, J.N. Aggarwal, B.P. Maheshwari, Miss Halida Khatun, R.S. Suri, S.K. Dholakia, Altaf Ahmad, G.D. Rawal, Shyam Moorjani Kailash Vasdev, C.S. Vaidyanathan. D.D. Sharma, B. Parthasarthi, S.S. Shroff, Mrs. Pallavi Shiraf, D.P. Mohanty. S.A. Shroff, Subhash Parekh, A.K. Sanghi. S.N. Parekh, Vijay Pandita, Madan Sharma, R.D. Upadhya, Mrs. Hemantika Wahi, Janendra Lal, B.R. Agarwala, Miss V. Menon, A.K. Goel, K. Dileep and M.A. Feroz, for the Appellants/Petitioners. K. Parasaran, Solictor General, M.K. Banerjee, Additional Solictor General, A.K. Ganguli, K. Swamy, R.N. Poddar, C.V. Subbarao, Suraj Udai Singh and Miss Halida Khatun for the Respondents. Anil B. Dewan, Abhay M. Shah, V.N. Deshpande, E.C. Aggarwala and V.K. Pandita for the Interveners (Indravandan Gokuldas Mehta). The Judgment of the Court was delivered by CHANDRACHUD, CJ : This is a group of Civil Appeals and Special Leave Petitions arising out of a judgment dated October 19, 1982 delivered by a Division Bench of the High Court of Delhi in a batch of Writ petitions filed under Article 226 of the Constitution. Those Writ Petitions having been dismissed by the High Court, the Writ-petitioners have filed these Appeals and Special Leave Petitions. The facts of the various Writ Petitions naturally vary from case to case but, such variation has no bearing on the points which arise for our decision. We will mention the facts of Civil Appeal Nos. 27-33 of 1983 as a representative batch of cases. The two appellants therein are respectively Messers Eastern Engineers, a partnership firm carrying on business at Goregaon, Bombay, and a partner of that firm. For the sake of convenience, we will proceed on the basis that the real appellant is the firm. The appellant carries on the business, inter alia, of importing brass scrap from other countries. Its contention is that the 'additional duty' of customs, which is in the nature of countervailing duty, cannot be levied on brass scrap because, such scrap which consists of damaged brass articles like taps and pipes, is not "manufactured" in India (or elsewhere), as indeed it cannot be. The second contention of the appellant is that it is liable to pay duty of customs on the brass scrap at the rate of 40 per cent only and not at the rate of 80 per cent because, brass scrap is a 'master alloy'. The rate of customs duty payable depends upon which of the two Notifications, granting exemption from payment of customs duty, is applicable. These contentions are based on the following provisions of law. Section 2 (15) of the Customs Act, 1962 defines "duty" to mean a duty of customs leviable under the Act. Chapter V of the Act contains provisions for the levy of, and exemption from, customs duties. By section 12 (1) of the Act, "Except as otherwise provided in the Act or in any other law for the time Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 8 being in force", duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 or under any other law for the time being in force, on goods imported into or exported from India. Section 25 of the Customs Act, which deals with the power of the Central Government to grant exemption from the payment of customs duty, provides by sub-section (1) that, if the Central Government is satisfied that it is necessary in the public interest so to do, it may, by a notification in the Official Gazette, exempt generally, either absolutely or subject to such conditions as may be specified, goods of any specified description from the whole or any part of the duty of customs leviable thereon. Section 2 of the Customs Tariff Act, 1975 says that the rates at which duties of customs shall be levied under the Customs Act, 1962 are specified in the First and Second Schedules of the Tariff Act. Section 3 of the Tariff Act deals with the levy of "additional duty equal to excise duty". Sub-section (1) of section 3 and the Explanation to that section, which are relevant for our purpose, read thus: "Levy of additional duty equal to excise duty. (1) Any article which is imported into India shall, in addition be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation- In this section the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured which would be leviable on the class or description of article to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." The question which we must first examine is as to what is the true nature of the duty mentioned in section 3 (1) of the Tariff Act. It has to be appreciated at the threshold that the charging section is section 12 of the Customs Act and not section 3 (1) of the Tariff Act. Section 12, Customs Act, incorporates the different ingredients embodied in the concept of a fiscal imposition. It levies a charge, it indicates the taxable event (the import or export of goods ) and it indicates the rate of the levy. The rates are such "as my be specified under the Custom Tariff Act, 1975". The last ingredient takes us to section 2, Tariff Act, which lays down that "the rates at which the duties of customs shall be levied under the Customs Act are specified in the First or Second Schedules". Nothing more would be ordinarily required to complete the scope of section 12, Customs Act. The scheme incorporated in that section read with section 2 of the Tariff Act is analogous to the scheme embodied in section 4, Income Tax Act read with the relevant provisions of the Finance Act. The levy specified in section 3 (1) of the Tariff Act is a supplementary levy in enhancement of the levy charged by section 12 of the Customs Act and with a different base constituting the measure of the impost. In other words, the scheme embodied in section 12 is amplified by what is provided in section 3 (1). The customs duty charged under section 12 is extended by an additional duty confined to imported articles in the measure set forth in section 3 (1). Thus, the additional duty which is mentioned in section 3 (1) of the Tariff Act is not in the nature of countervailing duty. In Ashok Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 9 Service Centre v. State of Orissa, which considered the nature of levy of additional sales-tax under an Orissa Act, this Court observed: "This construction receives support from the use of the word 'additional' in section 3 (1) which involves the idea of joining or uniting one thing to another so as thereby to form one aggregate. (See Black's Law Dictionary). The gross turnover referred to therein should therefore be understood as that part of the gross turnover which is taxable under the principal Act." (page 380). Counsel for the appellants rely strongly on the 'Objects and Reasons' of section 3 of the Tariff Act in support of their contention that the said section is a charging section and imposes a countervailing duty. The Statement of Objects and Reasons says: "Clause 3 provides for the levy of additional duty on an imported article to counterbalance the excise duty leviable on the like article made indigenously, or on the indigenous raw materials, components or ingredients which go into the making of the like indigenous article. This provision corresponds to section 2-A of the existing Act, and is necessary to safeguard the interests of the manufacturers in India." This Statement lends prima facie support to the contention of the appellants but, in the absence of any ambiguity in the wording of section 3 (1), we cannot treat the additional duty referred to therein as countervailing duly, Nor, indeed, can we regard that provision as a charging section merely because the Statement says that section 3 "provides for the levy". The Statement of Objects and Reasons errs in being common to sub-sections (1) and (3) of section 3. It is more apposite to sub-section (3) though, even there, it may not be correct to say that it is a charging provision. Sub- section (3) confers power on the Central Government, in public interest, to levy on any imported article "such additional duty as would counterbalance the excise duty leviable on any raw materials, components and ingredients of the same nature as, or similar to those used in the production or manufacture of such article", whether on such article, duty is leviable under sub-section (1) or not. Since we are not concerned directly with sub-section (3), we will not pronounce upon its meaning and implications. In this view of the matter, it is unnecessary to consider the various decisions cited at the Bar on the nature and connotation of 'countervailing duty'. We are unable to accept the argument of the appellants that section 3 (1) of the Tariff Act is an independent, charging section or that, the 'additional duty' which it speaks of is not a duty of customs but is a countervailing duty. That leads to the inquiry as to the reason or purpose behind the argument that section 3 (1) of the Tariff Act is an independent, charging section. It shall have been noticed that section 3 (1) provides that any article which is imported into India shall, in addition, (that is, in addition to the duty of customs for which rates are specified in section 2) be liable to an additional duty "equal to the excise duty for the time being leviable on a like article produced or manufactured in India". The contention of Mr. Sorabjee, who appears on behalf of the appellants, is that the brass scrap imported by them is not produced or manufactured in India because the damaged articles of brass which constitute brass Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 10 scrap, are not only incapable of being manufactured but are in fact not manufactured. Learned counsel contends that if the change in the condition of an article is the result of an accidental event, that is to say, an event not intended or if the change is the result of ordinary wear and tear, the change thus produced cannot be termed as manufacture. It is urged that the articles imported by the appellants are what they are because, they had suffered damage or had been subjected to ordinary wear and tear in the natural course. If such goods cannot be produced or manufactured in India for the reason that they cannot be and are, in fact, not produced or manufactured in India, or for the matter of that anywhere, no additional duty can be levied upon them under section 3 (1). According to the learned counsel, the basic postulate underlying the levy of duty under section 3 (1) of the Tariff Act is that indigenous goods belonging to the class of goods which are chargeable to excise duty. The illustrations given are the import of live animals, live trees burnt up cables, broken glass or fused bulbs. The argument is that there is and can be no levy of additional duty on these goods if imported because they cannot be and are not manufactured for the simple reason that they are not the result of treatment, labour and manipulation, nor are they the result of one or more processes through which the original commodity is made to pass. Putting it in one sentence, the argument is that if indigenous goods, similar to those which are imported, do not suffer excise duty for the reason that they are not manufactured, the charge leviable under section 3 (1) of the Tariff Act is not attracted. There is no substance in this argument. In the first place, as we have indicated earlier, sections 2 and 3 (1) of the Tariff Act are not charging sections. The charging section is section 12 of the Customs Act under which, duty is leviable on the taxable event of export of goods from India or the import of goods into India, which is relatable to Entry No. 83 in List I of the Seventh Schedule to the Constitution: "Duties of Customs including export duties". The taxable event is not the manufacture of the goods. Under section 3 (1) of the Tariff Act, "the excise duty for the time being leviable on a like article if produced or manufactured in India" is only the measure of the duty leviable on the imported article. Section 3 (1) does not require that the imported article should be such as to be capable of being produced or manufactured in India. The assumption has to be that an article imported into India can be produced or manufactured in India and upon that basis, the duty has to be determined under section 3 (1). Any doubt on this point is resolved by the Explanation to section 3 (1) of the Tariff Act. The Explanation furnishes a dictionary for the interpretation of section 3 (1) and provides a clue to its understanding. The Explanation provides in so many words that the expression "excise duty for the time being leviable on a like article if produced or manufactured in India" means "the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India" (emphasis supplied). The Explanation even goes further and provides that if a like article is not so produced or manufactured, then, the duty leviable means the duty which would be leviable on the class or description of articles to which the imported article belongs. These provisions leave no doubt that the duty referred to in section 3 (1) of the Tariff Act does not bear any nexus which the nature and quality of the goods imported into India. Section 3 (5) of the Tariff Act which provides, inter alia, that the duty "chargeable under this section" shall be in addition to any other duty imposed under the Act, cannot be pressed into service Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 11 in support of the contention that section 3 (1) is in the nature of a charging provision. The word 'chargeable' which occurs in sub-section (5) has to be read along with the expression "imposed under this Act". Section 2 of the Tariff Act does not charge a duty but only prescribes the rates of duty Ieviable under section 12 of the Customs Act. Besides, section 3 (5) of the Tariff Act refers not merely to any other duty imposed under the Tariff Act but also "under any other law for the time being in force," which could include section 12 of the Customs Act. For these reasons, we must reject the argument of Mr. Sorabjee and of the other learned Counsel for the appellants that section 3 (1) of the Tariff Act is not attracted because, the damaged articles, which are in the nature of brass scrap, are outside the scope of that Act since, such articles are not and cannot be produced or manufactured. Looking at the matter from a different point of view, the brass scrap of the kind imported by the appellants is a by-product of the manufacturing process. Such goods can and do come into existence as waste articles or rejected articles during the process of manufacturing that class of articles. Indeed, brass scrap is known in commercial parlance by that name and is excisable as such. Assuming for the sake of argument that the appellants, contention is correct that the duty "chargeable" under section 3 (1) of the Tariff Act is a countervailing or a counterbalancing duty, the brass scrap imported by the appellants will attract the charge on that basis also. As stated above, damaged goods of brass, which are compendiously called 'brass scarp', can come into existence during the process of manufacturing brass articles and such brass scrap has an established market in India. The scrap is re-cycled for extracting metal. Since excise duty is payable on such scrap, the imported brass scrap is subjected to the additional duty in order that indigenous brass scrap may not suffer in competition with the imported brass scrap. The argument that the articles imported by the appellants have been reduced to scrap by reason of damage, wear and tear, is quite irrelevant. The true test is as to what is the description of the articles imported. If the articles are brass scrap, the limited inquiry which has to be made is whether brass scrap can come into being during the process of manufacture If the answer is in the affirmative, the imported brass scrap will be chargeable to additional duty in accordance with section 3 (1) of the Tariff Act. Having disposed of the contention as to whether the duty mentioned in Section 3 (1) of the Tariff Act, whether one calls it additional duty or countervailing duty, is leviable on the brass scrap imported by the appellants, the next question for consideration is as to whether the appellants are liable to pay excise duty on the brass scrap at the rate of 40 per cent or at the rate of 60 per cent. The answer to this question depends upon which of the two notifications, notification No. 97 dated June 25, 1977 and notification No. 156 dated July 16, 1977, is applicable. It is undisputed that excise duty is payable on the brass scrap imported by the appellants, the only controversy being as to the rate of duty payable. Section 25 of the Customs Act, as stated earlier, empowers the Central Government, in public interest to exempt goods of any specified description from the whole or any part of the Customs duty leviable thereon. The First Schedule called "Import Tariff" to the Tariff Act, which is referable to section 2 of that Act consists of one-hundred chapters divided into XXII sections. Each chapter bears a broad heading of the articles comprised therein. Chapter 74 which bears the heading ', Copper and articles thereof," contains six headings, the first of which reads thus: Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 12 Heading Sub-heading Standard Rate Central No. of duty Excise Tariff Item ____________________________________________________________ 74.01/02 Copper matte; (a) 100% 26A Unwrought copper (refined or not); copper waste and scrap; master alloys. ____________________________________________________________ On June 25, 1977, the Central Government issued Notification No. 97 to the following effect: "In exercise of powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962) the Central Government being satisfied that it is necessary in public interest to do so, hereby exempts articles other than copper waste and scrap and unwrought copper refined or not) falling under heading Nos. 74. 01/02 of the First Schedule to the Customs Tariff Act 1975 (51 of 1975 when imported in to India, from so much of duty of customs leviable thereon which is specified in the First Schedule as is in excess of 40% ad valorem. Another Notification, No. /156, was issued by the Central Government on July 16, 1977 by which copper waste and scrap falling under the same heading were exempted from so much of the duty of customs leviable thereon which is specified in the First Schedule, "as is in excess of 80 per cent ad valorem." The upshot of the two notifications is that under the first notification of June 25, 1977, customs duty at the rate of 40 per cent is payable while, under the second notification of July 16, 1977, customs duty at the rate of 80 per cent is payable. In other words, 60 per cent duty is exempted under the first notification while 20 per cent duty is exempted under the second notification. The case of the appellants is that they are liable to pay customs duty at the rate of 40 per cent only by reason of the exemption granted by the first Notification while, the case of the Union Government is that they are liable to pay duty at the rate of 80 per cent since the second Notification is attracted. The fact that the goods imported by the appellants are brass scrap should be beyond the pale of argument though, an attempt was made in the High Court by some of the Counsel to contend that the goods imported by the appellants are not brass scrap at all. There is a specific averment in the pleadings of the appellants that they carry on the business of importing brass scrap and have in fact imported brass scrap. In the Bill of Entry, the Customs Tariff Heading indicated by the appellants themselves is 74.01/02. That entry has to be mad in order to show entitlement for importing goods of the particular description. The import policies for the years 1980-81 and 1981-82 contain lists, in Appendix 10, of items which can be imported under the Open General Licence. It is in pursuance of an Entry in Appendix 10 that the appellants import brass scrap. Indeed, the appellants had to accept that goods were imported by them under the Open General Licence, the goods being described by Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 13 themselves as 'brass scrap'. Otherwise, they would have countered other serious impediments. Further, the claim made by the appellants for exemption, whether it is 60 per cent or 20 per cent is dependant upon the goods imported by them falling under the heading 74.01/02. The fact that brass scrap is covered by the heading 74.01/02 is undisputed and is indisputable. The Controversy between the parties is this. Whereas the appellants claim that brass scrap is a 'master alloy' and, therefore, falls under the notification dated June 25, 1977, the contention of the Union Government is that brass scrap is comprehended within The expression 'copper waste and scrap' and therefore falls under the notification dated July 16, 1977. In the first place, the appellants, claim that the goods imported by them fall in the class of 'master alloy' is against the tenor of their own documents to which we have referred a little while ago. The learned Attorney General is not unjustified in his submission that if the appellants were to ask for permission to import 'master alloy' under the Open General Licence, they could not have been granted that permission since, under the OGL, the import of brass scrap was permissible at the relevant time but, not of any master alloy. One of the three items in Entry 44 of Appendix 10 of the 'Import policy' was 'Brass Scrap'. But, apart from this consideration, it seems to us difficult to accept the appellants contention that brass scrap is a 'master alloy.' The best part of the argument before us was occupied by this particular question since, the difference between the duty payable by the appellants is quite considerable, depending upon whether the first or the second notification applies. The contention of the various counsel on this point may be summed up thus. Firstly, Brass scrap' cannot be classified as 'copper scrap' because, the context in which Notification No. 97 was issued has to be examined in order to find out whether Note 4 of Section XV of the 'Import Tariff' is at all applicable. Secondly, two Notifications, Nos. 96 and 97, were issued simultaneously, one for 'copper scrap' and the other for 'other than copper waste and scrap'. Notification No. 97 on which the appellants rely should, therefore, be so interpreted as to avid any conflict between the two Notifications. The intrinsic evidence furnished by the two Notifications points to the conclusion that they relate to two separate types of scrap. Thirdly, the contemporaneous understanding of those who framed and issued the exemption Notifications has always been that the expression 'brass scrap' is distinct from the expression 'copper scrap' for determining the application of those Notifications, For example, each of the two Notifications, No. 403 dated August 2, 1976 and No. 138 dated July 1, 1977, uses the expressions 'copper scrap', which unequivocally indicates that the framers of the Notifications understood these two expressions to mean two different things. Reliance is placed by the counsel on the decisions of this Court in Desh Bandhu Gupta v. Delhi Stock Exchange Association, and K. P. Verghese v. I.T.O., in support of their submission that the contemporaneous exposition is a legitimate aid to interpretation. Therefore, so the contention goes, even assuming for the purpose of argument that copper scrap includes brass scrap, that conclusion must be resisted in view of the history of the exemption Notifications issued from time to time. Mr. Sorabjee urged, in addition, that the classification of an item under a particular commercial category must not be mixed up with its liability to taxation. Rule 1 of the Rules for the interpretation of the First Schedule ('Import Tariff') of the Tariff Act, 1975 takes precedence over other rules by providing that "for legal purposes, classification shall be determined according to the terms of the Headings and any relative Section or Chapter Notes and, provided such Headings or Notes do not otherwise require, according to the provisions hereinafter contained." The question of the Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 14 application of Interpretative Rules 2 to 4, therefore arises, only where the text of the Heading and of the Notes cannot by itself determine the appropriate Heading for classification of an article. The other Interpretative Rules cannot be invoked in the instant case, because brass scrap being an alloy of copper. its classification can be determined under Rule 1. In any case, Note No. 4 of the Import Tariff which says: Goods not falling within any Heading of the Schedule shall be classified under the Heading appropriate to the goods to which they are most akin" cannot apply since, Rule 1 of the Interpretative, Rules must take precedence over it. These considerations, according to the learned counsel, lead to the conclusion that brass scrap, as a 'copper alloy scrap' must be classified with copper as an 'alloy scrap of copper' or 'copper alloy scrap'. It cannot be classified as 'copper scrap'. Arguments advanced by the various learned counsel including Mr. Asoke Sen, Mr. Sorabjee, Mr. Bajoria, Mr. R. K. Jain, Mr. Gobind Das, Mr. L. R. Gupta and Mr. K. Parshurampuria were an interesting interplay of different facets of forensic presentation. Broadly, the central theme of their argument was the same but, a few of them, who are evidently well-versed in the " Import Tariff", dissected with ability many a minute point concerning the composition of metals like brass and copper. The reasons why we are unable to accept the submission of the appellants that brass scrap is a 'master alloy', are these. An 'Alloy' is described in "A Dictionary of Metallurgy by A. D. Merriman" thus: "Alloy It is a substance possessing metallic properties and composed of two or more elements of which at least one must be a metal. The term is usually reserved for those cases where there is an intentional addition to a metal for the purpose of improving certain properties. Though pure metals may possess certain useful properties, they seldom possess the strength required for industrial application. Copper is practically the only matter used in bulk in the commercially pure state. In the case of most metals, alloying elements are added to increase the hardness, strength and toughness of the basic metals and to obtain properties which are not found in any of those metals." (page 5). At page 182 of Merriman's book it is stated that: "Master alloy is the name given to an alloy of mixture of elements that is used for introducing desired elements into melten metals in the foundry. .......... and are often used in the ladle to obtain good control over the final product. Also called Foundry Alloy." The book does not mention brass as a master alloy. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 15 Indeed zinc which is a constituent of brass is not mentioned even as one of the constituents of a master alloy. At pages 25 and 26 of "Materials Handbook" by George S. Brady, it is stated: "The commercial utility of alloys arises from the fact that the pure metals are often too soft, weak or rare to be used alone. Thus, copper, a soft metal, when alloyed with the brittle metal zinc, forms a strong, hard alloy, brass, that has wide usage." "A master alloy or a foundry alloy is an alloy used for adding elements in the foundry." Moves to unify tariff classification stem at least from the early days of the League of Nations. In Brussels in 1950, the Customs Co-operation Council was formed by a convention signed by 13 governments of the European Customs union Study Group. The CCC studies customs matters with a view towards simplifying and unifying them and has prepared the "Brussels Tariff Nomenclature" complete with principles of interpretation and an advisory process for settling disputes over the nomenclature. (See pp. 238-239, Section 10, 7 of 'World trade and the law of Gatt' by John H. Jackson, Ed. 1969). According to Brussels Tariff Nomenclature, "Master alloys are generally in the form of small blocks or cakes divided for easy breaking, brittle sticks, or pellets, and have the appearance of crude foundry products." In Hendersons 'Metallurgical Dictionary' (page 206) 'Master alloy' is treated synonymously with 'Foundry alloy' and 'Hardener'. At page 163 of the book the following statement occurs: "Hardener (preliminary alloy; foundry alloy; master alloy; rich alloy) An alloy, rich in one or more alloying elements, that is added to the melt, this procedure permitting closer composition control then is possible with the addition of pure metals; an alloy designed to facilitate adding to a base metal, to make a complete composition, those additive elements that, due to refractoriness or susceptibility to oxidation, do not, as pure metals, readily alloy with the base metal." At page 142 of the book, Foundry alloy which is equated with Master alloy is described as "an alloy of specific composition as, for example, a ferro-alloy, used for making cupola, ladle, or furnace additions." In Osborne's 'Encyclopaedia of the Iron and Steel Industry' (page 195) 'Hardeners' are described as "Master alloys prepared for the purpose of adding small quantities of the desired alloying elements to molten metals." According to Encyclopaedia Britannica (Volume 1, Pages 649-50), "The most common way of preparing alloys is by the melting together of the constituent metals. If the melting points of the metals differ widely, or if one is relatively very reactive, it maybe convenient to prepare first a master alloy, portions of which are then melted with the remaining metals." Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 16 It is clear from these statements, which occur in books which are universally regarded as authoritative, that brass scrap cannot possibly be a 'master alloy'. It is not, in the wildest imagination, an alloy of mixture of elements used for introducing desired elements into melten metals in the foundry. A master alloy is generally called a foundry alloy for the simple reason that it is an alloy used for adding elements in the foundry. Brass scrap does not square with that description and use. The appellants' contention, if accepted, will lead to the anomalous position that all brass articles shall have to be regarded as Master alloys. That will be doing grave violence to the science of Metallurgy: Almost putting the science rather then the metals into a melting pot. As stated at page 22 of Merriman's 'A Dictionary of Metallurgy', "Brass is essentially an alloy of copper and zinc, but for special purposes small proportions of other metals are sometimes added to obtain increased strength and hardness of resistance to corrosion". The book states further at page 23 that "the commonest form of brass (known as 60/40), contains 40% zinc". According to Encyclopaedia Britannica ( Vol. I, page 649 ), "Brass is an alloy of copper and zinc, the copper content usually varying between 57% and 70%. This shows that brass is but an alloy of copper and zinc and is a complete and finished product by itself. Brass or brass scrap is not used as a raw material in the manufacture of other alloys. Therefore, it is not a master alloy. Accordingly, the appellants cannot claim the benefit of Notification No. 97 dated June 25, 1977 on the basis that brass scrap is a Master alloy. That leads to the question as to whether brass sorap is comprehended within the expression 'copper waste and scrap' under Heading No. 74.01/02. Brass, as we have seen is an alloy of copper and zinc, generally in the proportion of 60: 40. Rule 1 of the Rules for the interpretation of the First Schedule (Import Tariff) to the Tariff Act, 1975 provides that for legal purposes, classification shall be determined according to the terms of the Headings and any relative Section or Chapter Notes and, provided such Headings or Notes do not otherwise require, according to the provisions contained in the following Rules. By Rule 2 (b), the classification of goods consisting of more than one material or substance shall be according to the principles contained in Rule 3. Rule 3, on its own terms, is applicable only when goods are prima facie classifiable under two or more Headings. But by reason of Rule 2 (b), the principles contained in Rule 3 will apply to the classification of brass scrap since it consists of more than one material or substance, namely, copper and zinc That is, of course, if the Rules, apart from Rule 1, are at all attracted. Under clause (a) of Rule 3, the Heading which provides the most specific description shall be preferred to Headings providing a more general description. Under clause (b) of Rule 3, Mixtures and composite goods which consist of different materials or are made up of differents and which cannot be classified by reference to clause (a) shall be classified as if they consisted of the material or component which gives the goods their essential character, in so for as this criterion is applicable. Rule 4 provides that, goods not falling within any Heading of the Schedule shall be classified under the Heading appropriate to the goods to which they are most akin. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 17 We will immediately proceed to consider the impact of these rules on the case on hand but, before doing so, it must be mentioned and appreciated that the sole ground on which the appellants claim exemption from payment of duty to the extent of 60% under Notification No. 97 dated June 25, 1977 is that brass scrap, being a master alloy, is an article other than 'copper waste and scrap' or 'unwrought copper'. Once that contention is rejected, the appellants cannot claim the benefit of the said Notification. However, in order not to leave scope for needless litigation in future, we must examine the question whether the item 'copper waste and scrap' under Heading No. 74. 01/02 includes brass scrap. Besides, by the second Notification, No. 156 dated July 16, 1977 'copper waste and scrap' falling under the same Heading were exempted from so much duty of customs as exceeded 80% ad valorem. The contention of the Attorney General is that copper waste and scrap, includes brass which at once leads to two consequences: The first Notification is not attracted and the second Notification would apply. Turning to Rule 1 of the Import Tariff, insofar as relevant, classification has to be determined according to the terms of the Headings; and, provided such Headings do not otherwise require, classification has to be determined according to the provisions of the rules following Rule 1. Heading No. 74.01/02 are consists of four items: (i) Copper matte, (ii) unwrought copper (refined or not), (iii) copper waste and scrap, and (iv) master alloys. Insofar as the terms of Heading No. 74.01/02 are concerned, the primary conclusion to which we have come is that brass scrap is not a master alloy. It is nobody's case that brass scrap belongs to either of the first two categories, namely, copper matte or unwrought copper. The only question then is whether the third item 'copper waste and scrap' includes brass scrap. Putting Rule 1 in simple language, classification has to be determined according to the description of the article in the Heading and, if the Heading or a Note does not otherwise require, according to the provisions of the other Rules and Notes. In the instant case, the terms of the relevant Heading do not, by themselves, yield an answer to the question whether copper waste and scrap includes brass scrap. But, the particular Heading does not require or provide that the other rules should be excluded while determining the classification of articles under that Heading. That is how, Rules 2 to 4 become relevant for deciding the question whether 'copper waste and scrap' includes brass scrap. What is meant by the clause in Rule 1: "and provided such Headings or Notes do not otherwise require" is not that a Heading must require that the provisions contained in the rules following Rule 1 should be applied. What it means is exactly the opposite, namely, that if a Heading does not require the exclusion of the other rules, those other rules must also be applied for determining the classification of an article. Therefore, all the relevant rules of interpretation in the Import Tariff come into play in the classificatory process. Rules 2 to 4 of the Import Tariff are not a mere adornment. Nothing ever is an adornment in an Import Tariff. Therefore, classification has to be determined both according to the terms of the Headings and according to the provisions of the rules unless a particular Heading or Note excludes the application of rules other then Rule 1. Accordingly, we must turn to Rules 2 to 4 for determining the classification of Brass Scrap. By reason of the concluding part of Rule 2 (p) classification of goods consisting of more then one material or, substance shall be according to the principles contained in Rule 3. Clause (a) of Rule 3 has no application. Applying the principle contained in Rule 3 (b), which is relevant for our purpose, brass is a mixture of copper and zinc, usually in the proportion of 60: 40 (See pages 22 and 23 of Marriman's 'A Dictionary of Metallurgy') but, in which the component of copper may be any where Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 18 between 67% and 70% (See Encyclopaedia Britannica, Volume I, page 649 ). Since copper gives its 'essential character' to brass, brass scrap has to be classified as 'copper waste and scrap' within the meaning of Heading No 74. 01/02. Alternatively, Rule 4 would yield the same result if it is assumed, for which there is no justification, that brass scrap does not fall within any Heading of the First Schedule. If it does not, it has to be classified, by reason of Rule 4, under the Heading appropriate to the goods to which it is most akin. Brass, unquestionably, is most akin to copper and therefore brass scrap has to be classified as 'Copper Waste and Scrap'. We may usefully turn to the Notes to Section XV of the First Schedule (Import Tariff), which is called 'Base metals and Articles of Base Metal'. Clause (a) of Note 3 provides that an alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals. Since brass is an alloy of copper and zinc in which copper predominates by weight, brass has to be classified as an alloy of copper. Therefore, 'Copper Waste and Scrap' includes brass scrap. According to Note 4, unless the context otherwise requires, any reference in the First Schedule to a base metal is to be taken to include a reference to alloys which, by virtue of Note 3, are to be classified as alloys of that metal. Heading No. 74. 01/02 of the First Schedule refers to copper waste and scrap. Copper is a base metal. Reference to copper in that Heading would include reference to Brass since, by virtue of Note 3, brass has to be classified as an alloy of copper. Therefore, 'copper waste and scrap' includes 'Brass Scrap'. The appellant relied upon certain documents issued by the Merchants' Association and upon extracts from 'Indian Standard Coding and Classification for non-ferrous scrap metals' to show that brass scrap and copper are regarded as distinct and separate items for commercial purposes. Such considerations cannot furnish a true answer to the question before us because, the distinguishing feature is that, here brass and copper are not mentioned as separate items in the Import Tariff. It is because of the absence of such specific, separate specification of these two items that the question arises whether, under Heading No. 74. 01/02, 'Copper Waste and Scrap', includes 'brass scrap'. Reliance was also placed by the appellants on certain exemption Notifications, referred to earlier, as affording intrinsic evidence to show the contemporaneous understanding of the framers of such Notifications. True, that such understanding is a legitimate aid to interpretation but, we cannot decide the question of classification of goods under the 'Import Tariff' by implications, when there are Rules of Interpretation which are specially framed to aid and assist the classification of goods under appropriate Headings. Those rules must have precedence over other aids of interpretation. Notification No. 156 of July 16, 1977 exempts 'copper waste and scrap' from so much of the duty of customs as is in excess of 80% ad valorem. Since brass scrap is includible in the expression 'copper waste and scrap' and since, brass scrap is not a 'Master alloy', the appellants' case would fall under this Notification. Accordingly, they would be entitled to exemption from customs duty to the extent of 20% only. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 19 The next question which is raised by some of the appellants is as to whether the imposition of Excise duty on 'waste and scrap', which is referred to in clause (1b) of Entry 26 A of the First Schedule to the Central Excises and Salt Act, 1944 is either ultra vires section 3 of that Act or beyond the legislative competence of the parliament. Section 3 of the Act of 1944 provides that there shall be levied and collected duties of excise on all excisable goods, other than salt, which are produced or manufactured in India. The question as to whether 'waste and scrap' can be regarded as capable of being produced or manufactured, the appellants' argument being that it cannot be so regarded, has already been answered by us in the affirmative. The production of waste and scrap is a necessary incident of the manufacturing process. It may be true to say that no prudent businessman will intentionally manufacture waste and scrap. But, it is equally true to say that waste and scrap are the by-products of the manufacturing process. Sub-standard goods which are produced during the process of manufacture may have to be disposed of as 'rejects' or as scrap. But they are still the products of the manufacturing process. 'Intention' is not the gist of the manufacturing process. We have already dealt with this aspect of the matter and do not consider it necessary to elaborate upon it any further. The argument of legislative competence of the Parliament is a facet of the same contention. Section 3 of the Act of 1944 brings to duty excisable goods produced or manufactured in India. Section 2 (d) of the Act defines 'excisable goods' to mean goods which are specified in the First Schedule as being subject to a duty of excise. Therefore, the goods mentioned in the First Schedule will attract excise duty under section 3 only if they are manufactured in India and not otherwise. Entry 26A (1b) of the First Schedule of the Act of 1974 cannot be held to be beyond the legislative competence of the Parliament because, the pre-condition of the excisability of the articles mentioned therein, namely, waste and scrap, is in the manufacturability of those articles. Since the production of waste and scrap is an integral part and an inevitable incident or the manufacturing process, Parliament has the legislative competence to make 'waste and scrap' excisable under Entry 84 of List I of the Seventh Schedule to the Constitution, which relates to 'Duties of excise on Tobacco and other goods manufactured or produced in India", except certain intoxicants and narcotics. On the question of the legislative competence of the Parliament to incorporate Entry 26A (1b) in the First Schedule to the Act of 1944, it must be added that the proper approach is to determine whether the subject-matter of a legislation falls in List II, the State List, which is the only field which the parliament cannot enter. If it does not fall in List II, Parliament would have the legislative competence to pass the law by virtue of Article 248 read with the residuary Entry 97 of List I. This is clear from the decisions of this Court in Second Gift Tax Officer, Mangalore v. D. H. Nazareth and Union of India v. H. S. Dhillon The cases relied upon by the appellants, namely, The Hingir-Rampur Coal Co. Ltd. v. The State of Orissa, Kalyani Stores v. The State of Orissa, A. B. Abdul Kadir v. State of Kerala and Mc. Dowell & Company Ltd. v. Commercial Tax Officer, VII Circle, Hyderabad, relate to State legislations, namely, The Orissa Mining Fund Act, The Bihar and Orissa Excise Act, The Kerala Luxury Tax on Tobacco (Validation) Act and the Andhra Pradesh General Sales Tax Act respectively. Those cases are therefore, not relevant for deciding upon the competence of the Parliament to enact the impugned law. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 20 We may sum up our conclusions thus : (1) The charging section under which duties of customs are leviable is section 12 of the Customs Act, 1962 read with section 3 (1) of the Customs Tariff Act, 1975. (2) 'Additional duty' which is mentioned in section 3 (1) of the Customs Tariff Act, 1975 partakes of the same character as the Customs duty since, it is in addition to the duty which is leviable under section 12 of the Customs Act, 1962, the rates for which are prescribed by section 2 of the Tariff Act, 1975. The duty mentioned in section 3 (1) of the Tariff Act, 1975 is not countervailing duty. (3) Section 3 (1) of the Tariff Act, 1975 provides a measure of the additional duty, which has to be "equal to the excise duty" leviable on a like article if produced or manufactured in India, as defined in the Explanation to that section. The measure of a tax or duty cannot determine its nature or character. (4) The brass scrap which is imported into India by the appellants is liable to the levy of additional duty mentioned in section 3 (1) of the Tariff Act, 1975 because, the taxable event is the import of the goods into India and not their manufacture. (5) The duty referred to in section 3 (1) of the Tariff Act, 1975 is, therefore, leviable even if the goods imported into India are not capable of being manufactured in India or are not in fact manufactured in India. (6) The expression "excise duty for the time being leviable on a like article if produced or manufactured in India", which occurs in section 3 (1) of the Tariff Act, 1975 means excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs. (7) Even if the duty referred to in section 3 (1) of the Tariff Act, 1975 is regarded as in the nature of a countervailing duty, the brass scrap imported by the appellants would still be liable to the levy of that duty. The reason is that scrap or waste is a by-product of manufacture and, is an integral part and an inevitable incident of the manufacturing process. Brass scrap is manufactured or happens to be manufactured in India. It is well-known as a marketable commodity, both of Indian and foreign origin. The brass scrap produced in India must receive protection by the imposition of a countervailing duty on imported brass scrap. (8) The brass scrap imported by the appellants falls under Exemption Notification No. 97 dated June 25,1977 and not under Exemption Notification No. 156 dated July 16, 1977. The reason is two-fold: one, that within the meaning of Heading No. 74. 01/02 of the First Schedule to the Tariff Act, 1975, brass scrap is not a 'Master alloy'; and two, that it is comprehended within the expression copper waste and scrap' in that Heading. The appellants are, therefore, entitled to exemption from duty of customs to the extent of 20% only and not to the extent of 60%. (9) Clause (1b) of Entry 26A of the First Schedule to the Central Excises and Salt Act, 1944 is not ultra vires section 3 (1) of that Act. The reason is that 'waste and scrap' referred to in that Entry is excisable to duty if it is produced or manufactured in India. Waste and scrap are by-products of the process of manufacture and are inevitable incidental to the manufacturing process. (10) The said Entry, namely, Entry 26A (1b) of the First Schedule to the Act of 1944 is within the legislative competence of the Parliament because, the duty of excise is attracted under the Central Excises and Salt Act, 1944, only if the goods are produced or manufactured in India. The impugned provision falls within Entry 84, List I, of the Seventh Schedule to the Constitution. Even otherwise, Parliament would have the legislative competence to pass the law because of the combined operation of Article 248 and Entry 97, List I, of the Seventh Schedule. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 21 In the result, the judgment of the High Court, which is marked with care, is confirmed and these Appeals and the Special Leave petitions are dismissed with costs. Writ Petition No. 3761 of 1982, in which Mr. Abdul Khadar appears, relates to 'copper fungicide'. That Writ Petition was delinked from the other cases since the pleadings therein are not complete. That Writ Petition and all other cases involving import of copper scrap may be listed for hearing at an early date. A.P.J. Appeals and Petitions dismissed. Khandelwal Metal & Engineering ... vs Union Of India And Others on 11 June, 1985 Indian Kanoon - http://indiankanoon.org/doc/570928/ 22

