tag:blogger.com,1999:blog-91120749762476026192024-03-13T23:30:29.291+05:30Crime and Punishment and other Lawsfree333http://www.blogger.com/profile/07472921528961614010noreply@blogger.comBlogger185125truetag:blogger.com,1999:blog-9112074976247602619.post-47797186427641005942016-08-10T04:30:00.000+05:302016-08-10T04:30:27.129+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="font-size: large;"><a href="https://indiankanoon.org/doc/73578326/" target="_blank">Full Judgment Click Here</a></span><br />
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<span style="font-size: 15pt;">Tags
: - criminal conspiracy; Section 120-A/ 43 IPC; Prevention of
Corruption Act; 'illegal'; Section 438 Cr PC; anticipatory bail;
necessity of custodial interrogation; duty of police; 'custody';
'interrogation'; “right to remain silent”; third-degree method; </span>
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<span style="font-size: large;">Niranjan
Tripathy v. Odisha</span></div>
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<blockquote style="line-height: 0.25in; margin-left: 0in; margin-right: 0in; orphans: 1; text-align: justify;">
<span style="color: red;"><span style="font-family: georgia, sans-serif, serif, arial; font-size: large;"><span style="background-attachment: initial; background-clip: initial; background-color: yellow; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial;">"70.
While dealing with the facet of criminal conspiracy, it has to be
kept in mind that in a case of conspiracy, there cannot be any direct
evidence. Express agreement between the parties cannot be proved.
Circumstances proved before, during and after the occurrence have to
be considered to decide about the complicity of the accused. Such a
conspiracy is never hatched in open and, therefore, evaluation of
proved circumstances plays a vital role in establishing the criminal
conspiracy."</span></span></span></blockquote>
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<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0in; orphans: 1;">
<span style="color: black;"> </span><span style="color: red;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b>But
this contention ignores the scope of offence of criminal
conspiracy. </b></span></span></span><a href="https://indiankanoon.org/doc/591631/"><span style="color: red;"><span style="text-decoration: none;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b>Section
120-A</b></span></span></span></span></a><span style="color: red;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b> of
Indian Penal Code defines "criminal conspiracy" and under
that definition "When two or more persons agree to do, or cause
to be done, an illegal act or an act which is not illegal by illegal
means, such an agreement is designated a criminal conspiracy"</b></span></span></span></div>
<blockquote style="line-height: 0.25in; margin-left: 0in; margin-right: 0in; orphans: 1; text-align: justify;">
<a href="https://www.blogger.com/null" name="a_26"></a>
<span style="color: blue;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><span style="background: #ffff00;">The
gist of offence is an agreement to break the law. The parties to such
an agreement will be guilty of criminal conspiracy though the
illegal act agree to be done has not been done. So, too, it is not an
ingredient of the offence that all the parties should agree to do a
single illegal acts. It may comprise the commission of a number of
acts.</span></span></span></span><span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;">
</span></span></span><span style="color: red;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b><span style="background: #ffff00;">Under </span></b></span></span></span><a href="https://indiankanoon.org/doc/704346/"><span style="color: red;"><span style="text-decoration: none;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b><span style="background: #ffff00;">section
43</span></b></span></span></span></span></a><span style="color: red;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><b><span style="background: #ffff00;"> of
I.P.C., an act would be illegal if it is an offence or if it is
prohibited by law.</span></b></span></span></span><span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">
Under the first charge, the accused are charged with having conspired
to do three categories of illegal act and the mere fact that all of
them could not be convicted separately in respect of each of the
offences has no relevancy in considering the question whether the
offence of conspiracy has been committed. They are all guilty of the
offence of conspiracy to illegal acts, though for individual offence
all of them may not be liable".</span></span></blockquote>
<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<a href="https://www.blogger.com/null" name="p_38"></a><a href="https://www.blogger.com/null" name="a_27"></a>
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">7.
The basic ingredients of the offence of criminal conspiracy as
defined under </span></span><a href="https://indiankanoon.org/doc/591631/"><span style="color: #1100cc;"><span style="text-decoration: none;"><span style="font-family: georgia, sans-serif, serif, arial;">section
120-A</span></span></span></a><span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">I.P.C.
are</span></span></div>
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<a href="https://www.blogger.com/null" name="p_39"></a>
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">(i)
An agreement between two or more persons;</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<a href="https://www.blogger.com/null" name="p_40"></a>
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">(ii)
The agreement must relate to doing or causing to be done either (a)
an illegal act; or (b) an act which is not illegal in itself but is
done by illegal means.</span></span></div>
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<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><b>The
meeting of minds of two or more persons for doing or causing to be
done an illegal act or an act by illegal means is the sine qua non of
criminal conspiracy. The offence can be proved largely from the
inferences drawn from the acts or illegal omission committed by the
conspirators in pursuance of a common design in as much as the
conspiracy is always hatched in secrecy and it is impossible to
adduce direct evidence of the common intention of the conspirators.
The entire agreement is to be viewed as a whole and it has to be
ascertained as to what in fact the conspirators intended to do or the
object they wanted to achieve. The essence of criminal conspiracy is
the unlawful combination and ordinarily the offence is complete when
the combination is framed. Encouragement and support which
co-conspirators give to one another rendering enterprises possible
which, if left to individual effort, would have been impossible,
furnish the ground for visiting conspirators and abettors with
condign punishment</b> (Ref:-AIR 2008 SC 2991, Yogesh @ Sachin
Jagdish Joshi -v- State of Maharashtra; (1980) 2 SCC 465, Shivnarayan
Laxminarayan Joshi -v- State of Maharastra, 2013 (3) SCALE 565, Yakub
Abdul Razaq Menon -v- State of Maharashtra; AIR 2005 SC 128, K. Hasim
-v- State of Tamil Nadu).</span></span></div>
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<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><span style="color: red;"><b>The
statements of all those witnesses pointed out by the learned counsel
for the Vigilance Department and other documents seized during course
of investigation cannot be discussed in a detailed manner at this
stage as the matter is under investigation.</b></span></span></span></span></div>
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<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<span style="font-family: georgia, sans-serif, serif, arial;"><span style="color: blue; font-size: large;"><b>The
legislature in its wisdom has entrusted the power to exercise this
jurisdiction only to the judges of the superior courts."</b></span></span></div>
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<blockquote style="line-height: 0.25in; margin-left: 0in; margin-right: 0in; orphans: 1; text-align: justify;">
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;">"7....<span style="color: red;"><b><span style="background: #ffff00;">The
gravity of the offence is an important factor to be taken into
consideration while granting such anticipatory bail so also the need
for custodial interrogation, but these are only factors that must be
borne in mind by the concerned courts while entertaining a petition
for grant of anticipatory bail and the fact of taking cognizance or
filing of charge sheet cannot by themselves be construed as a
prohibition against the grant of anticipatory bail."</span></b></span></span></span></span></blockquote>
<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<a href="https://www.blogger.com/null" name="p_55"></a><a href="https://www.blogger.com/null" name="p_56"></a>
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;">In
case of Maruti Nivrutti Navale -v- State of Maharashtra reported in
2012 (8) SCALE 572, wherein it is held as follows:-</span></span></div>
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<blockquote style="line-height: 0.25in; margin-left: 0in; margin-right: 0in; orphans: 1; text-align: justify;">
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;">"12....<span style="color: blue;"><b><span style="background: #ffff00;">.It
is true that the parties have also approached the Civil Court for
various reliefs. At the same time, as pointed out by counsel for the
State and the second respondent-Complainant, considering the
seriousness relating to corrections/additions/alterations made in
various documents, information furnished t</span></b></span></span></span></span><span style="color: yellow; line-height: 0.25in; text-align: left;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;"><span style="background: #ff3366;">The
argument that the custodial interrogation is fraught with the danger
of the person being subjected to third degree methods need not be
countenanced, for, such an argument can be advanced by all accused in
all criminal cases.</span></span></span></span><span style="color: black; line-height: 0.25in; text-align: left;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;">
</span></span></span><span style="color: #ff950e; line-height: 0.25in; text-align: left;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: 15pt;"><b><span style="background: #ffff00;">The
Court has to presume that responsible police officers would conduct
themselves in a responsible manner and that those entrusted with the
task of disinterring offences would not conduct themselves as
offenders.</span></b></span></span></span><span style="color: black; line-height: 0.25in; text-align: left;"><span style="font-family: georgia, sans-serif, serif, arial;">"</span></span></blockquote>
<div align="JUSTIFY" style="line-height: 0.25in; orphans: 1;">
<a href="https://www.blogger.com/null" name="p_61"></a><a href="https://www.blogger.com/null" name="p_62"></a>
<span style="color: black;"><span style="font-family: georgia, sans-serif, serif, arial;"><span style="font-size: small;">What
is "custodial interrogation"? "Custody" means
formal arrest or the deprivation of freedom to an extent associated
with formal arrest. "Interrogation" means explicit
questioning or actions that are reasonably likely to elicit an
incriminating response. Questioning initiated by law enforcement
officers after a person is taken into custody or otherwise deprived
of his or her freedom in any significant way is called "custodial
interrogation". <b>The Court has to strike a balance between
individual's right to personal freedom and the investigational rights
of the police. On one hand, the Court has to prevent harassment,
humilition and unjustified detention of an accused, on the other hand
it is to see that a free, fair and full investigation is not hampered
in any manner. When an application for anticipatory bail of an
accused is objected to by the State on the ground of necessity of
custodial interrogation, the Court can scan the materials available
on record and ask the State to satisfy as to in what way the
custodial interrogation would benefit the prosecution. The
satisfaction of the Court would depend upon several facts viz., the
nature of offence, the stage at which the investigation is pending,
the materials which could not be traced out by the Investigating
Agency due to absence of custodial interrogation and the benefit
which the prosecution would get on account of custodial interrogation
of the accused. It cannot be stated that in a particular type of
cases or for a particular type of accused, the custodial
interrogation is mandatory. It would all depend upon the facts and
circumstances of each case. No strait jacket formula could be laid
down. When the accused makes out a case for anticipatory bail, it is
not to be defeated by mere asking for custodial interrogation by the
prosecution without satisfying the necessity for the same. Sometimes
the custodial interrogation of suspects would give clue regarding
criminal conspiracy and identity of the conspirators and it may lead
to confession of guilt and recovery of the incriminating materials.
Sometimes at the crucial stage of investigation, the custodial
interrogation would be a boon to the Investigating Officer. </b><span style="color: yellow;"><b><span style="background: #ff3366;">The
person in custody likely to be interrogated has a right to remain
silent.</span></b></span> On some questions, he may answer and on
some questions, he may remain silent or refuse to answer. Nobody can
be compelled to answer to a particular question. No third-degree
method is to be adopted for elicitating any answer. <span style="color: yellow;"><u><b><span style="background: #2300dc;">It
is illegal to employ coercive measures to compel a person to answer.</span></b></u></span></span></span></span></div>
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free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-75967478411008692692016-08-01T16:39:00.002+05:302016-08-01T16:39:50.280+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<div style="margin-bottom: 0in;">
<span style="font-size: large;">Manoj Ranjan Nayak v. Purna Chandra Das</span></div>
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<span style="font-size: large;"><a href="https://indiankanoon.org/doc/157019226/" target="_blank">Full Judgments Click Here</a></span></div>
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<span style="font-size: large;">Few More Tags : - elements of criminal conspiracy,
Section 245 (2)/482/226/227/239 Cr PC, , duty of the court at the
stage of framing of charge, Suspicion alone, taking cognizance vis-a-vis framing
charge; </span></div>
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<span style="font-size: large;"><br /></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">Even
if such allegation is taken on its face value, </span><span style="color: red;"><span style="font-family: "times new roman" , serif;"><b>statement
of the co- accused cannot form the basis of framing of charge</b></span></span><span style="font-family: "times new roman" , serif;">.
It was argued that</span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b>
statement of the co-accused cannot be converted or translated into
evidence in course of trial.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: purple;"><span style="font-family: "times new roman" , serif; font-size: large;"><b><br /></b></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">However,</span><span style="font-family: "times new roman" , serif;"><b>
it was argued that in the suit the complainant seeks to enforce his
civil rights with regard to disputed land which he purchased in the
year 1989 whereas the complaint petition has been filed seeking penal
action for commission of offences by the accused persons. Therefore,
non-reference of pendency of civil suit does not amount to
suppression and is, therefore, not material</b></span><span style="font-family: "times new roman" , serif;">.</span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b> </b></span></span>
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<span style="font-size: large;"><br /></span></div>
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<span style="font-size: large;"><span style="color: blue;">
<span style="font-family: "times new roman" , serif;"><b>It is well
settled that a conspiracy consists not merely in the intention of two
or more, but in the agreement of two or more to do an unlawful act by
unlawful means. Intention to do criminal conspiracy has its
foundation in an agreement to commit an offence</b></span></span><span style="font-family: "times new roman" , serif;">.</span></span></div>
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<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">"</span><span style="color: navy;"><span style="font-family: "times new roman" , serif;"><b>22.
</b></span></span><a href="file:///doc/1611623/"><span style="color: navy;"><span style="font-family: "times new roman" , serif;"><u><b>In
Ram Narayan Popli v. Central Bureau of Investigation,</b></u></span></span></a><span style="color: navy;"><span style="font-family: "times new roman" , serif;"><b>
while dealing with the conspiracy the majority opinion laid down that
the elements of a criminal conspiracy have been stated to be : (a) an
object to be accomplished, (b) a plan or scheme embodying means to
accomplish that object, (c) an agreement or understanding between two
or more of the accused persons whereby, they become definitely
committed to co-operate for the accomplishment of the object by the
means embodied in the agreement, or by an effectual means, and (d) in
the jurisdiction where the statute required an overt act. It has been
further opined that the essence of a criminal conspiracy is the
unlawful combination and ordinarily the offence is complete when the
combination is framed. No overt act need be done in furtherance of
the conspiracy, and that the object of the combination need not be
accomplished, in order to constitute an indictable offence. Law
making conspiracy a crime is designed to curb immoderate power to do
mischief which is gained by a combination of the means. The
encouragement and support which co-conspirators give to one another
rendering enterprises possible which, if left to individual effect,
would have been impossible, furnish the ground for visiting
conspirators and abettors with condign punishment. The conspiracy is
held to be continued and renewed as to all its members wherever and
whenever any member of the conspiracy acts in furtherance of the
common design. The two-Judge Bench proceeded to state that for an
offence punishable under Section 120-B, the prosecution need not
necessarily prove that the perpetrators expressly agree to do or
cause to be done illegal act; the agreement may be proved by
necessary implication. Offence of criminal conspiracy has its
foundation in an agreement to commit an offence. A conspiracy
consists not merely in the intention of two or more, but in the
agreement of two or more to do an unlawful act by unlawful means."</b></span></span></span></div>
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<span style="font-size: large;"><br /></span></div>
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<span style="font-size: large;"><br /></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">In
course of hearing, learned Senior Advocate appearing for the
petitioner cited the decision of </span><a href="file:///doc/39679/"><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><u>Indian
Oil Corporation vs. NEPC India Ltd. and others</u></span></span></a><span style="font-family: "times new roman" , serif;">:
(2006) 6 Supreme Court Cases 736 wherein </span><span style="color: teal;"><span style="font-family: "times new roman" , serif;"><b>Hon'ble
Supreme Court has taken note of and deprecated the current practice
of misuse of criminal process to put undue pressure in civil
disputes</b></span></span><span style="font-family: "times new roman" , serif;">.</span></span></div>
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<span style="font-size: large;"><br /></span></div>
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<span style="font-size: large;"><br /></span></div>
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<span style="color: maroon;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>Order
of taking of cognizance of commission of offence is different from
order of framing of charge against an accused for commission of
offence. A court takes cognizance of commission of offence whereas
charge is framed against an accused for commission of offence. At the
stage of taking of cognizance, court is required to find out as to
whether there is material to prima facie indicate commission of
offence. On the other hand, while framing charge, court is to find
out as to whether materials on record to indicate grave or strong
suspicion against the accused person to have committed the alleged
offence.</b></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">9</span><span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><b>.
Though there is difference in the language employed in Section 227 of
the Cr.P.C. which contemplates discharge of the accused by the Court
of Session in cases triable by it, Section 239 of the Cr.P.C. in
cases instituted upon the police report and Section 245 of the
Cr.P.C. in case instituted otherwise on a police report</b></span></span><span style="font-family: "times new roman" , serif;">,
</span><span style="font-family: "times new roman" , serif;"><b>as has been pointed out
by Hon'ble Supreme Court in State of Tamil Nadu -v- N.Suresh Ranjan
and others: 2014 AIR SCW 942, placing reliance on R.S.Nayak -v-
A.R.Antulay : AIR 1986 SC 2045, notwithstanding this difference and,
which ever provision may be applicable, Court is required at the
stage of framing of charge to see that there is prima facie case for
proceeding against the accused. Factors which are required to be
considered by a court to frame charge or to discharge an accused, and
the scope of jurisdiction of the court to determine whether there is
sufficient ground for proceeding against an accused, have been
elaborately pointed out by the Hon'ble Supreme Court in State of
Karnataka -vrs. - L.Muniswamy State of Kerala and Another: AIR 1977
SC 1489 at paragraph 10 as follows:</b></span></span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">"On the other hand, the
decisions cited by learned counsel for the respondents in Vadilal
Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and </span><a href="file:///doc/388277/"><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><u>Century
Spinning & Manufacturing Co. v. State of Maharashtra, AIR</u></span></span></a><span style="font-family: "times new roman" , serif;">
1972 SC 545 show</span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b>
that it is wrong to say that at the stage of framing charges the
court cannot apply its judicial mind to the consideration whether or
not there is any ground for presuming the commission of the offence
by the accused. As observed in the latter case, the order framing a
charge affects a person's liberty substantially and therefore it is
the duty of the court to consider judicially whether the material
warrants the framing of the charge. It cannot blindly accept the
decision of the prosecution that the accused be asked to face a
trial.</b></span></span><span style="font-family: "times new roman" , serif;">
</span><span style="color: navy;"><span style="font-family: "times new roman" , serif;"><b>In
Vadilal Panchal's case Section 203 of the old Code was under
consideration, which provided that the Magistrate could dismiss a
complaint if after considering certain matters mentioned in the
section there was in his judgment no sufficient ground for proceeding
with the case. To an extent S.227 of the new Code contains an
analogous power which is conferred on the Sessions Court. It was held
by this Court, while considering the true scope of S.203 of the old
Code that the Magistrate was not bound to accept the result of an
enquiry or investigation and that he must apply his judicial mind to
the material on which he had to form his judgment. These decisions
show that for the purpose of determining whether there is sufficient
ground for proceeding against an accused the court possesses a
comparatively wider discretion in the exercise of which it can
determine the question whether the material on the record, if
unrebutted, is such on the basis of which a conviction can be said
reasonably to be possible."</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif; font-size: large;">10.
In P. Vijayan -vrs. - State of Kerala and Another: AIR 2010 SC 663,
it has been pointed out by the Hon'ble Supreme Court at paragraph 10
as follows:</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b>"If
two views are possible and one of them gives rise to suspicion only,
as distinguished from grave suspicion, the Trial Judge will be
empowered to discharge the accused and at this stage he is not to see
whether the trial will end in conviction or acquittal. Further, the
words "not sufficient ground for proceeding against the accused"
clearly show that the Judge is not a mere Post Office to frame the
charge at the behest of the prosecution, but has to exercise his
judicial mind to the facts of the case in order to determine whether
a case for trial has been made out by the prosecution. </b></span></span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><u><b>In
assessing this fact, it is not necessary for the Court to enter into
the pros and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really the function of the Court,
after the trial starts.</b></u></span></span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b>
At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. In other words, the
sufficiency of ground would take within its fold the nature of the
evidence recorded by the police or the documents produced before the
Court which ex facie disclose that there are suspicious circumstances
against the accused so as to frame a charge against him."</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif; font-size: large;">11.
It has further been observed by the Hon'ble Supreme Court at
paragraph 14 as follows:</span></div>
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<span style="color: maroon;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>"Charge
may although be directed to be framed when there exists a strong
suspicion but it is also trite that the Court must come to a prima
facie finding that there exist some materials therefor. Suspicion
alone, without anything more, cannot form the basis therefor or held
to be sufficient for framing charge."</b></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif; font-size: large;">12.
In Shri Satish Mehra -vrs.- Delhi Administration and another : JT
1996 (7) S.C. 6, it has been observed:</span></div>
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<span style="color: green;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>"11.
In Union of India v. Profullakumar - 1979 Cr.L.J. 154, this Court has
observed that the Judge while considering the question of framing the
charge has "the undoubted power to sift and weigh the evidence
for the limited purpose of finding out whether a prima facie case
against the accused has been made out". However, their Lordships
pointed out that the test to determine a prima facie case would
naturally depend upon the facts of each case and it is difficult to
lay down a rule of universal application. "by and large,
however, if two views are equally possible and the Judge is satisfied
that the evidence produced before him gives rise to some suspicion
but not grave suspicion, the Judge would be fully within his right to
discharge the accused". At the same time the Court cautioned
that a roving enquiry into the pros and cons of the case by weighing
the evidence as if he was conducting the trial is not expected even
warranted at this stage.</b></span></span></div>
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<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">11
</span>
</span></div>
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<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">12.
</span><span style="color: red;"><span style="font-family: "times new roman" , serif;"><b>An
incidental question was emerges in this context is whether the
Sessions Judge can look into any material other than those produced
by the prosecution. Section 226 of the Code obliges the prosecution
to describe the charge brought against the accused and to state by
what evidence the guilt of the accused would be proved. The next
provision enjoins on the Sessions Judge to decide whether there is
sufficient ground to proceed against the accused. In so deciding the
Judge has to consider (1) the record of the case and (2) the
documents produced therewith. He has then to hear the submissions of
the accused as well as prosecution on the limited question whether
there is sufficient ground to proceed. What is the scope of hearing
submissions? Should it be confine hearing oral arguments alone?</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><b>13.
Similar situation arises under Section 239 of the Code (which deals
with trial of warrant cases on police report). In that situation the
Magistrate has to afford the prosecution and the accused an
opportunity of being heard besides considering the police report and
the documents sent therewith. At these two stages the code enjoins on
the court to give audience to the accused for deciding whether it is
necessary to proceed to the next stage. It is a matter of exercise of
judicial mind. There is nothing in the code which shrinks the scope
of such audience to oral arguments.</b></span></span><span style="font-family: "times new roman" , serif;">
</span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><u><b>If
the accused succeeds in producing any reliable material at that stage
which might fatally affect even the very sustainability of the case,
it is unjust to suggest that no such material shall be looked into by
the Court at that stage.</b></u></span></span><span style="font-family: "times new roman" , serif;">
</span><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><b>Here
the "ground" may be any valid ground including
insufficiency of evidence to prove charge.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">14</span><span style="color: grey;"><span style="font-family: "times new roman" , serif;"><b>.
The object of providing such an opportunity as is envisaged in
Section 227 of the code is to enable the Court to decide whether it
is necessary to proceed to conduct the trial. If the case ends there
it gains a lot of time of the Court and saves much human efforts and
cost. If the materials produced by the accused even at that early
stage would clinch the issue, why should the Court shut it out saying
that such documents need be produced only after wasting a lot more
time in the name of trial proceedings. Hence, we are of the view that
Sessions Judge would be within his powers to consider even materials
which the accused may produce at the stage contemplated in Section
227 of the Code.</b></span></span></span></div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">15</span><span style="color: green;"><span style="font-family: "times new roman" , serif;"><b>.
But when the Judge is fairly certain that there is no prospect of the
case ending in conviction the valuable time of the Court should not
be wasted for holding a trial only for the purpose of formally
completing the procedure to pronounce the conclusion on a future
date. We are mindful that 12 most of the sessions courts in India are
under heavy pressure of work load. If the Sessions Judge is almost
certain that the trial would only be an exercise in futility or a
sheer waste of time it is advisable to truncate or nip the
proceedings at the stage of Section 227 of the Code itself."</b></span></span></span></div>
<div style="margin-bottom: 0in;">
<span style="font-size: large;"><br /></span></div>
<div style="margin-bottom: 0in;">
<span style="font-size: large;"><br /></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">14.
Thus, save and except vague statement that co- accused gave out that
they were engaged in demolishing the boundary wall on being
instructed by the petitioner, there is no material to implicate the
petitioner with the alleged occurrence. It is well settled that
</span><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><b>statement
of co-accused is not admissible in evidence against another
co-accused. At the time of framing of charge, court has to consider
the material which has been collected during investigation or enquiry
in order to satisfy as to whether there exists sufficient ground to
proceed against an accused</b></span></span><span style="font-family: "times new roman" , serif;">.
It has been pointed out by the Hon'ble Supreme Court in Suresh
Budharmal Kalani alias Pappu Kalani vs. State of Maharashtra: (1998)
7 Supreme Court Cases 337 that </span><span style="color: red;"><span style="font-family: "times new roman" , serif;"><b>at
the stage of framing of charge, the court is required to confine its
attention to only those materials collected during investigation or
enquiry which can be legally translated into evidence and not upon
further evidence (dehors those materials) that the prosecution may
adduce in the trial which would commence only after the charges are
framed and the accused denies the charges</b></span></span><span style="font-family: "times new roman" , serif;">. </span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-6312330148286682072016-08-01T16:39:00.001+05:302016-08-01T16:39:50.278+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-size: large;">Prasant Kumar Pattnaik & Anr v.
State of Orissa</span></div>
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<span style="font-size: large;"><a href="https://indiankanoon.org/doc/119136743/" target="_blank">Full Judgment Click Here</a></span><br />
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<span style="color: navy;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;">"It
is not the law that in a criminal case where trial is yet to take
place and the matter is at the stage of issuance of summons or taking
cognizance, materials relied upon by the accused which are in the
nature of public documents or the materials which are beyond
suspicion or doubt, in no circumstance, can be looked into by the
High Court in exercise of its jurisdiction under Section 482 or for
that matter in exercise of revisional jurisdiction under Section 397
of the Code. It is fairly settled now that while exercising inherent
jurisdiction under section 482 or revisional jurisdiction under
section 397 of the Code in a case where complaint is sought to be
quashed, it is not proper for the High Court to consider the defence
of the accused or embark upon an enquiry I n respect of merits of the
accusations.</span></span></span></div>
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<span style="color: navy;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;">However,
in an appropriate case, if on the face of the documents - which are
beyond suspicion or doubt - placed by the accused, the accusations
against him cannot stand, it would be travesty of justice if the
accused is relegated to trial and he is asked to prove his defence
before the trial court. In such a matter, for promotion of justice or
to prevent injustice or abuse of process, the High Court may look
into the materials which have significant bearing on the matter at
prima facie stage".</span></span></span></div>
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free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-88186260823246663422016-08-01T16:39:00.000+05:302016-08-01T16:39:02.921+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-size: large;">Vineet Narain & Others v. Union of
India & Another</span></div>
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<span style="font-size: large;"><a href="https://indiankanoon.org/doc/1203995/" target="_blank">Full Judgment Click Here</a></span><br />
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<span style="font-family: "arial" , "sans-serif"; font-size: 12.0pt;">Tags: -- Jain Diaries, "continuing mandamus", CBI, speedy trial, Article 21/32/141/142/144 Constitution of India, PIL, Vohra Committee Report, Single Directive, reforming CBI, duty of police, Special Police Establishment, Police Act 1861, Sec 173 (8) Cr P.C, Section 6 Prevention of Corruption Act, Section 2/3/4 (1)/6 Delhi Special Police Establishment Act 1946, "superintendence"------meaning, equality, objectives of the Judiciary, The Seven Principles of Public Life, CBI Manual, <o:p></o:p></span><span style="font-family: "arial" , sans-serif; font-size: 16px;">allegation of inaction by the investigating agencies</span></div>
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<li><div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="color: #ff3366; font-size: large;"><b>This
experience revealed to us the need for the insulation of these
agencies from any extraneous influence to ensure the continuance of
the good work they have commenced. It is this need which has impelled
us to examine the structure of these agencies and to consider the
necessary steps which would provide permanent insulation to the
agencies against extraneous influences to enable them to discharge
their duties in the manner required for proper implementation of the
rule of law.</b></span> <span style="color: #99ccff;"><span style="font-size: 15pt;"><u><b>Permanent
measures are necessary to avoid the need of every matter being
brought to the court for taking ad hoc measures to achieve the
desired results. </b></u></span></span><span style="color: #3deb3d;"><span style="font-size: 15pt;"><b>This
is the occasion for us to deal with the structure, constitution and
the permanent measures necessary for having a fair and impartial
agency. The faith and commitment to the rule of law exhibited by all
concerned in these proceedings is the surest guarantee of the
survival of democracy of which rule of law is the bedrock. The basic
postulate of the concept of equality: "Be you ever so high, the
law is above you", has governed all steps taken by us in these
proceedings.</b></span></span></span></div>
</li>
</ol>
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<span style="color: #20124d; font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px;"><span style="color: #20124d; font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px;"><br /></span></span></div>
<span style="color: #20124d; font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px;">
2. </span><span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: #660000; font-size: large;">It will be seen that the reliefs sought in the writ petitions fall into two broad classes. The first class relates to investigations in the matter of the 'Jain diaries". The second class [prayer (f)[ relates to the manner in which investigations of offences of a similar nature that may occur hereafter should be conducted. </span></span><br />
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<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: red;"><span style="font-family: "times new roman" , serif;"><span style="font-size: x-large;"><u><b>Procedure
Adopted </b></u></span></span></span>
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<span style="color: blue;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;"><b>We
have taken the view that, given the political personalities of the
propel to be investigated in the "Jain diaries" case and
the time already lost in commencing the investigation it was
advantageous not to hear the matter through and issue a writ of
mandamus, leaving it to the authorities to comply with it, </b></span></span></span><span style="color: #993366;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;"><u><b>but
to keep the matter pending</b></u></span></span></span><span style="color: blue;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;"><b>
while the investigations were being carried on, ensuring that this
was done by monitoring them from time to time and issuing orders in
this behalf.</b></span></span></span></div>
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<span style="color: #993366;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>The
sum and substance of these orders is that the CBI and other
Governmental agencies had not carried out their public duty to
investigate the offences disclosed; <span style="color: #2300dc;"><u>that
none stands above the law</u></span> so that an alleged offence by
him is not required to be investigated; that we would monitor the
investigations, in the sense that we would do what we permissibly
could to see that the investigations progressed while yet ensuring
that we did not direct or channel those investigations or in any
other manner prejudice the right of those who might be accused to a
full and fair trial. We made it clear that the task of the monitoring
court would and the moment a charge-sheet was filed in respect of a
particular investigation and that the ordinary processes of the law
would then take over. Having regard to the direction in which the
investigations were leading, we found it necessary to direct the CBI
not to report the progress of the investigations to the person
occupying the highest office in the political executive this was done
to eliminate any impression of bias or lack of fairness or
objectivity and to maintain the credibility of the investigations. In
short, the procedure adopted was of "continuing mandamus".</b></span></span></div>
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<b>5. <span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;">Even after this matter was brought to the court complaining of the incrtia of CBI and the other agencies to investigate into the offices because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to precede with the investigation was apparent. The accusation, if true, reveled a nexus between high ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be connected. This revealed a grave situation poising a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity could not be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years could not but be countenanced. The continuing inertia of the agencies to even commence a proper investigation could not be tolerated any longer. In view of the persistence of that situation, it becomes necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least commence a fruitful investigation</span><span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px; text-align: justify;">.</span></b><span style="font-size: large;"><u style="color: #b84700;"><span style="font-family: "times new roman" , serif;"><b>Merely issuance
of a mandamus directing the agencies to perform their task would be
futile and, therefore, it was decided to issue directions from time
to time and keep the matter pending requiring the agencies to report
the progress of investigation so that monitoring by the court could
ensure continuance of the investigation. </b></span></u><span style="color: #b84700;"><b>It
was, therefore, decided to direct the CBI and other agencies to
complete the investigation expeditiously, keeping the court informed
from time to time of the progress of the investigation so that the
court retained siesin of the matter till the investigation was
completed and the chargesheets were filed in the competent court for
being dealt with, thereafter, in accordance with law.</b></span></span><br />
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<span style="font-family: "times new roman" , serif;"><span style="color: #3deb3d; font-size: large;"><b>The
facts and circumstances of the present case do indicate that it is of
utmost public importance that this matter is examined thoroughly by
this Court to ensure that all Government agencies, entrusted with the
duty to discharge their functions and obligations in accordance with
law, do so, bearing in mind constantly the concept of equality
enshrined in the Constitution and the basic tenet of rule of law :
"Be you ever so high, the law is above you".</b></span></span></div>
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6. <span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;">"The true scope of this writ petition has been indicated during the earlier hearings. At this stage, when some charge sheets have been filed in the Special Court and there is considerable publicity in the media regarding this matter, with some speculation about its true scope, it is appropriate to make this order to form a part of the record.</span><br />
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;"><br /></span>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;">7. </span><span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;">It is significant that the machinery of investigation started moving as a result of these orders and after investigation of the allegations made against several persons the basis of the contents of the Jain Diaries, Chargesheets were filed in the competent court in the first instance against 14 persons, as reported to the court on 22.2.1996. Chargesheets against many other persons were filed in the competent court thereafter as reported later from time to time. In all, 34 Chargesheets against 54 persons have been filed on this basis. Thus, as indicated earlier, the purpose of these proceedings to the extent of the complaint of inertia of the investigating agencies came to an end with the filing of these chargesheets, since the merits of the accusation against each individual has, thereafter, to be considered and dealt with by the competent court at the trial, in accordance with law. Trial in the competent court is now a separate proceeding.</span><br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="color: #0047ff;"><span style="font-size: 15pt;"><b>It
is significant that the machinery of investigation started moving as
a result of these orders......</b></span></span></span></div>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: 16.25px; line-height: 24.375px; text-align: justify;"></span>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px; text-align: justify;">8. "We do not consider it appropriate to permit any intervention in this matter. Shri Anil Diwan has been requested by us to appear as Amicus Curiae in this matter. He has kindly agreed to do so. It is open to anyone who so desires, to assist Shri Anil Diwan and to make available to him whatever material he chooses to rely on in public interest to enable Shri Diwan to effectively and properly discharge functions as Amicus Curiae. Except for this mode of assistance to the learned Amicus Curiae, we do not permit any person either to be impleaded as party or to appear as an intervenor. In our opinion, this is necessary for expeditious disposal of the matter and to avoid the focus on the crux of the matter getting diffused in the present case by the appearance of many persons acting independently in the garb of public interest.</span><br />
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px; text-align: justify;"><br /></span>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px; text-align: justify;"><br /></span>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; font-size: large; line-height: 24.375px; text-align: justify;">9. </span><span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: purple; font-size: large;">The purpose of this proceeding is to command performance of the duty under law to properly investigate into the accusation of commission of the crime and to file a chargesheet in the competent court, if a prima faice case is made out. This purpose has been served in the above three cases, in respect of which no further action in this proceeding is called for. Accordingly, this proceeding has come to an end, in so far as it related to the above three criminal cases. For the remaining part, it is to continue till the end result prescribed by law is achieved. The concerned court in which the chargesheet has been filed has to proceed entirely in accordance with law without the slightest impression that there is any parallel proceeding in respect of the same matter pending in this court.</span></span><br />
<span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: purple; font-size: large;"><br /></span></span>
<br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">"<span style="color: red;"><span style="font-size: 15pt;"><u><b>We
do not consider it appropriate to permit any intervention in this
matter.</b></u></span></span> Shri Anil Diwan has been requested by
us to appear as Amicus Curiae in this matte. He has kindly agreed to
do so. <span style="font-size: medium;"><b>It is open to anyone who so desires, to assist
Shri Anil Diwan and to make available to him whatever material he
chooses to rely on in public interest to enable Shri Diwan to
effectively and properly discharge functions as Amicus Curiae. </b></span><span style="color: #b80047;"><span style="font-size: large;">Except
for this mode of assistance to the learned Amicus Curiae, we do not
permit any person either to be impleaded as party or to appear as an
intervenor. In our opinion, this is necessary for expeditious
disposal of the matter and to avoid the focus on the crux of the
matter getting diffused in the present case by the appearance of many
persons acting independently in the garb of public interest.</span></span></span></div>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: purple; font-size: large;"></span></span>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: purple; font-size: large;">10. </span></span><span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="font-size: large;">21. A note of caution may be appropriate. No occasion should arise for an impression that the publicity attaching to these matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial. This requirement, undoubtedly has to be kept in view during the entire trial. It is reiterated, that any observation made by this Court for the purpose of the proceedings pending here has no bearing on the merits of the accusation, and is not to influence the trial in any manner. Care must be taken to ensure that the credibility of the judicial process is not undermanned in any manner. This proceeding is to continue in respect of the remaining matters only which are incomplete. "</span></span><br />
<span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="font-size: large;"><br /></span></span>
<br />
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><span style="color: #7e0021;"><u>The
concerned court in which the charge-sheet has been filed has to
proceed entirely in accordance with law without the slightest
impression that there is any parallel proceeding in respect of the
same matter pending in this court.</u></span></span></span></div>
<span style="font-family: "georgia" , sans-serif , serif , "arial"; line-height: 24.375px; text-align: justify;"><span style="color: purple; font-size: large;"><br /></span></span></div>
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<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">21.
<span style="color: lime;"><b>A note of caution may be appropriate. No
occasion should arise for an impression that the publicity attaching
to these matters has tended to dilute the emphasis on the essentials
of a fair trial and the basic principles of jurisprudence including
the presumption of innocence of the accused unless found guilty at
the end of the trial. This requirement, undoubtedly has to be kept in
view during the entire trial. It is reiterated, that any observation
made by this Court for the purpose of the proceedings pending here
has no bearing on the merits of the accusation, and is not to
influence the trial in any manner. Care must be taken to ensure that
the credibility of the judicial process is not undermanned in any
manner. This proceeding is to continue in respect of the remaining
matters only which are incomplete. </b></span>" ... ... ...</span></span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">Dr.
Subramaniam Swamy Order dated 24.02.1997 :</span></span></div>
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<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">"..
... ...</span></span></div>
<br />
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<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">It
is also made clear to the petitioner that the petition having been
entertained as a public interest litigation in view of the public
interest involved, <span style="color: red;"><u>the locus of the
petitioner is confined only to assisting the court through amicus
curiae appointed by the court and that the petitioner has no
independent or additional right in the conduct or hearing of the
proceedings hereafter.</u></span></span></span></div>
</div>
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<span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><u><b>In-Camera
Proceedings: --</b></u></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">During
the monitoring of the investigations, the Solicitor General/Attorney
General, from time to time, reported the progress made during the
course of investigation, in order to satisfy us that the agencies
were not continuing to drag their feet and the "continuing
mandamus" was having the effect of making the agencies perform
their statutory function. The procedure adopted by us was merely to
hear what they had to report or the CBI Director and the Revenue
Secretary had to tell us to be satisfied that the earlier inaction
was not persisting. We maintained this stance throughout. We also
ensured that no observation of any kind was made by us nor was any
response given which may be construed as our opinion about the merits
of the case or the accusation against any accused. We also did not
identify or name any accused during performance of this task.
<span style="color: #23ff23;"><u><b>(Process : - )</b></u></span><span style="color: red;"><span style="font-size: 20pt;"><u><b>At
the very outset, the then Solicitor General Shri Dipankar P. Gupta
requested that a part of the proceedings be held `in camera' to
enable him to state certain facts and, if necessary, place before us
material, the secrecy of which was required to be maintained for
integrity of the investigation and also to avoid any prejudice to the
concerned accused. In these circumstance, such a procedure was
adopted only to the extent necessary for this propose, in the
interest of justice, and that is how a part of some hearings was held
in camera. This innovation in the procedure was made, on request, to
reconcile the interest of justice with that of the accused.</b></u></span></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #0047ff;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><b>It
is settled that the requirement of a public hearing in a court of law
for a fair trial is subject to the need of proceedings being held in
camera to the extent necessary in public interest and to avoid
prejudice to the accused. We consider it appropriate to mention these
facts in view of the nature of these proceedings wherein innovations
in procedure were required to be made from time to time to sub- serve
the public interest, avoid any prejudice to the accused and to
advance the cause of justice. The medium of "continuing
mandamus", was a new tool forged because of the peculiar needs
of this matter.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #ffcc99;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><b>Inertia
was the common rule whenever the alleged offender was a powerful
person. Thus, it became necessary to take measures to ensure
permanency in the remedial effect to prevent reversion to inertia of
the agencies in such matters.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #83caff;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><u><b>Everyone
against whom there is reasonable suspicion of committing a crime has
to be treated equally and similarly under the law and probity in
public life is of great significance. The constitution and working of
the investigating agencies revealed the lacuna of its inability to
perform whenever powerful persons were involved. For this reason, a
close examination of the constitution of these agencies and their
control assumes significance. No doubt, the overall control of the
agencies and responsibility of their functioning has to be in the
exhaustive, but then a scheme giving the needed insulation from
extraneous influences even of the controlling executive, is
imperative. It is this exercise which became necessary in these
proceedings for the future. This is the surviving scope of these writ
petitions.</b></u></span></span></span></div>
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<br />
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<span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><span style="font-size: x-large;"><b>Point
for Consideration </b></span></span></span>
</div>
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<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">As
a result of the debate in these proceedings and into experience
gained thereby the Union of India came to realise that an in-depth
study of the selection of personnel of these agencies, particularly
the CBI and the Enforcement Directorate of the Revenue Department,
and their functioning is necessary. The Government of India, sharing
this perception, by an Order No. S/937/SS(ISP)/93 dated 9th July,
1993 constituted a Committee headed by the then Home Secretary Shri
N.N.Vohra to take stock of all available information about the
activities of crime syndicates/mafia organisations which had
development links with, and were being protected by, government
functionaries and political personalities. It was stated that on the
basis of recommendations of the Committee the Government shall
determine the need, if any, to establish a special
organisation/agency to regularly collect information and pursue cases
against such elements. The Committee was headed by the then Home
Secretary Shri N.N. Vohra and had as its Members - Secretary
(Revenue), Director, Intelligence Bureau, Director, CBI, Joint
Secretary (PP), Ministry of Home Affairs. The Committee gave its
recommendations dated 5.10.1993. It has made scathing comments and
has painted a dismal picture of the existing sene. It has said that
the network of the mafia is virtually running a parallel government
pushing the State apparatus into irrelevance. The Committee
recommended the creation of a nodal agency under the Ministry of Home
Affairs for the collation and compilation of all information received
from Intelligence Burcau (IB), Central Bureau of Investigation (CBI)
and Research and Analysis Wing (R&AW) and the various agencies
under the Department of Revenue. The report is significant for the
dismal picture of the existing scenario which discloses a powerful
nexus between the bureaucracy and politicians with the mafia gangs,
smugglers and the underworld. The report of the Vohra Committee is
the opinion of some top bureaucrats and it confirmed our worst
suspicions focusing the need of improving the procedure for
constitution and monitoring the functioning of intelligence agencies.
There is, thus, no doubt that this exercise cannot be delayed
further.</span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;">The
same perception of the Government of India led it to constitute
another Committee by Order No. 226/2/97-AVD-II dated 8th September,
1997 comprising of Shri B.G. Deshmukh, former Cabinet Secretary, Shri
N.N. Vohra, Principal Secretary to the Prime Minister and Shri S.V.
Giri, Central Vigilance Commissioner, called the Independent Review
Committee (IRC). The order reads as under :</span></span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">"WHEREAS the Government of
India is of the opinion that it is necessary to set up a Committee
for going into the matters mentioned hereinafter;</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">2. NOW, THEREFORE, a Committee of
the following is hereby set up :-</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">(i) Shri B.G. Deshmukh, former
Cabinet Secretary</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">(ii) Shri N.N. Vohra, Principal
Secretary to the Prime Minister</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">(iii) Shri S.V.Giri, Central
Vigilance Commissioner Shri N.N. Vohra shall act as Convenor.</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">3. The terms of reference of the
Committee ar as under :-</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">(i) To monitor the functioning of
the nodal agency established by the Ministry of Home Affairs in
pursuance of the recommendations of the Vohra Committee Report.</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">(ii) To examine the present
structure and working of the Central Bureau of Investigation (CBI),
the Enforcement Directorate and related agencies to suggest the
changes, if any, needed to ensure : [a] that offences alleged to have
been committed by any person, particularly those in positions of high
authority, are registered, investigated and prosecuted fairly and
expeditiously, ensuring against, inter alia, external pressure,
arbitrary withdrawals or transfers of personnel etc., and ensuring
adequate protection to the concerned functionaries to effectively
discharge their duties and responsibilities;</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">[b] that there are sufficient
cheeks and balances to ensure that the powers of investigation and
prosecution are not misused; [c] that there are no arbitrary
restrictions to the initiation of investigations or launching of
prosecutions.</span></div>
<br />
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">4. The Committee should give its
report with regard to the items mentioned in paragraph 3(ii) above
within a period of 3 month s."</span></div>
</div>
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<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">It
was urged that </span><span style="color: #b80047;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><b>refusal
of sanction with reasons would enable judicial review of that
decision in case of any grievance against refusal of the sanction</b></span></span></span><span style="font-family: "times new roman" , serif;">.</span></div>
</div>
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<span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b>Need
for Courts Intervention</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">The
IRC is a body constituted by the Central Government itself as a
result of its perception that the constitution and functioning of the
CBI, CVC and Directorate of Enforcement require a close scrutiny in
the background of the recent unsatisfactory functioning of these
agencies with a view to improve t heir functioning. The view taken by
the IRC is a reaffirmation of this belief shared b y everyone. The
preface to the report indicates the reason for the constitution of
the IRC and says that "In the past several years, there has been
progressive increase in allegation of corruption involving public
servants. <span style="color: #2300dc; font-size: large;"><b>Understandably, cases
of this nature have attracted heightened media and public attention.
A general impression appears to have gained ground that the concerned
Central investigating agencies are subject to extraneous pressures
and have been indulging in dilatory tactics in not bringing the
guilty to book. The decisions of higher courts to directly monitor
investigations in certain cases have added to the aforesaid belief."
There can thus be no doubt that there is need for the exercise we
were called upon to perform and which has occasioned consideration of
this crucial issue by this Court in exercise of its powers conferred
by the Constitution of India.</b></span> </span>
</div>
</div>
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<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br />
<br />
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">"4. </span><span style="color: #e6e64c;"><span style="font-family: "times new roman" , serif;"><b><span style="background: #0084d1;">At
the outset, we would indicate that the nature of proceedings before
the High Court is somewhat similar to those pending in this Court in
</span></b></span></span><a href="file:///doc/1754201/"><span style="color: #e6e64c;"><span style="font-family: "times new roman" , serif;"><u><b><span style="background: #0084d1;">Vineet
Narain v. Union of India,</span></b></u></span></span></a><span style="color: #e6e64c;"><span style="font-family: "times new roman" , serif;"><b><span style="background: #0084d1;">
1996 (2) SCC 199 and </span></b></span></span><a href="file:///doc/59539/"><span style="color: #e6e64c;"><span style="font-family: "times new roman" , serif;"><u><b><span style="background: #0084d1;">Anukul
Chandara Pradhan v. Union of India,</span></b></u></span></span></a><span style="color: #e6e64c;"><span style="font-family: "times new roman" , serif;"><b><span style="background: #0084d1;">
1996 (6) SCC 354 and, therefore, the High Court is required to
proceed with the matter in a similar manner. It has to be borne in
mind that the purpose of these proceedings in essentially to ensure
performance of the statutory duty by the CBI and the other government
agencies in accordance with law for the proper implementation of the
rule of law.</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;"><span style="color: #ff3333;"><span style="background: #e6e64c;">To
achieve this object a fair, honest and expeditious investigation into
every reasonable accusation against each and every person reasonably
suspected of involvement in the alleged offences has to be made
strictly in accordance with law. The duty of the Court in such
proceedings is, therefore, to ensure that the CBI and other
government agencies do their duty and do so strictly in conformity
with law. In these proceedings, the Court is not required to go into
the merits of the accusation or even to express any opinion thereon,
which is a matter for consideration by the competent court in which
the charge-sheet is filed and the accused have to face trial. It is,
therefore, necessary that not even an observation relating to the
merits of t he accusation is made by the Court in these proceedings
lest it prejudice the accused at the trial. The nature of these
proceeding may be described as that of "continuing mandamus"
to require performance of its duty by the CBI and the other
government agencies concerned. </span></span></span>
</span></div>
<br />
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="color: #b80047;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 15pt;"><b><span style="background: #00dcff;">This
must be borne in mind as also that the scope and purpose of a
proceeding like the present is to ensure a proper and faithful
performance of its duty by the police officer by resort to the
prerogative writ of mandamus."</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">The
Minister's power in these matters has, therefore, to be understood as
circumscribed by these limitations under the law.</span></div>
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<br />
<br /></div>
<div align="CENTER" style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><u><b>History
of CBI</b></u></span></span></span></div>
<br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">It
is useful to refer at this stage to the history of the CBI. The
Special Police Establishment was formed during the World War II when
large sums of public money were being spent in connection with the
War and there arise enormous potential for corruption amongst the
officers dealing with the supplies. An executive order was made by
the Government of India in 1941 setting up the Special Police
Establishment (SPE) under a DIG in the then Department of War. The
need for a central government agency to investigate c ases of bribery
and corruption by the Central Government servants continued and,
therefore, the Delhi Special Policy Establishment act was brought
into force in 1946. Under this Act, the superintendence of the
Special Police Establishment was transferred to the Home Department
and its function were enlarged to cover all departments of the
Government of India. The jurisdiction of the SPE extended to all the
Union Territories and could also be extended to the States with the
consent of the concerned State Governments. Then the SPE was put
under the charge of Director, Intelligence Bureau. Later in 1948 a
post of Inspector General of Police, SPE was created and the
organisation was placed under his charge. The Central Bureau of
Investigation was established on 1.4.1963 vide Government of India's
Resolution No, 4/31/61- T/MHA. This was done to meet the felt need of
having a central police agency at the disposal of the Central
Government to investigate into cases not only of bribery and
corruption but also those relating to the breach of central fiscal
laws, frauds in government departments and PSUs and other serious
crimes. On enlargement of the role of CBI an Economic Offences Wing
was added to the existing Divisions of the CBI. In 1887 tow Divisions
were created in the CBI known as Anti-Corruption Division and Special
Crimes Division, the latter dealing with cases of conventional crimes
besides economic offences. In 1994 due to increased workload relating
to bank frauds and economic offences a separate Economic Offences
Wing was established in CBI with the result that since then the CBI
has three Investigation Divisions, namely, Anti-Corruption Division,
Special Crimes Division and Economic Offences Division. Further
particulars thereof are not necessary in the present context.</span></div>
<br />
<br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;"><span style="color: cyan; font-size: large;"><b><span style="background-attachment: initial; background-clip: initial; background-color: #ff950e; background-image: initial; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial;">The
position of Judges of High Courts and Supreme Court, who are
constitutional functionaries, is distinct, and the independence of
judiciary, keeping it free from any extraneous influence, including
that from executive, is the rationale of the decision in K.
Veeraswami (supra).</span></b></span> </span>
</div>
<br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-size: large;"><span style="font-family: "times new roman" , serif;">The
Single Directive has to be examined in this background. </span><span style="color: purple;"><span style="font-family: "times new roman" , serif;"><b>The
law does not classify offenders differently for treatment thereunder,
including investigation of offences and persecution for offences.
according to their status in life. Every person accused of committing
the same offences is to be dealt with in the same manner in
accordance with law, which is equal in its application to everyone.
</b></span></span><span style="font-family: "times new roman" , serif;">The
Single Directive is applicable only to certain p[person above the
specified level who are described as "decision making officers".
The question is whether any distinction can be made for them for the
purpose of investigation of an offence of which they are accused.</span></span></div>
<br />
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: blue;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>There
are ample powers conferred by Article 32 read with Article 142 to
make orders which have the effect of law by virtue of article 141 and
there is mandate to all authorities to act in aid of the orders of
this Court as provided in Article 144 of the Constitution. In a
catena of decisions of this Court, this power has been recognised and
exercised, if need be, by issuing necessary directions to fill the
vacuum till such time the legislature steps in to cover the gap or
the executive discharges its role.</b></span></span><span style="font-family: "times new roman" , serif;">
</span>
</div>
<br />
<br />
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif; font-size: large;">"<span style="background: #ffff00;">The
obligation of this court under Article 32 of the Constitution for the
enforcement of these fundamental rights in the absence of legislation
must be viewed along with the rule of judiciary envisaged in the
Beijing Statement of Principles of the Independence of the Judiciary
in the LAWASLA region.</span> These principles were accepted by the
Chief Justices of Asia and the Pacific at Beijing in 1995 (*) As
amended at Manila, 28th August, 1997 as those representing the
minimum standards necessary to be observed in order to maintain the
independence and effective functioning of the judiciary The
objectives of the judiciary mentioned in the Beijing Statement are:
"Objectives of the Judiciary:</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif; font-size: large;">10. The objectives and functions
of the Judiciary include the following:</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="color: #00ae00;"><span style="font-family: "times new roman" , serif; font-size: large;"><span style="background: #ffff00;">(a)
to ensure that all persons are able to live securely under the Rule
of Law:</span></span></span></div>
<div style="margin-bottom: 0in;">
<span style="color: #00ae00; font-size: large;"><span style="background: #ffff00;">
<span style="font-family: "courier new" , sans-serif;">(b) to
promote, within the proper </span></span></span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">limits of the judicial</span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">function, the observance and</span></div>
<div style="margin-bottom: 0in;">
<span style="color: #00ae00;"><span style="font-family: "courier new" , sans-serif; font-size: large;"><span style="background: #ffff00;">
the attainment of human </span></span></span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">rights; and</span></div>
<div style="margin-bottom: 0in;">
<span style="color: #00ae00; font-size: large;"><span style="background: #ffff00;">
<span style="font-family: "courier new" , sans-serif;">(c) to
administer the law </span></span></span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">impartially among persons and </span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">between persons and the </span><span style="background-color: yellow; color: #00ae00; font-family: "courier new" , sans-serif; font-size: large;">State."</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Thus, an exercise of this kind by
the court is now a well settled practice which has taken firm roots
in our constitutional jurisprudence. This exercise is essential to
fill the void in the absence of suitable legislation to cover the
field.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">As
pointed out in Vishakha (supra), </span><span style="color: red;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 16pt;"><b>it
is the duty of the executive to fill the vacuum by executive orders
because its field is coterminous with that of the legislature, and
where there is inaction even by the executive, for whatever reason,
the judiciary must step in, in exercise of its constitutional
obligations under the aforesaid provisions to provide a solution till
such time as the legislature acts to perform its role by enacting
proper legislation to cover the field.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">On
this basis, we now proceed to give the directions enumerated
hereafter for rigid compliance till such time as the legislature
steps in to substitute them by proper legislation. These directions
made under Article 32 read with Article 142 to implement the rule of
law wherein the concept of equality enshrined in Article 14 is
embedded, have the force of law under Article 141 and, by virtue of
Article 144, it is the duty of all authorities, civil and judicial,
in the territory of India to act in aid of this Court. In the
issuance of these directions, we have accepted and are reiterating as
far as possible the recommendations made by the IRC.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">It
is a similar perception in England which has led to the constitution
of a Committee headed by Lord Nolan on 'Standards in Public Life'. In
Volume 1 of Lord Nolan's Report (1995), the general recommendations
made are: General recommendation</span></div>
<ol start="4">
<li><div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Some
of our conclusions have general application across the entire
service;</span></div>
</li>
</ol>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Principles
of public life</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">5.
The general principles of conduct which underpin public life need to
be restated. We have done this. The seven principles of selflessness,
integrity, objectivity, accountability, openness, honesty and
leadership are set out in full on page 14.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Codes
of Conduct</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">6.
All public bodies should draw up Codes of Conduct incorporating these
principles Independent Scrutiny</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">7.
Internal systems for maintaining standards should be supported by
independent scrutiny.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Education</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">8.
More needs to be done to promote and reinforce standards of conduct
in public bodies, in particular through guidance and training,
including induction training".</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">The
Seven Principles of Public Life are stated in the Report by Lord
Nolan, thus:</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="color: #ff420e;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 22pt;"><b><span style="background: #808019;">The
Seven Principles of Public Life</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="background: #eb613d;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b>Selflessness
</b></span></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Holders of public office should
take decisions solely in terms of the public interest. They should
not do so in order to gain financial or other material benefits for
themselves, their family, or their friends.</span></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-left: 0.25in; margin-right: 0.25in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Integrity</span></b></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
Holders of
public office should not place themselves under any financial or
other obligation to outside individuals or organisations that might
influence them in the performance of their official duties.</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Objectivity
</span></b></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">In
carrying out public business, including making public appointments,
awarding contracts, or recommending individuals for rewards and
benefits, holders of public office should make choices on merit. </span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Accountability</span></b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Holders
of public office are accountable for their decisions and actions to
the public and must submit themselves to whatever scrutiny is
appropriate to their office.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="background: #eb613d;">
<span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b>Openness
</b></span></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Holders
of public office should be as open as possible about all the
decisions and actions that they take. They should give reasons for
their decisions and restrict information only when the wider public
interest clearly demands.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Honesty
</span></b></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Holders
of public office have a duty to declare any private interests
relating to their public duties and to take steps to resolve any
conflicts arising in a way that protects the public interest.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<br />
<br /></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #23ff23;"><span style="font-family: "times new roman" , serif;"><span style="font-size: 20pt;"><b><span style="background: #eb613d;">Leadership
</span></b></span></span></span>
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Holders
of public office should promote and support these principles by
leadership and example."</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">These
principles of public life are of general application in every
democracy and one is expected to bear them in mind while scrutinising
the conduct of every holder of a public office. It is trite that the
holders of public offices are entrusted with certain powers to be
exercised in public interest alone and, therefore, the office is held
by them in trust for the people. Any deviation from the path of
rectitude by any of them amounts to a breach of trust and must be
severely dealt with instead of being pushed under the carpet. If the
conduct amounts to an offence, it must be promptly investigated and
the offender against whom a prima facie case is made out should be
prosecuted expeditiously so that the majesty of law is upheld and the
rule of law vindicated. It is duty of the judiciary to enforce the
rule of law and, therefore, to guard against erosion of the rule of
law.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: magenta;"><span style="font-family: "times new roman" , serif;"><span style="font-size: medium;"><b>The
adverse impact of lack of probity in public life leading to a high
degree of corruption is manifold. It also has adverse effect on
foreign investment and funding from the International Monetary Fund
and the World Bank who have warned that future aid to under-developed
countries may be subject to the requisite steps being taken to
eradicate corruption, which prevents international aid from reaching
those for whom it is meant. Increasing corruption has led to
investigative journalism which is of value to a free society. The
need to highlight corruption in public life through the medium of
public interest litigation invoking judicial review may be frequent
in India but is not unknown in other countries: R v Secretary of
State for Foreign and Commonwealth Affairs, (1995) 1 WLR 386.</b></span></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Of
course, the necessity of desirable procedures evolved by court rules
to ensure that such a litigation is properly conducted and confined
only to mattes of public interest is obvious.<span style="font-size: large;"> </span></span><span style="color: maroon;"><span style="font-family: "times new roman" , serif; font-size: large;"><b>This
is the effort made in these proceedings for the enforcement of
fundamental rights guaranteed in the Constitution in exercise of
powers conferred on this Court for doing complete justice in a cause.
It cannot be doubted that there is a serious human rights aspect
involved in such a proceeding because the prevailing corruption in
public life, if permitted to continue unchecked, has ultimately the
deleterious effect of eroding the Indian polity.</b></span></span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">As
a result of the aforesaid discussion, we hereby direct as under:</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">I.
CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE
COMMISSION (CVC)</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">1.
The Central Vigilance Commission (CVC) shall be given statutory
status.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">2.
Selection for the post of Central Vigilance Commissioner shall be
made by a Committee comprising the Prime Minister, Home Minister and
the Leader of the Opposition from a panel of outstanding civil
servants and others with impeccable integrity to be furnished by the
Cabinet Secretary. The appointment shall be made by the President on
the basis of the recommendations made by the Committee. This shall be
done immediately.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">3.
The CVC shall be responsible for the efficient functioning of the
CBI. While Government shall remain answerable for the CBI's
functioning, to introduce visible objectivity in the mechanism to be
established for over viewing the CBI's working, the CVC shall be
entrusted with the responsibility of superintendence over the CBI's
functioning. The CBI shall report to the CVC about cases taken up by
it for investigation; progress of investigations; cases in which
chargesheets are filed and their progress. The CVC shall review the
progress of all cases moved by the CBI for sanction of prosecution of
public servants which are pending with competent authorities,
specially those in which sanction has been delayed or refused.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">4.