trial9.pdf

Delhi District Court M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Author: Sh. Lokesh Sharma IN THE COURT OF SHRI LOKESH KUMAR SHARMA ADDITIONAL SESSIONS JUDGE−04, NEW DELHI DISTRICT PATIALA HOUSE COURTS, NEW DELHI Unique I D No. : 02403R0184312013 Criminal Revision Number : 57/2/14 dated 07.02.2014 CC No. : 20/1/13 PS : Chanakyapuri U/s : 499/500 IPC M/s Jindal Steel & Power Ltd. Through its Director Sh. Rajeev Bhaduria Jindal Centre, 12 Bhikaji Cama Place, New Delhi−110066 ....Revisionist/Petitioner versus 1) The State Through Additional Public Prosecutor 2) Planman Media Pvt. Ltd. (Owner of the Sunday Indian) IIPM Tower, C−56/30, Sector−62, Noida−201301 UP 3) Mr. Arindam Chaudhuri Editor in Chief The Sunday Indian CR No. 57/2/14 M/s Jindal Steel & Power Ltd Vs State & Ors. IIPM Tower C−56/30, Sector−62, Noida−201301 UP 4) Mr. A. Sandeep Editor The Sunday Indian IIPM Tower C−56/30, Sector−62, Noida−201301 UP M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 1 5) Mr. Ashok Bose Publisher The Sunday Indian IIPM Tower C−56/30, Sector−62, Noida−201301 UP ..... Re Revision received by Court: 07.02.2014 Arguments concluded : 28.10.2014 Date of order : 13.11.2014 :ORDER: 1 By way of the present revision petition, the petitioner has challenged the CR No. 57/2/14 2/32 M/s Jindal Steel & Power Ltd Vs State & Ors. impugned order dated 04.10.2013 passed by the court of Ms. Gomati Manocha, Ld. MM−02, New Delhi in CC No. 20/1/13 titled as Jindal Steel & Power Ltd Vs Planman India Pvt. Ltd & Ors., whereby the Ld. MM was pleased to decline issuance of summons against the respondents herein for commission of an offence under section 499, 500 IPC related to criminal defamation of petitioner as alleged in the complaint filed before the Ld. Trial Court and was further pleased to dismiss the said complaint as filed by the complainant before the trial court. 2 Briefly stated the facts that had given rise to the filing of the present revision petition are succinctly given as under: As per the complainant/petitioner herein, petitioner is a listed public company incorporated under the Companies Act 1956 having its registered office at OP Jindal Marg, Hissar and corporate office at Jindal Centre, 12 Bhikaji Cama Place, New Delhi−110066 and Sh. Rajiv Bhaduria, one of its directors had been authorized to file present petition on its behalf vide Board Resolution dated 10.01.2013. On 04.01.2012 the respondent nos. 3 to 5 had edited, printed, published and circulated a special story carrying the title "shooting the messenger literally" and "After khap and coalgate, Now Naveen Jindal Spars with Zee" (offending article) in the magazine tiled "The Sunday Indian". As alleged the offending article was published without due care, caution, just or CR No. 57/2/14 3/32 M/s Jindal Steel & Power Ltd Vs State & Ors. reasonable cause and without even verifying the basic facts either from the petitioner or concerned authorities and amounted to a deliberate attempt on the part of all the respondents to create a wrong impression in the minds of general public concerning the petitioner as if the petitioner was involved in the alleged "coalgate scam" with the sole intention to defame and lower down the position of the petitioner publically by sensationalization and distortion of facts. The offending article was not only per−se defamatory and motivated but also contained false, baseless and M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 2 misleading statements / allegations against the petitioner. The respondent nos. 2 to 5 were served with a legal notice dated 15.11.2012, on behalf of the petitioner, bringing to their notice that the contents of the offending articles published by them on 04.11.2012 were false and defamatory and they were also requested to immediately withdraw the contents of the offending article and also to tender an express, unqualified and unambiguous apology to the petitioner but despite that they had not done so and had further gone ahead with publishing another defamatory article titled "The Hounding of Zee" against the petitioner in the magazine "The Sunday Indian" on 23.12.2012, thereby falsely conveying that the petitioner and its officials were dishonest and had unjustly enriched themselves at the cost of public monies. The contents of those articles were stated to be not only knowingly in−accurate, misleading, hurtful, biased, regressive, malicious, CR No. 57/2/14 4/32 M/s Jindal Steel & Power Ltd Vs State & Ors. slanderous and per−se defamatory in nature qua petitioner and its management but were also published without seeking any verification either from the petitioner or from the concerned public authorities. Hence, the petitioner was constrained to file before the trial court a complaint for the commission of offences u/s 499, 500, 501, 502 IPC r/w section 34/120B IPC, explaining specific role played by each of the aforesaid respondents in commission of said offences. 3 The Ld. Trial court vide its order dated 01.02.2013 after taking cognizance of the offences was pleased to direct the complainant to lead its pre−summoning evidence. Thereafter, the petitioner had examined three witnesses namely CW−1 Sh. Rohit Kumar, CW−2 Sh. Rajiv Bhaduria and CW−3 Sh. Sanjay Kumar in its pre summoning evidence. After hearing arguments, the Ld. Trial court had dismissed the complaint filed by the complainant/petitioner vide impugned order dated 04.10.2013. 4 The petitioner had challenged the aforesaid impugned order on the following amongst other grounds: a) That the impugned order suffered from illegality, impropriety and material irregularity in as much as it was contrary to the provisions of Cr.P.C., IPC and the facts on record and the Ld. Trial Court instead of focusing on the defamatory nature of the offending articles was not even competent to arrive at the said finding related to the passing references of CAG report qua the CR No. 57/2/14 5/32 M/s Jindal Steel & Power Ltd Vs State & Ors. petitioner and those findings of the Ld. Trial Court were attributed to the petitioner as an admission on its part and thus the same being contrary to the record, would have directly prejudiced the investigation being carried out in the allocation of coal blocks and also the investigation into the illegal acts of the reporters of the "Zee Group".It has also been stated that even the reliance on the said CAG report as placed by the petitioner was only in furtherance of its bona fide conduct to disclose all facts to the Ld. Trial Court and not as an admission of its contents and the petitioner had, at no point of time, either in the pleadings or in the testimony of CWs or during the course of arguments, had ever admitted to any wrong doing or illegality either being committed by it or by the government/concerned ministries/agencies and hence the findings of the Ld. Trial Court on this aspect were not only misleading but were also beyond its jurisdiction. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 3 b) It has also been stated that the aforesaid two offending articles were published by the respondents herein with the knowledge and belief that the same would have certainly caused harm to the reputation, image and goodwill of the petitioner and the Ld. Trial Court had ignored the same and had erroneously proceeded on the premises that intention was the sine qua non for the offence of defamation, and the impugned order had been passed by the Ld. MM without appreciating the relevant and material testimonies of CW1 and CW3 and on this very ground the present revision petition deserved to be CR No. 57/2/14 6/32 M/s Jindal Steel & Power Ltd Vs State & Ors. allowed. c) It has been stated further that the Ld. Trial Court had also failed to appreciate the fact that the media did not have the right or license to defame any person. The law of defamation treated all citizens equally in this regard. Publishing houses were in no different position than that from an individual. Media was also subject to the same rules as were applicable to others and no special rights or privileges were granted to them under the law. Journalists rather had a greater responsibility to guard against false statements for the simple reason that their utterances had a far larger reach and impact than the utterance of an individual and they were more likely to be believed by ignorant people. d) The Ld. Trial Court had also failed to appreciate the ratio of judgments (1) passed by the Hon'ble High Court of Calcutta in the case of Santosh Kumar Chatterjee v. Radhika Ranjan Ghose & Anr, reported in 66 CWN 24; (2) K.M. Mathew v. K.A. Abraham & Ors, 2002(6) SCC 670; (3) K. Gopalakrishnan & Ors v. A.C. Thomas & Anr, 2008(1) KLJ 385 and P.A. Abdul Hakkim & Anr. v. Ramesan & Anr 207 (1) KLJ 726, while passing the impugned order, as the false and incorrect statements published by the respondents no. 2 to 5 about the Chairman of the petitioner company were, malicious and malafide, which were published in the form of two offending articles with an intention to malice the position of Chairman of the petitioner CR No. 57/2/14 7/32 M/s Jindal Steel & Power Ltd Vs State & Ors. company which would have caused a direct loss to the reputation of petitioner as well and hence those acts of respondents no. 2 to 5 had squarely fallen within the four corners of the offence of defamation. 5 I have heard Sh. Amit Sibbal, Ld. Sr. Counsel alongwith Sh Madhav Khurana, Ld. Counsel for the petitioner, Sh Ravinder Bhati, Ld. Addl. PP for the respondent/state and also Sh. Amit Sharma, Ld. Counsel for the remaining respondents and have considered the rival contentions of the respective parties. 6 In order to appreciate the respective contentions raised before this court by the respective parties,it shall be worthwhile to examine the provisions of sections 449 and 500 IPC, which are reproduced here as under: S. 499. Defamation.−−−Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 4 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. CR No. 57/2/14 8/32 M/s Jindal Steel & Power Ltd Vs State & Ors. Explanation 3.−−An imputation in the form of an alternative or expressed ironically, 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 loathsome state, or in a state generally considered as disgraceful. S.500. Punishment for defamation.−−−Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 7 In the light of the facts and circumstances of the present case, Sh. Amit Sharma, Ld. Counsel appearing for respondents no. 2 to 5 has submitted that prima facie it is Naveen Jindal who is trying to initiate the litigations under the garb of the petitioner which is a separate juristic identity and had its own individual legal rights as well as obligations and since nothing defamatory in particular has been averred against the petitioner in those articles, hence, the petitioner itself has no locus standi to plead and peruse the case on behalf of Naveen Jindal. Besides this, Ld. Counsel appearing for the respondents no. 2 to 5 has also taken the plea of defence of fair reporting available to the CR No. 57/2/14 9/32 M/s Jindal Steel & Power Ltd Vs State & Ors. respondents while publishing any article in public interest at large and has also relied upon factors and parameters for consideration to be borne in mind by the court while issuing orders of summoning of the respondents no. 2 to 5 as accused in this case as personal liberty of an individual is always at stake in criminal proceedings. 8 Reliance has also been placed on the citation reported as "President and Directors of Agricultural Produce Cooperative Marking Society Ltd. v. M K Mohamed Ali & Ors", MANU/KA/0201/1967: 1969 Crl. L. J 701, wherein the Hon'ble High Court of Mysore had held as under: "Evidently it appears that the Magistrate had gone into the merits of the case which he should not have done. For the purpose of ascertaining whether the complaint M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 5 petition was maintainable or not, or whether the court had jurisdiction to entertain the same, the complaint petition itself ought to have been looked into. The Magistrate was not right in adverting himself to the merits of the case." (Para 11) 9 Reliance has also been placed on the ratio of judgment cited as "Homen Borgohain and ors v. The Brahamaputra Valley Regional Handloom Weaver's Cooperative Society Ltd", MANU/GH/0074/1994 : 1995 Cr. L.J. 2357 wherein the Hon'ble High Court of Gauhati had held as under: CR No. 57/2/14 10/32 M/s Jindal Steel & Power Ltd Vs State & Ors. "Case of petitioner was that accused made some statements defaming only President and Directors of Society and not of Society itself--Since a compliant by an aggrieved person was a condition precedent to jurisdiction of a Court to deal with offences mentioned in section 198 CrPC (old) a complaint by Society which was not aggrieved person held to be a nullity--Further, complaint was not maintainable since an offence under section 500 IPC could not be gone into in absence of person aggrieved--Hence, complainant Society not being person aggrieved had no locus standi to file complaint for defamation and accordingly proceeding in complaint which was pending was liable to be quashed." 10 Ld. Counsel appearing for the respondents has also relied upon the ratio of judgment in case "Jawaharlal Darda and others v. Manohar Rao Ganpat Rao Kapsikar" (1998) 4 SCC 112, wherein it had been held by the Hon'ble Apex Court as under: "..True report--If defamatory--Publication of news item disclosing accurate and true report of proceedings of Legislative Assembly--Statement of Minister disclosing misappropriation of govt. fund--Name of complainant mentioned as one of the persons involved in such misappropriation--Circumstances disclosing that the news item was published about public conduct of public servants for public good in good faith believing the statement to be true." (Head Notes) CR No. 57/2/14 11/32 M/s Jindal Steel & Power Ltd Vs State & Ors. 11 Reliance has also been placed on the judgment in the case of "Vadilal Panchal v. Dattatraya Dulaji Gha Digaonkar and Anr.", 1960 Crl. L. J, 1499, wherein it had been held by the Hon'ble Apex Court as under: " The general scheme of the aforesaid sections is quite clear. Section 200 says inter alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 6 for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial. Section 203, be it noted, consists of two parts; the first part indicates what are the materials which the Magistrate must consider and the second part says that if after considering those materials there is in his judgment CR No. 57/2/14 12/32 M/s Jindal Steel & Power Ltd Vs State & Ors. no sufficient ground for proceedings, he may dismiss the complaint. Section 204 says that if in the opinion of Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process." (Para 9) Now, in the case before us it is not contended that the learned Presidency magistrate failed to consider the materials which he had to consider, before passing his order under section 203 CrPC. As a matter of fact the learned magistrate fully, fairly and impartially considered these materials. What is contended on behalf of the respondent−complainant is that as a matter of law it was not open to the learned magistrate to accept the plea of right of self−defence at a stage when all that he had to determine was whether a process should issue or not against the appellant. We are unable to accept this contention as correct. It is manifestly clear from the provision of section 203 that the judgment which the magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. The Section itself makes that clear, and it is not necessary to refer to authorities in support thereof. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment he is not CR No. 57/2/14 13/32 M/s Jindal Steel & Power Ltd Vs State & Ors. fettered in any way except by judicial considerations; he is not bound to accept what the Inquiring Officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an enquiry under section 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses−−all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions. (Para 10) 12 However, this judgment as cited and relied upon by Ld. Counsel for the respondents no. 2 to 5 is of no use and avail to them and is distinguishable on the basis of the facts of the present case where provisions of section 203 CrPC were never even resorted to by the Ld. Trial Court. 13 Ld. Counsel appearing for the M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 7 respondents has also placed reliance on the judgment in the matter of "Pepsi Foods ltd. And another v. Special Judicial Magistrate and others", (1998) 5 SCC 749, the Hon'ble Supreme Court had CR No. 57/2/14 14/32 M/s Jindal Steel & Power Ltd Vs State & Ors. held as under: " Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complaint and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." (para 28) 14 Reliance has also been placed on the judgment in the case of "Hydru v. State of Kerala" (2004)13 SCC 374 wherein the Hon'ble Apex Court had held as under: "...It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any CR No. 57/2/14 15/32 M/s Jindal Steel & Power Ltd Vs State & Ors. procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower. ... " (Para 3) 15 Besides this, reliance has also been placed by Ld. Counsel for the respondents no. 2 to 5 on some of the extracts of CAG report. However, findings of the CAG report are irrelevant to the facts of the present case as they are per−se not−admissible in evidence and are required to be proved in ordinary manner as provided under Indian Evidence Act. 16 Per contra, Sh. Amit Sibbal, Ld. Sr. Counsel appearing for the petitioner has vehemently argued and emphasized the fact that provisions of section 499 and 500 IPC related to the offence of defamation do not talk about actual victim who had been actually defamed by any liable or slander. Rather it talks about "person aggrieved" and this term itself is a matter of trial as the person who had been actually aggrieved by the publication of an article cannot be identified unless suitable evidence to that effect had been adduced on record and hence it was submitted by Ld. Sr. Counsel for the petitioner that the trial court was not justified in M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 8 denying this right to the petitioner to prove on record CR No. 57/2/14 16/32 M/s Jindal Steel & Power Ltd Vs State & Ors. by adducing suitable evidence that it was actually falling within the definition of term " person aggrieved" and not otherwise and thus, the Ld. MM had further erred in making the observations purely based on surmises and conjectures motivated by her personal observations. 17 So far as the locus standi of the petitioner to file such a complaint is concerned, Ld. Sr. Counsel appearing for the petitioner has relied upon the ratio of the case in "Santosh Kumar Chatterjee v. Radhika Ranjan Ghose & Anr", reported in 66 CWN 24, wherein it has been held as under:− "The contention that out of the various modes described in Explanation 4 of section 499 IPC in which imputation to harm a person's reputation may be made, only an imputation lowering the credit of the person is the mode in which there can be any defamation of an association, is not correct. An association may also be defamed by an imputation which lowers the moral character of the members of the association collectively. In the instant case, that is what was done by the publication relating to the Students' Welfare Association and therefore it amounted to defamation of the members of the association as an association and as such the accused petitioner is guilty of the offence under section 500 of the Indian Penal Code." 18 Similarly, reliance has also been placed on citation of case "John Thomas v. Dr. K. Jagdeesan" (2001) 6 SCC 30, wherein the Hon'ble Supreme Court was pleased to hold as under: CR No. 57/2/14 17/32 M/s Jindal Steel & Power Ltd Vs State & Ors. "Criminal Procedure Code, 1973--S. 199-- Defamation−−Locus standi to file complaint−−"Some person aggrieved by the offence"−−Even if the libelous imputations are not made directly against a person but he has reasons to feel hurt on account of the same, he has locus standi to file a complaint--Where defamatory publications are made against a private limited company, its Director can file the complaint--Penal Code,1960, S.499 Expln. 2. Held: The collection of the words "by some persons aggrieved in Section 199 definitely indicates that the complaint need not necessarily be the defamed person himself. Whether the complainant has reasons to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities, its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. As the hospital against which imputations were published in the present case is a private limited company, it is too far−fetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the company." ( Head Note:B) "The collection of the words "by some persons aggrieved" definitely indicates that the complainant CR No. 57/2/14 18/32 M/s Jindal Steel & Power Ltd Vs State & Ors. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 9 need not necessarily be the defamed person himself. Whether the complainant has reasons to feel hurt on account of the publication is a matter to be determined by the court depending upon the facts of each case. If a company is described as engaging itself in nefarious activities its impact would certainly fall on every Director of the company and hence he can legitimately feel the pinch of it. Similarly, if a firm is described in a publication as carrying on offensive trade, every working partner of the firm can reasonably be expected to feel aggrieved by it. If K.J. Hospital is a private limited company, it is too far−fetched to rule out any one of its Directors, feeling aggrieved on account of pejoratives hurled at the Company. Hence, the appellant cannot justifiably contend that the Director of K.J. Hospital would not fall within the wide purview of "some person aggrieved" as envisaged in Section 199(1) of the Code." ( Para 13 ) 19 So far as the plea of defence of fair reporting as taken by Ld. Counsel appearing for the respondents no. 2 to 5 is concerned, Ld. Counsel for the respondent has also relied upon the ratio of the case "Sewakram Sobhani v. R K Karanjia" (1981)3SCC 208, very famous case, also commonly known as "Blitz case", which has also been relied upon by the Ld. Sr. Counsel appearing for the petitioner, wherein the Hon'ble Apex Court was pleased to issue guidelines to the print media regarding reporting of matters and cautions to be observed by them while reporting such cases and emphasis in this regard CR No. 57/2/14 19/32 M/s Jindal Steel & Power Ltd Vs State & Ors. has been placed by the Ld. Sr. Counsel appearing for petitioner on paras 11 and 12 of the judgment, which are reproduced below: "The High Court appears to be labouring under an impression that journalists enjoyed some kind of special privilege, and have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. We hasten to add that journalists are in no better position than any other person. Even the truth of an allegation does not permit a justification under the First Exception unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant fact in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases specified in the Ninth Exception, show that the attack on the character of another was the public good, or that it was made in good faith." (Para 11) "The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dis−mentation of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his petition." CR No. 57/2/14 20/32 M/s Jindal Steel & Power Ltd Vs State & Ors. (Para 12 quoting the observations made by Lord Shaw in Arnold v. King Emperor (1913−14) 41 IA 149, 169.) 20 So far as the reasonings given by the Ld. MM in the impugned order related to the rights of journalists and probable defence arising in their favour as considered by the Ld MM is M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 10 concerned, the Ld. Sr. Counsel appearing for the petitioner has placed reliance on the citation of case titled "Balraj Khanna & ors v. Moti Ram" 1971(3) SCC 399, wherein the Hon'ble Apex Court had categorically held that the questions related to the probable defences as provided in exceptions to section 499 IPC cannot be considered by the Magistrate at the initial stage of summoning and it is for the accused to take such defence during the trial and also to prove it in accordance with law. 21 The same was the view of the Hon'ble Apex Court in "Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi & ors." (1996) 6 SCC 263. 22 Now, if in the light of the aforesaid submissions and arguments of the respective parties, the impugned order is examined to ascertain its correctness, legality and propriety, then I have no hesitation in holding that the very perusal of the impugned order makes it amply clear that it is a fit case where this court must exercise its revisional jurisdiction to set aside the same as it suffers from various patent illegalities and irregularities committed by the Ld. MM while passing the same, as a bare perusal of the articles in question against which the present complaint was filed by the petitioner before CR No. 57/2/14 21/32 M/s Jindal Steel & Power Ltd Vs State & Ors. the Ld. MM, makes it amply clear that the author of the same had cited and quoted the petitioner to be a company solely owned by Naveen Jindal by regarding the petitioner as a company owned by industrialist turned MP in the opening para of the said article. 23 In the second para of the said article at the bottom line at page 40 it was observed by the author that his (referred to Naveen Jindal) company had been accused of getting coal filed allocated in February 2009 with reserves of 1500 million metric tonnes in contraventions of rules and regulations. Similarly, in the last concluding line of para 3 of the said article it had been mentioned by the author that it was the petitioner company from whom the editors of Zee News had demanded money in exchange for favor of not airing news on JSPL's Coalgate involvement and in the following para the author had gone to the extent of making a remarks/observations in the following words: "What is interesting however is how the counter sting has been successful in replacing news stories about Jindal's involvement in Coalgate with stories of alleged blackmailing by media outlets of companies. A diversionary coup by JSPL no doubt. ... JSPL has achieved its purpose by this counter sting. Nobody is talking about the Coalgate scam worth thousands of crores now and all attention is on the Rs. 50 crore allegedly demanded by a TV news outfit." 24 Further in the next following para, the author had written that even CR No. 57/2/14 22/32 M/s Jindal Steel & Power Ltd Vs State & Ors. Naveen Jindal had continued to deny his involvement in the Coalgate block allotted to his company which had come under the scanner in September this year (referring to year 2012) and in 2010, the Jindal companies were also issued show cause notices for not carrying out any mining activities in the awarded coal block. 25 The aforesaid observations have now been quoted in this order only as a passing reference. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 11 26 Perusal of the entire article running into two pages goes to clearly show that the author had frequently used the terms "Naveen Jindal" as well "JSPL" as substitutes for each other rather than using them under correct legal parlance and even in the photo of Naveen Jindal as was appearing at page 41 of the said article, he had been shown as Chairman of the company with a caption that another coal mine block allotted to his company came under the scanner in September this year and in the last concluding sentence of the said article, the author had raised the question which remained to be answered, "whether scam money can really buy you true legitimacy?". 27 From the perusal of the aforesaid entire article, it becomes an apparent truth on record that while quoting the references as well as responses received not only from the editors of Zee News, i.e. Sudhir Chaudhary and Samir Ahluwalia, the author of the said article had also gone far ahead to take the version of one Ramesh Aggarwal, an alleged RTI activist who had leveled CR No. 57/2/14 23/32 M/s Jindal Steel & Power Ltd Vs State & Ors. allegations against the petitioner's company entering into a conspiracy to get rid of him. Not only this, but also, it is apparent that on the following page of this article of said magazine, it had also published the interviews of Sudhir Chaudhary and Samir Ahluwalia in which again the aforesaid two persons had not only given clarifications on their stand but also casted serious allegations on the petitioner way of conducting the business as well as its reputation. 28 It is interesting to note here itself that neither the author had claimed to have ever contacted the petitioner company for seeking any clarification on the allegations leveled against it by various persons including the Zee News editors as well as the said RTI activities nor it was claimed in the article that though sufficient attempts were made by the author of the same to seek clarification from the petitioner company, but it was the petitioner who had declined to respond to his request as well as all the allegations so leveled against it were leveled single handedly without even caring or bothering to seek its stand on the same. 29 Even the CAG in its report had not raised any issue of any irregularities committed by the petitioner's company in acquiring the said coal mines and complete process and procedure of allocation and allotment of coal mines is still under investigation under the supervision of the Hon'ble Supreme Court and no conclusive finding till date has been reported in relation to any of the alleged scams as had been cited in the said article. In the absence of any such CR No. 57/2/14 24/32 M/s Jindal Steel & Power Ltd Vs State & Ors. judicial verdict having come on record in respect of any of the players in the said Coalgate scam, the article in question, as cited, had convicted not only the petitioner but also its Chairman in a trial that had been conducted and concluded by it alone and without even their being put to trial in any case whatsoever before a competent court having jurisdiction over the matter in controversy. Thus, the petitioner had been made a victim of Media−trial. 30 So far as the testimonies of CWs examined by the petitioner before the Ld. MM and their impact is concerned, though Ld. MM had mentioned about the same in brief, but nowhere in her impugned order, she had cited any reasons either for believing or for disbelieving the evidence so adduced before her by the petitioner. Rather the Ld. MM at page 8 of the impugned order was pleased to observe as under: M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 12 "... It cannot be stretched to include within its ambit the image or reputation of the Chairman of the company with respect to his personal acts/conduct or comments made by him unconnected to the discharge of his functions as the Chairman of the company. Thus, any statements published in the articles regarding the personal comments/opinion/conduct of Mr. Naveen Jindal regarding controversial Khap or Caste Panchayat or regarding RTI Activist Mr. Ramesh Aggarwal are and should be considered as beyond the purview of the present complaint." 31 Hence the aforesaid observations made it clear that the Ld. MM was not CR No. 57/2/14 25/32 M/s Jindal Steel & Power Ltd Vs State & Ors. considering the personal life or acts, omissions or remarks of the person conducting the day−to−day business affairs of the company, i.e. Managing Director or Chairman of the company. However, all his acts as well as omissions, statements etc which were connected with discharge of his day−to− day functions as Chairman of the petitioner company were bound to be taken into consideration by the Ld. MM while applying her mind on the point of summoning of respondents herein which she had miserably failed to do so and as she had also failed to appreciate the fact that the author was frequently mentioning and substituting the petitioner company by Naveen Jindal and vice versa. Hence it seems that while making such observations, the Ld. MM seems to have totally forgotten the law on this aspect related to functions and responsibilities of the Chairman and Managing Director of a Limited Company. 32 Further, I have no hesitation in holding that after reading the complete article in question, a common person would have considered the acts of Naveen Jindal, as acts of the petitioner and vice− versa, because of the petitioner company being owned by him as its owner and not merely being the Chairman or Managing Directors thereof. The articles is required to be examined from the point of view of a common, prudent and ordinary man and not from the point of view of a legal luminary knowing the distinction between a company and its MD. CR No. 57/2/14 M/s Jindal Steel & Power Ltd Vs State & Ors. 33 Further, the Ld. MM was grossly erroneous in holding that intention to cause harm is the most essential "sine qua non"of the offence of defamation and while making the said observation, the Ld. MM seems to have forgotten that in the definition of offence of "defamation" as provided under section 499 IPC, it is not only the intention alone but also knowledge or reasons for the author to believe that harm can be caused to the reputation which would constitute such offence are also the factors for consideration to be kept in mind while determining the issue related to commission of an offence of such nature or otherwise. Hence, Ld. MM had committed grave error in relying upon the ingredient of "intention" alone for the purpose of constituting an offence of defamation as defined under section 499 IPC. 34 Ld. MM had further grossly erred in holding in the following para of the impugned order that the articles had only conveyed general observations regarding a current topic of general/national interest and there was nothing contained in the said articles which was especially meant to damage the reputation of the M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 13 complainant, whereas the perusal of the said article itself made it absolutely clear that specific allegations were made against the petitioner as well as its alleged owner Naveen Jindal in the said article and even otherwise also, there was no need for any special manner or specific meaning to be given to the contents of the said article as even the general imputations aimed to tarnish a person's reputation are sufficient enough to CR No. 57/2/14 27/32 M/s Jindal Steel & Power Ltd Vs State & Ors. prima facie constitute an offence of "defamation" as defined in the said section of IPC and in the last para of page 9 of the impugned order, the Ld. MM had further exceeded her jurisdiction when she had even gone to the extent of commenting upon and to make remarks and observations regarding government's policy for allocation and allotment of coal blocks and she had otherwise no business to make such observations, remarks and comments related to the Legislative policies which were not even the subject matter of the controversy in issue before her and hence all those observations made were clearly beyond her jurisdiction. 35 Further, from the perusal of the impugned order, it is reflected that at page 10 thereof, the Ld. MM had got herself carried away by her own surmises and conjectures and had also taken into consideration the probable defences of the respondents wherein she had observed that " In Democratic India, media has virtually evolved as the fourth pillar of the Constitution and plays a very vital role in forming public opinion in favour of or against the government policies and in exposing or surfacing the corrupt practices where they exists. This helps in assessing the performance of the government on the anvil of honesty, integrity, efficiency and public interest, by the electorate. In the present case, whether the ministry of coal adhered to fair practices in allocation of coal blocks to the companies or was guided by some other external or extraneous factors is a matter of public and CR No. 57/2/14 28/32 M/s Jindal Steel & Power Ltd Vs State & Ors. national interest as the hard earned money of the tax payers as well as a valuable natural resources of the country are involved. " 36 In this regard, firstly, it is to be noted that as observed herein above, the Ld. MM had no business at all to make any such comments or observations in respect of Government's policy decisions which were not even under challenge before her and thus she had clearly exceeded her jurisdiction because even the CAG in its report quoted by the petitioner before it as a mere passing reference had also not talked about any scam being committed in allocation of those mines by the Government to any of the Stake holders much less the petitioner. All that CAG had opined in the said report was that if some transparency could have been observed and allocation would have been made by bidding system, then it could have fetched more revenue to the Government and would also have prevented the concentration of wealth in a fewer hands. However, CAG, no where had leveled any allegation of any corrupt or malpractice on the part of either petitioner or Government being adopted in making the said allotment/allocation of the coal mines at any point of time whatsoever. 37 Further, though the Ld. MM had observed in the impugned order that law of defamation could not be used as a weapon to silence the critics, but she had also lost sight of the fact as to whether the impugned articles were written only as an innocent expression of opinion of the author or were written to be CR No. 57/2/14 29/32 M/s Jindal Steel & Power Ltd Vs State & Ors. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 14 used as a tool to take revenge from the petitioner and its Board of Directors for their actions of prosecuting the officials of media houses for the offence of extortion and black mailing. 38 Further, I find that Ld. MM had erroneously held that the author of the article had no knowledge that it was likely to cause harm to the petitioner because the article per−se contained factually unproved assertions and at the end of it, it had virtually amounted to announcing a verdict against the petitioner and its Managing Director when it had observed that the money earned by scam, could not have brought true legitimacy to any one (referring to Naveen Jindal getting a School of Management at University of Texas and Dallas (UTD) being named in his name). 39 It is to be noted here that till date, no competent court in the country had given any judicial verdict regarding illegal money either being invested or extracted from those allocation of coal blocks. 40 Further, I find that the Ld. MM had failed to exercise her jurisdiction in a judicious manner when she had gone to the extent of observing that " the court has to protect the media as they have a moral, legal and social duty to perform, if what is published is in public interest or public good and is based on a factual report which though may be capable of being perceived differently by different individuals." and in the last para as appearing at page 11 of the impugned order and from the observations made CR No. 57/2/14 30/32 M/s Jindal Steel & Power Ltd Vs State & Ors. therein, it seems that the Ld. MM had gone to the extent of giving weightage to the media trial of the accused conducted by big media houses and while doing so, the Ld. MM had completely ignored the fact that such media trials were not based on a judicial verdict given by the court of law in the country on the issues raised and agitated before them. Hence, I also find further findings of the Ld. MM to be grossly erroneous which are appearing at opening para at page 12 of the impugned order which are as under: " One must not forget that the country is striding towards an era where the right to information and the right to know have been given statutory backing and are constantly evolving. In these circumstances, any action towards gagging the free media would push the country back to the colonial dark ages of closed doors and hushed up voices." 41 However, I have no hesitation in holding that such articles published without verification of the facts from the side against whom such publications were made are clearly per−se derogatory and defamatory in nature and are even contempts of the superior court's directions as contained in the Blitz's case (supra), as discussed above, which judgment still holds good in respect of setting guiding principles for the print media in reporting any matter through such articles in public interest. 42 In view of the above lengthy discussion, I have no hesitation in holding CR No. 57/2/14 31/32 M/s Jindal Steel & Power Ltd Vs State & Ors. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 15 that the impugned order as passed by the Ld. MM, is not sustainable in law as it suffers from vital illegalities and irregularities. 43 Accordingly the revision petition, as filed by the petitioner is allowed and the the impugned order is set aside as prima facie there is sufficient material to summon the respondents no. 2 to 5 for the offences committed by them and also to put them to trial for the same. 44 The case is remanded back to the Ld. Trial Court through Ld. CMM, New Delhi with direction to the Ld. MM to summon the accused persons for the offences under section 500 IPC and thereafter pass a final judgment after appreciating the entire evidence which shall be brought on record to her notice by the respective parties at the appropriate stages of trial. 39 TCR, if any, be sent back to the Ld. Trial Court alongwith a copy of the order. 40 File of the revision petition be consigned to record room after completion of all other necessary formalities. Announced in the open Court on 13.11.2014 (LOKESH KUMAR SHARMA) ADDITIONAL SESSIONS JUDGE−04 NEW DELHI DISTRICT/ PATIALA HOUSE COURTS/NEW DELHI CR No. 57/2/14 32/32 M/s Jindal Steel & Power Ltd Vs State & Ors. M/S Jindal Steel & Power Ltd vs ) The State on 13 November, 2014 Indian Kanoon - http://indiankanoon.org/doc/144953764/ 16

trial11.pdf

Bombay High Court Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Bench: A. P. Lavande, P. D. Kode 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRI. APPEAL NO.418 OF 2005. 1. Motiram Marotrao Bhongade aged about 70 years, Occupation : Cultivator, 2. Sanjay Motiram Bhongade, aged about 34 years, Occupation : Service, 3. Laxmibai Motiram Bhongade, aged about 60 years, 4. Leelabai w/o. Bablu @ Rooprao Falke, aged about 34 years, All residents of Satrapur, P.S. Kanhan, District : Nagpur. // VERSUS // Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 1 The State of Maharashtra, Through Police Station, Kanhan, District : Nagpur. ------------------------------------------------------------------------------------ Shri Shashank V. Manohar, Advocate for Appellants. Mrs. K.S. Joshi, A.P.P. for Respondent. ------------------------------------------------------------------------------------ CORAM : A.P. LAVANDE AND P.D.KODE, JJ. DATE OF RESERVING JUDGMENT : 08.06.2010. DATE OF PRONOUNCING JUDGMENT : 23.06.2010. ORAL JUDGMENT ( Per : Lavande, J.) 1. By this appeal the appellants take exception to judgment and order dated 30th July, 2005 passed by 3rd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No.504 of 2001 convicting the appellants/ accused for the offences punishable under Sections 302, 304-B, 498-A and 201 read with Section 34 of the Indian Penal Code. By the impugned judgment they have been sentenced to undergo imprisonment for life and to pay fine of Rs. One Thousand each in default to suffer rigorous imprisonment for six months on the first count, to suffer rigorous imprisonment for seven years on the second count, to suffer rigorous imprisonment for six months and to pay fine of Rs.Five Hundred each, in default to suffer rigorous imprisonment for six months on third count and to suffer rigorous imprisonment for one year and to pay a fine of Rs. Five Hundred each in default to suffer rigorous imprisonment for six months on the fourth count. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 2 2. Briefly the prosecution case is as under : Deceased Savita married accused No.2 Sanjay on 10.05.1999 and went to her matrimonial house after the marriage. Accused No.1 Motiram accused No.3 Laxmibai and accused No.4 Leelabai, the father, mother and sister respectively of her husband were residing along with the accused. It is further case of the prosecution that at the time of settlement of marriage the accused had demanded amount of Rs. Sixty Thousand as dowry. The father of the deceased paid Rs.Thirty Two Thousand, fifteen days before the marriage. After the marriage the accused used to harass and ill-treat the deceased on the ground that they had received much less amount towards dowry at the time of marriage. The deceased used to inform the members of her family about the alleged harassment on the part of the accused as and when she came to the house of her parents. 3. It is further case of the prosecution that the accused purchased plot at Tarsa and started construction of new house and as such they were in need of money and hence, they continued ill-treatment and harassment of deceased. Accused No.4, though married, was staying with her parents and brother. All the accused hatched a plan on the intervening night of 04.05.2001 and 05.07.2001 and caused death of Sarita by strangulation by means of nylon rope. The family members of deceased were informed about the death and they came to the house of the accused and saw dead body of Savita in the verandah of the house. They saw ligature mark on the neck of Savita and also saw black marks on her thigh and knee. Since Savita was not ill and her death had occurred all of a sudden her mother Girijabai P.W. 3 lodged report Exh.19 at Kanhan Police Station requesting the police to make necessary inquiry. On the basis of the said report Merg was registered and inquiry was conducted by P.S.I. Y.S. Deshmukh. He visited the place of incident and performed spot panchnama Exh.23 and inquest panchnama Exh.24 in the presence of panchas and sent dead body for post mortem examination. Post Mortem on the dead body of Savita was conducted by Dr. Manju Rathi P.W. 9. 4. On 06.07.2001 Yadaorao P.W. 2 father of deceased lodged report Exh.16 against all the accused. Pursuant to the said report offences under Section 498-A, 304-B read with Section 34 of the Indian Penal Code came to be registered against the accused. The investigation was taken up. Clothes and ornaments on the person of deceased were seized. Dr. Rathi who conducted post-mortem examination opined that the cause of death was due to asphyxia by strangulation. In course of investigation statements of several persons were recorded. The accused were arrested on 06.07.2001. At the instance of accused No.4 Leelabai nylon rope used in the crime was recovered pursuant to the memorandum recorded at Exh.42. The nylon rope was seized under the seizure panchnama Exh.43. The nylon rope was also sent to medical officer for opinion, who opined that ligature marks on the neck of the deceased could have been due to strangulation by means of said rope. The Muddemal seized was sent to Chemical Analyser for analysis. After completion of the investigation police filed chargesheet against all the accused under Sections 302, 304-B, 498-A and 201 read with Section 34 of the Indian Penal Code. The offences under Section 302 and 304-B of the Penal Code being exclusively triable by the Court of Session the learned Judicial Magistrate First Class committed the case to the Court of Session. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 3 In Sessions Trial No. 504 of 2001 charge was framed against all the accused under Sections 498-A, 304-B, 302 and 201 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty to the charge and claimed to be tried. Their defence was of total denial. Their defence was that Savita was not happy as the construction of the house at Tarsa was stopped by the accused and further she did not conceive and as such under mental pressure she might have decided to commit suicide. Accused No.4 claimed that Savita committed suicide as she had no issue. The learned Additional Sessions Judge, upon appreciation of the evidence, held that all the offences were proved against the accused and consequently convicted and sentenced the accused as aforesaid. 5. Mr. Manohar learned counsel appearing for the appellants/ accused submitted that there is absolutely no evidence on record to connect the accused with the crime and the evidence led by the prosecution is not sufficient to prove the offences for which they have been convicted by the learned trial Judge. The learned counsel further submitted that the medical evidence clearly suggests that the death of Sarita could be either homicidal or suicidal and therefore, the prosecution has not been able to establish conclusively that the death of deceased Savita was homicidal. He further submitted that the only circumstance that dead body of Savita was found in verandah is not sufficient to connect the accused with the offences for which they have been convicted. The learned counsel further submitted that the demand of dowry by the accused has not been proved and the prosecution witnesses have given different versions regarding demand of dowry which renders the same doubtful. He further submitted that the prosecution has not been able to establish the motive for commission of the crime which ought to have been proved since the case is based on circumstantial evidence. The learned counsel further submitted that the evidence on record clearly suggests that suicide by Savita was probable since she was short tempered and she did not have any issue. He further submitted that the evidence led by the prosecution itself suggests that the rope, allegedly seized at the instance of accused No.4 and the rope which was identified by Dr. Rathi P.W. 9 was not one and the same, which clearly creates doubt about recovery of the rope at the instance of accused No.4. He further submitted that the investigation is casual and the evidence led by the prosecution is insufficient to implicate the accused in the crime. The learned counsel further submits that there is absolutely no evidence on record that during the intervening night of 04.07.2001 and 05.07.2001 accused Nos. 1 to 3 were present in the house. The learned counsel further submitted that there is no reference of demand of dowry in the report Exh. 16 filed by father of the deceased. The learned counsel lastly submitted that the tests laid down by the Apex Court in a case based on circumstantial evidence are not satisfied and as such all the accused are entitled to be acquitted by giving them benefit of doubt. In support of his submission the learned counsel relied upon the following decisions : 1) Ramesh Kumar V. State of Punjab, AIR 1994 SC 945. 2) Padala Veera Reddy v. State of A.P., AIR 1990 SC 79. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 4 6. Per contra Mrs. Joshi, learned Additional Public Prosecutor submitted that the medical evidence clearly suggests that death of Savita was homicidal and Savita died on account of strangulation. She further submitted that recovery of rope at the instance of accused No.4 is a clinching circumstance which clearly connects the accused, more particularly accused No.4, with commission of the crime. She further submitted that there is absolutely no evidence on record that Savita committed suicide and as such the defence of the accused is an afterthought. The learned A.P.P. further submitted that there is cogent and reliable evidence regarding demand of dowry, tendered by the prosecution through P. W. Nos. 2, 3, 5 and 6. The learned A.P.P. further submitted that admittedly all the accused were staying in the house along with deceased Savita and as such their conduct in not reporting her death to police clearly proves their complicity in the commission of crime. According to the learned A.P.P. there is absolutely no evidence to substantiate the defence of suicide by Savita and as such heavy burden lies upon the accused to establish as to in what manner Savita met her death, which has not been discharged by the accused which clearly establishes their complicity in the commission of the crime. In support of her submission Mrs. Joshi relied upon a judgment of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra, reported at (2006)10 SCC 681. 7. In rejoinder, Mr. Manohar submitted that failure to give explanation for all incriminating circumstances by the accused can be used as an additional circumstance against the accused. The learned counsel placed reliance upon the following judgments in support of the submission : (i) Tanviben Pankajkumar Divetia v. State of Gujarat, AIR 1997 SC 2193 (ii) Ajay Singh v. State of Maharahstra 2007 (2) Bom.C.R.(Cri.) 6 8. We have carefully considered the submissions made by the learned counsel for the rival parties and the judgments relied upon by them. 9. Before analyzing the evidence, we would first like to deal with the medical evidence tendered by the prosecution. According to the prosecution, death of Savita was homicidal and she was strangulated by the accused during the intervening night of 04.07.2001 and 05.07.2001. In order to prove the homicidal death of Savita the prosecution examined P.W. 9 Dr. Manju Rathi who was Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 5 attached to Rural Hospital, Kamptee in the year 2001. She deposed that on 06.07.2001 she conducted post mortem on the dead body of Savita Sanjay Bhongade, which was brought to the hospital. She found one ligature mark on the neck of deceased Savita which was ante-mortem. The cause of death was asphyxia which could be due to strangulation. She identified her signature on post mortem report Exh.51 and confirmed its contents as correct. She also stated that she had prepared query report at the request of Kanhan Police. She identified signature on the report Exh.52. She also identified rope which was shown to her which she had examined. In cross-examination she denied that there was no requisition letter sent by police for examination of rope and for conducting post mortem. She admitted that body was in decomposed state and whole skin of the body was erupted. She stated that the width of the ligature mark was 2 cm. She admitted that whenever ligature mark is used in strangulation or hanging its force is applied on skin and the skin is inverted 2/3 of the width of ligature depending upon the force and that if that much force is applied then only asphyxia appears. She further stated that the diameter of the ligature was of 5 cm. and it was not necessary that if the ligature of such width was used then mark found on the body would be of 4 cm in width but ligature may be of 3 cm. or 4 cm in diameter or width. She candidly admitted that she did not carryout post mortem in respect of hanging matters. She admitted that in case of hanging the rope enters in the skin of the neck because of weight of the body and in such cases back portion of the rope looses which is because of pressure of front side and in such circumstances there may not be ligature mark on the posterior side. She admitted that she had not noticed ligature mark on the back side or posterior side of the neck. She admitted that if a person is strangulated from front side only having the rope on both sides in the hands of assailant without taking it around the neck then mark will be on frontal side and it will not extend up to ear pinna. She admitted that if the strangulation is by ligature around the neck by knot then there will be ligature mark around the neck. She admitted that she did not notice both the above strangulations in the present matter. She admitted that ligature mark as found in the present case could be of hanging. She also admitted that in the post mortem report, earlier, hanging was written while giving opinion, but subsequently she found that it was strangulation and therefore, the strangulation was written. She admitted that in hanging and strangulation symptoms are same but the marks are different and that hanging also includes strangulation and strangulation could be by different means. She denied that she had scored the word 'hanging' in post mortem report and subsequently written the word 'strangulation' on the say of police. 10. Close scrutiny of the above evidence discloses that the death of Savita could have been either on account of strangulation or hanging. The evidence also discloses that the body was in a decomposed state and whole skin of the body was erupted. The post mortem was admittedly carried out on 06.07.2001 at 12.00 noon and the dead body was received in the hospital on 05.07.2001 at 7.45 p.m. The case of the prosecution that Savita met homicidal death on intervening night of 04.07.2001 and 05.07.2001 is difficult to be believed since in case the death was caused during the intervening night of 04.07.2001 and 05.07.2001 the body would not have been in decomposed state on 06.07.2001. Moreover, the evidence also does not rule out the possibility of death being caused on account of hanging. Thus, the prosecution has not been able to establish comprehensively that Savita died homicidal death during the intervening night of 04.07.2001 and 05.07.2001. We find that the evidence of Dr. Manju Rathi is far from satisfaction and no attempts have been made either by the prosecution to find out the real cause of death of Savita. Another important aspect which needs to be Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 6 mentioned is that there is absolutely no evidence led by the prosecution to prove the exact time of death. This was necessary, more particularly having regard to the fact that the charge against the accused was deceased Savita was done to death on the intervening night of 04.07.2001 and 05.07.2001. We find that in number of matters the prosecution does not take care to get all the relevant details from the medical experts regarding cause and time of death which assumes importance to fix the complicity of the accused in the crime. Even the learned Additional Sessions Judge has not bothered to ask the relevant questions to Dr. Rathi to find out the exact cause of death and time of death of Savita. It is settled law that even the prosecution or the defence does not ask the medical expert all the questions which are relevant for deciding the cause and time of death, the Judge presiding over the trial is expected to discharge his duty. Thus, the prosecution has not been able to establish that the death of Savita was homicidal. 11. No doubt, even if the death of Savita was not homicidal the accused would be liable for punishment under Section 304-B if the ingredients of the said section are established, even if it is established that the deceased had committed suicide. Section 304-B reads thus : "304B : Dowry Death : (1) 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 purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) 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." 12. Next question which arises for consideration whether the offence under Section 304-B is made out by the prosecution against the accused? Even if the defence of the accused that deceased committed suicide is accepted the prosecution is obliged to prove that it was a dowry death in terms of Section 304-B of the Indian Penal Code. In order to find out whether the ingredients of offence punishable under Section 304-B are made out against the accused the evidence of P.W. Nos. 2, 3, 5 and 6 will have to be analyzed. 13. The prosecution has examined Yadeorao Dhangare (P.W.2) father of the deceased, Girijabai Dhangare (P.W.3) mother of the deceased, Sunita Khergade (P.W.5) sister of the deceased, Punjabrao Khergade (P.W. 6) husband of Sunita. P.W. 2 Yadeorao lodged report Exh.16 at Police Station, Kanhan. He deposed that deceased Savita married Sanjay on 10.05.1999 and after the marriage she was residing with accused No.1 to 4. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 7 Initially before the marriage demand of Rs.60,000/- was made by way of dowry by accused No.1 but he expressed his inability to pay the said amount and it was agreed to pay Rs.32,000/- which was paid fifteen days prior to the date of marriage. He further deposed that his daughter told his wife that Leelabai used to ill-treat her. Thereafter the deceased along with her husband went to attend marriage at Gondia on 19.04.2001 and on way back they came to their house. At that time since he was ill and was admitted in the hospital at Kamptee. At the hospital deceased reported to him that her husband and his parents used to ill-treat her and tell her that an amount of Rs.Twenty Five Thousand which was to be given in dowry was not given. He promised to sort out the issue. Thereafter on 05.07.2001 they received a telephonic message that his daughter had expired. Accordingly all of them went to Kanhan at the house of the accused and saw dead body of Savita. They saw that tongue had came out of her mouth and her lips were blackish. They also observed some injury marks on her neck and black marks on her leg and thigh. Panchnama was drawn up. The witness further deposed that since the amount was not paid Savita was killed by the accused. They thereafter performed her last rites. He lodged report Exh.16. He identified his signature on report Exh.16 as well as printed F.I.R. Exh.17 and confirmed their contents as correct. In cross- examination he admitted that initially his wife had lodged report and at that time his statement was recorded by the police. He deposed that he gave report on the next day which was written by the police. He further deposed that his daughter did not report to him about the ill-treatment. He admitted that during lifetime of Savita no report was lodged against the accused. He denied the suggestion that the deceased was not ill-treated by the accused. The witness denied the suggestion put on behalf of accused No.4 that deceased Savita was nervous and used to remain under tension and since she did not deliver child she committed suicide and that is why the report was not lodged immediately. 14. Smt. Girijabai, P.W.3 deposed on similar line about the ill-treatment. She identified report Exh.19 lodged on 05.07.2001 at Police Station, Kanhan. In cross-examination on behalf of accused Nos. 1 to 3 she stated that she had told the police that Savita was tortured by the accused for the dowry and that she might have been killed for dowry. The witness was confronted with the statement made before the police wherein she had not stated so. She denied suggestion that Savita had committed suicide and therefore, no report was lodged soon after her death. In cross-examination on behalf of accused No.4 she stated that she had told the police that at the time of settlement of marriage the accused demanded Rs.60,000/- but it was settled at Rs.32,000/- however, she could not assign any reason for not recording this fact in her report. She admitted suggestion that since Savita did not conceive she was given treatment at Prabhat Hospital, Kamptee. She denied the suggestion that Savita was behaving indifferently because she did not conceive. 15. P.W. 5 Sunita, sister of the deceased, deposed that accused used to quarrel with the deceased and told her that Rs.32,000/- was given in marriage and she should bring remaining amount since the amount of Rs.60,000/- was demanded at the time of marriage. She also deposed that on 05.07.2001 Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 8 she along with her husband went to the house of the accused and she saw dead body of Savita and she saw that tongue of Savita came out of her mouth and it was black and also seen blackish mark on her neck. In cross-examination on behalf of accused No.4 she denied the suggestion that since Savita did not conceive she was mentally disturbed and therefore, she committed suicide. Evidence of P.W. 6 Punjabrao Khergade, discloses that his wife Sunita had reported to him about the ill-treatment received by the deceased. He categorically stated that Savita has not told him anything. 16. Close scrutiny of the evidence of above four witnesses discloses that the prosecution has not been able to establish by cogent evidence that deceased Savita was subjected to cruelty on account of demand of dowry. In order to attract Section 304-B it is necessary for the prosecution to establish 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. Since the prosecution has failed to establish by cogent evidence that deceased Savita was subjected to cruelty on account of dowry, in our considered opinion ingredients of Section 304-B of the Penal Code have not been established by the prosecution. 17. No doubt, the death of Savita in the matrimonial house was in suspicious circumstances but in the absence of any evidence that there was any ill- treatment of Savita in connection with dowry, even if the death of Savita is held to be suicidal, still ingredients of Section 304-B are not attracted. Mere death of Savita in suspicious circumstances in the matrimonial house, without establishing any cruelty on account of dowry, would not attract Section 304-B of the Penal Code. 18. There is one aspect which requires to be dealt with. The prosecution has relied upon recovery of rope at the instance of the accused No.4 pursuant to memorandum statement Exh.42 and seizure of the rope pursuant to seizure panchnama Exh.43. In this connection it is pertinent to note that the prosecution has not chosen to examine any panch witness to prove recovery and seizure of rope, which, according to the prosecution, was done in presence of the panchas. It is only the Investigating Officer P.W. 8 Yadaorao Deshmukh who deposed about discovery of rope from the house of the accused and its seizure pursuant to memorandum of statement Exh.42 and seizure panchnama Exh.42. His evidence does not disclose that the rope was seized pursuant to the statement made by accused No.4 Leelabai from a particular place in the house of the accused. Moreover, in terms of seizure panchnama Exh.42 rope which was seized was 40 inches in length and ½ inch in diameter. P.W. 9 Dr. Manju Rathi to whom the Investigating Officer claimed to have referred the rope for her opinion, has relied upon the Medico Legal Certificate Exh.52 dated 16.07.2001 in which length of the rope has been shown to be 102 cm. with diameter of 5 cm. The doctor has identified the rope which was sent to her, which is admittedly having diameter of 5 cm. There is absolutely no explanation for this discrepancy. Therefore, non- Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 9 examination of panch witnesses and the discrepancy in description of the rope creates serious doubt about the discovery and seizure of the rope at the instance of accused No.4. 19. We would like to deal with another aspect. In terms of memorandum Exh.42 (though not proved by the prosecution). It was accused No.4 alone who has committed murder by strangulating deceased Savita. We fail to understand as to how the prosecution could rope in all the accused if it was the case of prosecution itself that it was accused No.4 who committed murder of Savita. 20. It is pertinent to note that Investigating Officer Yadeorao Deshmukh (P.W.8) admitted in his cross-examination that during the course of investigation he has visited C.P. Foundry where accused No.2 was working as Security Guard and upon verification of documents he came to know that Sanjay was on duty during the night of the incident. Therefore, we fail to understand as to how accused No.2 could have been roped in for commission of murder of his wife which, according to the prosecution itself, was committed during the intervening night of 04.07.2001 and 05.07.2001. No doubt, the prosecution evidence, more particularly that of P.W. 1, which discloses that the dead body of Savita was shown by accused No.4 in the morning of 05.07.2001, raises strong suspicion against accused No.4 Leelabai but in absence of cogent evidence that the death of Savita was homicidal it is extremely difficult to sustain conviction of Leelabai for all the offences for which she has been convicted by the learned trial Court. In so far as accused Nos. 1 to 3 are concerned, there is absolutely no evidence to establish their complicity in commission of offences under Sections 302, 304-B, 498-A and 201 of the Penal Code. In respect of the offence punishable under Section 498-A it is settled law that harassment of a woman must be in connection with dowry. The prosecution has not been able to establish any harassment to Savita on account of dowry. Therefore, offence punishable under Section 498-A is also not made out against the accused. We would also like to mention that the Investigating Officer has not deposed as to the details of the investigation carried out by him and what were the materials on the basis of which he filed the charge sheet against all the accused. This was absolutely necessary since the case rests on circumstantial evidence. 21. We shall now deal with the authority in the case of Trimukh Kirkan (supra) relied upon by Mrs.Joshi in support of her submission that since the death has taken place in the house of the accused, they being occupants of the house, are bound to offer explanation for unnatural death of Savita. In the case of Trimukh a Division Bench of Aurangabad Bench of this Court set aside acquittal of the appellant for the offence punishable under Section 302 and convicted him for causing murder of his wife Revata. It was the case of the appellant himself that his wife had died due to snakebite and the place of incident was shown by the appellant himself. The post mortem conducted on the dead body of Revata disclosed that she had died due to asphyxia as a result of compression of neck. In the said case there was evidence on behalf of the prosecution that there was demand for dowry by the appellant from the parents of the deceased. In this factual background, the Apex Court, placing reliance upon Section 106 of the Evidence Act, held that the appellant was bound to offer explanation for death of his wife which was homicidal. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 10 In the present case, we have already held that the prosecution has not been able to conclusively prove that the death of Savita was homicidal and the prosecution has not led any cogent evidence of cruelty to Savita by the accused on account of demand of dowry. Therefore, the decision of the Apex Court in the case of Trimukh would be of no assistance to the prosecution. 22. Thus, upon re-appreciation of the entire evidence we are of the considered view that the prosecution has not been able to establish beyond reasonable doubt the offence punishable under Sections 302, 304-B, 498-A, 201 read with Section 34 of the Penal Code against the appellants/ accused, therefore, they are entitled to be acquitted of all the said offences. 23. In the result, therefore, the appeal is allowed. The impugned judgment and order dated 30.07.2005, passed by 3rd Ad-hoc Additional Sessions Judge, Nagpur convicting and sentencing the appellants / accused for the offences punishable under Sections 302, 304-B, 498- A, 201 read with Section 34 of the Penal Code is quashed and set aside and the appellants/ accused are acquitted of all the offences for which they were charged. Bail bonds of appellant Nos.1 and 3 who are on bail, shall stand cancelled. Appellant Nos. 2 and 4 are ordered to be set at liberty if not required in any other case. Fine amount, if any, paid by the appellants / accused shall be refunded to them. JUDGE JUDGE RR. Motiram Marotrao Bhongade vs The State Of Maharashtra on 23 June, 2010 Indian Kanoon - http://indiankanoon.org/doc/886465/ 11

trial19.pdf

Bombay High Court Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Bench: D.K. Deshmukh, Anoop V.Mohta, R. V. More Kambli 1 Wp1688.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1688 OF 2010 ... Tanaji Madhukar Barbade ...Petitioner v/s. State of Maharashtra & ors. ...Respondents ... Mr.G.N.Salunke for the Petitioner. Mr.S.R.Nargolkar, Addl.GP for State. ... CORAM: D.K. DESHMUKH, ANOOP V. MOHTA & RANJIT MORE,JJJ DATED: 26th October, 2010 JUDGMENT: (PER D.K.DESHMUKH, J.) 1. Two questions which have been referred to us for decisions are, (i) Whether the Government Resolution dated 15th April, 1991 is valid in view of the provisions in the MEPS Act and Rules framed thereunder? & (ii) Whether Schedule `F' to the Rules Kambli 2 Wp1688.10 issued under the Act provides for promotion or it provides merely a preference to be given in appointment? 2. These questions arise in following factual background, The Respondent No.4-Shri Shivaji Shikshan Prasarak Mandal has established a junior college at Barshi. It is an admitted position before us that the said junior college is a private school within the meaning of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (hereinafter referred to as the "Act"). The Petitioner was appointed as a peon in the Respondent No.5-Junior College with effect from 29th April, 1994. The post of Junior clerk in the said college became vacant in August, 2003. By order dated 31st March, 2008 the Respondent No.4 promoted Kambli 3 Wp1688.10 the Petitioner to the post of junior clerk with effect from 1-4-2008. The Petitioner joined the post on Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 1 1-4-2008. The Respondents Nos.4 & 5 submitted proposal to the Respondent No.2 for approval of the promotion of the Petitioner to the post of junior clerk on 5-4-2008. By letter dated 6th June, 2008 the Deputy Director, Education informed the Respondent No.5 that the post of junior clerk is to be filled in by direct recruitment and not by promotion as per the law, and therefore, approval to the order by which the Petitioner has been promoted to the post of junior clerk cannot be granted. It may be pointed out here that necessity for the Respondents Nos. 4 & 5 to seek approval of the Respondent No.2 to the promotion of the Petitioner to the post of junior clerk arises because the Respondent No.5-college receives grant-in-aid from the State Government. Kambli 4 Wp1688.10 3. Feeling aggrieved by the order of the Deputy Director declining to approve the promotion of the Petitioner to the post of junior clerk, the Petitioner filed Writ Petition No.1688 of 2010. That Writ Petition came before the Division Bench of this Court for admission on 11th March, 2010. 4. In support of his contention that the reason given by the Deputy Director for not approving the promotion of the Petitioner to the post of junior clerk is not correct, the Petitioner relied on the Government Resolution dated 15th April, 1991 and a note in Schedule "F" to the Rules framed under the Act. The Petitioner also relied on two judgments of the Division Bench of this Court, one in the case of Ashok Shankarrao Shinde v/s. Prabodhan Shikshan Sanstha, Kambli 5 Wp1688.10 Nagpur, 1999(1) Mh.L.J. 348 and other in the case of Ramesh Shivram Khairnar v/s. State of Maharashtra & ors, 2003(4) Mh.L.J. 470. The Division Bench, which was hearing the Writ Petition No.1688 of 2010 found itself unable to agree with the law laid down in the two aforesaid judgments and therefore, Writ Petition was admitted for final hearing and the Hon'ble the Chief Justice was requested to refer the above questions to a Larger Bench. Accordingly, the Hon'ble the Chief Justice has constituted this Bench for consideration of above said two questions. 5. We have heard the learned Counsel appearing for both sides. 6. The learned Counsel appearing for the Petitioner relied on the provisions of the Act and the Rules and aforesaid two judgments Kambli 6 Wp1688.10 of the Division Bench. The learned Counsel also relied on the observation made in paragraph 13 of the judgment of the learned single Judge of this Court in the case of Nita Ramesh Danane v/s. Dombivali Mitra Mandal and ors, 2009 (1) Mh.L.J. 797. 7. The learned Addl.Government Pleader appearing for the Respondents Nos.1 to 3, however, submitted that grant of promotion to the post of junior clerk to a person who is working in class-IV cadre is contrary to the scheme of the Act and the Rules. 8. Now, taking up for consideration the first question, what we have really to consider is in view of the provisions of the Act and Rules would the Government Resolution dated 15th April, 1991 apply in relation to a private school. Perusal of that Government Kambli 7 Wp1688.10 Resolution shows that it has been issued by the General Administration Department of the Government of Maharashtra. Subject of that Government Resolution is promotion of Class- Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 2 IV employees. It appears from that Government Resolution that the Resolution applies only to Government service. It does not apply to a private school. In our opinion, paragraphs 4, 5 & 6 of the aforesaid Government Resolution leave one in no doubt that this Government Resolution applies only to government service. Paragraph 4 of the Government Resolution states that every department should prepare a seniority list at District level. Paragraph 5 says that for the purpose of preparing combined seniority list of Class-IV employees, every department should appoint an officer at the District level. Paragraph 6 lays down that so far as departments in Mantralaya are concerned, for Kambli 8 Wp1688.10 each department independent seniority list should be prepared. It is, thus, clear from the tenor of this Government Resolution that it applies to government service only. The fact that Government Resolution has been issued by the General Administration Department, in opinion, clearly indicates that it applies to Government service only. There is one more reason why that Government Resolution cannot be said to apply to the private school. Section 5(1) of the Act reads as under: 5(1) The Management shall, as soon as possible, fill in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy: (Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy, ascertain from the Educational Inspector, Greater Bombay, (the Education Officer, Zilla parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools Kambli 9 Wp1688.10 imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy) 9. Perusal of the above quoted provisions makes it clear that the vacancy in private school is to be filled in the manner prescribed. The term "prescribed is defined by Section 2(17) to mean prescribed by rules. It is Section 16 of the Act which contains rule making power of the State Government. In our opinion, Section 16 (2)(d) is relevant. It reads as under: 16(2)(d) the other conditions of service of such employees including leave, superannuation, re-employment and promotion; Thus, the Act specifically confers rule making powers on the State Government to provide in what condition promotions are to Kambli 10 Wp1688.10 be given in the service of private school. In our Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 3 opinion, this rules out the possibility of provision being made in relation to promotion in a private school by a Government Resolution. It is a settled principal of law that when a thing is permitted to be done in a particular manner, it can be done only in that manner and all other modes of doing it are prohibited ig by necessary implications. Therefore, when the Act clearly stipulates that the provision in relation to promotion in private school can be made by framing of Rules, it cannot be done by issuance of Government Resolution, specially when in exercise of its rule making power the State Government has framed rules which make provision for recruitment in private school and also make provision for filling in certain posts by promotion. In our opinion, therefore, it is clear that the Government Kambli 11 Wp1688.10 Resolution dated 15th April, 1991 in view of the provisions of the M.E.P.S.Act and the Rules framed thereunder and in view of what is stated in that Government Resolution, does not apply to private school. 10. The Petitioner relies on the following found in Schedule "F" of the Rules. Lower Grade Staff- A common seniority list of Laboratory Attendant, Naik, Oilman, Machine Attendant, Peon, Watchman, Chowkidar, Sweeper, Call- woman, Kamathi, Attendant, Laboratory Hamal, Liftmen and such other lower grade staff, if any, shall be maintained on the basis of the dates of their appointment. If any of the lower grade staff improves his qualifications as prescribed either for the post of Laboratory Assistant or Clerk, such employee should be given preference while filling in the said post according to his place in seniority. (emphasis supplied) 11. It is contended on behalf of the Petitioner that the above quoted provisions Kambli 12 Wp1688.10 provides for promotion of lower grade staff to the post of junior clerk by promotion. The judgment of the Division Bench in Ashok Shinde's case is first in point of time. That judgment also relies on the above quoted portion from Schedule "F". It appears from that judgment that a person working as a peon in the private school had improved his qualification ig and had acquired the qualification necessary for the post of junior clerk, but the management was not considering him for the promotion to the post of junior clerk, therefore, he filed Writ Petition. The Petitioner in that case relying on the aforesaid portion from Schedule "F" claimed that he has right to be considered for promotion to the post of junior clerk. The Division Bench after quoting the above quoted provision from Schedule "F" observed thus: Kambli 13 Wp1688.10 5. The management has right to the extent of saying that the said clause (IV) under the Schedule does not speak of a promotion. However, the entire scheme of the Rules including the Schedules appearing thereunder have to be given a combined reading and are to be interpreted thereafter to further the underlying intend of this piece of subordinate legislation. These being the Rules, then under the powers given to the Executive by the legislative wing, while enacting the said Act, the intent and purpose lying thereunder cannot be ignored. Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 4 6. Thus, reading the aforesaid two provisions together, the position becomes clear that in case of non-teaching staff, employees of lower grade staff, so far as peons are concerned, there is a possibility of promotion to the post of a Laboratory Assitant or clerk which will have to be read into Schedule `B' clause (IV) pertaining to the junior clerk as one of the source of appointment for the post. 7. To that extent, therefore Schedule `F' will project itself into Schedule `B' and on combined reading both meaning and effect will have to be given to it. Then only the underlying idea of encouraging the lower staff to aim higher and achieve better can be implemented and that goal can be advanced. Kambli 14 Wp1688.10 12. It is clear from the observations of the Division Bench quoted above that according to the Division Bench though the above quoted portion from Schedule "F" does not use the term "promotion" the scheme of the Act and the Rules shows that that provision provides for promotion to the post of junior clerk. ig So far as judgment in the case of Ramesh Khairnar, referred to above, is concerned, in that case the Management of the private school had issued an advertisement inviting the application for post of junior clerk. The Petitioner, who was working as peon in that school filed a Writ Petition challenging the advertisement claiming that in view of the above quoted provisions from Schedule "F", he has right to be considered for promotion to the post of junior clerk and the post should not have Kambli 15 Wp1688.10 been advertised. Perusal of that judgment shows that mainly relying on the observations of the Division Bench in its judgment in the case of Ashok Shinde referred to above, the Division Bench held that the Petitioner in that case had right of being considered for the promotion to the post of junior clerk and it was held that the Management was not justified in issuing an advertisement. 13. The Division Bench in its judgment in Ashok Shinde's case, has referred to the Scheme of the Act. Perusal of the Preamble of the Act shows that the Act has been enacted to regulate the recruitment and conditions of service of employees in private schools in the State. Sub-section 1 of Section 3 lays down that the provisions of the Act shall apply to all private school in the State of Maharashtra, whether receiving grant-in-aid Kambli 16 Wp1688.10 from the State Government or not. Sub-section 1 of Section 4 of the Act reads as under: 4(1) Subject to the provisions of this sanction, the State Government may make rules providing for the minimum qualifications for recruitment (including its procedure) duties, pay, allowances, post-retirement and other benefits and other conditions of service of employees of private school and for reservation of adequate number of posts for members of the backward classes: (Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post- retirement benefits and other monetary benefits of an employee Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 5 in the employment of an existing private school on the appointed date shall be varied to the disadvantage of such employee by any such rules. 14. Thus, power is conferred on the State Government to frame Rules providing for minimum qualification for recruitment, duties, pay, allowances and other aspect. Proviso which appears below sub-section 1 of Kambli 17 Wp1688.10 Section 5 reads as under: (Provided that unless such vacancy is to be filled in by promotion, the Management shall, before proceeding to fill such vacancy ascertain from the Educational Inspector, Greater Bombay, (the Education Officer, Zilla Parishad or, as the case may be, the Director or the officer designated by the Director in respect of schools imparting technical, vocational, art or special education, whether there is any suitable person available on the list of surplus persons maintained by him, for absoration in other schools; and in the event of such person being available, the Management shall appoint that person in such vacancy.) 15. Perusal of this proviso shows that except those posts which are permitted to be filled in by promotion, obviously by the Act or the Rules before filling in the posts intimation has to be given about the vacancy by every school to the Education Department, so that the names of candidates from the surplus cell can be intimated to the school Kambli 18 Wp1688.10 for absorption. This proviso is to be read along with the provision of Rule 26, which relates to retrenchment on account of abolition of post. Perusal of this Rule shows that employees from various private schools whose services are retrenched for various reasons get their names entered into surplus cell maintained by the Education Department and as and ig when vacancies occur in any school. Those persons whose names are included in the surplus cell get an opportunity of being absorbed against those vacancies. Thus, if the Management is permitted to fill in the vacancy by promotion, though there is no specific provision made in the Act or the Rules for filling in that vacancies by promotion, then it will frustrate a well though out scheme which is included in the Act and the Rules for absorption of surplus staff from. Kambli 19 Wp1688.10 16. The State Government, as observed above, has framed Rules. In our opinion, sub- Rule 3 of Rule 9, is crucial. It reads as under: Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 6 9(3) Unless otherwise provided in these rules for every appointment to be made in a school, for a teaching or a ig non-teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub- rule (7) to state their castes in their applications. 17. Perusal of the above Rule shows that this Rule give a right to every eligible candidate to apply for any vacancy either for Kambli 20 Wp1688.10 teaching or a non-teaching post in a private school. In order to make this right meaningful and effective, a corresponding duty will have to be read in the Management to give wide publicity to the fact that there is a vacancy in that school, so that every candidate who is eligible to apply can come to know of the existence of the vacancy and apply for the post. Without the Management making the existence of vacancy known, the right given by sub-Rule 3 of Rule 9 to every eligible candidate to apply will be meaningless. It is further to be seen that many private schools also receive grant-in- aid from the State Government and therefore salaries of the teaching and non-teaching staff in the Schools are paid from the public funds, and therefore considering the provisions of Article 14 of the Constitution as the salary of the teaching and non- Kambli 21 Wp1688.10 teaching staff is to be paid from the public funds, there would be an obligation on the Management to advertise the vacancy. So far as the vacancies which are reserved for backward class are concerned, there is a specific provision made in sub-Rule 8 of Rule 9. Sub-Rule 8 of Rule 9 reads as under: Sub-Rule(8) of Rule 9- For the purpose of filling up the vacancies reserved under sub-rule (7) the Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer (and to the associations or organisations of persons belonging to Backward Classes, by whatever names such associations or organisations are called, and which are recognised by Government for the purposes of this sub-rule) requisitioning the names of qualified personnel, if any, registered with them. If it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the Employment Exchange or the District Social Kambli 22 Wp1688.10 Welfare Officer ( or such associations or organisations as aforesaid) or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer (or such associations or organisation as aforesaid) within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9). Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 7 So far as reserved vacancies are concerned, thus, the Management is not only obliged to issue advertisement in at least one newspaper, but has also to notify vacancies to various agencies. In our opinion, therefore, permitting the Management to fill in the post without advertisement, though there is a clear provision made in the Act or the Rules, would be contrary to the scheme of the Act and the Rules. In the provision in Schedule "F", which we have quoted above, what is provided is preference. Preference does not mean exclusive right of consideration. It means right to be Kambli 23 Wp1688.10 preferred, other thing being equal. The observations made by the Supreme Court in its judgment in the case of Sher Singh v/s. Union of India and ors, AIR 1984 SC 200 in relation to the provisions of Section 47 of the Motor Vehicles Act, in our opinion, are relevant. They read as under: "This would apply mututis mutandis to the present situation. But let it be made clear that while considering the application for stage carriage permit under S.47, the private operator has an equal chance to get a permit even on inter-State route if it shows that the Undertaking is either unable to provide efficient and economical service or that the private operator is better equipped to render the same. Preference in this context would mean that other things generally appearing to be qualitatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the Undertaking. Viewed from this perspective the provision contained in Section 47(1-H) would not deny equality before law and hence would not offend Art.14." (emphasis supplied) Kambli 24 Wp1688.10 18. So far as the judgment of the learned single Judge in the case of Nita Danane is concerned, in that case this issue was not being considered. Paragraph 13 of that judgment is relevant. It reads as under: 13. The contention of the learned Counsel for the respondents that the appointment itself was not valid as it was not in accordance with Rule 9, has not been pleaded in the written statement. There is no material at all to indicate that the appointment was not valid. The learned counsel sought to justify his submission by pointing out that the appointment order refers to the petitioner's applications dated 13-9-1993 and 18-9-1993. He then points out that, in para 3 of the petition, the petitioner has pleaded that she applied for the post when she learnt that the respondents were to employ a qualified Librarian. In my view, if it is the case of the respondents that the appointment itself was invalid, then it was for the respondents to plead so in their written statement. There is not a whisper about this in the written statement. Therefore, in my opinion, this submission of the learned Kambli 25 Wp1688.10 counsel for the respondents is an after-thought and cannot be accepted. Had there in fact been an invalid appointment, the contention would certainly have been raised by the respondents in their written statements. Apart from this, Rule 9(8) provides that a reserved post must be advertised. However, there is no such requirement for advertisement of a post in the open category, such as the post of a Librarian. Rule 9(3) only contemplates an application being made by the candidate with the requisite details in respect of educational ig and professional qualifications, experience, etc. The Petitioner had applied for the post of Librarian, which is not a reserved post since it is an isolated post, in the manner prescribed under Rule 9(3). Therefore, the Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 8 contention of the learned advocate for the respondents is untenable. 19. Perusal of the above quoted paragraph shows that the learned single Judge has not considered the scheme of the Act before making these observations. These are merely passing observations and the issue has not been discussed and decided. Kambli 26 Wp1688.10 20. In our opinion, therefore, the questions which have been referred to have to be answered thus, 1.The Government Resolution dated 15th April, 1991 cannot be made applicable to the teaching and non-teaching staff in recognised private schools which are governed by the provisions of the M.E.P.S.Act & Rules framed thereunder; 2. Schedule "F" to the M.E.P.S.Rules does not provide for promotion to the post of junior clerk. It merely provides a preference to be given to the lower grade staffs in making appointment to the posts of junior clerk and laboratory assistant. ( D.K. DESHMUKH,J.) (ANOOP V. MOHTA, J.) ( RANJIT MORE,J.) Kambli 27 Wp1688.10 Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 9 Tanaji Madhukar Barbade vs State Of Maharashtra & Ors on 26 October, 2010 Indian Kanoon - http://indiankanoon.org/doc/43036/ 10