The Central Government shall take all measures necessary to ensure
that the CBI functions effectively and efficiently and is viewed as a
non-partisan agency.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">5.
The CVC shall have a separate section in its Annual Report on the
CBI's functioning after the supervisory function is transferred to
it.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">6.
Recommendations for appointment of the Director, CBI shall be made by
a Committee headed by the Central Vigilance Commissioner with the
Home Secretary and Secretary (Personnel) as members. The views of the
incumbent Director shall be considered by the Committee for making
the best choice. The Committee shall draw up a panel of IPS officers
on the basis of their seniority, integrity, experience in
investigation and anti - corruption work. The final selection shall
be made by Appointments Committee of the Cabinet (ACC) from the panel
recommended by the Selection Committee. If none among the panel is
found suitable, the reasons the reasons thereof shall be recorded and
the Committee asked to draw up a fresh panel.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">7.
The Director, CBI shall have a minimum tenure of two years,
regardless of the date of his superannuation. This would ensure that
an officer suitable in all respects is not ignored merely because he
has less than two years to superannuate from the date of his
appointment.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">8.
The transfer of an incumber Director, CBI in an extraordinary
situation, including the need for him to take up a more important
assignment, should have the approval of the Selection Committee.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">9.
The Director, CBI shall have full freedom for allocation of work
within the agency as also for constituting teams for investigations.
Any change made by the Director, CBI in the Head of an investigative
team should be for cogent reasons and for improvement in
investigation, the reasons being recorded.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">10.
Selection/extention of tenure of officers upto the level of Joint
Director (JD) shall be decided by a Board comprising the central
Vigilance Commissioner, Home Secretary and Secretary (Personnel) with
the Director, CBI providing the necessary inputs. The extension of
tenure or premature repatriation of officers upto the level of Joint
Director shall be with final approval of the Board. Only cases
pertaining to the appointment or extension of tenure of officers of
the rank of Joint Director or above shall be referred to the
Appointments Committee of the Cabinet (ACC) for decision.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">11.
Proposals for improvement of infrastructure, methods of
investigation, etc. should be decided urgently. In order to
strengthen CBI's in-house expertise, professionals from the revenue,
banking and security sectors should be inducted into the CBI.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">12.
The CBI Manual based on statutory provisions of the Cr. P.C. provides
essential guidelines for the CBI's functioning. It is imperative that
the CBI adheres scrupulously to the provisions in the Manual in
relation to its investigative functions, like raids, scizure and
arrests. Any deviation from the established procedure should be
viewed seriously and severe disciplinary action taken against the
concerned officials.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">13.
The Director, CBI shall be responsible for ensuring the filing of
chargesheets in courts within the stipulated time limits, and the
matter should be kept under constant review by the Director, CBI</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">14.
A document on CBI's functioning should be published within three
months to provide the general public with a feedback on
investigations and information for redress of genuine grievances in a
manner which does not compromise with the operational requirements of
the CBI.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">15.
Time limit of three months for grant of sanction for prosecution must
be strictly adhered to. However, additional time of one month may be
allowed where consultation is required with the Attorney General (AG)
or any other law officer in the AG's office.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">16.
The Director, CBI should conduct regular appraisal of personnel to
prevent corruption and/or inefficiency in the agency.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">III.
ENFORCEMENT DIRECTORATE</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">1.
A Selection Committee headed by the Central Vigilance Commissioner
and including the Home Secretary, Secretary (Personnel) and Revenue
Secretary, shall prepare a panel for appointment of the Director,
Enforcement Directorate. The appointment to the post of Director
shall be made by the Appointments Committee of the Cabinet (ACC) from
the panel recommended by the Selection Committee.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">2.
The Director, Enforcement Director like Director, CBI shall have a
minimum tenure of two years. In his case also, premature transfer for
any extraordinary reason should be approved by the aforesaid
Selection Committee headed by the Central Vigilance commissioner.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">3.
In view of the importance of the post of Director, Enforcement
Directorate, it shall be upgraded to that of a Additional
Secretary/Special Secretary to the Government.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">4.
Officers of the Enforcement Directorate handling sensitive
assignments shall be provided adequate security to enable them to
discharge their functions fearlessly.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">5.
Extensions of tenure upto the level of Joint Director in the
Enforcement Directorate should be decided by the said Committee
headed by the Central Vigilance Commissioner.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">6.
There shall be no premature media publicity by the CBI/Enforcement
Directorate.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">7.
Adjudication/commencement of prosecution shall be made by the
enforcement Directorate within a period of one year.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">8.
The Director, Enforcement Directorate shall monitor and ensure speedy
completion of investigations/adjudications and launching of
prosecutions. Revenue Secretary must review their progress regularly.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">9.
For speedy conduct of investigations abroad, the procedure to approve
filing of applications for Letters Rogatory shall be streamlined and,
if necessary, Revenue Secretary authorised to grant the approval</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">10.
A comprehensive circular shall be published by the Directorate to
inform the public about the procedures/systems of its functioning for
the sake of transparency.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">11.
In-house legal advice mechanism shall be strengthened by appointment
of competent legal advisers in the CBI/Directorate of Enforcement.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">12.
The Annual Report of the Department of Revenue shall contain a
detailed account on the working of the Enforcement Directorate.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">III.
NODAL AGENCY</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">1.
A Nodal Agency headed by the Home Secretary with Member
(Investigation), Central Board of Direct Taxes, Director General,
Revenue Intelligence, Director, Enforcement and Director, CBI as
members, shall be constituted for coordinated action in cases having
politico-bureaucrat- criminal nexus.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">2.
The Nodal Agency shall meet at least once every month.</span></div>
<ol start="3">
<li><div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">Working
and efficacy of the Nodal Agency should be watched for about one
year so as to improve it upon the basis of the experience gained
within this period. IV</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
</div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="color: #ff3366;"><span style="font-family: "times new roman" , serif;"><span style="font-size: large;"><b>PROSECUTION
AGENCY</b></span></span></span></div>
</li>
</ol>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">1.
A panel of competent lawyers of experience and impeccable reputation
shall be prepared with the advice of the Attorney General Their
services shall be utilised as Prosecuting Counsel in cases of
significance. Even during the course of investigation of an offence,
the advice of a lawyer chosen from the panel should be taken by the
CBI/Enforcement Directorate.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">2.
Every prosecution which results in the discharge or acquittal of the
accused must be reviewed by a lawyer on the panel and, on the basis
of the opinion given, responsibility should be fixed for dereliction
of duty, if any, of the concerned officer. In such cases, strict
action should be taken against the officer found guilty of
dereliction of duty.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">3.
The preparation of the panel of lawyers with approval of the Attorney
General shall be completed within three months.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">4.
Steps shall be taken immediately for the constitution of an able and
impartial agency comprising persons of unimpeachable integrity to
perform functions akin to those of the Director of Prosecutions in
U.K. On the constitution of such a body, the task of supervising
prosecutions launched by the CBI/Enforcement Directorate shall be
entrusted to it.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">5.
Till the constitution of the aforesaid body, Special Counsel shall be
appointed for the conduct of important trials on the recommendation
of the Attorney General or any other law officer designated by him.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">The
learned amicus curiae had urged us to issue directions for the
appointment of an authority akin to the Special or Independent
Counsel in the United States of America for the investigation of
charges in politically sensitive matters and for the prosecution of
those cases and to ensure that appointments to sensitive posts in the
CBI and other enforcement agencies and transfers therefrom were not
made by the political executive. We are of the view that the time for
these drastic steps has not come. It is our hope that it never will,
for we entertain the belief that the investigative agencies shall
function far better now, having regard to all that has happened since
these writ petition were admitted and to the directions which are
contained in this judgment. The personnel of the enforcement agencies
should not now lack the courage and independence to go about their
task as they should, even where those to be investigated are
prominent and powerful persons.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">In
view of the problem in the States being even more acute, as
claborately discussed in the Report of the National Police Commission
(1979), there is urgent need for the State Government also to set up
credible mechanism for selection of the Police Chief in the States.
The Central Government must pursue the matter within the State
Governments and ensure that a similar mechanism, as indicated above,
is set up in each State for the selection/appointment, tenure,
transfer and posting of not merely the Chief of the State Police but
also all police officers of the rank of Superintendent of Police and
above. It is shocking to hear, a matter of common knowledge, that in
some States the tenure of a Superintendent of Police is on an average
only a fee months and transfers are made for whimsical reasons. Apart
from demoralising the police force, it has also the adverse effect of
politicizing the personnel. It is, therefore, essential that prompt
measures are taken by the Central Government within the ambit of
their constitutional powers in the federation to impress upon the
State Governments that such a practice is alien to the envisaged
constitutional machinery. The situation described in the National
Police Commission's Report (1979) was alarming and it has become much
worse by now. The desperation of the Union Home Minister in his
letters to the state Governments, placed before us at the hearing,
reveal a distressing situation which must be cured, if the rule of
law is to prevail. No action within the constitutional scheme found
necessary to remedy the situations is too stringent in these
circumstances.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">In
the result, we strike down Directive No. 4.7(3) of the Single
Directive quoted above and issue the above directions, which have to
be construed in the light of the earlier discussion. The Report of
the Independent Review Committee (IRC) and its recommendations which
are similar to this extent can be read, if necessary, for a proper
appreciation of these directions. To the extent we agree with the
conclusions and recommendations of the IRC, and that is a large area,
we have adopted the same in the formulation of the above directions.
These directions require the strict compliance/adherence of the Union
of India and all concerned.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">The
writ petitions are disposed of in the above terms Criminal Misc.
Petition Nos. 5879-5882 of 1997 In view of the disposal of the writ
petitions in the manner indicated above and in the facts and
circumstances of the cases, we do not consider it necessary now to
examine the appointment of Shri R.C. Sharma as Director, CBI.
Moreover, the tenure of Shri Sharma as Director, CBI is to end soon.
We make it clear that Shri Sharma is not to be continued as CBI
Director beyond the date of expiry of his present tenure.
Accordingly, these Crl. M. Ps. are disposed of in this manner.</span></div>
<div style="margin-bottom: 0.07in; margin-top: 0.07in;">
<span style="font-family: "times new roman" , serif;">In
view of the withdrawal of C.W.P.No.2992 of 1997 in the Delhi High
Court as required by this Court's order dated 11.9.1997, no further
order for the disposal of C.W.P. No. 2992 of 1997 is necessary.</span></div>
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free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-33300936099185554232013-09-09T15:38:00.001+05:302013-09-09T15:39:43.955+05:30Law on FIR in India<div dir="ltr" style="text-align: left;" trbidi="on">
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<a href="http://spreadlaw.blogspot.in/2011/10/law-on-fir-in-india.html">http://spreadlaw.blogspot.in/2011/10/law-on-fir-in-india.html</a>
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<span style="color: #666666;"><span style="font-family: Trebuchet MS, Trebuchet, Verdana, sans-serif;"><span style="font-size: x-small;"><b>Facts
you must know about FIR before you enter a police station. </b><br /><br />By
Sumit Nagpal<br /><br />For a journo covering Judiciary, its a very
very common thing that people approach you saying the police is not
lodging their FIR. I have come across numerous cases, where people
are ill treated by the police stations and FIRs are refused. And
since last three days, there is a campaign on Twitter about the
mysterious death of one Naina Singh of Ghaziabad. Her mother is
crying foul over her death and the police is not ready to lodge FIR.
This prompts me to write a blog on things you must know before
entering a police station in such a case.<br /><br /><b>What is FIR?</b><br />FIR
stands for first information report. It is a document providing the
basic information that a cognizable offense has been committed. We
must know that FIR is not a conclusive proof that a person has
committed an offense. FIR is the starting point of the investigation
in a particular offense.<br /><br /><b>What is the law on FIR?</b><br />FIR
is governed by Section 154 of the Criminal Procedure Code.<br />According
to Section 154, (1) Every information relating to the commission of a
cognizable offense, if given orally to an officer in charge of a
police station, shall be reduced to writing by him or under his
direction, and be read over to the informants and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance
thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf. (2) A copy
of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant. (3) Any person, aggrieved
by a refusal on the part of an officer in charge of a police station
to record the information referred to in sub-section (1) may send the
substance of such information, in writing and by post, to the
Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offense, shall
either investigate the case himself or direct an investigation to be
made by any police officer Subordinate to him, in the manner provided
by this Code, and such officer shall have all the powers of an
officer in charge of the police station in relation to that
offence.<br /><br /><b>Is a police officer duty bound to lodge FIR in
every case?</b><br />The police officer is duty bound to lodge FIR in
every cognizable case. And if a police officer gets a complaint from
an aggrieved person about the cognizable offense, he must lodge a
FIR. And if a police officer refuses to do so, one must approach the
SP of the concerned area that a police officer has refused to lodge
FIR.<br /><br /><b>What does it mean if the police officer takes your
complaint and gives you an acknowledgement? Does it mean FIR has been
lodged? </b><br /><br />No, it doesn't mean that the FIR has been
lodged. It just means that the police officer has received a
complaint and the police will see if a cognizable offense has been
committed or not?<br /><br /><b>How will you get to know that your
FIR has been lodged or not?</b><br />If a FIR has been lodged, the
police officer concerned shall write in their prescribed performa in
a form or in computer as the case may be. They will also write the
relevant sections and the name of the accused persons if any of them
are known to the complainant. The FIR shall also contain a reference
number containing the year also.<br /><br /><b>Can your complaint
be FIR?</b><br />Yes! Your complaint can also be FIR provided they have
written down the contents of your complaint in their prescribed
performa. Please remember that mere acknowledgment of receiving your
complaint doesn't automatically converts it into FIR.<br /><br /><b>Is it
your right to get a copy of FIR?</b><br />Yes! Its your right to get a
copy of your FIR free of cost from the police<br /><br /><b>Should FIR be
lodged ASAP? What will happen if there is a delay in filing FIR?</b><br />Yes,
FIR must be lodged as soon as possible. If there is a delay in filing
the FIR, it will help the accused because the accused shall get time
to destroy the evidence, there shall be a problem in locating the
witnesses and during the trial, the defense lawyer will make an
allegation that FIR is an after thought.<br /><br /><b>Why they
refuse to file FIR? </b><br />There are few reasons the police
refuses to lodge FIR like the offense is not a cognizable offense.
Sometimes they want to keep the crime graph low so if they don't
lodge FIR, it will not show in the crime statistics in the area. Many
a times, a party bribes police officers and that's why they refuse to
lodge FIR. In most of mobile theft cases, it is a common practice
that police does not register a FIR but registers a NCR so the graph
of theft remains low.<br /><br /><b>What should you do if the police
officer refuses to lodge a FIR?</b><br />If the police refuses to lodge
FIR, don't think that this is the end of the road. The Criminal
Procedure Code has a provision under section 156(3) where an
aggrieved person may file a petition before the magistrate asking for
a direction to the police to lodge a FIR.<br /><br />(Note : This is part
I of Law on FIR. In next blog I will tell you the difference between
FIR, NCR and complaint. I will also write what is a cognizable
offense and what is non cognizable one.)</span></span></span></div>
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free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-17766106208946314932013-09-09T15:36:00.003+05:302013-09-09T15:39:43.944+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
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<div style="margin-bottom: 0in;">
Article 166 in The Constitution Of
India 1949</div>
<div style="margin-bottom: 0in;">
Dattatraya vs State Of Maharashtra And
Ors. on 22 August, 1996</div>
<div style="margin-bottom: 0in;">
Shamsher Singh & Anr vs State Of
Punjab on 23 August, 1974</div>
<div style="margin-bottom: 0in;">
P.Rathinam vs Union Of India on 26
April, 1994</div>
<div style="margin-bottom: 0in;">
State Of West Bengal Etc. vs M.R.
Mondal And Anr. on 3 September, 2001</div>
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<div style="margin-bottom: 0in;">
Supreme Court of India</div>
<div style="margin-bottom: 0in;">
Ropan Sahoo & Anr. vs Ananda Kumar
Sharma & Ors. on 22 January, 2013</div>
<div style="margin-bottom: 0in;">
Author: D Misra</div>
<div style="margin-bottom: 0in;">
Bench: K.S. Radhakrishnan, Dipak Misra</div>
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, , , ,</div>
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IN THE SUPREME COURT OF INDIA</div>
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CIVIL APPELLATE JURISDICTION</div>
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<div style="margin-bottom: 0in;">
CIVIL APPEAL NO. 615 OF 2013</div>
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</div>
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(Arising out of S.L.P. (C) No. 34902 of
2009)</div>
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<div style="margin-bottom: 0in;">
Ropan Sahoo & another ...
Appellants</div>
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Versus</div>
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<div style="margin-bottom: 0in;">
Ananda Kumar Sharma & others
...Respondents</div>
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WITH</div>
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</div>
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CIVIL APPEAL NO. 616 OF 2013</div>
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(Arising out of S.L.P. (C) No. 35166 of
2009)</div>
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</div>
<div style="margin-bottom: 0in;">
State of Orissa & others
....Appellants</div>
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Versus</div>
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<div style="margin-bottom: 0in;">
Ananda Kumar Sharma & others
....Respondents</div>
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J U D G M E N T</div>
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Dipak Misra, J.</div>
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Leave granted in both the special leave
petitions.</div>
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2. Questioning the legal acceptability
of the order dated 16.9.2009 passed by the Division Bench of the High
Court Orissa at Cuttack in WP(C) No. 3913 of 2009 whereby the High
Court entertained the writ petition preferred by the first respondent
herein and quashed the grant of exclusive privilege and the licence
granted in favour of Ropan Sahoo and Mukesh Kumar, the respondent
Nos. 5 and 6 in the writ petition, the present appeals have been
preferred by the grieved persons as well as by the State.</div>
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</div>
<div style="margin-bottom: 0in;">
3. Shorn of unnecessary details the
facts which are requisite to be stated are that Mukesh Kumar, the
respondent No. 6 before the High Court, had submitted an application
for grant of licence to open an IMFL “Off” shop in Ward No. 16,
Bargarh Town for the year 2007-08 on 28.1.2008. As a report was
submitted that the proposed site was violative of sub-rule 1(c) of
Rule 34 of Orissa Excise Rules, 1965 (for short “the Rules”), the
said respondent chose to withdraw the application for the aforesaid
year by indicating personal reasons. In respect of the next financial
year he again submitted an application for grant of licence at the
same place. The Collector, Bargarh, invited objections and pursuant
to the same the writ petitioner filed his objection on 18.10.2008.
The Inspector of Excise submitted a report on 2.2.2009 stating about
the existence of a bathing ghat, Vishnu temple, bus stand and petrol
pump within the prohibited distance, but recommended for relaxation
of restrictions. The Collector, Bargarh, recommended for opening of
the shop for remaining part of the year 2008-09 in relaxation of the
restrictions and the Excise Commissioner also recommended to the
Government on 19.2.2009 for sanction by relaxing of the restrictions.
As the factual matrix would reveal, the State Government on the basis
of the recommendations invoked the power of relaxation under Rule 34
of the Rules and granted licence in favour of the said respondent for
the remaining period of 2008-09. Be it noted, in a similar manner
relaxation was granted for opening of the IMFL/Beer (‘ON’ shop)
at Hotel Sawadia for the period from 2.3.2009 to 31.3.2009.</div>
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</div>
<div style="margin-bottom: 0in;">
4. Being grieved by the grant of said
licences, the first respondent invoked the jurisdiction of the High
Court under Article 226 of the Constitution principally contending
that the report submitted by the Excise Inspector with regard to
certain aspects, namely, location of the bathing ghat, etc. were not
factually correct; that the recommendations made by the authorities
were highly improper and unwarranted; and that the relaxation had
been granted in an extremely arbitrary manner and, therefore, the
grant of exclusive privilege and the licence deserved to be axed. The
High Court perused the documents brought on record, called for the
record to satisfy itself in what manner the power of relaxation was
exercised, and after perusal of the record and on consideration of to
various recommendations, came to hold that as far as the respondent
No. 5 was concerned for sanction of a beer parlour ‘ON’ shop
licence for the remaining period of 2008-09, no order was passed
relaxing the Rules before the grant of exclusive privilege. As far as
the sanction of IMFL Restaurant licence in respect of 6th respondent
was concerned, the High Court expressed the similar view. We think it
apt to reproduce the ultimate conclusion recorded by the High Court:
-</div>
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</div>
<div style="margin-bottom: 0in;">
“13. Proviso to Rule 34 specifically
prescribes that restriction on the minimum distance as mentioned in
Clause (d) and (e) may be relaxed by the State Government in special
circumstances. There being no order by the State Government relaxing
the aforesaid two Clauses in relation to the minimum distance between
the proposed shops and the place of worship i.e. the Vishnu Temple,
petrol pump and bus stand, the order of the State Government
approving the sanction/grant of exclusive privilege in favour of
opposite parties 5 and 6 cannot be sustained in law.”</div>
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<br />
</div>
<div style="margin-bottom: 0in;">
5. After so stating the High Court
referred to Section 41 of the Bihar and Orissa Excise Act, 1915 (for
brevity “the Act”) and observed as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“Rule 34 of the Rules castes a
statutory duty on the Department to pass order with reasons relaxing
the restrictions. When there has been infraction of such statutory
duty, the same cannot be covered under Section 41 of the Act.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6. Being of the aforesaid view, the
High Court quashed the privileges and the licences granted in favour
of the private respondents therein.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7. We have heard Mr. Bhaskar P. Gupta,
learned senior counsel for the beneficiaries of the grant, Mrs. Kirti
Renu Mishra, learned counsel for the State and Mr. G. Ramakrishna
Prasad, learned counsel appearing for the respondent No. 1 in both
the appeals.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
8. At the very outset we may note that
it is the admitted position that both the proposed sites come within
the prohibited area as envisaged under Rule 34(1)(d) and (e) of the
Rules. Rule 34 of the Rules stipulates that the places in respect of
which licences for consumption of liquor on vendor’s premises
should not be granted. The said Rule reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“34. Licences for shops for
consumption of liquor on vendor’s premises not to be granted at
certain places : (1) No new shop shall be licensed for the
consumption of liquor on the vender, premises –</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
a) in a marketplace, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
b) at the entrance to market place, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
c) in close proximity to a
bathing-ghat, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
d) within at least five hundred meters
from a place of worship, recognized educational institution,
established habitant especially of persons belonging to scheduled
castes and labour colony, mills and factories, petrol pumps, railway
stations/yard, bus stands, agricultural farms or other places of
public resort, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
e) within at least one kilometer from
industrial, irrigation and other development projects areas, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
f) in the congested portion of a
village :</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Provided that the restriction on the
minimum distance as mentioned under clauses (d) and (e) may be
relaxed by the State Government in special circumstances.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(2) So far as practicable, an
established liquor shop licensed for the consumption of liquor on the
premises shall not be allowed to remain on a site which would not
under sub-rule (1) be permissible for the location of a new shop.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(3) In areas inhabited by Scheduled
Tribes, country spirit shops shall not be licensed to be placed
immediately on the side of a main road or in any other prominent
position that is likely to place temptation in their way.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9. On a perusal of the aforesaid Rule,
it is crystal clear that the State Government has been conferred with
the power to relax the restriction on the minimum distance as
mentioned in clauses (d) and (e) pertaining to the minimum distance.
As has already been indicated hereinbefore there is no cavil that the
material on record pertained to the relaxation of the restriction as
prescribed under clauses (d) and (e) of sub-rule (1) of Rule 34 of
the Rules. The High Court, as the impugned order would reflect, has
quashed the order of approval/sanction and the consequent grant of
licences on the foundation that there has been no order relaxing the
restrictions on the minimum distance as mentioned in Clauses (d) and
(e) relating to the proposed shops in exercise of powers of the said
Rule by the State Government and, in any case, no reasons have been
ascribed. Thus, the question that emanates for consideration is
whether the High Court has appositely appreciated the note sheet in
the file and arrived at the correct conclusion or not.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
10. The High Court, as demonstrable,
has reproduced the communications made by the Joint Secretary to the
Government by fax vide memo No. 1159/Ex. dt. 2.3.2009 addressed to
the Excise Commissioner about the Restaurant “ON” shop licence in
favour of Mukesh Kumar at “RASSOI RESTAURANT” in the premises of
Hotel ‘Sawadia Palace’, Ward No. 11, Bargarh Municipality over
Plot No. 1622, Khata No. 2542/362, in the district of Bargarh for the
remaining period of 2008-09 and also the memo No. 1161/Ex. dated
2.3.2009 in respect of Beer Parlour “ON” shop licence in favour
of Ropan Sahoo over Plot No. 1391/2260, Khata No. 393 in Ward No. 16
of Bargarh Municipality, in the district of Bargarh for the remaining
period of 2008-09. The communication that has been made in favour of
Mukesh Kumar reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In inviting a reference to your
letter No. 1214 dt. 19.2.09 on the subject cited above, I am directed
to say that Govt. after careful consideration have been pleased to
grant IMFL Restaurant “ON” shop Licence in favour of Sri Mukesh
Kumar at “RASSOI RESTAURANT” in the premises of Hotel “Sawadia
Palace”, Ward No. 11, Baragarh Municipality over Plot No. 1622,
Khata No. 2542/362, in the district of Baragarh for the remaining
period of 2008-09 by relaxing rule 34 of the Orissa Excise Rules,
1965 and fixation of MGQ as per Excise Duty, Fee Structure and
Guidelines for 2008-09. The Excise Administration may be held
responsible if the existing nearby excise shops are affected by the
new “ON” shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
As far as grant of beer parlour “ON”
shop in favour of Ropan Sahoo is concerned, the communication vide
memo No. 1161/Ex. dated 2.3.2009 is as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In inviting a reference to your
letter No. 1380 dt. 25.02.09 on the subject cited above, I am
directed to say that Govt. after careful consideration have been
pleased to sanction Beer Parlour “ON” shop Licence in favour of
Sri Ropna Sahoo over Plot No. 1391/2260, Khata No. 393/330 in Ward
No. 16 of Bargarh Municipality, in the district of Bargarh for the
remaining period of 2008-09 subject to condition that the district
excise officials will be held responsible if the nearby existing
excise shops are affected by opening of the new shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
11. As no reasons were assigned, the
High Court called for the file. On a perusal of the file the High
Court referred to the recommendations and, eventually, opined that no
order had been passed relaxing the Rule in respect of the said shops
by the Commissioner-cum-Secretary to Government, Department of
Excise. The thrust of the matter is whether any order has been passed
relaxing the restrictions imposed by the Rules and does it contain
reasons. As the first communication would reveal, it is clearly
mentioned therein that the Government has relaxed the restrictions
under Rule 34 and as far as the second communication is concerned, it
has been stated that the Government has sanctioned grant of licence.
The learned counsel for the State has referred to the note sheet to
highlight that the orders had been passed in consonance with the
proviso to Rule 34(1) of the Rules and on that basis the
communications were issued.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
12. We have bestowed our anxious
consideration and carefully perused the note-sheet. On a studied
scrutiny of the same it is luculent that the Excise Commissioner,
Orissa, Cuttack, had recommended the proposals and in support of the
same had furnished seventeen documents. The note sheet has referred
to the report which states that the proposed site exist at 350 meters
from Vishnu Temple, 250 meters from the petrol pump, 200 meters from
the private bus stand and 50 meters from the irrigation canal. The
recommendation which forms part of the note sheet reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“The Collector, Bargarh, in his
report at P-84/C has stated that the local consumers demand for
consumption of liquor within the hotel premises. Illegal liquor cases
have been booked in the nearby area and hence, there is demand for
the “ON” shop. The apprehension that the existing IMFL “OFF”
shop will be affected after opening of the proposed “ON” shop is
ruled out, because the consumers of “OFF” shop are different from
“ON” shop. The customers of “ON” shop has to consume liquor
inside the Hotel premises with peg system and pay service charge,
whereas such a facility is not available with “OFF” shops.
Besides, the bathing ghat is not nearby as objected. But only one
irrigation canal is flowing at a distance of about 50 meters.
Therefore, Collector has recommended for relaxation of rule 34 of
Orissa Excise Rules, 1965 for sanction of the proposal in the
interest of Govt. revenue and to check illegal liquor trade.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. The objections of A.K. Sharma and
that of the Secretary, Human Society, Bargarh have also been
considered. Thereafter, the Joint Secretary has recommended thus: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In the above circumstances and in
view of recommendation of the Excise Commissioner, Orissa, Cuttack,
it may kindly be considered to grant IMFL Restaurant “ON” shop
licence in favour of Sri Mukesh Kumar at “Rasooi Restaurant” in
the premises of Hotel “Sawadia Palace” Ward No. 11, Bargarh
Municipality over Plot No. 1622, Khata No. 2542/362, in the district
of Bargarh, for the remaining period of the year 2008-09 by relaxing
rule 34 of Orissa Excise Rules, 1965 and MGQ fixed as per the Excise
Duty, Fee Structure and Guidelines for 2008-09. The District Excise
Administration may be held responsible if the existing nearby excise
shops are affected by the new “ON” shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
14. The Commissioner-cum-Secretary to
Government, Excise Department, has endorsed the same in the following
terms: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“Notes from P.10/N explain. We had
received a representation from Shri A.K. Sharma, Exclusive Privilege
Holder of IMFL ‘Off Shop’ No. 4 of Bargarh (P.23-22/C) against
the proposal received from Collector, Bargarh and endorsed by the
Excise Commissioner, Orissa for opening of IMFL ‘On Shop’ at
Rasoi Restaurant in the premises of Hotel Sawadia Palace, Ward No. 11
of Bargarh. The objections raised by Shri Sharma have been enquired
into by the District Administration. In this regard, the letter
received from Collector, Bargarh at P.34-32/C may please be glanced
through. The objections of Shri Sharma are found to be devoid of
merit. The report received from the Excise Commissioner, placed
below, may also be perused. The Excise Commissioner had recommended
to consider the sanction of IMFL ‘On Shop’ at Rasoi Restaurant in
favour of Shri Mukesh Kumar situated in the premises of Hotel Sawadia
Palace, Ward No. 11 of Bargarh. The proposal may kindly be considered
and approved.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
15. The same has been signed by the
Minister of Excise and Tourism, Orissa. As far as the second shop is
concerned, the note sheet referred to the recommendations of the
Collector, which reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“...the Collector, Bargarh has
reported that both the petrol pumps are situated in such a manner
that the shops will have no effect at all on the proposed Bar and
hence he has suggested for relaxation of restrictive provisions of
rule-34 of Orissa Excise Rules, 1965.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
The Collector, Bargarh has also
reported that the proposed Beer Parlour shall cater to the needs of
the consuming people of the locality besides fetching Govt. revenue
and checking illicit sale of Beer, since the population of the area
is increasing. Only 3 (three) IMFL “OFF’ shops, one IMFL ‘ON’
and one Beer Parlour are functioning in the entire town area having
population of more than one lakh. There is feasibility and
potentiality for opening of the Beer Parlour ‘ON’ shop, since
illegal sale of liquor has been detected in the area. The proposed
shop will check illicit trade of liquor. He has also stated that the
opening of new Beer Parlour will not affect the nearby IMFL shops in
the Municipality.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
16. The Joint Secretary after referring
to the objections and the recommendations of the Excise Commissioner
has passed the following order in the note sheet: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In the above circumstances and in
view of recommendation of the Excise Commissioner, Orissa, Cuttack,
it may kindly be considered to sanction Beer Parlour ‘ON’ shop
licence in favour of Sri Ropna Sahu over plot No. 1391/2260, Khata
No. 393/330 in Ward No.16 of Bargarh Municipality in the district of
Bargarh for the remaining period of 2008-09 subject to condition that
the district excise officials will be held responsible if the nearby
existing shops are affected by opening of the new shop.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Government orders may kindly be
obtained in the matter.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
17. Thereafter, the
Commissioner-cum-Secretary to Government in the Department of Excise
has endorsed the same and the Minister, Excise and Tourism has signed
in approval thereof and thereafter the movement of the file took
place. On the basis of the aforesaid orders the communications have
been sent.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
18. On a keen scrutiny of the entire
note sheet we have no hesitation in our mind that the
Commissioner-cum-Secretary had accepted the recommendations of the
Collector and the Excise Commissioner, and upon perusal of the note
sheet of the Joint Secretary had recommended for consideration and
approval by the Minister of Excise and Tourism. The Minister, as
stated earlier, has signed and thereafter, the file had travelled
back for communication. We really fail to fathom the reasons ascribed
by the High Court that there is no order whatsoever relaxing the
Rules before the order of grant of exclusive privilege was passed.
After the Minister had signed on the file on the basis of the
recommendations sent by the Commissioner-cum-Secretary which was
founded on the recommendations of the Joint Secretary who had
concurred with the recommendations of the Collector and the Excise
Commissioner, communications were made by the Joint Secretary. The
note sheet clearly indicates application of mind to the relevant
facts which pertain to the restrictions on the distance from the
proposed site and the endorsement by the Minister. In this context,
we may refer with profit to the decision in Tafcon Projects (I) (P)
Ltd. v. Union of India and others[1], wherein the High Court, after
taking note of the order passed by the Secretary who, in anticipation
of the formal approval by the Minister concerned, had allowed the
party to go ahead for appointing the appellant therein as “Event
Manager”. This Court referred to the earlier order passed by the
Secretary granting permission and the latter order in which he had
mentioned that the party may be allowed to go ahead with the proposal
for making the preliminary arrangement in anticipation of the formal
approval of the Minister and expressed the view that the High Court
had erred in coming to hold that the Secretary had not taken any
final decision with regard to the appellant therein as the Event
Manager. Thereafter, the Court adverting to the justification of the
conclusion of the High Court that no final decision had been taken by
the Minister expressed thus :-</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“12. It appears also from the record
as noted by the High Court, that the file had been pending with the
Minister for some time and despite expressions of urgency, the
Minister did not sign the file since he was busy with “elections
and other important matters”. What the High Court has overlooked is
that the relevant file was again placed before the Minister on
30.8.1999 by JS&FA with a note which stated that Tafcon had been
appointed as the “Event Manager” for three years. This was signed
by the Minister with the endorsement “file returned”.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. The High Court deduced from this
signature of the Minister that no approval was in fact granted by him
to the appointment of M/s. Tafcon either expressly or impliedly. We
are unable to agree. Where the Minister has signed the various notes
put up before him seeking his approval, his signature, without more,
must mean that he has approved the steps taken by the Department.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
19. Be it noted, in the said case, the
Court referred to Rule 3 of the Transaction of Business Rules, 1961
which provided for all business to be conducted on general or special
directions of the Minister-in- charge.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
20. In the case at hand, Rule 7 of the
Orissa Government Rules of Business made under Article 166 of the
Constitution confers the power on the Minister to pass an order in
respect of a matter pertaining to his portfolio. The effect of such a
delegation has been dealt with by a three-Judge Bench in Narmada
Bachao Andolan v. State of Madhya Pradesh[2] wherein it has been held
that: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: blue;">“<b>The
decision of any Minister or Officer under the Rules of Business made
under Articles 77(3) and 166(3) of the Constitution is the decision
of the President or the Governor respectively and these Articles do
not provide for `delegation’. That is to say, that decisions made
and actions taken by the Minister or Officer under the Rules of
Business cannot be treated as exercise of delegated power in real
sense, but are deemed to be the actions of the President or Governor,
as the case may be, that are taken or done by them on the aid and
advice of the Council of Ministers.”</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
21. The Bench to fructify its opinion
has placed reliance on State of U.P. & Ors. v. Pradhan Sangh
Kshettra Samiti & Ors.[3] and pronouncement by the
seven-Judge Bench in Shamsher Singh v. State of Punjab &
Anr.[4] For the sake of completeness, we may note with profit what
has been stated in paragraph 27 of the aforesaid decision: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“27. In Dattatraya Moreshwar v. The
State of Bombay & Ors.[5], a Constitution Bench of this Court
held that an omission to make and authenticate an executive decision
in the form mentioned in Article 166 does not make the decision
itself illegal, on the basis that its provisions were directory and
not mandatory.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
22. In this regard we may quote a
passage from Sethi Auto Service Station and another v. Delhi
Development Authority and others[6] : -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“<b>14. It is trite to state that
notings in a departmental file do not have the sanction of law to be
an effective order. A noting by an officer is an expression of his
viewpoint on the subject. It is no more than an opinion by an officer
for internal use and consideration of the other officials of the
department and for the benefit of the final decision-making
authority. <span style="color: red;">Needless to add that internal
notings are not meant for outside exposure.</span> <u>Notings in the
file culminate into an executable order, affecting the rights of the
parties, only when it reaches the final decision-making authority in
the department, gets his approval and the final order is communicated
to the person concerned.”</u></b></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
23. In State of West Bengal v. M. R.
Mondal and another[7] it has also been held that <span style="color: red;"><b>an
order passed on the file and not communicated is non- existent in the
eye of law.</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
24. In the present case it is luminous
that the file had travelled to the concerned Joint Secretary of
department who had communicated the order. The High Court has opined
that there is no order by the State Government relaxing the
restrictions enshrined in clauses (d) and (e) of Rule 34(1) of the
Rules in relation to the minimum distance between the proposed shops
and the Vishnu Temple, petrol pump and bus stand and at a latter part
of the judgment has expressed the opinion that there has been
infraction of statutory Rule, namely, Rule 34 which casts a statutory
duty on the department to pass on order with reasons relaxing the
restrictions. We are disposed to think that the High Court, as far as
the first part of the opinion is concerned, has been guided by the
factum that the Commissioner-cum-Secretary in his recommendation to
the Minister of Excise and Tourism had not specifically referred to
clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to
state here that it is perceptible from the note sheet that the
Secretary had referred to the proposal received from the Collector,
endorsement made by the Excise Commissioner, the objections raised by
the objectors and also expressed the view that the said objections
were devoid of merit and, accordingly, recommended for approval. The
cumulative effect of the note sheet goes a long way to show that
every authority was aware of the distance and recommended for
relaxation of clauses (d) and (e) of sub-rule (1) of Rule 34 and the
concerned Minister had endorsed the same. Non-mentioning of the Rule
or sub-rule, in our considered opinion, does not tantamount to
non-passing of an order. The dominant test has to be the application
of mind to the relevant facts. The second part of the order, if
properly appreciated, conveys that no reasons have been ascribed. The
proviso to Rule 34(1) lays a postulate that the distance as mentioned
under clauses (d) and (e) may be relaxed by the State Government in
special circumstances. The recommendations made by the Collector
refers to the circumstances, namely, that there is a demand for
consumption of liquor within the hotel premises; that illegal liquor
cases have been booked in the nearby area; and that the proposal is
in the interest of the Government revenue. The said recommendations,
as is reflectible, have been concurred with by the higher authorities
and, hence, there can be no trace of doubt that they constitute the
special circumstances.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
25. In view of our aforesaid analysis,
the appeals are allowed and the order passed by the High Court is set
aside. It is further clarified that if the Government, if so advised,
can invoke the power under the proviso to Rule 34(1) of the Rules for
the purpose of relaxation for grant of exclusive privilege and
licence pertaining to the said shops in respect of current and
subsequent financial years. In the facts and circumstances of the
case, the parties shall bear their respective costs.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
……………………………….J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[K. S. Radhakrishnan]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
……………………………….J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[Dipak Misra]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
New Delhi;</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
January 22, 2013</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
-----------------------</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[1] (2004) 13 SCC 788</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[2] AIR 2011 SC 3199</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[3] AIR 1995 SC 1512</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[4] AIR 1974 SC 2192</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[5] AIR 1952 SC 181</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[6] (2009) 1 SCC 180</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[7] AIR 2001 SC 3471</div>
<div style="margin-bottom: 0in;">
<br />
</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-7107889999131704782013-09-09T15:36:00.001+05:302013-09-09T15:39:43.966+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="margin-bottom: 0in;">
<span style="color: #c00000;"><span style="font-family: Times New Roman;"><b>Head
Notes</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Allowing the appeal in part, the court</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
HELD: 1.1. Section 304A of the Penal
Code, 1860. applies to rash and negligent acts and does not apply to
causes where death has been voluntarily caused. This Section
obviously does not apply to cases where there is an intention to
cause death or knowledge that the act will in all probability cause
death. It only applies to cases in which without any such intention
or knowledge death is caused by what is described as a rash and
negligent act.
</div>
<div style="margin-bottom: 0in;">
[Para 5] [1145-b-c]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
1.2. A negligent act is an act done
without doing something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs
would do or act which a prudent or reasonable man would not do in the
circumstances attending it. A rash act is a negligent act done
precipitately. Negligence is the genes of which rashness is the
species. <b>It has sometimes been observed that in rashness the
action is done precipitately that the mischievous or illegal
consequences may fall, but with a hope that they will not</b>. [Para
5] [1145-c-d]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Andrews v. Director of Public
Prosecution, (1937) AC 576, referred to.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2. Negligence and rashness are
essential elements under Section 304A. <span style="color: #eb613d;"><b>Culpable
negligences lies in the failure to exercise reasonable and proper
care and the extent of its reasonableness will always depend upon the
circumstances of each case</b></span>. <span style="color: #2323dc;"><b>Rashness
means doing an act with the consciousness of a risk that evil
consequences will follow but with the hope that it will not.
</b></span><span style="color: magenta;"><b>Negligence is a breach of duty
imposed by law.</b></span> <span style="color: #00cccc;"><b>In a criminal
case, the amount and degree of negligence are determining factors.
The question whether the conduct of the accused amounted to culpable
rashness or negligence depends directly on the question as to what is
the amount of care and circumspection which a prudent and reasonable
man would consider to be sufficient considering all the circumstances
of the case.</b></span> <span style="color: maroon;"><b>Criminal rashness
means hazarding a dangerous or wanton act with the knowledge that it
may cause injury but done without any intention to cause injury or
knowledge that it would probably be caused. </b></span>[Para 6]
[1145-h; 1146-a-c]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. <b>"Rashness" consists in
hazarding a dangerous or wanton act with the knowledge that it is so
and that it may cause injury. The criminality in such a case lies in
running the risk of doing such an act with recklessness or
indifference as to the consequences. </b><span style="color: red;">Criminal
negligence, on the other hand, is the gross and culpable neglect or
failure to exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an
individual in particular, which, having regard to all the
circumstances out of which the change has arisen, it was the
imperative duty of the accused person to have adopted.</span> [Para
7] [1146-d-e]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
In Re: Nidamorti Nagabhusanam 7 Mad
H.C.R.119, referred to.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. When the factual scenario of the
present case is analyzed, it is crystal clear that the appropriate
conviction would be under Section 304A IPC and not under Section 304
Part II IPC. Conviction is accordingly altered. The maximum sentences
which can be imposed for an offence punishable under Section 304A is
two years with fine or with both. The custodial sentences, therefore,
is reduced to the maximum i.e. two years.
</div>
<div style="margin-bottom: 0in;">
[Para 19] [1150-g]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Venkat Subramaniam T.R. and Ramesh Babu
M.R. for the Appellant.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
R. Sathish and M.T. George for the
Respondent.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #c00000;"><span style="font-family: Times New Roman;"><b>Subject</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Penal Code, 1860:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Section 304A-Causing death by
negligence-Negligence and rashness-Essential attributes
of-Distinction between knowledge and intention-A boy aged 10 years
was run over by a bus driven by the accused-Trial court found that no
intention had been proved but, at the same time, held that the
accused acted with the knowledge that it was likely to cause
death-Hence, the accused was convicted under S.304 part II-High Court
confirmed the conviction-Correctness of-Held:S.304A applies to rash
and negligent acts and does not apply to cases where death has been
voluntarily caused-This section does not apply to cases where there
is an intention to cause death or knowledge that the act will in all
probability cause death-A rash act is a negligent act done
precipitately-Negligence is the genes of which rashness is the
species-Negligence and rashness are essential elements under
S.304A-Culpable negligence lies in the failure to exercise reasonable
and proper care-Rashness means doing an act with the consciousness of
a risk-In a criminal case, the amount and degree of negligence are
determining factors-Whether the conduct of the accused amounted to
culpable rashness or negligence depends directly on the amount of
care and circumspection which a prudent and reasonable man would
consider to be sufficient considering all the circumstances of the
case-Criminal rashness means an act done without any intention to
cause injury or knowledge that it would probably be caused-On facts,
conviction is under S.304A and not under S.304 Part II-Conviction
altered to one under S.304A.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Words and Phrases:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"negligence" and
"rashness"-Meaning of-In the context of Section 304A of the
Penal Code, 1860.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
According to the prosecution, a boy
aged 10 years was run over by a bus driven by the appellant-accused.
During the investigation it was revealed that the bus was being
driven with a very high speed and therefore, the appellant was
charged under Section 302 of the Penal Code, 1860.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
The trial court found that no intention
had been proved in the case, but, at the same time, held that the
accused acted with the knowledge that it was likely to cause death.
Hence, the trial court held that the act committed by the appellant
was culpable homicide not amounting to murder punishable under
Section 304 Part II IPC and sentenced him to undergo rigorous
imprisonment for five years. The High Court did not accept the stand
that the case was covered under Section 304A IPC and confirmed the
conviction. Hence the appeal.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: maroon;"><span style="font-family: Times New Roman;"><b>Citation</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2007 AIR 2378, 2007(7 )SCR1141, ,
2007(8 )SCALE605 , 2007(9 )JT346
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: maroon;"><span style="font-family: Times New Roman;"><b>Judgement</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
CASE NO.:</div>
<div style="margin-bottom: 0in;">
Appeal (crl.) 775 of 2005</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
PETITIONER:</div>
<div style="margin-bottom: 0in;">
Prabhakaran</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
RESPONDENT:</div>
<div style="margin-bottom: 0in;">
State of Kerala</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
DATE OF JUDGMENT: 21/06/2007</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
BENCH:</div>
<div style="margin-bottom: 0in;">
Dr. ARIJIT PASAYAT & D.K. JAIN</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
JUDGMENT:</div>
<div style="margin-bottom: 0in;">
J U D G M E N T</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Dr. ARIJIT PASAYAT, J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
1. Challenge in this appeal is to the
order passed by the
</div>
<div style="margin-bottom: 0in;">
learned Single Judge of the Kerala High
Court. By the
</div>
<div style="margin-bottom: 0in;">
impugned order the appellant was found
guilty of the offence
</div>
<div style="margin-bottom: 0in;">
punishable under Section 304 Part II of
the Indian Penal Code,
</div>
<div style="margin-bottom: 0in;">
1860 (in short 'IPC'). Learned
Sessions Judge, Kozhikode, had
</div>
<div style="margin-bottom: 0in;">
convicted the appellant for the offence
punishable under
</div>
<div style="margin-bottom: 0in;">
Section 304 Part II IPC. The High
Court found the same to be
</div>
<div style="margin-bottom: 0in;">
in order. Custodial sentence of five
years was confirmed.
</div>
<div style="margin-bottom: 0in;">
2. The background facts in a nutshell
are as follows:
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
A boy aged 10 years residing in a
hostel of the Tribal
</div>
<div style="margin-bottom: 0in;">
Welfare Department, while he was a
student of 4th standard in
</div>
<div style="margin-bottom: 0in;">
a nearby school, was run over by a bus
driven by the appellant
</div>
<div style="margin-bottom: 0in;">
in the middle of the road. The
investigation by the police
</div>
<div style="margin-bottom: 0in;">
revealed that there was evidence to the
effect that even the
</div>
<div style="margin-bottom: 0in;">
passengers in the bus were alarmed of
the enormous speed in
</div>
<div style="margin-bottom: 0in;">
which it was being driven and had
cautioned the driver to stop
</div>
<div style="margin-bottom: 0in;">
even crying, as they had seen the
school children crossing the
</div>
<div style="margin-bottom: 0in;">
road in a queue. The investigation
also revealed that even the
</div>
<div style="margin-bottom: 0in;">
children crossing the road had raised
both hands for stopping
</div>
<div style="margin-bottom: 0in;">
the vehicle. The passengers and
pedestrians were of the view
</div>
<div style="margin-bottom: 0in;">
that the bus was being driven at a high
speed and that they
</div>
<div style="margin-bottom: 0in;">
had cried aloud to stop the bus. It
was, in spite of all these,
</div>
<div style="margin-bottom: 0in;">
that the bus ran over the said student
on his head and the
</div>
<div style="margin-bottom: 0in;">
bus could be stopped only 15 to 20 feet
ahead of the spot of
</div>
<div style="margin-bottom: 0in;">
occurrence. In the light of the said
evidence, the investigating
</div>
<div style="margin-bottom: 0in;">
officer felt that there was real
intention on the part of the
</div>
<div style="margin-bottom: 0in;">
appellant/driver of the bus to cause
death of persons to whom
</div>
<div style="margin-bottom: 0in;">
harm may be caused by reason of hitting
the bus and he was
</div>
<div style="margin-bottom: 0in;">
charged with offence punishable under
Section 302 IPC. The
</div>
<div style="margin-bottom: 0in;">
court below found that no intention had
been proved in the
</div>
<div style="margin-bottom: 0in;">
case. But, at the same time, the
accused acted with the
</div>
<div style="margin-bottom: 0in;">
knowledge that it was likely to cause
death. So, the act
</div>
<div style="margin-bottom: 0in;">
committed by the appellant was culpable
homicide not
</div>
<div style="margin-bottom: 0in;">
amounting to murder punishable under
Section 304 Part II
</div>
<div style="margin-bottom: 0in;">
IPC. Convicting him for the said
offence, he was sentenced to
</div>
<div style="margin-bottom: 0in;">
undergo rigorous imprisonment for five
years and to pay a fine
</div>
<div style="margin-bottom: 0in;">
of Rs.15,000/- with a default sentence
of imprisonment for
</div>
<div style="margin-bottom: 0in;">
three years. This was assailed in
appeal.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. The High Court did not find any
substance in the plea of
</div>
<div style="margin-bottom: 0in;">
the appellant that the accused had not
caused death either
</div>
<div style="margin-bottom: 0in;">
with the intention of causing death or
with the intention to
</div>
<div style="margin-bottom: 0in;">
cause such bodily injury as is likely
to cause death or with the
</div>
<div style="margin-bottom: 0in;">
knowledge that he is likely to cause
such act to cause the
</div>
<div style="margin-bottom: 0in;">
death. It was submitted that case is
covered under Section
</div>
<div style="margin-bottom: 0in;">
304A IPC. Same was not accepted. So,
it was held that this is
</div>
<div style="margin-bottom: 0in;">
a case of culpable homicide. It
accepted the stand of the
</div>
<div style="margin-bottom: 0in;">
respondent-State that conviction is to
be made for culpable
</div>
<div style="margin-bottom: 0in;">
homicide.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. The respective stand taken before
the High Court was re-</div>
<div style="margin-bottom: 0in;">
iterated in this appeal.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
5. Section 304A speaks of causing death
by negligence.
</div>
<div style="margin-bottom: 0in;">
This section applies to rash and
negligence acts and does not
</div>
<div style="margin-bottom: 0in;">
apply to cases where death has been
voluntarily caused. This
</div>
<div style="margin-bottom: 0in;">
section obviously does not apply to
cases where there is an
</div>
<div style="margin-bottom: 0in;">
intention to cause death or knowledge
that the act will in all
</div>
<div style="margin-bottom: 0in;">
probability cause death. It only
applies to cases in which
</div>
<div style="margin-bottom: 0in;">
without any such intention or knowledge
death is caused by
</div>
<div style="margin-bottom: 0in;">
what is described as a rash and
negligent act. <b>A negligent act </b>
</div>
<div style="margin-bottom: 0in;">
<b>is an act done without doing
something which a reasonable </b>
</div>
<div style="margin-bottom: 0in;">
<b>man guided upon those considerations
which ordinarily </b>
</div>
<div style="margin-bottom: 0in;">
<b>regulate the conduct of human
affairs would do or act which a </b>
</div>
<div style="margin-bottom: 0in;">
<b>prudent or reasonable man would not
do in the circumstances </b>
</div>
<div style="margin-bottom: 0in;">
<b>attending it. A rash act is a
negligent act done precipitately. </b>
</div>
<div style="margin-bottom: 0in;">
<b>Negligence is the genes, of which
rashness is the species. It </b>
</div>
<div style="margin-bottom: 0in;">
<b>has sometimes been observed that in
rashness the action is </b>
</div>
<div style="margin-bottom: 0in;">
<b>done precipitately that the
mischievous or illegal consequences </b>
</div>
<div style="margin-bottom: 0in;">
<b>may fall, but with a hope that they
will not. </b>Lord Atkin in
</div>
<div style="margin-bottom: 0in;">
Andrews v. Director of Public
Prosecutions (1937) AC 576 at
</div>
<div style="margin-bottom: 0in;">
p.583 = 2 All E.R. 552) observed as
under:
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
"Simple lack of care such as will
constitute
</div>
<div style="margin-bottom: 0in;">
civil liability is not enough. For
purposes of the
</div>
<div style="margin-bottom: 0in;">
criminal law there are degrees of
negligence;
</div>
<div style="margin-bottom: 0in;">
and a very high degree of negligence is
</div>
<div style="margin-bottom: 0in;">
required to be proved before the felony
is
</div>
<div style="margin-bottom: 0in;">
established. Probably of all the
epithets that
</div>
<div style="margin-bottom: 0in;">
can be applied 'recklessness' most
nearly
</div>
<div style="margin-bottom: 0in;">
covers the case. It is difficult to
visualize a
</div>
<div style="margin-bottom: 0in;">
case of death caused by reckless
driving in the
</div>
<div style="margin-bottom: 0in;">
connotation of that term in ordinary
speech
</div>
<div style="margin-bottom: 0in;">
which would not justify a conviction
for
</div>
<div style="margin-bottom: 0in;">
manslaughter; but it is probably not
all
</div>
<div style="margin-bottom: 0in;">
embracing, for 'recklessness' suggests
an
</div>
<div style="margin-bottom: 0in;">
indifference to risk whereas the
accused may
</div>
<div style="margin-bottom: 0in;">
have appreciated the risk and intended
to
</div>
<div style="margin-bottom: 0in;">
avoid it, and yet shown in the means
adopted
</div>
<div style="margin-bottom: 0in;">
to avoid the risk such a high degree of
</div>
<div style="margin-bottom: 0in;">
negligence as would justify a
conviction."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6. Section 304-A applies to cases where
there is no
</div>
<div style="margin-bottom: 0in;">
intention to cause death and no
knowledge that the act done
</div>
<div style="margin-bottom: 0in;">
in all probability will cause death.
The provision is directed at
</div>
<div style="margin-bottom: 0in;">
offences outside the range of Sections
299 and 300 IPC. The
</div>
<div style="margin-bottom: 0in;">
provision applies only to such acts
which are rash and
</div>
<div style="margin-bottom: 0in;">
negligent and are directly cause of
death of another person.
</div>
<div style="margin-bottom: 0in;">
Negligence and rashness are essential
elements under Section
</div>
<div style="margin-bottom: 0in;">
304-A. Culpable negligence lies in the
failure to exercise
</div>
<div style="margin-bottom: 0in;">
reasonable and proper care and the
extent of its
</div>
<div style="margin-bottom: 0in;">
reasonableness will always depend upon
the circumstances of
</div>
<div style="margin-bottom: 0in;">
each case. Rashness means doing an act
with the
</div>
<div style="margin-bottom: 0in;">
consciousness of a risk that evil
consequences will follow but
</div>
<div style="margin-bottom: 0in;">
with the hope that it will not.
<span style="color: blue;"><b>Negligence is a breach of duty </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: blue;"><b>imposed by
law.</b></span> <span style="color: purple;"><b>In criminal cases, the
amount and degree of </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>negligence are
determining factors. A question whether the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>accused's
conduct amounted to culpable rashness or </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>negligence
depends directly on the question as to what is the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>amount of care
and circumspection which a prudent and </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>reasonable man
would consider to be sufficient considering all </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>the
circumstances of the case. Criminal rashness means </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>hazarding a
dangerous or wanton act with the knowledge that </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>it is
dangerous or wanton and the further knowledge that it </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>may cause
injury but done without any intention to cause </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>injury or
knowledge that it would probably be caused.</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7. <span style="color: #4c4c4c;"><b>As noted
above, "Rashness" consists in hazarding a </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>dangerous or
wanton act with the knowledge that it is so, and </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>that it may
cause injury. The criminality lies in such a case in </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>running the
risk of doing such an act with recklessness or </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>indifference
as to the consequences. Criminal negligence on </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>the other
hand, is the gross and culpable neglect or failure to </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>exercise that
reasonable and proper care and precaution to </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>guard against
injury either to the public generally or to an </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>individual in
particular, which, having regard to all the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>circumstances
out of which the charge has arisen it was the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>imperative
duty of the accused person to have adopted.</b></span></div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
8. The distinction has been very aptly
pointed out by
</div>
<div style="margin-bottom: 0in;">
Holloway J. in these words:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<b>''Culpable rashness is acting with
the </b>
</div>
<div style="margin-bottom: 0in;">
<b>consciousness that the mischievous
and </b>
</div>
<div style="margin-bottom: 0in;">
<b>illegal consequences may follow, but
with the </b>
</div>
<div style="margin-bottom: 0in;">
<b>hope that they will not, and often
with the </b>
</div>
<div style="margin-bottom: 0in;">
<b>belief that the actor has taken
sufficient </b>
</div>
<div style="margin-bottom: 0in;">
<b>precautions to prevent their
happening. The </b>
</div>
<div style="margin-bottom: 0in;">
<b>imputability arises from acting
despite the </b>
</div>
<div style="margin-bottom: 0in;">
<b>consciousness. Culpable negligence
is acting </b>
</div>
<div style="margin-bottom: 0in;">
<b>without the consciousness that the
illegal and </b>
</div>
<div style="margin-bottom: 0in;">
<b>mischievous effect will follow, but
In </b>
</div>
<div style="margin-bottom: 0in;">
<b>circumstances which show that the
actor has </b>
</div>
<div style="margin-bottom: 0in;">
<b>not exercised the caution incumbent
upon </b>
</div>
<div style="margin-bottom: 0in;">
<b>him and that if he had, he would
have had </b>
</div>
<div style="margin-bottom: 0in;">
<b>the consciousness. The imputability
arises </b>
</div>
<div style="margin-bottom: 0in;">
<b>from the negligence of the civic
duty of </b>
</div>
<div style="margin-bottom: 0in;">
<b>circumspection."</b> (See In
re: Nidamorti
</div>
<div style="margin-bottom: 0in;">
Nagabhusanam 7 Mad. H.C.R. 119)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9. Vehicular accidents resulting in
deaths and injuries are
</div>
<div style="margin-bottom: 0in;">
spiraling.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
10. The Editorial under the heading
"Road Traffic Injuries &
</div>
<div style="margin-bottom: 0in;">
fatalities in India # a modern
epidemic" in Indian J. Med. Res.
</div>
<div style="margin-bottom: 0in;">
123, January 2006 contains some
interesting observations.
</div>
<div style="margin-bottom: 0in;">
The relevant portions read as follows:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"The United Nations General
Assembly
</div>
<div style="margin-bottom: 0in;">
adopted a resolution on road safety on
October
</div>
<div style="margin-bottom: 0in;">
26, 2005 which invites Member States to
</div>
<div style="margin-bottom: 0in;">
implement the recommendations of the
World
</div>
<div style="margin-bottom: 0in;">
Report on Road Traffic Injury
Prevention; to
</div>
<div style="margin-bottom: 0in;">
participate in the first United Nations
Global
</div>
<div style="margin-bottom: 0in;">
Road Safety Week; and to recognize the
third
</div>
<div style="margin-bottom: 0in;">
Sunday in November of every year as the
World
</div>
<div style="margin-bottom: 0in;">
Day of Remembrance for Road Traffic
Victims'.