trial14.pdf

Patna High Court Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Author: Mihir Kumar Jha IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.196 of 2008 =========================================================== Raju Mistri @ Riyazuddin, son of Wafati Mian, resident of Nayee Bazar, P.S. Bhagwan Bazar, Distt- Saran at Chapra .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Ashutosh Kumar, Adv. For the Respondent/s : Ms. Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 25-04-2013 Sole appellant Raju Mistri @ Riyazuddin who has been found guilty for an offence punishable under Sections 20 (b) 2 (c) of the NDPS Act vide judgment dated 07.02.2008 and sentenced to undergo R.I. for 20 years and fine of Rs. 2 Lacs in default to undergo R.I. for two years vide order dated 08.02.2008 passed by 1st Additional Sessions Judge, Saran at Chapra in NDPS Case No. 15/2000 filed the instant appeal. 2. PW-2, Parasnath Singh recorded his own Fardbeyan (Ext- 3) on 26.10.2000 alleging inter alia that on the same day at about 10.45 a.m. he had received confidential information with regard to transportation of Charas in a huge quantity by the smugglers. On the aforesaid confidential information a raiding party was constituted and as soon as they came at village Bhadpa, they found a jeep bearing Registration No. WBC 4049 proceeding towards western direction. On suspicion, the raiding party intercepted the vehicle. The driver, on query, disclosed his identity as Raju Mistri @ Riyazuddin and further failed to produce documents with regard to the vehicle. In presence of seizure list witnesses namely, Kashinath Singh and Musafir Sharma the vehicle was searched and from a box which was constructed in between the back seat, 29 packets of 2 Kgs, four packets of 1 Kg. and 66 packets of 500 Gms totaling 95 Kilograms of Charas was found for which no explanation was offered by the aforesaid driver. On query, the driver further disclosed that the vehicle belonged to Nanhe Mistri who used him as a carrier and further he was on his way to Kanpur. Accordingly, the driver was apprehended and the contraband articles were seized. After registration of case bearing Ravilganj P.S. Case No. 137 of 2000 investigation commenced and charge-sheet was submitted against the appellant while remained pending against co-accused Nanhe Mistri. 3. While the matter was pending for investigation against co- accused, Nanhe Mistri, after taking cognizance of the offence the trial commenced before 8th Additional Sessions Judge, Saran at Chapra, wherefrom the appellant, Raju Mistri @ Riyazuddin got acquittal in the background of the Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 1 fact that prosecution had failed to examine material witnesses save and except the seizure list witnesses, Kashinath Singh and Musafir Sharma which was taken into consideration suo motu by this Court and on the basis thereof there has been registration of Cr. Revision No. 183 of 2003 and subsequently vide order dated 20.08.2004 after setting aside the judgment of acquittal dated 18.07.2002 passed by the 8th Additional Sessions Judge, Saran at Chapra the matter was remitted to the trial court to proceed afresh. During continuance of the proceeding before the trial court charge-sheet against Nanhe Mistri was also filed and on account thereof both the proceedings were amalgamated which culminated in conviction of the appellant as well as acquittal of co-accused, Nanhe Mistri. 4. The defence as is evident from the mode of cross- examination as well as from statement of appellant under Section 313 of the Cr.P.C. is of complete innocence as well as denial of the occurrence. 5. While assailing the judgment of conviction and sentence recorded by the trial court it has been submitted on behalf of the appellant that even after remand, the case of the prosecution did not improve to the extent of justifying the finding of the trial court. It has further been submitted that apart from having inconsistency amongst the PWs on material aspect as well as having their evidence at variance, there has been gross negligence, laches on the part of the prosecution in proceeding with the investigation. To support the same, it has further been submitted that there has been utter violation of mandate of relevant provisions of law which make the investigation illegal as well as perfunctory and on account thereof, the judgment of conviction and sentence so recorded by the trial court loses its sanctity and identity. Last but not the least, it has been submitted that from the narration of the written report, it is evident that appellant is a carrier and in the aforesaid background the quantum of punishment inflicted upon him appears to be excessive one. 6. On the other hand, refuting the submission raised on behalf of appellant, it has been submitted by learned APP that finding of guilt recorded by the trial court is based upon materials available on the record. All the material witnesses have supported the factum of recovery of Charas in such huge quantity from a jeep which was being driven by the appellant at the time of search and seizure. It has further been submitted that FSL report is on the record which proves the contraband to be Charas and that being the position, one should not raise question over validity of judgment in question. As such, instant appeal is fit to be dismissed. 7. In order to substantiate its case, the prosecution had examined altogether 9 PWs out of whom PW-1 is Ram Narayan Pandit a member of raiding party, PW-2 is Paras Nath Singh (informant) as well as I.O, PW-3 is Raj Kishore Tiwari, member of raiding pary, PW-4 Mosafir Sharma, seizure list witness, PW-5, Kashi Nath Singh, seizure list witness, PW-6 is Arjun Yadav who investigated the case of Nanhe Mistri and had filed supplementary Charge sheet, PW-7 is Akhilesh Baitha, a Constable (member of raiding party), PW-8 is Ram Janam Pathak who is Malkhana Incharge and had produced material exhibit and PW-9 is Dudh Nath Singh, another member of raiding party. The prosecution had also exhibited Ext-1- seizure list, Ext-2 series- signature of respective witnesses over respective documents, Ext-3, written report, Ext-4- Formal First Information Report, Ext-5, serial no. 95, 30/2000 relating to case no. 137/2000 and Ext-6 is FSL report. 98 packets of Charas Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 2 have been exhibited as material exhibit-(i). 8. It is also evident from the lower court record that two witnesses namely, Md. Jalaluddin and Md. Ibrahim have been examined on behalf of defence but without any exhibit. 9. Before proceeding to scrutinize the evidence placed on the record on behalf of prosecution, it looks appropriate to refer Section 51 of the NDPS Act which lays down as follows:- 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrest, searches and seizures.--The provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act. That means to say by virtue of Section 51 of the NDPS Act, the provisions of the Cr.P.C. will apply to the extent they are not inconsistent with the provisions of the Act. At the present moment, one should not lost sight of Section-4 of the Cr.P.C. which reads as follows:- 4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences Section-5 of the Cr.P.C. also appears to be relevant and for that purpose is quoted hereinbelow:- 5. Saving Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 10. Therefore, having the conjoint reading of the aforesaid relevant provisions of law, it is evident that the application of Cr.P.C. is only permissible to the extent of search, seizure, arrest of an accused, in case, the matter in hand appears to be guided by Special Act, In the aforesaid event, the procedure for proceeding with the case falling under NDPS Act the case in hand has to be carried out in accordance with law so formulated under the NDPS Act and more particularly is to be governed according to the procedure incorporated under Chapter-V of the NDPS Act. 11. Because of the fact that the Act prescribes harsh punishment in its normal phenomena, therefore, it is expected to have proper compliance of the requirement as envisaged under relevant Sections of the NDPS Act falling under Chapter-V dealing with procedure to be followed right from its inception to conclusion. There happens to be authorization under the act to different machineries such as Central Excise, Narcotics, Customs, Revenue, Intelligence or any other Department of the Central Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 3 Government including Para Military Forces or the Armed Forces and in likewise manner of the State Government which includes the police and further there happens to be procedure, apart from others, to make search and seizure at different counts in different way however contains a safeguard to be followed right from seizure as is evident from Section 42 of the Act which deals with an obligation upon the part of the authority concerned to inform in writing to the immediate superior officer regarding search and seizure within 72 hours (as amended). For better appreciation Section-42 of the NDPS Act is incorporated hereinafter:- 42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or 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 Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 42 (2)- Where an officer takes down any information in writing under sub-section(1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 4 thereof to his immediate official superior. 12. Whether its non compliance will vitiate the trial, the same has been taken into consideration times without number moreover, settled at rest by the Constitution Bench in the case of Kernal Singh v. State of Haryana as reported in 2009 Cri.L.J. 4299 . 13. Before coming to the principle decided in the case (supra) it looks pertinent to incorporate facts of the case because of the fact that date of occurrence of instant case also happens to be before amendment of Section 42(2) of the Act by amending Act 9 of 2001. On getting information on 12.01.1988 that one Iqbal Syed Hussain was trying to transport Charas upto Shahpur in an auto-rickshaw at about 4:00 P.M., police party intercepted and searched and found four gunny bags having ten packets of Charas found concealed therein. 14. The amendment in Section 42(2) of the NDPS Act was brought by amending Act 9 of 2001 whereby the word "should forthwith send a copy thereof to his immediate official superior" was substituted with "within 72 hours". As held in Basheer @ N.P. Basheer v. State of Kerala (2004) 3 SCC 609, the law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. Hence, it could safely be said that on account of apprehension of appellant on 26.10.2000, the then requirement prevailing under Section 42 of the Act was to be complied with. 15. While dealing with the ambit & scope of Section 42, and its subsequent amendment, the Hon€ble Apex Court in Kernal Singh (supra) case dealt with the same in following manner:- 15. Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused. 16 ************ Then under para 17, the principles have been laid down in following terms:- Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 5 17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: 2000 A (a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub- sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 6 16. In Sukhdev Singh v. State of Haryana reported in 2013 (1) BLJ SC 158 again the issue in hand has been dealt with holding that non-compliance of requirement of Section 42 of the NDPS Act will vitiate the trial. 18. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused concluded by judgment of conviction dated 4th July, 1998. Thus, it will be the unamended Section 42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance. *********** *********** 21. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of NDPS Act. 22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery. 23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not optional as stated by this Court in the case of Karnail Singh (supra). ************ Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 7 25. Before we part with this file, we consider it the duty of the Court to direct the Director General of Police concerned of all the States to issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the case of Karnail Singh (supra). 17. In Kishan Chand v. State of Haryan reported in AIR 2013 SC 357, again this issue has been subject matter of adjudication and the same has been answered in following manner:- 16. We are unable to contribute to this interpretation and approach of the Trial Court and the High Court in relation to the provisions of sub- Section (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. 17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513], a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (supra), again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But, if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case. The Court in paragraph 35 of the judgment held as under:- 35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 8 (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. 18. Following the above judgment, a Bench of this Court in the case of Rajinder Singh (supra) took the view that total non-compliance of the provisions of sub-Sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however, be countenanced. 19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh (supra) carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds. Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 9 18. Now coming to the facts of the case in hand, admittedly, PW-2 is Officer In-Charge of the Ravilganj P.S. who also happens to be the informant as well as I.O. After going through his evidence it is abundantly clear that there is total lacking of compliance of Section-42 (2) of the NDPS Act because of the fact that no Sanha entry has been brought on record to support that it was ever reduced into writing nor there happens to be other supporting document to infer that the information to that context was ever communicated to superior authority. Virtually, for want of relevant document it looks unsafe to rely upon the oral evidence of PW-2 when there happens to be absence of the fact of recording of Sanha in the written report and therefore found to be development in the prosecution case to plug the loopholes. In like wise manner, the written report also lacks the averment whether information was given to superior officer. 19. PW-2 himself also stood as an Investigating Officer. That means to say, his status happens to be that of informant as well as of I.O.. Even while discharging function as Investigating Officer, he did not adventure towards station diary entry followed with informing the superior officer. From his examination-in-chief covering under para 1 to 7, there is also absence of disclosure that he had ever intended to comply with the requirement of Section 42 (2) of the NDPS Act by having the information conveyed to his superior officer in terms of obligation cast upon him "forthwith". Hence, there is absolutely non compliance of Section 42 of the NDPS Act. 20. Because of the fact that due to non compliance of mandate of Section-42 the judgment impugned has become illegal, as such there is no necessity to proceed with other points so canvassed at bar. 21. Hence, the judgment of conviction and sentence rendered by the trial court is set aside. The appeal is allowed. The appellant is in custody. He is directed to be released forthwith if not wanted in any other case. (Aditya Kumar Trivedi,J.) (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) 22. I have perused the aforesaid judgment prepared by my learned brother but with great respect to him, I am not in a position to persuade myself to agree with his reasonings and conclusions in allowing the appeal by way of acquittal of the sole appellant only on account of alleged non-compliance of the provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as „the NDPS Act€). The reasons for recording my difference of opinion are as follows: 23. As noted above, this appeal is directed against the judgment of conviction dated 7th February, 2008 passed by the 1st Addl. Sessions Judge, Saran in N.D.P.S.Case No. 15/2000, whereby and whereunder the sole appellant Raju Mistri @ Riyazuddin has been convicted for offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as „the NDPS Act€) for having been in possession and transporting 90 kgs. of Charas without licence by Jeep No. WBC 4049 as also the order of sentence dated 8.2.2008 convicting the aforesaid sole appellant for undergoing Rigorous Imprisonment for 20 years as also payment of fine of Rs. 2 lacs. Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 10 24. The prosecution case is based on a written report of one Paras Nath Singh, Officer In-charge of Revilganj Police Station at 11.45 A.M. on 26.10.2000 at village Bhadpa on Chhapra Manjhi highway wherein he had stated that on receiving a confidential information at 10.45 a.m. at Revilganj Police Station that a gang of international smuggler was carrying huge amount of Charas in a Jeep and on receiving this information he having made Station Diary Entry had immediately rushed in search of Jeep alongwith R.N.Pandit, Sub Inspector of Police, Kishun Das, Sub Inspector of Police, R.K.Tiwary, Assistant Sub Inspector of Police, S.Paswan, Assistant Sub Inspector of Police as well as members of the Reserved Force, namely, Umesh Pandit, Contable, Sanjay Thakur, Constable, Akhilesh Baitha, Contable, Verma Yadav, Constable as well as the driver of Police Jeep BHD 7854, namely, Dudhnath Singh and had intercepted the jeep of a black colour bearing registration No. WBC- 4049 at 11:00 a.m. which was being driven and take away towards western side. The informant Police Officer has further stated that he alongwith his members of the raiding party had got the aforesaid jeep WBC 4049 stopped and apprehended the jeep driver has disclosed his name as Raju Mistri @ Riyazuddin describing himself to be the resident of Nai Bazar, Police Station Bhagwan Bazar, District Saran and when the papers regarding jeep was demanded by him from the jeep driver he could not produce any such document. It is said that thereafter in presence of two independent witnesses, namely, Kashi Nath Singh and Musafir Sharma the jeep was searched, and from the back portion of the jeep huge quantity of Charas kept inside the iron safe in built box between the two seats of the jeep, weighing in all 90 kgs in 20 packets of 2 kgs. 4 packets of 1 kg and 66 packets of ½ kg. were recovered for which a seizure list was prepared at 11:15 a.m. at the spot. 25. The informant Police Officer has also stated that on further enquiry made from the appellant, the jeep driver, he had stated that the jeep belonged to one Nanhe Mistry who was the owner of a motor garrage. According to the informant Police Officer the appellant had also stated that on 22.10.2000 he had gone to Kathmandu (Nepal) alongwith Nanhe Mistry and Charas was purchased and was stored in the iron safe in built box between the two seats of the jeep. The informant Police Officer in his written report had further stated that the appellant, jeep driver, had also stated that on 25.10.2000 they had returned to the jeep garrage of Nanhe Mistry and he had kept the jeep over there in the night and on the next morning i.e. 26.10.2000, Nanhe Mistry had asked the appellant to drive the jeep to Kanpur while Nanhe Mistry was separately moving in another vehicle by keeping a watch surveillance on the jeep of the appellant. According to the informant it was appellant, jeep driver, who had accepted that when the jeep was intercepted by the police party Nanhe Mistry alongwith his three associates who were in another vehicle had fled away while he (appellant) was caught hold of and the Charas was recovered in his presence from the jeep. 26. It is on the basis of the aforementioned written report of the Officer In-charge of Revilganj Police Station that Revilganj P.S.Case No. 137/2000 dated 26.10.2000 was instituted under sections 22/23/24 of the NDPS Act wherein the police after investigation had submitted the charge sheet both against the appellant as also Nanhe Mistry. 27. It is significant to note here that the trial of this case was initially taken up and by a judgment dated 18.7.2002 Sri Krishna Prasad Verma, 8th Addl. District and Sessions Judge, Chapra had acquitted the appellant for offence under sections 22/23/24 of the NDPS Act but when this judgment came to the notice of this Court in course of application for anticipatory bail filed by the Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 11 co-accused Nanhe Mistry this Court by an order dated 26.2.2003 in Cr.Misc.No. 24907/2002 had not only rejected such prayer of anticipatory bail of the co-accused Nanhe Mistry but it had also issued notice to the appellant as to why such judgment of his acquittal should be set aside and a re-trial be held because the trial had been conducted in a perverse manner and as such the judgment of his acquittal both on fact and in law. It is also not in dispute that upon service of notice to the appellant in the suo moto revision application, Cr.Revision No. 183/2003 and after hearing the parties an order dated 20.8.2004 was passed setting aside the judgment of acquittal of the appellant dated 18.7.2002, which reads as follows: " Heard. This revision petition is directed against the judgment of acquittal dated 18.7.2002 by which Sri Krishna Verma, 8th Addl. District and Sessions Judge, Chapra has acquitted the opposite party Raju Mistry for the offence under sections 22, 23 and 24 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation is that 95 kgs. Charas was recovered from his conscious possession. While hearing the anticipatory bail application of one Nanhe Mistry who is accused along with Rajy Mistry, the learned Single Judge of this Court has noticed that Raju Mistry has been wrongly acquitted. Accordingly, notice was issued to Raju Mistry and he has appeared in the case. From perusal of the entire order sheet of the Court it appears that when the witnesses did not turn up non-bailable warrants of arrest was issued against them by the court below, however, without waiting for the execution report the court below closed the prosecution case and acquitted Raju Mistry from the charges levelled against him. Law is well settled that when the court issues process then it is duty to see that the process are executed otherwise there will be mis-trial. The trial court was in hurry to close the case as it appears from the perusal of the entire records. Thus, on this ground alone, order of acquittal is vitiated in law and as such, the judgment of acquittal is set aside and the matter is remitted back to the trial court to proceed afresh in accordance with law. In the result, the judgment of acquittal is set aside. Let the records be sent immediately to the court below." 28. It is thereafter that the trial of the appellant was once again conducted after charges were framed against him afresh on 8.3.2006 for offence under section 20(b)(ii)(C) of the NDPS Act. 29. The prosecution in support of its case had examined in all nine witnesses, out of whom P.W.1 Ram Narayan Pandit, P.W.2 Paras Nath Singh (informant), P.W.3 Raj Kishore Tiwari (ASI), P.W.4 Mosafir Sharma, P.W.5 Kashi Nath Singh, two search witnesses, P.W.6 Arjun Yadav (SI), P.W.7 Akhilesh Baitha (constable), P.W.8 Ram Janam Pathak (ASI) and P.W.9 Dudh Nath Singh, the driver of the police jeep. Additionally, the prosecution had also produced the documentary evidence in form of seizure list (Ext.1), signature on seizure list (Exts. 2, 2/1 and 2/2), self statement of the informant (Ext.3), formal F.I.R. (Ext.4), Malkhana entry (Ext.5), report of Forensic Science Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 12 Laboratory (Ext.6). In addition to it the prosecution had also produced the material Ext.I being 98 packets of Charas. 30. The appellant and co-accused Nanhe Mistry, who were put on trial together in course of their defence, had also examined two defence witnesses, namely, D.W.1 Md. Jalaluddin and D.W.2 Md. Ibrahim. The main plank of the defence of the appellant and the other co-accused being one of complete denial of the occurrence in question and their being falsely implicated in this case was, however, not sought to be explained with the help of any documentary evidence. 31. The trial court after conducting the trial had acquitted co- accused Nanhe Mistry on the ground that there was no oral or documentary evidence to establish his complicity but the appellant on the basis of evidence on record was held guilty for offence under section 20(b)(ii)(C) of the NDPS Act and sentenced to both undergo Rigorous Imprisonment for a period of 20 years and also pay a fine of Rs. 2 lacs. 32. Mr. Ashutosh Kumar, learned counsel appearing on behalf of the appellant, while assailing the impugned judgment has submitted that there is complete dearth of any reliable evidence for connecting the appellant in the alleged occurrence, inasmuch as the two independent witnesses have been declared hostile by the prosecution and rest of them being police personnel, their evidence could not be treated to be trust-worthy, especially when it is found that the informant (P.W.2) is also the Investigating Officer. In this regard he has submitted that there is complete violation of the provisions of Section 42 of the NDPS Act, inasmuch as no information was recorded by the informant Police Officer prior to taking steps for search and seizure nor any information was sent by the informant to his superior Police Officer. He has further submitted that there is also violation of the provision of Section 52A(2), inasmuch as the recovered alleged charas were not sampled under the orders of the court. Reliance in this connection has been placed by him on the judgment of this Court in the case of Kallu Seikh v. the State of Bihar, reported in 2010(2) PLJR 228 and in the case of Ram Singh v. the State of Bihar, reported in 2011(1) PLJR 195. He has also submitted that in view of above non-compliance of Section 52A(2) of the NDPS Act the report of the Forensic Science Laboratory should not be relied, especially when such Forensic Science Laboratory report is delayed for a period over six years and the maker of the report has also not been examined. He has also submitted that in any event when co-accused Nanhe Mistry has been acquitted who according to the prosecution was the actual person not only owning the charas and the jeep but also main brain behind smuggling of the alleged Charas, the appellant being merely a jeep driver was definitely entitled for being given the benefit of doubt. 33. Per contra, learned counsel for the State, has submitted that first of all acquittal of co-accused Nanhe Mistry in no way would be detrimental to conviction and sentence of the appellant who was not only apprehended at the spot but he being the driver of the jeep from which 90 kgs. of Charas was recovered, cannot escape his liability under section 20(b)(ii)(C) of the NDPS Act. In this regard she has also submitted that the information being a confidential, cryptic and vague information received by the Officer In-charge (P.W.2) of the Police Station there was no requirement of its being recorded in terms of section 42(1) of the NDPS Act. Alternatively she has submitted that there is no denial to the fact that the Officer In-charge before leaving the Police Station on receiving Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 13 confidential information had made Station Diary Entry, a fact which was proven by him in course of trial and when the First Information Report was immediately also recorded and not only information was given to the court about recovery of contraband (charas) but also about arrest of the appellant to both the superior authority, namely, Deputy Superintendent of Police and the Superintendent of Police but also to the court, it cannot be said that the provision of Section 42(2) of the NDPS Act was also not followed. As with regard to non-compliance of the provision of section 52A(2) of the NDPS Act it has been submitted that not only the sample of the seized Charas was taken and was retained which was sent to the Forensic Science Laboratory after the retrial was directed by this Court but the Forensic Science Laboratory report also had conclusively proven the sample of contraband being Charas, a fact which could not be challenged by the appellant. She has further submitted that in the present case when retrial was ordered by this Court, a few of the handicap created on account of earlier uncanny hurry shown by the trial court which had led to strong disciplinary action against the Presiding Judge, should be balanced by examining the aspect relating to prejudice cause to the appellant on account of alleged violation of the provision of section 42 and 52A(2) of the NDPS Act. 34. There would be no difficulty in rejecting the first submission of the learned counsel for the appellant that the case of the appellant and that of co-accused, who has been acquitted by the trial court, stands on an altogether different footing. It was the appellant who had been apprehended at the spot alongwith Jeep with 90 kilograms of Charas whereas the name of the co-accused had only surfaced on the statement given by the appellant himself. In that view of the matter, if there was no connecting material in the evidence of the raiding party which could have brought home the charge against the co-accused within the fold of the prosecution case, his acquittal in no way would enure to the benefit of the appellant whose case, as noted above, is absolutely on a different footing. 35. That would bring me to the second submission of the learned counsel for the appellant question of compliance of Section 42(1) and (2) of the Act. In this regard it has to be noted that Section 42 of the Act on the date of occurrence, being 26.10.2000, was slightly different, inasmuch as the same, prior to its amendment in view of Amendment Act 9 of 2001 brought in force with effect from 2.10.2001, had provided for power of entry search, seizure and arrest without warrant or authorization as contemplated under Section Sub-Section(1) of the said Section and reporting of the information reduced in writing to a higher officer forthwith in consonance with Sub-section (2) of that Section. Infact on 02.10.2001, when amendment was made in Section 42(2) of the Act the word "forthwith" was substituted by the words "within seventy two hours" binding the officer concerned to send the information to the superior officers within seventy two hours from the time of receipt of information. The amendment in Section 42(2) of the Act was made a view that information to the superior officer must reach not only expeditiously or forthwith but definitely within seventy two hours, the time contemplated under ammended sub-section (2) of Section 42. 36. Thus having regard to the provisions of Section 42 as it existed on the date of occurrence i.e. 26.10.2000, prior to amendment on 02.10.2001, the requirement was two fold namely (1) recording of the information in writing and (2) sending such information forthwith to his immediate superior officer. Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 14 37. From the reading of the section 42 of the NDPS Act it is also quite clear that if there is specific information about the commission of offence under Chapter IV of the NDPS Act it is required to be reduced in writing and the said information of such commission of crime which has been reduced in writing is further required to be sent to the superior officer forthwith. As a natural consequence it would also follow that it does not mean that any or every vague or unspecific information in connection with NDPS Act and about likelihood of commission of offence under the NDPS Act is required to be reduced in writing. A vague information in connection with NDPS Act cannot be equated with the information of commission of offence under Chapter IV of the NDPS Act as contemplated under the NDPS Act. Such vague information in connection with NDPS Act may at best provide a basis for suspicion about the commission of crime but does not furnish a positive information that crime has been committed or that the said information was with regard to the commission of offence under Chapter V of the NDPS Act. This aspect of the matter has been explained by the Apex Court in the case of Surajmal Kania Lal Soni v. State of Gujarat, reported in 1994 SCC (Cri) 1229, wherein it was held as follows: "4. In this appeal the main submission is that the Police Inspector did not reduce the information into writing and therefore the mandatory provision has been violated. It must be noted that according to the Police Inspector, only some vague information was passed on to him. No information as such came and gave the information which as per the relevant section was to be reduced into writing." 38. This Court is also not unmindful of the subsequent Constitution Bench judgment in the case of Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539, wherein only complete non- compliance of the provision of Section 42 of the NDPS Act has been held to be fatal and the Constitution Bench itself had explained the law in this regard in the following words:- "(a) The officer on receiving the information (of the nature referred to in sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the office. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 15 seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether here is adequate or substantial compliance with section 42 or not a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001." (underlining by me for emphasis) 39. Thus in the light of the law laid down by the Apex Court in its Constitution Bench judgment in the case of Karnail Singh (supra) failure to record even a vague information cannot be held to fatal in all circumstances. In the present case also only a vague information was received by the informant police officer at 10:45 a.m. on 26.11.2000 while he was in Police Station that an international gang of smugglers had been trafficking huge quantity of Charas in a jeep and after recording this fact in Station diary, he with police force had rushed and had intercepted the jeep with the appellant carrying huge quantity of Charas at 11:15 a.m. on 26.10.2000. 40. Thus, recording of Sanha entry prior to the informant police officer leaving the police station upon receiving the confidential, cryptic and a vague information at 10:45 a.m. and also reaching village Bhadwa at Chhapra Manjhi Road at a distance four and half kilometer from police station within 15 minutes at 11:00 a.m. leading to apprehending of the appellant with 90 kilograms of Charas within next fifteen minutes inasmuch as the seizure list with the thumb impression of appellant was prepared at 11:15 a.m. at the spot and the fardbayan was also recorded there itself 11:45 a.m. reading as follows:- ^^eSa v0 fu0 ih0 ,u0 flag Fkkuk izHkkjh fjfoyxat Fkkuk vkt fnukad 26-10-200 dks le; 11-45 cts xzke&Hkknik esa Nijk eka>h eq[; lM+d ij viuk Lofyf[kr c;ku vafdr djrk gwW fd vkt fnukad 26-10-2000 dks le; djhc 10-45 cts Fkkuk ij xqIr lwp uk izkIr gqvk fd vUrjkZ"Vzh; rLdj fxjksg ds yksx ,d thi ls Hkkjh ek=k esa pjl ysdj if'pe dh vksj tk jgs gSa lwpuk ij eSa v0 fu0 ih0 ,u0 flag Fkkuk izHkkjh fjfoyxat lkFk v0 fu0 vkj0 ,u0 iafMr] v0 fu0 fd'kqu nkl0 l0 v0 fu0 vkj0 ds0 frokjh] l0 v0 fu0 ,l0 iklokuA lHkh fjfoyxat Fkkuk lqjf{kr cy ds vk0 931 mes'k ikaM; Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 16 s vk0 917 ds Bkdqj] vk0 891 vf[kys'k cSBk vk0 906 oekZ ;kno dslj dkVh thi la0 BHD 7854 ds pkyd nq/kukFk flag ds lkFk tc le; djhc 11-00 cts xzke Hkknik ds ikl vk;s rks ,d dkyh jax dh thi ua0 WBC 4049 ftls ,d pkyd pykdj if'pe dh vksj ys tk jgk gSa lansg ds vk/kkj ij vius lkFk vk;s lg;ksfx;ksa ds lg;ksx ls mDr thi ua 0 WBC 4049 dks jksds rcrd vklikl ds ykx Hkh tek gks x;s thi pkyd ls uke irk iwNus ij mlus viuk uke jktw feL=h mQZ js;ktqn~nhu is0 cQkrh dqjSHkh lk0 ubZ Fkkuk&Hkxoku cktkj ftyk&lkj.k crk;kA xkM+h dkxtkr ekaxus ij bUgksua s dksbZ dkxtkr ugha izLrqr fd;k mifLFkr yksxksa esa ls nks Lora= xokg 0¼1½ dnehukfk is0 Lo0 ckcwjke nfgu flag] lk0&ea>uiqjk Fkkuk eka>h ¼2½ eqlkQhj 'kekZ is0 Jh jkeuxhuk 'kekZ lk0 lsefj;k Fkkuk&fjfoyxat nksuksa ftyk lkj.k ds le{k thi ua0 WBC 4049 dh ryk'kh ysus ij thi ds ihNs okyk nksuks lhV ds chp es cus yksgs ds rg[kkuk ls iksfyfFku esa fd;k gqvk pjl dk djhc nks fdykss otu okyk 2 iksfyfFku esa iSd fd;k gqvk pjl djhc ,d fdyks otu okyk 4 iSdsV rFkk iksfyfFku esa iSd fd;k gqvk djhc vk/kk fdyksa otu okyk pjl dk 66 iSdsV dqy otu djhc 90 fdyks xzke cjken gqvkA** being not in doubt I will have no hesitation in holding that there was substantial compliance of the first part of Section 42(1) of the NDPS Act because there is at least an entry in the Station Diary of the police station with regard to the confidential vague information. 41. In this regard I have also carefully analyzed the aspect relating to genuineness of such fardbayan because after preparation of seizure list (Exhibit-1) recording of ferdbayan (Exhibit-3) at 11:45 a.m., the formal F.I.R. (Exhibit-4) was also recorded at 1:00 p.m. leading to Institution of Rivilganj P.S. Case no. 137 of 2000 for offence under Section 22/23/24 N.D.P.S. Act and was also received in the concerned court within twenty fours as in apparent from the endorsement made thereon by special Judge not only on the F.I.R (Exhibit-4) but also on the Seizure List (Exhibit-1) in the date of 27.10.2000. In view of my aforesaid findings I am of the firm opinion that there was substantial compliance of the first part of Section 42(1) of N.D.P.S. case by the informant police officer by way of making entry and recording of his receipt of confidential information in station diary of police station of trafficking of huge quantity of Charas by an unknown international gang of smugglers in a Jeep. 42. From the evidence on record it is also established that on a confidential information received by the informant Police Officer, PW2, he had made Station Diary Entry as has been stated by him in his paragraph no.1 of his deposition which reads as follows: ^^vkt fnukad 26-10-2000 dks eSa fjfoyxat Fkkuk izHkkjh ds in ij inLFkkfir FkkA ml fnu 10-15 cts gesa lwpuk feyh fd ,d dkyk thi ls vUrjk"Vzh; fxjksg ds yksx pjl ysdj tk jgs gSa eSa lugk ntZ dj vius lg;ksxh ,oa Fkkuk eas inLFkkfir inkf/kdkjh v0 fu0 jke ukjk;.k iafMr] v0 fu0 fd'kqu nkl] A.S.I. lqja sUnz ikloku Ist A.S.I. jktfd'kksj frokjh ,oa Fkkuk iqfyl cy ds lkFk ljdkjh thi ls ihNk dj xzke Hkknik ds ikl iDdh lM+d ij mijksDr dkyh thi ua0 W.B.C. 4049 dks :dok;sA iqfyl dks ns[kdj vkl ikl ds cgqr yksx bdV~Bk gks x;s pkyd ds uke irk iwNus ij viuk uke jktw mQZ fj;ktqfn~nu lkfdu u;h cktkj Fkkuk Hkxoku cktkj ftyk lkj.k crk;kA ogka tqVs xzkeh.k esa ls nks Lora= xokgksa ds le{k thi dh ryk'kh yh x;h rks ihNys nksuksa lhV ds uhps cuk;s txg ls iksyhFkhu esa packed fd;k gqvk djhc 2 kg otu okyk 29 iSdsV] djhc ,d (1kg) fdyks otu okyk pkj iSdsV rFkk djhc 500 gm otu okyk 66 iSdsV pjl cjken fd;k x;kA^^ Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 17 43. In the cross-examination, in paragraph no.8 the informant PW2 had clarified that the information received by him was a confidential information: ^^8- xqIr lwpuk feyh Fkh bldk lugk ntZ fd;k xqIr lwpuk feyh Fkh fd dkyh jax ds thi ls pjl ys tk jgs gSa izLFkku dk vyx ls entry ugha fd;kA lHkh yksx dk uke fy[kk;s yksx esjs lkFk Fkkuk nkSM+ jgs gSaA Hknik xka esa ml xkao ls gksdj nwljs xko tkus gsrq x;k gwAW ^^ 44. This fact with regard to receipt of confidential information has also been fully supported by PW1, the author of the written report, who in paragraph no.4 had stated as follows: ^^lwpuk xqIr FkhA lwpuk nsus okyk dk uke dgha vafdr ugha gSa lwpuk 10-45 cts fnu esa feyhA lwpuk dk LVs'ku Mk;jh esa vafdr fd;k x;kA thi fjohyxat Fkkuk ls fudy vkxs fudy x;h Fkh vkSj Hkknik xzke esa feyhA ml ij bl le; dsoy pkyd jktw FkkA ogh xkM+h pyk jgk FkkA^^ 45. Now coming to the question of compliance of second part of requirement of sending information to the superior officer is also substantiated in the evidence of PW1, the police officer who was present at the time of search and seizure and had also scripted the ferdbayan (Exhibit-3) of informant PW2 at the spot. in paragraph no.7 and 8 of his cross-examination had himself stated that the D.S.P. and S.P. of the Department were immediately given information of the seizure and the Superintendent of Police had also come at the spot. In paragraph no.6 of his evidence PW2 has stated that on an information given by him the Superintendent of Police had given orders that the case should be entrusted to the authorities of the Central Excise Department. The order sheet of the trial court dated 14.11.2000 would also bear it out that an application was immediately filed before the court for handing over the case to the officials of Central Excise Department and in fact an order was also passed to this effect by the court below on 14.11.2000 and only when the authorities of the Central Excise Department had filed an application on 3.1.2001 for recall of the order dated 14.11.2000 asking the authorities of the Police Department to continue with the investigation, that the investigation case had remained with the Police Department which submitted the charge sheet on 23.1.2001. 46. In the light of my aforesaid finding it cannot be said that there was a complete non-compliance of the provision of Section 41(1) and (2) of the NDPS Act and on the facts of this case it can be safely held that when such information was recorded in the Station Diary by PW2 prior to leaving the police station and he had also sent the information to the Superintendent of Police, of the recovery of the Charas as such, it cannot be said that there was total non-compliance of Section 42 of the NDPS Act, even if it be assumed that such information received by PW2 was an information as contemplated under section 42 of the NDPS Act. So looking from either of the angles it cannot be said that there was any breach of provision under section 42 of the NDPS Act. In coming to my such conclusion, I also find support from the division bench judgment of Bombay High Court in the case Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 18 of Babulal Hiralal Sainy & anor. v. State of Maharashtra, reported in 1995 Cri.L.J. 4105, wherein it was held as follows: "It would be thus seen that firstly by the information which was received by P.W.14 Sunil Paraskar that some persons from neighbouring State had arrived at Nagpur with large quantity of brown sugar and that they were in search of customer was not specific information relating to specific commission of an offence under Chapter IV of N.D.P.S.Act and, therefore, was not an information as contemplated under section 41 or 42 of the N.D.P.S.Act and, therefore, non- compliance of the said provisions would not vitiate the trial and affect the prosecution case. Alternatively, even if it be assumed that the information received by P.W.14 Shri Suni Paraskar was an information as contemplated under sectins 41 and 42 of the N.D.P.S.Act the said information has been reduced to writing, which is revealed from station diary sanha (Exh. 138) and the said information was recorded prior to the search and seizure and, therefore, it cannot be said that the said information has not been reduced to writing. That information is also reported by P.W.14 Sunil Paraskar to his superior officer Deputy Commissioner of Police Shri Mathur, which is apparent from the deposition of P.W.14 Sunil Paraskar. Therefore, there is no merit in the contention of the learned counsel for the appellants/ accused that there was breach of mandatory provisions of Section 41 or 42 of the N.D.P.S.Act and we do not find any substance in the submission of Mr. Rizwy that there was total non-complaince of Sections 41 and 42 of the N.D.P.S.Act." 47. This aspect of the matter has been also considered by the Apex Court, after the Constitution Bench Judgment in the case of Karnail Singh (supra) and reference in this connection may be usefully made in the case of Bahadur Singh vs. State of Haryana, reported in (2010)4 SCC 445, wherein it was held as follows: "18.In the instant case, as soon as the investigating officer reached the spot, he sent a wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his immediate higher officer and subsequent to recovery of the contraband, a ruqa containing all the facts and circumstances of the case was also sent to the police station from the spot from where the recovery was made on the basis whereof the first information report was registered and copies thereof were sent to the Ilaqa Magistrate and also to the higher police officers. As was held by the High Court, there was, therefore, substantial compliance with the provisions of section 42 of the NDPS Act and no prejudice was shown to have been caused to the accused on account of non-reduction of secret information into writing and non-sending of the same to the higher officer immediately thereafter. 19. Apart form the decision in Sajan Abraham Case, the decision of the Constitution Bench in Karnail Singh case, has also made it clear that non-compliance with the provisions of section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance with section 42 or Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 19 not is a question of fact to be decided in each case." 48. The same view was taken by the Apex Court also in the case of Dalel Singh vs. State of Haryana, reported in 2010(1) SCC 149, wherein it was held as follows: "9. In this backdrop when we see the prosecution case here, it is apparent that the information was received by PW6 Inspector Mahabir Singh when he was not in the police station but was on patrol duty in the town. He immediately, after the receipt of the information, informed his superior officer on wireless. There is no doubt that he did not record it in writing but passed it on to his superior ASP Kala Ramachandran by wireless. The fact that the superior officer was informed is deposed to by ASP Kala Ramachandran who appeared as PW5. We have seen her cross-examination which really is totally irrelevant. Similarly, we have gone through the evidence of P.W.6 Inspector Mahabir Singh. Again, his cross-examination is also redundant cross- examination. Both the witnesses have deposed about the information having been transmitted through wireless and in our opinion would be a substantial compliance with section 42 of the NDPS Act since the situation was of an emergency. Had the police officer not moved in the right earnest, the appellant- accused would have had an opportunity to remove the contraband charas and escape from the arms of police." 49. Thus in the facts of the present case also it has to be held that there was substantial compliance of Section 42 of the Act because had the informant police officer on 26.10.2000 having received the confidential information at the police station at 10:45 a.m. not saving into immediate action by reaching in Village-Bhadpa at a distance of 4.5 kilometers from police station in next fifteen minutes (i.e. 11:00 a.m.) and not intercepted the moving Jeep of the appellant with Charas on Chhapra Manjhi Road, the recovery of huge amount of Charas by 11:15 a.m. could not have been made. In that view of the matter the subsequent information given by him to the Superintendent of Police after recovery cannot be held to have vitiated the trial. This therefore is not a case of complete not compliance of Section 42 of the Act rather there has been substantial compliance as has also been explained in a recent judgment of the Apex Court in the case of Sukhdev Singh Vs. State of Haryana reported in 2013(2) SCC 212. "In the present case, the occurrence was of 4.2.1994. The trial of the accused concluded by judgment of conviction dated 4.7.1998. Thus, it will be the unamended Section 42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the investigating officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the investigating officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance with Section 42 is mandatory and there cannot be an escape from its strict compliance." Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 20 50. It has to be however borne in mind that in the case of Sukhdev Singh (supra) the Apex Court had come to the conclusion that there was noncompliance of the provisions of Section 42 of the Act and thus while reversing the judgment of conviction of Punjab and Haryana High court, the facts of that case was taken into account in the following words:- "24. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the investigating officer, PW1 had more than sufficient time at his disposal of comply with the provisions of Section 42. Admittedly, he had received the secret information at 11:30 a.m. but he reached the house of the accused at 2 p.m. even when the distance was only 6 km. away and he was in a jeep. There is not an iota of evidence, either in the statement of PW1 or in any other documentary form, to show what the investigating officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of the NDPS Act. 25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post- recovery (sic prior to recovery)." 51. Thus in my view, when in the present case the informant police officer having received and recorded the confidential information in station diary of the police station at 10:45 a.m. on 26.11.2000 rushed, chased and had intercepted the moving jeep of appellant and also recorded huge amount of Charas within half an hour on a highway it cannot be said that non-compliance of furnishing information, prior to recovery, to his immediate controlling officer in terms of Section 42(2) of the Act as it existed prior to 2.10.2001 would vitiate the trial and the consequential conviction of the appellant. The ammended provision of outer time limit of seventy two hours in Section 42(2) of the Act being in force only w.e.f. 2.10.2001, for giving such information to the immediate controlling authority, being not applicable to the present case on account of the date of occurrence being 26.11.2000 as explained by the Apex Court in Sukhdev Singh (supra) I have no hesitation in holding that the subsequent information after recovery admittedly given by the informant to the Superintendent of Police Saran would in the facts of present case would amount to adequate or substantiated compliance as held in paragraph no. 35(c) and (d) in the Constitution Bench judgment of the Apex Court in Karnail Singh (supra). 52. On the basis of my aforementioned analysis of facts and law I am of the view that the alleged non-compliance of the provision of Section 42(1) and (2) of the N.D.P.S.Act in the present case has not in any manner prejudiced the appellant or has vitiated the trial. Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 21 53. That would bring me to the last submission as with regard to violation of the provision of Section 52A(2) of the NDPS Act. Learned counsel for the appellant has submitted that in absence of a preparation of inventory of the seized Charas as required under section 52A(2) of the NDPS Act the whole trial has stood vitiated. In this regard strong reliance has been placed by him on the judgment of this Court in the case of Kallu Seikh (supra). 54. In the considered opinion of this Court the facts of the case of Kallu Seikh (supra) where seizure was made by the railway authorities and the seizure was made by the R.P.F. personnel would not apply to the facts of the present case in view of Section 55 of the NDPS Act authorizing the police to take charge of the article and seize and delivered. In the present the police itself had seized the articles and as such, there would be no question of applicability of the ratio laid down in the judgment of Kallu Seikh (supra). Similarly reliance placed on another Division Bench judgment in the case of Ram Singh (supra) does not seem to be apt and appropriate and the ratio laid therein will also not be applicable for a simple reason that the said search and seizure in that case was made by the Inspector, Customs and therefore, whatever was observed in paragraphs no 14 and 15 relied on by Mr. Ashutosh Kumar learned counsel will have to be read in the context of paragraph no.12, wherein it was held :- "12. Section 55 of the NDPS Act mandates that as soon as any article which is suspected to be a narcotic substance of drug is seized, it has to be put into the charge of the Officer Incharge of a Police Station and that police officer incharge shall allow the sampling of the seized article by the officer who had brought the substance or had accompanied the substance up to the police station for putting it into the charge of such an officer incharge. It is further directed by the provision that while sampling the article, the Officer Incharge of the police station has to put his own seal over the sampled article along with that of the officer who had been deputed for sampling the article. We do not have any evidence coming from any of the witnesses including P.W.3, the Superintendent of Police who was heading the preventive team that the article was, after its seizure, made over to the Officer Incharge of the police station in whose jurisdiction the seizure was made and that the said police officer was present and allowed the sample to be taken in his presence and in token thereof, he had put his own seal over the sampled article, which might be contained in any container. We do not have any evidence coming from any of the witnesses as to what happened of the article after it was recovered and seized. As per Section 52-A of the NDPS Act, it has to be produced before the Officer Incharge of the police station who is required to prepare an inventory of such substance containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, place of origin and other particulars as the officer may consider relevant for the identification of the narcotic substance. In case, the above formalities have been fulfilled, then the Officer Incharge of the police station has to make an application to a Magistrate for certifying the preparation of the inventory with above details and the Magistrate shall, as may appear from Section 55 of the NDPS Act, further certify the same. These are legal mechanism developed to check the tampering of any sort in the storage as also in sampling of the Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 22 seized article." 55. As noted above, the seizure of 90 kgs. of Charas was made by the Officer In-charge of the Police Station who had reported the matter to the Magistrate on that very day by forwarding copy of the F.I.R. and the seizure list (Exhibit-1) and it was unfortunate that the trial court had acquitted the appellant by a perfunctory judgment dated 18.7.2002 without adducing of any evidence and only after retrial was ordered by this Court, as noted above, that by the order dated 4.4.2006 the Sessions Judge on an application filed by the Officer In-charge of Revilganj Police Station had sent the seized Charas to Forensic Science Laboratory for its report and the report of the Forensic Science Laboratory clearly stating of receipt of wooden box enclosed with a cloth duly bearing seal and impression of the corresponding seal in the report of F.S.L. dated 21.1.2007 (Ext.6) was found to be Charas also known as Hasis. The aforesaid report of F.S.L. coupled with the fact that the Material Ext.1 being consignment of the seized Charas in 98 packets was also produced in the court on 10.10.2007 would leave nothing for speculation that the provision of section 52A(2) of NDPS Act was complied in letter and spirit. PW2 the informant in paragraphs 4, 9 and 10 of this evidence had specifically stated that the recovered Charas was kept in a box with seal in a Malkhana and the jeep inside the Police Station premises. P.W.3 also in paragraph 6 of his deposition had also supported the story of seizure and its being kept in Malkhana under seal. Thus, if the Forensic Science Laboratory had found the sealed box containing sample of Charas to be intact, much cannot be made out on account of delayed submission of the Forensice Science Laboratory report. 56. In coming to this conclusion I also find support from the Division Bench judgment of Gujarat High Court in the case of Aslambhai Ibrahimbhai Memon and anor. v. the State of Gujarat, reported in 1990 Cri.L.J. 1787, wherein apart from other things it was held as follows: "3.1. The first point that Mr. Saiyad has raised is that the seal of D.C.B. which was affixed on the forwarding letter to the Forensic Science Laboratory is not legible. We have perused the same today. Since it is handled in the trial court by number of hands, the seal is in the broken condition. However, the question is whether at the time when the samples of muddamal were sent to the Chemical Analyser of the Forensic Science Laboratory, the seal was intact or not. On perusal of the report of the Chemical Analyser, which is at Ext.12, it is clearly stated that they had received two parcels in the sealed condition and the said seal was similar to the specimen seal. This clearly disclosed that the said seal of D.C.B. which was affixed on the forwarding letter was intact and legible and, therefore, we do not find any substance in this contention." 57. In this regard it has to be kept in mind that the earlier prosecution case was closed on account of an inept handling by the trial court and ultimately such erroneous approach of the trial court was corrected by this Court by directing holding of retrial by an order dated 20.8.2004 in Cr.Revision No. 183/2003. If, therefore, the prosecution had suffered on account of the vitiated trial conducted by the court below leading to an erroneous judgment of acquittal dated 18.7.2002, the delayed action taken on the part of the trial court in sending the specimen in question to the Forensic Science Laboratory cannot be to the disadvantage of the prosecution, especially when the defence Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 23 has not been able to establish that the sealed box containing sample of Charas presented before the court had in any manner been tampered or that the quality of Charas on account of passage of time had deteriorated and it was not possible for the Forensic Science Laboratory to opine that the sample was that of Charas. As a matter of fact when the prosecution witnesses were also not cross-examined on this aspect, and the learned counsel for the appellant also has not questioned the correctness of the report of the Forensic Science Laboratory, much cannot be made out only on account of delayed dispatch of the Charas in course of retrial and the consequential report received from the Forensic Science Laboratory. 58. Thus, for the reasons indicated above, I am of the view that the prosecution has successfully proved its case against the appellant beyond reasonable doubt and consequently his conviction and sentence as awarded by the trial court is upheld. 59. In the result, this appeal fails and is, accordingly, dismissed. (Mihir Kumar Jha, J) 60. In view of our difference of opinion let the records of this appeal be placed before the Hon€ble the Chief Justice for its being placed before an appropriate Bench. (Mihir Kumar Jha, J) (Aditya Kumar Trivedi, J) Patna High Court The 25th of April, 2013. Md Perwez Alam/ Surendra/NAFR Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013 Indian Kanoon - http://indiankanoon.org/doc/191125218/ 24

trial20.pdf

Delhi District Court Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Author: Ms. Archana Sinha 1 IN THE COURT OF DR. ARCHANA SINHA ADDL. DISTRICT & SESSIONS JUDGE (CENTRAL−03) TIS HAZARI COURT / DELHI M. No. : 19/2013 in suit No. No. 1018/2008. Titech Engineers Pvt. Ltd. ..... Plainti Vs. Tirumula Tirupati Devasthanams ....Defendants/Petitioners 12.05.2015 ORDERS (On application dated 05−08−2013 moved under Order 9 Rule 13 CPC) 1. By way of this misc. application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, the J.Ds./the defendants in the suit ( hereinafter referred as the petitioners) have prayed for setting aside the judgment/decree dt. 06.12.2012 passed by the Ld. Predecessor of this Court, in Suit No. 1018/2008. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 1/19 2. The brief facts in narrow compass, relevant and necessary for the disposal of this application, are that the Decree Holder/the plaintiff in the suit ( hereinafter referred as the respondent) had accepted the tender invited by the petitioners/defendants for constructing its staff quarters at Andhra Ashram Rishikesh and the petitioners/defendants awarded the work contract for the value of Rs. 52,73,188/− and the respondent/plaintiff had expected the normal profit @ 15 % of the contract rate but the contract was rescinded illegally by the defendant thereby a suit for recovery of an amount of Rs. 17,57,311/− with pendentelite and future interest was filed and the suit was decreed ex−parte for the claimed amount of Rs. 17,57,311/− with pendentelite and future interest @ 12 % per annum till its realization vide Judgment/Order dated 06−12−2012. 3. In the application, it is averred that the case of the petitioners/defendants was represented by Mr. B. Parthasarthi, an Advocate of the Supreme Court but as he was not regularly M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 2/19 appearing in the District Courts, he assigned the case to Mr. R.C. Bhalla, an Advocate who was pursuing the case on behalf of Mr. B. Parthasarthi and under his guidance but unfortunately Mr. B. Parthasarthi expired in the year 2010−2011 and the Govt. of Andhra Pradesh had appointed a new lawyer in the Supreme Court and all the case files including that of this case were collected by the officials of the petitioners/defendants from Mr. R.C. Bhalla, the counsel who then stopped appearing in the present case believing that the case will be attended by the new counsel so appointed by the State of Andhra Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 1 Pradesh. And that vide letter dated 28−05−2013, the petitioners/defendants asked Sh. R.C. Bhalla, the Advocate, to appear on 01−07−2013 in another case titled as Titech Engineers Pvt. Ltd. Vs. Tirmula Tirupati Devasthanams, and there in that court, he came to know that in the present case an ex− parte decree has been passed against the petitioners/defendants on 06−12−2012 and only on obtaining 'knowledge' on 01−07−2013 about the decree, he had applied for M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 3/19 the certified copy of such decree/Judgment/order and the copy was received only on 15−07−2013 & then the petitioners/JDs had moved the present application for setting aside the ex−parte decree dated 06−12−2012. 4. In support of the application, Ld. Counsel appearing for the petitioners has submitted that due to the death of the previous counsel as the petitioners had lost the track of the case and their non− appearance was not intentional as they were prevented to appear on the date of hearing for sufficient cause and on obtaining 'knowledge' on 01−07−2013 about an ex−parte decree passed against them, they could move the present application praying to set−aside the judgment/decree dated 06.12.2012 and they may be allowed to contest the suit so that the suit can be decided on merits. 5. Ld. Counsel for the respondent/plaintiff has vehemently countered the application submitting that there exits no reasonable ground or sufficient cause in the present application M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 4/19 for setting aside the decree and that the contentions regarding the period of death of Mr. B. Parthasarthi in the year 2010−2011 were factually wrong as Mr. B. Parthasarthi had expired on 25−11−2007 and the petitioners have not placed any records or details about the appointment of another counsel by the Govt. of Andhra Pradesh or collection of the case file of this case by petitioners from Sh. R.C. Bhalla, Advocate, after the death of Mr. B. Parthasarthi as Sh. R.C. Bhalla, the counsel had not only continued appearing for about 4 years after the date of death of Mr. B. Parthasarthi, in the case during trial upto 17−11−2011 and he has filed his Vakalatnama, duly signed by the petitioners in that case but also even the present application was moved by the same counsel who had filed his Vakalatnama for them, that was also duly signed by the petitioners' authorized representative, an Assistant Engineer and no letter/document of assignment of any of the two cases, issued by Govt. of Andhra Pradesh is filed to show that the Govt. of Andhra Pradesh used to appoint counsels either in that case or for the application as alleged, thus, the contentions regarding the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 5/19 obtaining of the knowledge on 01−07−2013 about passing of this ex−parte decree during the appearance in another case are factually incorrect and not supported by any document/record to substantiate such contentions and thus the present application is hopelessly time barred and is liable to be dismissed. 6. I have given my thoughtful considerations to the submissions made by the parties through their counsels, in the light of the records placed before me. 7. In the instant case, the petitioners/ who were defendants in the suit, were duly served upon the summons of the suit and thereupon they have caused their appearance on 21−05−2007 through Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 2 their counsel namely Sh. R.C. Bhalla, an Advocate who had filed his Vakalatnama duly signed by the executive officer of the defendants ( petitioners) on their behalf and he had filed the written statement on 03−08−2007 along with the affidavit of one Sh. Chandra Shekhar Reddy, Deputy Manager of the defendant No. 1 ( JD No. 1) and had sweared the affidavit on behalf of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 6/19 both the defendant Nos. 1 & 2 ( JD Nos. 1 & 2). 8. It is observed that as per record the trial had proceeded further and the issues were framed on 12−07−2011 when the matter was posted for 05−09−2011 for PE and then on 17−11−2011, since then none had appeared on behalf of the petitioners/defendants and on 20−04−2012 the matter was posted for cross−examination of PW1 with last opportunity given to them for cross−examination of PW−1 but neither on 13−08−2012 nor on 04−12−2012 none had caused the appearance for the petitioners/defendants and for the absence for two consecutive dates, the petitioners/defendants were proceeded ex−parte vide order dated 04−12−2012. 9. Thus, it is clear from record that in the case, the summons of the suit were duly served upon the petitioners/defendants and they had participated in the trial until 17−11−2011 when the matter was posted for plaintiff's evidence and thereafter, none had appeared on the dates of hearing until 06− 12−2012 when M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 7/19 the decree was passed and through the present application, the petitioners have sought setting aside of the ex−parte decree under the provisions of order 9 Rule 13 CPC on the pretext of obtaining knowledge of passing of such decree only on 01−07−2013 to seek protection of limitation to be reckoned from 01−07−2013 for the leave sought of setting aside of such decree through the application moved on 05−08−2013, after a period of 8 months since the date of decree passed on 06−12−2012. 10. The petition is contested on the ground that it is hopelessly time barred under Article 123 of the Limitation Act that prescribed a period of 30 days from the date of decree, as the protection to reckon the period from 01−07−2013, on the ground of obtaining knowledge was not available for the petitioners nor any sufficient cause shown for preventing them from appearing on the dates of hearing during trial. 11. Now, to answer such query, the proposition of law u/o. 9 Rule 13 CPC and the Article 123 of Limitation Act, 1963, for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 8/19 purpose of limitation is to be looked into. 12. As per the proposition of law, the horns of Rule 13 of Order 9 CPC can be raised, for setting aside ex−parte decree against the defendant by moving an application before the Court which passes the decree, or who is to execute and the Court, if satisfied, can make the orders setting aside such decree as against the petitioners/applicants upon such terms as to costs, payment or otherwise on the following satisfaction : i). that the summons were not duly served or Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 3 ii). that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. And as per proviso, a mandatory caution has been imposed on exercising such powers by the court directing that: No Court shall set aside the decree passed ex−parte merely on the ground : a). that there has been an irregularity in the service of summons b). if the Court is satisfied that the defendant had notice of the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 9/19 date of hearing and had sufficient time to appear and answer the plaintiff's claim. 13. Also, for invoking of such provisions under Order 9 Rule 13 CPC, the period of limitation as per Article 123 of the Limitation Act, 1963, provided is for 30 days a). from the date of the decree ; or b). where the summons or notice was not duly served, when the applicant had knowledge of the decree. 14. Further, the Apex Court in case titled as Parimal Vs. Veena @ Bharti, cited as (2011) 2 SCC 545 has guided for application of these two provisions of law as under:− "In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 10/19 Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight jacket formula of universal application." 15. Also, it is a settled principle of law as settled in case titled as G.P. Srivastava VS. R.K. Raizada & Others, cited as (2000) 3 SCC 54, wherein the Apex Court has opined that, " Under Order 9 Rule 13 CPC an ex−parte decree passed against a defendant can be set aside upon satisfaction of the court that either the summons were not duly served upon the defendant or he was prevented by any "sufficient cause" from appearing when the suit was called on for hearing. Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 4 Unless " sufficient cause" is shown for non−appearance of the defendant in the case on the date of hearing, the court has no power to set aside an ex−parte decree". 16. The legal propositions as per amended code of CPC has been discussed in a case titled as Sunil Poddar Vs. Union Bank of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 11/19 India, cited as AIR 2008 SC 1006, wherein it was observed that, "The legal position under the amended code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order V of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex−parte decree cannot be set aside even if it is established that there was irregularity in service of summons". 17. Now, on application of the guiding principles as laid by the Apex Court and as per the settled legal propositions under order 9 Rule 13 CPC, to the factual position of the instant case, it is observed that the summons of the suit were duly served upon the defendants/petitioners who have caused the appearances in the court through their counsel Sh. R.C. Bhalla, who had filed his Vakalatnama duly signed by the authorized officer of the petitioners/defendants and even now he is appearing for the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 12/19 defendants as a counsel for them and thus they joined the proceedings and participated in the trial from 21−05−2007 until 17−11−2011 and thereafter, they had stopped appearing on their own until the judgment/decree was recorded on 06.12.2012. 18. The sufficient cause shown and pleaded for non− appearance in the trial was that some time in the year 2010−11 Sh. B. Parthasarthi, an Advocate of Supreme Court who assigned the case to Sh. R.C. Bhalla, Advocate, expired and the case files including the file of the present case were collected by the officials of the defendants/petitioners from Sh. R.C. Bhalla as a new counsel in the Supreme Court was appointed by the Govt. of Andhara Pradesh and vide letter dated 28−05−2013 from the defendants he was asked to appear in another case on 01−07−2013 and on that date he came to know about the ex−parte decree of this case. 19. The correct factual position as brought to the knowledge of this court was that Sh. B. Parthasarthi, an Advocate of M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 13/19 Supreme Court had expired on 25−11−2007, the fact was not disputed. No document was placed on record to show that Sh. R.C. Bhalla, Advocate was assigned the case by Sh. B. Parthasarthi, an Advocate of Supreme Court or that Sh. B. Parthasarthi was appointed as an advocate in this case by the Govt. of Andhra Pradesh or that after his death another advocate practicing in Supreme Court was appointed for this case. Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 5 To the contrary, the vakalatnama of Sh. R.C. Bhalla was duly signed by the executive officers of the petitioners/defendants and was filed on record on 21−05−2007 and that Sh. R.C. Bhalla, the Advocate had appeared in the trial upto 17−11−2011 even after 4 years of the death of Sh. B. Parthasarthi, an Advocate of Supreme Court. Further, it is observed that no document was placed on record to show that any letter dated 28−05− 2013 of the petitioners/defendants was issued vide which the counsel Sh. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 14/19 R.C. Bhalla was asked to appear in another case on 01−07−2013 or that Govt. of Andhara Pradesh appointed another Advocate in this matter in 2010−11 when the petitioners/defendants had collected the files from Sh. R.C. Bhalla and even the name of such advocate of Supreme Court was not disclosed to show the bonafide to whom the petitioners/defendants had handed over the case file of the suit, rather a document has been placed on record that Sh. R.C. Bhalla was appearing as an Advocate for the defendants/petitioners in CM(M) Nos. 1151−52/2007 before the Hon'ble High Court of Delhi. More surprising was that even today the present petition is moved and pursued by the same counsel Sh. R.C. Bhalla, Advocate who has filed his Vakalatnama on record for the defendants/petitioners, duly signed by Sh. P. Chiranjeev Kumar, the Assistant Engineer of the defendants/petitioners. 20. Thus, clearly the summons of the suit were duly served M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 15/19 upon the petitioner/defendants who caused their appearances through Sh. R.C. Bhalla, Advocate, and they participated in the trial upto 17−11−2011 from then none has appeared on behalf of the petitioners/defendants in the trial until the decree and the petitioners/defendants have failed to show any 'sufficient cause', as per the settled principles above discussed, that the petitioners/defendants honestly and sincerely intended to remain present when the suit was called on for hearing and did their best to do so or have acted diligently to appear on the dates of hearing or that there was a sufficient cause for which the petitioners/defendants could not be blamed for their absence or that they had approached the court with a reasonable defence or within the prescribed period of limitation to seek remedy. 21. It is clear from the record that they have failed to show that they were prevented to appear and contest the matter due to some cause that could be treated as sufficient and beyond their control. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 16/19 22. Obviously, the period of limitation for invoking the horns of Order 9 Rule 13 CPC as prescribed under Article 123 of the Limitation Act is 30 days from the date of decree in case the petitioners/defendants had notice of the date of hearing of the suit and from the record it is clear that admittedly on 17−11−2011 they had notice of the date of hearing of the suit for 22−12−2011 for plaintiff's evidence, but they stopped appearing onwards and they had given sufficient time & opportunities to appear and answer the claim of the plaintiff as they were proceeded ex− parte on 04−12−2012, only after their non−appearance was noted for two consecutive dates. Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 6 23. Thus, in view of the law settled in case titled as Sunil Poddar Vs. Union Bank of India, cited as AIR 2008 SC 1006, when these two conditions are satisfied, an ex−parte decree cannot be set aside as it is duly established on record that the petitioners/defendants were duly served with the summons of the suit and there was no irregularity in the service of the M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 17/19 summons. Thus, the protection sought on the basis of knowledge on 01−07−2012 and seeking limitation of 30 days from such date is not available as the period of limitation of 30 days from the date when the petitioners had knowledge of the decree was available only in the circumstances where the summons or notice was not duly served upon the petitioners/defendants, in view of the provisions of Article 123 of the Limitation Act. The petitioners' case is not that the summons were not served upon them to seek protection of limitation from the date of knowledge of the decree. Thus, in view of the fact that the summons were duly served upon the petitioners who participated in the trial for a long period of four years and were not able to show any sufficient cause by which they were prevented from appearance on the dates of hearing, the period of limitation for the purpose of the petitioners for 30 days starts from the date of decree and not from the date of knowledge of passing of the decree. M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 18/19 24. Thus, in the above noted facts and circumstances, the application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants, after 8 months of the date of decree dated 06−12−2012, is hopelessly time barred and therefore, the application dated 05−08−2013 is being devoid of any merits, stands dismissed. Announced in the open Court (Dr. Archana Sinha) on 12th day of May, 2015 Addl. District Judge (Central−03) Tis Hazari Courts / Delhi 12.05.2015 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 19/19 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 12.05.2015 Present: Vide separate detailed order announced in the open court, the application dated 05.08.2013 moved under Order 9 Rule 13 r/w section 151 CPC, on behalf of the petitioners/defendants stands dismissed. File be consigned to record room. (Dr. Archana Sinha) ADJ (Central) 03 / Delhi 12.05.2014 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 20/19 M. No. : 19/2013 Titech Engineers Pvt. Ltd. Vs. Tirumula Tirupati Devasthanams 21/19 Titech Engineers Pvt. Ltd vs Tirumula Tirupati Devasthanams on 12 May, 2015 Indian Kanoon - http://indiankanoon.org/doc/134598363/ 7