</div>
<div style="margin-bottom: 0in;">
This resolution follows the publication
of The
</div>
<div style="margin-bottom: 0in;">
World Report on Road Traffic Injury
Prevention
</div>
<div style="margin-bottom: 0in;">
by the World Health Organization in
2004. This
</div>
<div style="margin-bottom: 0in;">
report highlights the fact that all
over the world
</div>
<div style="margin-bottom: 0in;">
working age people are more likely to
suffer
</div>
<div style="margin-bottom: 0in;">
hospitalization, permanent disability
and death
</div>
<div style="margin-bottom: 0in;">
due to road traffic injuries than most
other
</div>
<div style="margin-bottom: 0in;">
diseases. The situation in India is not
very
</div>
<div style="margin-bottom: 0in;">
different.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
About 82,000 persons were killed on
</div>
<div style="margin-bottom: 0in;">
Indian roads in 2002. Official
statistics
</div>
<div style="margin-bottom: 0in;">
regarding serious injuries are not
reliable as
</div>
<div style="margin-bottom: 0in;">
they underestimate the actual number,
but it
</div>
<div style="margin-bottom: 0in;">
is estimated that the number of people
</div>
<div style="margin-bottom: 0in;">
hospitalized may be 15-20 times the
number
</div>
<div style="margin-bottom: 0in;">
killed. In a do-nothing scenario, it is
possible
</div>
<div style="margin-bottom: 0in;">
that India will have 1,20,000 -
1,30,000 road
</div>
<div style="margin-bottom: 0in;">
traffic fatalities in the year 2008 and
possibly
</div>
<div style="margin-bottom: 0in;">
1,50,000 - 1,75,000 in 2015. Our vision
</div>
<div style="margin-bottom: 0in;">
should aim at reducing the fatalities
to less
</div>
<div style="margin-bottom: 0in;">
than 1,00,000 in the short term (2008)
and
</div>
<div style="margin-bottom: 0in;">
less than 70,000 in the long term
(2015).</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>Safety
measures for the near future</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Motor vehicle occupants: (i)
Enforcement
</div>
<div style="margin-bottom: 0in;">
of seatbelt use laws countrywide; (ii)
</div>
<div style="margin-bottom: 0in;">
restricting travel in front seat of
cars by
</div>
<div style="margin-bottom: 0in;">
children has the potential of reducing
injuries
</div>
<div style="margin-bottom: 0in;">
dramatically; and (iii) bus and truck
occupant
</div>
<div style="margin-bottom: 0in;">
injuries, fatalities, and injuries
caused to
</div>
<div style="margin-bottom: 0in;">
other road users can be reduced
significantly
</div>
<div style="margin-bottom: 0in;">
by enforcing strict observance of speed
limit
</div>
<div style="margin-bottom: 0in;">
regulations on highways. Ensuring that
bus
</div>
<div style="margin-bottom: 0in;">
timetables and truck movement schedules
</div>
<div style="margin-bottom: 0in;">
make it possible for drivers to observe
speed
</div>
<div style="margin-bottom: 0in;">
limits with ease. Random speed checking
on
</div>
<div style="margin-bottom: 0in;">
highways would help ensure such
measures.</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>Road
safety strategies - Long term</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Traffic calming and speed control: (i)
</div>
<div style="margin-bottom: 0in;">
Aim at implementing speed control and
traffic
</div>
<div style="margin-bottom: 0in;">
calming measures in all urban areas and
at
</div>
<div style="margin-bottom: 0in;">
appropriate locations on rural highways
by
</div>
<div style="margin-bottom: 0in;">
altering road design, vehicle
monitoring
</div>
<div style="margin-bottom: 0in;">
through intelligent transport systems,
and
</div>
<div style="margin-bottom: 0in;">
vehicle design by the year 2015. This
measure
</div>
<div style="margin-bottom: 0in;">
is likely to give us the maximum
savings in
</div>
<div style="margin-bottom: 0in;">
terms of lives and serious injuries;
and (ii)
</div>
<div style="margin-bottom: 0in;">
segregated lanes for vulnerable road
users
</div>
<div style="margin-bottom: 0in;">
and buses in urban areas. Non-motorized
</div>
<div style="margin-bottom: 0in;">
transport and buses must be provided
</div>
<div style="margin-bottom: 0in;">
segregated lanes on all major arterial
roads in
</div>
<div style="margin-bottom: 0in;">
urban areas. India specific designs
need to be
</div>
<div style="margin-bottom: 0in;">
developed and phase wise implementation
</div>
<div style="margin-bottom: 0in;">
plans drawn up for all cities.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
xxx xxx xxx</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Vehicle safely: (i) All vehicles sold
in
</div>
<div style="margin-bottom: 0in;">
India should meet international
</div>
<div style="margin-bottom: 0in;">
crashworthiness standards by 2010; (ii)
all
</div>
<div style="margin-bottom: 0in;">
buses and trucks should meet pedestrian
</div>
<div style="margin-bottom: 0in;">
impact standards by 2010; (iii) all
urban
</div>
<div style="margin-bottom: 0in;">
buses to have low floors and automatic
</div>
<div style="margin-bottom: 0in;">
closing doors; (iv) crashworthiness
standards
</div>
<div style="margin-bottom: 0in;">
must be developed for all indigenous
vehicles
</div>
<div style="margin-bottom: 0in;">
by 2010 and implemented by 2012; (v)
</div>
<div style="margin-bottom: 0in;">
installation of Intelligent Transport
Systems
</div>
<div style="margin-bottom: 0in;">
(ITS) and other modern safety devices
for
</div>
<div style="margin-bottom: 0in;">
assisting and controlling drivers; and
(vi)
</div>
<div style="margin-bottom: 0in;">
driving under the influence of alcohol
and
</div>
<div style="margin-bottom: 0in;">
other drugs. A long term strategy to
reduce
</div>
<div style="margin-bottom: 0in;">
drinking and driving incidence to less
than 10
</div>
<div style="margin-bottom: 0in;">
per cent of all crashes needs to be
drawn up
</div>
<div style="margin-bottom: 0in;">
for the next 10 yr. Sensitization of
the public
</div>
<div style="margin-bottom: 0in;">
to the extent of the problem.
Institution of
</div>
<div style="margin-bottom: 0in;">
random roadblocks and checking on urban
</div>
<div style="margin-bottom: 0in;">
roads and rural highways. Ignition
interlock
</div>
<div style="margin-bottom: 0in;">
on cars."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
11. In "Global Road Safety"
certain revealing data have also
</div>
<div style="margin-bottom: 0in;">
been provided. They read as follows:-</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"THE COMING PLAGUE OF ROAD TRAFFIC
</div>
<div style="margin-bottom: 0in;">
INJURIES: A PREVENTABLE BURDEN FOR
</div>
<div style="margin-bottom: 0in;">
RICH AND POOR COUNTRIES".</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
12. Almost 1.2 million people are
killed each year and 20-50
</div>
<div style="margin-bottom: 0in;">
million are injured or disabled, most
people are unaware that
</div>
<div style="margin-bottom: 0in;">
road traffic injuries are a leading
cause of death and disability.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. In developing countries, death
rates from vehicle crashes
</div>
<div style="margin-bottom: 0in;">
are rising, and disproportionately high
in relation to the
</div>
<div style="margin-bottom: 0in;">
number of crashes. According to a
report published in 2000
</div>
<div style="margin-bottom: 0in;">
# Developing and transitional countries
cumulatively
</div>
<div style="margin-bottom: 0in;">
represent over 85 percent of all road
traffic deaths</div>
<div style="margin-bottom: 0in;">
# Kenya has nearly 2,000 fatalities per
10,000 crashes.
</div>
<div style="margin-bottom: 0in;">
Vietnam has over 3,000 fatalities per
10,000 crashes.
</div>
<div style="margin-bottom: 0in;">
# 44% of all road traffic deaths occur
in the Asia/Pacific
</div>
<div style="margin-bottom: 0in;">
area, which only has 16 % of the total
number of motor
</div>
<div style="margin-bottom: 0in;">
vehicles.
</div>
<div style="margin-bottom: 0in;">
# At 71,495 and 59,927 total deaths,
China and India,
</div>
<div style="margin-bottom: 0in;">
respectively, had the highest number of
road fatalities in the
</div>
<div style="margin-bottom: 0in;">
world in 1995.-</div>
<div style="margin-bottom: 0in;">
# Pedestrian deaths represent 62 % of
all traffic fatalities
</div>
<div style="margin-bottom: 0in;">
in Lebanon. In most developing
countries vulnerable road
</div>
<div style="margin-bottom: 0in;">
users, including pedestrians, bicycle
and motor cycle riders,
</div>
<div style="margin-bottom: 0in;">
account for the majority of all
fatalities.
</div>
<div style="margin-bottom: 0in;">
# Eastern European countries represent
6% of motor
</div>
<div style="margin-bottom: 0in;">
vehicles, but 11% of crash fatalities
worldwide.
</div>
<div style="margin-bottom: 0in;">
# The Latin America/Caribbean region
has the second
</div>
<div style="margin-bottom: 0in;">
highest crash costs behind Asia.</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
14. As vehicle use in developing
countries are increasing,
</div>
<div style="margin-bottom: 0in;">
road traffic injuries are expected to
become the third leading
</div>
<div style="margin-bottom: 0in;">
cause of death and disability worldwide
by 2020. In developing
</div>
<div style="margin-bottom: 0in;">
countries, each vehicle is much more
lethal than the vehicles
</div>
<div style="margin-bottom: 0in;">
in developed countries, because it most
frequently takes the
</div>
<div style="margin-bottom: 0in;">
lives not of vehicle occupants, but of
vulnerable road users:
</div>
<div style="margin-bottom: 0in;">
pedestrians, cyclists. Many developing
countries are
</div>
<div style="margin-bottom: 0in;">
increasing the rate of motorized
vehicle use at up to 18% per
</div>
<div style="margin-bottom: 0in;">
year. In India, for example, there has
been a 23% increase in
</div>
<div style="margin-bottom: 0in;">
the number of vehicles from 1990-1999
and a 60-fold increase
</div>
<div style="margin-bottom: 0in;">
is predicted by 2050.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
15. The human toll in such accidents is
tragic. Survivors and
</div>
<div style="margin-bottom: 0in;">
family members are affected not only by
an immediate death
</div>
<div style="margin-bottom: 0in;">
or disability, but also lifetime
psychological and physical
</div>
<div style="margin-bottom: 0in;">
suffering. Crashes often result in
orphans, and some victims,
</div>
<div style="margin-bottom: 0in;">
as young as infants, spend the rest of
their lives with medical
</div>
<div style="margin-bottom: 0in;">
facilities.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>ECONOMIC
IMPACT</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
16. In addition to the devastating
human toll, the economic
</div>
<div style="margin-bottom: 0in;">
impact of road crashes is also
enormous. Many of those
</div>
<div style="margin-bottom: 0in;">
injured or killed are wage earners,
leaving families destitute
</div>
<div style="margin-bottom: 0in;">
and without means of support. Loss of
wages, property
</div>
<div style="margin-bottom: 0in;">
damage, and other factors affected by
road traffic crashes
</div>
<div style="margin-bottom: 0in;">
represented 4.6% of the gross national
product of the United
</div>
<div style="margin-bottom: 0in;">
States in 1994. In developing
countries, road traffic crashes
</div>
<div style="margin-bottom: 0in;">
represent 3-5% of the GNP. 'The
estimated annual cost of road
</div>
<div style="margin-bottom: 0in;">
traffic crashes in developing countries
exceeds $100 billion
</div>
<div style="margin-bottom: 0in;">
(US). This amounts to nearly double the
total combined
</div>
<div style="margin-bottom: 0in;">
development assistance these countries
receive every year
</div>
<div style="margin-bottom: 0in;">
from bilateral and multi-lateral
government organizations.
</div>
<div style="margin-bottom: 0in;">
Globally, the estimated annual costs of
road crashes are 500
</div>
<div style="margin-bottom: 0in;">
billion (US).</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>THIS
PROBLEM IS PREVENTABLE</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
17. We have the tools needed to combat
this epidemic. In the
</div>
<div style="margin-bottom: 0in;">
developed nations, proven methods such
as enforcement of
</div>
<div style="margin-bottom: 0in;">
laws regarding driving under the
influence of alcohol or drugs,
</div>
<div style="margin-bottom: 0in;">
reducing speed limits, and requiring
seat belts and restraints
</div>
<div style="margin-bottom: 0in;">
have shown significant reduction in
traffic fatalities. Road
</div>
<div style="margin-bottom: 0in;">
design and road environment, vehicle
design, and road safety
</div>
<div style="margin-bottom: 0in;">
standards are also strategies that
successfully address traffic
</div>
<div style="margin-bottom: 0in;">
safety. For maximum impact of RTI's, a
systems approach
</div>
<div style="margin-bottom: 0in;">
with multiple, scientifically proven
prevention techniques must
</div>
<div style="margin-bottom: 0in;">
be employed. Education alone has been
shown to be less
</div>
<div style="margin-bottom: 0in;">
effective, and often ineffective.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
18. Proven interventions for developed
countries require
</div>
<div style="margin-bottom: 0in;">
research, modification, and testing for
developing countries.
</div>
<div style="margin-bottom: 0in;">
For example, developing countries face
poorly designed and
</div>
<div style="margin-bottom: 0in;">
maintained roadways, unsafe vehicles,
drivers under the
</div>
<div style="margin-bottom: 0in;">
influence of drugs or alcohol, lack of
national policies, and
</div>
<div style="margin-bottom: 0in;">
inadequate enforcement. Success will
require significant new
</div>
<div style="margin-bottom: 0in;">
resources supported by sustained
political commitment.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
19. When the factual scenario of the
present case is
</div>
<div style="margin-bottom: 0in;">
analysed, it is crystal clear that the
appropriate conviction
</div>
<div style="margin-bottom: 0in;">
would be under Section 304 A IPC and
not Section 304 Part II
</div>
<div style="margin-bottom: 0in;">
IPC. Conviction is accordingly altered.
The maximum sentence
</div>
<div style="margin-bottom: 0in;">
which can be imposed for offence
punishable under Section
</div>
<div style="margin-bottom: 0in;">
304A is two years with fine or with
both. The custodial
</div>
<div style="margin-bottom: 0in;">
sentence, therefore, is reduced to the
maximum i.e. two years.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
20. It is contended by the learned
counsel for the State that
</div>
<div style="margin-bottom: 0in;">
in a case of this nature two years
sentence is grossly
</div>
<div style="margin-bottom: 0in;">
inadequate. There is substance in this
submission considering
</div>
<div style="margin-bottom: 0in;">
the increasing number of vehicular
accidents resulting in
</div>
<div style="margin-bottom: 0in;">
death of large number of innocent
persons. <span style="color: magenta;"><b>It is for the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>legislature to
provide for an appropriate sentence. But the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>statute
presently provides for a maximum sentence of two </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>years. </b></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #444444;"><span style="font-family: Trebuchet MS, Verdana, sans-serif;"><span style="font-size: x-small;">21. The
appeal is allowed to the aforesaid extent. </span></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="border-bottom-color: rgb(0, 0, 0); border-bottom-width: 1.1pt; border-style: none none double; margin-bottom: 0in; padding: 0in 0in 0.03in;">
<br />
</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-23199593762196582112013-09-09T15:34:00.000+05:302013-09-09T15:39:43.954+05:30How FIR (First Information of Crime) should be given to police<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="margin-bottom: 0in;">
<a href="http://hareshraichura.blogspot.in/2013/06/how-fir-first-information-of-crime.html">http://hareshraichura.blogspot.in/2013/06/how-fir-first-information-of-crime.html</a>
</div>
<br />
<br />
<br />
<br />
<div style="line-height: 140%; margin-bottom: 0in;">
<span style="color: #222222;"><span style="font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif;"><span style="font-size: small;">The
law does not prescribe in which FORM First Information of Report of
Crime (FIR) should be given to police.<br /><br />But the police is
required to write down this information in a specific Form called
FIR.<br /><br />When you give information of any crime to police, the
complaint will look good if it contains following:<br /><br />1)
Who are you who is giving this information? You should give your full
name address mobile number etc in complaint.<br /><br />2) What has
happened? If a crime has happened, details should be described.<br /><br />3)
When this happened? Time.<br /><br />4) Where this happened? How
much kilometre away from Police Station, approximately?<br />This
will help police to decide whether he has territorial jurisdiction to
investigate crime.<br /><br /><br />5) Who did what to whom? How?<br />Here
say who did what to whom. If you know names of accused, give name. If
you do not know names, say unknown persons. Try to describe them if
possible.<br /><br />6) Names of Accused and their address: Give
details if you know.<br /><br /><br /><b>NOW MOST IMPORTANT: Write
down time of giving this information, sign it and hand it over to
police</b><br /><br />If time of giving complaint is written, a sort of
timer will start on police. If police delays registering complaint or
delays taking action, later, he can be pulled up by court. Superior
officer as well as court can ask explanation for delay in registering
FIR. This is a check.<br /><br />Ask for a copy of registered FIR. Once a
FIR is registered, its copy can be obtained by paying prescribed
fee.<br /><br />Compare, whether everything you stated has been written
down in FIR. If police has missed out some important point, seek
advice of lawyer for further steps.<br /><br />Haresh Raichura<br />11/6/13</span></span></span></div>
<br />
<br />
<br />
<br /></div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-34477572523569979292013-09-09T15:31:00.001+05:302013-09-09T15:39:43.958+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="margin-bottom: 0in;">
<span style="color: #c00000;"><span style="font-family: Times New Roman;"><b>Head
Notes</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Allowing the appeal in part, the court</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
HELD: 1.1. Section 304A of the Penal
Code, 1860. applies to rash and negligent acts and does not apply to
causes where death has been voluntarily caused. This Section
obviously does not apply to cases where there is an intention to
cause death or knowledge that the act will in all probability cause
death. It only applies to cases in which without any such intention
or knowledge death is caused by what is described as a rash and
negligent act.
</div>
<div style="margin-bottom: 0in;">
[Para 5] [1145-b-c]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
1.2. A negligent act is an act done
without doing something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs
would do or act which a prudent or reasonable man would not do in the
circumstances attending it. A rash act is a negligent act done
precipitately. Negligence is the genes of which rashness is the
species. <b>It has sometimes been observed that in rashness the
action is done precipitately that the mischievous or illegal
consequences may fall, but with a hope that they will not</b>. [Para
5] [1145-c-d]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Andrews v. Director of Public
Prosecution, (1937) AC 576, referred to.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2. Negligence and rashness are
essential elements under Section 304A. <span style="color: #eb613d;"><b>Culpable
negligences lies in the failure to exercise reasonable and proper
care and the extent of its reasonableness will always depend upon the
circumstances of each case</b></span>. <span style="color: #2323dc;"><b>Rashness
means doing an act with the consciousness of a risk that evil
consequences will follow but with the hope that it will not.
</b></span><span style="color: magenta;"><b>Negligence is a breach of duty
imposed by law.</b></span> <span style="color: #00cccc;"><b>In a criminal
case, the amount and degree of negligence are determining factors.
The question whether the conduct of the accused amounted to culpable
rashness or negligence depends directly on the question as to what is
the amount of care and circumspection which a prudent and reasonable
man would consider to be sufficient considering all the circumstances
of the case.</b></span> <span style="color: maroon;"><b>Criminal rashness
means hazarding a dangerous or wanton act with the knowledge that it
may cause injury but done without any intention to cause injury or
knowledge that it would probably be caused. </b></span>[Para 6]
[1145-h; 1146-a-c]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. <b>"Rashness" consists in
hazarding a dangerous or wanton act with the knowledge that it is so
and that it may cause injury. The criminality in such a case lies in
running the risk of doing such an act with recklessness or
indifference as to the consequences. </b><span style="color: red;">Criminal
negligence, on the other hand, is the gross and culpable neglect or
failure to exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an
individual in particular, which, having regard to all the
circumstances out of which the change has arisen, it was the
imperative duty of the accused person to have adopted.</span> [Para
7] [1146-d-e]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
In Re: Nidamorti Nagabhusanam 7 Mad
H.C.R.119, referred to.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. When the factual scenario of the
present case is analyzed, it is crystal clear that the appropriate
conviction would be under Section 304A IPC and not under Section 304
Part II IPC. Conviction is accordingly altered. The maximum sentences
which can be imposed for an offence punishable under Section 304A is
two years with fine or with both. The custodial sentences, therefore,
is reduced to the maximum i.e. two years.
</div>
<div style="margin-bottom: 0in;">
[Para 19] [1150-g]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Venkat Subramaniam T.R. and Ramesh Babu
M.R. for the Appellant.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
R. Sathish and M.T. George for the
Respondent.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #c00000;"><span style="font-family: Times New Roman;"><b>Subject</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Penal Code, 1860:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Section 304A-Causing death by
negligence-Negligence and rashness-Essential attributes
of-Distinction between knowledge and intention-A boy aged 10 years
was run over by a bus driven by the accused-Trial court found that no
intention had been proved but, at the same time, held that the
accused acted with the knowledge that it was likely to cause
death-Hence, the accused was convicted under S.304 part II-High Court
confirmed the conviction-Correctness of-Held:S.304A applies to rash
and negligent acts and does not apply to cases where death has been
voluntarily caused-This section does not apply to cases where there
is an intention to cause death or knowledge that the act will in all
probability cause death-A rash act is a negligent act done
precipitately-Negligence is the genes of which rashness is the
species-Negligence and rashness are essential elements under
S.304A-Culpable negligence lies in the failure to exercise reasonable
and proper care-Rashness means doing an act with the consciousness of
a risk-In a criminal case, the amount and degree of negligence are
determining factors-Whether the conduct of the accused amounted to
culpable rashness or negligence depends directly on the amount of
care and circumspection which a prudent and reasonable man would
consider to be sufficient considering all the circumstances of the
case-Criminal rashness means an act done without any intention to
cause injury or knowledge that it would probably be caused-On facts,
conviction is under S.304A and not under S.304 Part II-Conviction
altered to one under S.304A.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Words and Phrases:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"negligence" and
"rashness"-Meaning of-In the context of Section 304A of the
Penal Code, 1860.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
According to the prosecution, a boy
aged 10 years was run over by a bus driven by the appellant-accused.
During the investigation it was revealed that the bus was being
driven with a very high speed and therefore, the appellant was
charged under Section 302 of the Penal Code, 1860.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
The trial court found that no intention
had been proved in the case, but, at the same time, held that the
accused acted with the knowledge that it was likely to cause death.
Hence, the trial court held that the act committed by the appellant
was culpable homicide not amounting to murder punishable under
Section 304 Part II IPC and sentenced him to undergo rigorous
imprisonment for five years. The High Court did not accept the stand
that the case was covered under Section 304A IPC and confirmed the
conviction. Hence the appeal.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: maroon;"><span style="font-family: Times New Roman;"><b>Citation</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2007 AIR 2378, 2007(7 )SCR1141, ,
2007(8 )SCALE605 , 2007(9 )JT346
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: maroon;"><span style="font-family: Times New Roman;"><b>Judgement</b></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
CASE NO.:</div>
<div style="margin-bottom: 0in;">
Appeal (crl.) 775 of 2005</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
PETITIONER:</div>
<div style="margin-bottom: 0in;">
Prabhakaran</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
RESPONDENT:</div>
<div style="margin-bottom: 0in;">
State of Kerala</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
DATE OF JUDGMENT: 21/06/2007</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
BENCH:</div>
<div style="margin-bottom: 0in;">
Dr. ARIJIT PASAYAT & D.K. JAIN</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
JUDGMENT:</div>
<div style="margin-bottom: 0in;">
J U D G M E N T</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Dr. ARIJIT PASAYAT, J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
1. Challenge in this appeal is to the
order passed by the
</div>
<div style="margin-bottom: 0in;">
learned Single Judge of the Kerala High
Court. By the
</div>
<div style="margin-bottom: 0in;">
impugned order the appellant was found
guilty of the offence
</div>
<div style="margin-bottom: 0in;">
punishable under Section 304 Part II of
the Indian Penal Code,
</div>
<div style="margin-bottom: 0in;">
1860 (in short 'IPC'). Learned
Sessions Judge, Kozhikode, had
</div>
<div style="margin-bottom: 0in;">
convicted the appellant for the offence
punishable under
</div>
<div style="margin-bottom: 0in;">
Section 304 Part II IPC. The High
Court found the same to be
</div>
<div style="margin-bottom: 0in;">
in order. Custodial sentence of five
years was confirmed.
</div>
<div style="margin-bottom: 0in;">
2. The background facts in a nutshell
are as follows:
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
A boy aged 10 years residing in a
hostel of the Tribal
</div>
<div style="margin-bottom: 0in;">
Welfare Department, while he was a
student of 4th standard in
</div>
<div style="margin-bottom: 0in;">
a nearby school, was run over by a bus
driven by the appellant
</div>
<div style="margin-bottom: 0in;">
in the middle of the road. The
investigation by the police
</div>
<div style="margin-bottom: 0in;">
revealed that there was evidence to the
effect that even the
</div>
<div style="margin-bottom: 0in;">
passengers in the bus were alarmed of
the enormous speed in
</div>
<div style="margin-bottom: 0in;">
which it was being driven and had
cautioned the driver to stop
</div>
<div style="margin-bottom: 0in;">
even crying, as they had seen the
school children crossing the
</div>
<div style="margin-bottom: 0in;">
road in a queue. The investigation
also revealed that even the
</div>
<div style="margin-bottom: 0in;">
children crossing the road had raised
both hands for stopping
</div>
<div style="margin-bottom: 0in;">
the vehicle. The passengers and
pedestrians were of the view
</div>
<div style="margin-bottom: 0in;">
that the bus was being driven at a high
speed and that they
</div>
<div style="margin-bottom: 0in;">
had cried aloud to stop the bus. It
was, in spite of all these,
</div>
<div style="margin-bottom: 0in;">
that the bus ran over the said student
on his head and the
</div>
<div style="margin-bottom: 0in;">
bus could be stopped only 15 to 20 feet
ahead of the spot of
</div>
<div style="margin-bottom: 0in;">
occurrence. In the light of the said
evidence, the investigating
</div>
<div style="margin-bottom: 0in;">
officer felt that there was real
intention on the part of the
</div>
<div style="margin-bottom: 0in;">
appellant/driver of the bus to cause
death of persons to whom
</div>
<div style="margin-bottom: 0in;">
harm may be caused by reason of hitting
the bus and he was
</div>
<div style="margin-bottom: 0in;">
charged with offence punishable under
Section 302 IPC. The
</div>
<div style="margin-bottom: 0in;">
court below found that no intention had
been proved in the
</div>
<div style="margin-bottom: 0in;">
case. But, at the same time, the
accused acted with the
</div>
<div style="margin-bottom: 0in;">
knowledge that it was likely to cause
death. So, the act
</div>
<div style="margin-bottom: 0in;">
committed by the appellant was culpable
homicide not
</div>
<div style="margin-bottom: 0in;">
amounting to murder punishable under
Section 304 Part II
</div>
<div style="margin-bottom: 0in;">
IPC. Convicting him for the said
offence, he was sentenced to
</div>
<div style="margin-bottom: 0in;">
undergo rigorous imprisonment for five
years and to pay a fine
</div>
<div style="margin-bottom: 0in;">
of Rs.15,000/- with a default sentence
of imprisonment for
</div>
<div style="margin-bottom: 0in;">
three years. This was assailed in
appeal.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. The High Court did not find any
substance in the plea of
</div>
<div style="margin-bottom: 0in;">
the appellant that the accused had not
caused death either
</div>
<div style="margin-bottom: 0in;">
with the intention of causing death or
with the intention to
</div>
<div style="margin-bottom: 0in;">
cause such bodily injury as is likely
to cause death or with the
</div>
<div style="margin-bottom: 0in;">
knowledge that he is likely to cause
such act to cause the
</div>
<div style="margin-bottom: 0in;">
death. It was submitted that case is
covered under Section
</div>
<div style="margin-bottom: 0in;">
304A IPC. Same was not accepted. So,
it was held that this is
</div>
<div style="margin-bottom: 0in;">
a case of culpable homicide. It
accepted the stand of the
</div>
<div style="margin-bottom: 0in;">
respondent-State that conviction is to
be made for culpable
</div>
<div style="margin-bottom: 0in;">
homicide.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. The respective stand taken before
the High Court was re-</div>
<div style="margin-bottom: 0in;">
iterated in this appeal.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
5. Section 304A speaks of causing death
by negligence.
</div>
<div style="margin-bottom: 0in;">
This section applies to rash and
negligence acts and does not
</div>
<div style="margin-bottom: 0in;">
apply to cases where death has been
voluntarily caused. This
</div>
<div style="margin-bottom: 0in;">
section obviously does not apply to
cases where there is an
</div>
<div style="margin-bottom: 0in;">
intention to cause death or knowledge
that the act will in all
</div>
<div style="margin-bottom: 0in;">
probability cause death. It only
applies to cases in which
</div>
<div style="margin-bottom: 0in;">
without any such intention or knowledge
death is caused by
</div>
<div style="margin-bottom: 0in;">
what is described as a rash and
negligent act. <b>A negligent act </b>
</div>
<div style="margin-bottom: 0in;">
<b>is an act done without doing
something which a reasonable </b>
</div>
<div style="margin-bottom: 0in;">
<b>man guided upon those considerations
which ordinarily </b>
</div>
<div style="margin-bottom: 0in;">
<b>regulate the conduct of human
affairs would do or act which a </b>
</div>
<div style="margin-bottom: 0in;">
<b>prudent or reasonable man would not
do in the circumstances </b>
</div>
<div style="margin-bottom: 0in;">
<b>attending it. A rash act is a
negligent act done precipitately. </b>
</div>
<div style="margin-bottom: 0in;">
<b>Negligence is the genes, of which
rashness is the species. It </b>
</div>
<div style="margin-bottom: 0in;">
<b>has sometimes been observed that in
rashness the action is </b>
</div>
<div style="margin-bottom: 0in;">
<b>done precipitately that the
mischievous or illegal consequences </b>
</div>
<div style="margin-bottom: 0in;">
<b>may fall, but with a hope that they
will not. </b>Lord Atkin in
</div>
<div style="margin-bottom: 0in;">
Andrews v. Director of Public
Prosecutions (1937) AC 576 at
</div>
<div style="margin-bottom: 0in;">
p.583 = 2 All E.R. 552) observed as
under:
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
"Simple lack of care such as will
constitute
</div>
<div style="margin-bottom: 0in;">
civil liability is not enough. For
purposes of the
</div>
<div style="margin-bottom: 0in;">
criminal law there are degrees of
negligence;
</div>
<div style="margin-bottom: 0in;">
and a very high degree of negligence is
</div>
<div style="margin-bottom: 0in;">
required to be proved before the felony
is
</div>
<div style="margin-bottom: 0in;">
established. Probably of all the
epithets that
</div>
<div style="margin-bottom: 0in;">
can be applied 'recklessness' most
nearly
</div>
<div style="margin-bottom: 0in;">
covers the case. It is difficult to
visualize a
</div>
<div style="margin-bottom: 0in;">
case of death caused by reckless
driving in the
</div>
<div style="margin-bottom: 0in;">
connotation of that term in ordinary
speech
</div>
<div style="margin-bottom: 0in;">
which would not justify a conviction
for
</div>
<div style="margin-bottom: 0in;">
manslaughter; but it is probably not
all
</div>
<div style="margin-bottom: 0in;">
embracing, for 'recklessness' suggests
an
</div>
<div style="margin-bottom: 0in;">
indifference to risk whereas the
accused may
</div>
<div style="margin-bottom: 0in;">
have appreciated the risk and intended
to
</div>
<div style="margin-bottom: 0in;">
avoid it, and yet shown in the means
adopted
</div>
<div style="margin-bottom: 0in;">
to avoid the risk such a high degree of
</div>
<div style="margin-bottom: 0in;">
negligence as would justify a
conviction."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6. Section 304-A applies to cases where
there is no
</div>
<div style="margin-bottom: 0in;">
intention to cause death and no
knowledge that the act done
</div>
<div style="margin-bottom: 0in;">
in all probability will cause death.
The provision is directed at
</div>
<div style="margin-bottom: 0in;">
offences outside the range of Sections
299 and 300 IPC. The
</div>
<div style="margin-bottom: 0in;">
provision applies only to such acts
which are rash and
</div>
<div style="margin-bottom: 0in;">
negligent and are directly cause of
death of another person.
</div>
<div style="margin-bottom: 0in;">
Negligence and rashness are essential
elements under Section
</div>
<div style="margin-bottom: 0in;">
304-A. Culpable negligence lies in the
failure to exercise
</div>
<div style="margin-bottom: 0in;">
reasonable and proper care and the
extent of its
</div>
<div style="margin-bottom: 0in;">
reasonableness will always depend upon
the circumstances of
</div>
<div style="margin-bottom: 0in;">
each case. Rashness means doing an act
with the
</div>
<div style="margin-bottom: 0in;">
consciousness of a risk that evil
consequences will follow but
</div>
<div style="margin-bottom: 0in;">
with the hope that it will not.
<span style="color: blue;"><b>Negligence is a breach of duty </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: blue;"><b>imposed by
law.</b></span> <span style="color: purple;"><b>In criminal cases, the
amount and degree of </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>negligence are
determining factors. A question whether the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>accused's
conduct amounted to culpable rashness or </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>negligence
depends directly on the question as to what is the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>amount of care
and circumspection which a prudent and </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>reasonable man
would consider to be sufficient considering all </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>the
circumstances of the case. Criminal rashness means </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>hazarding a
dangerous or wanton act with the knowledge that </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>it is
dangerous or wanton and the further knowledge that it </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>may cause
injury but done without any intention to cause </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: purple;"><b>injury or
knowledge that it would probably be caused.</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7. <span style="color: #4c4c4c;"><b>As noted
above, "Rashness" consists in hazarding a </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>dangerous or
wanton act with the knowledge that it is so, and </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>that it may
cause injury. The criminality lies in such a case in </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>running the
risk of doing such an act with recklessness or </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>indifference
as to the consequences. Criminal negligence on </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>the other
hand, is the gross and culpable neglect or failure to </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>exercise that
reasonable and proper care and precaution to </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>guard against
injury either to the public generally or to an </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>individual in
particular, which, having regard to all the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>circumstances
out of which the charge has arisen it was the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: #4c4c4c;"><b>imperative
duty of the accused person to have adopted.</b></span></div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
8. The distinction has been very aptly
pointed out by
</div>
<div style="margin-bottom: 0in;">
Holloway J. in these words:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<b>''Culpable rashness is acting with
the </b>
</div>
<div style="margin-bottom: 0in;">
<b>consciousness that the mischievous
and </b>
</div>
<div style="margin-bottom: 0in;">
<b>illegal consequences may follow, but
with the </b>
</div>
<div style="margin-bottom: 0in;">
<b>hope that they will not, and often
with the </b>
</div>
<div style="margin-bottom: 0in;">
<b>belief that the actor has taken
sufficient </b>
</div>
<div style="margin-bottom: 0in;">
<b>precautions to prevent their
happening. The </b>
</div>
<div style="margin-bottom: 0in;">
<b>imputability arises from acting
despite the </b>
</div>
<div style="margin-bottom: 0in;">
<b>consciousness. Culpable negligence
is acting </b>
</div>
<div style="margin-bottom: 0in;">
<b>without the consciousness that the
illegal and </b>
</div>
<div style="margin-bottom: 0in;">
<b>mischievous effect will follow, but
In </b>
</div>
<div style="margin-bottom: 0in;">
<b>circumstances which show that the
actor has </b>
</div>
<div style="margin-bottom: 0in;">
<b>not exercised the caution incumbent
upon </b>
</div>
<div style="margin-bottom: 0in;">
<b>him and that if he had, he would
have had </b>
</div>
<div style="margin-bottom: 0in;">
<b>the consciousness. The imputability
arises </b>
</div>
<div style="margin-bottom: 0in;">
<b>from the negligence of the civic
duty of </b>
</div>
<div style="margin-bottom: 0in;">
<b>circumspection."</b> (See In
re: Nidamorti
</div>
<div style="margin-bottom: 0in;">
Nagabhusanam 7 Mad. H.C.R. 119)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9. Vehicular accidents resulting in
deaths and injuries are
</div>
<div style="margin-bottom: 0in;">
spiraling.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
10. The Editorial under the heading
"Road Traffic Injuries &
</div>
<div style="margin-bottom: 0in;">
fatalities in India # a modern
epidemic" in Indian J. Med. Res.
</div>
<div style="margin-bottom: 0in;">
123, January 2006 contains some
interesting observations.
</div>
<div style="margin-bottom: 0in;">
The relevant portions read as follows:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"The United Nations General
Assembly
</div>
<div style="margin-bottom: 0in;">
adopted a resolution on road safety on
October
</div>
<div style="margin-bottom: 0in;">
26, 2005 which invites Member States to
</div>
<div style="margin-bottom: 0in;">
implement the recommendations of the
World
</div>
<div style="margin-bottom: 0in;">
Report on Road Traffic Injury
Prevention; to
</div>
<div style="margin-bottom: 0in;">
participate in the first United Nations
Global
</div>
<div style="margin-bottom: 0in;">
Road Safety Week; and to recognize the
third
</div>
<div style="margin-bottom: 0in;">
Sunday in November of every year as the
World
</div>
<div style="margin-bottom: 0in;">
Day of Remembrance for Road Traffic
Victims'.
</div>
<div style="margin-bottom: 0in;">
This resolution follows the publication
of The
</div>
<div style="margin-bottom: 0in;">
World Report on Road Traffic Injury
Prevention
</div>
<div style="margin-bottom: 0in;">
by the World Health Organization in
2004. This
</div>
<div style="margin-bottom: 0in;">
report highlights the fact that all
over the world
</div>
<div style="margin-bottom: 0in;">
working age people are more likely to
suffer
</div>
<div style="margin-bottom: 0in;">
hospitalization, permanent disability
and death
</div>
<div style="margin-bottom: 0in;">
due to road traffic injuries than most
other
</div>
<div style="margin-bottom: 0in;">
diseases. The situation in India is not
very
</div>
<div style="margin-bottom: 0in;">
different.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
About 82,000 persons were killed on
</div>
<div style="margin-bottom: 0in;">
Indian roads in 2002. Official
statistics
</div>
<div style="margin-bottom: 0in;">
regarding serious injuries are not
reliable as
</div>
<div style="margin-bottom: 0in;">
they underestimate the actual number,
but it
</div>
<div style="margin-bottom: 0in;">
is estimated that the number of people
</div>
<div style="margin-bottom: 0in;">
hospitalized may be 15-20 times the
number
</div>
<div style="margin-bottom: 0in;">
killed. In a do-nothing scenario, it is
possible
</div>
<div style="margin-bottom: 0in;">
that India will have 1,20,000 -
1,30,000 road
</div>
<div style="margin-bottom: 0in;">
traffic fatalities in the year 2008 and
possibly
</div>
<div style="margin-bottom: 0in;">
1,50,000 - 1,75,000 in 2015. Our vision
</div>
<div style="margin-bottom: 0in;">
should aim at reducing the fatalities
to less
</div>
<div style="margin-bottom: 0in;">
than 1,00,000 in the short term (2008)
and
</div>
<div style="margin-bottom: 0in;">
less than 70,000 in the long term
(2015).</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>Safety
measures for the near future</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Motor vehicle occupants: (i)
Enforcement
</div>
<div style="margin-bottom: 0in;">
of seatbelt use laws countrywide; (ii)
</div>
<div style="margin-bottom: 0in;">
restricting travel in front seat of
cars by
</div>
<div style="margin-bottom: 0in;">
children has the potential of reducing
injuries
</div>
<div style="margin-bottom: 0in;">
dramatically; and (iii) bus and truck
occupant
</div>
<div style="margin-bottom: 0in;">
injuries, fatalities, and injuries
caused to
</div>
<div style="margin-bottom: 0in;">
other road users can be reduced
significantly
</div>
<div style="margin-bottom: 0in;">
by enforcing strict observance of speed
limit
</div>
<div style="margin-bottom: 0in;">
regulations on highways. Ensuring that
bus
</div>
<div style="margin-bottom: 0in;">
timetables and truck movement schedules
</div>
<div style="margin-bottom: 0in;">
make it possible for drivers to observe
speed
</div>
<div style="margin-bottom: 0in;">
limits with ease. Random speed checking
on
</div>
<div style="margin-bottom: 0in;">
highways would help ensure such
measures.</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>Road
safety strategies - Long term</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Traffic calming and speed control: (i)
</div>
<div style="margin-bottom: 0in;">
Aim at implementing speed control and
traffic
</div>
<div style="margin-bottom: 0in;">
calming measures in all urban areas and
at
</div>
<div style="margin-bottom: 0in;">
appropriate locations on rural highways
by
</div>
<div style="margin-bottom: 0in;">
altering road design, vehicle
monitoring
</div>
<div style="margin-bottom: 0in;">
through intelligent transport systems,
and
</div>
<div style="margin-bottom: 0in;">
vehicle design by the year 2015. This
measure
</div>
<div style="margin-bottom: 0in;">
is likely to give us the maximum
savings in
</div>
<div style="margin-bottom: 0in;">
terms of lives and serious injuries;
and (ii)
</div>
<div style="margin-bottom: 0in;">
segregated lanes for vulnerable road
users
</div>
<div style="margin-bottom: 0in;">
and buses in urban areas. Non-motorized
</div>
<div style="margin-bottom: 0in;">
transport and buses must be provided
</div>
<div style="margin-bottom: 0in;">
segregated lanes on all major arterial
roads in
</div>
<div style="margin-bottom: 0in;">
urban areas. India specific designs
need to be
</div>
<div style="margin-bottom: 0in;">
developed and phase wise implementation
</div>
<div style="margin-bottom: 0in;">
plans drawn up for all cities.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
xxx xxx xxx</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Vehicle safely: (i) All vehicles sold
in
</div>
<div style="margin-bottom: 0in;">
India should meet international
</div>
<div style="margin-bottom: 0in;">
crashworthiness standards by 2010; (ii)
all
</div>
<div style="margin-bottom: 0in;">
buses and trucks should meet pedestrian
</div>
<div style="margin-bottom: 0in;">
impact standards by 2010; (iii) all
urban
</div>
<div style="margin-bottom: 0in;">
buses to have low floors and automatic
</div>
<div style="margin-bottom: 0in;">
closing doors; (iv) crashworthiness
standards
</div>
<div style="margin-bottom: 0in;">
must be developed for all indigenous
vehicles
</div>
<div style="margin-bottom: 0in;">
by 2010 and implemented by 2012; (v)
</div>
<div style="margin-bottom: 0in;">
installation of Intelligent Transport
Systems
</div>
<div style="margin-bottom: 0in;">
(ITS) and other modern safety devices
for
</div>
<div style="margin-bottom: 0in;">
assisting and controlling drivers; and
(vi)
</div>
<div style="margin-bottom: 0in;">
driving under the influence of alcohol
and
</div>
<div style="margin-bottom: 0in;">
other drugs. A long term strategy to
reduce
</div>
<div style="margin-bottom: 0in;">
drinking and driving incidence to less
than 10
</div>
<div style="margin-bottom: 0in;">
per cent of all crashes needs to be
drawn up
</div>
<div style="margin-bottom: 0in;">
for the next 10 yr. Sensitization of
the public
</div>
<div style="margin-bottom: 0in;">
to the extent of the problem.
Institution of
</div>
<div style="margin-bottom: 0in;">
random roadblocks and checking on urban
</div>
<div style="margin-bottom: 0in;">
roads and rural highways. Ignition
interlock
</div>
<div style="margin-bottom: 0in;">
on cars."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
11. In "Global Road Safety"
certain revealing data have also
</div>
<div style="margin-bottom: 0in;">
been provided. They read as follows:-</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"THE COMING PLAGUE OF ROAD TRAFFIC
</div>
<div style="margin-bottom: 0in;">
INJURIES: A PREVENTABLE BURDEN FOR
</div>
<div style="margin-bottom: 0in;">
RICH AND POOR COUNTRIES".</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
12. Almost 1.2 million people are
killed each year and 20-50
</div>
<div style="margin-bottom: 0in;">
million are injured or disabled, most
people are unaware that
</div>
<div style="margin-bottom: 0in;">
road traffic injuries are a leading
cause of death and disability.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. In developing countries, death
rates from vehicle crashes
</div>
<div style="margin-bottom: 0in;">
are rising, and disproportionately high
in relation to the
</div>
<div style="margin-bottom: 0in;">
number of crashes. According to a
report published in 2000
</div>
<div style="margin-bottom: 0in;">
# Developing and transitional countries
cumulatively
</div>
<div style="margin-bottom: 0in;">
represent over 85 percent of all road
traffic deaths</div>
<div style="margin-bottom: 0in;">
# Kenya has nearly 2,000 fatalities per
10,000 crashes.
</div>
<div style="margin-bottom: 0in;">
Vietnam has over 3,000 fatalities per
10,000 crashes.
</div>
<div style="margin-bottom: 0in;">
# 44% of all road traffic deaths occur
in the Asia/Pacific
</div>
<div style="margin-bottom: 0in;">
area, which only has 16 % of the total
number of motor
</div>
<div style="margin-bottom: 0in;">
vehicles.
</div>
<div style="margin-bottom: 0in;">
# At 71,495 and 59,927 total deaths,
China and India,
</div>
<div style="margin-bottom: 0in;">
respectively, had the highest number of
road fatalities in the
</div>
<div style="margin-bottom: 0in;">
world in 1995.-</div>
<div style="margin-bottom: 0in;">
# Pedestrian deaths represent 62 % of
all traffic fatalities
</div>
<div style="margin-bottom: 0in;">
in Lebanon. In most developing
countries vulnerable road
</div>
<div style="margin-bottom: 0in;">
users, including pedestrians, bicycle
and motor cycle riders,
</div>
<div style="margin-bottom: 0in;">
account for the majority of all
fatalities.
</div>
<div style="margin-bottom: 0in;">
# Eastern European countries represent
6% of motor
</div>
<div style="margin-bottom: 0in;">
vehicles, but 11% of crash fatalities
worldwide.
</div>
<div style="margin-bottom: 0in;">
# The Latin America/Caribbean region
has the second
</div>
<div style="margin-bottom: 0in;">
highest crash costs behind Asia.</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
14. As vehicle use in developing
countries are increasing,
</div>
<div style="margin-bottom: 0in;">
road traffic injuries are expected to
become the third leading
</div>
<div style="margin-bottom: 0in;">
cause of death and disability worldwide
by 2020. In developing
</div>
<div style="margin-bottom: 0in;">
countries, each vehicle is much more
lethal than the vehicles
</div>
<div style="margin-bottom: 0in;">
in developed countries, because it most
frequently takes the
</div>
<div style="margin-bottom: 0in;">
lives not of vehicle occupants, but of
vulnerable road users:
</div>
<div style="margin-bottom: 0in;">
pedestrians, cyclists. Many developing
countries are
</div>
<div style="margin-bottom: 0in;">
increasing the rate of motorized
vehicle use at up to 18% per
</div>
<div style="margin-bottom: 0in;">
year. In India, for example, there has
been a 23% increase in
</div>
<div style="margin-bottom: 0in;">
the number of vehicles from 1990-1999
and a 60-fold increase
</div>
<div style="margin-bottom: 0in;">
is predicted by 2050.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
15. The human toll in such accidents is
tragic. Survivors and
</div>
<div style="margin-bottom: 0in;">
family members are affected not only by
an immediate death
</div>
<div style="margin-bottom: 0in;">
or disability, but also lifetime
psychological and physical
</div>
<div style="margin-bottom: 0in;">
suffering. Crashes often result in
orphans, and some victims,
</div>
<div style="margin-bottom: 0in;">
as young as infants, spend the rest of
their lives with medical
</div>
<div style="margin-bottom: 0in;">
facilities.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>ECONOMIC
IMPACT</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
16. In addition to the devastating
human toll, the economic
</div>
<div style="margin-bottom: 0in;">
impact of road crashes is also
enormous. Many of those
</div>
<div style="margin-bottom: 0in;">
injured or killed are wage earners,
leaving families destitute
</div>
<div style="margin-bottom: 0in;">
and without means of support. Loss of
wages, property
</div>
<div style="margin-bottom: 0in;">
damage, and other factors affected by
road traffic crashes
</div>
<div style="margin-bottom: 0in;">
represented 4.6% of the gross national
product of the United
</div>
<div style="margin-bottom: 0in;">
States in 1994. In developing
countries, road traffic crashes
</div>
<div style="margin-bottom: 0in;">
represent 3-5% of the GNP. 'The
estimated annual cost of road
</div>
<div style="margin-bottom: 0in;">
traffic crashes in developing countries
exceeds $100 billion
</div>
<div style="margin-bottom: 0in;">
(US). This amounts to nearly double the
total combined
</div>
<div style="margin-bottom: 0in;">
development assistance these countries
receive every year
</div>
<div style="margin-bottom: 0in;">
from bilateral and multi-lateral
government organizations.
</div>
<div style="margin-bottom: 0in;">
Globally, the estimated annual costs of
road crashes are 500
</div>
<div style="margin-bottom: 0in;">
billion (US).</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #ff3366;"><span style="font-size: large;"><b>THIS
PROBLEM IS PREVENTABLE</b></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
17. We have the tools needed to combat
this epidemic. In the
</div>
<div style="margin-bottom: 0in;">
developed nations, proven methods such
as enforcement of
</div>
<div style="margin-bottom: 0in;">
laws regarding driving under the
influence of alcohol or drugs,
</div>
<div style="margin-bottom: 0in;">
reducing speed limits, and requiring
seat belts and restraints
</div>
<div style="margin-bottom: 0in;">
have shown significant reduction in
traffic fatalities. Road
</div>
<div style="margin-bottom: 0in;">
design and road environment, vehicle
design, and road safety
</div>
<div style="margin-bottom: 0in;">
standards are also strategies that
successfully address traffic
</div>
<div style="margin-bottom: 0in;">
safety. For maximum impact of RTI's, a
systems approach
</div>
<div style="margin-bottom: 0in;">
with multiple, scientifically proven
prevention techniques must
</div>
<div style="margin-bottom: 0in;">
be employed. Education alone has been
shown to be less
</div>
<div style="margin-bottom: 0in;">
effective, and often ineffective.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
18. Proven interventions for developed
countries require
</div>
<div style="margin-bottom: 0in;">
research, modification, and testing for
developing countries.
</div>
<div style="margin-bottom: 0in;">
For example, developing countries face
poorly designed and
</div>
<div style="margin-bottom: 0in;">
maintained roadways, unsafe vehicles,
drivers under the
</div>
<div style="margin-bottom: 0in;">
influence of drugs or alcohol, lack of
national policies, and
</div>
<div style="margin-bottom: 0in;">
inadequate enforcement. Success will
require significant new
</div>
<div style="margin-bottom: 0in;">
resources supported by sustained
political commitment.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
19. When the factual scenario of the
present case is
</div>
<div style="margin-bottom: 0in;">
analysed, it is crystal clear that the
appropriate conviction
</div>
<div style="margin-bottom: 0in;">
would be under Section 304 A IPC and
not Section 304 Part II
</div>
<div style="margin-bottom: 0in;">
IPC. Conviction is accordingly altered.
The maximum sentence
</div>
<div style="margin-bottom: 0in;">
which can be imposed for offence
punishable under Section
</div>
<div style="margin-bottom: 0in;">
304A is two years with fine or with
both. The custodial
</div>
<div style="margin-bottom: 0in;">
sentence, therefore, is reduced to the
maximum i.e. two years.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
20. It is contended by the learned
counsel for the State that
</div>
<div style="margin-bottom: 0in;">
in a case of this nature two years
sentence is grossly
</div>
<div style="margin-bottom: 0in;">
inadequate. There is substance in this
submission considering
</div>
<div style="margin-bottom: 0in;">
the increasing number of vehicular
accidents resulting in
</div>
<div style="margin-bottom: 0in;">
death of large number of innocent
persons. <span style="color: magenta;"><b>It is for the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>legislature to
provide for an appropriate sentence. But the </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>statute
presently provides for a maximum sentence of two </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;"><b>years. </b></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: #444444;"><span style="font-family: Trebuchet MS, Verdana, sans-serif;"><span style="font-size: x-small;">21. The
appeal is allowed to the aforesaid extent. </span></span></span>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="border-bottom-color: rgb(0, 0, 0); border-bottom-width: 1.1pt; border-style: none none double; margin-bottom: 0in; padding: 0in 0in 0.03in;">
<br />
</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-39147177262059517802013-09-09T15:27:00.001+05:302013-09-09T15:40:34.617+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="margin-bottom: 0in;">
Article 166 in The Constitution Of
India 1949</div>
<div style="margin-bottom: 0in;">
Dattatraya vs State Of Maharashtra And
Ors. on 22 August, 1996</div>
<div style="margin-bottom: 0in;">
Shamsher Singh & Anr vs State Of
Punjab on 23 August, 1974</div>
<div style="margin-bottom: 0in;">
P.Rathinam vs Union Of India on 26
April, 1994</div>
<div style="margin-bottom: 0in;">
State Of West Bengal Etc. vs M.R.
Mondal And Anr. on 3 September, 2001</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Supreme Court of India</div>
<div style="margin-bottom: 0in;">
Ropan Sahoo & Anr. vs Ananda Kumar
Sharma & Ors. on 22 January, 2013</div>
<div style="margin-bottom: 0in;">
Author: D Misra</div>
<div style="margin-bottom: 0in;">
Bench: K.S. Radhakrishnan, Dipak Misra</div>
<div style="margin-bottom: 0in;">
, , , ,</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
IN THE SUPREME COURT OF INDIA</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
CIVIL APPELLATE JURISDICTION</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
CIVIL APPEAL NO. 615 OF 2013</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(Arising out of S.L.P. (C) No. 34902 of
2009)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ropan Sahoo & another ...
Appellants</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Versus</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ananda Kumar Sharma & others
...Respondents</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
WITH</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
CIVIL APPEAL NO. 616 OF 2013</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(Arising out of S.L.P. (C) No. 35166 of
2009)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
State of Orissa & others
....Appellants</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Versus</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ananda Kumar Sharma & others
....Respondents</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
J U D G M E N T</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Dipak Misra, J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Leave granted in both the special leave
petitions.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2. Questioning the legal acceptability
of the order dated 16.9.2009 passed by the Division Bench of the High
Court Orissa at Cuttack in WP(C) No. 3913 of 2009 whereby the High
Court entertained the writ petition preferred by the first respondent
herein and quashed the grant of exclusive privilege and the licence
granted in favour of Ropan Sahoo and Mukesh Kumar, the respondent
Nos. 5 and 6 in the writ petition, the present appeals have been
preferred by the grieved persons as well as by the State.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. Shorn of unnecessary details the
facts which are requisite to be stated are that Mukesh Kumar, the
respondent No. 6 before the High Court, had submitted an application
for grant of licence to open an IMFL “Off” shop in Ward No. 16,
Bargarh Town for the year 2007-08 on 28.1.2008. As a report was
submitted that the proposed site was violative of sub-rule 1(c) of
Rule 34 of Orissa Excise Rules, 1965 (for short “the Rules”), the
said respondent chose to withdraw the application for the aforesaid
year by indicating personal reasons. In respect of the next financial
year he again submitted an application for grant of licence at the
same place. The Collector, Bargarh, invited objections and pursuant
to the same the writ petitioner filed his objection on 18.10.2008.
The Inspector of Excise submitted a report on 2.2.2009 stating about
the existence of a bathing ghat, Vishnu temple, bus stand and petrol
pump within the prohibited distance, but recommended for relaxation
of restrictions. The Collector, Bargarh, recommended for opening of
the shop for remaining part of the year 2008-09 in relaxation of the
restrictions and the Excise Commissioner also recommended to the
Government on 19.2.2009 for sanction by relaxing of the restrictions.
As the factual matrix would reveal, the State Government on the basis
of the recommendations invoked the power of relaxation under Rule 34
of the Rules and granted licence in favour of the said respondent for
the remaining period of 2008-09. Be it noted, in a similar manner
relaxation was granted for opening of the IMFL/Beer (‘ON’ shop)
at Hotel Sawadia for the period from 2.3.2009 to 31.3.2009.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. Being grieved by the grant of said
licences, the first respondent invoked the jurisdiction of the High
Court under Article 226 of the Constitution principally contending
that the report submitted by the Excise Inspector with regard to
certain aspects, namely, location of the bathing ghat, etc. were not
factually correct; that the recommendations made by the authorities
were highly improper and unwarranted; and that the relaxation had
been granted in an extremely arbitrary manner and, therefore, the
grant of exclusive privilege and the licence deserved to be axed. The
High Court perused the documents brought on record, called for the
record to satisfy itself in what manner the power of relaxation was
exercised, and after perusal of the record and on consideration of to
various recommendations, came to hold that as far as the respondent
No. 5 was concerned for sanction of a beer parlour ‘ON’ shop
licence for the remaining period of 2008-09, no order was passed
relaxing the Rules before the grant of exclusive privilege. As far as
the sanction of IMFL Restaurant licence in respect of 6th respondent
was concerned, the High Court expressed the similar view. We think it
apt to reproduce the ultimate conclusion recorded by the High Court:
-</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“13. Proviso to Rule 34 specifically
prescribes that restriction on the minimum distance as mentioned in
Clause (d) and (e) may be relaxed by the State Government in special
circumstances. There being no order by the State Government relaxing
the aforesaid two Clauses in relation to the minimum distance between
the proposed shops and the place of worship i.e. the Vishnu Temple,
petrol pump and bus stand, the order of the State Government
approving the sanction/grant of exclusive privilege in favour of
opposite parties 5 and 6 cannot be sustained in law.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
5. After so stating the High Court
referred to Section 41 of the Bihar and Orissa Excise Act, 1915 (for
brevity “the Act”) and observed as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“Rule 34 of the Rules castes a
statutory duty on the Department to pass order with reasons relaxing
the restrictions. When there has been infraction of such statutory
duty, the same cannot be covered under Section 41 of the Act.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6. Being of the aforesaid view, the
High Court quashed the privileges and the licences granted in favour
of the private respondents therein.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7. We have heard Mr. Bhaskar P. Gupta,
learned senior counsel for the beneficiaries of the grant, Mrs. Kirti
Renu Mishra, learned counsel for the State and Mr. G. Ramakrishna
Prasad, learned counsel appearing for the respondent No. 1 in both
the appeals.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
8. At the very outset we may note that
it is the admitted position that both the proposed sites come within
the prohibited area as envisaged under Rule 34(1)(d) and (e) of the
Rules. Rule 34 of the Rules stipulates that the places in respect of
which licences for consumption of liquor on vendor’s premises
should not be granted. The said Rule reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“34. Licences for shops for
consumption of liquor on vendor’s premises not to be granted at
certain places : (1) No new shop shall be licensed for the
consumption of liquor on the vender, premises –</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
a) in a marketplace, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
b) at the entrance to market place, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
c) in close proximity to a
bathing-ghat, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
d) within at least five hundred meters
from a place of worship, recognized educational institution,
established habitant especially of persons belonging to scheduled
castes and labour colony, mills and factories, petrol pumps, railway
stations/yard, bus stands, agricultural farms or other places of
public resort, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
e) within at least one kilometer from
industrial, irrigation and other development projects areas, or</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
f) in the congested portion of a
village :</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Provided that the restriction on the
minimum distance as mentioned under clauses (d) and (e) may be
relaxed by the State Government in special circumstances.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(2) So far as practicable, an
established liquor shop licensed for the consumption of liquor on the
premises shall not be allowed to remain on a site which would not
under sub-rule (1) be permissible for the location of a new shop.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(3) In areas inhabited by Scheduled
Tribes, country spirit shops shall not be licensed to be placed
immediately on the side of a main road or in any other prominent
position that is likely to place temptation in their way.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9. On a perusal of the aforesaid Rule,
it is crystal clear that the State Government has been conferred with
the power to relax the restriction on the minimum distance as
mentioned in clauses (d) and (e) pertaining to the minimum distance.