trial15.pdf

Kerala High Court Shruthi P. vs State Of Kerala on 6 October, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 323 of 2009(S) 1. SHRUTHI P., W/O.RAVI.K., ... Petitioner Vs 1. STATE OF KERALA, ... Respondent 2. DISTRICT MAGISTRATE 3. SUPERINTENDENT, CENTRAL PRISON, For Petitioner :SRI.BECHU KURIAN THOMAS For Respondent :GOVERNMENT PLEADER The Hon'ble MR. Justice R.BASANT The Hon'ble MRS. Justice M.C.HARI RANI Dated :06/10/2009 O R D E R R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.323 of 2009 ------------------------------------- Dated this the 6th day of October, 2009 JUDGMENT BASANT, J. What is the nature and quality of consideration which a representation made by a detenu under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA') must receive at the hands of the Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 1 Government? Does the failure to give a real and proper consideration by the Government vitiate continued detention? These questions arise mainly for consideration in this Writ Petition. (2) In this application for issue of a writ of habeas corpus filed under Article 226 of the Constitution of India, the petitioner, the wife of the detenu, assails Ext.P1 order of detention passed under Section 3(1) of the KAAPA against the detenu. 2. The petitioner is the wife of K.Ravi, the detenu. The detenu was involved in as many as 5 cases; the details of which are given below: Case No. Date of Offences Status of Final Relevant offence alleged the case report document filed by Sl. the police No C.C.953/06 between 454,380,461 acquitted Ext.P6 26.02.2006 I.P.C and 1 03.03.2006 11/11/08 C.C.255/08 341, 323, pending trial Ext.R2(k) Ext.P7 324 r/w 34 on 02.07.09 I.P.C (but compounded 2 03/02/08 on 28.07.09) C.C.509/08 341, 323, pending trial Ext.R2(j) Nil 294 (b) r/w 3 02/05/08 34 I.P.C C.P.237/08 427, 506(i) pending trial Ext.R2(h) Nil & 308 I.P.C 4 07/09/08 S.T.C.758 160 I.P.C Pleaded Nil Nil of 2008 guilty on 18.11.2008. Rs.100/- 5 11/07/08 imposed 3. The Superintendent of Police, Kasargod, by his report under Section 3(1) of the KAAPA dated 23.01.09 [copy produced as Ext.R2(g)], submitted a proposal to the 2nd respondent (District Magistrate) to invoke the powers under Section 3(i) of the KAAPA to detain the detenu. Accepting the report of the sponsoring authority, Ext.P1 order of detention was passed on 16.02.2009. The order could not be executed for some time. Finally in execution of Ext.P1 order, the detenu was arrested and detained on 02.07.2009. Copies of the order and grounds were furnished to the detenu in due time and the detenu submitted Ext.R2(m) representation dated 08.07.09 to the Government. That representation submitted through the prison authorities was received by the prison authorities on 08.07.09 and it was forwarded to the Government. The Government allegedly received the same on 13.07.09. In the meantime, Ext.P5 order of approval dated 10.07.09 was passed by the Government under Section 3(3) of the KAAPA. After receipt of Ext.R2(m) representation, the Government, by Ext.P8 order dated 17.07.09, rejected the said representation. In accordance with the provisions of the KAAPA, the Advisory Board considered the matter and opined to the Government that there was sufficient reason to justify detention. Accordingly Ext.R1(a) order dated 26.08.09 was passed by the Government confirming the order of detention under Section 10(4) of the KAAPA. Accordingly the detenu will have to remain in custody for a period of 6 months from 02.07.09. It is at this juncture that we are called upon to consider the request of the petitioner, the wife of the detenu to set aside the order of detention and to set the Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 2 detenu at liberty. 4. We have heard the learned counsel for the petitioner and the learned Additional Director General of Prosecution. The learned counsel for the petitioner assails the impugned order and the continued detention on the following: GROUNDS I) 2 of the 5 cases referred above should not at all have been reckoned as relevant to decide whether the detenu is a known goonda or a known rowdy. II) The remaining 3 cases also do not bring the detenu within the sweep of the expression "known goonda/known rowdy" inasmuch as there is no allegation therein of the detenu having been involved in any organised crime affecting public order. III) The alleged contumacious acts even if true could not have instilled the latter subjective satisfaction under Section 3 of the KAAPA in the mind of the authorities that there was any threat to public order. IV) There has been no proper application of mind by the sponsoring authority or the detaining authority before passing Ext.P1 order. V) The Government before passing the order of approval under Section 3(3) had not applied its mind properly and correctly. VI) The valuable right of the detenu under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA to get his representation Ext.R2(m) considered properly by the Government has been violated by the Government in passing Ext.P8 order. Ground No.I 5. The objection is raised regarding case No.1 and Case No.5 shown in the tabular column given above. The order of detention Ext.P1 was dated 16.02.2009. The report of the sponsoring authority Ext.R2(g) was submitted on 23.01.09. Case No.1 had ended in acquittal on merits as early as on 11.11.08. Case No.5 had also come to an end on 18.11.2008 on which day plea of guilty of the detenu was accepted and a fine of Rs.100/- was imposed on him. Both these cases were not current and live on the dates of Ext.R2(g) and Ext.P1. The sponsoring authority erred grossly in assuming that these cases are pending. The detaining authority also erred in accepting the sponsoring authority's report that these 2 cases are pending. For the reason that these 2 cases were not pending on the dates of Ext.R2(g) and Ext.P1, the action of the sponsoring authority and the detaining authority is vitiated. Moreover it is submitted that the 5th case in which allegation is raised only under Section 160 I.P.C is not a case which can bring an offender within the sweep of the definition of a `known goonda or known rowdy' under Section 2(o) or 2(p) of the KAAPA. 6. We are in ready agreement with the learned counsel for the petitioner. Cases 1 and 5 having been disposed of long prior to Ext.R2(g) and Ext.P1, those should not have been taken into reckoning while considering whether the detenu is a known goonda or known rowdy on 16.02.09, the date of the order of detention. Further, the counsel is well founded in his contention that a prosecution Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 3 under Section 160 I.P.C cannot bring a person within the sweep of a rowdy, goonda, known goonda or known rowdy under Sections 2(j), 2(t), 2(o) or 2(p) of the KAAPA. 7. Though we agree with the contention of the learned counsel for the petitioner on this first ground, we are afraid that the detenu cannot claim any benefit on the basis of the said finding as cases 2 to 4, three in number, all of which were pending on the dates of Ext.R2(g) and Ext.P1, would certainly bring the detenu within the sweep of the expression `rowdy' in Section 2(t), `goonda' in Section 2(j) and `known goonda' in Section 2(o) of the KAAPA subject of course to our finding under Ground No.II. The prayer to invalidate the order of detention and the consequent detention on ground No.1 must, in these circumstances, fail. Grounds II and III 8. For the sake of convenience, we are considering the challenge on grounds II and III together. Under ground II it is contended that the remaining 3 cases should not have been taken into consideration and they could not have brought the detenu within the sweep of the expression `known goonda'. The crux of the contention is that the said 3 offences are not offences which reveal commission of any organised crime. 9. Under Ground No.III it is contended that inasmuch as reference is made to case Nos.II to IV, to justify entertainment of the latter subjective satisfaction, the order is vitiated because these 3 cases do not reveal any threat to public order and at worst what is revealed is only a threat to law and order. 10. The learned counsel for the petitioner places reliance on the statement of objects and reasons which prompted the legislature to pass the KAAPA. Reliance is placed particularly on paragraphs 1 and 2 of the statement of objects and reasons, which are extracted below: "Organised criminal activity has become a threat to both the economic and physical security of the State and Citizen. These activities thrive by pre- planned organisation, criminal networking and the profits generated from unlawful activities. These type of criminal activities create a feeling of insecurity in the society by intimidating or attacking law abiding citizens who oppose or give evidence against them. These organised criminals foil successful investigation and successful prosecution by exploiting the safeguards provided in general law to protect the average citizens against misuse of authority by official functionaries. (2) The existing laws are inadequate in preventing and controlling the organised criminal activity. Hence it became imperative to enact a legislation to prevent and control the organised anti- social activities in the State." 11. The counsel further contends that the definition of a `goonda' in Section 2(j) as also the definition of `antisocial activity' in Section 2(a) and the definition of rowdy in Section 2 Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 4 (t) must assume importance and significance in this context. We extract below Section 2(a), 2(j) and 2(t) of the KAAPA. Section 2(a): `Anti Social Activity' means acting in such manner as to cause or likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q), and (s) of this section. Section 2(j): `Goonda' means a person who indulges in any anti-social activity or promotes or abets illegal activities which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator or environment, a digital data and copy right pirate, a drug offender, an Hawala racketeer, an hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber." Section 2(t): "2(t) "rowdy" means and includes a person who either by himself or as a member of a gang commits or attempts to commit, or abets the commission of any offences under Sections 153A and 153B of Chapter VIII and Chapters XV, XVI, XVII & XXII of the Indian Penal Code, 1860(Central Act 45 of 1860), or any offences under the provision of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908), (i) punishable with five or more years of imprisonment of any type, or; (ii) with less than five years of imprisonment of any type, except those punishable with less than one year of imprisonment; or (iii) such offences under any other law for the time being in force, coming under item (i) or (ii), as may be notified by the Government, from time to time. (emphasis supplied) 12. The learned counsel for the petitioner points out that the KAAPA is enacted by the Kerala legislature in exercise of its legislative competence as per Entry 3 of List III of Schedule 7 of the Constitution of India, which we extract below: "Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention." (emphasis supplied) `Maintenance of public order' is the only ground on which the legislative competence to order detention of the detenue on the basis of 3 cases - cases 2 to 4 referred above, can be justified. Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 5 The counsel contends that inasmuch as the said cases 2 to 4 do not reveal any organised criminal activity, they cannot be reckoned as sufficient to bring the alleged activity within the sweep of Section 2(a) and consequently to bring the detenu within the sweep of the expression 2(j) of the KAAPA. 13. The counsel in this context places reliance on the decision of a Division Bench of this Court in Nisha Salim v. State of Kerala [2009(3) KLT 22]. In particular reliance is placed on para.8 and 8(a) of the said decision, which we extract below. "Para.8: It is undoubtedly true that personal liberty of a person cannot be trifled with by the Police or the executive authority at their whims and fancies. The power of detention has to be exercised by an authority authorised under law with utmost diligence and caution. The order of detention has to satisfy the test of reasonableness and fair play. The detaining authority has to arrive at the subjective satisfaction about the imperative need to detain a person after due application of mind. All the inputs gathered by the detaining authority must lead to the irresistible conclusion that the freedom of movement enjoyed by the detenu may be misused by him to create havoc or breach of peace in the society, thereby putting the peaceful life of the people in peril. It would be a shame if the law enforcing authorities throw up their arms in desperation saying that a particular individual in a given area or locality cannot be controlled by the Police force. The Indian Penal Code and other relevant enactments should, under normal circumstances, take care of situations which may have a propensity to disturb the peaceful life of the local people. The Magisterial powers given under the Code of Criminal Procedure are also sufficient to tackle any untoward situations. The Police authorities are given wide powers under the Police Act and other allied enactments to see that "law and order" and public order are maintained. If an individual creates any law and order problem, he can be dealt with by the Police using the powers vested in them. 8A. It is true that preventive detention can become a draconian power if it is wielded by the executive or the Police at the drop of a hat. The threat to the society from the proposed detenue should be such that his activities cannot be controlled, or curtailed by using the ordinary means of prevention. It is trite that no citizen can be put behind the bars on the specious ground that he is likely to cause breach of peace in the locality or he may commit some crime in future, if he is allowed to move about freely. As contended by the learned counsel involvement of a person in "several cases" may not as such be a ground to use the power of preventive detention, particularly when the crimes allegedly registered against him are still under investigation." 14. According to the learned counsel inasmuch as the allegations raised in cases 2 to 4 do not reveal the commission of any organised crime, they cannot be reckoned at all as relevant to decide whether the detenu is a rowdy and consequently a goonda and a known goonda. Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 6 15. The learned counsel for the petitioner contends that the distinction between threat to law and order and threat to public order must be alertly borne in mind by this Court while considering the challenge raised on the basis of these two grounds. The allegations raised against the detenu in cases 2 to 4, even if accepted in toto, do not reveal any organised criminal activity or threat to maintenance of public order and consequently those 3 cases should not have been taken into consideration to entertain the initial threshold objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. They should not, at any rate, have been taken into consideration for entertaining the latter subjective satisfaction - as to whether the detenue deserves to be detained to prevent him from indulging in antisocial activities, contends counsel. 16. It will only be apposite straight away to consider the precedents relied on by the learned counsel for the petitioner. The counsel first of all relies on the observations of the Supreme Court in Arun Ghosh v. State of W.B [(1970) 1 SCC 98] (para.15) which are stated with approval in the later decision Ajay Dixit v. State of U.P [(1984) 4 SCC 400. We extract the same below: "It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or inividuals may total up into a breach of public order. In Dr.Ram Manohar Lohia case 1 examples were given by Sarkar, and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. The question to ask is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely and individual leaving the tranquility of the society undisturbed ? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another." 17. The counsel then relies on the following observations in para.12 and 13 in Angoori Devi v. Union of India [(1989) 1 SCC 385] to highlight the distinction between threat to law and order from a threat to maintenance of public order. "Para.12: The impact on "public order" and "law and order" depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 7 the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts. Sometimes, as observed by Venkatachaliah, J. in Ayya alias Ayub v. State of U.P: "What might be an otherwise simple `law and order' situation might assume the gravity and mischief of a `public order' problem by reason alone of the manner or circumstances in which or the place at which it is carried out.". Necessarily, much depends upon the nature of the act, the place where it is committed and the sinister significance attached to it. Para.13: As for example dare-devil repeated criminal acts, open shoot out, throwing bomb at public places, committing serious offences in public transport, armed persons going on plundering public properties or terrorising people may create a sense of insecurity in the public mind and may have an impact on "public order". Even certain murder committed by persons in lonely places with the definite object of promoting the cause of the party to which they belong may also affect the maintenance of `public order'." 18. It is now trite that before a valid order of detention is passed under Section 3 of the KAAPA, the detaining authority must first entertain the requisite twin satisfactions. Firstly the initial objective satisfaction must be entertained that the detenu is a known goonda or known rowdy. Then the authority must entertain the latter subjective satisfaction that detention of the detenu is necessary to prevent such detenu from indulging in antisocial activity. Only when both satisfactions are validly entertained on the basis of the materials available before him, can the detaining authority pass a valid order of detention under Section 3 of the KAAPA. 19. We are certainly of the opinion that while considering the entertainment of the latter subjective satisfaction, every detaining authority is bound to consider whether the acts complained of against the detenu do really pose a threat to maintenance of public order. When the acts alleged are such that they threaten only the law and order and not public order, they cannot be reckoned as sufficient to justify an order of preventive detention. 20. But we are unable to agree with the learned counsel for the petitioner in the challenge raised by him on ground No.II that even while considering whether a person is a rowdy under section 2(t) or whether he is consequently a goonda under section 2(j) and known goonda or known rowdy under sections 2(o) and 2(p) , the acts alleged must reveal organised criminal activity and must threaten public order and not merely law and order. 21. The scheme of the Act must be borne in mind. Undoubtedly to constitute antisocial activity under section 2(a) and to come within the purview of the descriptive former part of the definition of goonda in Section 2(j), the acts alleged must threaten maintenance of public order. But the language of Section 2(t) which we have extracted above does not at all import the requirement that the offences specified therein must also threaten maintenance of public order and not merely law and order. The language does not at all insist that the offences under Section 2(t) must be offences Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 8 committed by a person as part of organised criminal activity. The plain language of Section 2(t) does not permit us to insist on such a requirement. Consequently a `rowdy' who gets include in the definition of `goonda' in 2(j) by operation of the latter inclusive (deeming) part of the definition cannot insist that he is not a `rowdy' or `goonda' for the reason that any or all the offences alleged against him referred to in Section 2(t) do not refer to organised criminal activity or do not threaten maintenance of public order. A detenu - either a known goonda or known rowdy cannot validly urge that he is not a known goonda or known rowdy for the reason that the cases relied on against him under Section 2(t), 2(p) or 2(o) are cases which do not reveal commission of organised crime and they do not pose any threat to public order. That does not appear to be the scheme of the Act at all. Initial threshold satisfaction that a person is a known goonda or a known rowdy must certainly be entertained by the detaining authority. To entertain that, the detenu need only satisfy the definition of goonda and known goonda or rowdy and known rowdy. The definitions of these expressions in 2(j) (inclusive latter part) and 2(o) as also 2(t) and 2(p) do not at all demand that the offences referred to therein must also be instances of organised crime or that they must threaten public order. Such a requirement cannot be read into the definition of `rowdy' in Section 2(t) or known rowdy in 2(p) or even the definition of goonda in Section 2(j) (inclusive latter half) and known goonda in 2(o). Of course, we repeat that while considering the latter subjective satisfaction, it will certainly have to be considered whether the subjective satisfaction of the need to preventively detain the detenu is entertained on grounds/past conduct which are likely to threaten public order in future. 22. In these circumstances, we are unable to accept the challenge raised on ground No.II that the detenu cannot be held to be a known goonda or known rowdy for the reason that cases 2 to 4 referred above do not reveal instances of organised crime. The challenge on ground No.II therefore fails. 23. Whether the acts alleged would reveal a threat to public order shall now be considered in detail for the purpose of considering the challenge under ground No.III. 24. The learned Additional Director General of Prosecution submits that there is no litmus test to decide whether the acts alleged constitute a threat to public order or constitute only threat to law and order. The relevant passages of binding precedents have been extracted above. To sum up, the test is only whether the act is confined to an individual without directly or indirectly affecting the tempo of life of the community. If it affects only the victim or victims, it can be reckoned as a threat to law and order only; whereas if the nature and gravity of the act is such that it is likely to endanger public tranquility affecting the tempo of life of the community, it would fall within the ambit of public order. 25. In this context we refer to the allegations raised in cases 2 to 4 above. 26. In C.C.No.255 of 2008, the second case, the final report in which is produced as Ext.R2(k), the allegations as revealed from the F.I.R as also the final report filed is that on account of prior animosity of some others against the victims, 3 accused persons including the detenu herein attacked the victims at a public place. In the third case, C.C.No.509/2008, final report in which is Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 9 produced as Ext.R2(i), the allegation as revealed from the F.I.R and the final report is that the accused persons including the detenu dragged the victim, who was sitting in an autorickshaw in a public place, out of the auto rickshaw and indulged in wanton acts of violence against him. In C.P.No.237 of 2008 (ie.Case No.5), the last of the 3 cases, the final report is Ext.R2(h), the allegations in the F.I.R read along with the allegations in the charge sheet reveal that a public transport vehicle (bus) which was operating on the route was stopped to enable the passengers to disembark. Then the detenu on account of prior animosity threw a stone at the bus and thereby committed the offences. It is further alleged that the detenu threatened the victim that if the police were informed, they will not be permitted to work in the bus. 27. We have referred to the allegations in cases 2 to 4 above only to note that by no stretch of imagination can it be safely held that the allegations do not constitute any threat to public order and must be reckoned as posing a threat to law and order only. It will not be inapposite in this context to note that the subjective satisfaction is not justiciable. The fact that the sponsoring authority and the detaining authority reckoned these allegations as sufficient to constitute a threat to public order warranting detention cannot, at any rate, be held to be as sufficient ground to interfere with the impugned order. The plea that subjective satisfaction could not have been entertained at all cannot be accepted. The challenge raised on ground No.III must also, in these circumstances, fail. Ground No.IV 28. The learned counsel for the petitioner has brought to the notice of the Court several circumstances to contend that there has been no proper application of mind either by the sponsoring authority or the detaining authority. The counsel relies on precedents to impress upon the Court the duty of the sponsoring authority to place all relevant facts before the detaining authority and the duty of the detaining authority to consider all relevant facts and circumstances before passing the order of detention. The counsel first of all contends that mind of the sponsoring or detaining authority was not applied to the circumstance that 2 out of the 5 cases are certainly cases which cannot be taken note of, ie. case Nos.1 and 5 referred above. We have already, while considering Ground No.I, come to the conclusion that those 2 cases should not have been reckoned by the detaining authority. 29. But the mere fact that those 2 circumstances were taken into consideration by the detaining authority cannot by itself justify invalidation of the impugned order. It is in this context that Section 7(4) of the KAAPA becomes relevant and significant. We extract Section 7(4) of the KAAPA. "Section 7(4) : The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied." Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 10 30. If the impugned order is justified by the 3 other cases referred to as cases 2 to 4, the fact that cases 1 and 5 were also taken into consideration unjustifiably would not by itself justify invalidation of the order of detention. 31. The learned counsel points out that though the sponsoring authority had submitted the proposal under Section 3(1), reckoning the detenu as a known rowdy, the detaining authority had reckoned him as a known goonda to pass the impugned order. We do take note of the incongruity. But we note that cases 2 to 4 referred above are sufficient to bring the alleged detenu within the sweep of the expression `known goonda and/or known rowdy' under Section 2(o) and 2(p) of the KAAPA. In these circumstances, the fact that the sponsoring authority had referred to the detenu as a known rowdy, while the detaining authority when he applied his mind had reckoned him only as a known goonda, is not found to be of any crucial significance, in the facts of the case. It appears that the detaining authority on application of his mind to the materials placed before him had come to the conclusion that the detenu is a known goonda and is not to be reckoned as a known rowdy. In the facts of this case that transformation is found to be of no crucial significance. 32. The counsel further points out that in Ext.R2(g) submitted by the sponsoring authority to the detaining authority, there is reference to "rioting cases". The learned counsel contends that this expression has been employed unjustifiably by the sponsoring authority and not one of the 5 cases relied on by the sponsoring and detaining authority refers to a case of rioting. We do take note of this submission. It is true that no allegations are raised of the detenu having committed the offence of rioting in any of the 5 cases. The detaining authority has not relied on the allegation that rioting has been committed. More over a careful reading of Ext.R2(g) cannot lead to the conclusion that the expression rioting cases was used by the sponsoring authority to indicate that the detenu was facing prosecution in any case for the offence of rioting. The detaining authority has not borrowed that expression. He has not proceeded on the assumption that the detenu is allegedly involved in rioting cases and in these circumstances the contention that there has been no proper application of mind by the sponsoring and detaining authority for the above reasons cannot also succeed. The challenge raised on Ground No.4 does also, in these circumstances, fail. Ground No.V 33. The learned counsel for the petitioner contends that the approval under Section 3(3) cannot be a mechanical and routine act on the part of the Government. The counsel relies on Section 3(3) to contend that the authorised officer/District Magistrate is obliged to forward all records to the Government and the Government is bound to apply its mind before passing the order of approval under Section 3(3). The learned counsel for the petitioner has brought our attention to Ext.P5 order to contend that there is no proper application of mind by the Government before it passed the order of approval under Section 3(3). The counsel in particular points out that Ext.P5 only shows that the Government in passing the order of approval under Section 3(3) was only filling up the blanks. In support of this contention the counsel relies on the words in Italics typed in Ext.P5. The counsel contends that the order of approval, the conclusion is inevitable, is prepared in a format by filling up the blanks. The name of the district - Kasargod, the number of the order of detention, the name of the detenu are all typed in Italics and this, according to the counsel, indicates that there has been no proper application of mind as required on the part of the Government before passing an order of approval under Section 3(3). In this context, the learned counsel for the petitioner places reliance on Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 11 the decision of the Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51]. The learned counsel contends that the Supreme Court had occasion to consider an identical provision in Section 3(4) of National Security Act (in short `NSA') and has made the following observations in para.34 of the said order. The counsel contends that both under Section 3(4) of the N.S.A and Section 3(3) of the KAAPA, the initial order of detention passed by a delegate of the Government is to hold the field only for a prescribed period. Thereafter it is not the order of such delegate that justifies the detention of the detenu. It is only the order of approval passed by the Government that justifies further detention. Such a crucial order cannot and ought not to be passed without proper application of mind. The counsel contends that Ext.P5 significantly betrays the fact that such an alert application of mind had not preceded the passing of the order under Section 3(3). The counsel particularly relies on the following observations in para.34. "Para.34:.................................................. ................................................................. The said provision further prescribes that no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government. This would show that it is the approval of the State Government which gives further life to the order which would otherwise die its natural death on the expiry of twelve days after its making. It is also the requirement of Section 3(4) that the report should be accompanied by the grounds on which the order has ben made and such other particulars as, in the opinion of the said officer, have a bearing on the matter which means that the State Government has to take into consideration the grounds and the said material while giving its approval to the order of detention. The effect of the approval by the State Government is that from the date of such approval the detention is authorised by the order of the State Government approving the order of detention and the State Government is the detaining authority from the date of the order of approval................................................. ............................................................................. ...... Approval, actual or deemed, postulates application of mind to the action being approved by the authority giving approval. Approval f an order of detention would require consideration by the approving authority of the grounds ad the supporting material on the basis of which the officer making the order had arrived at the requisite satisfaction for the purpose of making the order of detention." (emphasis supplied) 34. The learned counsel for the petitioner contends that such consideration as stipulated by the Supreme Court did not precede the order of approval Ext.P5 under Section 3(3). The counsel contends that Ext.P5 order of approval and the subsequent detention of the detenu must, at any rate, be invalidated for the reason that such an anxious consideration had not preceded Ext.P5. 35. The learned ADGP contends that Kamleshkumar Ishwardas Patel v. Union of India does not at all deal with the manner in which the order of approval ought to be worded. There can be no dispute Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 12 that the approving authority, ie. the Government under Section 3(3) has to consider all materials and pass an appropriate order. This does not mean that all the materials must be adverted to and a detailed speaking order rendered by the Government while granting approval under Section 3(3). The learned ADGP contends that the requirement of consideration is one thing. But the insistence that the order must reflect such consideration in detail, is entirely different. The learned ADGP points out that what the Government is expected to do under Section 3(4) of the NSA and 3(3) of the KAAPA is only to consider the materials available and decide whether the course adopted by the delegate is justified. The learned ADGP submits that the same question had come up for consideration earlier before another Constitution Bench in Bidya Deb v. Dist.Magis., Tripura [AIR 1969 S.C 323]. The Supreme Court in that case was considering an identical provision in Section 3 (3) of the Preventive Detention Act. We have gone through Section 3(3) of the Preventive Detention Act, Section 3(4) of the NSA and Section 3(3) of the KAAPA in detail. We do not think it necessary to extract the relevant statutory provisions in this judgment. Suffice it to say that they are substantially identical. The learned ADGP relies on the observations of the Supreme Court in para.9 of the Bidya Deb v. Dist.Magis., Tripura. The question that came up for consideration in that case was whether it was obligatory that an order of approval should be furnished to the detenu. The learned ADGP points out that the Constitution Bench of the Supreme Court in that decision had taken the view that even the omission to furnish a copy of the order of approval does not vitiate or lead to invalidation of the detention. The following passages in para.9 and 10 are relied on by the learned ADGP. Para.9:.......................................................... ......................................................... Section 3(3) of the Preventive Detention Act does not specify that the order of approval is anything more than an administrative approval by the State Government. If this be so the necessity of communication of the approval does not arise with that strictness a s does the decision under Rule 30A (8) of the Defence of India Rules." Para.10:....................................................... ......................................................... The scheme of the Preventive Detention Act is merely to approve the original detention by the District Magistrate and the continued detention after 12 days is not under any fresh order but the same old order with the added approval and what the detenu can question, if he be so minded, is the original detention and not the approval thereof." 36. The learned ADGP submits that the decision in Bidya Deb v. Dist.Magis., Tripura continues to hold the field as the same is directly on the point. Their Lordships were deciding the question whether the omission to furnish the order of approval would vitiate or lead to invalidation of the order of detention. The learned ADGP points out that in Kamleshkumar Ishwardas Patel v. Union of India, the Constitution Bench was not directly considering the nature of the order that ought to be passed under Section 3(3). The question that arose in that decision primarily was whether the detenu has a right to make a representation before the detaining authority and whether he has only a right to make a representation before the Government. In Kamleshkumar Ishwardas Patel v. Union of India, the Supreme Court took the view that the detenu has a right to make a representation before the detaining authority which passed the order and the deemed approval by the Government does not take away the right of the detenu to make a representation before the Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 13 delegate who passed the order of detention. It is in that context that the observations in para.34 of Kamleshkumar Ishwardas Patel v. Union of India were made. Kamleshkumar Ishwardas Patel v. Union of India does not refer to Bidya Deb v. Dist.Magis., Tripura specifically. Both decisions are by Constitution Benches and attempt must certainly be made by this Court to harmonise the observations/dicta. 37. We have no hesitation to agree that order of approval under Section 3(3) must be preceded by anxious consideration of all the materials that are forwarded to the Government by its delegate - the District Magistrate, who passed the order. But it must be noted that it is only a course of approving or otherwise of the action of the delegate and the scheme of Section 3(3) clearly reveals that it is only a supervisory jurisdiction to ensure that the delegate has acted in tune with the delegation and true to the mandate under Section 3. An order of approval, the scheme of Section 3(3) clearly reveals, is not passed on the basis of any representation made to the Government by the detenu. In the scheme of Section 3(3), it would be idle to expect the Government before passing the order of approval to consider the objections raised and take a decision on such objections. We agree that alert application of mind must precede an order of approval under Section 3(3). But we are unable to agree that the order of approval must be more speaking than Ext.P5. The contention that Ext.P5 does not speak sufficiently cannot be accepted. 38. We now come to the contention that Ext.R2(m) was not considered by the Government before passing Ext.P5. The learned counsel for the petitioner contends that after the detention of the detenue on 02.07.09, he had promptly made Ext.R2(m) representation to the Government. That representation is dated 08.07.09 and the same was handed over to the prison authorities on the same date, ie. 08.07.09. Ext.P5 order of approval is seen passed on 10.07.09. Going by the stipulations of Section 3(3), the Government could have waited till 20.07.09 to pass the order of approval. According to the learned counsel, there was no need to pass the order under Section 3(3) on 10.07.09. The representation had been handed over to an officer of the State (Jail authorities) on 08.07.09. The counsel contends that non consideration of the representation dated 08.07.09 (Ext.R2(m)) by the Government before it passed Ext.P5 order is fatal and that must invalidate Ext.P5 order. 39. We are unable to agree. We do not accept that the Government is obliged to wait for the representation and pass an order under Section 3(3) only after considering such representation. We repeat that what is contemplated under Section 3(3) is a supervisory jurisdiction to ensure that the delegate has acted within the scope of the delegation and true to the mandate under Section 3. It was certainly unnecessary for the Government to wait for the representation and wait till the last possible date on which the order of approval could have been passed in terms of Section 3(3). Ext.P5 order was passed on 10.07.09 and it is asserted that Ext.R2(m) had reached the Government only on 13.07.09. In these circumstances, we are unable to accept the argument that Ext.P5 must be held to be vitiated and improper for the reason that it had been passed without considering Ext.R2(m) representation. 40. For the above reasons, we feel that there is no merit in the challenge raised on ground No.V. The challenge fails. Ground No.VI Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 14 41. We now come to the most important contention advanced competently and with thorough preparation by Shri Bechu Kurian Thomas, the learned counsel for the petitioner. The counsel contends that Ext.R2(m) representation made by the detenu through the prison authorities has not been considered by the Government in accordance with law. The learned counsel relying on Article 22(5) of the Constitution and Section 7(2) of the KAAPA contends that the statute as well as the Constitution concede to the detenu a right to make a representation. It is trite that he must be given an effective, expeditious and efficacious opportunity to make such a representation after his detention. It is also trite, and it is unnecessary for us to refer to precedents, that this right to make a representation inheres in it a corresponding right to proper and expeditious consideration of such representation. Though Article 22(5) of the Constitution of India and even Section 7(2) of the KAAPA do not prescribe the details of the manner in which such representation is to be considered, it is well settled that such representation must be considered by the authorities properly. The learned counsel for the petitioner relies on precedents to contend that the detenu is entitled to real and proper consideration of such representation. 42. There has been dispute earlier as to whether the consideration of this representation is an administrative act or quasi judicial act. There has been dispute as to whether an unbiased independent authority ought to consider such representation or not. There has also been dispute as to whether there is a right of hearing before such representation is considered and disposed of. There has also been dispute as to whether the representation must be disposed of by a speaking order giving reasons. 43. All those controversies now appear to have been settled. The Constitution Bench of the Supreme Court in H.Saha v. State of West Bengal [A.I.R 1974 S.C 2154] has settled the controversy and it has clearly been held that there is no right of hearing or an obligation to pass a speaking detailed order. We think it sufficient to refer to para.26 of H.Saha v. State of West Bengal, which reads as follows: "Para.26: The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board." (emphasis supplied) The counsel laments that even that consideration - a real and proper consideration, has not been given to Ext.R2(m) representation which was disposed of by Ext.P8 order. 44. The learned counsel for the petitioner then relies on the decision in Bhut Nath Mete v. State of W.B [(1974) 1 SCC 645] to contend that though a speaking order giving reasons cannot be insisted, the detenu is entitled to have his representation considered properly. The counsel relies on the following observations in para.23 of the above decision. "Para.23:We are not persuaded that a speaking order should be passed by Government or by the Advisory Board while approving or advising continuance of detention although a brief expression of the principal reasons is desirable. Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 15 .......................................... ............................................................................. .................................... The bare bones of natural justice in this context need not be clothed with the ample flesh of detailed hearing and elaborate reasoning. It must be self-evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered." (emphasis supplied) The counsel contends that there is no such consideration in Ext.P8. 45. Lastly and finally the learned counsel for the petitioner relies on the decision in John Martin v. State of W.B[(1975) 3 SCC 836]. A 3 Judge Bench of the Supreme Court, considering the precedents rendered earlier, proceeded to observe thus in para.3 of the said decision. Para.3: ................................................................. .............................................................................. ....... This however, does not mean that the appropriate Government can reject the representation of the detenu in a casual or mechanical manner. The appropriate Government must bring to bear on the consideration of the representation an unbiased mind. There should be, as pointed out by this Court in Haradhan Saha's Case, "a real and proper consideration" of the representation by the appropriate Government. We cannot over- emphasise the need for the closest and most zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified." (emphasis supplied) 46. The short grievance of the petitioner is that the detenu's representation Ext.R2(m) did not receive a real and proper consideration. He complains that it is not self evident from the order that the substance of the charge and essential answers in Ext.R2(m) representation have been impartially considered by the Government. The Government in passing Ext.P8 order has dealt with the representation in a casual and mechanical manner, laments the petitioner. The Government has not brought to bear on the consideration of the representation an unbiased mind. The zealous scrutiny of the representation which John Martin v. State of W.B insists has not been given in the instant case, contends the learned counsel for the petitioner. 47. The learned ADGP on the contrary contends relying on the very same decisions that it is not necessary at all for the Government to pass a detailed speaking order. According to the learned ADGP, Ext.P8 order reveals anxious consideration of the representation. A real and proper consideration as insisted by H.Saha v. State of West Bengal has been given to the representation. Before rejecting the representation under Ext.P8 order, anxious and zealous scrutiny has been made by the Government, contends the learned ADGP. 48. We must now consider whether Ext.P8 reveals (or can lead us to presume) that such real and proper consideration has been rendered or not. It will be apposite to refer to the language of Ext.P8. Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 16 Ext.P8 translated roughly reads as follows: "Your representation dated 08.07.09 has been considered by the Additional Chief Secretary of the Home Department. We regret to inform you that your representation is rejected as the grounds raised therein are not acceptable to release you from preventive detention." 49. In this context it will be appropriate to note that Ext.R2(m) representation is the one dated 08.07.09 referred to in the order. It is not necessary for us to advert to the various other grounds urged therein. But we feel it proper to refer to 2 specific grounds that have been raised. 50. Firstly it is submitted that 2 cases relied on in the order of detention and the grounds for detention are non existent as they have already ended in acquittal long prior to Ext.R2(g) report of the sponsoring authority and Ext.P1 order of detention under Section 3(1). This, it appears to us, is a very crucial ground raised. The detenu was thereby pointing out to the Government the factual inaccuracy that has crept in. The sponsoring and detaining authorities had incorrectly and erroneously assumed that cases 1 and 5 were still pending; whereas one had ended in acquittal and the other had been closed accepting the plea of guilty. It has also been raised that the said case ie. case No.5 cannot be taken into consideration while considering the question of detention under Section 3. Both these contentions are factually correct. There is no contention for the respondent that case No.1 or 5 was pending on the date of the proposal of the sponsoring authority or on the date of the impugned order. There is no contention for the respondent that the 5th case ie. the prosecution under Section 160 I.P.C can be taken into account to decide whether a person is a known goonda or a known rowdy. Ext.P8 order which we have extracted above clearly, unmistakably and unambiguously shows that these 2 contentions have not at all been specifically considered by the Government before rejecting Ext.R2(m) representation. To us it appears that this plea - that patently erroneous factual details had crept into the order of detention, has not been considered by the Government when it passed Ext.P8 order. At least there is nothing to show that any other contention had been considered. A speaking order is not necessary and it may not be possible to insist that each such contention raised in Ext.R2(m) must have been considered and answered. But at any rate, consideration by the Government cannot be casual or mechanical. Real and proper consideration must be given to the representation. Otherwise it would result in deprivation of the valuable right of the detenu to make a representation to the Government and to request the Government to revoke or modify the order passed against him. As held in Bhut Nath Mete v. State of W.B, answers of the detenu in the representation [Ext.R2(m)] must have been considered impartially and such consideration must be self evident from the order. 51. We are unable to persuade ourselves to agree that Ext.P8 reveals such consideration which is insisted by the precedents referred above. The sure test for us to decide whether there has been proper consideration or not is the omission/failure to refer to the contention that cases 1 and 5 referred above should not have been taken into consideration. We agree with the learned counsel for the petitioner that the very same Ext.P8 order (with a change in the date of representation) can be used by the Government to reject the representation of any other detenu detained on any other ground. The language of Ext.P8 order clearly betrays that a real and proper consideration has not Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 17 been given to the representation made by the detenu. 52. We must alertly remind ourselves that we are dealing with a petition for issue of a writ of habeas corpus filed on behalf of a detenu who has been detained and deprived of his freedom and liberty not for any specific contumacious act committed by him, but solely on the apprehension that he may, in future, judged by his past conduct, indulge in antisocial activities. The cause of liberty and freedom has always been fought with weapons which insist on procedural compliance. The insistence of procedural correctness has gone a long way to help the Court to protect the rights of citizens to freedom and liberty. We are unable to agree that the valuable right of the detenu, to have his representation considered, has been observed and respected by the Government in passing Ext.P8 order. On that last ground raised by the petitioner, the continued detention of the detenu deserves to be invalidated. The challenge on ground No.VI therefore succeeds. 53. Before parting with the case, we must impress upon the Government the need to ensure that orders of preventive detention do not suffer from technical or procedural inadequacies. The legislative anxiety to arm the executive with such draconian power to order preventive detention in the interest of societal safety and protection can be frustrated by such inadequate compliance with procedural safe guards. The Government must ensure that such inadequacies do not creep in at any stage to vitiate the order. The officials may be inexperienced and ill equipped to live upto the challenges in the new jurisdiction to order preventive detention available under the KAAPA. Adequate training for and strict insistence of procedural mandates from those wielding such power have to be insisted by the Government if legislative goals are to be fully achieved. The Government must ensure that every representation by the detenu under Article 22(5) of the Constitution and Section 7(2) of the KAAPA is disposed of after real and proper consideration as insisted by the precedents referred above. 54. In the result: a) This Writ Petition is allowed; b) The continued detention of the detenu is found to be invalid and unjustified; c) If the detention of the detenu is not necessary in any other case, he shall forthwith be released from custody by the prison authorities; d) The Registry shall forthwith communicate the order to the Superintendent of the Central Prison, Kannur forthwith. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- Shruthi P. vs State Of Kerala on 6 October, 2009 Indian Kanoon - http://indiankanoon.org/doc/1942059/ 18

trial18.pdf

Kerala High Court T.R.Ajayan vs M.Ravindran on 7 January, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 1622 of 2006() 1. T.R.AJAYAN, S/O. O.RAMAN, ... Petitioner Vs 1. M.RAVINDRAN, ... Respondent 2. MRS. NIRMALA DINESH, W/O. DINESH, For Petitioner :SRI.A.KUMAR For Respondent :SMT.M.K.PUSHPALATHA The Hon'ble MR. Justice P.R.RAMAN The Hon'ble MR. Justice V.K.MOHANAN Dated :07/01/2008 O R D E R 'C.R.' V.K.MOHANAN, J. --------------------------------------------- Crl.M.C.Nos. 1622, 1627 & 1628 of 2006 --------------------------------------------- Dated this the 7th day of January, 2008 O R D E R T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 1 These three Crl.M.Cs. are filed challenging three separate orders in S.T.No.4577 of 2004 on the file of the Judicial First Class Magistrate's Court, Palakkad. Since in all these Crl.M.Cs., the parties are the same and the matter arose out of S.T.No.4577 of 2004, these matters are heard together and are being disposed of by this common judgment. 2. The petitioner herein is the complainant in S.T.No.4577 of 2004 on the file of the Judicial First Class Magistrate Court-II, Palakkad arising out of a private complaint filed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred for short as 'N.I.Act' only). The petitioner, on the closure of evidence filed three petitions,(1) C.M.P.No.1276 of 2006, filed for a direction to reopen the prosecution evidence, (2) C.M.P.No.1277 of 2006, filed for a direction Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-2-: to the first accused to produce the minutes book of Infogenie Information Tech and Serv Pvt. Ltd. and (3) C.M.P.No.1275 of 2006, filed for a direction to the Assistant Commissioner of Income Tax (Assessment), Circle No.I, Palakkad to produce the income tax returns, balance sheet etc. of M/s.Infogenie Information Tech and Serv Pvt.Ltd. All these petitions were dismissed by the court below by three separate orders and the petitioner is challenging the above three orders separately by preferring these Crl.M.Cs. 3. Crl.M.C.No.1622 of 2006 is filed challenging Annexure-F order dated 5.6.2006 in CMP No.1276 of 2006 in S.T.No.4577/2004. Annexure-C is the copy of the petition (C.M.P.No.1276 of 2006) where the prayer is for re-opening the complainant's evidence. Crl.M.C.No.1627 of 2006 is filed challenging Annexure- E order in Annexure-B petition, namely C.M.P.No.1275 of 2006, in which the prayer is for a direction to produce the income tax records from the Assistant Commissioner of Income Tax (Assessment), Circle No.I, Palakkad. Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-3-: Crl.M.C.No.1628 of 2006 wherein the challenge is against Annexure-G order of the court below in C.M.P.No.1277 of 2006, a copy of which is produced as Annexure-D wherein the prayer is to direct the first accused to produce the minutes book of the company, namely M/s.Infogenie Information Tech and Serv Pvt.Ltd. The above three orders are impugned in the above three criminal miscellaneous cases. 4. In order to appreciate the contentions of the petitioner, a brief description of facts of the case is absolutely necessary which is as follows:- S.T.No.4577 of 2004 was filed by the petitioner herein under Section 138 read with Section 142 of the N.I.Act with the allegation that the cheque in question was issued by the first and second accused in their capacity as Vice Chairman and Managing Director respectively of the company M/s.Inforgenie Information Tech and Serv Pvt.Ltd. for repayment of loan advanced to the company to the tune of Rs.10,75,000/- on various occasions in his individual capacity. The petitioner- Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-4-: complainant was earlier the Chairman and the Managing Director of the said company till his resignation in October, 2003. According to the petitioner/complainant, an amount of T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 2 Rs.10,75,000/- was due to the complainant and the accused, acting on behalf of the company in discharge of the liability towards the complainant, gave cheques for Rs.5,00,000/- and 5,75,000/- respectively. The cheque for Rs.5,75,000/- was encashed. But the cheque for Rs.5,00,000/- was not encashed. According to the petitioner/complainant, on contacting the accused, they took back the cheque for Rs.5,00,000/- and issued two other cheques; one for Rs.3,00,000/- and another cheque for Rs.2,00,000/- bearing No.170842 dated 15.9.2004 drawn on H.D.F.C.Bank, Palakkad Branch. The cheque for Rs.3 lakhs was encashed. The further case of the complainant is that at the request of the accused, the complainant had presented the said cheque for collecting through the H.D.F.C.Bank, Palakkad, but, the same was returned to the complainant without Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-5-: encashment. Hence, after compliance of the statutory formalities, a complaint was filed on which the court took cognizance and the case was proceeded with. On the side of the complainant, the complainant himself was examined as PW-1 and another witness PW-2, the Branch Manager of H.D.F.C. Branch, Palakkad was also examined. Thereafter, the prosecution evidence was closed and the accused were questioned under Section 313 of the Criminal Procedure Code. During the trial, the defence took a contention that no amount is due to the complainant and no consideration was passed. It is also the defence of the accused that the blank cheque kept in the company was misused by the complainant, as such they have denied the entire transaction. It was, in these circumstances, the complainant filed petitions as aforesaid for reopening the complainant's evidence and with a prayer for direction to the Income Tax Authorities as well as the first accused to produce the documents mentioned in those petitions. Annexure-C in Crl.M.C.No.1622 of 2006 was filed under Section 311 of Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-6-: the Cr.P.C. whereas Annexure-B in Crl.M.C.No.1627 of 2006 and Annexure-D in Crl.M.C.No.1628 of 2006 were filed under Section 91 of the Criminal Procedure Code for production of documents. Suffice to say in those petitions for production of documents, nobody was cited as witnesses, but simply prayed for a direction to the concerned parties therein to produce the documents which are mentioned therein. But, the court below dismissed all the above three petitions and according to the petitioner/complainant, the said orders of the court below are arbitrary and illegal. 5. I have heard elaborately Mr.A.Kumar, learned counsel for the petitioner and also Advocate Smt.P.K.Radhika, counsel for the respondents. 6. The learned counsel for the petitioner submits that the order of the Magistrate dismissing the petition of the complainant for reopening the evidence is against the settled law and by disallowing the above petition, the court below had denied opportunity to the complainant to substantiate his case. It is further Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-7-: submitted that by Annexure-E order in Crl.M.C.No.1627 of 2006, the learned Magistrate had denied the prayer of the complainant to adduce better evidence to advance the case of the complainant. In the said petition, the prayer was only for a direction to the Assistant Commissioner of Income Tax (Assessment), Circle No.1, Palakkad to produce the income tax returns, balance sheet etc. of M/s.Infogenie Information Tech and Serv Pvt.Ltd. According to counsel, the said prayer was T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 3 rejected by the court below on a mis-conception of law. According to the counsel, as on the date of the impugned order, there was no restriction in producing the document which sought to be produced. According to counsel for the petitioner, after the amendment to Section 137 of the 1961 Act, there is no ban for producing such documents. 7. It is also argued by counsel for the petitioner that though directions are sought for directing the first accused to produce the minutes book of the company, as per Annexure-D in C.M.P.No.1277 of 2006 in Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-8-: S.T.No.4577 of 2004, there was no prayer to examine the first accused as a witness and therefore, the finding of the court below that if the first accused is directed to produce the documents of the company which are based upon the personal knowledge of the accused, it will be used as incriminating evidence against him which will against Article 20(3) of the Constitution of India, is absolutely baseless and perverse. 8. Per contra, Adv.Smt.P.K.Radhika, counsel for the respondents argued that the orders of the court below are absolutely correct and the court can issue direction to produce the income tax documents only if it is satisfied that the same was for the purpose of public interest. It is also argued that even though the first accused was not cited as a witness, the order directing him to produce the documents of the company in a criminal case against him will amount to compelling him to adduce evidence against himself and therefore, the directions sought for by the complainant are hit by Article 20(3) of the Constitution of India. It is also Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-9-: argued that the complainant's evidence was closed much earlier and the accused were questioned under section 313 of the Criminal Procedure Code and the complainant/petitioner approached the court below at the fag end of the trial and therefore, the court is not bound to allow the petitions of the complainant and the court below has rightly dismissed all the petitions and no interference of this Court is warranted at this stage. Since the subject matter of these Crl.M.Cs. is different, for the sake of convenience, it can be considered separately. Crl.M.C.No.1622 of 2006: This Crl.M.C. is filed challenging Annexure-F order of the court below by which Annexure-C petition filed under Section 311 of the Code of Criminal Procedure for re-opening the evidence of the complainant was dismissed. The reason stated by the Magistrate for rejecting the petition is that he had already dismissed the other two petitions filed by the complainant for production of certain documents. It Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-10-: appears to me that the above approach of the court below, though practically correct, procedurally and legally is incorrect. Chapter XVIII of the Code of Criminal Procedure deals with the trial before a Court of Session. Chapter XIX deals with trial of warrant- cases by Magistrates and this Chapter is divided into three parts. Chapter XX deals with trial of summons--cases by Magistrates and Chapter XXI deals with summary trials. From the above provisions of the Code of Criminal Procedure, it can be seen that according to the nature of trials, separate provisions are incorporated in each chapter. T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 4 Chapter XXIV under the caption 'General Provisions as to Inquiries and Trials' by which several provisions are incorporated by which the parties to the proceedings as well as the court are authorised to invoke appropriate provisions contained in the above chapter so as to meet the contingencies that may arise during the trial of the case. Thus Section 311 of Code of Criminal Procedure is included as one of the provisions in Chapter Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-11-: XXIV dealing with general provisions as to inquiries and trials. Coming to Section 311, it can be seen that the same is incorporated as an exception to the provisions enumerated in the aforesaid chapters of the Criminal Procedure Code. Section 311 of the Criminal Procedure Code is a provision incorporated with a view to enable either the prosecution or the defence or even the court itself to take evidence at any stage even if the evidences are closed as the case may be. In Section 311, it is stated that any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. As per the various provisions contained in the above chapters, the code has fixed a strict procedure for the trial of the cases. But, Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-12-: for the ends of justice and for the just decision of the case, either party to the proceedings or the court itself can invoke Section 311 even though separate provisions are made for the trial of the cases, according to its nature/class. In such a situation, unless and until sufficient reasons are made out, the court cannot invoke Section 311 of the Code of Criminal Procedure and therefore, it is incumbent upon the court below to come into a conclusion as to whether in the given facts and circumstances of the case, for invoking Section 311, sufficient grounds are made out or not. If the court is of the opinion that no case is made out to invoke Section 311, there is no need to reopen the evidence either for the prosecution or for the defence. 2. Section 311 of the Criminal Procedure Code consists of two parts. The first part is discretionary in nature whereas the second part is mandatory. But in Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-13-: both the cases, the test is whether the exercise of such power is imperative to do justice to the case. But, in the present case, nothing is discernible from the impugned order as to whether the court has come into any conclusion as required under Section 311 of the Code of Criminal Procedure. The order simply says that since the court has dismissed two petitions (Crl.M.P.1275 & 1277 of 2006) for production of documents, the prayer for re-opening evidence is also rejected. There is no error in simultaneously considering the request for re-opening the evidence as well as production of the documents. But, even then, the above test has to be applied and court has come into its own conclusion. Then only, it can be ensured that the justice should not be only done but manifestly seen to be done. It is discernible from the available materials that the accused has denied the passing of consideration and if so, it is the burden of the complainant to establish the passing of consideration and to discharge his burden, it Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-14-: T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 5 is absolutely necessary, just and proper to re-open the evidence and the documents sought to be produced assume importance. 3. In a decision reported in Iddar v. Aabida reported in 2007(4) KLT 652 (S.C.), the Apex Court has reiterated the legal position by saying that the object underlining Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence or record or leaving ambiguity in the statements of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. Therefore, I am of the view that the court below ought to have allowed Annexure-C petition namely, C.M.P.No.1276 of 2006 filed by the complainant, thereby further opportunity ought to have been given to the complainant to substantiate his case and to uphold the policy of court allowing to adduce evidence and not to shut out the evidence. Going by Annexure-F order, it can be seen that the same was issued without proper Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-15-: application of judicial mind. In the decision cited supra, the Apex Court has held that "it is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." In the light of the above decision and considering the factual situation involved in the case, I am of the view that the court below ought to have allowed the application of the complainant to reopen the complainant's evidence. Therefore, Annexure-F order is not sustainable and the same is set aside and C.M.P.No.1276 of 2006 (Annexure-C) is allowed. Crl.M.C.No.1627 of 2006: This Crl.M.C. is filed challenging Annexure-E order by which the learned Magistrate had rejected the prayer of the complainant for a direction to the Assistant Commissioner, Income Tax Circle-I, Palakkad to produce Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-16-: the income tax returns, balance sheet etc. of M/s.Infogenie Information Tech and Serv Pvt.Ltd. Annexure-E order is issued in Annexure-B petition filed under Section 91 of the Code of Criminal Procedure. The reason given in the impugned order is that there is a ban under Section 138(1)(b) of the Income Tax Act for summoning the particulars relating to an assessee. However, the Commissioner or the Chief Commissioner, as the case may be, shall furnish such particulars only if he is satisfied that the particulars sought to be produced are in the public interest. According to the learned Magistrate, the request for production of documents by the complainant is only for protecting the interest of the complainant and not for any public interest and hence the request was rejected. The learned counsel for the petitioner submits that the above decision of the learned Magistrate is illegal as the same is against the statute. The counsel very much placed reliance on the decision of the Supreme Court reported in M/s.Dagi Ram Pindi Lall v. Trilok Chand Jain (AIR 1992 SC 990). In Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-17-: paragraphs 14 and 15 of the above judgment, the Apex Court had held as follows:- "14. The finality which has been attached to the order of the Commissioner under Section 138(1) T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 6 (b) of the Act is applicable only in cases where application is made to the Commissioner by a party or any other person for receiving documents or information. It has nothing to do with the powers of the Courts to summon the production of assessment record of an assessee, filed after 1-4-1964. The privilege as to secrecy, which the assessee had acquired under Section 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of Section 137 of the 1961 Act in respect of record filed prior to 1-4-1964 and relating to the assessments prior to that date. That privilege did not extend, after April 1, 1964, to record filed before the income-tax authorities, for the assessment years 1964-65 onwards. Section 6 of the General Clauses Act as well as Section 138(1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the Courts to summon the production of documents from the income-tax authorities after April 1, 1964 relating to assessment year 1964-65 in respect of the record filed after April 1, 1964. 15. Section 6(c) of the General Clauses Act 1897 on which reliance was placed by the High Court reads as under:-- "6. Where this Act, or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-18-: d i f f e r e n t i n t e n t i o n a p p e a r s , t h e r e p e a l s h a l l n o t .......................................................................... (c) affect any right, privilege, obligation or liability acquired or incurred under any enactment so repealed. A plain reading of the Section shows that the repeal of any enactment, unless a different intention appears, shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment. In respect of the documents filed after the repeal of Section 137 of the 1961 Act, with effect from April 1, 1964 relating to assessments for the period 1964-65 onwards, no right, privilege, obligation or liability can be said to have been acquired, accrued or incurred prior to the omission of Section 137 of the Act. Therefore, the ban contained in Section 137 of the 1961 Act on the exercise of the powers of a civil court to call for production of documents etc., could not be said to have continued to exist, in matters arising subsequent to the omission of that Section with effect from April 1, 1964 and that ban came to an end in respect of the period after April 1, 1964. The general principle is that an enactment which is repealed, is to be treated, except as to transactions past and closed, as if it had never existed. The assessee had acquired no right or privilege under the repealed act, since the provision is only a procedural restriction and did not create any substantive right in the assessee, in respect of assessments for the period after the T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 7 omission of Section 137 of the 1961 Act. Thus, reliance placed on the provisions of Section 6 of the General Clauses Act to hold the continuation of the ban on Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-19-: the exercise of jurisdiction by the Courts was misplaced." Thus, after the detailed examination regarding the scope of Section 138(1)(b) of the Income Tax Act, in para 18 of the above decision, the Apex Court had held as follows:- "18. As a result of the above discussion, we, therefore, find that the answer given by the Full Bench of the High Court in the impugned judgment, to situation (d) of the second question (supra) as formulated by it, is erroneous and we set it aside. Consequently, we hold that after the repeal of Section 137 of the Act, there is no longer any impediment left in the way of a Court to summon the production of documents filed by an assessee before the income-tax authorities after April 1, 1964 relating to assessment proceedings for 1964- 65 onwards and that the finality attached to an order of the Commissioner under Section 138(1)(b) has no relevance to the exercise of powers by a Court to summon the production of documents in a case pending before the Court. Since, the challenge before us had been confined to the answer given by the High Court to situation (d) of the second question as formulated by it and no other finding of the High Court was called in question, we have refrained from expressing any opinion on the other findings recorded by the Full Bench of the High Court. The appeal consequently succeeds to the extent indicated above and is allowed. We, however, make no order as to costs." Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-20-: From the above, it can be seen that the settled position of law is that there is no ban in directing the concerned authority to produce income tax returns and balance sheet as required by the complainant in the present case and the court is entitled to issue such direction for the proper disposal of the matter pending before it. 2. In the light of the above discussion, it is to be held that after the repeal of Section 137 of the Income Tax Act and in the light of Section 138(1)(b) of the same Act, there is no bar for the court to the exercise of its powers to summon the production of documents relating to income tax assessment in a case pending before the court. The embargo contained in Section 138(1)(b) of the Act has nothing to do with the powers of the court under Section 91 of the Code of Criminal Procedure, even if no public interest involved. Thus, on a reading of Section 138(1)(b) of the Income Tax Act, it is conspicuous that there is no impediment against the exercise of powers of the court to summon the production of a document filed by an assessee before the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-21-: income tax authorities after April 1, 1964 relating to assessment proceedings for 1964-65 onwards. Therefore, in the light of the above position of law, Annexure-E order of the learned Magistrate is T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 8 unsustainable and the same is liable to be quashed and accordingly, Annexure-E order of the court below is quashed and Annexure-B petition, i.e., C.M.P.No.1275 of 2006 is allowed. Crl.M.C.No.1628 of 2006 The above M.C.is filed challenging Annexure- G order of the court below passed on Annexure-D petition i.e., C.M.P.No.1277 of 2006 which is a petition filed under Section 91 of the Code of Criminal Procedure, for producing the minutes book of M/s.Infogenie Information Tech and Serv Pvt. Ltd from incorporation till 2004, the audited accounts of the company for the years 2000-01, 2001-2002, 2002-2003 and 2003-2004 and the Income Tax Returns for the years 2000-2001, 2001-02, 2002-03 and 2003-04 along with balance sheet and annexures. The specific prayer Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-22-: in the petition was for a direction directing the first accused Sri.M.Raveendran who is the Vice Chairman of Infogenie Information Tech and Serv Pvt.Ltd. to produce those documents. By the impugned order, the Magistrate had held that the relief sought for by the complainant is hit by Article 20(3) of the Constitution of India. On a perusal of the above order, it can be seen that the learned Magistrate has miserably failed in applying his mind and arriving at a judicial decision. What is discernible from the impugned order is that the Magistrate had just incorporated the contentions of the accused, but there is no discussion as to how those contentions are sustainable and as to how the order of the Magistrate on allowing the petition will infringe Article 20(3) of the Constitution of India against the respondent/accused. In the order, though the decision reported in State of Bombay v. Kathi Kalu (AIR 1961 S.C. 1808) is cited, there is no discussion as to how the said decision will apply in the facts and circumstances of the present case. Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-23-: 2. In this Criminal M.C., there arises a vital legal question. The question is whether issuance of a summons under Section 91 of the Code of Criminal Procedure directing the accused to produce the documents, related to the company of which he is one of the Directors and as such in his possession, will amount to infringement of the fundamental right guaranteed under Article 20(3) of the Constitution of India. In order to have a clear understanding of the question, the facts leading to passing of Annexure 'G' order, though it is stated earlier, it is necessary to repeat the same which I shall state briefly here again. 3. The petitioner herein in Annexure 'D' petition is the complainant in a proceedings under Section 138 of the Negotiable Instruments Act. According to him, previously he was also one of the directors of the company namely, Infogenie Information Tech and Serv Pvt.Ltd. of which the accused are the present directors. In order to substantiate the allegations contained in the complaint and especially in the light of the defence Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-24-: taken by the accused during the trial of the case, the complainant preferred Annexure 'D' petition namely, C.M.P.No.1277 of 2006 under Section 91 of the Code of Criminal Procedure with a prayer to produce the minutes book of the company, namely M/s.Infogenie Information Tech and Serv. Pvt.Ltd from incorporation till 2004, the audited accounts of the company for the years 2000-01, 2001-02, 2002-03 and 2003-04 and the Income Tax Returns for the years 2000-01, 2001-02, T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 9 2002-03 and 2003-04 along with balance sheet and annexures. The prayer in the petition filed under Section 91 of the Code of Criminal Procedure is for a direction directing the first accused Sri.M.Raveendran who is the Vice Chairman of Infogenie Information Tech and Serv Pvt.Ltd to produce those documents. It is pertinent to note that though the prayer is for a direction directing the first accused Sri.M.Raveendran to produce those documents, there was neither a prayer to examine him as a witness nor he was cited as a Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-25-: witness. It is the above prayer which is rejected by the learned Magistrate stating that if it is allowed, it will amount to infringement of Article 20(3) of the Constitution of India. In order to answer the above question, two provisions namely, Section 91 of the Code of Criminal Procedure and Section 139 of the Indian Evidence Act, 1872 are relevant and assume importance. Chapter VII of the Code of Criminal Procedure, contains Section 91, which is under the caption 'Process to compel the production of things' and with sub-caption 'A-Summons to produce'. For convenience, Section 91 of the Code of Criminal Procedure is quoted hereunder with title, which runs as follows:- 91. Summons to produce document or other thing:- (1)Whenever any court or any officer- in-charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this code by or before such court or officer, such court may issue a summons, or such officer a written order, to Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-26-: the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order; (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed--- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Banker's Books Evidence Act,1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority." (emphasis supplied) Thus, on a reading of Section 91 of the Code of Criminal Procedure, it can be seen that instead of personally producing the documents or things sought to be produced, it can be caused to be produced instead of even without attending the court personally. That means for the compliance of the above section, the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-27-: T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 10 persons directed to produce the thing or documents need not personally present and produce the same, but it can be produced by other means. In this case, it is relevant to note that Annexure 'D' petition is filed under Section 91 of the Code of Criminal Procedure and if the prayer is allowed, the things or documents sought to be produced can be caused to be produced instead of the accused personally present for that purpose. 4. Section 139 of the Indian Evidence Act, 1872 runs as follows:- "139. Cross-examination of person called to produce a document.-- A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness." On a reading of the above section, it is crystal clear that a person summoned to produce a document cannot be cross-examined as he does not become a witness and unless and until he is called as a witness he cannot be cross-examined. In the present case also, the first Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-28-: accused Sri.M.Raveendran against whom the direction sought under Section 91 of the Code of Criminal Procedure is not cited as a witness and there is no request or prayer to cross-examine him on his production of the document. So the prayer in Annexure 'D' petition is perfectly within the limits of Section 91 of the Code of Criminal Procedure as well as Section 139 of the Indian Evidence Act. 5. Now let us have a reading of Article 20(3) of the Constitution of India. "20. Protection in respect of conviction for offences.-- (1)xxxxxxxxxxxxx (2)xxxxxxxxxxxxx (3) No person accused of any offence shall be compelled to be a witness against himself." On a plain reading of Article 20(3) of the Constitution of India, one can understand that the fundamental right conferred on a person accused of any offence is that he shall not be compelled to be a witness against himself. Therefore, the question consequent thereof is whether Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-29-: an accused person if directed to produce a thing or document will amount to testimonial compulsion, even if he is not cited as a witness or not proposed to cross- examine him on his production of the document or thing in terms of Section 91 of the Code of Criminal Procedure. 6. While dealing with the validity of Section 96 (1) of the Code of Criminal Procedure, 1898, eight Judges' Constitutional Bench of the Apex Court in the decision reported in M.P.Sharma and others v. Satish Chandra, District Magistrate, Delhi and others (AIR 1954 SC 300) had laid down the principles underlying in Article 20(3) of the Constitution of India and the fundamental right T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 11 guaranteed under the above article. The extract of the relevant passages are quoted herein:- "Article 20(3) embodies the principle of protection against compulsion of self- incrimination which is one of the fundamental canons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporated as an article of its Constitution. It has also, to a substantial extent, been recognised in the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-30-: Anglo-Indian administration of criminal justice in this country by incorporation into various statutory provisions. (Para 4) So far as the Indian law is concerned, it may be taken that the protection against self incrimination continues more or less as in the English common law, so far as the accused and production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence. ( Para 7) Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components: (1) It is a right pertaining to a person "accused of an offence"; (2) It is a protection against "compulsion to be a witness"; and (3) It is a protection against such compulsion resulting in his giving evidence "against himself". (Para 9) Broadly stated the guarantee in Art.20 (3) is against "testimonial compulsion". But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness-stand. The protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-31-: the commission of an offence has been levelled which in the normal course may result in prosecution. (Para 10) Considered in this light, the guarantee under Art.20(3) would be available to persons against whom a First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against them. " (Para 11) (emphasis supplied) Finally in the above decision, the Apex Court had held that the searches made in pursuance of warrants issued under Section 96 of the Code of Criminal Procedure could not be challenged as illegal on the ground of violation of fundamental right under Article 20(3) of the Constitution of India. In the above decision, the Apex Court had also observed that when the Indian statutory law specifically recognised, protection against production of incriminating documents until Evidence Act 1 of 1872 was enacted which has a provision in this behalf in S.130 thereof. In paragraph 7 of the above decision, the Apex Court had further held as follows:- Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-32-: "7. In the Indian law the extent to which this protection is recognised appears from the various relevant statutory provisions from time to time. Section 3 of Act 15 of 1852 recognised that an accused in the criminal proceedings was not a competent or compellable witness to give evidence for or against himself. This provision was repealed by the Evidence Act 1 of 1872. But meanwhile the Criminal Procedure Code of 1861 in Ss.204 and 203 thereof respectively, provided that no oath shall T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 12 be administered to the accused and that it shall be in the discretion of the Magistrate to examine him. The Criminal P.C. of 1872 by S.250 thereof made a general questioning of the accused, after the witnesses for the prosecution had been examined, compulsory and S.345 thereof provided that no oath or affirmation shall be administered to the accused person. These features have been continued in the later Codes of Criminal Procedure and have been incorporated into S.342 of the present Criminal P.C. of 1898. The only later statutory change, so far, in this behalf, appears to be that brought about by S.7, Prevention of Corruption Act, 1947. By virtue of that section an accused is a competent witness on his own application in respect of offences under that Act. So far as witnesses are concerned, S.3 of the Act 15 of 1852 also declared the protection of witnesses against compulsion to answer Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-33-: incriminating questions. Shortly thereafter in 1855, this protection was modified by S.32 of Act 2 of 1855 which made him compellable to answer even incriminating questions but provided immunity from arrest or prosecution on the basis of such evidence or any other kind of use thereof in criminal proceedings except prosecution for giving false evidence. This position has been continued under S.132, Evidence Act 1 of 1872 which is still in force. So far as documents are concerned, it does not appear that the Indian statutory law specifically recognised protection against production of incriminating documents until Evidence Act 1 of 1872 was enacted which has a provision in this behalf in S.130 thereof. It is not quite clear whether this section which excludes parties to a 'suit' applies to an accused. Thus so far as the Indian law is concerned, it may be taken that the protection against self-incrimination continues more or less as in the English common law, so far as the accused an production of documents are concerned, but that it has been modified as regards oral testimony of witnesses, by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence." Thus the Apex Court had finally concluded and held that the protection against self-incrimination continues more Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-34-: or less as in the English common law, so far as the accused on production of documents are concerned, but that it has been modified as regards the oral testimony of witnesses by introducing compulsion and providing immunity from prosecution on the basis of such compelled evidence. So, according to the above decision of the Apex Court, Article 20(3) is against testimonial compulsion and there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness stand and the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room, but may well extend to compelled testimony previously obtained from him. T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 13 7. But, in a later decision of the Apex Court in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808), a ten Judges' Bench held in para 11 as follows:- (11) The matter may be looked at from another point of view. The giving of Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-35-: finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said 'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case, 1954 SCR 1077: (AIR 1954 SC 300) that the prohibition in cl.(3) of Art.20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-36-: light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S.139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents." While considering Sharma's case (cited supra), but by deviating from what is stated in para 10 of that judgment in AIR 1961 SC 1808 ( State of Bombay v. Kathi Kalu Oghad), the Apex Court had held as follows:- "In our opinion, therefore, the observation of this Court in Sharma's case, 1954 SCR 1077; (AIR 1954 SC 300) that S.139 of the Evidence Act has no Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-37-: bearing on the connotation of the word 'witness' is not entirely well-founded in law. It is well established that cl.(3) of Art.20 is directed against self- incrimination by an accused person. Self- incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 14 the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-38-: his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'." (emphasis supplied) In this decision, while discussing and considering the dictum laid down in the Sharma's case (cited supra), the Apex Court had further observed and clarified as:- "(9) This Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness-stand when standing trial for an offence. The guarantee was, thus, held to include not only oral testimony given in Court or out of Court, but also to statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this Court after full deliberation, we do not find any good reasons for departing from those views. But the Court went on to observe that "to be a witness" means "to furnish evidence" and includes not only oral Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-39-: testimony or statements in writing of the accused but also production of a thing or of evidence by other modes. It may be that this Court did not intend to lay down- certainly it was not under discussion of the Court as a point directly arising for decision--that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of "to be a witness", which has been equated to "to furnish evidence". Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions in the different High Courts in this country. Those decisions are, by no means, uniform; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the Kerala High Court in the case of State of Kerala v. K.K.Sankaran Nair, AIR 1960 Kerala 392 (FB). In that case, Ansari C.J., who delivered the opinion of the Court, has made reference to and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this Court in Sharma's case, 1954 SCR 1077: (AIR 1954 SC 300) also T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 15 covered the Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-40-: case of a specimen handwriting given by an accused person, under compulsion." (emphasis supplied) So, according to the above decision of the Apex Court, calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of 'to be a witness' was not a question for discussion in the earlier decision of the Apex Court, and it is further held in the above decision that "the self-incrimination must be conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light to any of the points in controversy, but it had been contained any statement of the accused based on his personal knowledge." If that be so, in the present case, what summoned and directed to produce is certain documents regarding the company affairs and that too not within Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-41-: the personal knowledge of the accused. It is also relevant to note that the complainant was one of the directors of the company of which now the accused are directors and he had also knowledge regarding those documents and transaction with respect to the company. Therefore, it cannot be said that it is a document exclusively within the knowledge and possession of the accused. As I stated earlier, though the court below had cited the above decision in the impugned order, there is no discussion as to how the above decision and the dictum laid down therein infringed the fundamental right of the accused under Article 20(3) of the Constitution of India. In fact on a proper reading of the above decision and the dictum laid down in the decisions of the Apex Court, it can be seen that by allowing Annexure 'D' petition, no prejudice will be caused to the accused and there is no element of testimonial compulsion so as to attract Article 20(3) of the Constitution of India. Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-42-: 8. It has to be remembered that by the growth of the society, the nature and means of crimes are also being changed. On an overall assessment of the crimes and the factors which led to the commission of crimes on previous days, one can understand that there were certain social factors or communal issues or property disputes. But nowadays, due to unhealthy competition for amazing amount of money, the number of economic offences are being increased. Grave offences, in which economic or financial factors are acting as catalyst agents, are being committed and for committing such grave offences, the wrong doers are adopting and making use of sophistic weapons and also electronic devices. In short, the entire scenario, which were prevailing at the time of the promulgation of the Indian Evidence Act and the Code of Criminal Procedure in its original form, has been drastically changed and the court of law, especially courts which are dispensing criminal justice find it Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-43-: difficult to trace out the truth in this era of computer technology and cybercrimes. For discharging the duties of the criminal court and dispensing justice, the court has to find out the truth and for discharging such task, the court has to depend upon evidence in the form of materials or things or documents. Only on appreciating such materials or evidences, the court can come into a conclusion T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 16 regarding the real truth. It is to be remembered that there is no general ban for a direction directing the accused to produce a thing or document which is within his possession. In view of Section 91 of the Code of Criminal Procedure, the accused need not personally produce the thing or document directed to be produced, and if he causes to produce the same that is sufficient for compliance of that section. In view of Section 139 of the Indian Evidence Act, unless and until the person/accused is shown as a witness, he cannot be Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-44-: examined or cross-examined on his production of a document or a thing. In the light of the dictum laid down by the Apex Court in the Kathi Kalu's case (cited supra), by merely producing a document, it cannot be said that he is self-incriminated and conveying information based upon his personal knowledge. In the light of the above discussion, the only conclusion that can be arrived is, no hard and fast rule can be laid down and the court which confronted with such question has to come into a judicial conclusion based upon the facts and circumstances involved in each case in the light of Section 91 of the Code of Criminal Procedure and Section 139 of the Indian Evidence Act especially in the back ground of Article 20(3) of the Constitution of India. In short, merely because a person is an accused or likely to become an accused, there is no legal impediment for issuing a direction under Section 91 of the Code of Criminal Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-45-: Procedure directing such person to produce a document or thing unless and until the Court which exercises such power comes into a judicial conclusion that issuing such summons or direction will amount to the infringement of Article 20(3) of the Constitution of India. In the present case, in the light of the above discussion, according to me, there is no testimonial compulsion infringing Article 20(3) of the Constitution of India. Therefore, the order of the court below as per Annexure 'G' in Annexure 'D' petition is unsustainable and liable to be set aside and I do so accordingly. In the result, these Crl.M.Cs. are allowed and the court below is directed to proceed with the case accordingly and to dispose of the same on merits. V.K.MOHANAN, Mbs/ Judge Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-46-: V.K.MOHANAN, J. -------------------------------------------- Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-47-: -------------------------------------------- T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 17 J U D G M E N T DATED: -0-2007 Crl.M.C.Nos.1622, 1627 & 1628 of 2006 :-48-: T.R.Ajayan vs M.Ravindran on 7 January, 2008 Indian Kanoon - http://indiankanoon.org/doc/1351251/ 18