As has already been indicated hereinbefore there is no cavil that the
material on record pertained to the relaxation of the restriction as
prescribed under clauses (d) and (e) of sub-rule (1) of Rule 34 of
the Rules. The High Court, as the impugned order would reflect, has
quashed the order of approval/sanction and the consequent grant of
licences on the foundation that there has been no order relaxing the
restrictions on the minimum distance as mentioned in Clauses (d) and
(e) relating to the proposed shops in exercise of powers of the said
Rule by the State Government and, in any case, no reasons have been
ascribed. Thus, the question that emanates for consideration is
whether the High Court has appositely appreciated the note sheet in
the file and arrived at the correct conclusion or not.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
10. The High Court, as demonstrable,
has reproduced the communications made by the Joint Secretary to the
Government by fax vide memo No. 1159/Ex. dt. 2.3.2009 addressed to
the Excise Commissioner about the Restaurant “ON” shop licence in
favour of Mukesh Kumar at “RASSOI RESTAURANT” in the premises of
Hotel ‘Sawadia Palace’, Ward No. 11, Bargarh Municipality over
Plot No. 1622, Khata No. 2542/362, in the district of Bargarh for the
remaining period of 2008-09 and also the memo No. 1161/Ex. dated
2.3.2009 in respect of Beer Parlour “ON” shop licence in favour
of Ropan Sahoo over Plot No. 1391/2260, Khata No. 393 in Ward No. 16
of Bargarh Municipality, in the district of Bargarh for the remaining
period of 2008-09. The communication that has been made in favour of
Mukesh Kumar reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In inviting a reference to your
letter No. 1214 dt. 19.2.09 on the subject cited above, I am directed
to say that Govt. after careful consideration have been pleased to
grant IMFL Restaurant “ON” shop Licence in favour of Sri Mukesh
Kumar at “RASSOI RESTAURANT” in the premises of Hotel “Sawadia
Palace”, Ward No. 11, Baragarh Municipality over Plot No. 1622,
Khata No. 2542/362, in the district of Baragarh for the remaining
period of 2008-09 by relaxing rule 34 of the Orissa Excise Rules,
1965 and fixation of MGQ as per Excise Duty, Fee Structure and
Guidelines for 2008-09. The Excise Administration may be held
responsible if the existing nearby excise shops are affected by the
new “ON” shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
As far as grant of beer parlour “ON”
shop in favour of Ropan Sahoo is concerned, the communication vide
memo No. 1161/Ex. dated 2.3.2009 is as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In inviting a reference to your
letter No. 1380 dt. 25.02.09 on the subject cited above, I am
directed to say that Govt. after careful consideration have been
pleased to sanction Beer Parlour “ON” shop Licence in favour of
Sri Ropna Sahoo over Plot No. 1391/2260, Khata No. 393/330 in Ward
No. 16 of Bargarh Municipality, in the district of Bargarh for the
remaining period of 2008-09 subject to condition that the district
excise officials will be held responsible if the nearby existing
excise shops are affected by opening of the new shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
11. As no reasons were assigned, the
High Court called for the file. On a perusal of the file the High
Court referred to the recommendations and, eventually, opined that no
order had been passed relaxing the Rule in respect of the said shops
by the Commissioner-cum-Secretary to Government, Department of
Excise. The thrust of the matter is whether any order has been passed
relaxing the restrictions imposed by the Rules and does it contain
reasons. As the first communication would reveal, it is clearly
mentioned therein that the Government has relaxed the restrictions
under Rule 34 and as far as the second communication is concerned, it
has been stated that the Government has sanctioned grant of licence.
The learned counsel for the State has referred to the note sheet to
highlight that the orders had been passed in consonance with the
proviso to Rule 34(1) of the Rules and on that basis the
communications were issued.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
12. We have bestowed our anxious
consideration and carefully perused the note-sheet. On a studied
scrutiny of the same it is luculent that the Excise Commissioner,
Orissa, Cuttack, had recommended the proposals and in support of the
same had furnished seventeen documents. The note sheet has referred
to the report which states that the proposed site exist at 350 meters
from Vishnu Temple, 250 meters from the petrol pump, 200 meters from
the private bus stand and 50 meters from the irrigation canal. The
recommendation which forms part of the note sheet reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“The Collector, Bargarh, in his
report at P-84/C has stated that the local consumers demand for
consumption of liquor within the hotel premises. Illegal liquor cases
have been booked in the nearby area and hence, there is demand for
the “ON” shop. The apprehension that the existing IMFL “OFF”
shop will be affected after opening of the proposed “ON” shop is
ruled out, because the consumers of “OFF” shop are different from
“ON” shop. The customers of “ON” shop has to consume liquor
inside the Hotel premises with peg system and pay service charge,
whereas such a facility is not available with “OFF” shops.
Besides, the bathing ghat is not nearby as objected. But only one
irrigation canal is flowing at a distance of about 50 meters.
Therefore, Collector has recommended for relaxation of rule 34 of
Orissa Excise Rules, 1965 for sanction of the proposal in the
interest of Govt. revenue and to check illegal liquor trade.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. The objections of A.K. Sharma and
that of the Secretary, Human Society, Bargarh have also been
considered. Thereafter, the Joint Secretary has recommended thus: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In the above circumstances and in
view of recommendation of the Excise Commissioner, Orissa, Cuttack,
it may kindly be considered to grant IMFL Restaurant “ON” shop
licence in favour of Sri Mukesh Kumar at “Rasooi Restaurant” in
the premises of Hotel “Sawadia Palace” Ward No. 11, Bargarh
Municipality over Plot No. 1622, Khata No. 2542/362, in the district
of Bargarh, for the remaining period of the year 2008-09 by relaxing
rule 34 of Orissa Excise Rules, 1965 and MGQ fixed as per the Excise
Duty, Fee Structure and Guidelines for 2008-09. The District Excise
Administration may be held responsible if the existing nearby excise
shops are affected by the new “ON” shop.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
14. The Commissioner-cum-Secretary to
Government, Excise Department, has endorsed the same in the following
terms: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“Notes from P.10/N explain. We had
received a representation from Shri A.K. Sharma, Exclusive Privilege
Holder of IMFL ‘Off Shop’ No. 4 of Bargarh (P.23-22/C) against
the proposal received from Collector, Bargarh and endorsed by the
Excise Commissioner, Orissa for opening of IMFL ‘On Shop’ at
Rasoi Restaurant in the premises of Hotel Sawadia Palace, Ward No. 11
of Bargarh. The objections raised by Shri Sharma have been enquired
into by the District Administration. In this regard, the letter
received from Collector, Bargarh at P.34-32/C may please be glanced
through. The objections of Shri Sharma are found to be devoid of
merit. The report received from the Excise Commissioner, placed
below, may also be perused. The Excise Commissioner had recommended
to consider the sanction of IMFL ‘On Shop’ at Rasoi Restaurant in
favour of Shri Mukesh Kumar situated in the premises of Hotel Sawadia
Palace, Ward No. 11 of Bargarh. The proposal may kindly be considered
and approved.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
15. The same has been signed by the
Minister of Excise and Tourism, Orissa. As far as the second shop is
concerned, the note sheet referred to the recommendations of the
Collector, which reads as follows: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“...the Collector, Bargarh has
reported that both the petrol pumps are situated in such a manner
that the shops will have no effect at all on the proposed Bar and
hence he has suggested for relaxation of restrictive provisions of
rule-34 of Orissa Excise Rules, 1965.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
The Collector, Bargarh has also
reported that the proposed Beer Parlour shall cater to the needs of
the consuming people of the locality besides fetching Govt. revenue
and checking illicit sale of Beer, since the population of the area
is increasing. Only 3 (three) IMFL “OFF’ shops, one IMFL ‘ON’
and one Beer Parlour are functioning in the entire town area having
population of more than one lakh. There is feasibility and
potentiality for opening of the Beer Parlour ‘ON’ shop, since
illegal sale of liquor has been detected in the area. The proposed
shop will check illicit trade of liquor. He has also stated that the
opening of new Beer Parlour will not affect the nearby IMFL shops in
the Municipality.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
16. The Joint Secretary after referring
to the objections and the recommendations of the Excise Commissioner
has passed the following order in the note sheet: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“In the above circumstances and in
view of recommendation of the Excise Commissioner, Orissa, Cuttack,
it may kindly be considered to sanction Beer Parlour ‘ON’ shop
licence in favour of Sri Ropna Sahu over plot No. 1391/2260, Khata
No. 393/330 in Ward No.16 of Bargarh Municipality in the district of
Bargarh for the remaining period of 2008-09 subject to condition that
the district excise officials will be held responsible if the nearby
existing shops are affected by opening of the new shop.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Government orders may kindly be
obtained in the matter.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
17. Thereafter, the
Commissioner-cum-Secretary to Government in the Department of Excise
has endorsed the same and the Minister, Excise and Tourism has signed
in approval thereof and thereafter the movement of the file took
place. On the basis of the aforesaid orders the communications have
been sent.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
18. On a keen scrutiny of the entire
note sheet we have no hesitation in our mind that the
Commissioner-cum-Secretary had accepted the recommendations of the
Collector and the Excise Commissioner, and upon perusal of the note
sheet of the Joint Secretary had recommended for consideration and
approval by the Minister of Excise and Tourism. The Minister, as
stated earlier, has signed and thereafter, the file had travelled
back for communication. We really fail to fathom the reasons ascribed
by the High Court that there is no order whatsoever relaxing the
Rules before the order of grant of exclusive privilege was passed.
After the Minister had signed on the file on the basis of the
recommendations sent by the Commissioner-cum-Secretary which was
founded on the recommendations of the Joint Secretary who had
concurred with the recommendations of the Collector and the Excise
Commissioner, communications were made by the Joint Secretary. The
note sheet clearly indicates application of mind to the relevant
facts which pertain to the restrictions on the distance from the
proposed site and the endorsement by the Minister. In this context,
we may refer with profit to the decision in Tafcon Projects (I) (P)
Ltd. v. Union of India and others[1], wherein the High Court, after
taking note of the order passed by the Secretary who, in anticipation
of the formal approval by the Minister concerned, had allowed the
party to go ahead for appointing the appellant therein as “Event
Manager”. This Court referred to the earlier order passed by the
Secretary granting permission and the latter order in which he had
mentioned that the party may be allowed to go ahead with the proposal
for making the preliminary arrangement in anticipation of the formal
approval of the Minister and expressed the view that the High Court
had erred in coming to hold that the Secretary had not taken any
final decision with regard to the appellant therein as the Event
Manager. Thereafter, the Court adverting to the justification of the
conclusion of the High Court that no final decision had been taken by
the Minister expressed thus :-</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“12. It appears also from the record
as noted by the High Court, that the file had been pending with the
Minister for some time and despite expressions of urgency, the
Minister did not sign the file since he was busy with “elections
and other important matters”. What the High Court has overlooked is
that the relevant file was again placed before the Minister on
30.8.1999 by JS&FA with a note which stated that Tafcon had been
appointed as the “Event Manager” for three years. This was signed
by the Minister with the endorsement “file returned”.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. The High Court deduced from this
signature of the Minister that no approval was in fact granted by him
to the appointment of M/s. Tafcon either expressly or impliedly. We
are unable to agree. Where the Minister has signed the various notes
put up before him seeking his approval, his signature, without more,
must mean that he has approved the steps taken by the Department.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
19. Be it noted, in the said case, the
Court referred to Rule 3 of the Transaction of Business Rules, 1961
which provided for all business to be conducted on general or special
directions of the Minister-in- charge.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
20. In the case at hand, Rule 7 of the
Orissa Government Rules of Business made under Article 166 of the
Constitution confers the power on the Minister to pass an order in
respect of a matter pertaining to his portfolio. The effect of such a
delegation has been dealt with by a three-Judge Bench in Narmada
Bachao Andolan v. State of Madhya Pradesh[2] wherein it has been held
that: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<span style="color: blue;">“<b>The
decision of any Minister or Officer under the Rules of Business made
under Articles 77(3) and 166(3) of the Constitution is the decision
of the President or the Governor respectively and these Articles do
not provide for `delegation’. That is to say, that decisions made
and actions taken by the Minister or Officer under the Rules of
Business cannot be treated as exercise of delegated power in real
sense, but are deemed to be the actions of the President or Governor,
as the case may be, that are taken or done by them on the aid and
advice of the Council of Ministers.”</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
21. The Bench to fructify its opinion
has placed reliance on State of U.P. & Ors. v. Pradhan Sangh
Kshettra Samiti & Ors.[3] and pronouncement by the
seven-Judge Bench in Shamsher Singh v. State of Punjab &
Anr.[4] For the sake of completeness, we may note with profit what
has been stated in paragraph 27 of the aforesaid decision: -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“27. In Dattatraya Moreshwar v. The
State of Bombay & Ors.[5], a Constitution Bench of this Court
held that an omission to make and authenticate an executive decision
in the form mentioned in Article 166 does not make the decision
itself illegal, on the basis that its provisions were directory and
not mandatory.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
22. In this regard we may quote a
passage from Sethi Auto Service Station and another v. Delhi
Development Authority and others[6] : -</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
“<b>14. It is trite to state that
notings in a departmental file do not have the sanction of law to be
an effective order. A noting by an officer is an expression of his
viewpoint on the subject. It is no more than an opinion by an officer
for internal use and consideration of the other officials of the
department and for the benefit of the final decision-making
authority. <span style="color: red;">Needless to add that internal
notings are not meant for outside exposure.</span> <u>Notings in the
file culminate into an executable order, affecting the rights of the
parties, only when it reaches the final decision-making authority in
the department, gets his approval and the final order is communicated
to the person concerned.”</u></b></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
23. In State of West Bengal v. M. R.
Mondal and another[7] it has also been held that <span style="color: red;"><b>an
order passed on the file and not communicated is non- existent in the
eye of law.</b></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
24. In the present case it is luminous
that the file had travelled to the concerned Joint Secretary of
department who had communicated the order. The High Court has opined
that there is no order by the State Government relaxing the
restrictions enshrined in clauses (d) and (e) of Rule 34(1) of the
Rules in relation to the minimum distance between the proposed shops
and the Vishnu Temple, petrol pump and bus stand and at a latter part
of the judgment has expressed the opinion that there has been
infraction of statutory Rule, namely, Rule 34 which casts a statutory
duty on the department to pass on order with reasons relaxing the
restrictions. We are disposed to think that the High Court, as far as
the first part of the opinion is concerned, has been guided by the
factum that the Commissioner-cum-Secretary in his recommendation to
the Minister of Excise and Tourism had not specifically referred to
clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to
state here that it is perceptible from the note sheet that the
Secretary had referred to the proposal received from the Collector,
endorsement made by the Excise Commissioner, the objections raised by
the objectors and also expressed the view that the said objections
were devoid of merit and, accordingly, recommended for approval. The
cumulative effect of the note sheet goes a long way to show that
every authority was aware of the distance and recommended for
relaxation of clauses (d) and (e) of sub-rule (1) of Rule 34 and the
concerned Minister had endorsed the same. Non-mentioning of the Rule
or sub-rule, in our considered opinion, does not tantamount to
non-passing of an order. The dominant test has to be the application
of mind to the relevant facts. The second part of the order, if
properly appreciated, conveys that no reasons have been ascribed. The
proviso to Rule 34(1) lays a postulate that the distance as mentioned
under clauses (d) and (e) may be relaxed by the State Government in
special circumstances. The recommendations made by the Collector
refers to the circumstances, namely, that there is a demand for
consumption of liquor within the hotel premises; that illegal liquor
cases have been booked in the nearby area; and that the proposal is
in the interest of the Government revenue. The said recommendations,
as is reflectible, have been concurred with by the higher authorities
and, hence, there can be no trace of doubt that they constitute the
special circumstances.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
25. In view of our aforesaid analysis,
the appeals are allowed and the order passed by the High Court is set
aside. It is further clarified that if the Government, if so advised,
can invoke the power under the proviso to Rule 34(1) of the Rules for
the purpose of relaxation for grant of exclusive privilege and
licence pertaining to the said shops in respect of current and
subsequent financial years. In the facts and circumstances of the
case, the parties shall bear their respective costs.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
……………………………….J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[K. S. Radhakrishnan]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
……………………………….J.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[Dipak Misra]</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
New Delhi;</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
January 22, 2013</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
-----------------------</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[1] (2004) 13 SCC 788</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[2] AIR 2011 SC 3199</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[3] AIR 1995 SC 1512</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[4] AIR 1974 SC 2192</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[5] AIR 1952 SC 181</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[6] (2009) 1 SCC 180</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
[7] AIR 2001 SC 3471</div>
<div style="margin-bottom: 0in;">
<br />
</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-29883814724132348442013-08-25T21:02:00.001+05:302013-08-25T21:03:35.960+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="margin-bottom: 0.2in;">
<span style="color: #cdbfac;"><span style="font-family: arial, sans-serif;"><b>Himachal
Pradesh High Court</b></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.1in;">
<span style="color: black;">Shyam
Lal And Ors. vs State Of H.P. on 1 January, 2002</span></div>
<div align="JUSTIFY" style="margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Equivalent
citations: 2002 CriLJ 3178</b></span></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Author:
L S Panta</b></span></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Bench:
L S Panta, A K Goel</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">JUDGMENT</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Lokeshwar
Singh Panta, J.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Both these appeals have been filed against the judgment and order
dated 30-6-2000 passed by Addl. Sessions Judge, Solan in Sessions
trial No. 4-S/7/97. By the impugned judgment and order, out of 24
accused, the Addl. Sessions Judge convicted A-1 Shayam Lal, A-2 Ram
Das, A-3 Hans Raj and A-15 Manoj Kumar for various offences as under
:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
A-1 Shayam Lal</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
under Section 452, IPC and is sentenced to undergo simple
Imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year more and;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(c)
under Section 323, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo simple imprisonment for one year.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
A-2 Ram Dass</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(c)
under Section 323, IPC, for causing injuries to deceased Guddu Ram
and is sentenced to undergo simple imprisonment for. one year.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
A-3 Hans Raj</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(c)
under Section 323, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo simple imprisonment for one year.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
A-15 Manoj Kumar.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(b)
under Section 302, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and (c) under Section 323, IPC for causing
injuries to deceased Guddu Ram and is sentenced to undergo simple
imprisonment for one year.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
They were acquitted for offences under Sections 147, 148 and 149 of
the Indian Penal Code. All the sentences imposed upon them shall run
concurrently.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2A.
A-4 Bhupender Kumar, A-5 Susheel Kumar, A-6 Sudhir Kumar, A-7
Rajinder Kumar, A-8 Jai Pal, A-9 Suresh Kumar, A-10 Rakesh Kumar,
A-11 Kuldeep Chand, A-12 Kamaljeet, A-13 Ramesh Chand, A-14 Ashok
Kumar, A-16 Smt. Sheela Devi, A-17 Smt. Shobha Devi, A-18 Ram Kali,
A-19 Sewati Devi, A-20 Smt. Reeta Devi, A-21 Smt. Shyama, A-22 Smt.
Roop Dei, A-23, Smt. Ram Dei and A-24 Smt. Sampati Devi were
acquitted under Sections 147, 148, 149,452, 302 and 323 of Indian
Penal Code.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
Against the said judgment and order A-1 Shayam Lal, A-2 Ram Dass, A-3
Hans Raj and A-15 Manoj Kumar have preferred Criminal No. 364/2000.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
The State has preferred Criminal Appeal No. 558/2000 against the
acquittal of A-1, A-2, A-3 and A-15 under Sections 147, 148 and 149,
IPC and against remaining 20 accused under Sections 147, 148, 149,
452, 302 and 323, IPC.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
It was the prosecution version that on 21-6-1994 at about 11-30 a.m.
at village Badhol, in Tehsil Kasauli, District Solan 24 accused
persons constituted unlawful assembly and in prosecution of common
object of their unlawful assembly they assaulted Guddu Ram son of
Nakhru Ram with deadly weapons like stones and 'Dandas' and in
prosecution of that common object committed the offences of rioting,
house-trespass by entering into the dwelling house of Guddu Ram,
having made preparation to cause hurt to him and committed his
murder. All the accused persons also caused injuries to Smt. Kalawati
(PW-13) wife of Guddu Ram; Krishan Kumar (PW-14) son of Guddu Ram and
one Smt. Krishna Devi. Sohan Lal (PW-12) son of Guddu Ram reported
the incident to Police at Police Post Kuthar vide rapat roznamcha No.
8 dated 21-6-1994 mark Ext. PW-10/A which was received at Police
Station, Kasauli, District Solan on the same day. On the basis of the
said report formal first information report Ext. PW-12/A under
Sections 147, 148, 149, 452, 307 and 323, IPC was registered by
Inspector Om Prakash (PW-15) Station House officer, Kasauli. PW-15 Om
Prakash visited the place of occurrence on the same night but
inspected the spot on 22-6-1994. He prepared site plan Ext. PW-15/B.
In the meantime, Guddu Ram died because of the injuries sustained by
him at the hands of the accused and the offence from Section 307, IPC
was converted to 302, IPC in addition to other abovesaid offences.
PW-15 got the dead body of Guddu Ram photographed from Prem Raj
Sharma (PW-3) who placed on record photographs Exts. PW-3/A to
PW-3/H. Inquest report Ext. PW-15/C was also prepared. Application
Ext. PW-1/D was prepared and signed by PW-15 requesting the doctor of
District Hospital, Solan to conduct the post mortem on the dead body
of Guddu Ram. Injured PW-13 Smt. Kalawati and PW-4 Krishan Kumar were
also got medically examined. On the same day in the presence of PW-12
Sohan Lal and one Mohan Dass soils tained with blood was lifted from
the kitchen of deceased Guddu Ram. Blood stained stones from the
spot; one blood stained "Khesi" (bed sheet) which was put
by deceased Guddu Ram on himself and blood stained plastic Gunny bag
were also taken into possession vide memo Ext. PW-12/B and they were
sealed in a parcel with deal 'OP', A-1, A-2, A-3 and A-15 produced
one 'Danda' each to the Investigating Officer in the presence of
PW-12 Sohan Lal and Mohan Dass which allegedly were used by them in
the commission of the crime. The weapons of offence were taken into
possession vide memo Exts. P-12/C, PW-12/D, PW-12/E and PW-12/F and
were sealed in parcels with seal impression 'OP' which after use was
handed over to Mohan Dass. Medico Legal Certificates of injured PW-13
Smt. Kalawati, PW-14 Krishan Kumar and Smt. Krishan Devi Mark Exts.
PW-2/A, PW-2/B and PW-5/8 respectively were taken from the doctors of
Primary Health Centre, Dharampur who medically examined them. Medico
Legal Certificates of A-15 Manoj Kumar and A-16 Smt. Sheela Devi mark
Exts. PW-12/A and PW-12/B respectively were also procured by PW-15.
Post Mortem report of deceased Guddu Ram Ext. PW-1/A was also taken
from the doctor who conducted post mortem on his person. Statements
of the witnesses were also recorded. All the accused were arrested on
22-6-1993 and 23-6-1993 respectively. On receipt of the Chemical
Analyst report mark Exts. PW-1/B, PW-9/A and PW-/9B investigation was
completed and charge-sheet was prepared and submitted before the
Court below.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6.
The learned Sessions Judge by order dated 20-6-1996 assigned the case
for trial to the learned Addl. Sessions Judge. The learned Addl.
Sessions Judge framed charges against the accused persons under
Sections 147, 148 and Under Section 452 read with Section 149 for
committing house trespass of the house of Guddu Ram and under Section
302 read with Section 149, IPC for causing death of Guddu Ram and
under Section 323 read with Section 149, IPC for inflicting injuries
to PW-13 Smt. Kalawati and PW-14 Krishan Kumar alias Krishan Lal and
Smt. Krishnari Devi. All the accused denied the charges framed
against them and claimed to be tried.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7.
The prosecution in support of its case, has examined 15 witnesses.
The accused in their statements recorded under Section 313, Cr.P.C.
denied the allegations levelled against them by the prosecution. In
answer to question No. 22, all the accused pleaded that all the
prosecution witnesses are the members of the same family and they
(accused persons) have been falsely implicated in this case due to
enmity. In answer to question No. 23 the accused persons have pleaded
common defence which reads as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">On
21-6-94 the quarrel took place between the minor children and Sohan
Lal, his father Guddu, mother Kalawatil sister Krishan Devi, Brother
Krishan Lal and Ram Rattan came to our residential house at 9-30 a.m.
Sheela told that matter would be solved in amicable manner. All the
said persons have brought the stones and Sohan Lal inflicted injuries
upon Sheela. But Manoj tried to rescue her and Sohan Lal inflicted
injuries to Manoj and he sustained head injuries and leg injury by
way of stones. I did not do anything and Sheela and Manoj went to
Police Station to lodge the report and above stated persons fled to
their home. When Sheela and Manoj came from Police Station, then we
came to know that Guddu Ram had fall down from hilly slope and Nika
Ram told us that deceased Guddu Ram had fell down from hilly slop
near his resident house. PW. Sohan Lal was also accused in a murder
case and he demanded money from us and when we refused to pay the
money he threatened us that he would implead us in a false murder
case of his father.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
The learned trial Court on appreciation and scrutiny of the evidence
on record convicted A-1 Shayam Lal, A-2 Ram Dass, A-3 Hans Raj and
A-15 Manoj Kumar under Sections 452, 302 and 323 of the Indian Penal
Code for causing murder of Guddu Ram and also inflicting voluntarily
hurt to him by forcibly entering his residential house and
accordingly sentenced them. They were, however, acquitted for the
other offences with which they were charged. Other accused persons
were acquitted under Sections 147, 148, 149, 452, 302 and 323, IPC by
giving them benefit of doubt.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
Feeling aggrieved against the impugned judgment and order, the
accused and State both have filed these appeals.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
We have heard Mr. T.R. Chandel, learned Counsel for the accused and
Mr. M.C. Mandhotra, learned Addl. Advocate General for the State. The
first contention of Mr. Chandel was that the trial Judge framed
charge No. 4 against the accused as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Fourthly,
on the aforesaid date, time and place you being member of unlawful
assembly committed the murder by causing the death of Shri Guddu Ram
son of Shrl Nakhru Ram and thereby committed an offence punishable
under Section 302 read with Section 149, Indian Penal Code and within
my cognizance.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
According to the learned Counsel, once the accused are acquitted
under Section 149, IPC as no common object was found having been
proved by the prosecution against them, their conviction for
substantive offence of murder of Guddu Ram is not maintainable
without framing substantive charge under Section 302, IPC and their
conviction as such is not sustainable. He also contended that for
attracting Section 34, IPC there should be finding of common
intention or object and in the present case the prosecution has not
proved that the accused had common intention or object to murder
Guddu Ram, therefore they cannot be even convicted under Section 302
read with Section 34 of the Indian Penal Code. In support of this
contention, Mr. Chandel placed reliance in Re : Ranga, AIR 1954
Mysore 75 : (1954 Cri LJ 622); Chlkkarange Gowda, 1956 SC 731 : (1956
Cri LJ 1365); </span></span><a href="http://www.indiankanoon.org/doc/653650/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Nanak
Chand v. State of Punjab AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1955
SC 274 : (1955 Cri LJ 721); Sarman v. State of M. P. 1993 Cri LJ 63 :
(AIR 1993 SC 400) and Subran alias Subramanian v. State of Kerala
1993 Cri LJ 1387 : (1993 AIR SCW 1014).</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
Per contra, the learned Additional Advocate General contended that in
the absence of framing of charge for substantive offence under
Section 302, IPC against the accused by the learned trial Court, the
accused can be convicted for the offence under Section 302 read with
Section 34, IPC as their common intention was to commit murder of
Guddu Ram as no prejudice is caused to the accused for not framing
the separate charge for substantive offence under Section 302, IPC.
To support his submission he placed reliance on </span></span><a href="http://www.indiankanoon.org/doc/1347962/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Willie
(William) Slaney v. State of Madhya Pradesh AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1956
SC 116 : (1956 Cri LJ 291).</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">13.
It is not in dispute that the learned trial Judge acquitted the
accused under Sections 147, 148 and 149 of the Indian Penal Code and
convicted them for the murder of Guddu Ram under Section 302, IPC
without framing a substantive charge under Section 302, IPC and they
were charged under Section 302, IPC with the aid of Section 149, IPC.
We have considered the respective contentions of the learned Counsel
for the parties. </span></span><a href="http://www.indiankanoon.org/doc/653650/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Nanak Chand v. State of Punjab AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1955
SC 274 : (1955 Cri LJ 721), three Judge Bench of the Supreme Court
has held that the charge for a substantive offence under Section 302
or Section 325, IPC is for a distinct and separate offence from that
under Section 302 read with Section 149 or Section 325, read with
Section 149. A person charged with an offence read with Section 149
cannot be convicted of the substantive offence without a specific
charge being framed as required by Section 233, Code of Criminal
Procedure (1898). A wrong conviction under Section 302/34 cannot be
converted into one under Section 302. Further it was observed in para
7 of the judgment as under :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7.
If there is a conviction for a charge not framed it is an illegality
and not an irregularity curable by the provisions of Sections 535 and
537, Cr.P.C. In that case, the irregularity was not curable because
the appellant was misled in his defence by the absence of a charge
under Section 302. By framing a charge under Section 302, read with
Section 149, IPC against the appellant, the Court indicated it was
not charging the appellant with the offence of murder and to convict
him for murder and sentence him under Section 302, IPC was to convict
him of an offence with which he had not been charged. In defending
himself the appellant was not called upon to meet such a charge and
in his defence he may well have considered it unnecessary to
concentrate on that part of the prosecution case. The Supreme Court
has said that there is a clear distinction between the provisions of
Sections 34 and 149 and the two sections are not to be confused. The
principal element in Section 34 is the common intention to commit a
crime. In furtherance of the common intention several acts may be
done by several persons resulting in the commission of that crime. In
such a situation Section 34 provides that each one of them would be
liable for that crime is the same manner as if all the acts resulting
in that crime had been done by him alone. There is no question of
common intention in Section 149. An offence may be committed by a
member of an unlawful assembly and the other members will be liable
for that offence although there was no common intention between that
person and other members of the unlawful assembly to commit that
offence provided the conditions laid down in the section are
fulfilled. Thus if the offence committed by that person is in
prosecution of the common object of the unlawful assembly or such as
the members of that assembly knew to be likely to be committed in
prosecution of the common object, every member of the unlawful
assembly would be guilty of that offence, although there may have
been no common intention and no participation by the other members in
the actual commission of that offence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">14. </span></span><a href="http://www.indiankanoon.org/doc/534807/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Chakkarange Gowda v. State of Mysore AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1956
SC 731 : (1956 Cri LJ 1365), their Lordships observed "the first
essential element of Section 149 was the commission of an offence by
any member of an unlawful assembly; the second essential part was
that the offence must be committed in prosecution of the common
object of the unlawful assembly, or must be such as the members of
that assembly knew to be likely to be committed in prosecution of the
common object. The common object of an unlawful assembly as mentioned
in the charge and as found by the Court was merely to administer a
chastisement to the deceased. The charge did not mention that the
members of the unlawful assembly knew that the deceased was likely to
be killed in prosecution of that common object. The deceased was
killed by the fatal injury caused by certain member of the unlawful
assembly. The Court convicted the other members who had not caused
the fatal injury under Section 302 read with Section 149 and Section
34". In the facts and circumstances of that case it was held
that as the finding of the Court was that none of the members of the
unlawful assembly had the intention to kill the deceased nor did any
of them knew that the deceased was likely to be killed in prosecution
of the common object of chastisement and as the charge gave no notice
to the accused that they had a separate common intention of killing
the deceased different from that of the other members of the unlawful
assembly, the conviction of the accused who had not caused any fatal
injury of an offence under Section 302 read with Section 149 or
Section 34 could not be sustained. In Sarma v. State of Madhya
Pradesh 1993 Cri LJ 63 : (AIR 1993 SC 400), it was found on the facts
of that case that the accused inflicted simple injuries on non vital
parts of the deceased and it could not be said that object of accused
was to kill deceased and, therefore, the accused were held liable to
be convicted under Section 304-II/149, IPC and not under Section
302/149, IPC. In Subran alias Subramanian v. State of Kerala 1993 Cri
LJ 1387 : (1993 AIR SCW 1014), three Judge Bench of the Hon'ble
Supreme Court held as under :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
Since, appellant No. 1 Subran had not been charged for the
substantive offence of murder under Section 302, IPC, even the trial
Court, which tried the six accused persons, was not justified in
recording a conviction against him for the substantive offence of
murder punishable under Section 302, IPC after framing a charge
against him for the offence under Section 302 read with Section 149,
IPC only. A person charged for an offence under Section 302, IPC read
with Section 149 cannot be convicted of the substantive offence under
Section 302, IPC without a specific charge having been framed against
him as envisaged by law. Conviction for the substantive offence in
such a case is unjustified because an accused might be misled in his
defence by the absence of the charge for the substantive offence
under Section 302, IPC. Appellant No. 1, Subran, was never called
upon to meet a charge under Section 302, IPC simpliciter and,
therefore in defending himself, he cannot be said to have been called
upon to meet that charge and he could very well have considered it
unnecessary to concentrate on that part of the prosecution case
during the cross-examination of the prosecution witnesses. Therefore,
the conviction of the first appellant for an offence under Section
302 was not permissible....</span></span></div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;">15.
In Re : Ranga, AIR 1954 Mysore 75 : (1954 Cri LJ 622), a Division
Bench of Mysore High Court has held that Section 149 may be
applicable to cases to which Section 34 does not apply. The essential
condition for the operation of either section is that the intention
in one case and object in the other should be common and if the act
is in excess of or beyond the intention or object of the members,
they cannot be constructively liable for it.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16.
In the present case the prosecution has examined PWs. 12 and 14 as
eye-witnesses. In his deposition PW-12 stated that on 21-6-1994 he
was coming from village Kuthar to his residential house in village
Baghol at about 11 a.m. His mother PW-13 at that time was working in
the field and his brother namely, Ram Rattan and sister Krishna met
him on the way who told him that they are given beatings by A-1 at
village Baniara. He asked his mother, to find out from A-1 the reason
for giving heating to the children and in the meantime, A-1, A-8,
A-9, A.-14, A-16 and A-22 also came from the side of 'Ghasni' (grass
land). His father Guddu Ram was also called from his residential
house by his younger brother and sister. On his father's arrival,
A-1, A-15, A-5, A-14 and A-7 threw stones upon his father and mother
PW-13. They firstly threw his mother on the ground and then came
towards him and his father to give them beatings but due to fear they
came to their house. When they reached at their house, A-2, A-3,
A-13, A-9, A-18, A-20, A-11, A-12, A-14, A-23 and A-21 jointly came
to their house with the intention to quarrel with them, A-1, A-2, A-3
and A-15 were armed with sticks and the other accused were holding
stones in their hands. He along with his father, brother and sister
went inside the room and bolted the door from inside. All the accused
surrounded their house. A-1, A-2, A-3 and A-15 had broken the door of
their room whereas A-9, A-14 and A-5 had damaged the upper portion of
the roof of their house and started pelting stones upon them. A-1,
A-2, A-3 and A-15 forcibly entered their room and had given 'Dandas'
blows on the person of his father Guddu Ram and thereafter he was
dragged to the courtyard of their house where the accused again had
given 'Dandas' and stones blows on his person and then laid him in
their kitchen. His father sustained injuries on his arms, fingers,
legs, head and other parts of the body. The above said four accused
also inflicted 'Danda' and stones injuries on the person of his
sister Krishna Devi and brother PW-14. He escaped from the scene of
the occurrence and reached police station to lodge a report Ext. PW.
10/A on the basis of which FIR Ext. PW-12/A was recorded. The Police
reached at the spot at 6 p.m. on the same day and with the help of
Nek Ram, Ramesh Kumar and Ram Dass his father Guddu Ram was taken to
hospital in Palki (palangulin) in injuried condition who succumbed to
his injuries on the way and his dead body was brought back to their
house. The Investigating officer started investigation on the spot
and took into possession blood stained earth scattered on the floor
of the kitchen where his father was thrown after inflicting injuries
by the accused. Site plan of the house was also prepared. In his
presence PW-1 produced one stick of pear wood. A-2 also handed over
one stick of 'kainth' wood to the Investigating Officer. Similarly,
A-3 and A-15 also handed over one stick each of 'Sota' wood and
'Daran' wood respectively to the Investigating Officer with which
they had inflicted multiple grievous injuries to his deceased father.
Blood stained stones lying at the scene of occurrence were also taken
into possession and sealed on the spot. In his cross-examination, the
accused failed to discredit his testimony on the vital issues. He
categorically named A-2 who struck 'Danda' blow on the head of his
father whereas A-15 inflicted nearby the ear portion of the head. He
has emphatically denied the suggestion of the accused that his father
fell down on the hilly slope adjoining to their house and rolled down
as a result thereof he sustained injuries which proved to be fatal to
him. Further suggestion that he along with his father, brother and
sister had pelted stones from inside their room and courtyard and
that accidentally one stone thrown by him hit his father on his
temporal region, was categorically denied by him. He also denied the
suggestion that false report has been registered by him against the
accused as he is in the habit of manipulating such type of cases
being registered against innocent persons to extract money from them.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">17.
PW-13 wife of deceased Guddu Ram has corroborated the testimony of
PW-12 about the manner and genesis of taking place of the occurrence.
In her deposition, she also stated that A-1, one Babi and Jai Pal had
thrown stones upon her resulting causing injuries on her legs. In her
cross-examination she denied the suggestion of the accused that her
husband Guddu Ram and son PW-12 went to the residential house of A-1
on the day of occurrence armed with 'Danda' and stones and used
abusive language to A-1 and his wife A-16. She also denied the next
suggestion that the conplainant party after inflicting injuries on
the person of A-16 Smt. Sheela Devi wife of A-1, her husband
(deceased) fell down at the hilly slope and consequently he died.
PW-14 the second eye-witness has also given the ocular account of the
incident in his deposition. He specifically stated that A-1, A-2, A-3
and A-15 surrounded their house armed with 'Dandas' and stones. He
stated that the accused after breaking open the door of their room
had forcibly entered into it and, thereafter, started giving beatings
to his father with 'Dandas' on his head and other parts of his
person. His father was dragged from inside the room and laid in the
courtyard where again he was given 'Dandas' blows on his person by
the accused. Thereafter, his father was thrown inside their kitchen.
He denied the suggestion of the accused that his father, mother PW-13
and brother PW-12 went to the house of A-1 and quarrelled with him
and his wife A-16. In his cross-examination he re-asserted and
re-affirmed that A-1, A-2, A-3 and A-15 gave four 'Dandas' blows on
the person of his father inside the room after making forcible entry
and, thereafter, they' dragged him outside the room and laid him in
the courtyard where he was again given 'Dandas' blows by all the four
accused. Suggestions of the accused that his father was used to take
liquor and further that his father fell down from a hilly slope and
consequently died are emphatically denied by him.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">18.
On 22-6-1994 post-mortem on the dead body of Guddu Ram was performed
by PW-1 Dr. A.K. Arora who found Guddu Ram to have sustained the
following injuries on his person.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Crushed lacerated wound on right parietal region 2" x 1" x
1/2" Clotted blood was present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
CLW Soft parietal region 1" x 1/2" x 1/2" with clotted
blood.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
Bruised area right shoulder 2" x 1" Subcutaneous
haemorrhage was present, colour was red.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
Bruised area left lower and lateral part of chest carrying 9th
lateral part of chest overlying 9th Red in colour subcutaneous
haemorrhage was present. There was fracture of 9th and 10th ribs
anteriorly.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
CLW left elbow 2" x 1" x 1" size. Blood Clot was
present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6.
Left hand was swollen bruised area was present on dorsum of hand, red
in colour 3" x 2" in size, Subcutaneous haemorrhage was
present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7.
Left middle finger of hand terminal and was crushed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
Bruished area below left elbow 2" x 1" read in colour.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
CLW above left wrist 2" x 1" x 1/2" with fracture of
lower end of ulna bone.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
Bruised area 4" x 2" above right wrist with fracture of
lower end of radius and ulna. Bruised area was red in colour, and
subcutaneous haemorrhage was present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
Bruised area left leg below knee 3" x 2" red in colour,
subcutaneous haemorrhage was present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
CLW middle of right left 4" x 2" x 1" of size clotted
blood was present.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">19.
The probable time between injuries and death was 6 to 8 hours and.
between death and post-mortem was within 24 hours. In the opinion of
Dr. Arora, Guddu Ram had died due to shock following massive internal
haemorrhage. He issued post-mortem report Ext. PW-1/A. On examination
of Chemical Analyst report Ext. PW-1/B, he gave his opinion Ext.
PW-1/C that injury Nos. 1 and 2 could be caused by stick Ext. P. 1
and injury Nos. 1, 2, 3, 5 and 9 could also be caused by stick Ext.
P-3. Similarly, these injuries could be caused by Stick Ext. P-1. Dr.
Arora further stated that all the injuries described in the
post-mortem report could be caused by stones Exts. P-5 and P-11.
During the cross-examination, Dr. Arora further opined that above
detailed injuries were possible if a person had a fall on a hilly
slope and rolled down. He also opined that injuries found on the
person of Guddu Ram could be caused by a particular 'Danda' out of
sticks Ext. P-1 to Ext. P-4. He stated that there could be different
types of injuries with different types of 'Dandas' even different
types of injuries could be sustained by one 'Danda' and it was not
always possible that force and shape of weapon of offence will
determine or establish connection between weapon of offence and
injury.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">20.
PW-15 Om Parkash, Station House Officer, Police Station, Kasauli
investigated the case. He took into possession four sticks produced
by A-1, A-2, A-3 and A-15 to him. He denied the suggestion of the
accused that sticks Exts. P-1 to P-4 were not handed over to him by
the accused but they were in fact handed over by PW-12 Sohan Lal. He
corroborated the testimony of PWs. 12, 13 and 14 on all material
particulars. However, he admitted in his cross-examination that there
is hilly slope towards the western side of the house of the deceased
quoted by him in site plan Ext. PW-15/B. He denied the suggestion of
the accused that when he prepared . the final report, he impleaded
A.C. Dani, Tehsildar and H.C. Balak Ram as co-accused in the present
case and explained that Sardari Lal to whom he handed over the papers
of the case inadvertently impleaded the names of A.C. Dani,
Tehsildar, Kasauli and H.C. Balak Ram in the list of the accused. He
also denied further suggestion of the accused that when the
investigation of this case was about to be completed, he came to know
that Guddu Ram and his family members after taking quarrel with A-15
Manoj Kumar and A-16 Smt. Sheela Devi came back running to their
house and in that process Guddu Ram fell down on a hilly slope and
received injuries resulting in his death. On re-appraisal and
scrutiny of the testimony of PWs. 12, 13 and 14 we find that their
evidence is not shattered and impeached by the accused in the
cross-examination. The medical evidence corroborates the ocular
version of these witnesses to prove that deceased Guddu Ram died
because of stick blows given by A-1, A-2, A-3 and A-15 on his person
and he received multiple injuries. The opinion of the Doctor is clear
and positive that Guddu Ram died due to shock following massive
internal haemorrhage and the injuries found on his person could be
inflicted by 'Dandas' P-1 to P-4 coupled with stones. The learned
Sessions Judge on assessment of the evidence has rightly held that
the prosecution has failed to establish that all the accused persons
have committed rioting after forming unlawful assembly with common
object to commit the offence of murder of Guddu Ram and, therefore,
they have been rightly acquitted for the offences under Sections 147,
148 and 149 of the Indian Penal Code.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">21.
Now the question is whether the accused persons could be convicted
under Section 302, IPC without framing substantive charge against
them as contended by their learned Counsel. The ratio of the
judgments relied upon by the learned Counsel is considered by us and
in our view, it cannot be said that the accused are prejudiced in any
manner if substantive charge of Section 302, IPC was not framed
against each of them independently. The Supreme Court in </span></span><a href="http://www.indiankanoon.org/doc/1347962/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Willie
(William) Slaney v. State of Madhya Pradesh AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1956
SC 116 : (1956 Cri LJ 291) had considered the provisions of Sections
233, 535 and 537 of the Code of Criminal Procedure (1898)
(corresponding to Sections 218, 464 and 465 of the Code of Criminal
Procedure, 1973). In that case each of the two accused were charged
under Section 302 read with Section 34, IPC and no separate charge
was framed against one accused who was convicted by the Court below
under Section 302, IPC. On detailed consideration of the facts and
circumstances of that case and the relevant provisions of law their
Lordships held that, having regard to the nature of the charge framed
against the accused the omission to frame a separate charge under
Section 302, Penal Code against him was only a curable irregularity
which in the absence of prejudice could not affect the legality of
conviction under Section 302, Penal Code. The ratio of the judgment
in AIR 1955 SC 274 : (1955 Cri LJ 721) and AIR 1955 SC 419 : (1955
Cri LJ 1004) was explained and distinguished and it was held that
there was no rare conflict between these decisions. In State of A.P.
v. Thakkidiram Reddy (1998) 6 SCC 554 : (1998 Cri LJ 4035), their
Lordships while dealing with and considering the provisions of
Sections 211, 215, 464 and 465 of Criminal Procedure Code, 1973 held
as under:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
Before considering the factual aspects of the case, it will be
necessary to advert to a question of law relating to the validity of
the trial raised by Mr. Arunachalam, the learned Counsel appearing
for A-2 to A-5 and A-9. He contended that the charges were not framed
against the accused persons in accordance with Section 211 of the
Code of Criminal Procedure, in that, in the charge framed under
Section 148, IPC, though it was alleged that they were the members of
an unlawful assembly, it was not mentioned what its common object
was. Besides, he contended, a charge under Section 302, IPC
simpliciter was framed against all the accused persons and not with
the aid of Section 149, IPC for which they were convicted by the
trial Court. He submitted that an accused is entitled to precisely
know the exact nature of knowledge, he will be prejudiced in his
defence, particularly in a case-as committed by himself but by others
with whom he is in company. It is undoubtedly true that the charges
suffered from the infirmities pointed out by Mr. Arunachalam but the
question is whether the trial, and, for that matter, the convictions
recorded against the accused were vitiated thereby.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
Sub-section (1) of Section 464 of the Code of Criminal Procedure,
1973 ("Code" for short) expressly provides that no finding,
sentence or order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed or on
the ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless in the opinion of the
Court of appeal, confirmation or revision, a failure of justice has
in fact (emphasis supplied) been occasioned thereby. Sub-section (2)
of the said section lays down the procedure that the Court of appeal,
confirmation or revision has to follow in case it is of the opinion
that a failure of justice has in fact been occasioned. The other
section relevant for sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of appeal,
confirmation or revision on account of any error, omission or
irregularity in the proceedings, unless in the opinion of that Court,
a failure of justice has in fact been occasioned. It further
provides, inter alia, that in determining whether any error, omission
or irregularity in any proceeding under this Code has occasioned a
failure of justice, the Court shall have regard to the fact whether
the objection could and should have been raised at an earlier stage
in the proceedings.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
This Court in Willie (William) Slaney v. State of M. P. (1956 Cri LJ
291) (SC) elaborately discussed the applicability of Sections 535 and
537 of the Code of Criminal Procedure, 1898 which correspond
respectively to Sections 464 and 465 of the Code, and held that in
judging a question of prejudice, as of guilt, courts must act with a
broad vision and look to the substance and not to technicalities, and
their main concern should be to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him
fairly and clearly and whether he was given a full and fair chance to
defend himself. Viewed in the context of the above observations of
this Court, we are unable to hold that the accused persons were in
any way prejudiced due to the errors and omissions in the charges
pointed out by Mr. Arunachalam. Apart from the fact that this point
was not agitated in either of the Courts below, from the fact that
the material prosecution witnesses (who narrated the entire incident)
were cross-examined at length from all possible angles and the
suggestions that were put forward to the eye-witnesses we are fully
satisfied that the accused persons were not in any way prejudiced in
their defence. While on this point we may also mention that in their
examination under Section 313 of the Code, the accused persons were
specifically told of their having committed offences (besides others)
under Sections 148 and 302/149, I P.C. For all these reasons we
reject the threshold contention of Mr. Arunachalam.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">22. </span></span><a href="http://www.indiankanoon.org/doc/863509/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Kammari Brahmaiah v. Public Prosecutor, High Court of A. P.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1999)
2 SCC 522 : (1999 Cri LJ 1134), it is held :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Section
464 in mandatory terms and specifically provides what is to be done
in cases where a charge is not framed or there is an error, omission
or irregularity in framing of the charge. From the unequivocal terms
of the Section, it can be stated that a finding, sentence or order
could be set aside only in those cases where the facts are such that
no valid charge could be preferred against the accused in respect of
the facts proved. Secondly, if the facts are such that a charge could
be framed and yet it is not framed but no failure of justice has in
fact been occasioned thereby, the finding, sentence or order of the
court of competent jurisdiction is not to be set aside on that
ground. Thirdly, if there is failure of justice occasioned by not
framing of the charge or in case of an error, omission or
irregularity in the charge, re-trial of the case is to be directed
under Sub-section (2)." The judgment further proceeded to hold :
"non-framing of a charge would not vitiate the conviction if no
prejudice is caused thereby to the accused. The trial should be fair
to the accused, fair to the State and fair to the vast mass of the
people for whose protection Penal Laws are made and administered. </span></span><span style="color: maroon;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
Code of Criminal Procedure is a procedural law and is designed to
further the ends of justice and not to frustrate them by the
introduction of endless technicalities."</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
In that case their Lordships have relied upon the case of </span></span><a href="http://www.indiankanoon.org/doc/910120/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramkishan
v. State of Rajasthan</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1997)
7 SCC 518 : 1997 SCC (Cri) 1106 : (1998 Cri LJ 54); Willie (William)
Slaney v. State of M. P. (1955) 2 SCR 1140 : AIR 1956 SC 116 : 1956
Cri LJ 291.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">23.
In the light, of the aforesaid decisions of the Apex Court in the
facts of the present case we are not persuaded to accept the
contention of the learned Counsel for the accused that non-framing of
separate charge against each of the accused under Section 302, I.P.C.
would vitiate their conviction as we find that no prejudice is caused
thereby to the accused. The accused were tried on the prosecution
version which was specifically told to them under Fourthly charge
(sic) framed by the trial Court. Their statements were recorded under
Section 313, Cr.P.C. and they were asked to the fact that they
forcibly entered the house of Guddu Ram and inflicted 'Dandas' blows
on his head and other parts of his person inside the room of his
house and, thereafter, he was dragged out of the room and laid at his
courtyard where more injuries were caused to him which resulted his
death. The role played by A-1, A-2, A-3 and A-15 has been clearly and
plainly stated by PWs-12 and 14 in their evidence and their testimony
has been accepted being unblemished and unshattered. Thus, we are of
the view that no prejudice has been caused to the accused for not
framing separate substantive charge against each of them for the
offence punishable under Section 302, I.P.C. and they cannot be held
entitled to be acquitted on this sole ground for causing the death of
Guddu Ram.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">24.
The second contention of the learned Counsel that the prosecution
could not prove that who inflicted serious individual injury on the
person of the deceased is not sustainable. From the scrutiny of the
evidence of PWs. 12 and 14 which is reliable, cogent and acceptable,
it has been proved that all the four accused inflicted 'Dandas' blows
on the head, arms, fingers, legs and other parts of his body and
multiple injuries were found by the Doctor on the dead body of Guddu
Ram. In the teeth of the reliable and believable oral evidence of
PWs. 12 and 14 corroborated by medical evidence, in our view that the
accused have been rightly found guilty having caused death of the
deceased.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">25.
The third contention of the learned Counsel that the prosecution has
not explained the injuries found on the person of A-15 and A-16
inflicted upon them jointly by Guddu Ram deceased and PWs. 12, 13 and
14 for which daily diary report Exts. DA and DB were lodged by A-15
and A-16 at Police Post, Kuthar on the day of incident at 12.30 p.m.
and 3.15 p.m. respectively. On consideration of the material on
record, we do not find any substance in this contention. The F.I.R.
Ext. PW- 12/A about the occurrence was lodged by PW-12 Sohan Lal at
Police Station, Kasauli on 21-6-1994 at 11.30 a.m. prior to the
lodging of the daily diary report Exts. DA and DB by A-15 and A-16.
PW-11 Dr. Deveshwar Pandey, a Medical Officer of Primary Health
Centre, Chandi medically examined A-15 and A-16 on 22-6-1994. He
noticed following two injuries on the person of A-15 :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Cutless lacerated wound 1 1/2 cms. on scalp over occipital region
below occipital protuberance with infection.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
Abrasion 1/4 cm. over metacarpo phalangial joint of right little
finger.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">26.
On the person of A-16 Smt. Sheela Devi the following injuries were
found :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Abrasion 1/2 cm. on left lateral side of forehead with clotted blood
over injury.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">These
injuries found on the person of A-15 and A-16 were simple in nature
caused within period of 24 to 36 hours. These injuries are minor and
superficial in nature and, therefore, no action appears to have been
taken by the police on the basis of their reports. It has come in the
evidence of PW-12 Sohan Lal that when he was going to Police Station
to lodge the report of the incident, A-15 and A-16 on the way tried
to prevent him lodging First Information Report and at that place
scuffle took place between him and these two accused. A-15 caught him
and when he tried to release himself from the clutches of A-15 in
that process he pushed A-15 back who fell down on the stone and
sustained injuries. In view of this evidence, the prosecution is not
further obliged to explain the injuries sustained by A-15 and A-16.
In their statements under Section 313, Cr.P.C. all the accused took
common plea that Sohan Lal (PW-12) his father Guddu Ram (deceased),
mother Smt. Kalawati (PW-13) and Ram Rattan came to the house of A-16
at 9.30 a.m. armed with stones. Sohan Lal inflicted stone injuries
upon A-16 and when A-15 tried to rescue to her Sohan Lal inflicted
injuries to him on his head and legs. From the medical examination of
A-15 and A-16 by Doctor PW-11 it cannot be said that those injuries
found on their person were caused by stones inflicted by PW-12 Sohan
Lal. The prosecution has proved that the incident had taken place at
the house of deceased Guddu Ram and not at the house of A-16 Smt.
Sheela Devi as projected by the accused in their statements and
defence taken by them. The defence of the accused that Guddu Ram died
because of fall near his house from a hilly slope was not stated by
the accused in their statements recorded under Section 313, Cr.P.C.
and the version of DW-1 Mansha Ram has been rightly rejected by the
learned trial Judge as he is not found to be a truthful witness.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">27.
The law as to failure of prosecution to explain injuries sustained by
accused has been so stated in a recent decision by the Supreme Court
in </span></span><a href="http://www.indiankanoon.org/doc/927539/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Takhaji
Hiraji v. Thakore Kubersing Chamansing</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(2001)
6 SCC 145 : AIR 2001 SC 2328 : 2001 Cri LJ 2602 in which it has been
observed that it cannot be held as a matter of law or invariably a
rule that whenever the accused sustained an injury in the same
occurrence the prosecution is alleged to explain those injuries in
every case. There is no material brought on record to hold that the
injuries sustained by A-15 and A-16 were so sustained at the same
time and place at which the deceased sustained injuries, that is to
say, to hold that the injuries to both the sides were caused during
the course of the same incident.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">28.
Mr. T.R. Chandel, learned Counsel next contended that 'Dandas' Exts.
P-1 to P-4 allegedly taken into possession by the Investigating
Officers were not connected with the commission of the offence used
by the accused as no blood was found on the alleged weapons of
offence by the Chemical Examiner as reported in Ext. PW-9/A. On
examination of report Ext. PW-9/A, it is stated that one 'Danda' of
'pomigrant' wood was stained with human blood but the blood group
could not be determined conclusively. No blood was found on 'Kainth'
and Peer wood sticks by the Chemical Examiner. The accused cannot
take the benefit of non-sticking of the stains of blood on the sticks
used by them which were voluntarily produced by them to the
Investigating Officer during the investigation of the case lodged
against them. PW-12 has categorically stated that sticks Ext. P-1 to
P-4 were the same which were used by the accused at the time of
giving beatings to his father. Dr. A.K. Arora has also stated that
the injuries sustained by deceased could be caused by the said
'Dandas'. In the teeth of the positive evidence led by the
prosecution on this point, it cannot be said that the link evidence
is missing in this case and 'Dandas' Exts. P-l to P-4 were proved to
be the same used by the accused in the commission of the crime.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">29.
It was also contended by Mr. Chandel that all the witnesses examined
by the prosecution are related and interested and their testimony
cannot be relied upon as the parties are inimical to each other. In
support of this submission he has relied upon the judgment of the
Supreme Court in Sevi v. State of Tamil Nadu AIR 1981 SC 1230 : (1981
Cri LJ 736). In that case their Lordships have held that if the
entire evidence is of partisan character the impartial investigation
can lend assurance to the Court to enable it to accept such partisan
evidence. But where in a murder case, the investigation itself was
found to be tainted, in the sense that the original FIR was
suppressed by the Police, it becomes difficult for the Court to sift
the evidence, and the evidence of partisan eyewitnesses could not be
accepted. In the facts of that case the accused were acquitted of the
charge of murder. In the present case, the eye-witnesses are the sons
of the deceased and there is no evidence on record to prove that
besides the family members of deceased Guddu Ram there was only other
independent person on the spot who had witnessed the occurrence. The
accused with common intention came to the house of the deceased armed
with sticks and stones and on seeing them deceased Guddu Ram, his
sons and daughter out of fear bolted themselves inside a room and the
accused persons forcibly broken open the door of the room and
instantaneously started giving beatings to Guddu Ram with sticks. The
testimony of eye-witnesses cannot be discredited merely on the ground
that they are partisan and interested witnesses, as we find that they
are truthful witnesses and have given true account of the occurrence
and their evidence is not found to be unworthy of credence. </span></span><a href="http://www.indiankanoon.org/doc/1579663/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Madhusudan Das v. Smt. Narayani Bai AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1983
SC 114 it has been held that it is not open to the Court to reject
the evidence without anything more on the mere ground of relationship
or favour or possible prejudice. In State of Punjab v. Wassan Singh
AIR 1981 SC 697 : (1981 Cri LJ 410) their Lordships held :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">in
a murder case the mere fact that the witnesses had succeeded in
escaping unhurt or that there are discrepancies in the statements of
the two witnesses as to whether they had gone to Amarkot with the
deceased on the very day of occurrence or a day earlier, is no ground
for jumping to the conclusion that the witnesses were not in the
company of the deceased or near about the scene of occurrence when
the deceased persons were shot dead.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">30.
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
decision further proceeded to hold that persons with questionable
antecedents were not necessarily untruthful Witnesses. Nor mere
relationship with the deceased was a good ground for discarding their
testimony, when their presence at the scene of occurrence was
probable. All that was necessary was to scrutinize their evidence
with more than ordinary care and circumspection with reference to the
part or role assigned to each of the accused. An effort should be
made to sift the grain from the chaff; to accept what appeared to be
true and to reject the rest.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
The High Court did not adopt this methodology in appreciating their
evidence. Instead, it took a short-cut to disposal, and rejected
their evidence wholesale against all the accused, for reasons which
were manifestly untenable. On re-appreciation of the evidence of the
relative or interested witnesses, the acquittal of the accused Wassan
Singh and Mukhtiar Singh by the High Court was set aside and they
were convicted for the offence under Section 302 read with Section
34, I.P.C. for the murder of </span></span><a href="http://www.indiankanoon.org/doc/655590/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Hazara
Singh. In Jangir Singh v. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2000)
10 SCC 261, it has been held that the testimony of injured
eye-witness the wife of the deceased cannot be disbelieved and
discarded merely on the ground that she was an interested witness.
Thus, in the present case the testimony of the relative witnesses
cannot be disbelieved and discarded merely on the ground of their
interestedness. Once they are proved to be truthful witnesses, their
evidence has been rightly accepted by the learned trial Court. This
contention of the learned Counsel therefore, cannot be accepted.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31.
Mr. Chandel, learned Counsel lastly contended that the prosecution
has failed to prove the common intention and object of the accused to
commit the murder of deceased Guddu Ram and that there is no evidence
to prove that out of the four accused who individually inflicted
particular injury upon the person of the deceased resulting his
death, therefore, the accused can at the best be convicted under
Section 304, I.P.C. read with Section 34, I.P.C. In support of this
contention reliance was placed in a case of Jagpati v. State of
Madhya Pradesh AIR 1993 SC 1360 : (1993 Cri LJ 1058). In that case
their Lordships found that death caused by injuries inflicted on head
of deceased in sudden quarrel by the accused having no intention to
cause particular injury which was sufficient to cause death. In the
facts and circumstances of the case the conviction of the accused
under Section 302 read with Section 34 was altered to Section 304,
Part II read with Section 34,</span></span><a href="http://www.indiankanoon.org/doc/173865/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">I.P.C.
In Gurdip Singh v. State of Punjab AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1987
SC 1151 : (1987 Cri LJ 987), it was held that two accused causing
injuries to the victim, one being sufficient in ordinary course to
cause death but the material available on record had created doubt
whether their intention was to kill the victim or to attack him for
taking revenge of his suspected illicit relation with a female of
their family, the correct approach on the evidence and other
circumstances in that case according to their Lordships was to hold
the accused guilty under Section 304, Part-I and their conviction
under Section 302, I.P.C. was converted accordingly. </span></span><a href="http://www.indiankanoon.org/doc/1814850/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Ram Meru v. State of Gujarat</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1993
Supp (1) SCC 315 : (1992 Cri LJ 1265), the common intention to murder
the deceased was not established conclusively beyond reasonable doubt
by the prosecution and the accused were convicted by Sessions Court
under Sections 326/34 and 324, I.P.C. which was found proper and its
enhancement to Sections 302/34 by the High Court was not held to be
sustainable. </span></span><a href="http://www.indiankanoon.org/doc/956554/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Ram Lal v. Delhi Administration AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1972
SC 2462 : (1973 Cri LJ 17), the accused was convicted under Section
302, I.P.C. by the Sessions Court and his conviction and sentence was
confirmed by the High Court. On appeal by the accused, their
Lordships set aside the conviction of the accused under Section 302,
I.P.C. and altered it to one under Section 325 read with Section 34.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">32.