trial17.pdf

Delhi District Court State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Author: Sh. Girish Kathpalia IN THE COURT OF SH. GIRISH KATHPALIA, ASJ−05, SOUTH EAST DISTRICT, SAKET, NEW DELHI SC NO. 30/14 STATE vs 1. Subramanyam Yadav @ Rahul Madrasi, S/o Sh. S. Narsingha Rao, R/o Gali No. 8, Ajanta Park, Khoda Colony, Ghaziabad, UP. (proclaimed offender) 2. Ramesh Kumar S/o Sh. Netrapal, Gali No. 5, Prakash Nagar, Khoda Colony, Ghaziabad, UP & 3. Daya Nand S/o Shri Khem Chand, R/o village Rajokri Pahadi, New Delhi FIR No. 473/06 PS Hazrat Nizamuddin Offence under Section 392/397/411/34 IPC Unique ID : 2403R Date of Committal : 15.01 First Date in this Court : 22.01.2014 Date of conclusion of arguments: 30.04.2014 Date of decision : 05.05. JUDGMENT 1. The case brought by the prosecution is as follows. 2. On 03.07.2006 at about 11:30 am, DD No. 7A was recorded at State vs. Subramanyam Yadav etc SC No. 30/14 Page 1 of 46 Pages PS Hazrat Nizamuddin to the effect that as informed by the operator, 10−12 men took away money and jewelery from premises no. C−33A, Ground Floor, Hazrat Nizamuddin East at gun point. A copy of DD No.7A was delivered to SI Harbir Singh through Ct. Sunil. Upon receipt of copy of DD No. 7A, SI Harbir Singh accompanied with Ct. Dilip reached the spot, house no. C−33A, Hazrat Nizamuddin East, New Delhi, where they met Smt. Preeti Paliwal, a resident of that house who gave her statement. 3. In her said statement, Smt. Preeti stated that she had been residing in the said house with her family and her husband is engaged in the business of wall paintings under the name of Decor India in Greater Kailash I; that during the previous Diwali season, they got doors of their house polished from the labour of contractor Rangi Lal and one of the labours was a South Indian who worked in State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 1 their house for many days, so she could identify him well and his name was Rahul; that at about 10:30 am after her husband had left for his office, the door bell rang and her maid Urjila on seeing Rahul Madrasi opened the door; that Rahul was accompanied with many persons; that Rahul Madrasi suddenly took out a State vs. Subramanyam Yadav etc SC No. 30/14 Page 2 of 46 Pages country made pistol and placed the same on the head of her child, threatening to kill and, thereafter, from her bedroom almirah took out cash Rs.50,000/− alongwith her gold and diamond jewelery and ran away; that she could identify the accomplices of Rahul Madrasi if shown; that the details of jewelery would be furnished by her after checking the house properly; that though none of the occupants of her house suffered any injury but Rahul Madrasi and his companions looted her house. 4. On the above said statement of Smt. Preeti, SI Harbir Singh prepared a rukka and after getting the FIR registered, investigated the case. In the course of investigation, SI Harbir Singh (IO) prepared the site plan after inspecting the spot and recorded statements of witnesses. IO also called the crime team to the spot and got the spot inspected. 5. Thereafter, in the course of investigation on 05.07.06, the IO received a copy of DD No. 4A of PS Hazrat Nizamuddin to the effect that as per information conveyed by SI Rajesh of New Ashok Nagar over telephone, accused Ombir and Ramesh of FIR No. 286/06 of PS New Ashok Nagar, arrested on 04.07.06 had given disclosure statement State vs. Subramanyam Yadav etc SC No. 30/14 Page 3 of 46 Pages pertaining to the present case and they would be produced in Karkardooma. The IO upon receipt of DD No. 4A contacted SI Rajesh and proceeded with further investigation. 6. On 06.07.06 on the basis of a secret information, the IO arrested accused Govind Singh Bhandari from Mayur Vihar bus stand and recovered from him some jewelery articles, looted in the present case. 7. Thereafter, on 10.07.06 on secret information, the IO arrested accused Subramanyam Yadav @ Rahul Madrasi from the booking hall of New Delhi Railway Station and recorded his disclosure statement on the basis whereof few jewelery articles, looted in the present case were recovered. In his disclosure statement, Rahul Madrasi informed that some of the looted articles had been illegally taken away from them by a police official who could be got arrested by him. After further investigation from police control room on the basis of the disclosure statement of Rahul Madrasi, the IO arrested accused Ct. Dayanand on the pointing out of Rahul Madrasi. Thereafter, on the basis of disclosure statement of accused Ct. Dayanand, some jewelery articles allegedly State vs. Subramanyam Yadav etc SC No. 30/14 Page 4 of 46 Pages looted in the present case were recovered. 8. Thereafter, on 18.07.06 accused Ombir and Ramesh Kumar were arrested by the IO and cash and jewelery was recovered from them. During investigation, IO applied for test identification parade of Ombir, Ramesh Kumar and Govind Singh Bhandari but all of them refused to join TIP. 9. After completion of investigation, police filed charge sheet against accused Subramanyam Yadav @ Rahul Madrasi, accused Ramesh Kumar and accused Dayanand for offence under Section 392/397/411/34 IPC. The remaining two accused persons namely Ombir and Govind Singh Bhandari were found to be minor in age, so their case was separately sent to the children court. State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 2 10. Upon committal of the case, my predecessor court framed charge against all the three said accused persons for offence under Section 392/34 IPC and Section 397/34 IPC and also framed charge against accused Subramanyam Yadav @ Rahul Madrasi and accused Dayanand for offence under Section 411 IPC. All the accused persons pleaded not State vs. Subramanyam Yadav etc SC No. 30/14 Page 5 of 46 Pages guilty and claimed trial. 11. In the beginning itself of the trial, accused Subramanyam Yadav @ Rahul Madrasi became absent and after necessary proceedings was declared proclaimed offender by my learned predecessor on 28.05.08. 12. In support of its case, prosecution examined 20 witnesses, whereafter the entire prosecution evidence was put to the two accused persons namely Dayanand and Ramesh Kumar in their statements under Section 313 Cr.P.C. Both the accused denied the truthfulness and correctness of prosecution case and pleaded that they are innocent but opted not to lead any evidence in defence. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for State and Sh. K.S. Khatri, counsel for accused, who also submitted the written arguments. 13. A brief conspectus of the evidence brought on record is as follows. 14. PW−1 Ms. Veena Rani, Metropolitan Magistrate proved the TIP proceedings of the accused persons as Ex.PW−1/A−G, stating that the accused persons refused to join TIP. State vs. Subramanyam Yadav etc SC No. 30/14 Page 6 of 46 Pages 15. PW−2 Sh. Lalit Kumar, Metropolitan Magistrate proved the TIP proceedings of the articles allegedly recovered in this case as Ex.PW−2/A & B. 16. PW−3 Ct. Dilip deposed having accompanied the IO upon receipt of DD No. 7A on 03.07.06 followed by recording of the statement of Smt. Preeti and about his having got the FIR registered from police station. 17.1 PW−4 Smt. Preeti Paliwal deposed that her husband is a painter, running business in the name of Decor India from Greater Kailash−I; that in 2005 Diwali, some polish work was done at her residence through contractor Rangi Lal who had employed two labourers namely Subramanyam @ Madrasi and another one, whose name she did not know; that after finishing the polish work, the said labourers left her premises; that accused Subramanyam @ Rahul visited her house many days for polish work; that on 03.07.06 her husband left for his office at about 10:00 am and she was alone at home with her kids and maid; that at about 10:30 am, upon the door bell being rung, her maid opened the State vs. Subramanyam Yadav etc SC No. 30/14 Page 7 of 46 Pages door and found four persons present there; that all those four persons entered her house and one of them was Rahul Madrasi; that Rahul Madrasi was carrying a country made pistol; that the two other accused persons took her child and the maid in the room and accused Rahul Madrasi put pistol on the head of both her kids threatening to kill them if she made any noise; that accused Rahul and Ramesh took her inside her room and asked her to open the almirahs and hand over the cash and other articles; that State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 3 she opened the almirah and after taking out Rs. 70,000/− and all her jewelery she handed over the same to accused Rahul @ Subramanyam and Ramesh; that the accused persons also demanded a bag from her to keep the jewelery and cash and also directed her to place some more money at a particular place near Ashram Chowk which would be collected by them in the evening, failing which they would kill her kids; that thereafter the accused persons disconnected the door bell wire and went away; that she immediately called up her husband and father who reached the spot within 15 minutes and informed the police; that police came and recorded her statement Ex.PW−4/A and prepared the site plan; State vs. Subramanyam Yadav etc SC No. 30/14 Page 8 of 46 Pages that subsequently she gave to the police complete detailed list Ex.PX of her jewelery articles; that on 31.07.06 she identified the recovered jewelery articles in Tihar Jail and subsequently got the same released on superdari vide Ex.PW−4/B. PW−4 produced her jewelery articles which were allegedly looted and recovered and released to her on superdari as Ex.P−1 to Ex.P−27 and as regards the cash, PW−4 stated that she had already spent the same, so could not be produced. 17.2 In her cross examination, PW−4 admitted that the jewelery articles in question did not have any specific description or mark of identification and similar articles are easily available in the market; that she could not produce the invoices of the said articles; that she could not tell the number of similar articles which were mixed up with the recovered articles at the time of TIP; that about recovery of the looted articles she was informed by the police about 5−6 days after the incident; that she did not know if her husband, who had gone to the police station had been shown the recovered articles; that prior to the incident she knew only accused Subramanyam but was confident that accused Ramesh had State vs. Subramanyam Yadav etc SC No. 30/14 Page 9 of 46 Pages accompanied Subramanyam since after the incident police had shown Ramesh to her twice in the court, in order to identify him and she had been shown the accused Ramesh before being produced in the court; that after about 4−5 days of the incident, she got telephone call from police station informing about the recovery of her jewelery, whereafter her husband and father went to the police station and they were shown the recovered jewelery; that after returning from police station, her husband told that some of the looted jewelery articles had been recovered and shown to him in the police station; that though there was no special identification mark on her jewelery items, she was certain that the jewelery allegedly recovered belonged to her and she identified the same because of her belief; that at the time of identification of the jewelery articles, no similar articles were put before her alongwith the allegedly recovered articles; that one golden necklace type article was shown to her but the same was smaller and lighter than her necklace; that the articles obtained by her on superdari were not tested to ascertain if the same were of gold or silver or diamond or any other stone; that the accused Ramesh State vs. Subramanyam Yadav etc SC No. 30/14 Page 10 of 46 Pages was shown to her without muffled face at Patiala House Court when she was called upon to identify him in the court; that she never saw accused Ramesh with Subramanyam on any other day except on the day of incident; that the accused Ramesh did not enter her house with Subramanyam and did not rob the jewelery. 18. PW−5 Sh. Alok Paliwal deposed that upon receiving the telephonic information of the incident at about 11:00 am on 03.07.06, he immediately rushed to his home and informed the police, who came and recorded their statement and prepared site plan; that about 2−3 days after the incident, some of the jewelery articles and cash were recovered by the police which he got released on superdari. PW− State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 4 5 identified the photocopies of currency notes, allegedly involved in the present case as Ex.PW−5/B (Colly). Before my learned predecessor, in his statement PW−5 described the supardarinama as Ex.PW−5/A but it was recorded by my predecessor that the said superdarinama was not traceable on record. In his cross examination, PW−5 stated that the currency notes robbed from his house were in a wad tied with the rubber band and the same were State vs. Subramanyam Yadav etc SC No. 30/14 Page 11 of 46 Pages total 100 notes of Rs.500 denomination each. PW−5 admitted that there is no specific mark of identification by which he could say its certainty that the currency notes belonged to him. 19. PW−6 Ms. Urshila, the maid of the complainant deposed that on 03.07.06 after Sh. Ashok Paliwal went to his office and she was in the house of the complainant with the complainant and her two kids, door bell rang and when she opened the door, she found four boys who entered the house; that one of those boys put pistol on the kids and two boys took her and the kids to another room, leaving behind the complainant Smt. Preeti with the remaining two boys; that one of those four boys was Subramanyam Madrasi who had worked as polish man at their house prior to the incident. PW− 6 identified the accused Ramesh in the court as one of the robbers. In her cross examination, PW−6 stated that she personally did not see the accused robbing the complainant and taking away the cash and jewelery; that it is Rahul Madrasi who was in possession of the pistol; that she was not aware as to where the jewelery and cash had been kept in their house prior to the robbery; that the State vs. Subramanyam Yadav etc SC No. 30/14 Page 12 of 46 Pages accused persons present in the court were not those two boys who had taken her to the other room; that prior to the incident she had never seen the other three boys who accompanied Rahul Madrasi; that she was not certain if the accused Ramesh had entered their house on the day of incident and was involved in the alleged robbery; that she had never seen the accused Ramesh prior to the day of her testimony in the court; that the persons who had earlier worked as polish men had not accompanied Rahul Madrasi on the day of incident; that she cannot recognize a face if shown after gap of time if the said face does not belong to Darjeeling from where she belonged and had different features; that if any person other than Madrasi came before her, she would not be able to identify him as the person seen by her before or during the incident; that it is possible that she had never seen the accused Ramesh and Dayanand prior to the day of her testimony; that after the incident she had never seen those four accused persons till date of her testimony. 20. PW−7 ASI Sushila proved a copy of the FIR as Ex.PW−7/A and her endorsement on the rukka as Ex.PW−7/B and copy of DD no. 7A as State vs. Subramanyam Yadav etc SC No. 30/14 Page 13 of 46 Pages Ex.PW−7/C. 21. PW−8 HC Parmanand proved the copy of relevant entry of Malkhana record register no.19 as Ex.PW−8/A. 22. PW−9, HC Charan Das deposed that on 04.07.06 while posted as head constable at PS Ashok Nagar, he was in the staff of SI Rajesh Dangwal involved in checking the vehicles in front of St. Mary School at about 10:00 am and at that time SI Rajesh received secret information that two persons involved in robbery in the area of Nizamuddin would come on Bajaj Platinum red motorcycle from the side of Khoda to go towards Kondli and would be in possession of illegal arms; that the IO SI State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 5 Rajesh shared the secret information with the SHO and members of the raiding team; that the IO contacted 4−5 public persons to join as witness but none agreed; that at about 10:50 am, one red Bajaj Platinum motorcycle without a number plate with two persons on it came at a fast speed and on seeing the police team the motorcycle rider tried to accelerate by taking U−turn but was chased and apprehended on the pointing out of secret informer; that on interrogation, driver of the State vs. Subramanyam Yadav etc SC No. 30/14 Page 14 of 46 Pages motorcycle disclosed his name as Ombir and the pillion disclosed his name as Ramesh; that from personal search of accused Ombir, carried out by Ct. Dev Vrat, one country made pistol and a live cartridge were recovered; that IO recorded statements Ex.PW−9/A and Ex.PW−9/B respectively of accused Ombir and Ramesh; that accused Ombir and Ramesh took out one pearl necklace each and handed over the same to the IO which were seized by the IO after placing the same in plastic containers sealed with the seal of RD vide seizure memos Ex.PW−9/C and Ex.PW−9/D; that the IO seized the motorcycle of the accused persons vide memo Ex.PW−9/E and arrested the accused persons; that in pursuance of the disclosure statement of accused Ombir and Ramesh, the police team went to the house of accused Ramesh from where a sum of Rs.20,000/− and jewelery were recovered which were kept in polythene and containers by the IO sealed with the seal of RD and seized vide memo Ex.PW−9/F. PW−9 also narrated the manner of recovery conducted from the house of accused Ombir and identified the case property as Ex.P−1 to Ex.P−27. In his cross examination, PW−9 stated that to the house of accused Ramesh, State vs. Subramanyam Yadav etc SC No. 30/14 Page 15 of 46 Pages they went on foot and it took about 10−15 minutes to reach there; that the house of Ramesh consists of single storey with 2−3 rooms of medium size and the recovery was effected from a room which was in front of the gate; that at the time of recovery mother of accused Ramesh and some children also were present in the house, which was surrounded by public; that the currency notes recovered from accused Ramesh were 20 notes of Rs.500 denomination and 10 notes of Rs.100 denomination; that the containers in which the recovered articles were packaged had been brought from a nearby scrap dealer shop and the containers were transparent but he did not know as to who had brought the same from the scrap dealer. 23. PW−10 Ct. Pramod Kumar deposed about the manner of arrest of accused Subramanyam Yadav @ Rahul Madrasi, who as mentioned above is now a proclaimed offender. Further, PW 10 deposed that after arrest of accused Subramanyam on 10.7.2006, the police party alongwith the accused went to police post Sarai Kale Khan, from where the IO collected the information as regards the policemen who were on duty on the day shift of 03.7.2006; that accused constable Dayanand also State vs. Subramanyam Yadav etc SC No. 30/14 Page 16 of 46 Pages reached the police post and accused Rahul Madrasi immediately identified Dayanand; that the IO interrogated the accused Dayanand and recorded his disclosure statement Ex.PW 10/F and arrested Dayanand vide memo Ex.PW 10/G and took his personal search vide memo Ex. PW 10/H; that thereafter, the police party alongwith accused Rahul and Dayanand reached at the place where the accused Dayanand had taken search of Rahul and taken away the jewelery from the latter and the IO prepared the pointing out memo; that thereafter some officials of the police party took the accused Dayanand to his house for recovery of the jewelery. 24. PW 11 HC Surya Prakash deposed about the formal arrest of accused Omvir and Ramesh from the court of learned Magistrate vide arrest memos Ex. PW 11/A and Ex. PW 11/B. State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 6 25. PW 12 Ct. Kanwarpal Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of accused Omvir and Ramesh and the articles recovered from their personal search followed by articles State vs. Subramanyam Yadav etc SC No. 30/14 Page 17 of 46 Pages recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 12 stated that he had no idea as regards the direction of opening of the house of accused Ramesh; that he could not tell as to what jewelery was recovered from the house of accused Ramesh; that he could not tell the denomination of the currency notes alleged recovered from the residence of accused Ramesh; that the jewelery recovered from the house of accused Ramesh was certainly not of silver or pearl but he could not tell the number of jewelery articles recovered; that at the time of seizure, the jewelery articles and currency notes were lying in a corner of the house packed in a cloth parcel; that the recovered articles were packaged by the IO in plastic boxes which were already with him in the IO bag. 26. PW 13 ASI Anoop Kumar Singh, finger print expert proved his report as Ex.PW 13/A. 27. PW 14 ASI Virender Singh deposed that on 03.7.2006 he was posted as ASI in PCR unit as incharge of Eagle 7 PCR Van from 8:00am to 8:00pm and gunman HC Parshu Ram and Ct. Dayanand also were with State vs. Subramanyam Yadav etc SC No. 30/14 Page 18 of 46 Pages him on duty, that at about 11:30am on that day, accused Dayanand went away to attend a call of the nature and returned after some time; that on 10.7.2006 he was informed by the IO about involvement and arrest of accused Dayanand in the present case. PW 14 could not produce the call book and duty register as the same had been destroyed by orders Ex.PW 14/A and Ex.PW 14/B. 28. PW 15 HC Satya Parkash proved a copy of FIR against accused Omvir and Ramesh as Ex. PW 15/A and his endorsement on rukka as Ex. PW 15/B. 29. PW 16 HC Satender Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of the accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 16 stated that both the accused persons namely Omvir and Ramesh were on black motorcycle when they were apprehended and at that time the secret informer was not with them; that State vs. Subramanyam Yadav etc SC No. 30/14 Page 19 of 46 Pages the articles recovered from the house of accused Ramesh were kept in an iron box in a corner. 30. PW 17 HC Jai Parkash proved the information recorded by him in PCR form as Ex.PW 17/A and stated that the original record of PCR has been weeded out vide orders Ex.PW 17/B1 and Ex.PW 17/B2. 31. PW 18 Ct. Dev Vrat Singh narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination, PW 18 stated that after arrest they went to the house of the accused on motorcycle and another vehicle called from the police State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 7 station; that the articles recovered from the house of accused Ramesh were gold like and silver like which were kept in a box handed over by accused Ramesh to the IO; that all the jewelery articles so recovered were placed in a white cloth pullanda and the same were sealed with the seal of RD. State vs. Subramanyam Yadav etc SC No. 30/14 Page 20 of 46 Pages 31.1 PW 19 SI Harbir Singh deposed that on 03.07.06 while posted as sub inspector at PS Hazrat Nizamuddin, on receipt of DD no. 7A, he reached the spot and recorded statement of the complainant Smt. Preeti Paliwal and sent the same for registration of FIR after preparing rukka Ex.PW−19/A and he also prepared site plan Ex.PW−19/B and got the spot inspected by crime team; that on 05.07.06 he received information that some of the accused persons wanted in the present case had been arrested by the police of PS Ashok Nagar in case FIR No. 286 for offence under Section 411 IPC; that on 06.07.06 he arrested accused Govind Singh from the bus stand near Mayur Vihar and subsequently it was revealed that Govind Singh was a juvenile; that on 10.07.06 he alongwith Ct. Vinay and Ct. Pramod, upon information, reached New Delhi Railway Station and at the instance of secret informer arrested the accused Subramanyam Yadav @ Rahul, from whose bag two gold necklace, one anklet and one ear gold chain were recovered, which he seized vide seizure memo Ex.PW−19/D after converting the same into a sealed pulanda; that he arrested the accused Subramanyam Yadav who disclosed that when the State vs. Subramanyam Yadav etc SC No. 30/14 Page 21 of 46 Pages accused persons were going with the robbed articles, PCR personnel met them on the way and took away from them all the robbed articles; that thereafter, he inquired from the PCR zonal office regarding the duty of the police personnel on 03.07.06 at the PCR Van and was informed that the concerned police official would again be posted on 10.07.06 at night; that when at the time of change of duty, Ct. Dayanand reached the police post Sarai Kale Khan, the accused Subramanyam Yadav identified Dayanand as the PCR personnel who had taken away the robbed articles, so Dayanand was interrogated and taken to the place where the robbed articles had been kept; that the accused Dayanand was arrested and in pursuance of the disclosure statement got recovered from his house one pair of loops, one pendant and one ring which were seized by him; that on 13.07.06 he formally arrested the accused Ramesh and Ombir who had been produced in the court; that on 31.07.06 TIP of the accused persons was conducted, in which they refused to join; that on 01.08.06 TIP of case property was conducted in which the complainant identified the case property and the same was released to her on superdari. State vs. Subramanyam Yadav etc SC No. 30/14 Page 22 of 46 Pages 31.2 In his cross examination, PW−19 admitted that accused Subramanyam had not given the description of the jewelery which he had shared with the co−accused; that he arrested the accused Dayanand at about 09:00 pm from police post Sarai Kale Khan where other police officials also were present but he did not record their statements and did not even remember their names; that accused Dayanand also did not give any description of the articles received by him from accused Subramanyam; that he took accused Dayanand to the residence of the latter in a TSR but did not join the TSR driver as a witness to recovery and did not remember having paid even the fare; that he had asked 3−4 witnesses from neighborhood of Dayanand but they refused to join investigation and did not disclose their names and addresses; that there were family members of accused Dayanand in that house but he did not remember their names or relationship with the accused; that in the first complaint, the complainant had not given any specific description or weight of the allegedly robbed articles and had not mentioned even the articles allegedly recovered from the house of accused Dayanand; that the State vs. Subramanyam Yadav etc SC No. 30/14 Page 23 of 46 Pages State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 8 complainant had not even disclosed as to from where the allegedly robbed articles had been purchased nor produced any receipt; that he had collected similar articles from jewelers for mixing up with the case property at the time of TIP but did not remember the names or addresses of the jewelers or the particulars of the articles used for mixing up during TIP; that he also did not remember as to how many articles were collected by him for the purposes of mixing up with the case property during TIP; that the list of the allegedly robbed articles was provided to him by the complainant on 04.07.06 but the said list did not mention the six jewelery articles shown at serials no.1−6 in the seizure memo of the articles allegedly recovered from accused Ramesh; that the list of the allegedly robbed articles did not mention the amount or denominations of the currency notes; that he never asked the complainant to submit any photograph showing the allegedly looted articles; that during the investigation, although he came to know that the articles allegedly recovered from accused Ramesh did not match with the list of the looted articles, and he brought this to the notice of the complainant, but she State vs. Subramanyam Yadav etc SC No. 30/14 Page 24 of 46 Pages stated that she did not remember the exact items as so many articles of jewelery were looted, so he insisted on the complainant to provide the list of remaining robbed articles but she did not do so; that even before TIP he had disclosed to the complainant that the articles recovered from accused Ramesh did not match with the list of robbed articles but the complainant stated that she would identify her articles as and when shown and she did not remember about every article; that prior to the TIP, the complainant had never disclosed to him in writing or otherwise the articles which were her own. 32. PW−20 SI Rajesh Dangwal narrated the above mentioned facts as regards constitution of a raiding party upon receipt of secret information followed by the arrest of the accused Omvir and Ramesh and the articles recovered from their personal search followed by articles recovered at their instance in pursuance to their disclosure statements. In his cross examination PW−20 stated that he did not share the secret information with his superior officer; that he did not verify the ownership of the motorcycle nabbed by him; that he did not join any public person at State vs. Subramanyam Yadav etc SC No. 30/14 Page 25 of 46 Pages the time of arrest of the accused; that to the house of accused Ramesh they went on foot and also carried alongwith them the motorcycle of the accused; that house of accused Ramesh consisted of 2−3 rooms; that some of the containers in which the case property was packaged were got arranged by him through HC Charan Das, though he did not pay for the same; that he did not match the articles recovered from the house of accused Ramesh with the list of articles provided by complainant and he seized the articles merely because the accused provided the same. 33. The entire above described evidence was put to both the accused persons in their statements under Section 313 Cr.P.C. Both the accused persons denied the correctness and truthfulness of the prosecution evidence and pleaded innocence but opted not to lead any evidence in their defence. 34. During final arguments, learned Additional Public Prosecutor argued that prosecution has successfully proved its case beyond reasonable doubt. It was argued by learned prosecutor that the accused Ramesh was duly identified during trial by the complainant, State vs. Subramanyam Yadav etc SC No. 30/14 Page 26 of 46 Pages though he had refused to join TIP; even the stolen articles were recovered from the possession of accused Ramesh, which articles were identified by the State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 9 complainant during TIP. It was further argued that as regards accused Dayanand, there is a clear evidence of the recovery of stolen articles from his possession, which articles were identified by the complainant during TIP. Hence, as per prosecution, both the accused are liable to be convicted. 35. Per contra, learned defence counsel filed written arguments and also submitted orally contending that prosecution has miserably failed to prove its case beyond reasonable doubt. It was argued that since no public witness was joined at the time of the alleged recovery of articles from the accused persons, the recovery becomes doubtful. It was also contended that even as per the investigating officer PW−19, accused Subramanyam had told that all the allegedly robbed articles had been taken away by the PCR officials, so there was no scope for any recovery from any of the accused persons. Learned defence counsel also submitted that there are large number of major contradictions in the testimony of State vs. Subramanyam Yadav etc SC No. 30/14 Page 27 of 46 Pages witnesses related to the recovery and arrest of the accused persons. 36. As mentioned above, the present trial pertains only against two accused persons namely Ramesh and Dayanand. Therefore, the discussion as regards the remaining accused persons is not being gone into details. 37. As also described above, the accused Dayanand was admittedly not involved in the incident of the alleged robbery, so there was never any occasion for the complainant to see Dayanand; whereas accused Ramesh, as per prosecution was involved in the alleged robbery but was not previously known to the complainant and was not arrested from the spot. Therefore, the entire prosecution case hinges upon the factum of identification of accused Ramesh; the factum of recovery of the allegedly looted articles; and identification of the allegedly looted articles by the complainant to be her articles. 38. At this stage, it would be apposite to traverse through the legal position, relevant to the present case. 39. In the case of Sahib Singh vs State of Punjab, reported as State vs. Subramanyam Yadav etc SC No. 30/14 Page 28 of 46 Pages 1997 (1) CC Cases 13 SC, the Hon'ble Supreme Court held that where IO made no attempt to join public witnesses before conducting the search, the consequent recovery loses its credence. In the case of Sadhu Singh vs State of Punjab, reported as 1997 (2) CC Cases 8, the Hon'ble High Court held that stereotyped statement of non−availability of public witnesses is not enough when at the relevant time it was not difficult to arrange for independent public witnesses to join recovery or arrest. 40. In the case of Balbir Singh vs State of Punjab, reported as 1997 (1) CC Cases 136 SC, the Hon'ble Supreme Court held that where there were no specific marks on the recovered articles, the recovery becomes a weak piece of evidence. 41. In the case of State vs Maqsood Ahmed reported as 163(2009) DLT 39 DB, a Division Bench of the Hon'ble Delhi High Court held that although refusal to participate in TIP without sufficient reason goes adverse to the accused, but conviction cannot be done on the sole ground of refusal to State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 10 join TIP. 42. In the case of Leela Ram vs State, 1990 (2) CC cases 402, State vs. Subramanyam Yadav etc SC No. 30/14 Page 29 of 46 Pages the Hon'ble Delhi High Court held as under: "27. Evidence of identification is to be regarded as inherently weak, least to be relied upon and in itself an unsafe basis for conviction. Even a mere possibility that the accused was or could have been shown would be sufficient justification for refusal to participate in identification proceedings and to reject identification evidence." 43. In the case of Parmod Kumar vs The State 1990 CrLJ 68 the Hon'ble Delhi High Court held: "The witnesses who are examined by the prosecution should have been asked as far as possible to give broad description of the accused while recording their statement under Section 161 CrPC........In our view therefore, the appellant was justified in refusing to join the test identification parade as he has clearly established the possibility of his being shown to the eye witnesses during the course of the alleged recovery of the alleged weapon of offence. " 44. In the case of Tain Singh vs State, 1987 CrLJ 53, the Hon'ble Delhi High Court held: "4. It is settled law that the accused is not to prove conclusively that he was shown to the prosecution witnesses before he declined to participate in the identification parade. State vs. Subramanyam Yadav etc SC No. 30/14 Page 30 of 46 Pages It is enough if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while he was in police custody or when he was produced in court for remand." 45. In the case of Kanan & Ors. vs. State of Kerala, reported as 1979 Crl. LJ 919, the Hon'ble Supreme Court held that where a witness identifies an accused who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If no TIP is held, then it will be wholly unsafe to rely on the bare testimony of the witness as regards the identification of the accused for the first time in court. 46. In the case of Budh Sen vs State of UP, reported as AIR 1970 SC 1321, the Hon'ble Supreme Court observed that it is considered safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses as to identity of the accused who are strangers to them, in the form of earlier identification proceedings and the person required to identify an accused should have had no opportunity of seeing State vs. Subramanyam Yadav etc SC No. 30/14 Page 31 of 46 Pages him after the commission of the crime and before identification; observing that possibility of the witnesses having seen the accused whom they were supposed to identify subsequently, the test identification parade could not be considered to provide safe and trustworthy evidence to convict the accused. State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 11 47. Falling back to the present case, refusal of accused Ramesh to participate in the Test Identification Parade was pressed as an important incriminating circumstance by the prosecution. It certainly is so, provided there was no justification for such refusal. If the overall evidence on record read in its entirety, reflects that accused Ramesh was justified in refusing to participate in TIP, then such refusal cannot be taken to be an incriminating circumstance. 48. So far as the identity of the accused Ramesh as one of the robbers is concerned, as mentioned above, even as per prosecution case, accused Ramesh was not previously known to the complainant Smt. Preeti Paliwal nor did she even describe the physical features of any of the robbers in her statement. As regards identification of accused Ramesh, State vs. Subramanyam Yadav etc SC No. 30/14 Page 32 of 46 Pages prosecution solely relies upon his refusal to participate in TIP proceedings. Therefore, it would be necessary to examine as to whether the refusal of accused Ramesh to participate in TIP proceedings was for any justified reason. Even as per prosecution case, as borne out from testimony of PW 9 HC Charan Dass, PW 12 Ct. Kanwar Pal Singh, PW 16 HC Satender Singh, PW 18 Ct. Dev Vrat and PW 20 SI Rajesh Gangwal, accused Ramesh was arrested on 04.7.2006 on the basis of secret information and on the same day the accused was taken for recovery of the allegedly looted articles. As per Ex. PW 1/F, the IO applied for TIP proceedings as belatedly as on 31.7.2006. In other words, accused Ramesh was taken out for recovery of the allegedly looted articles much prior to the TIP. As also was the situation in the case of Parmod Kumar (supra), possibility of the accused having been shown to the complainant cannot be ruled out and in such circumstances, the Hon'ble Delhi High Court held the refusal to join TIP as justified. 49. Further, as per TIP proceedings Ex. PW 1/E, accused Ramesh refused to join the proceedings clearly stating that he had been State vs. Subramanyam Yadav etc SC No. 30/14 Page 33 of 46 Pages shown to the witnesses in the police station and his photograph also was taken in the police station prior to the day of TIP. This statement of accused Ramesh stands corroborated by the testimony of the complainant PW 4, who stated in her cross examination that she was confident about involvement of accused Ramesh since after the incident police had shown Ramesh to her twice in the court in order to identify him and that she had been shown the accused Ramesh even before being produced in court and that accused Ramesh was shown to her without muffled face at Patiala House Courts when she was called upon to identify him. Rather, PW 4 in her cross examination even stated that accused Ramesh did not even enter her house with accused Subramanayam and as such, identification of Ramesh by PW 4 in the course of her testimony for the first time is worthless. In fact the complainant, PW 4 went a step further in her cross examination and categorically stated that the accused Ramesh did not rob any article. 50. Even the maid PW 6 Ms. Urshila in her cross examination stated that she personally did not see accused Ramesh robbing the State vs. Subramanyam Yadav etc SC No. 30/14 Page 34 of 46 Pages complainant. PW 6 further stated in her cross examination that accused Ramesh was not one of those robbers who had taken her to the other room and she was not even certain if accused Ramesh had entered their house. PW 6 further explained in her cross examination that since she belongs to Darjeeling, she cannot recognize faces with features different. State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 12 51. In view of the above mentioned testimony of PW 4 and PW 6, who were the only witnesses of the alleged robbery, it would not be safe to convict the accused Ramesh only on the basis of his refusal to join TIP. 52. The next incriminating evidence against accused Ramesh as per prosecution is the recovery of allegedly looted articles at his instance. Even on this count, the evidence adduced by the prosecution fails inspire confidence. As per prosecution, the allegedly looted articles were recovered from accused Ramesh in two installments - firstly at the time of his arrest and thereafter from his residence on the basis of his disclosure statement. As per prosecution, at the time of his arrest accused Ramesh took out one pearl necklace and handed over the same to the IO, who seized the same vide seizure memo Ex. PW 9/D. The seizure memo State vs. Subramanyam Yadav etc SC No. 30/14 Page 35 of 46 Pages Ex.PW 9/D reflects that the said necklace was handed over by accused Ramesh to the IO after taking the same out of his neck. The said exercise was carried out by SI Rajesh Dangwal in FIR No. 286/06. One fails to understand why the accused would take out the necklace worn by him and hand it over to the IO, when the same was not even visible and SI Rajesh Dangwal was not even vaguely aware qua the allegedly robbed articles. More so, as would be further discussed, there was not even any identification mark on the said necklace. In the said exercise, the IO incorporated four witnesses, all of whom were police officials. No independent public person was joined in the alleged proceedings of arrest of accused Ramesh, which casts doubt on the alleged arrest and recovery proceedings. 53. As regards non joining of public persons at the time of arrest of accused Ramesh, the police witnesses in a stereotyped manner stated in cross examination that they had requested 4−5 public persons but none of them agreed to join as a witness; none of the police witnesses could disclose name or address of any of those public persons whom they had State vs. Subramanyam Yadav etc SC No. 30/14 Page 36 of 46 Pages requested to join the proceedings. Such a farcical exercise throws doubts on the genuineness of the arrest and the recovery proceedings. The place where accused Ramesh was allegedly arrested was in front of a school and there is nothing on record to show that public persons with fixed place of residence or office or shop around that spot were not available. 54. Similarly, even as regards the alleged recovery of some jewelery and Rs. 20,000/− from the residence of accused Ramesh, no independent public witness was joined despite availability. As regards the said jewelery articles also, in the absence of specific marks of identification, in view of above cited legal position, the recovery becomes a weak piece of evidence. 55. Not only this, even as regards the manner of the arrest and the alleged recovery at the instance of accused Ramesh, there are number of contradictions in the testimony of the police officials who were the witnesses, for instance as per PW 12 constable Kanwar Pal Singh, the articles recovered from the residence of accused Ramesh were found kept in a cloth parcel in a corner of the house, whereas according to rest of the State vs. Subramanyam Yadav etc SC No. 30/14 Page 37 of 46 Pages prosecution case, the same were found kept in an iron box kept in the room; similarly there are also contradictions as regards the mode by which the police party went to the residence of accused Ramesh and even as regards the number of rooms in the house of accused Ramesh. Even as regards the containers in which the allegedly looted articles were packaged to be sealed, there are State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 13 contradictions in the statements of police witnesses in so far as one witness stated that the containers were in the IO kit while the other stated that the containers were bought from a scrap dealer shop; PW−18 contrary to entire prosecution case stated that the allegedly recovered jewelery articles were packaged by the IO in a cloth pulanda. Contrary to the entire prosecution case that at the time of arrest accused Ombir and Ramesh came on red motorcycle and were identified by the secret informer, PW−16 HC Satender Singh in his cross examination stated that the accused persons came on black motorcycle and at that time the secret informer had already left. 56. As regards the recovery of allegedly looted articles from the house of accused Ramesh, testimony of PW 20, the investigating officer State vs. Subramanyam Yadav etc SC No. 30/14 Page 38 of 46 Pages SI Rajesh Dangwal is quite interesting. PW 20 in his cross examination stated that he did not match the articles recovered from the house of accused Ramesh with the list of looted articles supplied to him by the complainant and gullibly seized the same only because the accused provided the same to him. Such a statement, that too from the investigating officer puts the alleged recovery into serious doubt. Not only this, even the other investigating officer PW 19 SI Harbir Singh in his cross examination specifically stated that the list of the allegedly robbed articles supplied to him by the complainant did not mention any of the jewelery articles recovered from the house of accused Ramesh. In other words, even if it is believed that certain jewelery articles were recovered from the house of accused Ramesh, it is doubtful if the same were the looted articles. 57. As regards the articles allegedly recovered from both the accused persons, there is no reliable evidence that the same were the articles looted from the house of the complainant. The complainant Smt. Preeti Paliwal in her cross examination as PW 4 stated that the allegedly State vs. Subramanyam Yadav etc SC No. 30/14 Page 39 of 46 Pages looted jewelery articles did not bear any specific description or mark of identification and such articles are easily available in the market; that she could not produce any document of her ownership or even possession over the allegedly looted jewelery articles. 58. As regards the identification of the allegedly looted articles by the complainant to be her articles, her testimony as PW 4 raises serious doubts even as regards genuineness of TIP proceedings. In her cross examination, PW 4 stated that at the time of identification of the jewelery articles, no similar articles were put before her alongwith the allegedly recovered articles; that after about 4−5 days of the incident she received a telephone call from police informing about recovery of her jewelery whereafter her husband and father went to the police station and were shown the recovered jewelery and after returning from the police station, her husband told that some of the looted jewelery had been recovered and had been shown to him in the police station. Most interestingly, PW 4 stated in her cross examination that there was no special mark of identification on her jewelery items but she was certain State vs. Subramanyam Yadav etc SC No. 30/14 Page 40 of 46 Pages that the recovered jewelery belonged to her and she identified the same solely because of her belief. 59. Even as regards the money allegedly recovered and the money allegedly looted, the evidence brought by prosecution fails to inspire confidence. The list Ex. PX of the allegedly looted articles describes the money looted as cash Rs. 50,000/− plus Rs. 20,000/− without disclosing the numbers or denomination of the currency notes; in his testimony as PW 5, husband of the complainant State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 14 described the looted money as a wad of 100 currency notes of rupees 500 denomination each; but as per PW 9, the money recovered from the house of accused Ramesh contained 20 currency notes of rupees 500 denomination and 10 currency notes of rupees 100 denomination. It remains unexplained as to from where the currency notes of rupees 100 denomination came out to be described as the looted money, since it is nobody's case that some amount of the looted money was spent or converted into smaller denominations by accused Ramesh. 60. As regards accused Dayanand, case of prosecution is that State vs. Subramanyam Yadav etc SC No. 30/14 Page 41 of 46 Pages after arrest, accused Subramanyam Yadav @ Rahul Madrasi disclosed that when the accused persons were going with the robbed articles, PCR personnel met them on the way and took away some of the robbed articles; on the basis of the said disclosure statement, IO SI Harbir Singh carried out further investigation which led to the arrest of accused Dayanand who was identified at the time of arrest by accused Subramanyam Yadav; thereafter, at the instance of accused Dayanand, from his residence a pair of loops, a pendant and a ring were recovered. 61. Accused Dayanand was arrested, as per prosecution from police post Sarai Kale Khan at the time of change of duties of PCR personnel. If it was so, there must have been some documentary record in the form of entries in the daily diary register or any other record reflecting the arrest of accused Dayanand from or even near police post Sarai Kale Khan when Dayanand reached there to join duty. But no such record was produced by prosecution. 62. Even statement of any official of police post Sarai Kale Khan, what to say of Incharge police post, was recorded by the IO as admitted State vs. Subramanyam Yadav etc SC No. 30/14 Page 42 of 46 Pages by PW 19 SI Harbir Singh in his cross examination. 63. Not just this, prosecution did not even place on record any document reflecting that on 03.7.2006 accused Dayanand was on duty on PCR, as alleged in the disclosure statement of accused Subramanyam Yadav. I am conscious that as per Ex. PW 19/F and Ex. PW 19/G, the PCR records were weeded out. But the said records were weeded out only after 10.6.2010. Having arrested constable Dayanand on 10.7.2006, the IO ought to have immediately seized the relevant duty records of constable Dayanand. Prosecution cannot be given benefit of their fault in not having seized the necessary documentary record at the earliest instead of waiting till the weeding out. Even photocopy of any duty record of constable Dayanand has not been filed by prosecution. 64. Like in the case of accused Ramesh, in the case of accused Dayanand also, no independent public witness was joined by the IO at the time of the alleged search and seizure at the house of accused Dayanand and a stereotyped explanation has been brought forth that 3−4 witnesses were requested to join the investigation but they refused, at the State vs. Subramanyam Yadav etc SC No. 30/14 Page 43 of 46 Pages same time admitting that the IO did not even remember names or addresses of such persons and no action taken against them. 65. As regards the identification of the jewelery articles allegedly recovered from the house of accused Dayanand also, the evidence that the same were the articles owned or possessed by the State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 15 complainant, the evidence as described above is absolutely unworthy of credence as even those articles form part of the TIP proceedings regarding which testimony of the complainant PW 4 has been described above at length. 66. As regards the articles used for mixing up with the allegedly recovered articles at the time of TIP, the investigating officer PW−19 SI Harbir Singh stated in cross examination that in the first complaint or even the subsequent statement, the complainant had not mentioned the three articles allegedly recovered from the house of accused Dayanand; that even weight of those articles or even description of the shop from where the same were purchased was not given by the complainant. But despite that he weighed the said articles, for no reason. PW−19 further stated that he had collected the similar articles from jewelers for mixing State vs. Subramanyam Yadav etc SC No. 30/14 Page 44 of 46 Pages up with the allegedly recovered articles at the time of TIP but he did not remember as to how many articles were used for mixing up and also did not remember the names and addresses of the jewelers from whom the said articles for mixing up were obtained. 67. To summarize, there is no reliable evidence reflecting that accused Ramesh was one of the robbers involved in the alleged offence; there is no reliable evidence reflecting that the articles allegedly recovered from and at the instance of the accused persons are the articles that were owned or possessed by the complainant or the same were looted in the alleged incident; there is no reliable evidence reflecting that accused Dayanand was even involved in any manner in the alleged offence. 68. In view of above discussion, it is held that prosecution has failed to prove its case beyond reasonable doubt. Consequently the accused persons are held not guilty of the offence they were charged with and accordingly both the accused are acquitted. 69. However, as regards the accused Subramanyam Yadav @ State vs. Subramanyam Yadav etc SC No. 30/14 Page 45 of 46 Pages Rahul Madrasi, the matter shall be taken up again as and when he is arrested. File be consigned to Records. Announced in the open court (GIRISH KATHPALIA) on 05.05.2014 ADITIONAL SESSIONS JUDGE−05, SOUTH EAST, SAKET, NEW DELHI State vs. Subramanyam Yadav etc SC No. 30/14 Page 46 of 46 Pages State vs . Subramanyam Yadav Etc Sc No. ... on 5 May, 2014 Indian Kanoon - http://indiankanoon.org/doc/164916005/ 16