We have discussed the evidence of the eye-witnesses in the earlier
part of the judgment and on re-appraisal and scrutiny of the entire
evidence on record, the accused have inflicted sticks blows on the
head of the deceased, Guddu Ram inside the room of his house and as
well as on other parts of his person and, thereafter, the accused
dragged him out of the room and laid him in the courtyard where more
blows of sticks were given to him by the four accused persons. When
Guddu Ram was taken to hospital, he died on the way because of the
injuries suffered by him at the hands of the accused. A-1, A-2, A-3
and A-15 facilitate murderous assault with common intention and in
furtherance of their common intention, they caused the death of Guddu
Ram. In the facts and circumstances of the case, we convict the
accused under S.302 read with Section 34. I.P.C. and their conviction
in our view cannot be altered to Section 304, I.P.C. as contended by
their learned Counsel. The common intention of the accused can be
seen from the nature of the injuries caused to deceased Guddu Ram by
the accused besides other circumstances narrated hereinabove. The
accused persons shall each suffer imprisonment for life and to pay
fine of Rs. 5,000 each, in default of payment of fine, each of the
accused shall suffer simple imprisonment for one year for offence
under Section 302 read with Section 34, I.P.C.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">33.
The prosecution has proved beyond reasonable doubt that the accused
forcibly entered into the house of deceased Guddu Ram; broken open
the room bolted from inside and, thereafter, assaulted Guddu Ram. The
learned trial Court has rightly convicted and sentenced them for
offence under Section 452, I.P.C. So far the conviction and sentence
imposed by the learned trial Court upon the accused under Section
323, I.P.C. for causing the injuries to deceased Guddu Ram is
concerned, the same is set aside as since no separate charge under
Section 323, I.P.C. was framed by the trial Court against the accused
and further the accused are convicted for major offence under Section
302, I.P.C. and their conviction under Section 323, I.P.C. is
unjustified and unsustainable. The accused are acquitted of the
charge under Section 323, I.P.C. Both the sentences imposed upon the
accused under Section 302 read with Section 34, I.P.C. and Section
452, I.P.C. shall run concurrently.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">34.
As far Criminal Appeal No. 558/2000 filed by the State against the
acquittal of the accused and other respondents under Sections 147,
148, 149, 452, 302 and 323, I.P.C. is concerned, we do not find any
merit in the said appeal. The prosecution has not proved by positive,
cogent and reliable evidence that all the accused formed unlawful
assembly and committed rioting with common object and intention.
PW-13 Smt. Kalawati and PW-14 Krishan Kumar could not prove that the
injuries were inflicted on their person by the accused persons by
pelting stones and giving 'Danda' blows. Dr. PW-2 Lalit Gupta and
PW-5 Dr. Radha Chopra medically examined PW-13 Smt. Kalawati and
PW-14 Krishan Lal have found simple injuries on their person which
could not be attributed to the accused persons and other respondents
caused by them by 'Dandas' Exts. P-l to P-4 or stones as alleged by
the witnesses.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">35.
On re-appraisal and scrutiny of the entire evidence on record, we are
of the considered view that the view taken by the trial Court was
possible view and if there are two possible views, one taken by the
trial Court has to be accepted and the benefit of doubt has to be
given to the accused persons. </span></span><a href="http://www.indiankanoon.org/doc/1079194/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Awadhesh v. State of Madhya Pradesh AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1988
SC 1158 : (1988 Cri LJ 1154), it has been held as under (para 3) :</span></span></div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;">Although
the powers of the High Court to reassess the evidence and reach its
own conclusion are as extensive as in an appeal against the order of
conviction, yet as a rule of prudence, the High Court should always
give proper weight and consideration to matters e.g. (i) the view of
the trial Judge as to the credibility of the witnesses; (ii) the
presumption of innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has been acquitted at the
trial; (iii) the right of the accused to the benefit of any doubt,
and (iv) the slowness of an Appellate Court in disturbing a finding
of fact arrived at by a Judge who had the advantage of seeing the
witnesses. If on appraisal of the evidence and no considering
relevant attending circumstances it is found that two views are
possible, one as held by the trial Court for acquitting the accused
and the other for convicting the accused in such a situation the rule
of prudence should guide the High Court not to disturb the order of
acquittal made by the trial Court. Unless the conclusions of the
trial Court drawn on the evidence on record are found to be
unreasonable, perverse or unsustainable, the High Court should not
interfere with the order of acquittal.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">36.
We do not find any infirmity, illegality or perversity in the order
of the learned trial Court acquitting the accused and other
respondents for the offence with which they were charged. The appeal
of the State, therefore, is dismissed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">37.
No other point is urged by the learned Counsel for the parties.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><u>38.
For the foregoing reasons, we partly allow the appeal filed by the
accused to the extent indicated above. We would, however, record the
benefit of doubt to the respondents in the appeal filed by the State
and maintain their acquittal on all counts.</u></span></span></span></div>
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free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-1130291998181738392013-08-23T23:27:00.001+05:302013-08-23T23:27:51.272+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
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Labels---- Sections 376/302 of the IPC, circumstantial evidence,
Section 106 of the Evidence Act, DNA
profiling, court witness, Section 313 of the Cr.P.C, “audi alteram
partem”, `the rarest of the rare',<br />
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<div style="margin-bottom: 0in;">
<span style="font-size: large;"><b>Supreme Court of India </b></span>
</div>
<div style="margin-bottom: 0in;">
Santosh Kumar Singh vs State Th. Cbi on
6 October, 2010
</div>
<div style="margin-bottom: 0in;">
Author: H S Bedi
</div>
<div style="margin-bottom: 0in;">
Bench: Harjit Singh Bedi, Chandramauli
Kr. Prasad
</div>
<div style="margin-bottom: 0in;">
IN THE SUPREME COURT OF INDIA</div>
<div style="margin-bottom: 0in;">
CRIMINAL APPELLATE JURISDICTION</div>
<div style="margin-bottom: 0in;">
CRIMINAL APPEAL NO. 87 OF 2007</div>
<div style="margin-bottom: 0in;">
Santosh Kumar Singh ....Appellant
Versus</div>
<div style="margin-bottom: 0in;">
State thr. CBI ...Respondent J U D G M
E N T</div>
<div style="margin-bottom: 0in;">
HARJIT SINGH BEDI,J.</div>
<div style="margin-bottom: 0in;">
This appeal arises out of the following
facts:
</div>
<div style="margin-bottom: 0in;">
1. The deceased, Priyadarshini Mattoo,
was residing with her parents at B-10/7098, Vasant Kunj, New Delhi
and was a student of the LL.B. course at the University of Delhi
Campus Law Centre, and had at the relevant time completed the 5th
Semester and was in the final 6th Semester. The appellant, Santosh
Kumar Singh had also been a student in the same faculty and had
completed his LL.B. in December 1994. It appears that the appellant
had been attracted to the deceased and even though he had passed out
from the Law Centre in 1994, he had continued to visit the campus
even thereafter on his Bullet Motorcycle bearing Registration Number
DL-1S-E/1222.
</div>
<ol start="2">
<li><div style="margin-bottom: 0in;">
As per the prosecution story, the
appellant harassed and intimidated the deceased and despite her
requests and then her remonstrations, did not desist from doing so.
The deceased thereupon made several complaints against the appellant
in different Police Stations during the year 1995 on which he was
summoned to the Police Station and was advised to behave properly
and a Personal Security Officer, Head Constable Rajinder Singh
PW-32, was also deputed for the security of the deceased. It appears
that as a consequence of the complaints against him, the appellant
too retaliated and made a report to the University on 30th October
1995 alleging that the deceased was pursuing two courses
simultaneously which was in violation of the University Rules and
when no action was taken he sent two reminders dated 4th December
1995 and 20th December 1995 to the University as well. A show cause
notice was issued to the deceased and in response thereto she
submitted her reply dated 1st December 1995 and during the pendency
of these proceedings, the result of her LL.B. 5th Semester
examination was withheld. On 23rd January 1996 PW Head Constable
Rajinder Singh, the PSO, did not turn up at the residence of the
deceased at the stipulated time on which she left for the University
in her car along with her parents PW-1 Mr. C.L. Mattoo and PW-44
Mrs. Rageshwari Mattoo who had to visit the Tis Hazari Courts to
attend to some civil proceedings. The parents were dropped off at
Tis Hazari at 10.15 a.m. Head Constable Rajinder Singh, however,
reached the Faculty of Law directly and saw the appellant present
there. The deceased attended the class from 11.15 a.m. to noon and
thereafter accompanied by the Head Constable left the faculty for
Tis Hazari but finding that her parents had already left the court,
she returned to her residence at about 1.45 p.m. and directed Head
Constable Rajinder Singh to report again at 5.30 p.m. The deceased
then had her lunch whereafter Virender Prasad, the domestic help,
left the house at about 2.30 p.m. to meet his friend Vishnu Prasad @
Bishamber at the residence of PW-6 Lt.Col S.K.Dhar at Safdarjung
Enclave and returned to Vasant Kunj at 4.55 p.m. He then took the
dog for a walk in the colony. The appellant came to the residence of
the deceased at about 4.50 p.m. carrying his helmet in his hand and
was seen by PW-2 Kuppuswami. PW-3 Jaideep Singh Ahluwalia, Security
Supervisor in the colony also saw the appellant at 5.30 p.m. near
the residence of the deceased, PW-43 and O.P.Singh, Advocate also
noticed the appellant riding out of the park area of B-10, Vasant
Kunj at the same time. Head Constable Rajinder Singh PW reached the
residence of the deceased at about 5.30 p.m., as directed, along
with Constable Dev Kumar. The Head Constable pressed the call bell
but eliciting no response from inside, he went to another door which
opened onto the courtyard and knocked but again to no effect. As the
door was slightly ajar the two entered the bedroom of the deceased
and found her dead body lying under the double bed. The Head
Constable immediately informed Police Station, Vasant Kunj about the
incident on which SHO Inspector Surinder Sharma arrived at the site
and a daily diary report (rojnamcha) to the above facts Ex.PW-18/A
was also recorded at 5.45 p.m. Inspector Lalit Mohan, Additional
SHO, Vasant Kunj was entrusted with the investigation on which he
along with Sub-Inspector Sushil Kumar, Sub-Inspector Padam Singh,
Head Constable Satish Chand and several other police officers too
reached the residence of the deceased and found her dead body lying
under the double bed with the cord of the electric heat convector
tied around her neck. He also noticed blood stains around the body.
A case under section 302 of the IPC was thereafter registered at
Police Station, Vasant Kunj, on the complaint of the father of the
deceased, in which the day's happenings were spelt out. It was
further noted that after completing their work in the Tis Hazari
Courts he and his wife had visited Safdarjung Enclave and from there
he had gone on to attend an official meeting at Vikas Kuteer, ITO
whereas his wife had visited the All India Institute of Medical
Sciences and it was on returning to his residence at 7.30 p.m. that
he found that his daughter had been murdered.</div>
</li>
</ol>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3. During the course of the inquest
proceedings initiated by Inspector Lalit Mohan the crime scene was
photographed and some hair found on the dead body, broken pieces of
glass and blood stains near the dead body were recovered. The
electric cord of the heat convector which had been used for the
strangulation was also taken into possession. The statements of PW-6
Lt. Col. S.K. Dhar, PW-1 Mr. C.L. Mattoo, the complainant, and PW-44
Mrs. Rageshwari Mattoo, mother of the deceased, and several others
were recorded by Inspector Lalit Mohan and the dead body was then
sent to the Safdarjung Hospital. In her statement, Mrs. Rageshwari
Mattoo raised the suspicion that the appellant was the culprit and he
was joined in the investigation during the night intervening 23rd and
24th January 1996. He was also brought before Inspector Lalit Mohan
and he noticed tenderness on his right hand and an injury which was
not bandaged or plastered. He was also sent for a medical examination
and PW-23 Dr. R.K. Wadhwa of the Safdarjung Hospital examined him at
3.45 a.m. and found two injuries on his person - one a swelling on
the right hand dorsum lateral aspect, tenderness with crepitus and
the second, scar marks old and healed multiple both lower limbs and
on the chest. The Doctor also advised an X-ray of the right hand.
Nail scrapings and hair samples of the appellant were also taken and
handed over to Sub-Inspector Shamsher Singh and after the X-ray, a
fracture of the 5th metacarpal bone of the right hand was detected
and as per Dr. Wadhwa's opinion the injury was grievous in nature and
caused by a blunt weapon. The appellant was thereafter allowed to go
home and was directed to visit the Police Station at 9 a.m. on the
25th January 1996. The dead body was also subjected to a post-mortem
on 25th January 1995 at the Safdarjung Hospital by a Board of Doctors
consisting of Dr. Chander Kant, Dr. Arvind Thergaonkar and PW- 33 Dr.
A.K. Sharma who in their report Ex.PW33/B found 19 injuries on the
dead body and also observed that the private parts showed black,
curly non-matted pubic hair, the hymen intact with no tearing present
and admitting only one finger. The Doctors also took two vaginal
swabs and slides were duly sealed, the swabs and slides in a glass
bottle as well as samples of the blood and hair. The clothes of the
deceased were also taken into possession and sealed. The Board also
opined that the death was a result of strangulation by ligature and
that the injuries on the dead body were sufficient to cause death in
the ordinary course of nature.
</div>
<div style="margin-bottom: 0in;">
4. On the 25th January 1996 itself,
after the completion of the post-mortem proceedings, Inspector Lalit
Mohan searched the house of the deceased and picked up a greeting
card Ex.PW 29/B said to be written by the appellant from her room.
The Inspector also seized a helmet with the visor missing and
indicating that it had broken and the Bullet motorcycle belonging to
the appellant. The specimens of his handwriting Exs.PW48/E1, E2 and
E3 were also taken by the Inspector.
</div>
<div style="margin-bottom: 0in;">
5. It appears that as the murder had
taken place in very sordid circumstances and the fact that the
appellant was the son of very senior police officer serving in the
State of Jammu & Kashmir and was on the verge of a posting as
Additional Commissioner of Police, Delhi, led to a hue and cry which
was endorsed by the parents of the deceased as they apprehended that
they would not get a fair deal from the Delhi Police. Faced with this
situation, the Delhi Government itself requested the Central Bureau
of Investigation vide letter dated January 24, 1996 that the
investigation be taken over by that agency. As per the prosecution,
this decision was taken by the Government on the specific request of
the Commissioner of Delhi Police to the Lt. Governor who referred the
same to the Delhi Government.
</div>
<div style="margin-bottom: 0in;">
6. Inspector Lalit Mohan thereupon
produced the appellant before PW-50 DSP Shri A.K.Ohri of the CBI and
the subsequent investigation was made by the DSP with the assistance
of several other officers from the CBI. The underwear of the
appellant was also seized by the CBI as he represented that he had
been wearing the same underwear for the last couple of days. DSP Ohri
also visited the crime scene on the 26th January 1996 but did not
find Mr. C.L.Mattoo, the father of the deceased, present. On the next
day, he recorded the statement of Virender Parshad, the domestic
servant and also directed Shri D.P.Singh, DSP to conduct the house
search of the appellant. On the 28th January 1996, a request
Ex.PW34/A was made by Mr. S.K.Bhatnagar Additional Director of the
CBI to Dr.A.K.Gupta, Medical Superintendent, Dr.R.M.L. Hospital for
procuring the blood samples of the appellant. DSP Ohri along with the
other staff took the appellant to the hospital and met PW-34 Dr.
N.S.Kalra, Head of the Biochemistry Department and two blood samples
of 10 ml. each were taken by Ms. Godavari Mangai, Lab Assistant and
were handed over to Dr. Kalra. These samples as well as the other
case property collected by DSP Ohri or entrusted to him by Inspector
Lalit Mohan were deposited with the Moharrir Malkhana on the 29th
January 1996 and preparations were made to refer the matter for a DNA
test. Specimen hand writings Ex.PW24/A1 to A21 of the appellant were
also obtained once again this time by the CBI. On 30th January 1996
Shri M.L.Sharma, Joint Director, CBI addressed a letter to the
Director, CCMB, Hyderabad requesting for DNA profiling. Several
articles were accordingly entrusted to PW-39 Sub-Inspector
R.S.Shekhawat on 31st January 1996, they being:</div>
<div style="margin-bottom: 0in;">
1. One sealed parcel containing clothes
of the deceased such as T-shirt, brassiere, jeans and underwear.</div>
<div style="margin-bottom: 0in;">
2. One sealed packet containing
underwear of the accused Santosh Kumar Singh.</div>
<div style="margin-bottom: 0in;">
3. One sealed jar containing vaginal
swabs/vaginal slides of the deceased and
</div>
<div style="margin-bottom: 0in;">
4. The blood samples of the appellant
taken in the Dr.R.M.L.Hospital.</div>
<div style="margin-bottom: 0in;">
The Sub-Inspector thereafter flew to
Hyderabad on 31st January 1996 and deposited the aforementioned
articles in the Office of Dr. Lalji Singh, Officer on special duty at
the CCMB, Hyderabad on the next morning and an acknowledgement
Ex.PW49/A relating to the following articles was obtained:</div>
<div style="margin-bottom: 0in;">
1. One sealed parcel containing clothes
supposed to be of the deceased, namely, T-Shirt, brassiere, jeans and
underwear.</div>
<div style="margin-bottom: 0in;">
2. Vaginal swabs/vaginal slides
supposed to be of the deceased.</div>
<div style="margin-bottom: 0in;">
3. One thermocole box containing 4
vials marked as S-1,S-2,S-3 and S-4 supposed to be blood of the
accused.</div>
<div style="margin-bottom: 0in;">
The underwear of the appellant was,
however, returned by Dr. Lalji Singh as it was not relevant for the
DNA finger printing test. On the 1st February, 1996 DSP Ohri
re-visited the house of the deceased and recorded the statement of
Mrs. Rageshwari Mattoo and Hemant Mattoo, the brother of the deceased
who told the investigating officer that the appellant had been
noticed by PW-2 Shri Kuppuswami standing near their house shortly
before the time of the murder. The DSP then went to the house of Shri
Kuppuswami but he was away. He, however, recorded his statement on
the 4th February 1996. During the course of the investigation, the
appellant disclosed that he had received the injury on the metacarpal
bone in an accident on the 14th January 1996 and had been treated at
the Nirmay Diagnostic Centre and Hindu Rao Hospital. Inspector Terial
was thereupon sent to the Centre to collect his medical records. They
were duly collected on the 9th February 1996 and 16th February 1996
and deposited in the malkhana of the CBI. On 20th February 1996 a
letter Ex.PW27/A was addressed to the Medical Superintendent,
Safdarjung Hospital seeking an opinion about the injury suffered by
the appellant on his hand. An opinion was rendered by PW-28 Dr. Mukul
Sinha and PW-27 Dr. G.K.Choubey on the 22nd February 1996 that the
injury seemed to be fresh as there was no evidence of any callus
formation. On the completion of the investigation, the appellant was
charged for offences punishable under Sections 376/302 of the IPC. He
pleaded not guilty and claimed trial.
</div>
<div style="margin-bottom: 0in;">
7. As there was no eye witness to the
incident, the prosecution placed reliance only on circumstantial and
documentary evidence. After 51 witnesses had been examined by the
prosecution and final arguments were being heard, the trial court
decided that it would be in the interest of justice to call Dr.
G.V.Rao of the CCMB as a court witness as he, in consultation with
PW-48 Dr. Lalji Singh, had conducted the DNA test. His statement was
recorded as CW -1.</div>
<div style="margin-bottom: 0in;">
In the course of a rather verbose
judgment, the trial court noted that there were 13 circumstances
against the appellant. We quote herein below from the judgment:
“1.The accused had been continuously harassing the deceased right
from the end of 1994 to January 1996, a few days before her death.</div>
<div style="margin-bottom: 0in;">
2. The accused had more than once given
an undertaking that the accused would not harass the deceased in
future while admitting that the accused had been doing so earlier.</div>
<div style="margin-bottom: 0in;">
3. The motive of the accused was to
have the deceased or to break her.</div>
<div style="margin-bottom: 0in;">
4. On the day of occurrence, the
accused was seen in the premises of Faculty of Law, University of
Delhi in the forenoon, where the deceased had gone to attend LL.B.
class. While the accused was no more a student of Faculty of Law at
that time.</div>
<div style="margin-bottom: 0in;">
5. At the crucial time before murder,
i.e. about 5 p.m. on 23.1.96, the accused was seen outside the door
of the flat of the deceased, i.e. B-10/7098 with helmet in his hand
which had a visor.</div>
<div style="margin-bottom: 0in;">
6. On the day of occurrence after
murder, the accused had reached late to attend class at Indian Law
Institute, Bhagwan Dass Road, where the accused was a student too.</div>
<div style="margin-bottom: 0in;">
7. Immediately after the murder, the
mother of the deceased had raised suspicion that the accused had a
hand in the murder of her daughter.</div>
<div style="margin-bottom: 0in;">
8. When the accused joined
investigation on the night between 23/24.1.96, the accused had an
injury
</div>
<div style="margin-bottom: 0in;">
on his right hand. There was swelling
and fracture on 5th metacarpal of right hand. There was no plaster or
bandage on his hand. That injury was fresh, having been caused 24 to
38 hours. The blood pressure of the accused at that time was high
which showed anxiety.
</div>
<div style="margin-bottom: 0in;">
9. DNA Finger Printing Test
conclusively establishes the guilt of the accused.</div>
<div style="margin-bottom: 0in;">
10. On 25.1.96, the helmet Ex.P.3 of
the accused which was taken into possession had broken visor. On
23.1.96 before murder, it was found by PW2 Shri Kuppuswami, PW
Personal Security Officer Rajinder Singh that the helmet of the
accused had a visor. Violence was detected on both sides of visor.
Helmet was besmeared with a spec of blood. At the spot pieces of
visor were found near the body of the deceased besmeared with her
blood.</div>
<div style="margin-bottom: 0in;">
11. The deceased had 19 injuries on her
person besides three broken ribs. These injuries were suggestive of
force used for rape. A tear mark over the area of left breast region
on the T-shirt of the deceased suggested that the force was used for
molestation.
</div>
<div style="margin-bottom: 0in;">
12. The accused took a false defence
that fracture on the hand of the accused was sustained by the accused
on 14.1.96 and it was not a fresh injury. The accused also gave false
replies against proved facts.
</div>
<div style="margin-bottom: 0in;">
13. The influence of the father of the
accused resulting in deliberate spoiling of the case.”</div>
<div style="margin-bottom: 0in;">
The Trial Court rendered its opinion on
the circumstances 1 to 3 as under:-
</div>
<div style="margin-bottom: 0in;">
(i) “ The accused in January,
February 1995 tortured the deceased by following her upto the
residence at Safdarjung Enclave at the place of Colonel SK Dhar and
also by telephoning at All India Institute of Medical Sciences and at
her residence.</div>
<div style="margin-bottom: 0in;">
(ii) On 25.2.95 the accused followed
the deceased and tried to stop the car of the deceased by shouting at
her which was the cause of lodging the report Exh. PW6/A. The accused
submitted the apologies Exh.PW6/B and Exh.PW6/DB.</div>
<div style="margin-bottom: 0in;">
(iii) The accused took the false plea
that the accused was going to IIT on the said date. The accused also
took a false stand that there was no friendship between the accused
and the deceased. The plea of the accused that such report was result
of refusal of accused to allow the deceased to sing in the Cultural
Festival of the University has not been substantiated. The plea is
false to knowledge of the accused. (iv) The subordinate staff of
Delhi Police attempted to assist the accused during investigation and
during trial. Sh. Lalit Mohan Inspector was instrumental in creating
false evidence and false defence of the accused. The witness of
police including Rajendra Kumar Sub Inspector deposed falsely with
respect to role assigned as an agent of law in the matter of
complaints in writing preferred by the deceased. The subordinate
staff of Delhi Police has not discharged the agency of law in
accordance with basic principles of fair play in action. <span style="font-size: medium;"><b>Had
Rajinder Kumar SI and the SHO of Police Station RK Puram, SHO Vasant
Kunj, ACP Satinder and Parbhati Lal acted in accordance with law
vis-`-vis accused, as they act towards an ordinary citizen whose
father is not a senior officer in police department perhaps the
incident would not have occurred.</b></span></div>
<div style="margin-bottom: 0in;">
(v) The accused went to the house of
the deceased at B-10, Vasant Kunj, New Delhi and banged the door of
the house of the accused when the deceased was alone at home.</div>
<div style="margin-bottom: 0in;">
(vi) On 6.11.95, the accused tortured
the deceased in the Campus Center of Law which resulted in lodging of
FIR at police station, Maurice Nagar, Delhi.</div>
<div style="margin-bottom: 0in;">
(vii) The accused even mentally
tortured the deceased in December, 1995.</div>
<div style="margin-bottom: 0in;">
(viii) The accused preferred petition
against the deceased to the University against her appearing in both
examinations of M.Com and LLB in order to pressurize the deceased to
succumb to the ulterior design and motive of the accused.</div>
<div style="margin-bottom: 0in;">
(ix) The accused had the intention to
have the deceased and to convert the said intention in reality and if
it is not possible on account of attitude of the deceased not allow
the deceased to be of anybody else. The facts proved and the acts of
the accused lead to inference that the accused had the motive to have
the deceased at all event and failing to not to allow her to be of
anybody else. The state has established the motive.”</div>
<div style="margin-bottom: 0in;">
8. The court observed that the
continuous stalking of the deceased by the appellant despite
complaints to the police showed his utter disregard of the rule of
law and in conclusion held that “circumstances No.1, 2 and 3 are
thus held to have been proved beyond any shadow of doubt by the
prosecution.” The court then examined circumstances Nos.4, 5 and 10
cumulatively and held that the appellant had indeed been seen in the
University Campus Law Centre on the 23rd January 1996 riding his
motorcycle wearing a helmet with an intact visor and that on the same
day in the afternoon he had been seen by PW2 Sh. Kuppuswami at the
gate of the house of the deceased carrying a helmet with a visor. The
court further opined that when the helmet had been seized on the 25th
January 1996 it was seen to be in a badly damaged condition and that
the broken pieces of the visor which had been recovered from the site
of the crime besmeared with the blood of deceased conclusively proved
that the visor had been broken during the commission of the murder as
it had been used to bludgeon the deceased into submission.
</div>
<div style="margin-bottom: 0in;">
9. The court, accordingly, held that
these circumstances showed that the appellant had been seen around
the house of the deceased at 4.50 pm. The High Court also
supplemented these findings by pointing out that as the appellant was
no longer a student of the Law Faculty of the University of Delhi he
had a duty to explain as to why he had visited the University on the
23rd January 1996. The trial court nevertheless did not find any
conclusive evidence against the appellant with respect to
circumstance No.6 observing that in view of the uncertain traffic in
the National Capital Territory of Delhi the timing factor could not
be taken as a conclusive one. The High Court, however, differed with
trial court on this aspect as well and held that the appellant had
attended his classes in the Indian Law Institute on 23rd January 1996
and had been late for the class and this circumstance showed that
this had happened as he had been involved in committing the rape and
murder. While dealing with circumstance No.8, the trial court
observed that DSP Ohri had not taken into account the defence story
that the appellant had suffered an injury on the metacarpal about 10
days prior to the murder and had thereby not given an opportunity to
the court to review the evidence on this aspect and had, thus, not
acted in a fair manner. The court then went on to say that “<span style="color: red;"><b>the
accused too has not assisted the court in discharging the onus which
was upon him to justify the defence taken by him in the matter of
alleged injury.</b></span> Consequently, on the face of an injury, on
5<sup>th</sup> me tacarpal on the date of crime of murder, with
swelling and tenderness, the court is of the view that the injury
possibly is fresh but on account of lack of fair play on the part of
the CBI, it cannot say that the defence of the accused is not
plausible.” This finding too has been reversed by the High Court in
appeal on the plea that <span style="color: red;"><b>the onus to prove
his defence lay on the appellant</b></span> and he had admittedly not
led any evidence to support his plea. The High Court, accordingly,
held that the finding of the trial court was perverse on this aspect.
The trial court then went on to circumstance No.9 and evolved its own
theories and after a huge discussion, rejected the DNA report given
by the CCMB, Hyderabad as also the evidence of Dr. Lalji Singh and
Dr. G.V. Rao. This finding has also been reversed by the High Court
by observing that though there appeared to be no physical evidence of
rape on the body but the DNA test conducted on the vaginal swabs and
slides and the underwear of the deceased and the blood sample of the
appellant, it was clear that rape had been committed, and that too by
him. <span style="color: blue;"><b>The High Court held that it would be a
dangerous doctrine for the court to discard the evidence of an expert
witness by referring to certain texts and books without putting those
texts to the expert and taking his opinion thereon.</b></span> The
High Court also reversed the finding of the trial court that the
vaginal swabs and slides and the blood samples of the appellant had
been tampered with. The trial court and the High Court both held
circumstance No.11 in favour of the prosecution and it was observed
that the deceased was alone at the time of incident and that she had
been brutally attacked with the helmet which had been used with great
force to cause as many as 19 injuries, including three broken ribs.
On circumstance No.12, the trial court gave a finding that there was
no conclusive evidence to show that the injury on the metacarpal had
been suffered by the appellant in the incident on the 14th January
1996 as the evidence of Dr. Ashok Charan, the Radiologist was not
entirely credible. The High Court has, however, reversed this
finding. The Trial Court then examined circumstance No.13 and found
that though there was nothing on record to show the direct
interference of the father of the appellant in the investigation but
as he was likely to be posted as a senior police officer in the Delhi
Police, the possibility that the lower investigating staff were
influenced by his status was a factor which could not be ruled out.
The trial court also held that Inspector Lalit Mohan, the first
investigating officer and a member of the Delhi Police had done no
credit to himself but lauded the Commissioner of Police, Delhi for
suggesting that the matter be handed over to the CBI, to obviate any
suspicion of an unfair investigation.</div>
<div style="margin-bottom: 0in;">
10. A perusal of the above discussion
would reveal that the trial court had itself held circumstances 1 to
</div>
<div style="margin-bottom: 0in;">
5, 7 and 10 to 13 in favour of the
prosecution, circumstance No.8 has been held in a manner which could
fall both ways whereas circumstance No.6 has been held to be of no
consequence. The High Court has, however, held all 13 circumstances
as having been proved in favour of the prosecution. The trial court,
accordingly, on the basis of findings recorded particularly
circumstance No.9, held that the case against the appellant could not
be proved and acquitted him. The matter was taken in appeal to the
High Court and the High Court has reversed the judgment of the trial
court, as already indicated above and awarded a death sentence. It is
in this background that this matter is before us. We have dealt with
the arguments in the sequence in which they have been projected by
Mr. Sushil Kumar, the learned senior counsel for the appellant.
</div>
<div style="margin-bottom: 0in;">
11. Mr. Sushil Kumar has first and
foremost submitted that circumstances 8 and 12 with regard to the
defence story projected by the accused were first required to be
considered and in the light of the fact that the trial court had, in
a manner, rejected these circumstances as supporting the prosecution,
it could not be said that the injury suffered by the appellant on his
right hand fixed his presence at the spot. He has referred us to the
document D-61 an opinion dated 24th January 1996 of PW-23 Dr. Ranjan
Wadhwa which revealed a swelling on the right hand on the dorsal and
lateral aspect, tenderness plus crepitus of the 5th metacarpal and
had suggested an X-ray of the right hand. He has also taken us to the
evidence of the Doctor to argue that the X-ray had, indeed, been done
and the film had been examined by Dr. A.Charan, PW-28 Dr. Mukul Sinha
and PW-27 Dr. G.K.Chobe. He has referred to the statement of Dr.
Mukul Sinha to point out that the X-ray performed on the 14th January
1996 at Nirmay Diagnostic Center and the other one at the Safdarjung
Hospital on 24th January 1996 could not be said to be of the same
person as the picture had been taken from different angles. Mr.
Sushil Kumar has, further, brought to our specific notice that as the
callus formation had set in, the injury could not be of the 24th
January 1996 and would have been sustained much earlier. He has also
referred us to the statement of Dr. Chobe who had examined the X-rays
of the appellant taken on 14th January 1996 and 24th January 1996 and
pointed out that even this Doctor could not give a categoric opinion
as the instructions given by him to the investigating agency to probe
the matter further in a particular direction, had not been complied
with. It has, accordingly, been submitted that in the face of no
other evidence produced by the prosecution, there was nothing to
suggest that the fracture of the metacarpal had happened on the 24th
January 1996 and the evidence on the contrary indicated that this
fracture had been suffered during an accident on the 14th January
1996.</div>
<div style="margin-bottom: 0in;">
12. Mr. P.P. Malhotra, the learned ASG
has, however, controverted the plea raised on behalf of the
appellant. It has been pointed out that the evidence of Dr. Wadhwa,
Dr. Mukul Sinha and Dr. G.K.Chobe, when read cumulatively, proved
that the injury had been suffered by the appellant on the 24th
January 1996 and was, therefore, fresh at the time when the Doctors
had examined him on that day.</div>
<div style="margin-bottom: 0in;">
13. We now examine the evidence on
these two circumstances. As already mentioned above, the medical
report dated 24th January 1996 recorded by Dr. Wadhwa refers to a
swelling on the right hand at the 5th metacarpal. In the very next
line in the same report there is a reference to a scar mark old
healed multiple lower ribs. It is apparent therefore, that the Doctor
himself noticed that the scar mark was an old and healed injury,
whereas the swelling on the right hand revealed tenderness and
presence of the crepitus. When this Doctor came into the witness box
as PW23, an attempt was made to show that the condition of the injury
indicated that it was about 10 or 15 days old. This plea was
specifically denied by the Doctor. Dr. Mukul Sinha was, however, more
categoric when he stated that the presence of swelling on the right
hand was symptomatic of a recent injury and that after the
inflammation slowly subsided the soft provisional callus would start
forming from the third to the fourteenth day and due to the absence
of any callus formation on the 24th January 1996, it appeared that
the injury could not have been sustained on the 14th January 1996.
Dr. G.K.Chobe was still more emphatic. After reviewing the medical
report dated 24th January 1996 he put the maximum duration of the
injury between 48 to 72 hours and further deposed that a fracture of
the 5th metacarpal was generally produced by direct violence, the
most common factor being the striking of the hand against an opponent
during an altercation. He further clarified that in the case of a
fracture of the metacarpal the swelling would not remain for more
than 3 to 4 days and that the callus formation had not yet started as
the clicking sound which was known as crepitus was still noticeable
and which always remained till the callus was formed. Dr. Chobe also
made another significant statement. He pointed out that had the
incident happened on 14th January 1996 a plaster or bandage would
have been applied to the fracture but there was no indication as to
whether this line of treatment had been adopted. A perusal of this
evidence would reveal two striking facts, one, it confirms the
deposition of the other two doctors that because the injury was
recent the swelling on the fracture had not settled down, and two,
the callus formation had not yet started as the crepitus was still
present.</div>
<div style="margin-bottom: 0in;">
14. We see that the positive stand of
the appellant was that he had sustained the injuries on the 14th of
</div>
<div style="margin-bottom: 0in;">
January 1996 in the course of a road
accident in which the visor of his helmet had also been broken.
Inspector Terial of the CBI accordingly collected certain documents
from the Nirmay Diagnostic Centre and the Bara Hindurao Hospital
where the appellant had allegedly been treated for the injuries
suffered by him. Statements of several doctors were also recorded.
These documents were deposited in the CBI Malkhana on the 9th
February 1996 and 16th February 1996. In the course of his evidence
PW DSP Ohri gave the above facts and further clarified that the
appellant's father had produced an X-ray film before him on the 20th
February 1996 and that he had also issued a notice to him to produce
the treatment record of the appellant within two days. We see that
the documents seized by Inspector Terial have been exhibited as
defence documents. We further see that a reading of these documents
does indicate that an X-ray was taken on the 14th January 1996.
Significantly however no Doctor of the Nirmay Diagnostic Centre or
Bara Hindurao Hospital had been summoned as a witness. The trial
court has held that the omission to produce the defence evidence in
Court was unbecoming of the investigating agency but that the
appellant himself was also guilty of not producing any evidence in
his defence and by some curious reasoning has opined that :</div>
<div style="margin-bottom: 0in;">
“The accused too has not assisted the
court in discharging the onus which was upon him to justify the
defence taken by him in the matter of alleged injury. Consequently,
on the face of an injury, on 5th</div>
<div style="margin-bottom: 0in;">
metacarpal on the date of crime of
murder, with swelling and tenderness, the court is of the view that
the injury possibly is fresh but on account of lack of fair play on
the part of the CBI, it cannot say that the defence of the accused is
not plausible. Therefore this circumstance will have to be considered
in both ways in the cumulative effect of various circumstances to
consider if the case is proved beyond reasonable doubt.”</div>
<div style="margin-bottom: 0in;">
15. <span style="color: #ff3333;"><b>We are
indeed astonished at these remarkably confusing and contradictory
observations</b></span>, as the CBI was not called upon to prove the
defence of the appellant. The CBI had fairly secured the documents
which could prove the appellant's case and they were put on record
and it was for the defence to use them to its advantage. No such
effort was made. <u><b>Moreover, we are unable to see as to how these
documents could have been exhibited as no one has come forward to
prove them. It has to be kept in mind that the appellant was a lawyer
and his father a very senior Police Officer, and we are unable to
understand as to why no evidence in defence to prove the documents or
to test their veracity, had been produced.</b></u> In this
background, we find that the medical evidence clearly supports the
version that the injury had been sustained by the appellant on the
24th of January 1996 during the course of the rape and murder. This
finding raises yet another issue. It has been held time and again
that <span style="color: #ff3333;"><b>a false plea taken by an accused in a
case of circumstantial evidence is another link in the chain</b></span>.
In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10) SCC 681
it has been held : “The normal principle in a case based on
circumstantial evidence is that the circumstances from which an
inference of guilt is sought to be drawn must be cogently and firmly
established; that those circumstances should be of a definite
tendency unerringly pointing towards the guilt of
</div>
<div style="margin-bottom: 0in;">
the accused; that the circumstances
taken cumulatively should form a chain
</div>
<div style="margin-bottom: 0in;">
so complete that there is no escape
from the conclusion that within all human probability the crime was
</div>
<div style="margin-bottom: 0in;">
committed by the accused and they
should be incapable of explanation on any hypothesis other than that
of the guilt of the accused and inconsistent with their innocence.</div>
<div style="margin-bottom: 0in;">
and again “If an offence takes place
inside the privacy of a house and in such circumstances, where the
assailants have all the opportunity to plan and commit the offence at
the time and in circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to establish the guilt
of the accused if the strict principle of circumstantial evidence, as
noticed above, is insisted upon by the courts. <span style="color: blue;"><b>A
judge does not preside over a criminal trial merely to see that no
innocent man </b></span>
</div>
<div style="margin-bottom: 0in;">
<span style="color: blue;"><b>is punished. A
judge also presides to see that a guilty man does not escape. Both
are public duties. The law does not enjoin a duty on the prosecution
to lead evidence of such character which is almost impossible to be
led or at any rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable of leading,
having regard to the facts and circumstances of the case.</b></span>
Here it is necessary to keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him.”</div>
<div style="margin-bottom: 0in;">
16. We, accordingly, endorse the
opinion of the High Court on circumstances 8 and 12. The onus to
prove his defence and the circumstances relating to his injury and
treatment were within the special knowledge of the appellant. He
could, therefore, not keep silent and say that the obligation rested
on the prosecution to prove its case.
</div>
<div style="margin-bottom: 0in;">
17. Mr. Sushil Kumar has then argued
with emphasis, that the case rested primarily on the factum of rape
and if it was found that there was no evidence of rape, the case of
murder would also fall through. He has, accordingly, taken us to
circumstance No.9 which the trial court noted as under:</div>
<div style="margin-bottom: 0in;">
“DNA finger printing test
conclusively established the guilt of the accused.” He has first
pointed out that the post-mortem did not reveal any evidence of rape.
Reference has been made to the statement of PW33 Dr.A.K.Sharma, who
along with a Board of two other Doctors had performed the post-mortem
on the dead body on the 25th January 1996 at the Safdarjung Hospital
and it was observed that the deceased was wearing a full sleeved high
neck pinkish T-shirt with a small tear on the breast, blue coloured
jeans, one brassiere and underwear and woolen socks and though there
were a large number of injuries on the dead body and the local
examination of the private parts showed black, curly non matted pubic
hair, and an intact hymen, with no tearing. The Doctor was also
questioned as to whether the hymen would always be torn and ruptured
during the first sexual encounter and he explained that though this
would be the normal case but it was not always so and that the hymen
could remain unruptured even after repeated sexual intercourse for
certain reasons which he then spelt out. It has, accordingly, been
submitted that there was absolutely no evidence of rape detected
during the course of the examination. He has also pointed out that as
there were no semen stains on the dead body of the deceased or her
clothes and as the underwear of the appellant sent to the CCMB,
Hyderabad had been returned without examination and had been examined
thereafter in the Central Forensic Science Laboratory, Delhi and the
semen's stains found were of group A which was not the blood group of
the appellant, there were no evidence suggesting rape.</div>
<ol start="18">
<li><div style="margin-bottom: 0in;">
It has, finally, been submitted
that the observation of the High Court that the DNA test
conclusively proved the involvement of the appellant in the rape was
not tenable as it appeared that the vaginal swabs and slides which
were allegedly taken from the dead body at the time of the
post-mortem examination and the blood samples of the appellant taken
under the supervision of PW Dr. N.S.Kalra had been tampered with. It
has been argued that as per the findings of the trial court the
record of the Malkhana with respect to the vaginal swabs and slides
had been fudged and though these items had been handed over to the
CBI officers on the 25th January 1996 they had been deposited in the
Malkhana on the 29th January 1996 and no explanation was forthcoming
as to how and why this delay had happened. It has also been
submitted that as per the evidence of Dr. N.S.Kalra a request had
been made to him by the CBI to take 2 samples of blood of 10 ml.
each from the appellant but 2 samples of 10 ml. had been taken and
transferred to 4 vials and when the vials had been opened at the
CCMB, only 12 ml. of blood had been found, and this too cast a doubt
on the prosecution case. It has finally been submitted that the
tests conducted by the CCMB, Hyderabad were faulty and could not be
relied upon.</div>
<div style="margin-bottom: 0in;">
</div>
</li>
</ol>
<div style="margin-bottom: 0in;">
19. The learned Additional Solicitor
General has, however, controverted the above submissions and has
pleaded that they were based on the supposition of a bias against the
appellant and that all those involved including the officials of the
CBI, the Doctors who had conducted the post-mortem examination, those
who had taken the blood samples and the Scientists of the CCMB were
in league to implicate him in a false case. He has further argued
that there was no evidence of tampering with the vaginal swabs and
slides which had been sealed by the Doctors and handed over to the
police and had been collected from the Malkhana by PW-39 Inspector
Shekhawat and taken to the CCMB, whereas the blood samples, on the
contrary, had been retained in the office of Dr. N.S. Kalra in the
RML Hospital and that Inspector Shekhawat had taken them from there
and gone straight on to Hyderabad and delivered them to the CCMB with
seals intact.
</div>
<div style="margin-bottom: 0in;">
20. At the very outset, we must dispel
Mr. Sushil Kumar's rather broad argument that the primary allegations
were of rape whereas murder was a secondary issue in the facts of the
case and that the proof of murder would depend on proof of rape. We
see from the record that there is very substantial evidence with
regard to the allegations of murder simpliciter and have been dealt
with under circumstance No.11. We first see that right from the year
1994 to January 1996, that is a few days before the murder, the
appellant had been continuously harassing the deceased and that this
allegation has been proved by ocular and documentary evidence. We
also see that the appellant had been seen in the Faculty of Law,
University of Delhi on the morning of the incident and had no
business to be present at that place as he had passed out in the year
1994. He was also seen by PW- 2 Shri Kuppaswami outside the house of
the deceased at about 5 p.m. and was carrying a helmet with an intact
fixed visor, and was seen moving out of the Vasant Kunj Colony by two
witnesses soon after 5 p.m.
</div>
<div style="margin-bottom: 0in;">
(though these witnesses ultimately
turned hostile). The only argument against PW-2 is that his statement
under Section 161 of the Code of Criminal Procedure had been recorded
after three days. We find nothing adverse in this matter as there was
utter confusion in the investigation at the initial stage. Moreover,
PW-2 was a next neighbour and a perfectly respectable witness with no
bias against the appellant. In addition, the recovery of the helmet
with a broken visor and the recovery of glass pieces apparently of
the visor from near the dead body and the fact that the appellant
himself sustained injuries while mercilessly beating the deceased
with his helmet (as per the F.S.L. Report Ex.PW50/H4) and causing 19
injuries including three fractured ribs, are other circumstances with
regard to the murder. Assuming, therefore, for a moment, that there
was some uncertainty about the rape, the culpability of the appellant
for the murder is nevertheless writ large <span style="color: #ff3366;"><span style="font-size: medium;"><u><b>and
we are indeed surprised at the decision of the Trial Judge in
ordering an outright acquittal</b></u></span></span>. With this
background, we now examine the evidence leading to the charge of
rape.
</div>
<div style="margin-bottom: 0in;">
21. It is the primary submission of Mr.
Sushil Kumar that the vaginal swabs and slides taken from the dead
body at the time of the post-mortem examination had been tampered
with and as there was some suspicion with regard to the blood samples
taken by Dr. N.S.Kalra on the 25th January, the DNA report too could
not be relied upon. <span style="color: purple;"><b>This is a rather far
fetched plea as it would mean that not only the investigating agency,
that is the senior officers of the CBI and DSP Ohri in particular,
the doctors who had taken the vaginal swabs and slides, the doctors
and other staff who had drawn the blood samples, and the scientists
in Hyderabad had all been in a conspiracy to harm the appellant. To
our mind, this premise is unacceptable.</b></span> We see from the
post mortem report Ex.PW33/B dated 25th January 1996 and the
endorsement thereon that one bundle containing a full sleeved high
neck pinkish violet colour T-shirt having a cut mark over the area of
the left breast region, one blue coloured jeans, one pair of woolen
socks, one white coloured brassiere and one blue coloured underwear
had been sealed and handed over to the investigating officer,
Inspector Lalit Mohan. It also finds mention that these items along
with two vaginal swabs and two slides had also been handed over to
the I.O. It has been submitted by Mr. Sushil Kumar that these items
had been retained by Inspector Lalit Mohan till the 25th of January
1996 and then handed over to PW-38 Inspector Sunit Kumar of the CBI.
Inspector Sunit Kumar, however, deposed that on the 29th January
1996, and on the direction of DSP Ohri, he had gone to the department
of Forensic Medicine, Safdarjung Hospital, and taken the bundle of
clothes and one jar containing vaginal swabs and slides duly sealed
and several other items as well and that a specimen of the seal had
also been obtained by him. It is, therefore, obvious that till 29th
of January 1996 the aforesaid articles remained in the custody of the
Safdarjung Hospital and that they were deposited in the malkhana on
the 29th January 1996.
</div>
<div style="margin-bottom: 0in;">
22. We notice from the
cross-examination of Inspector Sunit Kumar that not a single question
had been put to him in the cross-examination doubting the receipt of
the aforesaid items from the hospital on the 29th January 1996. DSP
Ohri confirmed the evidence of Inspector Sunit Kumar Sharma that he
had received the case property from the hospital and it had been
deposited in the malkhana the same day. We have also examined the
photocopy of the Ex.PW47/A, which is the malkhana register. It first
refers to the various items taken by Inspector Sunit Kumar from the
hospital earlier that day including the clothes and there is some
overwriting with respect to the vaginal swabs and slides. Mr. Sushil
Kumar has thus raised a suspicion that the entry with regard to the
vaginal swabs and slides was an interpolation with no sanctity
attached to the semen samples. We are unable to accept this
submission for the simple reason that the post-mortem clearly refers
to the aforesaid samples along with several other items which had
been taken from the dead body on the 25th January 1996 and which had
been retained at the Safdarjung Hospital till 29th January 1996 when
they had been handed over to Inspector Sunit Kumar who had handed
them over further to PW Ohri who had deposited them in the malkhana.
Furthermore, a perusal of the post-mortem report Ex.P33/B bears an
endorsement that three items that is a copy of the report, the
inquest proceedings and the dead body had been handed over to the
Constable at 6 p.m. on 25th January 1996 but all the other items had
been taken by the CBI on the 29th January. Significantly we find an
acknowledgement at the top right hand corner of the post-mortem
report which reads as under:</div>
<div style="margin-bottom: 0in;">
“issued against authority letter
No.399/3/1(S)/SIV V SIC-II dated 29.1.96 from CBI - authorizing Shri
Sunit Sharma Insp. CBI.”</div>
<div style="margin-bottom: 0in;">
Inspector Sunit Kumar had also
acknowledged the receipt of the articles on the 29th at Point X. It
is thus clear that the three first mentioned items had been handed
over to the Constable on the 25th January at 6 p.m. but the other
items had been handed over to the Inspector on the 29th. It bears
notice that the 26th to 28th January 1996 were holidays which was
perhaps the cause as to why some of the items including the semen
swabs and stains and the clothes of the deceased remained in the
custody of the hospital authorities till the 29th. We have also
perused the evidence of PW47 Constable Rajinder Singh of the CBI who
was the In-charge of the malkhana on the day in question. He admitted
that there was no mention that the swabs and slides were contained in
a glass jar, but the fact that the entries had been interpolated has
been emphatically denied. It is also significant that these items had
been taken by Inspector Shekhawat from the malkhana on the 31st
January 1996 in a sealed condition and in a glass jar and handed over
to the CCMB Hyderabad in an identical condition. In this connection,
we have gone through the evidence of PW49 Dr.Lalji Singh who deposed
on oath that all the aforesaid items along with several others,
(which we will deal with later) had been received in a sealed
condition as his organization did not accept any item which was
without a seal. He further stated that along with samples he had
received the sample seals which had been affixed on the bundle of
clothes and the bottle carrying vaginal swabs and slides. It is also
of significance that the vaginal swabs and slides find mention on the
third page of the post-mortem report whereas the other items taken
from the dead body are on internal page one. This raises the
possibility that the Head Constable had, at the initial stage, missed
the articles on page 3 and thereafter rectified the mistake. No
adverse inference against the prosecution can, thus, be drawn with
regard to the retention of the items in the malkhana. It is also
pertinent that no suggestion was put either to the Doctors or to DSP
Ohri or to Sub-Inspector Shekhawat that the seals of the aforesaid
articles had been tampered with.
</div>
<div style="margin-bottom: 0in;">
23. We now come to the suspicion with
regard to the taking and storage of the blood samples of the
appellant. PW Dr. N.S.Kalra who was the Head of the Bio-Chemistry
Department of Ram Manohar Lohia Hospital at the relevant time deposed
that by letter Ex.34/A a request had been made to the hospital to
take blood samples of the appellant in two vials totalling 20 ml. Ms.
Godawari, a Laboratory
</div>
<div style="margin-bottom: 0in;">
Assistant, was accordingly directed to
take the blood samples in two 10 ml. syringes whereafter the blood
was transferred to 4 vials each containing 5 ml. which were duly
sealed and tape applied over them which was signed by Dr. Kalra, Dr.
S.K.Gupta and DSP Ohri and a memo Ex.PW34/B to that effect was
prepared. He further deposed that the said vials had been kept in a
refrigerator under his supervision and were taken by the CBI officers
on January 31, 1996 from him and that while the vials remained in his
custody, they were not tampered with in any manner. He also testified
that whenever blood was kept in a refrigerator, as in the present
case, there was little possibility of evaporation if the rubber cork
was air tight and in cross-examination he deposed that the watery
constituent of blood would not evaporate in the cool atmosphere of a
refrigerator. Mr. Sushil Kumar has accordingly argued that though the
CBI had requested for two samples of 10 ml. each yet the 20 ml. blood
had been divided into four vials, and that when the samples had been
opened in the Laboratory at Hyderabad, only 12 ml. blood in all had
been recovered from the four vials. We, however, find that no
suspicion can be raised with regard to the sanctity of the samples.
It has come in the evidence of Dr. Lalji Singh that 12 ml. of blood
said to be that of the appellant Santosh Kumar Singh in four sterile
vials containing about 3 ml. each had been received through Inspector
Ranbir Shekhawat along with other items. He further explained that in
cross-examination that if the blood samples were kept in a
refrigerator and handed over to the Inspector on the 31st January and
received in the laboratory the next day, it was not likely that 2 ml.
out of each of the four vials would evaporate although some blood
could have evaporated. He further stated that there appeared to be
some leakage in the vials as traces of blood appeared to be in the
material with which the vials had been sealed although this fact did
not find mention in his report. Here too, we must emphasize that the
blood samples were in the custody of the hospital till they were
received by the Inspector Shekhawat for the first time on 31st
January 1996 and he had left for Hyderabad the same day and handed
over the samples and other items to the laboratory on 1st February
1996. The trial court has had much to say on this aspect. It has held
that Dr. N.S.Kalra was a doctor who could be influenced in the
matter. Reliance has also been placed on the document PW34/A of Shri
Bhatnagar addressed to the Medical Superintendent of RML Hospital
that two samples of blood of 10 ml. be taken from the accused and
then goes on to say that 20 ml. blood was taken but it had been
divided into four vials of 5 ml. each which was against the
requisition. The trial court observed that as per the deposition of
CW1 Dr. G.V.Rao of the CCMB, Hyderabad the samples had been received
in the laboratory but only 12 ml. blood had been found in the vials
which raised serious questions and the prosecution was thus called
upon to explain as to how 8 ml. of blood had disappeared and in the
absence of a proper explanation, the possibility that the said
samples had been tampered with, could not be ruled out. The trial
court has, accordingly, rejected the evidence of Dr. N.S.Kalra, Dr.
Lalji Singh and Dr. G.V.Rao as to why and how the quantity of the
blood may have been reduced. The court also examined the document
PW-34/B, which is the memo relating to the taking of the blood
samples, and by some very curious reasoning concluded that some
additions had been made in the document as some words were not in
their proper place and sequence and appeared to have been squeezed in
and that the handwriting was also not identical. We have minutely
perused the document ourselves and can find no such flaw. We also
find absolutely no reason to accept the very broad and <span style="color: #ff6633;"><span style="font-size: medium;"><u><b>defamatory
statement of the trial court </b></u></span></span>that Dr. N.S.Kalra
was a convenient witness for the prosecution as there is no basis for
this finding. On the other hand, there is ample evidence to suggest
that the blood samples had been kept in the hospital in a proper way
and handed over to Inspector Shekhawat who had taken them to the
CCMB, Hyderabad and that the explanation tendered by Dr. Lalji Singh
and Dr. G.V.Rao as to why the quantity of blood may have been
reduced, merits acceptance. The High Court was, therefore, fully
justified in holding that the trial court's conclusions on the
question of the retention and dispatch of the swabs and slides and
the clothes of the deceased the blood samples was faulty, and based
on a perverse assessment of the evidence.</div>
<div style="margin-bottom: 0in;">
24. We now come to the circumstance
with regard to the comparison of the semen stains with the blood
taken from the appellant. The trial court had found against the
prosecution on this aspect. In this connection, we must emphasize
that<span style="color: #b80047;"><span style="font-size: medium;"><b>
the Court cannot substitute its own opinion for that of an expert</b></span></span>,
more particularly in a science such as DNA profiling which is a
recent development. Dr. Lalji Singh in his examination in chief
deposed that he had been involved with the DNA technology ever since
the year 1974 and he had returned to India from the U.K. in 1987 and
joined the CCMB, Hyderabad and had developed indigenous methods and
techniques for DNA finger printing which were now being used in this
country. We also see that the expertise and experience of Dr. Lalji
Singh in his field has been recognized by this Court in Kamalantha &
Ors. Vs. State of Tamil Nadu 2005 (5) SCC 194. We further notice that
CW-1 Dr. G.V.Rao was a scientist of equal repute and he had in fact
conducted the tests under the supervision of Dr.Lalji Singh. It was
not even disputed before us during the course of arguments that these
two scientists were persons of eminence and that the laboratory in
question was also held in the highest esteem in India. The statements
of Dr. Lalji Singh and Dr. G.V. Rao reveal that the samples had been
tested as per the procedure developed by the laboratory, that the
samples were sufficient for the purposes of comparison and that there
was no possibility of the samples having been contaminated or
tampered with. <span style="color: #ff3366;"><span style="font-size: x-large;"><u><b>The
two scientists gave very comprehensive statements supported by
documents that the DNA of the semen stains on the swabs and slides
and the underwear of the deceased and the blood samples of the
appellant was from a single source and that source was the appellant.</b></u></span></span>
<b>It is significant that not a single question was put to PW Dr.
Lalji Singh as to the accuracy of the methodology or the procedure
followed for the DNA profiling.</b> The trial court has referred to a
large number of text books and has given adverse findings on the
accuracy of the tests carried out in the present case. We are unable
to accept these conclusions as the court has substituted its own
opinion ignoring the complexity of the issue on a highly technical
subject, more particularly as the questions raised by the court had
not been put to the expert witnesses. In Bhagwan Das & Anr. vs.
State of Rajasthan AIR 1957 SC 589 it has been held that <span style="color: #4700b8;"><span style="font-size: medium;"><b>it
would be a dangerous doctrine to lay down that the report of an
expert witness could be brushed aside by making reference to some
text on that subject without such text being put to the expert</b></span></span>.
</div>
<div style="margin-bottom: 0in;">
25. The observations in Gambhir vs.
State of Maharashtra AIR 1982 SC 1157 are even more meaningful in so
far as we are concerned. In this case, the doctors who had conducted
the post-mortem examination could not give the time of death. The
High Court, in its wisdom, thought it proper to delve deep into the
evidence and draw its own conclusions as to the time of death and at
the same time, made some very adverse and caustic comments with
regard to the conduct of the Doctors, and dismissed the
</div>
<div style="margin-bottom: 0in;">
appeal of the accused. This Court
(after the grant of special leave) allowed the appeal and reverting
to the High Court's opinions of the doctors observed: <span style="color: #7e0021;"><b>“The
High Court came to its own opinion when the doctors failed to give
opinion. </b></span><span style="color: #7e0021;"><u><b>The Court has to draw
its conclusion on the basis of the materials supplied by the expert
opinion.</b></u></span><span style="color: #7e0021;"><b> The High Court has
tried to usurp the functions of an expert.” </b></span>This is
precisely the error in which the trial court has fallen. It is
significant that at the initial stage only Dr. Lalji Singh had been
summoned to prove the DNA report and it was during the course of
final arguments that the court thought it fit to summon Dr. G.V.Rao
as a court witness. This witness was subjected to an extra-ordinarily
detailed examination-in-chief and even more gruelling and rambling a
cross-examination running into a hundred or more pages spread over a
period of time. The trial court finally, and in frustration, was
constrained to make an order that the cross-examination could not go
on any further. We are of the opinion that the defence counsel had
attempted to create confusion in the mind of CW-1 and the trial court
has been swayed by irrelevant considerations as it could hardly claim
the status of an expert on a very complex subject. We feel that the
trial court was not justified in rejecting the DNA Report, as nothing
adverse could be pointed out against the two experts who had
submitted it. We must, therefore, accept the DNA report as being
scientifically accurate and an exact science as held by this Court in
Smt. Kamti Devi v. Poshi Ram AIR 2001 SC 2226. In arriving at its
conclusions the trial court was also influenced by the fact that the
semen swabs and slides and the blood samples of the appellant had not
been kept in proper custody and had been tampered with, as already
indicated above. We are of the opinion that the trial court was in
error on this score. We, accordingly, endorse the conclusions of the
High Court on circumstance No.9.</div>
<div style="margin-bottom: 0in;">
26. Mr. Sushil Kumar, has almost at the
fag end of his arguments, dealt with the question of motive. <span style="color: #5e11a6;"><b>He
has pointed out that it was by now well settled that motive alone
could not form the basis for conviction as in a case of
circumstantial evidence the chain envisaged was to be complete from
the beginning to the end and to result in the only hypothesis that
the accused and the accused alone was guilty of the crime.</b></span>
In this connection, he has pointed out that the oral and documentary
evidence relied upon by the prosecution raised some misgivings and
confusion in the relationship of the appellant and the deceased
inter-se, but they could not have been the cause for the rape and
murder. The learned ASG has, however, taken us to the evidence to
argue that there was absolutely no doubt that the appellant felt
frustrated as the deceased was not giving in to his overtures despite
having been pursued relentlessly over two years, and had in anger and
frustration, committed the rape and murder. It has been reiterated
that the finding of the trial court and the High Court on the motive
(which were circumstances Nos.1, 2 and 3) has been concurrent
inasmuch that the appellant had the motive to commit the murder.</div>
<div style="margin-bottom: 0in;">
27. We have gone through the evidence
on this score. As already observed, this comprises ocular and
documentary evidence. The relevant documents in this connection are
Ex.PW6/C, a complaint dated 25th of February 1995 in which the
deceased referred to an earlier incident in which the appellant had
been harassing her either at her residence B-1/4 Safdarjung Enclave
or in the Faculty of Law and then pointed out that on that day as
well when she had left her house at 10.30 a.m. to go to a friends
place she had found the appellant following her and trying to stop
her at every traffic light and harassing and shouting at her on which
she had made a complaint at the R.K.Puram Police Station and as a
consequence thereof the appellant had tendered two apologies
Ex.PW6/DB, and an undertaking not to harass her any more either
himself or through his friends or to spoil her reputation. These
apologies also dated 25th of February 1995 were witnessed by PW Lt.
Col. S.K.Dhar and Sub-Inspector Rajinder Kumar. This was followed by
another complaint Ex.PW 11/A regarding some incident at the Khyber
Petrol Pump and another undertaking was given by the appellant that
he would not harass her on which she withdrew her complaint. The
trial court further noticed that yet another incident had happened at
about 3 p.m. on 16th August 1995 when the appellant had followed her
home all the way from the University. A message was accordingly
flashed from a PCR and received at Police Station, Vasant Kunj, and
was recorded in the Daily Entry Register as Ex. PW12/A. An enquiry
was entrusted to PW-12 Head Constable Vijay Kumar who went to the
house of the deceased and took a report Ex.PW1/A dictated by her to
her father and the appellant was thereafter arrested and taken to the
police station along with his motorcycle. In this report the deceased
wrote about the earlier incidents of harassment and also the
apologies that had been tendered by the appellant from time to time.
It appears, however, that the police was under some influence and
instead of pursuing the complaint to its logical end, several police
officers, including the SHO, ACP Parbhati Lal and ACP Satender Nath
persuaded the deceased to compromise the matter on which the deceased
was compelled to state that the complaint be kept pending for the
time being. We also find that an incident had happened on 16th
February 1995 which led the deceased to file an FIR against the
appellant under Section 354 of the IPC at Police Station, Maurice
Nagar in which she wrote that despite the fact that a PSO had been
attached with her because of the appellant's misconduct, he had still
continued to chase and harass her and that as she was entering her
class room he had caught hold of her arm and threatened her and tried
to forcibly talk to her and that she had immediately called her PSO
who made a call to the Maurice Nagar Police Station and the police
had come and taken him away. In addition to this, we find that the
appellant had made a complaint against the deceased to the University
authorities and followed it up with a reminder that she was pursuing
two courses in the University at the same time which was against the
rules with the result the University had issued a show cause notice
to her and that the matter was still under enquiry with the
University when the present incident happened. There is ocular
evidence as well. PW1 Shri C.L.Mattoo, deposed that when he visited
Delhi in December 1995 he noticed that the appellant and two or three
boys were passing lewd remarks at his daughter. Likewise, it has come
in the evidence of PW44 Smt. Rageshwari Mattoo, who testified that
while she was admitted in the AIIMS, the appellant had repeatedly
called the deceased on telephone despite the fact that she was not
taking his calls. The courts below have also placed reliance on the
evidence of three witnesses in support of the telephone calls i.e.
PW10 Tanwir Ahmed Mir, PW13 Satender Kumar Sharma, Advocate and PW16
Ms. Manju Bharti, Advocate who came into witness box to state that
the deceased had told them that the appellant was harassing her on
the telephone as well. We also notice other evidence with regard to
the sexual harassment. PW44 deposed that when she had visited Lt.
Col. S.K.Dhar's home Delhi in January 1995 (with whom the deceased
was then residing), the appellant had tried to forcibly enter the
house while she was present on which she had told him that as the
deceased was already engaged, he should not harass her. She also
referred to the fact that in February 1995 when she had visited Delhi
again, Bishamber, the domestic servant of Lt. Col. S.K.Dhar had
brought a bouquet from the outside with a chit reading “Valentines
Day - with love from Santosh.” These incidents of harassment were
confirmed by Lt. Col. S.K.Dhar as well who deposed that the appellant
had been harassing the deceased from November 1994 onwards and would
repeatedly come to his house on his black Bullet motorcycle. In the
light of the above evidence, the motive stands proved beyond any
doubt. It appears that as the appellant's overtures had been rebuffed
by the deceased, he had resorted to harassing her in a manner which
became more and more aggressive and crude as time went by. It is
evident that the appellant was well aware of her family background
and despite several complaints against him and the provision of a
PSO, he had fearlessly and shamelessly pursued her right to the
doorsteps of her residence ignoring the fact that she had first lived
in the house of Lt. Col. S.K.Dhar, an Army Officer from the end of
1994 onwards and after January 1996 with her parents, her father too
being a very senior officer in a Semi-Government Organization. It has
come in the evidence of PW Smt. Rageshwari Mattoo that the police
officers before whom the appellant had been brought on the complaints
had desisted from taking any action against him and had, on the
contrary harassed her, her husband and the deceased by summoning and
detaining them in the Police Station at odd hours and for long
periods of time. It was this behaviour that led the trial court to
comment very adversely on the conduct of some of the police officers
involved. <span style="color: #666600;"><b>We endorse the findings of the
trial court that the conduct of these officers deserves to be
condemned as reprehensible.</b></span></div>
<div style="margin-bottom: 0in;">
28. We are, therefore, of the opinion
that circumstances 1 to 3 which have been found by two courts against
the appellant and in favour of the prosecution constitute a very
strong chain in the prosecution's case. We agree with Mr. Sushil
Kumar's broad statement that motive alone cannot form the basis of
conviction but in the light of the other circumstances, the motive
goes a very long way in forging the links in the chain.</div>
<div style="margin-bottom: 0in;">
29. A few additional submissions made
by Mr. Sushil Kumar while arguing the matter in reply must now be
dealt with. <span style="color: red;"><b>He has first pointed out that
the trial court had acquitted the appellant and the High Court had
reversed the judgment and the matter before us was, therefore, in the
nature of a first appeal and the guiding principles relating to
interference in such an appeal by the High Court postulated in
Arulvelu & Anr. vs. State & Anr. (2009) 10 SCC 206 had to be
adhered to. </b></span>He has also submitted that it was now well
settled that all circumstances which were to be used against an
accused in a criminal case were to be put to him in his statement
under Section 313 of the Cr.P.C. failing which the said circumstance
could not be taken into account. Reliance for this plea has been
placed on Ishwar Singh vs. State of U.P. (1976) 4 SCC 355 and Ashraf
Ali vs. State of Assam (2008) 16 SCC 328. Elaborating on this aspect,
it has been pointed out that the allegation that the appellant had
strangulated the deceased with the use of a wire of the heat
convector and the fact that the helmet had been used for causing the
injuries to the deceased had not been put to him. The learned ASG too
has placed reliance on a large number of judgments to the effect that
the omission to put a question to an accused would not ipso-facto
result in the rejection of that evidence as the onus lay on the
accused to show prejudice. These judgments are Sharad Birdhichand
Sarda vs. State of Maharashtra (1984) 4 SCC 116 and Suresh Chandra
Bahri vs. State of Bihar 1995 Supp (1) SCC 80.
</div>
<div style="margin-bottom: 0in;">
30. We first examine the argument with
regard to the propriety of the High Court's interference in an
acquittal appeal assuming the present matter to be a first appeal.
<span style="color: #b84747;"><b>Undoubtedly, a judgment of acquittal
rendered by a trial court must be given the greatest consideration
and the appellate court would be slow in setting aside that judgment,
and where two views are possible, the one taken by the trial court
would not be disturbed. On the contrary if the trial court's judgment
was perverse, meaning thereby that it was not only against the weight
of evidence but was all together against the evidence, interference
was called for. </b></span><u><b>The High Court was alive to its
limitation in such a matter and while dealing with this argument
first expressed its shock and observed that though virtually all the
findings were in favour of the prosecution, yet curiously, the
decision had been rendered in favour of the accused. </b></u>The
judgment of the trial court was accordingly held to be perverse and
against the evidence. The High Court (in paragraph 28) observed thus:</div>
<div style="margin-bottom: 0in;">
“We have carefully and extensively
gone through the material on record with the aid of counsel for the
parties. Since this is an appeal from judgment of acquittal we can
interfere only if we are satisfied that the findings of the trial
court are perverse and have resulted in grave miscarriage of justice.
<b>High Court while hearing an appeal against acquittal has the power
to reconsider the whole evidence and to come to its own conclusion in
place of the findings of the trial court but only if the decision of
the trial court is such which could not have been arrived at all by
reasoning.</b>”</div>
<div style="margin-bottom: 0in;">
31. We too believe from a perusal of
the evidence that the High Court's observations were justified on the
facts. In other words, even assuming that the matter before us was to
be treated as a first appeal, we too would have interfered in the
matter and set aside the judgment of the trial court, as it was
against the evidence and to desist from doing so would cause great
injustice not only to the prosecution but even to the deceased victim
and her family.</div>
<div style="margin-bottom: 0in;">
32. We now come to the argument with
regard to the omission in putting certain questions to the appellant.
It does appear from the circumstance that it was the appellant who
had strangulated the deceased and that too with the convector wire
had not been put to the appellant but it is clear from question No.86
that the fact that death had been caused by asphyxiation as a result
of strangulation by ligature and that the ligature material was one
with a soft surface, had been put to him. We also see that when the
injuries at serial Nos.1 to 11 in the post-mortem report Ex.PW33/B
had been put to the appellant, he had merely made a statement that he
did not know anything. We further notice from the evidence of PW-33
Dr.A.K.Sharma that the cause of death was strangulation and that the
nature of injury Nos. 4 and 5, which referred to the ligature marks
on the neck, had been pointedly asked of the Doctor in
cross-examination. Likewise, the fact that the helmet had been used
as weapon of offence,
</div>
<div style="margin-bottom: 0in;">
had not been specifically put to the
appellant but here again we find absolutely no prejudice to the
appellant on this score as the death had been caused not by the use
of the helmet but by strangulation and that the appellant and his
counsel were fully alive to the prosecution story that the helmet had
been used as a weapon to beat the deceased into submission. Ishwar
Singh's case (supra) cited by Mr. Sushil Kumar was not dealing with a
statement under Section 313 of the Cr.P.C. The facts show that the
ballam or bhala which were alleged to be the murder weapons had not
been shown to the doctor and this Court held that in this situation,
it was not possible to convict the accused (who had been charged
under Section 302/149) under Section 302 IPC simpliciter. This
present case does not fall within this category. Mr. Sushil Kumar
has, however, placed greater reliance on Ashraf Ali's case (supra)
whereby this Court relying on a large number of judgments observed as
under: <span style="color: #4700b8;"><b>“The object of Section 313 of the
Code is to establish a direct dialogue between the court and the
accused. If a point in the evidence is important against the accused,
and the conviction is intended to be based upon it, it is right and
proper that the accused should be questioned about the matter and be
given an opportunity of explaining it. Where no specific question has
been put by the trial court on an inculpatory material in the
prosecution evidence, it would vitiate the trial. Of course, all
these are subject to rider whether they have caused miscarriage of
justice or prejudice.</b></span> This Court also expressed a similar
view in S.Harnam Singh v. State (Delhi Admn.) while dealing with
Section 342 of the Criminal Procedure Code, 1898 (corresponding to
Section 313 of the Code). <b>Non-indication of inculpatory material
in its relevant facts by the trial court to the accused adds to the
vulnerability of the prosecution case. Recording of a statement of
the accused under Section 313 is not a purposeless exercise</b>.”</div>
<div style="margin-bottom: 0in;">
33. Undoubtedly, the observations are
extremely relevant for the purpose of this case but <span style="color: #ff3333;"><span style="font-size: large;"><b>each
case has to be seen on its own facts</b></span></span>, more
particularly that the omission had caused prejudice to the accused as
would be clear from the rider put by the court in this very case (and
highlighted by us). On the contrary, we find that prejudice must
ensue has been reiterated by this Court in Suresh Chandra Bahri's
case (supra) and a very large number of other cases. This is what the
Court has to say in Bahri's case: “Learned Senior Counsel Shri
Sushil Kumar appearing for the appellant Raj Pal Sharma submitted
that in view of the fact that no question relating to motive having
been put to the appellants on the point of motive under Section 313
of the Code of Criminal Procedure, no motive for the commission of
the crime can be attributed to the appellants nor the same can be
reckoned as circumstance against the appellants. It is no doubt true
that the underlying object behind Section 313 CrPC is to enable the
accused to explain any circumstance appearing against him in the
evidence and this object is based on the maxim <span style="color: #ff3333;"><span style="font-size: medium;"><b>audi
alteram partem </b></span></span>which is one of the principles of
natural justice. <span style="color: #ff6633;"><b>It has always been regarded
unfair to rely upon any incriminating circumstance without affording
the accused an opportunity of explaining the said incriminating
circumstance. </b></span>The provisions in Section 313, therefore,
make it obligatory on the court to question the accused on the
evidence and circumstance appearing against him so as to apprise him
the exact case which he is required to meet. <span style="color: #c5000b;"><b>But
it would not be enough for the accused to show that he has not been
questioned or examined on a particular circumstance but he must also
show that such non-examination has actually and materially prejudiced
him and has resulted in failure of justice.</b></span> <b>In other
words in the event of any inadvertent omission on the part of the
court to question the accused on any incriminating circumstance
appearing against him the same cannot ipso facto vitiate the trial
unless it is shown that some prejudice was caused to him.</b> In
Bejoy Chand Patra v. State of W.B., this Court took the view that <span style="color: #6b0094;"><b>it
is not sufficient for the accused merely to show that he has not been
fully examined as required by Section 342 of the Criminal Procedure
Code (now Section 313 in the new Code) but he must also show that
such examination has materially prejudiced him.</b></span> The same
view was again reiterated by this Court in Rama Shankar Singh v.
State of W.B. <span style="color: #2300dc;"><b>In the present case before us
it may be noted that no such point was raised and no such objection
seems to have been advanced either before the trial court or the High
Court and it is being raised for the first time before this Court
which appears to us to be an afterthought. </b></span>Secondly,
learned counsel appearing for the appellants was unable to place
before us as to what in fact was the real prejudice caused to the
appellants by omission to question the accused/appellant Suresh Bahri
on the point of his motive for the crime. No material was also placed
before us to show as to what and in what manner the prejudice, if
any, was caused to the appellants or any of them.
</div>
<div style="margin-bottom: 0in;">
Apart from what has been stated above,
it may be pointed out that it cannot be said that the appellants were
totally unaware of the substance of the accusation against them with
regard to the motive part. In this regard a reference may be made to
Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri
in the course of his statement recorded under Section 313 CrPC. The
sum and substance of these questions is that from the prosecution
evidence it turns out that the acquitted accused Y.D. Arya the
maternal uncle of the appellant Suresh Bahri was living in a portion
of the upper storey of his house at Delhi. He with the consent of
Santosh Bahri the mother of Suresh Bahri, was interfering in the
family affairs as well as in business matters by reason of which the
maternal uncle had to leave the house and that having regard to the
future of her children Urshia Bahri not only wanted to manage the
property but also to dispose of the same which was not liked by
Suresh Bahri and with a view to remove Urshia Bahri from his way the
appellant Suresh Bahri wanted to commit her murder. In view of these
questions and examination of Suresh Bahri, it cannot be said that he
was totally unaware of the substance of the accusation and charge
against him or that he was not examined on the question of motive at
all. In the facts and circumstances discussed above it cannot be said
that any prejudice was caused to the appellant. The contention of the
learned counsel for the appellants in this behalf therefore has no
merit.”</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
34. We see that the facts of each case
have to be examined but the broad principle is that all incriminating
material circumstances must be put to an accused while recording his
statement under Section 313 of the Code, but if any material
circumstance has been left out that would not ipso- facto result in
the exclusion of that evidence from consideration unless it could
further be shown by the accused that prejudice and miscarriage of
justice had been sustained by him. <b>We see from the case in hand
that not only were the questions pertaining to the helmet and the
ligature marks on the neck put to the Doctor and even in a way to the
appellant but the defence counsel had raised comprehensive arguments
on these core issues not only before the trial court and the High
Court but before us as well. The defence was, therefore, alive to the
circumstances against the appellant. No prejudice or miscarriage of
justice has, thus, been occasioned.</b></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<ol start="35">
<li><div style="margin-bottom: 0in;">
<b>We have also kept in mind the
broad principle that a particularly nasty and revolting a crime
imposes a yet greater caution on the Court which must resist the
tendency to look beyond the file and not be swayed by the horror of
the crime or the character of the accused.</b> In Kashmira Singh vs.
State of Madhya Pradesh AIR 1952 SC 159 it has been observed thus:-
“The murder was a particularly cruel and revolting one and for
that reason /it will be necessary to examine the evidence with more
than ordinary care lest the shocking nature of the crime induce an
instinctive reaction against a dispassionate judicial scrutiny of
the facts and law.”</div>
<div style="margin-bottom: 0in;">
</div>
</li>
</ol>
<div style="margin-bottom: 0in;">
36. Likewise the observations in Ashish
Batham vs. State of Madhya Pradesh (2002) 7 SCC 317 too are relevant:</div>
<div style="margin-bottom: 0in;">
<span style="color: magenta;">“<span style="font-size: medium;"><b>Realities
or truth apart, the fundamental and basic presumption in the
administration of criminal law and justice delivery system is the
innocence of the alleged accused and till the charges are proved
beyond reasonable doubt on the basis of clear, cogent, credible or
unimpeachable evidence, the question of indicting or punishing an
accused does not arise, merely, carried away by the heinous nature of
the crime or the gruesome manner in which it was found to have been
committed. Mere suspicion, however, strong or probable it may be is
no effective substitute for the legal proof required to substantiate
the charge of commission of a crime and graver the charge is, greater
should be the standard of proof required. Courts dealing with
criminal cases at least should constantly remember that there is a
long mental distance between “may be true” and “must be true”
and this basic and golden rule only helps to maintain the vital
distinction between “conjectures” and “sure conclusions” to
be arrived at on the touchstone of a dispassionate judicial scrutiny
based upon a complete and comprehensive appreciation of all features
of the case as well as quality and credibility of the evidence
brought on record.”</b></span></span></div>
<div style="margin-bottom: 0in;">
The aforesaid principles have been
scrupulously adhered to by us while hearing this matter over almost 5
days.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
37. We now come to the question of
sentence. It has been submitted by Mr. Sushil Kumar that the present
case was not one which fell in the category of the `rarest of rare
cases' as several mitigating circumstances with respect to the
sentence were discernable. He has first pointed out that the High
Court had reversed an acquittal judgment based exclusively on
circumstantial evidence. He has further argued that the appellant was
a young man about 24/25 of age on the date of incident and had been
led astray by the vagaries of youth and that after his acquittal in
December 1999, he had got married (in the year 2003) and a baby girl
had been born to him and his wife before the judgment of the High
Court had been delivered in October 2006. These submissions have been
stoutly opposed by the learned
</div>
<div style="margin-bottom: 0in;">
ASG who has submitted that even the
trial court had given a positive finding that the motive and murder
were truly barbaric and revolting and had been preceded by continuous
harassment of the deceased over a period of two years and the
appellant was an advocate with an over indulgent police officer
father who had repeatedly come to the rescue of his son.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
38. We have considered the arguments of
the learned counsel and have also gone through the judgments relied
upon by them in support of their respective cases.</div>
<div style="margin-bottom: 0in;">
We think that the answer on the
question of the sentence can be found in the judgment of the High
Court itself. We quote from paragraph 3 of the sentencing part of the
judgment delivered on 30th October 2006: “We have heard learned
counsel for the parties and have given our consideration to what has
been placed before us. We need hardly say that sentencing is the most
difficult part of a judgment and this indeed has been a case here.
There is absolutely no doubt in our mind that what was required of
Santosh Singh was exemplary behaviour being a son of a police officer
and also a lawyer himself yet with a premeditated approach he
continued to harass the victim for nearly two years and ultimately in
spite of repeated warnings by the police and his undertakings to them
went about
</div>
<div style="margin-bottom: 0in;">
committing a most ghastly act. The act
itself sent ripples in the society and showed how insecure a citizen
can get against this kind of a person. In the various judgments which
have been referred to by counsel from both sides we find the
principles laid down to the considered while deciding the question of
sentence are best reported in `Bachan Singh vs. State of Punjab' AIR
1980 SC 898 and `Machhi Singh vs. State of Punjab, 1983 SC 211. These
cases sum up the law on the subject of death penalty which we have
kept in mind. Evaluating the circumstances in favour and against the
convict which have already been enumerated above, we find that the
aggravating circumstances referred to by the Additional Solicitor
General for outweigh the circumstances which according to the counsel
to the convict are mitigating circumstances, although we do not
consider them to be so. We are thus of the opinion that for a crime
of this sort which has been committed with premeditation and in a
brutal manner the convict deserves no other sentence but death.”</div>
<div style="margin-bottom: 0in;">
The underlined words themselves give a
hint as to the sentence that should be awarded in this case.
<span style="color: red;"><b>Undoubtedly the sentencing part is a
difficult one and often exercises the mind of the Court but where the
option is between a life sentence and a death sentence, the options
are indeed extremely limited and if the court itself feels some
difficulty in awarding one or the other, it is only appropriate that
the lesser sentence should be awarded. This is the underlying
philosophy behind `the rarest of the rare' principle.</b></span>
Furthermore, we see that the mitigating circumstances need to be
taken into account, more particularly that the High Court has
reversed a judgment of acquittal based on circumstantial evidence,
the appellant was a young man of 24 at the time of the incident and,
after acquittal, had got married and was the father of a girl child.
Undoubtedly, also the appellant would have had time for reflection
over the events of the last fifteen years, and to ponder over the
predicament that he now faces, the reality that his father died a
year after his conviction and the prospect of a dismal future for his
young family. On the contrary, there is nothing to suggest that he
would not be capable of reform. There are extremely aggravating
circumstances as well. In particular we notice the tendency of
parents to be over indulgent to their progeny often resulting in the
most horrendous of situations. These situations are exacerbated when
an accused belongs to a category with unlimited power or pelf or even
more dangerously, a volatile and heady cocktail of the two. The
reality that such a class does exist is for all to see and is
evidenced by regular and alarming incidents such as the present one.
Nevertheless, to our mind, the balance sheet tilts marginally in
favour of the appellant, and the ends of justice would be met if the
sentence awarded to him is commuted from death to life imprisonment
under Section 302 of the Indian Penal Code; the other part of the
sentence being retained as it is. With this modification in the
sentence, the appeal is dismissed.</div>
<div style="margin-bottom: 0in;">
...................................J.</div>
<div style="margin-bottom: 0in;">
(HARJIT SINGH BEDI)</div>
<div style="margin-bottom: 0in;">
...................................J.</div>
<div style="margin-bottom: 0in;">
(CHANDRAMAULI KR. PRASAD)</div>
<div style="margin-bottom: 0in;">
Crl. Appeal No.87 of
</div>
<div style="margin-bottom: 0in;">
2007</div>
<div style="margin-bottom: 0in;">
DATED: OCTOBER 6, 2010</div>
<div style="margin-bottom: 0in;">
NEW DELHI.</div>
<br />
</div>
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Tags------Scope of the Appellate Court
in reversing the order of acquittal by the Trial Court; Duty of the
Court when witness turns hostile; <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">the
role of a prosecutor, disclosure requirements if placed by the
prosecutor and the role of a judge in a criminal trial.; Section 311
Cr PC; Section 391 Cr PC; Sections 207 and 208 Cr PC;
Prosecution--- Investigation-- Criminal Jurisprudence; Guidelines
'how investigating agencies should conduct investigation'; Section
170 to 173 of the Criminal Procedure Code; What is the significance
of requiring an investigating officer/officer in charge of a police
station to maintain a diary?; </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Section</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;">
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8
of Evidence Act; Sectioon </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">27
Evidence Act; necessity and usefulness of test identification
parade; Section 315 of the Code; Section 313 of the
Code-------Evidentiary value of; </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Adverse
remarks against prosecution and Trial Judge; </span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>Role
of the Media and Press; </b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
freedom of speech protected under Article 19 (1) (a) of the
Constitution; protection granted to an accused under Article 21 of
the Constitution; Phone calls made immediately after an incident to
the police constitutes an FIR only when they are not vague and
cryptic.; </span></span>
</div>
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173 in The Indian Penal Code, 1860</span></b></span></span></span></span></a></div>
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Traders vs State Of Madhya Pradesh And Ors. on 4 August, 1994</span></b></span></span></span></span></a></div>
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Poonambhai Patel vs The Regional Transport Authority ... on 13 July,
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Tholia And Ors. vs State Of Rajasthan And Anr. on 10 August, 2000</span></b></span></span></span></span></a></div>
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Hussain Zahid Hussain vs Municipal Council And Ors. on 26 July, 1994</span></b></span></span></span></span></a></div>
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<a href="http://www.indiankanoon.org/doc/251959/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><span style="font-size: small;"><b><span style="background: #f5ede3;">Ms.
Shama Parveen vs Ministry Of Home Affairs (Mha). on 26 December, 2008</span></b></span></span></span></span></a></div>
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<span style="color: #cdbfac;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Supreme
Court of India</b></span></span></span>
<br />
<div align="JUSTIFY" style="margin-bottom: 0.1in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Sidhartha
Vashisht @ Manu Sharma vs State (Nct Of Delhi) on 19 April, 2010</b></span></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Author:
P Sathasivam</span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Bench:
P. Sathasivam, Swatanter Kumar</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPELLATE JURISDICTION</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO. 179 OF 2007</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Sidhartha
Vashisht @ Manu</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Sharma
.... Appellant(s) Versus</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State
(NCT of Delhi) .... Respondent(s) WITH</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO. 157 OF 2007</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">AND</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO. 224 OF 2007</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">JUDGMENT</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">P.
Sathasivam, J.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1)
These statutory appeals are filed under Section 2(a) of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and
under Section 379 of the 1</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Criminal
Procedure Code against the final judgment and order dated
18/20.12.2006 passed by the High Court of Delhi in Criminal Appeal
No. 193 of 2006 whereby the High Court reversed the order of
acquittal dated 21.02.2006 passed by the Additional Sessions Judge,
Delhi, in Sessions Case No. 105 of 2001 and convicted Sidhartha
Vashisht @ Manu Sharma (appellant in Crl. A. No. 179 of 2007) under
Section 302, 201/120B IPC and Section 27 of the Arms Act and
sentenced him to undergo imprisonment for life for the offence under
Section 302 IPC together with a fine of Rs.50,000/- to be paid to the
family of the victim and in default of payment of fine, to undergo
further imprisonment for three years and also sentenced him to
undergo imprisonment for four years for the offence under Section 27
of the Arms Act with a fine of Rs.2000/- and in default to further
undergo imprisonment for three months. He was further sentenced to
undergo imprisonment for four years for the offence under Section
201/120B IPC together with a fine of Rs. 2,000 and, in 2</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">default,
to further undergo imprisonment for three months. The High Court also
sentenced Amardeep Singh Gill @ Tony Gill (appellant in Crl.A. No.
157/2007) and Vikas Yadav (appellant in Crl. A.No.224/2007) to
undergo rigorous imprisonment for four years and a fine of Rs.2000/-
each and, in default of payment of fine, to further undergo
imprisonment for three months under Section 201/120B IPC.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2)
The case of the prosecution:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
On night intervening 29-30.04.1999, a `Thursday Party' was going on
at Qutub Colonnade at "Once upon a time" restaurant
also called "Tamarind Cafi". The liquor was being
served by the bartenders, namely, Jessica Lal (since deceased) and
one Shyan Munshi (PW-2). At about 2.00 a.m., Sidhartha Vashisht @
Manu Sharma (appellant in Crl. A. No. 179 of 2007) along with his
friends came there and asked for two drinks. The waiter did not serve
him liquor as the party was over. Jessica Lal and Malini Ramani
(PW-6), who were also present there, tried to make 3</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">him
understand that the party was over and there was no liquor available
with them. On refusal to serve liquor, the appellant took out a
pistol and fired one shot at the roof and another at Jessica Lal
which hit near her left eye as a result of which she fell down. Beena
Ramani (PW-20), who was present there, stopped the appellant and
questioned him as to why he had shot Jessica Lal and demanded the
weapon from him but he did not hand over the pistol and fled away.
Jessica Lal was rushed to Ashlok Hospital from where she was shifted
to Apollo Hospital. On 30.04.1999, in the early morning hours,
Jessica Lal was declared brought dead at Apollo Hospital. (b) On the
night intervening 29/30.04.1999 at 2.20 a.m., DD Entry No. 41 A (Ex.
PW-13/A) was recorded at Police Station Mehrauli which disclosed a
shooting incident at H- 5/6 Qutub Colonnade. A copy of the said DD
entry was handed over to SI Sharad Kumar (PW-78) who along with Ct.
Meenu Mathew left for the spot. Near about the same time, copy of the
said DD entry was also given to SI Sunil 4</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Kumar
(PW-100) who along with Ct. Subhash also left for the spot. On
reaching the spot, PW-78 found that the injured had been removed to
Ashlok Hospital and the floor of the Restaurant was found to be wet.
SI Sunil Kumar (PW-100) then left SI Sharad Kumar (PW-78) at the spot
to guard the same and proceeded to Ashlok Hospital along with Ct.
Subhash. The SHO Police Station Mehrauli, Inspector S.K. Sharma
(PW-101) along with his team also left the Police Station vide DD
Entry No. 43 A and reached the spot and deputed one Home Guard
Shravan Kumar (PW 30) at the entrance of `Qutub Colonnade' to guard
the vehicles. On reaching Ashlok Hospital, PW-100 met Beena Ramani
(PW-20), who is the owner of the Restaurant, and enquired about the
incident but she asked him to talk to Shyan Munshi (PW-2) saying that
he was inside and he knew everything. PW-100 then recorded the
statement of PW-2 and made an endorsement on the same for the
registration of the case under Section 307 IPC and handed over it to
Ct. Subhash 5</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">to
be carried to the police station, Mehrauli. At about 4.00 a.m., FIR
No. 287/99 was registered at the police station, Mehrauli. In the
meantime, Jessica Lal had been shifted to Apollo Hospital. When SI
Sunil Kumar came back to the spot along with PW-2, PW 30 informed
them about the lifting of one black Tata Safari from the spot. On
inspection of the site, two empty cartridges were seized and, in the
meantime, a supplementary statement of PW-2 was also recorded by
PW-100. At about 5.45 a.m., PW- 100 received an information by Ct.
Satyavan intimating him about the death of Jessica Lal at Apollo
Hospital. Charge under Section 302 IPC/201/120 B IPC and under
Section 27 of the Arms Act has been framed against the accused
Sidhartha Vashisht @ Manu Sharma, charge under Section 201/120B IPC
has been framed against accused Vikas Yadav, Amardeep Singh Gill @
Tony Gill and Alok Khanna, charge under Section 212 IPC has been
framed against Harvinder Chopra, Raja Chopra, Vikas Gill @ Ruby Gill
and Yograj Singh and charge under Section 6</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">201/212
IPC against Shyam Sunder Sharma. At about 7.00 a.m. PW 100 recorded
the statement of the Manager (PW-47), Waiter (PW-46) and Beena Ramani
(PW-20)- the owner of the Restaurant.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(c)
The post mortem was conducted at about 11.30 a.m. at the All India
Institute of Medical Sciences on the same day i.e. 30.04.1999. In the
meantime, at about 11.00 a.m., SI Pankaj Malik (PW-85) had been sent
to Chandigarh to secure the black Tata Safari and to arrest the
appellant. PW-100 recorded the statements of the witnesses. On
30.04.1999 at about 4.15 p.m., an FIR was registered against Malini
Ramani (PW-6), Beena Ramani (PW-20) and George Mailhot (PW-24) under
Sections 61/68/1/14 of the Punjab Excise Act. At about 8.30 p.m.,
PW-100 handed over the investigation to SHO S.K. Sharma (PW-101). On
the night intervening 30.04.1999/01.05.1999, at about 2 a.m., the
police raided the farm house of the appellant and on search being
conducted seized a photograph of the appellant. On 7</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">02.05.1999,
a list of invited guests was prepared by PW-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">24.
On the same day, around 10.00 p.m., PW-101, got an information that a
black Tata Safari has been found by the U.P. Police (Sector 24, Noida
Police Station) and on the next day PW-101 went to Noida Police
Station and seized the said black Tata Safari. On 05.05.1999 at about
2.30 a.m., Amardeep Singh Gill @ Tony Gill and Alok Khanna were
arrested and from their alleged disclosure statements, the
involvement of Sidhartha Vashisht @ Manu Sharma was confirmed. On the
same day, Inspector Raman Lamba (PW 87) who was in Chandigarh with
his team intimated the lawyer of the accused- appellant that Manu
Sharma is required in the case. On receipt of the information, on
06.05.1999, the appellant surrendered before PW-87 and was later
arrested at about 2.20 p.m. and brought to Delhi. On 07.05.1999, the
police produced the appellant before the Metropolitan Magistrate and
sought police remand for effecting recovery of the alleged weapon of
offence. An application for 8</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">conducting
Test Identification Parade (TIP) of the appellant was also moved.
Thereafter, the appellant was remanded to five days police custody
till 12.05.1999 and thereafter on 12.05.1999 extended till 17.05.1999
on the application of the I.O., but on 15.05.1999, the appellant's
remand was preponed from 17.05.1999 to 15.05.1999. On 16.05.99, the
appellant was sent to judicial custody. On 30.05.1999, the
accused-Vikas Yadav was also arrested. After the completion of
investigation, the other accused persons were also arrested.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(d)
On 03.08.1999, charge sheet was filed against ten accused persons. On
23.11.2000, the Additional Sessions Judge framed charges against the
appellant/Manu Sharma under Sections 302, 201 read with 120 B IPC and
Section 27 of the Arms Act, accused Amardeep Singh Gill was charged
under Section 120 read with Section 201 IPC, accused Vikas Yadav was
charged under Section 120 read with 201 IPC as also Section 201 read
with 34 IPC, accused Harvinder Chopra, Vikas Gill, Yograj Singh and 9</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Raja
Chopra under Section 212 IPC and accused Alok Khanna, Shyam Sunder
Sharma and Amit Jhingan were discharged of all the offences. In
2000/2001, Revision Petition No. 596 of 2000 was preferred by the
prosecution before the High Court of Delhi praying for the framing of
charge against the accused persons and setting aside the discharge of
Alok Khanna, Shyam Sunder Sharma and Amit Jhingan. Revision Petitions
were also preferred by the accused persons against the framing of the
charges against them. The High Court disposed of all the revision
petitions filed by the accused persons by a common order dated
13.03.2001. On 12.04.2001, charges as per the orders of the High
Court were framed and some of the charges as framed earlier were
maintained. Charges under Section 120B/201 IPC were framed against
accused Vikas Yadav, Amardeep Singh Gill @ Tony Gill and Alok Khanna
and charges under Sections 201 and 212 IPC were framed against
accused Shyam Sunder Sharma. Against the rest of the accused, the
charges as framed on 10</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">23.11.2000
by the trial Court were maintained. Trial began in May, 2001 against
nine accused. In all, 101 witnesses were examined by the prosecution
and two court witnesses were also examined.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(e)
On 12.12.2001, the case registered against Malini Ramani, Beena
Ramani and George Mailhot under the Punjab Excise Act was disposed of
with a direction to pay a fine of Rs.200/- each. On 28.01.2002, the
appellant was released on interim bail for a period of six weeks by
the order of the High Court dated 25.01.2002 with a direction to
surrender after the expiry of the same. In compliance with the
conditions of interim bail, the appellant surrendered on 11.3.2002
but again sought for and granted interim bail for a period of ten
weeks starting from 20.03.2002. During the period from March 2002 to
February 2006, the appellant was enlarged on bail on different
occasions by various orders of the High Court. On one occasion,
against the dismissal of the bail application by the High Court on
11.11.2003, the 11</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">appellant
filed a special leave petition before this Court which was dismissed
by this Court on 02.12.2003. On 21.02.2006, after trial, the
Additional Sessions Judge acquitted all the nine accused including
the appellant- Manu Sharma.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(f)
Challenging the acquittal, the prosecution filed an appeal before the
High Court being Crl. Appeal No. 193 of 2006. On 20.12.2006, the High
Court vide the impugned order, convicted and sentenced the
appellants, as mentioned in paragraphs above. Challenging the said
order of the High Court, all the three appellants filed above
mentioned separate appeals before this Court. All the appeals were
heard together and are being disposed of by this common judgment.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3)
Heard Mr. Ram Jethmalani, learned senior counsel for Sidhartha
Vashisht @ Manu Sharma, appellant in Crl. A. No. 179 of 2007, Mr.
Nitin Sangra, learned counsel for Amardeep Singh Gill @ Tony Gill,
appellant in Crl.A. No. 157/2007, Mr. Ranbir Yadav, learned counsel
for 12</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Vikas
Yadav, appellant in Crl. A.No.224/2007, Mr. Gopal Subramanium,
learned Solicitor General of India for Respondent-State in all the
three appeals and Mrs. Mamta Dhody Kalra, intervenor, who appeared in
person and pleaded for acquittal of the appellant-Manu Sharma.
Contentions of the appellants/accused:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4)
Mr. Ram Jethmalani, after taking us through all the oral and
documentary evidence relied on by the prosecution as well as the
defence, the order of the Trial Judge acquitting all the appellants
from the charges leveled against them and the impugned order of the
High Court reversing the order of acquittal raised the following
contentions:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">a)
The appellant (Sidhartha Vashisht @ Manu Sharma) has been denied his
fundamental right to free and fair trial which is guaranteed under
Article 21 of the Constitution of India.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">b)
On the very first day of investigation i.e. on 30.04.1999, an FIR was
filed against Malini Ramani PW-6, 13</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Beena
Ramani PW-20 and George Mailhot PW-24 under the Punjab Excise Act in
order to control these witnesses and to pressurise them to support
the prosecution case. After their deposition, the Excise case was
pre-poned and disposed of by imposing a fine of paltry amount. c)
Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot PW-24 were
frequently shown the photograph of the appellant and he was paraded
before them. d) The finding of the High Court that Sidhartha Vashisht
@ Manu Sharma took out his pistol and first fired at the ceiling and
then at Jessica Lal is based on no evidence. e) Three Ballistic
Experts have concurred that empty cartridges have been fired from two
different weapons. Their Report support the statement-in-chief of
Shyan Munshi PW-2. There is no evidence on record that both the shots
were fired from one weapon.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">f)
The High Court has wrongly placed reliance upon the testimony of
Deepak Bhojwani PW-1, even though, he was not present in the party
and he was planted by the prosecution. The evidence of three family
members Malini Ramani PW-6, 14</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Beena
Ramani PW-20 and George Mailhot PW-24 is inadmissible in law.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">g)
The prosecution never claimed Beena Ramani PW-20 as an eye-witness,
however, the High Court erroneously held her as eye-witness to the
occurrence. h) High Court failed to consider the evidence of Madan
Kumar (Waiter) PW-46 and Jatinder Raj (Manager) PW-47. i) The High
Court committed an error in relying upon the testimony of George
Mailhot PW-24 to corroborate the evidence of Beena Ramani PW-20.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">j)
The First Information Report recorded on the statement of Shyan
Munshi PW-2 is not an FIR but a signed statement. The High Court
wrongly discarded his (PW-2) ocular version. However, the Trial Court
assigned good reasons for accepting his evidence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">k)
The High Court's observation on Ballistic Experts from CFSL is
erroneous.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">l)
The High Court committed an error in disbelieving P.S. Manocha PW-95.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">m)
There is no acceptable evidence/material to connect Tata Safari to
the alleged occurrence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">n)
Shravan Kumar PW-30 is a planted witness, and there is no need for
him to accompany PW-1 to the spot when he was assigned other official
work.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">o)
A rough site plan which was prepared in the early hours of 30.04.1999
(Ex. PW 100/2) clearly shows the absence of Beena Ramani PW-20 at the
alleged place of occurrence, if she was an eye-witness, this would
have been done.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">p)
The Public Prosecutor failed to adhere the basic principles in
conducting criminal case.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">q)
The High Court committed a grave error by reversing the well
considered order of acquittal by the Trial Court and on conjunctures
the High Court interfered with the acquittal and imposed sentence
which is not permissible under law.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5)
The other two learned counsel submitted that the prosecution failed
to establish the charge in respect of 16</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Amardeep
Singh Gill and Vikas Yadav under Section 201 read with 120B of the
IPC.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6)
The intervenor supported the case of the appellant- Manu Sharma and
prayed for his acquittal. Submissions on behalf of the State:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7)
On the other hand, Mr. Gopal Subramanium, learned Solicitor General,
after taking us through the entire materials, submitted that the
Trial Judge has committed an error in acquitting all the accused and
the High Court being an Appellate Court is fully justified in
re-analysing the evidence and convicting all the three accused-
appellants and awarding appropriate sentence. After pointing out
oral, documentary evidence and other legal principles, he submitted
that the conviction and sentence awarded by the High Court are
acceptable and no interference is called for by this Court, and
prayed for dismissal of all the three appeals.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8)
We have carefully considered all the materials placed and the rival
contentions.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">17</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9)
Points for consideration in these appeals are:- a) Whether the
prosecution has established its case beyond reasonable doubt against
all the three accused? b) Whether the trial Court is justified in
acquitting all the accused in respect of charges leveled against
them? c) Whether the impugned order of the High Court imposing
punishment when the trial Court acquitted all the accused in respect
of the charges leveled against them is sustainable?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10)
It is not in dispute that the following charges were framed against
the appellants:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">S.No.
Name of Accused Accused Charges Framed</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Sidhartha Vashist @ 1 302 IPC, 27 Arms Act, 201 Manu Sharma r/w 120B
IPC</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
Vikas Yadav 2 201 r/w 120B IPC</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
Amardeep Singh Gill 3 201 r/w 120B IPC Powers and Duties of the
Appellate Court while dealing with the order of acquittal:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11)
Before analyzing the prosecution case, the defence plea and the
arguments of the respective counsel, let us find out the scope of the
Appellate Court in reversing the order of acquittal by the Trial
Court. Mr. Ram Jethmalani, learned senior counsel for the appellant-
18</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Manu
Sharma, by drawing our attention to the principles laid down by this
Court in Madan Lal vs. State of J&K, (1997) 7 SCC 677
submitted that in an appeal against acquittal, it is incumbent on the
Appellate Court to give adequate reasons for reversal. By citing
Ghurey Lal vs. State of Uttar Pradesh (2008) 10 SCC 450, he further
contended that the High Court could not have reversed the judgment of
the Trial Court inasmuch as the view taken by the Trial Court was
plausible view based on the evidence on record, hence the finding of
the Trial Court could not have been overturned.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12)
Mr. Gopal Subramanium, learned Solicitor General, by relying on the
decision of this Court in Chandra Mohan Tiwari vs. State of M.P.,
(1992) 2 SCC 105 submitted that where the High Court's conclusion was
based on evaluation of evidence which was not erroneous or perverse
and was based on an independent analysis of evidence which fully
establishes the case of the prosecution as against the trial Court's
conclusion, there 19</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">is
no reason much less the compelling reason to disagree with the
finding of guilt by the High Court. He also pressed into service
another decision of this Court in Jaswant Singh vs. State of Haryana,
(2000) 4 SCC 484. 13) The following principles have to be kept in
mind by the Appellate Court while dealing with appeals, particularly,
against the order of acquittal:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(i)
There is no limitation on the part of the Appellate Court to review
the evidence upon which the order of acquittal is found.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(ii)
The Appellate Court in an appeal against acquittal can review the
entire evidence and come to its own conclusions.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(iii)
The Appellate Court can also review the Trial Court's conclusion with
respect to both facts and law.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(iv)
While dealing with the appeal preferred by the State, it is the duty
of the Appellate Court to marshal the entire evidence on record and
by 20</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">giving
cogent and adequate reasons set aside the judgment of acquittal.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(v)
An order of acquittal is to be interfered only when there are
"compelling and substantial reasons" for doing so.
If the order is "clearly unreasonable", it is a
compelling reason for interference.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(vi)
While sitting in judgment over an acquittal the Appellate Court is
first required to seek an answer to the question whether finding of
the Trial Court are palpably wrong, manifestly, erroneous or
demonstrably unsustainable. If the Appellate Court answers the above
question in the negative the order of acquittal is not to be
disturbed. Conversely, if the Appellate Court holds, for reasons to
be recorded, that the order of acquittal cannot at all be sustained
in view of any of the above infirmities, it can reappraise the
evidence to arrive at its own conclusion. 21</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(vii)
When the Trial Court has ignored the evidence or misread the material
evidence or has ignored material documents like dying
declaration/report of Ballistic Experts etc., the Appellate Court is
competent to reverse the decision of the Trial Court depending on the
materials placed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
the light of the above principles, let us examine the impugned
judgment of the High Court with reference to the materials placed by
the prosecution and the defence. 14) At the outset, Mr. Ram
Jethmalani, learned senior counsel highlighted the role of public
prosecutor in conducting prosecution for which he relied on the
procedures being followed in United Kingdom and also cited certain
passages from the books of foreign authors. In addition to the same,
he highlighted how the appellant- Manu Sharma was prejudiced by the
wild allegations that were carried by Media, both print and
electronic. Since we intend to concentrate on the merits of the case,
we discuss 22</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">and
give our reasoning at the appropriate place or at the end of our
order.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15)
Presence of accused Manu Sharma & others at the scene of
offence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">There
is no dispute that the incidence occurred in a place known as
"Qutub Colonnade". The open area of "Qutub
Colonnade" is known as "Tamarind Court"
whereas the closed area is called "Tamarind Cafe".
In order to establish the presence of the accused Sidhartha Vashisht
@ Manu Sharma and others, prosecution has examined Deepak Bhojwani
PW-1, Shyan Munshi PW-2, Malini Ramani PW-6, Beena Ramani PW-20,
George Mailhot PW-24, Rouble Dungley PW-23 and Rohit Bal PW-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">70.
Apart from these ocular witnesses, prosecution pressed into service
Ex. PW12/D-1 which is a wireless message received at Police Station,
Mehrauli. a) Deepak Bhojwani PW-1</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">He
is a resident of K-5/B, Ground Floor, Lajpat Nagar, New Delhi.
According to him, in the year 1999, he 23</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">had
attended the place known as "Qutub Colonnade" as
Thursday Party four times on each Thursday and the last occasion when
he attended this Thursday Party was on 29.04.1999. There used to be a
gathering of friends at this Party and all varieties of liquor used
to be served in this Party besides snacks etc. He explained that
coupons used to be issued for purchase of any kind of liquor. Such
coupons were used to be purchased in advance from the cash counter.
On 29.04.1999, he attended the Thursday Party alone at about 11
o'clock in the night. In chief examination, in categorical terms, he
deposed: "I had purchased four coupons of Rs. 100/- each on
that day. Jessica Lal (since deceased) and Shyan Munshi (complainant)
were serving liquor on that night at the bar counter. I had known
Jessica lal for about five or six years whereas Shyan was introduced
to me by Jessica Lal about a week before 29.04.1999 i.e. on the
previous Thursday Party". Apart from the above assertion, he
also informed the Court that Jessica Lal (since deceased) was working
with Oberoi Hotel and was also a model by profession. He described
the location of "Tamarind Court" and "Tamarind
Cafi". The bar counter was located in "Tamarind
Court" open area between the two doors of the "Tamarind
Cafi", 24</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">but
since it was summer nobody was using the bar counter giving
preference to the bar counter located outside. He also stated that
Jessica Lal was wearing blue denim shorts and white half sleeved
shirt on that night. On the same night, at about 1 o'clock
(midnight), he went to the bar counter to have his third drink. He
informed the Court that on the suggestion of Jessica Lal that the
liquor was getting over he handed over all the remaining coupons and
purchased two pegs of whisky. While holding both the glasses of
whisky, he came in the company of his friends.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
following statement of PW-1 proves the presence of accused Manu
Sharma and his friends-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
was moving around in the party with two glasses of whisky, when I
came across a person having fair complexion who was giving smile to
me. I also reciprocated. Then he came to me. We both introduced each
other. He gave me his name as Manu Sharma. He said as to how I was
holding two glasses of whisky in my hands whereas he was unable to
get even one. Manu Sharma came into my contact after about 10-15
minutes of my purchasing two pegs of whisky. He requested me to
arrange liquor for him on which I told him that liquor was over and
the bar was closed and therefore, I would not be able to arrange
liquor for him. We were already introduced to each other and were
about to exchange visiting cards, when one tall sikh gentleman came
from behind of Manu Sharma and told him something and took him away
towards Tamarind Cafi. Before leaving, 25</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Manu
Sharma told me that he would come back and meet me again".</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">PW-1
correctly identified the photographs of both the accused persons one
Manu Sharma and the other Tony Gill. He also informed that the
accused Tony Gill came along with Manu Sharma and 2/3 of his friends.
In respect of the question whether it would be possible for him to
identify those 2/3 persons who were accompanying accused Tony Gill,
PW-1 has pointed out Alok Khanna, accused-Manu Sharma and Tony Gill.
We shall separately discuss about the Test Identification Parade and
the validity of desk identification during time in the latter
paragraphs.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">About
the incident, he narrated that</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"After
about 15/20 minutes i.e. about 1:45 a.m., I heard noise from Tamarind
Cafi and I heard somebody saying Jessica was shot. At that time I was
present in Tamarind Court and I was talking to my friend Arash
Aggarwal. After hearing the shouts about Jessica having been shot, I
rushed towards Tamarind Cafi. I could not go inside where the
incident had taken place but I peeped and saw Jessica lying on the
floor. At that time, there were about 70/80 persons gathered all
around i.e. near the gate of Tamarind Cafi i.e. the gate of Tamarind
Cafi."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">He
further informed the Court -</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"......discussion
was going on as to who had done this and it was also being discussed
that the culprit was wearing 26</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">blue
denim jeans and white shirt and was fair and was little short in
height then I assessed that he was the same person who had come to me
to arrange drinks for him. I had told the police in Apollo Hospital
that it was Manu Sharma who was with the similar description as was
discussed amongst friends on which police had told me that they would
call me." A close scrutiny of PW-1's evidence clearly shows
that Jessica Lal was friendly with him having known him for 5- 6
years. He also went to the house of parents of Jessica Lal twice i.e.
on 30th April and 1st May 1999 to pay condolence. Further, in
categorical terms, he asserted and identified the presence of Manu
Sharma at the scene of offence. Since he had contact with a person
having fair complexion with smiling face/Manu Sharma, in the Court he
correctly identified both Manu Sharma and the tall Sikh gentleman as
Tony Gill. He also identified other persons who accompanied Manu
Sharma and Tony Gill. It is also clear from his evidence that at
around 1.45 a.m., he heard a noise emerging from Tamarind Cafi to the
effect that Jessica Lal had been shot. It is also clear that on
hearing that Jessica Lal had been shot, he ran towards Tamarind Cafi
though according to him he could not go 27</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">inside
yet peeped and saw Jessica Lal lying on the floor. Since the High
Court has accepted his evidence which was not acceptable by the Trial
Court, we analyzed his entire statement with great care. Mr. Ram
Jethmalani, learned senior counsel has pointed out that since PW-1's
name does not figure in the list of invitees prepared by George
Mailhot PW-23 and Sabrina Lal PW-73 did not mention the name of
Deepak Bhojwani PW-1 at Ashlok Hospital and of the fact that the
statement of PW-1 was recorded on 14.05.1999 submitted that, first of
all, he is an interested witness and his testimony is not acceptable.
On seeing his entire evidence, there is no reason to either suspect
his evidence or reject the same as unacceptable. On the other hand,
his evidence supported by other witnesses clearly proves the presence
of accused Nos. 1-4 at the place of occurrence. He asserted the
presence of Jessica Lal, Shyan Munshi and the claim of whisky by a
fair complexion man who exchanged niceties with him and introduced
him as Manu Sharma. We do not find any 28</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">valid
reason to hold that he is a planted witness, though he was not an
eye-witness to the actual shooting incident but his own statement
proves that immediately on hearing the noise he peeped and noticed
Jessica Lal lying on the floor of Tamarind Cafi. To this extent, the
evidence of PW- 1 is acceptable and the High Court has rightly
believed and relied on his version.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">b)
Shyan Munshi PW-2</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
the year 1999, he was studying in Indian Institute of Planning and
Management at New Delhi doing his MBA Course. At that time, he was
residing at 15/16 H. Hauz Khas, New Delhi. He informed the Court that
he was acquainted to Malini Ramani through which he started knowing
about Beena Ramani who is the mother of Malini Ramani. He had visited
Tamarind Cafi on the night of 29th April, 1999. It was Thursday
Night. He was attending the Party at that night. Alcohol and food
were being served there on paying for coupons. In categorical terms
he informed the Court that--</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
was attending the party there on that night. Alcohol and food was
being sold there on coupons. I had met Jessica Lal on that night in
the party. I had acquaintance with her from before. The place where
the party was going on was known as Qutub Colonnade Tamarind Court.
There was miniature bar counter outside in the open space where
liquor was being served. Besides Jessica Lal and Malini there were
other few persons who were helping in serving 29</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">liquor.
On that night, I did go inside the Tamarind Cafi. It might be 2
o'clock at that time, I mean 2 a.m. There were about 6-7 persons
inside the cafi at that time. " "I went inside the
cafi primarily with a view to eat something as I was feeling hungry
and also nothing was being served outside. I found that Jessica was
inside. At that time, no other lady was there. I went behind the
counter to get something to eat. I managed to get pastry lying in the
freeze and when I was taking it, a gentleman with white tea-shirt
came there. He asked the waiter to serve him two drinks. The waiter
did not pay attention to that gentleman and became busy in cleaning
up. Jessica was also there on the other side of the counter and she
told the gentleman that the party was over and there was no alcohol
to be served. At that time, that gentleman took out a pistol from the
dub of the pant and fired a shot in the air. There was another
gentleman on the other side of the counter, who fired a shot at
Jessica Lal and she fell down. That gentleman was also wearing light
colored clothes." Since the present statement about
"another gentleman" who fired a shot at Jessica Lal
and she fell down was not the one earlier made to the Police, after
getting permission from the Court, the public prosecutor
cross-examined him. He stated--</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is correct that Beena Ramani and other lifted Jessica from the spot
and carried her to the Hospital Ashlok. I went there later. In the
Ashlok Hospital, police came there and contacted me and recorded my
statement." ".....I reached the Hospital at about
3:30 a.m. and my statement was taken at about 3:45 a.m. or 4
a.m." He also admitted that he was in Delhi for about a year
or so and able to understand spoken Hindi. He is aware of Beena
Ramani as the proprietor of Qutub Colonnade. 30</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
analysis of the evidence of PW-2 shows that though he turned hostile
but his evidence shows that he had visited Tamarind Cafi on the night
of 29.04.1999. He also mentioned the presence of Manu Sharma. His
evidence further shows that immediately after the shot Beena Ramani
and others were carrying Jessica Lal to the Ashlok Hospital. In other
words, his evidence proves the presence of accused-Manu Sharma at the
scene of offence. To this extent, the prosecution relied upon his
evidence and this was rightly accepted by the High Court. Though, Mr.
Ram Jethmalani submitted that High Court ought to have accepted his
entire evidence in toto, considering his earlier statement to the
police and his evidence before the Court, we are satisfied that the
High Court is justified in holding that even if his testimony is
discarded, the case of the prosecution hardly gets affected. As
observed earlier his evidence amply proves the presence of accused at
the scene of occurrence at the time and date as pleaded by the
prosecution.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">c)
Malini Ramani PW-6</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">She
is the daughter of Beena Ramani PW-20. She is a fashion designer by
profession. Her mother Beena Ramani owns a property near Qutub Minar
known as Qutub Colonnade. She explained to the Court that in the year
1999 they used to have parties in Qutub Colonnade and liquor used to
be consumed in these parties. On 29.04.1999, there was a party at
Qutub Colonnade. It was Thursday. It was a farewell party for her
stepfather namely, George Mailhot PW-24, who was going abroad for
five months. She was at the Qutub Colonnade on that evening. Jessica
Lal was also there. Beena Ramani PW-20 and Shyan Munshi PW-2, were
also there. According to her, the party on that night was over by
midnight. Approximately at about 1.45 a.m., she went with her friend
Sanjay Mehtani to the restaurant to look for something to eat. At
that time, she had a drink in her hand. She found that Jessica Lal,
Shyan Munshi, her 32</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">electrician
and couple of waiters were there in the restaurant. She further
deposed--</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"We
were standing there when couple of guys went in. They were about
numbering four, may be five. I am not very sure about it. One of them
asked me could I have two whiskys. He was wearing jean and white
t-shirt. He was in his mid twenties. He was having fair complexion.
His built was on the plump side. I do not know if he had asked whisky
from anybody else prior to asking from me. When he asked two whiskys
from me, I showed my inability saying sorry, Bar was closed. Then he
kept asking me and Jessica for drinks, but we kept on saying that the
bar was closed and whisky could not be served."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Then
he said that he had cash to pay for drink. I said it did not matter.
I could not give sip even for thousand rupees it being not available.
Then he said O.K. could I have sip of you for thousand rupees. Then
at that point of time, I just left the room because I was irritated
about the whole incident. Sanjay Mehtani and myself walked out
together. When I walked out, I crossed my mother in courtyards as I
was walking out. Again said, I crossed my mother, she was walking
towards the restaurant. I went to the passage way where the shops
were located. It was on the other side of the courtyard and I was
standing next to speaker (amplifier). After about a minute and a
half/two minutes, Shyan Munshi came running to me and Sanjay Mehtani
and he was screaming that Jessica had been shot. I just passed out
after hearing about it and fainted. I can identify that person, who
had asked drink from me and who was wearing jean and t-shirt. Witness
has pointed out towards accused Siddhartha Vashisht @ Manu Sharma and
said that he just look like him. I had seen this accused in the
police station on 8th May. I had gone there as I was arrested in a
case under Excise Act."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Question:-
Are you certain that the person to whom you had just identified was
the same person who had asked drinks from you and was wearing jean
and T- shirt?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Answer:-
I am sure he is the same person." 33</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">About
PW-6's testimony, Mr. Ram Jethmalani criticized the question put by
the public prosecutor which according to him is not permissible. It
is relevant to point out that before considering her answer that
"I am sure he is the same person", we have to see
her statement in the previous paragraph. She identified Manu Sharma
who had asked drinks from her who was wearing Jean and T- shirt. It
is also relevant to note that she pointed out towards the accused
Manu Sharma and said that "he just looked like him."
As rightly pointed by learned Solicitor General, the above mentioned
question by the public prosecutor is in addition to the earlier ones
relating to identity of the person who was wearing jean and T-shirt
and who asked for drinks. It is relevant to note that PW-6 is not an
ordinary person and it is not the case of the defence that she is an
illiterate, unable to understand what she said to the earlier
questions. We have already noted that she is a fashion designer by
profession. In other words, she is highly qualified and it is not her
34</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">grievance
that she was unable to understand her earlier answers. In such
circumstances, we are unable to appreciate the objection of Mr. Ram
Jethmalani. On the other hand, it is clear from the evidence of PW-6
that the accused Manu Sharma was very well present at the scene of
offence and she correctly identified him. Further, as rightly
observed by the High court, though she was not an eye-witness, she is
certainly a witness identifying Manu Sharma along with 4 or 5 persons
present at the Tamarind Court who asked her for whisky and later
misbehaved with her. We agree with the observation and the ultimate
conclusion about PW-6 reached by the High Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">d)
Beena Ramani PW-20</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">She
is the wife of George Mailhot PW-24. She is a Fashion Designer. She
purchased the property near Qutub Minar at H-5/6 Mehrauli Road, New
Delhi in the year 1995. This property is being used as a Shopping
Arcade and a Restaurant. The Shopping Arcade is known as
“QutubColonnade”. The name of the Restaurant was "Tamarind
Court Cafi". She had a proper license for eating house in
the aforesaid complex. The license for the restaurant was in the name
and style "Once Upon A Time". She admitted that the
license of eating house was not valid beyond one year. She has two
children namely Malini Ramani and Geetanjali. In 1999, her daughter
Malini Ramani was assisting her in running the restaurant. On
Thursdays, there used to be special private parties where guests
could come by invitation. Alcohol was never served in the Restaurant
but were served only in the courtyard on Thursday Parties. She
further deposed--</span></span></div>
<div align="JUSTIFY">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">I
knew Jessica Lal, Shyan Munshi. We had a proper staff to run the
Restaurant and occasionally any of our friends could reach out and
help the Thursdays Parties. Jessica Lal and Shyan Munshi were friends
of my daughter Malini and were helping her on that night”; “The
date was 29th of April, 1999. On that night, apart from the normal
Thursday Party, I had also organized a special farewell party for my
husband who was leaving in two hours time for a World Trip. The party
was over by 1 or 1:30 a.m. This Thursday Party and special party was
organized jointly and was being held in the courtyard and on the roof
top. After the party was over, I was anxious to clean up the place
and relieve the waiters etc. so that they may take up duty next
morning properly. There were few guests left in the courtyard and I
also spotted some guests in the Restaurant where nobody was supposed
to be. I walked towards the Restaurant. When I was walking, towards
restaurant I ran into Malini. I mounted the steps of the restaurant.
I saw a few people standing next to the counter and I heard a shot. A
moment later, I heard another shot. Jessica Lal was standing with
people at the far end and I saw her falling down. There was a door to
my right. It could be swung open and Shyan Munshi came out with
another person who was either ahead of him or behind him. Shyan
Munshi said that Jessica Lal had been shot. I told Shyan Munshi to
call the Police or doctor or ambulance and I stopped the man
accompanying them. There was commotion. All the people who were with
Jessica Lal earlier, started coming out. The companion of Shyan was
wearing white T-shirt. He was chubby and fair and I asked him as to
who he was. “Why are you here and why he shot Jessica Lal. I also
asked him to give me his gun. I thought he might be having a gun. “
He said that it was not him. I asked him again and he kept quiet and
shaking his hand that it was not him. As all others were leaving,
therefore, the companion of Shyan also shoved me aside and went out.
I ran after him. Again said behind him. All the way to the front gate
of the main building. He was a few steps ahead of me and I could not
catch him. In the meantime, I was shouting instructions to the guests
to call Hospital or to take Jessica Lal. I reached the gate my
husband was standing there and I told him that this was the man who
had shot Jessica Lal and to see in which car he gets into.” “That
person who was told to be seen by my husband was with some friends at
the time of occurrence inside the cafi. I think that I can identify
the person whom I had tried to stop and talked to. After taking
sometime and examining the accused over and over again, the witness
has pointed towards accused Sidhartha Vashisht @ Manu Sharma and when
asked to touch him, she touched him." She also identified
the other persons who were with Manu Sharma, though she has not
mentioned the name of persons but on the instructions of the Court
she has touched those persons named by the Court. She further
informed-- “About a week later, at the Police Station, the name of
which I do not remember, I saw that person. I saw Manu Sharma”.</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">If
we analyze her evidence along with the sketch/map of the occurrence,
when she mounted steps of the restaurant, she heard a shot, a moment
later, she heard another shot. It is also relevant to note that she
mentioned that Jessica Lal was standing with the people at the far
end and she saw her falling down. She also informed that Shyan Munshi
PW-2 said that Jessica Lal had been shot. It is relevant to point out
that she was shouting to the guests to call the Doctor or to take
Jessica Lal for treatment, she reached the gate where her husband was
standing and she told him “that this was the man who had shot
Jessica Lal and to see in which car he gets into”. If we read her
entire evidence she refers only Manu Sharma. She also correctly
identified the presence of other accused persons, namely, Amardeep
Singh Gill, Alok Khanna and Vikas Yadav. Her evidence remained
unchallenged, though the Trial Court discarded her evidence as she
was not an eye-witness to the occurrence but accepted that she is a
witness to the presence of Manu Sharma, Amardeep Singh Gill, Alok
Khanna and Vikas Yadav at the Qutub Colonnade. We have already quoted
her own statement namely "I saw a few people standing next
to the counter and I heard a shot, a moment later I heard another
shot. Jessica Lal was standing with people at the far end and I saw
her falling down." It is also relevant that on noticing
Shyan Munshi she asked him "Why are you here and why he shot
Jessica Lal?". Her statement clearly proves the prosecution
case that she had herself seen Manu Sharma shooting Jessica Lal. As
rightly observed by the High Court, if the evidence of Beena Ramani
is analyzed in depth, it is clear that she not only asserted the
presence of Manu Sharma at the scene of occurrence and heard two
shots one by one but also asked a pertinent question to Shyan Munshi
that why he (Manu Sharma) shot Jessica Lal. Whether she has to be
treated as an eye-witness to the occurrence or not is to be discussed
at later point of time by analyzing her entire evidence. However, for
the limited purpose of proving the presence of accused at the scene
of offence, her evidence fully supports the case of the prosecution. </span></span>
</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">e)
George Mailhot PW-24</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">He
is a Canadian citizen and according to him, he has been residing in
India since February, 1992. Beena Ramani PW-20 is his wife. Her
business premises were at H-5/6 Mehrauli Road, New Delhi. This
complex was popularly known as "Qutub Colonnade".
It had a number of shops and a restaurant. The licence of eating
place was in the name of Beena Ramani. He was also involved in the
said business for several years before the date of occurrence.
Several parties were arranged and last Thursday Party was held on
April 29, 1999. On that day, he was leaving for World Trip for a few
months, partly that was the occasion for that party. At the instance
of the police, he prepared a list of guests who were invited in that
party and gave the list to the police which was signed by him on
22.05.1999. It is Ex. PW24/A. According to him, time of occurrence
might be around 2 AM. At that time he was standing in the courtyard
near a large tree which is in the middle of the courtyard. This must
be about 20 ft. away from the door of the restaurant. He further
deposed:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
was facing opposite side of the entrance door of the restaurant and
then I heard two pop shots like balloon. I turned towards the
restaurant door from where I had heard the sound and within a few
seconds Shyan Munshi came running and said to me someone shot
Jessica. I immediately went to the restaurant. When I reached the
door of the restaurant I saw some people to my right to my left and
ahead of me. Ms. Beena was moving at a place which may be described
as ahead of me towards the left side. Beena was addressing a young
man who was moving, someone whom I had not seen before. This person
was moving around and Ms. Beena Ramani was following him and saying
that you are the one give me the gun. I could see everyone present
there watching that person who was being addressed to by Ms. Beena.
The young man said that why everyone was looking at him that he did
not do anything. Then I saw Jessica lying on the floor with her head
towards my feet, almost near my feet. Jessica was looking quite in
pain and not moving and there was no sign of blood. Then I saw
another man standing at the door. At that time, about 2/3 people were
ahead of me and are by my side in the restaurant. I was focusing on
the danger point. The young man whom I saw at the door was a beard
person i.e. Sardarji. He was the only one present there who was
keeping/maintaining calm. Thereafter, I went to the gate of Qutub
Colony leaving others in the restaurant, in search of Police man. I
ran out and went into the street there was no one there. While I was
in the street a number of people came up to the gate of Colonnade
walking. There was a bunch of them that is a first person behind him
a second person and then behind them many persons they were walking
very rapidly. The first person was the one whom I had seen in the
restaurant and whom Beena had accosted and asking for the gun. Right
behind him or directly behind him was Beena. I focused only on first
person or Beena I did not notice the others."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
believe I can identify that person who had come out first and was
being followed by Beena. The witness touched Siddhartha Vashist as
the person who was being followed by Beena."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">His
evidence makes it clear that at the relevant time on hearing the
shot, Shyan Munshi PW-2 came running shouting that someone shot
Jessica. He reached the door of the restaurant. It is also clear that
Beena Ramani PW- 20 was moving at a place ahead of him towards the
left side. This witness subsequently stated that Beena Ramani was
addressing a young man who was moving with someone. He also
identified the person who had come out first followed by Beena and he
touched Manu Sharma as the person who was being followed by Beena. As
rightly pointed out by learned Solicitor General, his evidence also
proves the presence of the accused-Manu Sharma at the scene of
offence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">f)
Rouble Dungley PW-23:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
his evidence, he admitted that he had told the police that he saw
Beena Ramani going after a boy. In his deposition, he mentioned that:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is correct that I had told the police that I saw Beena Ramani going
after a boy. But I do not remember whether I had told the police that
the said boy was a fat boy. It is correct that I had seen Beena
Ramani going there Vol. I had seen her from a distance. It is correct
that I had told the police that Beena Ramani was saying "Stop
that Man"... "I heard that Jessica had been
shot."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">g)
Rohit Bal PW-70:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">He
deposed that:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Beena
Ramani was actually running in the courtyard area shouting catch that
man, catch that man, stop him or something like that pointing towards
the exit and running behind someone. I saw the person being pointed
out by Beena Ramani but I did not know him. Again said I did not see
that person, being pointed out by Beena Ramani from face."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
above statement makes it clear that after the shooting incident Beena
Ramani was running behind a man shouting "catch that
man"</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">From
the evidence of above mentioned witnesses, namely, PWs 1, 2, 6, 20,
23, 24 and 70 which are all admissible in evidence clearly show the
presence of accused Sidhartha Vashisht @ Manu Sharma at the scene of
offence. This evidence of the ocular witnesses is duly corroborated
by Ex PW 12/D-I, the wireless message received at PS Mehrauli.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
addition to the evidence of the above mentioned witnesses, who were
present at the party, the presence of appellants is also proved by
other evidence, namely, 3 PCR calls Ex PW 11/A, B and C which were
received. The evidence of PWs 11, 12 and 13 clearly proves that
immediate and prompt action was taken.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">h)
HC Devi Singh PW 83 --- In-charge of PCR Van: He reached the scene of
occurrence within two minutes at around 02.17 a.m. and reported back
at 02.35 a.m. It is relevant to refer the message received that is Ex
PW 12/D-1 which states:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"From
E-43 (PCR Van), A party hosted by Malini and Beena was going on in
Qutub Colonnade Hotel situated at the road which leads towards
Mehrauli where a person had demanded whiskey from Jessica Lal but she
(Jessica Lal) said that the restaurant had already been closed. At
this the aforesaid person had fired shot at Jessica Lal, which had
hit her on her chest. Jessica Lal has been admitted in Ashlok
Hospital, Safdarjung Enclave and the person who had fired shot has
fled from there."</span></span></div>
<div align="JUSTIFY">
"One person
has fled after firing (at someone) 35 years, stout body 5' 4"
R/F fat, T-Shirt of white colour. All the persons will search
him".Ex. PW 12/D-1, a contemporaneous document, clearly
corroborates the testimony of ocular witnesses which we have already
mentioned in the earlier paragraphs. From the evidence adduced, it is
clear that the appellants- accused Nos. 1-3 were present at the scene
of occurrence. Admittedly without setting up a plea of alibi to show
their presence elsewhere, they have flatly denied their presence. It
is the stand of Mr. Ram Jethmalani, learned senior counsel for the
accused that the police deliberately framed Manu Sharma as an accused
and made out a false story against him concealing the actual offender
who is a tall Sikh gentleman and on this made up theory witnesses
from the same family who were vulnerable were made to depose in
favour of the prosecution. In an answer to the said question, it was
pointed out that apart from the testimony of HC Devi Singh PW-82, PCR
in-charge, read with Ex. PW-12/D-1 clearly prove the case of the
prosecution. It is relevant that the said witness reached around
02.17 a.m., on a message from PCR to PS Mehrauli takes around 10
minutes as from local PCR it goes to headquarter from where it is
transmitted to concerned district net which further transmits it to
the local police station. In this way, around 02.25 a.m., even before
the local police had arrived at the spot HC Devi Singh PW-83 had sent
the version available at the spot. <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
prosecution placed specific reliance on the same. In the absence of
rebuttal evidence, there is no reason to reject the evidence of PW-83
as well as Ex. PW-12/D-1. In those circumstances, the entire premise
of the defence argument that it was not a person in white T-shirt,
stocky and fair, who shot at Jessica Lal over a row over the drink
and fled away from the sp</span></span>ot and
this was a planted and concocted story of the prosecution to rope in
Manu Sharma and make escape good of the tall Sikh gentleman is wholly
erroneous and without any basis. Evaluation of evidence throwing
light on the actual incident:</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16)
It is the stand of the defence that the testimony of Madan Kumar PW
46 and Jatinder Raj PW-47 belies the fact that Beena Ramani PW-20 had
seen actual shooting as the witness says that they both entered
together. Madan Kumar PW 46 worked in Qutub Colonnade in April, 1999
as a waiter. In his evidence, he informed the Court that:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"the
day of occurrence was Thursday. The occurrence took place at about
1.30 or 1.45 AM. At that time, I saw some people rushing in and some
people rushing out of the restaurant and they were shouting
"GOLI LAG GAI", "Jessica Lal KO GOLI LAG
GAI".</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">I
knew Jessica Lal before the incident, Jatinder Raj was the Manager of
the restaurant. I was coming downstairs, and on hearing the noise, I
went to restaurant. I saw Jessica Lal, lying on the floor. Some
guests, Beena Ramani and Jatinder Raj were present there. Two - three
other workers were also present, but I do not remember their names.
Beena Ramani made a telephone call. Thereafter, Shiv Dass brought a
sheet of cloth. Jatinder Raj, Beena Ramani and I wrapped the said
Jessica Lal in the bed-sheet. We took/carried her to an Esteem Car,
parked outside. Beena Ramani, Jatinder Raj and I also sat down in the
Car. There was a driver in the car. We left and reached Ashlok
Hospital. Jessica Lal was removed on a stature for medical treatment.
I returned to the restaurant at about 3/3.15 a.m. Police met me there
in the Restaurant."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Jatinder
Raj and Beena Ramani were already, near Jessica Lal, when I reached
there. I did not see Mr. George there, at that time. George had left
at about 12.30 or 12.45 a.m. from there. When I saw Jessica Lal lying
on the floor, I also saw that she had some injury on the left
forehead, from which blood was coming out. There was also blood on
the floor, where Jessica Lal was lying." 17) Jitender Raj PW
47 was working as a Manager-cum- Supervisor. He used to check the
supplies, cash and sanitation. A system of "Thursday
Parties" had been started in Qutub Colonnade. The occurrence
took place on such 3rd or 4th party on 29.04.1999. It was a Thursday.
Generally food was served but on Thursdays liquor was also being
served. The supply of articles through coupons was made in the open
space. The party, on 29.04.1999 was over at about 12.30 a.m. and he
told the waiters to clean up the place. He was counting the cash and
tallying the same. He narrated further:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"The
time might be 2 AM. I heard the firing of two shots, and the noise of
firing had come from the side of cafi. I opened the gate of my
office, which I had closed, before counting the cash etc. I saw from
that gate of my office that people were coming in and going out. At
that time, I saw Beena Ramani on the stairs of cafi. I rushed towards
her and we both went inside the cafi. We saw, Jessica Lal lying on
the floor, near the counter. Shiv Dass, Madan Lal, Surender and
Wiplub, members of the staff and one-two guests also reached the
spot. There was scratched on the forehead of Jessica Lal. Shiv Dass
PW-3, brought a bed- sheet. We wrapped Jessical Lal in that
bed-sheet. Shiv Dass is an electrician in Qutub Colonnade. We removed
Jessica Lal in a car to the Ashlok Hospital. Mrs. Beena Ramani, Madan
Kumar, waiter, myself and driver were in that car, apart from Jessica
Lal."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
came out of my office, immediately, after hearing the shots of
firing. I saw, `AFTRA TAFARI' at the gate of cafi after coming out of
my office. At that time, I saw Beena Ramani on the steps, to which I
have made reference. By the time Beena Ramani reached the gate of
cafi. I reached there, by running."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">18)
The analysis of evidence of PWs 46 and 47 shows that when PW-47 heard
the noise of the shots he was in the office counting cash and after
hearing the noise of firing he opened the gate of his office which he
had closed at the time of counting the cash. He saw from the gate of
his office that people were coming in and going out. At that time, he
saw Beena Ramani on the steps of the cafi, he rushed towards her and
they both went inside the cafi. It is clear from the testimony of
this witness that he was inside his office counting the cash when he
heard the shots, thus after taking care of the cash when he opened
the gate he saw people coming in and going out, which means that his
act of coming out from the office is considerably after and not
immediately after the shots were fired and, therefore, he saw people
running back and forth whereas Beena Ramani PW-20 has stated that
when she mounted the steps of the restaurant she saw a few people
standing next to the counter and heard a shot. A moment later she
heard another shot. Jessica Lal was standing with people at the far
end and she saw her falling. It is pertinent to note that as per the
scaled site plan, the point at which Beena Ramani PW-20 was standing
was only four feet from the point at which the shot was fired at
Jessica Lal. Therefore, it can never be alleged that there was no way
in which the said witness could have had any doubt as to the identity
of Manu Sharma. Thereafter, she accosted Manu Sharma till the gate of
Qutub Colonnade where she told George Mailhot PW-24 that this was the
man who had shot Jessica Lal and that he should see in which car he
i.e. Manu Sharma gets into and after that Beena Ramani PW-20 came
back to the spot. It is when she came back to the cafi this witness
PW-47 joined PW-20 entering the cafi, thus the testimony of this
witness does not negate the fact that PW- 20 witnessed the incident.
It is relevant to mention the very fact that PW-20 followed the
appellant is a clear indication of the fact that she was more than
certain that he was the culprit responsible for the crime, and,
therefore, she did not chase anybody else as the person who was
having the gun. It has to be borne in mind that Beena Ramani had no
enmity with the appellant-Manu Sharma and also the whole theory of
planting of witnesses at the instance of the police is false since
the accused has not led any defence evidence or brought on record any
evidence to suggest that the investigation was motivated by mala
fide.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">19)
It was argued by the defence, since PW-47 in his cross examination
has stated that Beena Ramani PW-20 stated to him as to what had
happened and who had done it, an inference has to be drawn that she
did not witness the incident. As rightly pointed out, the above
statement does not lead to the inference that Beena Ramani PW-20 did
not witness the incident rather it could further reinforce what she
had witnessed. Even otherwise, admittedly, thus, Beena Ramani was
available she was not recalled to confront her with the testimony of
PW-47. In those circumstances, the defence cannot take advantage out
of a portion of statement of PW-47.</span></span></div>
<ol start="20">
<li><div align="JUSTIFY">
It is relevant to
mention that Madan Kumar PW-46 also stated that when the occurrence
took place he was present on the stairs leading to terrace and that
time he saw people rushing in and some people rushing out of the
restaurant who were also shouting "Goli Lag Gai, Jessica
Lal Ko Goli Lag Gai". He came downstairs after hearing the
noise and went to the restaurant, thus it is evident that this
witness did not hear the shots of the fire but only realized about
the occurrence after people were rushing in and rushing out
shouting. A perusal of the testimony of PW-46 reveals that when he
came down, PW-20 was already there. Thus PW-46 is not in a position
to <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">say
as to what PW-20 witnessed. It may be further pointed out that the
stairs leading to the terrace are not on the cafi but on the main
building of Qutub Colonnade which houses the shops beyond the
verandah</span></span><span style="font-size: large;"> </span>and
Tamarind Court. Hence, the testimony of PW-46 cannot negate the
evidence of PW- 52 <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">that
she witnessed the incident. It is submitted that the mere absence of
Beena Ramani PW-20 in the site plan also does not negate her
presence or her having not witnessed the incident, specifically when
she had given her statement to the police under Section 161 CrPC on
30.04.1999, itself.</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">21)
Mr. Ram Jethmalani, learned senior counsel, by drawing our attention
to Ex PW 21/A, which is a site plan and Point B is the approximate
place where the deceased was shot, argued that it was impossible for
PW-20 (Beena Ramani) to have seen the actual shooting, since they
both entered together and PW-47 came in after the shot was fired. In
other words, it was argued that PW-20 only saw the "fallen
woman" and it is incorrectly written "falling"
and PW-20 is not the person who saw the incident. We meticulously
verified the site plan as well as the evidence of PWs 20, 46 and 47.
The absence of PW-20 in the site plan does not belie her presence and
her having witnessed the incident especially when her statement under
Section 161 Cr.P.C. was recorded on 30.04.1999 in the morning itself.
<b>It was pointed out by the prosecution that she was neither
contradicted nor confronted with her statement under Section 161
Cr.P.C. as she firmly stood to her statement in the witness box.</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">22)
Mr. Ram Jethmalani, further submitted that due to the pressure by the
prosecution for registering a case under the Punjab Excise Act
against Malini Ramani PW-6, Beena Ramani PW-20 and George Mailhot
PW-24, virtually, they were pressurized to yield to the case of
prosecution. While stoutly denying the said allegation, Mr. Gopal
Subramanium, submitted that the registration of case under the Punjab
Excise Act has nothing to do with their evidence in the case of death
of Jessica Lal. He also submitted that ultimately they were fined,
the said action cannot be construed as a threat to them or keeping
the sword hanging for taking action either under Section 201 IPC or
the Punjab Excise Act. It was pointed out by the learned senior
counsel for the appellant that Malini Ramani PW-6 during her
statement admitted that her mother Beena Ramani was accused of having
removed the blood from the spot. PW-6 further admitted that during
the first five days of May, 1999, the interrogation of three of them
"PWs 6, 20 and 24" was very intense. She also
stated that for quite long hours they were kept in the Police Station
and they were used to be subjected to prolonged interrogation in the
Jessica Lal's case as well as in other Excise Act case. It is true
that SHO S.K. Sharma PW 101, admitted that the FIR in the excise case
was lodged against the above said three persons. It was also
highlighted that all the three were arrested in the excise case on
08.05.1999 which was pending in the Court of Metropolitan Magistrate,
New Delhi. In that case, application on behalf of Beena Ramani and
George Mailhot was moved for seeking permission to go abroad for
treatment of Beena Ramani alleging that she is a cancer patient. Mr.
Jethmalani argued that notice of which was given to the State and
instead of filing reply by the State counsel PW-101, who appeared in
person, vehemently opposed on the ground that their presence may be
required during the investigation of FIR No. 287 of 1999 for filing
additional charge-sheet including the issue of cleaning of blood.
Ultimately, the Metropolitan Magistrate rejected their application
for permission and they were not allowed to go abroad because of the
reason that their presence may be required for filing additional
charge-sheet in FIR No. 287 of 1999. By pointing out the above
information, it was argued by the learned senior counsel that the
investigation agency had been pressurizing these witnesses to toe
their line in their deposition in the present case, but PW-20 was not
made as accused under Section 201 in the present case because they
had agreed to toe the line of the prosecution but this sword was kept
hanging on them to ensure that the entire family members i.e. PWs 6,
20 and 24 continue to toe the line of prosecution. All the
allegations have been stoutly denied by the prosecution. It was
submitted by the prosecution that the statement of S.I. Sunil Kumar
PW-100 is inadmissible on the ground that it is sought to be used as
opinion evidence and, therefore, hit by the rule against hearsay
evidence. Even if it is held to be admissible, it was pointed out
that Beena Ramani was right in saying that statement of Shyan Munshi
should be recorded because Shyan Munshi was inside the cafi and had
witnessed the entire incident including conversations which occurred
prior to the incident. It was further pointed out that the statement
of Beena Ramani to this effect which she also deposed before the
trial Court was recorded on the same date i.e. on 30.04.1999 that too
in the morning itself. In her statement, before the Court PW- 20
Beena Ramani had clearly stated "at the hospital, the police
met me. The report about the incident was lodged in my presence by
Shyan Munshi." In view of the same it was submitted that
because PW-20 told PW- 100 to ask PW-2, it does not mean that she did
not know anything, since her statement was recorded on the same day
soon after the statement of Shyan Munshi to which statement she stuck
even in her testimony before the trial Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">23)
It has been vehemently argued that PW-20 is not an eye witness since
both Investigating Officers i.e. PWs-100 and 101 admitted the same.
It was submitted by the State that this argument runs counter to the
well settled proposition of law that a witness cannot be discredited
without the said piece of the testimony having been put to her. The
accused had a statutory option available by way of Section 311 of the
Code to call PW-20 for the purposes of further examination. This
argument of the defence also runs counter to their own argument used
to discredit the investigation that PW-6 was placed in the `rukka' by
the Police for the purposes of being shown as an eye-witness. The
said part of the testimony of PWs-100 and 101 are at best in the
nature of opinion evidence which are inadmissible pieces of evidence
and for the aforesaid reasons cannot wipe out the unchallenged
testimony of PW-20, which is the case of the prosecution. 24)
Further, the appellant-Manu Sharma has also been clearly identified
by Malini Ramani PW-6 as the person in the White T Shirt who had
asked for whisky and thereafter on her refusal to oblige, he
misbehaved with her in the most vulgar fashion.</span></span></div>
<ol start="25">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
was argued that PW-6 could not have seen anything since she was on
the other side of the Colonnade and that the prosecution in fact
planted her into Ex.PW- 2/A i.e. the `rukka' prepared at the
instance of Shyan Munshi as an eye witness. It has been reiterated
that all the three key witnesses are planted witnesses who have
deposed under pressure of false implication. It has been further
argued that the deposition of PW-6 that she entered the bar for a
drink is improbable as she knew that the drinks were over. It is
contended by the defence that PW-6 did not say that she heard the
gun shots since she was inebriated, which further supports the fact
that she could not identify anybody else. Her statement that there
were four or five guys at the spot is also not corroborated by
Deepak Bhojwani PW-1. The Prosecutor has put a leading question to
her as to the identity of the appellant and, therefore, the said
question and answer should be expunged from the record. The Police
recorded a couple of her statements but the defence was not supplied
with all of them. In any case the photo of the appellant was shown
to her even prior to his refusal of the Test Identification Parade.
It was pointed out that these contentions are totally erroneous and
contrary to the record. It is pertinent to note that FIR No. 288 of
1999 at PS Mehrauli under Excise Act was registered on 30.04.99
itself and thus the question of making her an accused on 08.05.99
does not arise. Moreover, the excise offence is a bailable offence.
Further, the statement of Malini Ramani was recorded under Section
161 Cr.P.C. on 03.05.99 itself vide Ex PW 6/DA and thus the
contention of making her an accused on 08.05.99 on this count is
also fallacious.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">26)
As regards the argument that Malini Ramani PW-6 was shown as an
eye-witness to the incident of shooting in the `rukka', a perusal of
the same reveals that at no point of time Shyan Munshi, PW-2, stated
either in the positive or the negative that PW-6 was or was not
there when the shots were fired. In any case, as rightly pointed out
on the side of the State that the alleged prosecution planted PW-6
as an eye-witness goes contrary to all reasoning, since on
30.04.1999 at the time of recording the `rukka', none of the
witnesses had disclosed the identity of the appellant - Manu Sharma,
therefore, to allege that the Police had planted the witness is
wholly incorrect. </span></span>
</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">27)
As regards the argument that PW-6 was under the influence of
alcohol, therefore, could not have identified the appellant - Manu
Sharma, is also wrong since she clearly stated in her testimony,
particularly, in cross- examination, that she had consumed only one
drink. </span></span>
</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">28)
The argument that deposition of PW-6 as regards the presence of
other accused, does not find corroboration from the testimony of
PW-1 is incorrect since the said witness categorically mentioned the
presence of other accused. The grievance that the identification of
the appellant-Manu Sharma was based on a leading question is also
wrong since even before the alleged leading question was put to the
witness, the witness, PW-6 had positively identified the appellant -
Manu Sharma by specifically pointing out and stating that he just
looks like him. It was explained by the State that the appellant was
not personally known to the said witness or her family and,
therefore, the manner of identification in the present case wherein
the present witness by pointing out towards him stated that he just
looks like the man she saw at the party is most conclusive and
reliable. Further the argument of her having been shown the photo
her identification is of little value since her statement that she
saw the photographs prior to 05.05.1999 is most wavering and
unclear. In the same manner, she has deposed that photos were also
shown to Beena Ramani PW-20 and George Mailhot PW-24 is of little
value since neither PW- 20 nor PW-24 stated that they had been shown
the photos of the accused in spite of having all the opportunities
failed to confront the said witnesses with the said part of PW-6's
testimony. Based on the statement of Rohit Bal PW-70, that he saw
her screaming out, the defence has sought to discredit PW-6's,
statement. It is relevant to note that it is the case of PW-6 that
she came to know when she was in the courtyard, Shyan Munshi came
running towards her and Sanjay Mehtani, screaming that Jessica Lal
had been shot. Thereafter, PW-6 fainted, thus, in the process, if
PW-70 saw her screaming in the courtyard, it cannot be said that
there is any contradiction in the statement of PW-6 and PW-70.</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">29)
It was pointed out by the defence that the firing was not over a
drink, the act to refuse supply of liquor was not the motive to
murder Jessica. After perusing the evidence of PW-6, it is clear that
after refusal of the drink, the appellant-Manu Sharma misbehaved in
the most vulgar fashion. The testimony of PW-23 further corroborates
the testimony of PW-6. As rightly pointed out by the State that it
was a case where the deceased Jessica Lal was murdered for a row over
the drink.</span></span></div>
<ol start="30">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
was also pointed out on the side of the appellant- Manu Sharma, that
the evidence of Malini Ramani, PW-6 and George Mailhot, PW-24 does
not corroborate the statement of Beena Ramani, PW-20. In this
regard, it is relevant to note that these three witnesses have
deposed on three different situations in the chain of circumstances.
The evidence of these three witnesses, if read in whole in
conjunction and in harmony with each other, would show the chain of
circumstances of evidence leading to only one inference. It was
highlighted by the defence that PWs 46 & 47 stated that they
did not see PW- 24 after the party was over at 12.30 a.m. By saying
so, it was contended that PW-24 was never there at the time of the
alleged incident. It was also contended that PW-24 reached the
Mehrauli police station at around 2.25 a.m. whereas if the story of
the prosecution is true then he should have reached around 2.10 a.m.
It is relevant to mention that PW-24's statement was recorded on the
same day i.e. 30.04.99. The presence of PW-24 at the time of
incident is also supported by the testimony of ASI Kartar Singh
PW-13, who deposed that a person bearing the description of PW-24
came to the Police Station to report about the firing incident,
which fact corroborates the testimony of PW-24 that he went to the
Police Station. It was urged by Mr. Ram Jethmalani that Rohit Bal
PW-70 was a witness who have been examined first as his telephone
number appears on Ex. PW-12/D1 which are the PCR messages. It was
clarified that in the PCR only the mobile number was recorded.
Further on receipt of information, police officers immediately
reached the place of occurrence and came to know that the deceased
had been taken to Ashlok Hospital. SI Sunil Kumar, PW-100 reached
Ashlok Hospital and made enquiries from PW-20 who directed him to
take the statement of Shyan Munshi as he was present at the bar
counter and conversant with every thing. The prosecution has
explained that in view of the statements of the eye-witnesses having
been taken immediately at 03.40 a.m. on 30.04.99 itself on the basis
of which FIR was registered and number of other investigation
processes like post-mortem, site plan etc. and immediately
thereafter search for Tata Safari, ownership of the alleged vehicle,
search for Manu Sharma in the case being made, as such even if there
is delay in recording of statements of other witnesses, it cannot be
fatal to the prosecution case. The said claim of the prosecution
cannot be rejected as unreasonable. 31) In the earlier part of our
judgment, we have noted that PW-20 has categorically stated that she
heard the two shots, saw the people inside and Jessica falling down,
which shows that she had witnessed the entire incident as is evident
from the relevant portion of her testimony extracted in paragraphs
supra. Malini Ramani in categorical terms informed the Court about
Manu Sharma asking about the whisky, his misbehaviour immediately
before the shooting and also identified the same person in white
T-shirt asking for the whisky and misbehaving with her as Manu
Sharma. PW-6 further corroborates the testimony of PW-20 and part
testimony of PW-2 with regard to the presence of the accused Manu
Sharma. The scrutiny of the entire evidence of PW-6 clearly shows
that her evidence is not only relevant but also admissible. 32)
Coming to the cause of death, Dr. R.K. Sharma PW-9, who conducted
post-mortem on the body of deceased Jessica Lal has stated that on
30.04.1999 at about 11:20 a.m. 7 sheets of papers i.e. inquest
papers, request of post-mortem, inquest report, copy of FIR, brief
facts of the case, were submitted to him along with the dead body.
He informed that the cause of death to the best of his knowledge and
belief was head injury due to firearm, injury was ante-mortem in
nature. He also deposed that Injury no. 3 was sufficient to cause
death in the ordinary course of nature.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">33)
Coming to the evidentiary value of PW-2, on behalf of the defence,
it was stated that PW-2 is not a reliable witness in view of the
fact that according to him he made his statement in English,
however, SI Sunil Kumar recorded it in Hindi. In the absence of any
suggestion to the contrary, as rightly pointed out by the counsel
for the State that it must be presumed that PW-100 recorded the
statement correctly. It is also relevant to mention that in his
statement as a witness he said "I can understand spoken
Hindi. Hindi was my third language when I was studying in the
seventh standard. I was never good in Hindi." It is also
pointed out that Shyan Munshi has acted in a number of Hindi films.
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Even
if a prosecution witness is challenged in cross-examination, that
part of his testimony which is corroborated by other witnesses or
from other evidence can clearly be relied upon to base conviction.
</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Further
it was pointed out that PW-2 was under the influence of accused Manu
Sharma as he was accompanied by Mr. Ashok Bansal who had appeared as
proxy counsel for him i.e. accused Manu Sharma in his bail
application dated 06.03.2000. Thus, reliance could have been placed
only on that aspect of the testimony which is corroborated by other
evidence on record. 34) With regard to the allegation that
statements of PW-6, PW-20 and PW-24 were taken under pressure as a
case under Excise Act was lodged against them and when they were to
be examined, an application for pre-ponement of the case was moved
where they pleaded guilty and fine of Rs. 200 was imposed on each.
For this, it was pointed out that there is nothing on record to
suggest that PW-6 was threatened or humiliated by the Police or that
she would be implicated in a case of destroying the evidence i.e.
removal of blood from the spot. In fact, PW-20 has denied the
suggestion that she is deposing falsely at the instance of Police.
In the same way, PW-24 has also denied the suggestion that a deal
was struck between him and the investigation agency to make a false
statement, thereafter, the Excise case could be hatched up. It is
relevant to point out that the case under Punjab Excise Act which
was registered as FIR No. 288/99 on 30.04.1999 has not been
withdrawn by the prosecution against the accused. On the other hand,
the fact remained that the accused had pleaded guilty. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>As
rightly pointed out by the State that on the quantum of sentence for
an offence, the prosecution has no role and it is the Court
concerned which can impose appropriate sentence considering the
evidence and the role of the accused. </b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
was also highlighted that the charge was only under Section 68 of
the Punjab Excise Act to which all the three accused, namely, Malini
Ramani, Beena Ramani and George Mailhot pleaded guilty. The maximum
penalty/fine under Section 68 is Rs. 200, therefore, the maximum
fine which could have been imposed on the accused is Rs. 200. In
those circumstances, the allegation that these three witnesses were
kept under pressure is not acceptable. What constitutes the First
Information Report 35) Let us consider whether the three telephonic
messages received by the Police at around 2:25 a.m. on 30.04.1999 or
the statement made by Shyan Munshi recorded at Ashlok Hospital
constitute the FIR. It is the submission of the learned senior
counsel for the appellant-Manu Sharma that the statement of Rohit
Bal PW-70 ought to have been used for the purpose of registration of
FIR instead of Shyan Munshi PW-2. It was demonstrated that Rohit Bal
had made two calls on `100' on coming to know by other persons that
Jessica Lal has been shot inside the cafi. As against this, Shyan
Munshi PW-2 was very much within the vicinity of the place of
occurrence and, therefore, the statement of Shyan Munshi was used
for the purpose of registration of FIR. It is relevant to point out
that PW-70 has never claimed to have witnessed the incident. He
confirmed his presence on the spot and having seen PW-20 accosting a
man. 36) It was further contended by the learned senior counsel for
the appellant-accused that PW-2 Shyan Munshi's statement could not
be looked into as the same is hit by Section 162 Cr.P.C. and on the
other hand the defence seeks to rely on his testimony. In support of
the above claim, the learned senior counsel for the appellant
relying upon the judgments of this Court in </span></span><a href="http://www.indiankanoon.org/doc/1918252/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of U.P. vs. Bhagwant Kishore Joshi AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1964
SC 221 and Emperor vs. Khwaja Nazir Ahmad AIR 1945 PC 18 contended
that </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>investigation
of an offence can start either on information or otherwise and that
the receipt and recording of FIR is not a condition precedent to the
setting in motion of criminal investigation.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
Placing reliance upon the said judgments, it has been further argued
by the learned senior counsel for the appellant that in the present
case the three cryptic telephonic messages received by the Police at
around 2.20 a.m. on 30.04.1999 should be treated as FIR upon which
the investigation started and, therefore, the statement of PW-2
recorded by the Police later on around 3.40 a.m. could not be
treated as FIR but a statement under Section 162 of Cr.P.C. 37)
Insofar as the decision in Bhagwant Kishore (supra), it was noted in
para 8 at page 224 that the information received by the officer was
not vague, but contained precise particulars of the acts of
misappropriation committed by the accused and, therefore, the said
information could be treated as FIR. On the contrary, it is evident
from the facts established on record in the present case that none
of the three telephonic messages received by police furnished any
detail about the offence or the accused. The judgment in Khwaja
Nazir Ahmad (supra) is also distinguishable as the law laid down in
the said case does not concern the issue involved in the present
case. Cryptic telephonic messages could not be treated as FIR as
their object only is to get the police to the scene of offence and
not to register the FIR. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
said intention can also be clearly culled out from a bare reading of
Section 154 of the Criminal Procedure Code which states that the
information, if given orally, should be reduced in writing, read
over to the informant, signed by the informant and a copy of the
same be given free of cost to the informant.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
In the case on hand, the object of persons sending the telephonic
messages including PW-70 Rohit Bal was only to bring the police to
the scene of offence and not to register the FIR. Learned senior
counsel for the accused- Manu Sharma has also relied upon a judgment
of this Court in H.N. Rishbud & Inder Singh vs. The State of
Delhi (1955) SCR 1150 wherein this Court has held that investigation
usually starts on information relating to commission of an offence
given to an officer in-charge of a police station and recorded under
Section 154 of the Code. A reading of the said judgment clearly
shows that investigation starts on information relating to
commission of an offence given to an officer in charge of a police
station and recorded under Section 154 of the Code. By applying the
ratio of the said judgment to the case on hand, it can be clearly
said that the investigation started after the recording of the
statement of PW 2 as FIR around 3.40 a.m. on 30.04.1999.</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">38)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Learned
senior counsel for the appellant also relied on judgment of the
Gujarat High Court in Mehr Vajsi Deva vs. State of Gujarat, AIR 1965
Guj 143. A perusal of the said judgment shows that the details of the
offence given by the telephonic message in the said judgment clearly
described that `one man was assaulted by means of an axe at Sudama
Chowk', on the other hand, in the case on hand the telephonic message
did not give any details of the offence or accused and the same was a
vague information. The said judgment should be read per incuriam in
view of plethora of judgments of this Court wherein it has
categorically held that cryptic telephonic messages not giving the
particulars of the offence or accused are bereft of any details made
to the police only for the purpose of getting the police at the scene
of offence and not for the purpose of registering FIR. </b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">39)
Learned senior counsel for the appellant also relied on the judgment
of this Court in</span></span><a href="http://www.indiankanoon.org/doc/898506/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Superintendent
of Police, CBI and Others vs. Tapan Kumar Singh,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2003)
6 SCC 175. In the said case, detailed information was given on
telephone including the offence and the whereabouts of the accused.
On the other hand, in the present case, as observed earlier all the
three telephone calls barely mentioned that a fire was shot and a
girl was killed. The said information could only be concluded to have
been given to the police to get the police to the scene of offence
and not with the object of registering FIR. </span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>In
those circumstances, the judgment in Tapan Kumar Singh (supra) has no
application to the facts of the case on hand.</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">40)
It was further pointed out by the defence that Ex.P- 12/A wherein
three PCR calls were recorded is the real FIR and the statement of
PW-2 which was taken during investigation and got signed by him is
not the FIR and is thus to be treated as a statement recorded under
Section 161 Cr.P.C. and is hit by the bar under Section 162 Cr.P.C.
This argument is unacceptable since as observed in the earlier
paragraph the telephone call from PW-70 was too cryptic to amount to
an FIR. At this juncture, it is useful to refer to the decision of
this court in the case of </span></span><a href="http://www.indiankanoon.org/doc/781756/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of U.P. vs. P.A. Madhu,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1984)
4 SCC 83 wherein this Court has not accepted a similar argument and
held as under:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
To begin with, it appears that there was some dispute about the
dearness allowance claim of the labour from the management which was
referred to the Industrial Tribunal. The respondent, who was the
Secretary of the Union, was looking after the case on behalf of the
workers, while PWs 5 and 7 were the officers appearing on behalf of
the management before the Tribunal. The deceased, S.J. Sirgaonkar,
was Deputy Personnel Manager of the Bombay Branch of M/s Hindustan
Construction Company. He was shot dead by the respondent after he
(deceased), along with the other officers of the management, had come
out of the Tribunal's office at Meerut after filing their written
statements. Thereafter one of the eyewitnesses, S.K. Gui (PW 7) asked
someone to give a telephone call to the police station, which was
nearby, on receipt of which the police arrived at the spot, seized
the pistol and took the accused and some of the witnesses to the
police station where a formal FIR was registered. The Panchnama was
prepared and other formalities were, however, done at the spot.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
Durga Das, DW 1 who was admittedly at the scene of the occurrence has
stated that as the shooting started, PW 7 had given a telephonic
message to the police station. The High Court by an implied process
of reasoning has observed that if PW 7 had given the telephonic
message he would have mentioned the name of the assailant because he
was a full-fledged eye- witness but since his name had not been
mentioned it is the strongest possible circumstance to discredit the
prosecution case. We are, however, unable to agree with this somewhat
involved reasoning of the High Court. In fact, DW 1 merely says that
Gui telephoned to the police station about the firing and said
something in English. The High Court seems to have presumed that from
this the irresistible inference to be drawn is that Gui did not
mention the name of the assailant of the deceased and on this ground
alone the prosecution must fail. This argument is based on a serious
error. In the first place, the telephonic message was an extremely
cryptic one and could not be regarded as an FIR in any sense of the
term. Secondly, assu</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ming
that Gui had given the telephonic message in utter chaos and
confusion when shots after shots were being fired at the deceased,
there was no occasion for Gui to have narrated the entire story of
the occurrence. In fact, in his evidence Gui has denied that he
personally telephoned the police but he stated that he asked somebody
to telephone the police which appears to be both logical and natural.
Moreover, such a cryptic information on telephone has been held by
this Court to be of no value at all. </span></span><a href="http://www.indiankanoon.org/doc/756608/">In
Tapinder Singh v. State of Punjab</a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> this
Court in identical circumstances observed th</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">us:
[SCC para 4, p. 117: SCC (Cri) p. 332] "The telephone
message was received by Hari Singh, ASI Police Station, City Kotwali
at 5.35 p.m. on September 8, 1969. The person conveying the
information did not disclose his identity, nor did he give any other
particulars and all that is said to have been conveyed was that
firing had taken place at the taxi stand, Ludhiana. This was, of
course, recorded in the daily diary of the police station by the
police officer responding to the telephone call. But prima facie this
cryptic and anonymous oral message which did not in terms clearly
specify a cognizable offence cannot be treated as first information
report. The mere fact that this information was the first in point of
time does not by itself clothe it with the character of first
information report."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Similar
views have been expressed in </span></span><a href="http://www.indiankanoon.org/doc/756608/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Tapinder
Singh vs. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1970)
2 SCC 113, Damoder vs. 78</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Rajasthan
(2004) 12 SCC 336 and </span></span><a href="http://www.indiankanoon.org/doc/452608/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramsinh
Bavaji Jadeja vs. State of Gujarat</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1994)
2 SCC 685. It was argued and highlighted that since PW-2 Shyan Munshi
has been confronted with his signed statement i.e. Ex.PW-2/A and B,
the whole evidence goes in light of Zahidurddin vs. Emperor, AIR 1947
PC 75. Apart from the above decision reliance has further been placed
on Superintendent and Remembrancer of Legal Affairs to the State of
W.B. vs. Ram Ajudhya Singh & Anr. AIR 1965 Cal. 348 (Para 9)
and Mer Vas Deva vs. State of Gujarat, AIR 1965 Guj. 143 (Para 9
& 10). We have carefully perused those decisions. We are
satisfied that nothing turns on this argument since the said
decisions only provide that where a statement made/given by a witness
under Section 161 of the Code and signed by the same is hit by the
bar prescribed under Section 162 of the Code, but nowhere do they say
that the evidence deposed to in Court by the said witness becomes
admissible. As a matter of fact, similar argument of the defence
counsel 79</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">was
rejected in </span></span><a href="http://www.indiankanoon.org/doc/1083208/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ranbir
Yadav vs. State of Bihar,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1995)
4 SCC 392.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"37.
In assailing the above findings Mr Jethmalani first contended that
both the courts below ought not to have taken into consideration and
relied upon the evidence of PC PW 1 as the same was clearly
inadmissible. In expanding his argument Mr Jethmalani submitted that
while being examined in court the witness was permitted to refresh
his memory from the report he lodged with the police in the morning
of 12-11-1985 (Ext. 10/1), which was treated as the FIR of the second
incident even though by no stretch of imagination could that report
be so treated, as PW 96 had started investigation into the same the
previous night. That necessarily meant that Ext. 10/1 was a statement
made to a police officer during investigation which could not be read
for any purpose except for contradicting the maker thereof in view of
Section 162(1) of the Code, argued Mr Jethmalani. In support of his
contention Mr Jethmalani relied upon the judgment of the Privy
Council in Zahiruddin v. Emperor. It appears that the question as to
whether Ext. 10/1 could be treated as an FIR was raised both before
the trial court and the High Court and it was answered in the
affirmative. The courts held that in the night of 11-11-1985, PW 96
did not examine any witness in connection with the incident that took
place in that afternoon and, in fact, he did not take any step
towards the investigation as he and other police officers were busy
in maintaining law and order in the village.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">38.
Having gone through the evidence of PW 96 we are constrained to say
that the courts below were not justified in treating Ext. 10/1 as an
FIR. Undisputedly PW 96 had reached Village Laxmipur Bind Toli in the
night of 11-11-1985 to investigate into the two cases registered over
the incident that took place in the morning. He deposed that after
reaching the village at 10.30 p.m. he got information about the
second incident also and in connection therewith he had talked to
several persons. He, however, stated that he did not record the
statements of the persons to whom he talked to. In cross-examination
it was elicited from him that on the very night he learnt that houses
of some people had been looted and set on fire, some people had been
murdered and that some villagers were untraceable. While being
further cross-examined he volunteered that 80</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">he
had started the investigation of the case registered over the second
incident in the same night. In the face of such admissions of PW 96
and the various steps of investigation he took in connection with the
second incident there cannot be any escape from the conclusion that
the report lodged by PC PW 1 on the following morning could only be
treated as a statement recorded in accordance with Section 161(3) of
the Code and not as an FIR. The next question, therefore is whether
the evidence of PC PW 1 is inadmissible as contended by Mr
Jethmalani.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">39.
In the case of Zahiruddin the police had got the statement of the
principal witness which was, admittedly, recorded during
investigation signed by him. Besides, during trial, while being
examined-in-chief he refreshed his memory from that statement. The
trial ended in an acquittal with a finding that when a police officer
obtains a signed statement from a witness in contravention of Section
162 of the Criminal Procedure Code his evidence must be rejected. In
appeal the High Court set aside the order of acquittal holding that
breaches of the provisions of Section 162 Criminal Procedure Code
were not in themselves necessarily fatal to the proceedings and might
in appropriate circumstances be cured as the expression was under the
terms of Section 537 of the Criminal Procedure Code, 1898 (Section
465 of the Code). In setting aside the order of the High Court the
Privy Council observed as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"...
the effect of a contravention of the section depends on the
prohibition which has been contravened. If the contravention consists
in the signing of a statement made to the police and reduced into
writing, the evidence of the witness who signed it does not become
inadmissible. There are no words either in the section or elsewhere
in the statute which express or imply such a consequence. Still less
can it be said that the statute has the effect of vitiating the whole
proceedings when evidence is given by a witness who has signed such a
statement. But the value of his evidence may be seriously impaired as
a consequence of the contravention of this statutory safeguard
against improper practices. The use by a witness while he is giving
evidence of a statement made by him to the police raises different
considerations. The categorical prohibition of such use would be
merely disregarded if reliance were to be placed on the evidence of a
witness who had made material use of the statement when he 81</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">was
giving evidence at the trial. When, therefore, the Magistrate or
presiding Judge discovers that a witness has made material use of
such a statement it is his duty under the section to disregard the
evidence of that witness as inadmissible. In the present case there
is in the note at the end of Mr Roy's examination-in-chief and, in
the judgment of the Magistrate what amounts to a finding of fact that
Mr Roy while giving his evidence made substantial and material use of
the signed statement given by him to the police, and the Magistrate
was accordingly bound to disregard his evidence. The Magistrate's
reason for doing so is too broadly stated, for it is not the mere
fact that Mr Roy had signed the statement but the fact that he had it
before him and consulted it in the witness box that renders his
evidence incompetent." (emphasis supplied)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">40.
In our considered view the above-quoted passage is of no assistance
to the appellants herein for in the instant case after PC PW 1
testified about the incident, prosecution got the statement of PC PW
1 exhibited Ext. 10/1 as according to it Ext. 10/1 was the FIR. Such
a course was legally permissible to the prosecution to corroborate
the witness in view of Section 157 of the Evidence Act. Of course in
a given case -- as in the present one -- the court may on the basis
of subsequent materials hold that the statement so recorded could not
be treated as the FIR and exclude the same from its consideration as
a piece of corroborative evidence in view of Section 162 of the Code
but then on that score alone the evidence of a witness cannot be held
to be inadmissible. The case of Zahiruddin turned on its own facts,
particularly the fact that during his examination- in-chief the
witness was allowed to refresh his memory from the statement recorded
under Section 161 Criminal Procedure Code, unlike the present one
where the statement was admitted in evidence after PC PW 1 had
testified about the facts from his own memory." 41) The
information about the commission of a cognizable offence given
"in person at the Police Station" and the
information about a cognizable offence given "on
telephone" have forever been treated by this Court on
different pedestals. The rationale for the said differential 82</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">treatment
to the two situations is, that the information given by any
individual on telephone to the police is not for the purpose of
lodging a First Information Report, but rather to request the police
to reach the place of occurrence; whereas the information about the
commission of an offence given in person by a witness or anybody else
to the police is for the purpose of lodging a First Information
Report. Identifying the said objective difference between the two
situations, this Court has categorically held in a plethora of
judgments that a cryptic telephonic message of a cognizable offence
cannot be treated as a First Information Report under the Code. It
has also been held in a number of judgments by this Court that merely
because the information given on phone was prior in time would not
mean that the same would be treated as the First Information Report,
as understood under the Code. This view has been reiterated in </span></span><a href="http://www.indiankanoon.org/doc/1204394/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Baburao Devaskar and Others vs. State of Maharashtra</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2007)
13 SCC 501, that a cryptic message 83</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">given
on telephone by somebody who does not disclose his identity may not
satisfy the requirement of Section 154 of the Code of Criminal
Procedure.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">42)
In view of the above discussion, the three telephonic messages
received by the police around 2.25 a.m. on 30.04.1999 did not
constitute the FIR under Section 154 of the Code and the statement of
Shyan Munshi PW-2 was rightly registered as the FIR.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">42A)
Seizure of Tata Safari & broken glass pieces and live
cartridge:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(i)
The testimony of PW-30 has proved the presence of Tata Safari
CH-01-W-6535 at the spot after the incident which testimony is duly
corroborated by PW-83, PW-78, PW-100 and PW-101 and by</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">documents
Ex PW 101/DK-1, which shows about the PCR message about this vehicle
at 6.00 a.m. on 30.04.1999. In his evidence, PW-30 has informed that
he left PS Mehrauli along with Inspector Surender Sharma at 2.30/2.45
a.m on 30.04.1999 and reached `Qutub Colonnade' within 84</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2-4
minutes. He further informed that SHO S.K. Sharma directed him to
keep vigil at the parking so that nobody is allowed to take away cars
parked there. The following information is relevant: "When I
was giving duty there, I saw a vehicle, came at about 3:40 or 3:45
a.m. It came from the side of Qutub. The vehicle came slowly. The
vehicle was Tata Sierra of white colour. There were two persons in
that vehicle, on the front seats. They went ahead and took `U' turn
and stopped the vehicle near the vehicle, near which I was standing.
I was standing by the side of Tata Safari vehicle, of black colour.
One boy came down from that vehicle. He opened the vehicle Tata
Safari, with a key. I told him not to do so, but he forcibly entered
the said Tata Safari. He started the vehicle even though I asked him,
not to do so. I gave a lathi blow on the last window-pain on the side
of the driver. The number of the black TATA Safari, bore Registration
no. CH-01-W-6535. When I gave danda- blow, the glass of window-pain
broke. Both the persons, took-away the vehicles. I had seen the
driver and companion on the Tata Sierra. The TATA Sierra vehicle was
being driven by Sikh Gentleman. I can identify the driver of the said
Tata Sierra and his companion.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">At
this stage, the witness has been sent out to examine the vehicle,
parked, outside the court room, along with Junior of Shri G.K.
Bharti, Advocate and Shri Ghai, Advocate.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is the same Tata Safari vehicle, which was hit by me on that night.
It is exhibited as article Ex.PW 30/X."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is clear from his evidence that while Tata Safari CH-01-W-6535 was
being taken away forcibly from the scene of occurrence at about 3.45
a.m. by accused Vikas Yadav and both Vikas Yadav and 85</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Amardeep
Singh Gill came in a Tata Sierra, PW-30 gave a danda blow on the
right rear side of the window of the car.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ii)
The prosecution case further shows that the first police officer to
reach the place of occurrence at 02.17 a.m. on 30.04.1999 was HC Devi
Singh PW-83. He has stated that there was one black Tata Safari
parked on the left side towards Mehrauli besides other cars on the
right side of the gate. He has further stated that PW-30 was deputed
by SHO near the parked vehicles at Qutub Colonnade. He further stated
that SI Sarath Kumar PW-78 and SI Sunil Kumar PW-101 had also visited
the spot.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iii)
SI Sharad Kumar PW-78 has stated that on receipt of DD No 41 A Ex PW
13/A in respect of firing incident in Qutub Colonnade, he along with
Ct. Meenu Mathew reached Qutub Colonnade. SI Sunil Kumar and Ct
Subhash Chand also reached Qutub Colonnade almost the same time when
he reached. 86</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">At
Qutub Colonnade on the left side near the gate a black Tata Safari
car was parked besides other cars. SHO Insp. Surender Kumar Sharma
also reached there. While leaving for Ashlok Hospital, the SHO asked
Delhi Home Guard Shrawan Kumar to remain at the gate of the `Qutub
Colonnade'. PW-100 SI Sunil Kumar has stated that when he reached
Qutub Colonnade he found a black Tata Safari car parked on the left
side besides as he entered the colony and other vehicles were parked
on the right. The PW-30 also identified the black Tata Safari
CH-01-W-6535 to be the same which he had seen parked at the scene of
crime and the same in exhibit article PW 30/X. SHO S.K. Sharma had
also reached the spot along with staff including DHG Shrawan Kumar.
SHO detailed DHG Shrawan Kumar to watch the vehicle already parked
there and asked him (SI Sunil Kumar) to proceed immediately to Ashlok
Hospital. 87</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iv)
Surender Kumar Sharma PW-101, SHO PS Mehrauli has stated that on
receipt of information he, ASI Kailash, Ct Ram Niwas, Ct Ramphal, Ct
Yatender Singh left for the spot in the official gypsy. PW-30 met
them at the gate of police station and he also picked him (Sharvan
Kumar) up in the Gypsy and reached Qutub Colonnade. He found one
black colour Tata Safari on the left side of Qutub Colonnade gate and
4 or 5 vehicles including one PCR Van on the right side. PW-30 was
left at the gate to ensure that no vehicles leave the spot. It is
clear from the above testimony that black Tata Safari was found
parked near the gate of `Qutub Colonnade' when they reached at the
spot on receipt of intimation regarding firing incident and Shravan
Kumar PW-30 was detailed by SHO PW-101 to ensure that no vehicle
leaves the spot. It is the argument of the learned senior counsel for
the appellant Manu Sharma that PW-30 was not present at the spot of
the incident placing its reliance on 88</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">DD
No.40A and 43A dated 30.04.1999. A perusal of FIR 286 of 1999 dated
30.04.1999 under Section 308/34 IPC PS Mehrauli Ex-CW-2/B shows that
the said `rukka' was sent by SI Rishi Pal through Balwan Singh from
AIIMS and not from Dera Gaon. The said FIR also indicates that SI
Rishi Pal by 2.30 a.m. had already recorded the statement of the
victim at AIIMS and had not sent the same with Balwan Singh with
`rukka' to PS, Mehrauli. In those circumstances, the version of PW-30
and PW-101 that PW-30 met him at the gate of the PS when PW-101 was
going out with other staff is reliable and acceptable. Further, the
presence of PW-30 at the spot is corroborated by Sharad Kumar Bisnoi,
PW-78, HC Devi Singh, PW-83, SI Sunil Kumar, PW-100 and Surender
Sharma, PW-101. It was also highlighted that after this incident
PW-30 has been recruited to the post of Constable though he was not
eligible as he was under metric and overage. Learned Solicitor
General appearing for the State pointed out that instances are not
unknown wherein persons other than 89</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">permanent
police officers when help the investigating agency in solving crimes
have been recruited in Delhi Police and strongly submitted that the
evidence of Shravan Kumar cannot be discredited on this point. The
said submission cannot be ignored.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">43)
PW-30 has categorically stated that while he was on duty he saw a
vehicle Tata Sierra White Colour coming slowly from the side of Qutub
at about 03.40 am or 03.45 am. There were two persons in the said
vehicle on the front seat. They stopped the vehicle near Tata Safari
of black colour. One boy came down from the said vehicle and opened
Tata Safari with a key. PW-30 told him not to do so but the said boy
forcibly entered the Tata Safari and took it away. He gave a lathi
blow on the glass of window pane and it broke due to danda blow. He
noted down the number of the black Tata Safari as CH-01-W-6535. The
witness also identified Tata Safari which was hit by him on that
night, which is exhibit PW 30/X. PW 30 also 90</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">identified
that Tata Sierra was driven by Amardeep Singh Gill whereas Vikas
Yadav drove away black Tata Safari. 44) Insp. Surender Kumar Sharma
PW-101 also stated that when he came back, he found SI Sunil &
SI Sharad as well as Shravan, they told him that two boys had come
and had forcibly taken away the Tata Safari. Out of the two boys one
was Sikh, PW-30 also informed that he had broken the right backside
window panel of Safari with his Danda. He also gave the number of the
Tata Safari as CH- 01-W-6535. SI Sunil Kumar PW-100 has also stated
that two persons had got into the Tata Safari and had driven away.
The testimony of the above witnesses is duly corroborated by document
Ex PW 101/DK-1. Thus it is clearly established by cogent evidence
that on 30.04.1999 at about 03.40 or 03.45 am accused Amardeep Singh
Gill and Vikas Yadav came in a white colour Tata Sierra Car and
accused Vikas Yadav got down and drove away black Tata Safari No.
CH-01-6535.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">91</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Tata
Safari at Noida:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">45)
It was argued that even according to PW-100, the Tata Safari was
found available in Karnal, hence seizure of the very same vehicle
(Tata Safari) at Noida is not acceptable. It is true that PW-100 has
stated that he discussed the case with Inspector Surender Sharma and
who informed him that Vehicle No. CH-01-W-6535 which was lifted from
the spot in the morning is found to have been registered in the name
of Piccadilly Agro Industries and it was also found in Karnal and he
further informed that Sidharth Vashisht alias Manu Sharma is the
Director of the said Industries who is residing in H.No.229, Sector
9C, Chandigarh. A perusal of his entire evidence shows that he had
stated that the vehicle was found registered in the name of
Piccadilly Agro Industries, Bhadson, which was also found in Karnal
and SI Pankaj Malik along with his staff has been detailed for the
investigation of the aforesaid aspect of the case. As rightly pointed
out by the counsel for the State, the testimony of PW-100 show that
92</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">he
was referring to the Piccadilly Agro Industries having been found at
Bhadson Karnal and not the vehicle/Tata Safari. It was also pointed
out when Manu Sharma was questioned under Section 313 Cr.P.C.
particularly question No. 119 the doubt about the vehicle has been
erased. Question No. 119 put to Manu Sharma and his answer is as
follows:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Q.119
It is further in evidence of PW 100 that when he came back to Qutub
Colonnade nearly at about 03:15 PM on 30.04.99 where he met Surinder
Sharma (PW 101) and discussed the case with SHO Surinder Sharma who
informed him that vehicle No. CH-01-W- 6535 which was lifted from the
spot in the morning is found to have been registered in the name of
Piccadilly Agro Industries, Bhadson and it was also found in Karnal
and he further informed him that you Sidharth Vashist @ Manu Sharma
is a Director of the said industry who is residing in House No. 229,
Sector 9C, Chandigarh. What you have to say in this regard? Ans. It
is correct that Vehicle No. CH-01-W-6535 is registered in the name of
Piccadilly Agro Industries Ltd., Piccadilly Cinema, Sector 34,
Chandigarh." 46) Apart from this, PW-101 also stated that
his senior officers found out the name of the owner and informed him
that it was registered in the name of Piccadilly Agro Industries
Ltd., Sector-34, Chandigarh. He further explained that his officers
informed him that this vehicle 93</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">was
used by Manu Sharma's office which was at Bhadson, District Karnal.
It is further seen from his evidence that he sent SI Pankaj to
Chandigarh and Inspector Raman Lamba to Bhadson. In this regard the
evidence of PW-87 Raman Lamba is relevant. He deposed before the
Court that he was instructed that the inmates of Black Tata Safari
No. CH-01-W-6535 was involved in the case and he was asked to search
the same. As directed, he left Delhi on 30.04.1999 and reached
Bhadson at the premises of Piccadilly Agro Industries. According to
him, he met Major Sood and the sugar mill was closed at that time. He
also learnt that the sugar mill was not functioning because of off
season since 25.04.1999. From Bhadson, he went to Kurukshetra and he
tried to locate Black Tata Safari in the aforesaid sugar factory at
Bhadson but did not find it. Even at Chandigarh, Tata Safari was not
available in his house at Sector 229, Sector 9C, Chandigarh. SI
Pankaj Malik PW-85 also deposed before the court that on 30.04.1999
he was deputed by Inspector 94</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Surender
Kumar to trace out black colour Tata Safari car bearing Registration
No. CH-01-W-6535. As rightly pointed out that the vehicle being
recovered at Karnal on 30.04.1999, the question of sending SI Pankaj
Malik does not arise. From the statements of Sunil Kumar PW-100,
Inspector Surender Kumar Sharma PW-101, Inspector Raman Lamba PW-87,
ASI Nirbhaya Singh PW-80 and SI Pankaj Malik PW-85, it is clear that
Tata Safari vehicle was being searched by Inspector Raman Lamba PW-87
and SI Pankaj Malik PW-85 and other police officers at various places
in Delhi, Haryana and Chandigarh. As the said vehicle was found on
02.05.1999 at Noida and the same was taken into possession through a
seizure memo prepared by Noida Police. The same was taken into
possession by Delhi Police on 03.05.1999 after taking appropriate
orders from the Magistrate Ghaziabad. Recovery of Tata Safari with
live bullet and broken glass pieces at Noida:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">47)
PW-91 SI BD Dubey, in his evidence has stated that information was
received that the vehicle involved in 95</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Jessical
Lal murder case was parked at NTPC Township. They reached NTPC
Township at about 06.30 p.m. on 02.05.99 and found a Safari Vehicle
parked there bearing No. CH-01-W-6535. He identified the vehicle Ex.
article PW 30/X in the court. Recovery memo prepared is Ex PW 74/A
which is in his handwriting and bears his signatures at point C and
that of Sudesh Gupta SO at point B. PW-74 stated that vehicle Tata
Safari was recovered vide Ex. PW 74/A on 02.05.99. He also identified
signatures of SI BD Dubey & SI Sudesh Gupta on the same. Ex
PW 74/A Seizure Memo of Tata Safari and live cartridge with `C' mark
etc. clearly establish the recovery of the same at Noida, beyond any
shadow of doubt vide Ex PW 74/C Seizure of Live cartridge by Insp.
Surender Kr. Sharma dated 26.06.1999.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">48)
PW-101 in his evidence has stated that: "On 03.05.1999 in
the morning with SI Vijay Kumar and other staff I went to Sector 24
NOIDA and found the Tata Safari No CH-01-W-6535 Black Tata Safari
lying in case FIR No. 115/99 U/s 25 Arms Act. SI BD Dubey handed over
a pullanda of glass pieces which were found inside the vehicle by the
NOIDA police. I seized the vehicle pullanda and the documents two
tape 96</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">recorder,
one prescription of Nagpal Nursing Home and one letter written to
Vijay Sharma. Every thing was seized vide seizure memo Ex PW 100/DB
which bears my signature at point A and of SI BD Dubey at point B.
The pullanda of broken glasses were sealed with the seal of BD when
it was presented to me." 49) SI BD Dubey PW-91 and Ct.
Satish Kumar PW-74 of PS Sec.24, Noida have deposed that they found
black Tata Safari No. CH-01-W-6535 abandoned at the NTPC Township
pursuant to which FIR No. 115/99 u/s 25 Arms Act was registered vide
Ex. PW 74/B. The said Tata Safari was seized under seizure memo Ex PW
74/A. PW 101 has clearly deposed that about 10 pm on 02.05.1999 he
got the information with regard to the Tata Safari having been found
at Noida. On 03.05.1999, he moved an application before the ACJM,
Noida for the superdari of the Tata Safari vide Ex. PW 101/1 and in
pursuance of the orders of ACJM Ex. PW 101/2 and he seized the same
vide seizure memo dated 03.05.1999 vide Ex. PW 100/DB along with
other articles including broken glass pieces which were duly sealed
with the seal of BD. The seizure memo Ex. PW 100/DB is duly signed by
SI BD Dubey. 97</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
said Tata Safari and the broken glass pieces duly sealed with the
seal of BD have been deposited in the Malkhana of PS Mehrauli on
03.05.1999. PW-101 has also stated that SI Vijay Kumar accompanied
him to Noida and that seizure memo Ex. PW 101/DB was in the
handwriting of SI Vijay Kumar of PS Mehrauli. Ex PW 18/DA at item no.
7 & 9 in the letter sent to CFSL mentioned about the seal of
BD on the sealed parcel containing broken glass pieces. The report of
CFSL vide Ex PW 90/A proved that on comparison of S1 and S2 the two
window panes of the left and the right rear side of the said Tata
Safari are different. Thus this convincing testimony of PW 101 duly
corroborated by documents cannot be discarded simply because SI
Sudesh Gupta (Noida Police) failed to mention the seizure of broken
glass pieces on 02.05.1999.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Tata
Safari being used by Manu Sharma on the day of occurrence:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">50)
From the evidence on record it has been proved by the prosecution
that appellant/accused Sidhartha 98</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Vashisht
@ Manu Sharma along with co-accused Amardeep Singh Gill, Alok Khanna
and Vikas Yadav were present in the said party at Tamarind Cafi on
the night of occurrence. The presence of Tata Safari CH-01-W-6535 at
the place of occurrence and its being forcibly taken at around 3.45
am after the incident has also been proved beyond reasonable doubt.
Manbir Singh PW-18 has proved that the said Tata Safari CH-01-W-6535
is registered in the name of Piccadilly Agro Industries Ltd.,
Chandigarh. It has also been proved from the testimony of PW-25,
PW-26, PW-48 and the annual report of Piccadilly that accused
Siddhartha Vashisht @ Manu Sharma was the director in Piccadilly Agro
Industries which finding has also been arrived at by the Trial Court
in favour of the prosecution. Thus a reasonable inference has to be
drawn from the above mentioned evidence that accused Manu Sharma used
the said Tata Safari for coming to Qutub Colonnade on the fateful
night of 29/30.04.1999.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">99</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Non-Recovery
of the weapon of offence and the evaluation of Bullets &
Cartridges:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">51)
Sh. Surender Singh PW-14 has proved that pistol No. B-56943 U make P.
Berretta made in Italy of .22" bore was sold to accused
Sidhartha Vashisht @ Manu Sharma on 31.01.1999. The relevant exhibits
in this regard are Ex. PW 14/A in the stock register for purchase of
P. Berrette Pistol from Smt. Azra Javed, Ex. PW 14/C at Sr. No. 3350
of sale of Pistol to Sidharth Vashisht, Ex. PW 14/D photocopy of cash
memo, seizure memo Ex PW 14/F dated 19.05.1999 by SI Vijay Kumar
PW-76. The endorsement on the license of Manu Sharma regarding sale
of Pistol is Ex. PW 14/B.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">52)
It is relevant to point out that the accused Sidharth Vashisht @ Manu
Sharma, when he surrendered on 06.05.1999, also surrendered his arms
license Ex PW 7/B which has been seized vide seizure memo vide Ex. PW
80/B by Inspector Raman Lamba PW 87. The testimony of PW-87 is
further corroborated by PW-80. The said arms license duly bears
endorsement about the sale of 100</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">.22"
bore pistol No. B-56943 U, make P. Berretta, made in Italy. The case
of accused Sidhartha Vashisht @ Manu Sharma as per his statement u/s
313 Cr.P.C. is that on the night of 30.04.1999 and 01.05.1999 when a
raid was conducted at his farm house at Samalkha, his pistol
ammunitions and arms license were taken away. As rightly pointed out
by the counsel for the State that the defence of the accused is
totally incorrect in view of the positive evidence adduced on record.
This defence of the accused Sidharth Vashisht @ Manu Sharma is a
clear afterthought as no complaint was lodged by the accused in this
regard nor the same was mentioned when he was twice produced for
police remand before the MM for recovery of the pistol employed in
the incident. 53) It is the claim of the learned senior counsel for
the appellant/Manu Sharma that the seizure memo dated 06.05.1999 with
reference to the arms license is fabricated as the license has been
taken from the farmhouse of the accused on 30.04.1999/01.05.1999.
Learned Solicitor 101</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">General
appearing on the side of the State demonstrated that the above
contention is false one. Since, on 06.05.1999, when the accused Manu
Sharma surrendered, he was accompanied by the lawyer in whose
presence his arrest memo was prepared and the lawyer also signed the
same. However, as rightly pointed out with reference to the arms
license which was also produced by them, the same does not bear the
signature of the said lawyer. The learned counsel for the State
further pointed out that the said lawyer declined to sign the seizure
memo that was the reason that it does not bear the signature of the
said lawyer. It is to be remembered that admittedly the
appellant/accused nowhere came out with an explanation. His arms
license was taken away by the Police in 30.04/01.05.1999 with any
seizure memo, why he has not lodged any report about the same. It is
also relevant to point out when the accused after surrendering before
the police of Chandigarh on 06.05.1999 was produced before the 102</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Magistrate
in Delhi. The police sought remand on two occasions specifically for
recovery of the weapon of the offence. It was pointed out by the
prosecution that Manu Sharma was duly represented by lawyers who did
not point out on both occasions that the pistol had already been
taken by the Police. The State also denied the said claim of the
accused as false and concocted. 54) Even, Shanker Mukhiya PW-44, who
is the caretaker of farm house of Manu Sharma at Samalkha who was
produced by the prosecution for the purpose of accused's visit to
farm house also did not mention in his examination in chief or in
cross by the Spl. PP about the pistol. It is only to a leading
question put up by the counsel for accused that those articles
included pistol and arms licence of Manu Sharma, witness stated
"it is correct". The defence of the accused was for
ammunition as well as for which no suggestion has been ever put. C.N.
Kumar PW-43, Dy. SP NCRB has deposed that he had not received any
complaint of theft or loss of this P. 103</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Berretta
pistol. The pistol could not be recovered despite extensive efforts
made to trace the pistol pursuant to the disclosures of the accused
and the arms license was however surrendered on 06.05.1999 vide
seizure memo Ex. PW 80/B. It is thus the case of the counsel for Manu
Sharma that he was in possession and custody of his P. Beretta pistol
on 29/30.04.1999 as even according to him it has been taken away on
30.04.1999/01.05.1999. This was a licensed pistol and thereby the
onus was on the accused to show where it was and that the possession
and whereabouts of the pistol are in the special knowledge of accused
Sidharth Vashisht @ Manu Sharma and having failed to produce the same
an adverse inference has to be drawn against him in terms of Section
106 of Evidence Act. In this regard reliance may be placed on </span></span><a href="http://www.indiankanoon.org/doc/1832541/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Sucha
Singh vs. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(2001)
4 SCC 375 at page 381: "It is pointed out that Section 106
of the Evidence Act is not intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt, but
the section would apply to cases where the prosecution has succeeded
in proving facts for which a reasonable inference can be drawn
regarding the existence of certain other facts, unless the accused by
104</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">virtue
of special knowledge regarding such facts failed to offer any
explanation which might drive the court to draw a different
inference"</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
addition, the prosecution by way of acceptable evidence has proved
beyond reasonable doubt that:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">a)
Manu Sharma accused was the owner and possessed .22" P.
Berretta Pistol made in Italy. b) Two empty cartridges cases of the
.22" with `C' mark recovered from the spot.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">c)
The mutilated lead recovered from the skull of deceased was of
.22" and could have been fired from a standard .22"
caliber firearm. d) From the Tata Safari live cartridge of .22"
with mark `C' was recovered on 02.05.1999.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">e)
The two .22" cartridge cases from the spot and the .22"
cartridge recovered from Tata Safari have similar head stamp of `C'
indicates that they are of the same make.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">f)
The two .22" cartridge cases recovered from the spot are to
be rim fired, rimmed steel cartridge cases.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">105</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">g)
The two .22" cartridge cases of `C' mark were lying near
each other on the counter and so could not have been fired by 2
different persons.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
testimony of Naveen Chopra PW-7 that he sold 25 cartridges of
.22" bore on 04.02.1999 is also of no relevance to the
defence of the accused when PW-7 says in the witness box that he had
sold 25 cartridges of .22 bore with Mark `KF' and not with `C'. The
appellant/accused has relied on the testimony of PW-7 to show that
the cartridges sold to appellant/accused had `KF' marking is wholly
unwarranted.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">55)
The prosecution has established that the appellant/accused was the
holder of a .22" bore Pistol; he was witnessed by Beena
Ramani as the perpetrator of the crime; a mutilated .22"
lead was recovered from the skull of the deceased; two empties of
.22" make with mark `C' were found at the spot; a .22"
live cartridge with mark `C' was found in the Tata Safari of the
appellant/accused which was found abandoned at Noida and for which no
106</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">theft
report was lodged; that his prior and subsequent conduct of having
got the Tata Safari removed from the spot, of absconding; refusal to
TIP without having any basis; that he even denied his presence at the
spot, clearly prove beyond reasonable doubt leaving no manner of
doubt that he is guilty of the offence of murdering Jessica Lal by
using firearm and destroying evidence thereafter. 56) It is pointed
out by the State that when the accused Manu Sharma was arrested on
06.05.1999, the police filed an application dated 07.05.1999 for
police remand of the accused for recovery of pistol. The defence
filed a reply to the said application on the same day i.e.,
07.05.1999 and thereupon the Metropolitan Magistrate passed an order
on the same day granting seven days police custody of the accused for
recovery of pistol. The accused despite forever maintaining that the
police had illegally taken away the pistol from his farmhouse on
30.04.1999/01.05.1999, did not take this ground in the reply to
remand application and argument to the said effect was recorded in
the 107</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">remand
order by the Magistrate. The only inevitable conclusion that could be
reached from the said turn of events is that the pistol was still in
custody of the accused and had never been recovered by the police
from his farmhouse. In the reply dated 07.05.1999 filed by the
accused to the remand application, there are interpolations in the
reply in black ink in two handwritings to the effect that the pistol
had already been recovered from the person of the accused. The
assertion that the words in two handwritings in black ink are
interpolations gain strength from the fact that nowhere in the remand
order dated 07.05.1999 has it come that the accused has taken the
plea that the pistol had already been recovered. It is pointed out by
the learned Solicitor General that the Courts below ought to have
drawn an adverse inference from the said facts but have failed to do
so. Thus this evidence coupled with the testimony of Shyan Munshi,
PW-2, that the person in white T-shirt who was asking for whisky took
out a pistol from dub of his 108</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">pant
and fired a shot in the air and the other witnesses PWs 1,6, 20 and
24 that the person in white T-shirt was Manu Sharma, a positive
inference beyond reasonable doubt has to be drawn that Manu Sharma
fired from his .22" bore pistol which resulted in the death
of Jessica Lal on the fateful night of 29/30.04.1999.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">57)
Mr. Ram Jethmalani, learned senior counsel, appearing for the accused
pointed out that no question has been put to the accused in his
examination under Section 313 Cr.P.C. with reference to the pistol
and shooting by him for this. The State has placed reliance on the
following questions which were specifically put to the accused Manu
Sharma being Question Nos. 64, 65, 66, 67 & 72 which are as
under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Q.64
It is further in evidence of PW-20 that she had identified you Manu
Sharma as the person whom she has tried to stop and talked to. She
added further that the person who was confronted by her on the stairs
was some what like you Manu Sharma and also identified you on
08.05.1999 at PS Mehrauli. What you have to say in this regard?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ans.
It is false and incorrect.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Q.65.
It is further in evidence of PW-20 that the companion of Shyan Munshi
(you Manu Sharma) was wearing T-shirt 109</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">and
she asked you Manu Sharma as to why you were here and why you shot
Jessica and she also asked you to give her your gun as she thought
you were having the gun. What you have to say in this regard?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ans.
It is false and incorrect.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Q.66
It is further in evidence of PW 20 that she asked you Manu Sharma
again but you kept quiet and shaking your hands that it was not him
and thereafter you pushed her aside and went out and she ran after
you but should could not catch you. What you have to say in this
regard? Ans. It is false and incorrect.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Q.67
It is further in evidence of PW-20 that while running behind you
(Manu Sharma), she reached the gate where her husband was there, to
whom she told that you (Manu Sharma) shot Jessica and asked her
husband to see in which car you (Manu Sharma) gets in. What you have
to say in this regard?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ans.
It is absolutely false and incorrect." A perusal of above
questions and answers given by Manu Sharma were either evasive or
incorrect and as rightly pointed out by the learned Solicitor
General, an adverse inference deserves to be drawn for such acts of
the appellant-Manu Sharma.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
implication of delay in recording statements 58) Mr. Ram Jethmalani,
learned senior counsel for the appellant-Manu Sharma by placing
various decision contended that the delay in recording statements of
witnesses is fatal to the case of the prosecution, when the trial
Court rightly accepted the same, however, the High 110</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Court
committed an error in ignoring the said vital aspect. For this,
learned Solicitor General submitted that the said contention is based
on incorrect understanding of law and its wrong application to the
facts of this case. The first judgment relied on by the learned
senior counsel for the appellant-Manu Sharma is in </span></span><a href="http://www.indiankanoon.org/doc/1772812/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ganesh
Bhavan Patel vs. State of Maharashtra,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1978)
4 SCC 371. In that case, the witnesses were known and could have been
examined when the Investigating Officer visited the scene of
occurrence or soon thereafter. In the present case, there were about
100 or more persons present at the party. The identity of all such
persons took substantial amount of time to determine. Consequent to
the large number of witnesses, their interrogation also consequently
took a substantial amount of time. Unlike the said decision, in the
present case, there are no concomitant circumstances to suggest that
the investigator was deliberately making time with a view to give a
particular shape to the case. The details of investigation conducted
on each day are 111</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">very
clearly brought out in the evidence of the various witnesses.
Furthermore, the identity of the appellant as a suspect in the
present case was not the consequence of any delay. Thus, the delay,
if any, in recording the evidence of witnesses in the present case
cannot be considered as an infirmity in the prosecution case. 59) The
judgment in Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC
670, relied on is also distinguishable. The delay in recording the
statement in that case was coupled with the unnatural conduct of the
witness and that was what made the evidence of the said witness
unreliable, which is not so in the present case. 60) The other
judgment in </span></span><a href="http://www.indiankanoon.org/doc/253815/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Jagjit
Singh vs. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2005)
3 SCC 689 is also distinguishable. In that case, the delay in
recording the evidence of PW-6 was coupled with several other factors
which made her testimony unreliable, including the finding that she
implicated the appellant only at the prompting of her father and that
otherwise she had not named the 112</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">appellant
as an accused. Furthermore, there was no explanation regarding the
delay in that case. The facts of that case are, therefore, clearly
different from the present case.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">61)
The defence seeks to discredit the statement of PW-1 Deepak Bhojwani
on two counts, firstly that statement is recorded after 14 days and
secondly, there are various improvements, in his statement. It is
next contended by the defence to believe this man is to disbelieve
Beena Ramani. According to him, the prosecution did not know even on
14.05.1999 the details of their story and thus resulting in various
improvements in the testimony of this witness, in the witness box.
This contention of the defence looses sight of the fact that much
prior to 14.05.1999 Manu Sharma had surrendered on 06.05.1999 and had
made his disclosures and thus there could be no question of not
knowing the facts on 14.05.1999. Had the witnesses been planted, the
witnesses would have rendered a parrot like testimony. 113</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">PW-1
has explicitly stated that on 30.04.1999 he had told the police at
the Apollo Hospital all that he knew. This being the case, it cannot
be said that the testimony of the witness should be thrown out for
the delay in recording the statement by the Police. Clearly, PW-1 was
not an eye witness, this fact must have been realized by PW-100 and
101, therefore, they felt no urgency in addressing this aspect of the
investigation i.e., recording of the statement of PW-1. It is stated
by the State that as there were number of witnesses to be examined
the said examination continued for days. Witnesses Parikshit Sagar
and Andleep Sehgal were also examined on 14.05.1999. Further the
presence of Deepak Bhojwani can also not be belied in view of the
testimony of Sahana Mukherjee PW- 29 and Sabrina Lal PW-73. In any
case, any defect by delay in examination of witnesses in the manner
of investigation cannot be a ground to condemn the witness. Further
Section 162 Cr.P.C. is very clear that it is not mandatory for the
police to record every statement. In 114</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">other
words, law contemplates a situation where there might be witnesses
who depose in Court but whose previous statements have not been
recorded. 62) It is next contended by the learned senior counsel for
the appellant-Manu Sharma that there was a delay in recording the
statement of Deepak Bhojwani and his name having not been found from
the list of guests prepared by George Mailhot, Ex. 24/A. It was
further pointed out that the list was not a conclusive list and was
prepared by George Mailhot on the basis of remembrance and other
witnesses have also admitted the presence of Deepak Bhojwani. This is
more so relevant as the invited guests were also entitled to bring
guests with them. The statements of witnesses were recorded not only
by the I.O. himself but by other officials as well who were helping
him in investigation. The delay in recording the statement of Deepak
Bhojwani occurred due to natural flow of statements of various
witnesses. The statement of Deepak Bhojwani PW-1, was recorded by ACP
Durga 115</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Prasad
PW-92, who stated the name of Deepak Bhojwani occurred during the
course of interrogation of other guests/witnesses. The evidence of
PW-1 is relevant for a limited purpose i.e., proving the
presence/identity of Manu Sharma and his desire for liquor in the
party which part of evidence has also been given by other witnesses
in so many words, prior to Deepak Bhojwani as well. The said witness
in his evidence has categorically stated as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Few
of the police officials came to Apollo Hospital along with the
Ambulance and few of them returned to Qutub Colonnade. I did not make
any statement to the police in Apollo Hospital. Since I had not seen
the incident being taking place and at Ashlok and Apollo Hospital
discussion was going on as to who had done this and it was also being
discussed that the culprit was wearing Blue Denim Jean and White
Shirt and was fair and was little short in height then I assessed
that he was the same person who came to me to arrange drinks for him.
I had told the police in Apollo Hospital that it was Manu Sharma who
was with the similar description as was discussed amongst friends on
which police had told me that they would call me." 63) In
Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334, this Court held
that mere delay in examination of the witnesses for a few days
cannot, in all cases, be termed to be fatal so far as the prosecution
is concerned. There may be several reasons. When the delay is
explained, whatever 116</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">be
the length of the delay, the Court can act on the testimony of the
witness if it is found to be cogent and credible. </span></span><a href="http://www.indiankanoon.org/doc/1389773/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Prithvi vs. Mam Raj</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> ,
(2004) 13 SCC 279, it was held that delay in recording the statement
of the witness can occur due to various reasons and can have several
explanations and that it is for the Court to assess the explanation
and, if satisfied, accept the statement of the witness. The same
principle has been reiterated in Ganeshlal vs. State of Mahrashtra
(1992) 3 SCC 106. Evaluation of Laboratory reports and examination of
experts.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">64)
The evidence in respect of two FSL reports is as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">By
letter dated 06.07.1999, the seized material was forwarded to CFSL
for examination and expert opinion and, inter alia, the following
queries were made to be opined by the CFSL :</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"5.
Please examined and opine whether the two empties present in parcel
mentioned at Sl No.5 have been fired from the same weapon?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6.
Please examine and opine whether the bullet lead in parcel No.6 and
the bullet empties in parcel No.5 have been fired from a standard
five arm or a countrymade fire arm?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">117</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7.
Please examine and opine whether ejector, trigger, chamber, magazine
or other chamber marks are present on the live bullet empties
contained in parcel Nos. 6 & 5 respectively?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
If answer to querry No. 7 is yes then whether these marks are similar
and caused by the same fire arm?" The Ballistics Division of
CFSL gave report in respect of the queries as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"1)
The .22" badly mutilated lead bullet (marked BC/1) of No.3
could have been fired from a standard .22" caliber firearm.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2)
The two .22" cartridge cases marked C/1 and C/2 have been
fired from two different .22" caliber standard firearms.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3)
The .22" cartridge (marked C/3) of parcel No.5 is a live
cartridge and no characteristic tool marks (i.e. firing pin, ejector,
extractor, breechface, magazine or chamber marks etc.) could be
observed on this cartridge.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4)
The two .22" cartridge cases (marked C/1 & C/2) of
parcel No.4 and the .22" cartridge (marked C/3) of parcel
No.5 have similar Head Stamp of `C' indicating that they are of the
same make. No opinion on their series (lot/batch) could however be
given." According to the State the same also contained
inconclusive opinion. It was pointed out that the State has neither
relied on the report of the expert Sh. Rup Singh nor had filed it in
the trial Court. An application was moved by the accused for the
supply of the document and vide order dated 14.01.2000, the
Metropolitan 118</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Magistrate
directed that the State will have to supply all the deficient copies
and also the remaining CFSL reports sent by CFSL to SHO. The opinion
of Sh. Rup Singh, Ballistic expert finally exhibited as Ex. PW 89/DB
only says that "it appears that the two cartridge cases are
from two different pistols." As rightly pointed out such a
vague opinion of the expert can neither be relied upon nor can be any
basis to come to a conclusion that there were two persons who had
fired two different shots. 65) With regard to Prem Sagar Manocha
PW-95, Ballistic expert at FSL, Jaipur, a specific query being query
No.3 that whether both the empty cartridge cases have been fired from
the same firearm or otherwise. In the reply to the said query, the
expert opined that no definite opinion could be given on the two
.22" bore cartridge cases C-1 and C-2 in order to link with
the firearm unless the suspected firearm is available to examination.
It was pointed out that the trial Court puts a question to the
witness and while putting the question first gives a 119</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">specific
fact finding that for reply to Query No. 3, the presence of the
firearm was not necessary. This incorrect finding of fact given by
the trial Court based on no expertise and had resulted in grave
miscarriage of justice. It is well settled that while giving reports
after Ballistic examination, the bullets, cartridge case and the
cartridges recovered and weapon of offence recovered are carefully
examined and test firing is done at the FSL by the said weapon of
offence and then only a specific opinion is given.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">66)
It is contended by the learned counsel for the appellant/Manu Sharma
that the prosecution tried their level best to suppress the report of
the Ballistic expert Shri Rup Singh which was not favourable to them
and that the same was exhibited at the instance of the defence as Ex.
PW 89/DB. It has been further argued that while the charge sheet was
filed on 03.08.1999, the police sought an expert opinion practically
at the end of the investigation i.e. vide letter dated 16.07.1999,
Ex. PW-89/DA. At Sl. 120</span></span></div>
<div align="JUSTIFY" style="page-break-before: always;">
No. 67 of the charge sheet one finds mention of the letters sent by
the SHO seeking the expert opinion. The charge sheet was filed
without the expert opinion. The accused on seeing Sl. No.67,
approached the committal Court and asked for the expert report. It
has been argued that the I.O. had received the opinion in the first
week of December, 1999 but did not file the same. On 21.12.1999, the
Court directed the prosecution to file the report. The SPP objected
to the same on the ground that the order required modification but
the same was rejected and on 14.01.2000, the Court again directed
supply of the expert report. It has been argued that since the report
did not favour the prosecution, the same was withheld. It has been
further argued by the defence that failure on the part of the
prosecution to bring on record material which is in favour of the
accused is a breach of Article 21 of the Constitution. It has been
argued by the defence that it was improper on the part of the
prosecution to condemn a ballistic expert, i.e., Rup Singh without
calling him in for cross-examination. It has been further argued by
the defence that by virtue of Section 293 Cr.P.C., the report is
admissible in evidence and that the weapon is not required to show
whether the two empties are fired from the same gun and the weapon is
only required when one has to determine as to whether a particular
weapon was responsible for firing the empties in question. The expert
evidence is only good if it appeals to the judicial lines;
appreciation of such evidence can only be the work of the Court.
Reliance has been placed on A.E.G. Carapiet vs. A.Y. Derderian, AIR
1961 Calcutta 359 paras 10-14 to assert that every witness must be
cross-examined before being discredited. The prosecution cannot
challenge the expert at the stage of appeal when his testimony went
unchallenged at the stage of the trial. 67) It has been argued that
the Court must lay down in clear terms the duties of a public
prosecutor i.e., to tell the truth even if the same is in favour of
the accused. Reliance has been placed on Rule 16 of the Bar Council
of India Rules which are to the said effect. Reliance is further
placed on Attorney Generals Guidelines contained in Archbold Criminal
pleadings edition 2003 to say that it is obligatory on the part of
the prosecution to disclose all the material. It has been argued that
even after an application under Section 391 Cr.P.C. has been filed,
the prosecution still chose not to call the expert Rup Singh and
cross-examine him. Ex.PW-89/DB supports PW-2 and vice versa, since
his evidence is corroborated by the expert report. Attention of the
Court was invited to the results of the examination. As regards the
2nd opinion given by PW-95, it has been argued that this court must
assume that the prosecution sought a favourable opinion from the said
witness. The said witness obliged them and created confusion by
saying that no conclusive opinion can be given without examining the
weapon in question. 67) It was pointed out by the State that the said
report of Rup Singh is inadmissible in law since it is a photocopy
and, therefore, does not fall within the purview of a report in terms
of Section 293 of the Code. In other words, in terms of the relevant
provisions of the Indian Evidence Act unless the original document is
placed for the scrutiny of the Court, no reliance can be placed on
the photocopy without leading proper secondary evidence in this
regard. In any case, both Section 293 and Section 294 of the Code
which dispense with formal proof of documents under certain
circumstances make it abundantly clear that the documents sought to
be relied upon must be the originals. Assuming for the sake of the
argument, though not admitting, that the said report of Rup Singh,
i.e. Ex. PW- 89/DB is admissible even though a photocopy has been
placed on record and even though nowhere it has come in evidence that
the same i.e. the photocopy has been compared and scrutinized with
the original by the Court and then placed on record, the same still
looses all credence in the light of the fact that a perusal of the
forwarding letter and report would show that there seems to have been
some tampering with the said documents since the sequence of
numbering of the parcels as between the forwarding letter and the
report has been changed by somebody which fact remains unexplained
as, therefore, casts a further doubt on the genuineness of the said
report. <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
report itself with regard to query No.3 shows that "it
appears that the two cartridge cases C-1 and C-2 have been fired by
two different weapons". This opinion of the expert was vague
and on the basis of said opinion no credence can be lent to the fact
adverted to by the defen</span></span>ce that
there were two persons who fired two different shots from two
different weapons. Moreover the said report is oddly silent on query
No.7 of the forwarding letter wherein it was specifically asked about
the various markings on the live cartridge and the bullet empties.
The stand of the defence that to opine the two cartridge cases are
from the same weapon or not the pistol is not required and the pistol
is only required when the opinion is sought whether they are from
that particular weapon or not cannot be accepted. It is well settled
that when pressure is built <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">inside
the cartridge case, which results in the pushing out of the bullet
from the barrel, there is difference in the marks to the extent that
it may be either clear or unclear and flattened or deepened thus no
opinion can be rendered on account of this dissimilarity in the
absence of the weapon of offence and test firing. Further once the
report of Rup Singh is rendered inadmissible the two gun theory of
the defence becomes wholly inadmissible and what remains is that the
two empties found at the spot are .22" bore cartridges, that
the live bullet found in the Tata Safari is a .22" cartridge
and that the gun belonging to the appellant is a .22" bore
pistol which was used for the commission of the crime of murder of
Jessica Lal. </span></span>
</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">68)
The prosecution obtained another opinion from FSL Rajasthan and the
queries made are as under: “1. Please examine and opine the bore of
the two empty cartridges present in the sealed parcel.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
Please opine whether these two empty cartridges have been fired from
a pistol or a revolver.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
Whether both the empty cartridges have been fired from the same fire
arm or otherwise.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
response to these queries, the expert opinion of the FSL, Rajasthan
is as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"1.
The caliber of two cartridge cases (C/1 and C/2) is .22.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
These two cartridge cases (C/1 and C/2) appear to have been fired
from a pistol</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
No definite opinion could be given on two .22 cartridge cases (C/1
and C/2) in order to link with firearm unless the suspected firearm
is available for examination." It was pointed out by the
State that this opinion also was inconclusive in nature. In the
worksheet, it was categorically recorded that the Investigating
Officer be informed to make available the suspected fire arm used for
definite opinion on linking of C-1 and C-2 with the same fire arm or
otherwise. The worksheet also records that the fire arm involved be
sent for definite opinion. At this juncture, it is relevant to note
that the trial Court posed a leading question as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"
Q. From reply to query No.3 the presence of the fire arm was not
necessary. The question was whether the two empty cartridges have
been fired from one instrument or from different instruments?</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ans.
The question is now clear to me. I can answer the query here and now.
These two cartridge cases were examined physically and under sterio
and comparison microscope to study and observe and compare the
evidence and the characteristics marks present on them which have
been printed during firing. After comparison, I am of the opinion
that these two cartridge cases C/1 and C/2 appeared to have been
fired from two different fire arms." The said witness in
further cross-examination replied as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"There
is nothing in the record of the Court on my report on the basis of
which I had given this finding that C/1 and C/2 were fired from two
different fire arms" The said witness in further
cross-examination deposes that no photographs were taken or there is
any other evidence to show the basis of opinion given by the witness
before the trial Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">69)
The learned senior counsel for the appellant-accused has contended
that the contention of the prosecution that the trial Court could not
have asked the particular Court question to PW-95 is contrary to
Section 165 Cr.P.C. inasmuch as the power of Judge is very wide. It
has been further argued by the defence that the duties of a Presiding
officer are set out in Section 165 of the Indian Evidence Act.
Reliance is sought to be placed on </span></span><a href="http://www.indiankanoon.org/doc/1364567/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ram
Chander vs. State of Haryana, AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1981
SC 1036. It has been argued that the judge knew that the issue was
whether two empties were fired from the same gun. It has been further
argued that the judge has seen EX. PW- 89/DB and, therefore, any
judge would have noticed that the controversy was whether these two
bullets were fired from the same weapon or not. The Judge also found
out that this query went to the CFSL and CFSL answered the same. It
has been argued that, therefore, the Judge knew that to answer this
query weapon was not required. It has been argued that the Court must
read in between the lines.</span></span></div>
<ol start="70">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is pointed out by the State that the contention of the prosecution
was that the trial Court could not have first put a specific finding
of its own opinion to the expert witness and then ask him questions.
Learned Solicitor General pointed out that in the attempt of the
trial Court to extract the truth from the said witness, it
misdirected itself in law by posing such a question. This is
impermissible even as per the judgment in Ram Chander (supra) relied
on by the defence. This judgment is in fact in favour of the
prosecution since the same clearly puts an embargo on the power of a
judge to ask questions so as to frighten, coerce, confuse or
intimidate the witness. The danger inherent in a judge adopting a
much too stern an attitude towards witness has been duly explained
in the said decision. The judge cannot ask questions which may
confuse a witness. The argument that the judge knew that the issue
in question was whether the two empties found on the spot were fired
from the same gun is wrong and misleading. The judge knew that as
per the charge framed against Manu Sharma it was he alone who was
charged with the possession and use of a gun. The judge also knew
that the first expert opinion was brought on record at the instance
of the accused; the judge further knew that PW-95 had stated in no
uncertain terms that no opinion can be given as regards the two
empties without receipt of the weapon of offence. In spite of
knowing all this, the judge first put a finding of its own to the
witness that he did not need the firearm in question in order to
reply as to whether the two empties were fired from the same gun
i.e., a gun and not the gun. The Court exceeded its power under
Section 165 of the Evidence Act by putting the question after giving
its own finding.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">71)
On behalf of the prosecution, it is pointed out that the entire
argument of the accused that an expert opinion was sought at the fag
end of the charge sheet to seek a favourable opinion in favour of
the prosecution in fact suggests that the I.O. in question was
oblivious of the fact that such an opinion could work to the
detriment of the case of the prosecution i.e. two empties having
been fired from the same weapon of offence belonging to accused Manu
Sharma. The fact that the I.O. sought to mention at S.No. 67 of the
list of documents in the Charge Sheet about the forwarding letter to
the expert only suggests that the prosecution had no intention of
carrying out the act of seeking an expert opinion, is hiding. The
discretion on the part of the I.O. and the superior officers was
rightly exercised when they decided not to file the expert report
since they realized that the expert report is ambiguous as it uses
the term "appear" when it suggests that the two
empties appear to have been fired from different weapons. Clearly
the said opinion was far from conclusive and would have only created
confusion in the case of the prosecution. Thereafter a second
opinion was sought wherein the expert i.e. PW-95 opined that a
conclusive opinion can only be given after the receipt of the weapon
of offence. The argument that the weapon of offence is not required
to determine whether the two bullets have been fired from the same
gun is based on the wrong premise that the two empties would
necessarily consist of features which would enable an expert in
determining the said fact. For instance, as in the case of a
handwriting expert who has to give an opinion about two different
sets of near identical questioned documents and as to whether the
same belong to different persons, if the argument of the accused has
to be accepted then the expert should be able to give such an
opinion without having in his possession the specimen handwriting
and the admitted handwriting of the accused. It is stated that such
an approach would render the opinion as that of a layman and not an
expert. Similar would be case of a finger print expert who
undertakes the process of discovering two different sets of finger
print which are in question, without having the specimen or the
admitted finger print of the accused in question. In other words, an
expert is only an expert if he follows the well accepted guidelines
to arrive at a conclusion and supports the same with logical
reasoning which is a requirement of law as laid down in the Indian
Evidence Act. In the present case, the moment Rup Singh uses the
word "appear" his opinion unsupported by reasons
becomes inconclusive and stands discredited for the purpose of
placing reliance on. The opinion of Rup Singh was at query No.7 as
to "please examine and opine whether ejector, trigger,
chamber, magazine or other tool marks are present on the live bullet
and the bullet empties contained in parcel Nos. 6 & 5
respectively." Though Shri Rup Singh has given opinion qua
query No.5 that the two .22" cartridge cases appears to
have been fired from two different .22" caliber standard
firearms but his opinion is completely silent on the marks i.e.
ejector, trigger, chamber, magazine or other tool marks on the
bullet empties (Ex. PW 89/DB). Clearly an option was available to
the accused under Section 293 Cr.P.C. to call for the witness and
ascertain from his for sure that the two empties were in fact fire
from two different weapons, however, the accused did not choose to
do so in terms of Section 293 Cr.P.C. In any case, the opinion of
Rup Singh as of today is of little use to the accused for the
reasons stated above and since it is both inconclusive and
unsupported by any reasoning whatsoever and, therefore, cannot
appeal to the judicial mind of this Court. Similar is the case with
the expert opinion of PW-95 which is again inconclusive. There is no
evidence on record to suggest that PW-95 gave an opinion to oblige
the prosecution. On the contrary, his response to the Court question
reveals that he was extremely confused as to the issue which had to
be addressed by him in the capacity of an expert. In the concluding
part of his testimony he reaffirms the opinion given by him which is
that without test firing the empties from the weapon of offence no
conclusive opinion can be given.</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">72)
It is pertinent to note that the testimony of the experts i.e., Rup
Singh exhibited as Ex.PW-89/DB and PW-95 Prem Sagar Minocha exhibited
as Wx PW-95/C-1 is inconclusive. The expert PW-95 Prem Sagar Minocha
has stated in his report that it is only on receiving the weapon of
offence that a conclusive opinion as to whether the two empties
(cartridge cases) found at the spot were fired from the same weapon
or from two different weapons could be given.</span></span></div>
<ol start="73">
<li><div align="JUSTIFY">
The defence seeks
to re<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ply
upon the testimony of PW- 2 with regard to the two gun theory put
forward. In this regard, the defence seeks to corroborate the said
part of PW-2's testimony with the testimony of the two ballistic
experts. It has also been contended by the defence that the
testimony of a hostile witness must be corroborated by the other
reliable evidence on record in order to be admissible. The law is
very clear that where a witness for the prosecution turns hostile,
the Court may rely upon so much of the testimony, which supports the
case of the prosecution and is corroborated by other evidence. PW-
2's testimony</span></span> as regards the
identity of the person shooting, is certainly not corroborated by
the testimony of the experts since both the experts have given
opinions which cannot qualify as conclusive opinion of experts.</div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-size: medium;"><b>Role
of Public Prosecutor and his duty of disclosure:</b></span></span>
74) It was argued by Mr. Ram Jethmalani, learned senior counsel for
the appellant-Manu Sharma that the prosecutor had suppressed vital
evidence relating to the laboratory reports which were useful for
the defence in order to establish the innocence of the accused.
Learned senior counsel further argued that the prosecutor had not
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">complied
with his duty thus violating fair trial and vitiating the trial
itself.</span></span></div>
</li>
</ol>
<ol start="75">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is thus important for us to address the role of a prosecutor,
disclosure requirements if placed by the prosecutor and the role of
a judge in a criminal trial.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">76)
A public prosecutor is appointed under Section 24 of the Code of
Criminal Procedure. Thus, Public Prosecutor is a statutory office of
high regard. This Court has observed the role of a prosecutor
in </span></span><a href="http://www.indiankanoon.org/doc/385118/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Shiv
Kumar v. Hukam Chand and Anr.,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1999)
7 SCC 467 as follows: "13. From the scheme of the Code the
legislative intention is manifestly clear that prosecution in a
Sessions Court cannot be conducted by any one other than the Public
Prosecutor. The legislature reminds the State that the policy must
strictly conform to fairness in the trial of an accused in a
Sessions Court. A Public Prosecutor is not expected to show a thirst
to reach the case in the conviction of the accused somehow or the
other irrespective of the true facts involved in the case. The
expected attitude of the Public Prosecutor while conducting
prosecution must be couched in fairness not only to the Court and to
the investigating agencies but to the accused as well. If an accused
is entitled to any legitimate benefit during trial the Public
Prosecutor should not scuttle/conceal it. On the contrary, it is the
duty of the Public Prosecutor to winch it to the force and make it
available to the accused. Even if the defence counsel overlooked it,
Public Prosecutor has the added responsibility to bring it to the
notice of the Court if it comes to his knowledge, A private counsel,
if allowed frees hand to conduct prosecution would focus on bringing
the case to conviction even if it is not a fit case to be so
convicted. That is the reason why Parliament applied a bridle on him
and subjected his role strictly to the instructions given by the
Public Prosecutor.”</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">This
Court has also held that the prosecutor does not represent the
investigation agencies, but the State. This Court in </span></span><a href="http://www.indiankanoon.org/doc/1275754/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Hitendra
Vishnu Thakur and Others v. State of Maharashtra and Others,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(1994)
4 SCC 602 held: "22. ... A public prosecutor is an important
officer of the State Govt. and is appointed by the State under the
CrPC. He is not a part of the investigating agency. He is an
independent statutory authority. The public prosecutor is expected to
independently apply his mind to the request of the investigating
agency before submitting a report to the court for extension of time
with a view to enable the investigating agency to complete the
investigation. He is not merely a post office or a forwarding agency.
A public prosecutor may or may not agree with the reasons given by
the investigating officer for seeking extension of time and may find
that the investigation had not progressed in the proper manner or
that there has been unnecessary, deliberate or avoidable delay in
completing the investigation" Therefore, a public prosecutor
has wider set of duties than to merely ensure that the accused is
punished, the duties of ensuring fair play in the proceedings, all
relevant facts are brought before the court in order for the
determination of truth and justice for all the parties including the
victims. It must be noted that these duties do not allow the
prosecutor to be lax in any of his duties as against the accused.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">77)
It is also important to note the active role which is to be played by
a court in a criminal trial. The court must ensure that the
prosecutor is doing his duties to the utmost level of efficiency and
fair play. This Court, in </span></span><a href="http://www.indiankanoon.org/doc/105430/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Zahira
Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors.,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2004)
4 SCC 158, has noted the daunting task of a court in a criminal trial
while noting the most pertinent provisions of the law. It is useful
to reproduce the passage in full:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"43.
The Courts have to take a participatory role in a trial. They are not
expected to be tape recorders to record whatever is being stated by
the witnesses. Section 311 of the Code and Section 165 of the
Evidence Act confer vast and wide powers on Presiding Officers of
Court to elicit all necessary materials by playing an active role in
the evidence collecting process. They have to monitor the proceedings
in aid of justice in a manner that something, which is not relevant,
is not unnecessarily brought into record. Even if the prosecutor is
remiss in some ways, it can control the proceedings effectively so
that ultimate objective i.e. truth is arrived at. This becomes more
necessary the Court has reasons to believe that the prosecuting
agency or the prosecutor is not acting in the requisite manner. The
Court cannot afford to be wishfully or pretend to be blissfully
ignorant or oblivious to such serious pitfalls or dereliction of duty
on the part of the prosecuting agency. The prosecutor who does not
act fairly and acts more like a counsel for the defence is a
liability to the fair judicial system, and Courts could not also play
into the hands of such prosecuting agency showing indifference or
adopting an attitude of total aloofness.</span></span></div>
<div align="JUSTIFY">
44. The power of the
Court under Section 165 of the Evidence Act is in a way complementary
to its power under Section 311 of the Code. The section consists of
two parts i.e. (i) giving a discretion to <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">the
Court to examine the witness at any stage and (ii) the mandatory
portion which compels the Courts to examine a witness if his evidence
appears to be essential to the just decision of the Court. Though the
discretion given to the Court is very wide, the very width requires a
corresponding caution. In Mohan Lal v. Union of India,this Court has
observed, while considering the scope and ambit of Section 311, that
the very usage of the word such as, "any Court"
"at any stage", or "any enquiry or trial
or other proceedings" "any person" and
"any such person" clearly spells out that the
Section has expressed in the widest possible terms and do not limit
the discretion of the Court in any way. However, as noted above, the
very width requires a corresponding caution that the discretionary
powers should be invoked as the exigencies of justice require and
exercised judicially with circumspection and consistently with the
provisions of the Code. The second part of the section does not allow
any discretion but obligates and binds the Court to take necessary
steps if the fresh evidence</span></span> to be
obtained is essential to the just decision of the case - 'essential',
to an active and alert mind and not to one which is bent to abandon
or abdicate. Object of the Section is to enable the court to arrive
at the truth irrespective of the fact that the prosecution or the
defence has failed to produce some evidence which is necessary for a
just and proper disposal of the case. The power is exercised and the
evidence is examined neither to help the prosecution nor the defence,
if the Court feels that there is necessity to act in terms of Section
311 but only to subserve the cause of justice and public interest. It
is done with an object of getting the evidence in aid of a just
decision and to upheld the truth.</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">45.
It is not that in every case where the witness who had given evidence
before Court wants to change his mind and is prepared to speak
differently, that the Court concerned should readily accede to such
request by lending its assistance. If the witness who deposed one way
earlier comes before the appellate Court with a prayer that he is
prepared to give evidence which is materially different from what he
has given earlier at the trial with the reasons for the earlier
lapse, the Court can consider the genuineness of the prayer in the
context as to whether the party concerned had a fair opportunity to
speak the truth earlier and in an appropriate case accept it. It is
not that the power is to be exercised in a routine manner, but being
an exception to the ordinary rule of disposal of appeal on the basis
of records received in exceptional cases or extraordinary situation
the Court can neither feel powerless nor abdicate its duty to arrive
at the truth and satisfy the ends of justice. The Court can certainly
be guided by the metaphor, separate the grain from the chaff, and in
a case which has telltale imprint of reasonableness and genuineness
in the prayer, the same has to be accepted, at least to consider the
worth, credibility and the acceptability of the same on merits of the
material sought to be brought in.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">46.
Ultimately, as noted above, ad nauseam the duty of the Court is to
arrive at the truth and subserve the ends of justice. Section 311 of
the Code does not confer any party any right to examine,
cross-examine and re-examine any witness. This is a power given to
the Court not to be merely exercised at the bidding of any one
party/person but the powers conferred and discretion vested are to
prevent any irretrievable or immeasurable damage to the cause of
society, public interest and miscarriage of justice. Recourse may be
had by Courts to power under this section only for the purpose of
discovering relevant facts or obtaining proper proof of such facts as
are necessary to arrive at a justice decision in the case.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">47.
Section 391 of the Code is another salutary provision which clothes
the Courts with the power of effectively decide an appeal. Though
Section 386 envisages the normal and ordinary manner and method of
disposal of an appeal, yet it does not and cannot be said to
exhaustively enumerate the modes by which alone the Court can deal
with an appeal. Section 391 is one such exception to the ordinary
rule and if the appellate Court considers additional evidence to be
necessary, the provisions in Section 386 and Section 391 have to be
harmoniously considered to enable the appeal to be considered and
disposed of also in the light of the additional evidence as well. For
this purpose it is open to the appellate Court to call for further
evidence before the appeal is disposed of. The appellate Court can
direct the taking up of further evidence in support of the
prosecution; a fortiori it is open to the court to direct that the
accused persons may also be given a chance of adducing further
evidence. Section 391 is in the nature of an exception to the general
rule and the powers under it must also be exercised with great care,
specially on behalf of the prosecution lest the admission of
additional evidence for the prosecution operates in a manner
prejudicial to the defence of the accused. The primary object of
Section 391 is the prevention of guilty man's escape through some
careless or ignorant proceedings before a Court or vindication of an
innocent person wrongfully accused. Where the court through some
carelessness or ignorance has omitted to record the circumstances
essential to elucidation of truth, the exercise of powers under
Section 391 is desirable.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">48.
The legislature intent in enacting Section 391 appears to be the
empowerment of the appellate court to see that justice is done
between the prosecutor and the persons prosecuted and if the
appellate Court finds that certain evidence is necessary in order to
enable it to give a correct and proper findings, it would be
justified in taking action under Section 391.</span></span></div>
<ol start="49">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">There
is no restriction in the wording of Section 391 either as to the
nature of the evidence or that it is to be taken for the prosecution
only or that the provisions of the Section are only to be invoked
when formal proof for the prosecution is necessary. If the appellate
Court thinks that it is necessary in the interest of justice to take
additional evidence it shall do so. There is nothing in the
provision limiting it to cases where there has been merely some
formal defect. The matter is one of the discretion of the appellate
Court. <span style="color: red;"><b>As re-iterated supra the ends of
justice are not satisfied only when the accused in a criminal case
is acquitted. The community acting through the State and the public
prosecutor is also entitled to justice. The cause of the community
deserves equal treatment at the hands of the Court in the discharge
of its judicial functions.”</b></span></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"> <span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">78)
The appellants have placed heavy reliance on the position in England
to argue that there is a wide duty of disclosure on the public
prosecutor. It was argued that any non-disclosure of evidence,
whether or not it is relied upon by the prosecution, must be made
available to the defense. In the absence of this, it was argued,
there would be a violation of the right to fair trial.</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">79)
In the light of this argument, let us examine the exact nature of
the duty of disclosure on the public prosecutor in ordinary cases of
criminal trial. The Cr.P.C. imposes a statutory obligation on the
public prosecutor to disclose certain evidence to the defense. This
is brought out by sections 207 and 208 as follows:</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"207.
Supply to the accused of copy of police report and other documents.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
any case where the proceeding has been instituted on a police report,
the Magistrate shall without delay furnish to the accused, free of
cost, a copy of each of the following. (i) The police report;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(ii)
The first information report recorded under section 154: (iii) The
statements recorded under sub-section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding there from any part in regard to which a request for such
exclusion has been made by the police officer under sub- section (6)
of section 173. (iv) The confessions and statements, if any, recorded
under section 164;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(v)
Any other document or relevant extract thereof forwarded to the
Magistrate with the police report under sub-section (5) of section
173:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Provided
that the Magistrate may, after perusing any such part of a statement
as is referred to in clause (iii) and considering the reasons given
by the police officer for the request, direct that a copy of that
part of the statement or of such portion thereof as the Magistrate
thinks proper, shall be furnished to the accused:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Provided
further that if the Magistrate is satisfied that any document
referred to in Clause (v) is Voluminous, he shall, instead of
furnishing the accused with a copy thereof', direct that he will only
be allowed to inspect it either personally or through pleader in
court."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"208.
Supply of copies of statements and documents to accused in other
cases triable by court of Session. Where, in a case instituted
otherwise than on a police report, it appears to the Magistrate
issuing process under section 204 that the offence is triable
exclusively by the Court of Session, the Magistrate shall without
delay furnish to the accused, free of cost, a copy of each of the
following. (i) The statements recorded under section 200 or section
202, or all persons examined by the Magistrate; (ii) The statements
and confessions, if any, recorded under section 161 or section 164;</span></span></div>
<div align="JUSTIFY">
(<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iii)
Any documents produced before the Magistrate on which the prosecution
proposes to rely:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Provided
that if the Magistrate is satisfied that any such document is
voluminous, he shall, instead of furnishing the accused with a copy
thereof, direct that he will only be allowed to inspect it either
personally or through pleader in court."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"Rule
16 of the Bar Council of India Rules. Rule 16 of the Chapter II, part
VI of the Bar Council of India Rules under the Advocates Act, 1961 is
as under:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16.
An advocate appearing for the prosecution of a criminal trial shall
so conduct the prosecution that it does not lead to conviction of the
innocent. The suppression of material capable of establishing the
innocence of the accused shall be scrupulously avoided.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Therefore,
it is clear that the Code & the Bar Council of India Rules
provide a wide duty of disclosure. But this duty is limited to
evidence on which the prosecutor proposes to place reliance during
the trial. Mr. Ram Jethmalani argued that this duty extends beyond
these provisions, and includes even that evidence which may not have
been used by the prosecutor during the trial. As we have already
mentioned, for this purpose, he relied upon the position in England.</span></span></div>
<ol start="80">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Currently,
the position in England is governed by the Criminal Procedure and
Investigations Act, 1996. Prior to this enactment, the position was
squarely covered by common law. This position comes out primarily in
two cases. In R. v Ward (Judith Theresa) (1993) 2 All E.R. 577,
Court of Appeal held that it was the duty of the prosecution to
ensure fair trial for both the prosecution and the accused. The duty
of disclosure would usually be performed by supplying the copies of
witness statements to the defense and all relevant experiments and
tests must also be disclosed. It was held that the common law duty
to disclose would cover anything which might assist the defense.
Non-compliance with this duty would amount to “irregularity in the
course of the trial” under Section 2(1)(a) of the Criminal Appeal
Act, 1988.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">81)
In R v. Preston & Ors. (1993) 4 All ER 638, on which the
appellants specifically relied upon, dealt with the non- disclosure
of a telephonic conversation in a matter dealing with the
Interception of Communications Act, 1985. The relevant material had
been destroyed in pursuance of Section 6 of the same Act. In appeal,
the defendants essentially argued that the non-disclosure of the
contents of the call to the defense amounted to a material
irregularity. The court held that it is true that the mere fact that
the material was not to be used as evidence did not mean that the
material was worthless, especially, when it might have been of
assistance to the defendant. But at the same time, it was also held
that: "since the purpose of a warrant issued under
s.2(2)(b) of the 1985 Act did not extend to the amassing of evidence
with a view to the prosecution of offenders, and since the
investigating authority was under a duty under s.6 of the Act to
destroy all material obtained by means of an interception as soon as
its retention was no longer necessary for the prevention or
detection of serious crime, the destruction of the documents
obtained from the interception and their consequent unavailability
for disclosure could not be relied upon by Defendants as a material
irregularity in the course of their trial".</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Thus
the position under common law is clear, i.e. subject to exceptions
like sensitive information and public interest immunity, the
prosecution should disclose any material which might be exculpatory
to the defence.</span></span></div>
<ol start="82">
<li><div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>In
the Indian Criminal jurisprudence, the accused is placed in a
somewhat advantageous position than under different jurisprudence of
some of the countries in the world. The criminal justice
administration system in India places human rights and dignity for
human life at a much higher pedestal. In our jurisprudence an
accused is presumed to be innocent till proved guilty, the alleged
accused is entitled to fairness and true investigation and fair
trial and the prosecution is expected to play balanced role in the
trial of a crime. The investigation should be judicious, fair,
transparent and expeditious to ensure compliance to the basic rule
of law. These are the fundamental canons of our criminal
jurisprudence and they are quite in conformity with the
constitutional mandate contained in Articles 20 and 21 of the
Constitution of India. A person is entitled to be tried according to
the law in force at the time of commission of offence. A person
could not be punished for the same offence twice and most
significantly cannot be compelled to be a witness against himself
and he cannot be deprived of his personal liberty except according
to the procedure established by law. The law in relation to
investigation of offences and rights of an accused, in our country,
has developed with the passage of time. On the one hand, power is
vested in the investigating officer to conduct the investigation
freely and transparently. Even the Courts do not normally have the
right to interfere in the investigation. It exclusively falls in the
domain of the investigating agency. In exceptional cases the High
Courts have monitored the investigation but again within a very
limited scope. There, on the other a duty is cast upon the
prosecutor to ensure that rights of an accused are not infringed and
he gets a fair chance to put forward his defence so as to ensure
that a guilty does not go scot free while an innocent is not
punished. Even in the might of the State the rights of an accused
cannot be undermined, he must be tried in consonance with the
provisions of the constitutional mandate. The cumulative effect of
this constitutional philosophy is that both the Courts and the
investigating agency should operate in their own independent fields
while ensuring adherence to basic rule of law. It is not only the
responsibility of the investigating agency but as well that of the
Courts to ensure that investigation is fair and does not in any way
hamper the freedom of an individual except in accordance with law.
Equally enforceable canon of criminal law is that the high
responsibility lies upon the investigating agency not to conduct an
investigation in tainted and unfair manner. The investigation should
not prima facie be indicative of bias mind and every effort should
be made to bring the guilty to law as nobody stands above law de
hors his position and influence in the society. In the case
of </b></span></span></span><a href="http://www.indiankanoon.org/doc/433426/">Kashmeri
Dev v. Delhi Administration and Anrs.</a><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b> [JT
1988 (2) SC 293] it has been held that the record of investigation
should not show that efforts are being made to protect and shield
the guilty even where they are police officers and are alleged to
have committed a barbaric offence/crime. The Courts have even
declined to accept the report submitted by the investigating officer
where it is glaringly unfair and offends basic canons of criminal
investigation and jurisprudence. Contra veritatem lex nunquam
aliquid permittit: implies a duty on the Court to accept and accord
its approval only to a report which is result of faithful and
fruitful investigation. The Court is not to accept the report which
is contra legem but to conduct judicious and fair investigation and
submit a report in accordance with Section 173 of the Code which
places a burden and obligation on the State Administration. The aim
of criminal justice is two-fold. Severely punishing and really or
sufficiently preventing the crime. Both these objects can be
achieved only by fair investigation into the commission of crime,
sincerely proving the case of the prosecution before the Court and
the guilty is punished in accordance with law.</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">83)
Historically but consistently the view of this Court has been that
an investigation must be fair and effective, must proceed in proper
direction in consonance with the ingredients of the offence and not
in haphazard manner. In some cases besides investigation being
effective the accused may have to prove miscarriage of justice but
once it is shown the accused would be entitled to definite benefit
in accordance with law. The investigation should be conducted in a
manner so as to draw a just balance between citizen's right under
Articles 19 and 21 and expensive power of the police to make
investigation. These well established principles have been stated by
this Court in the case of </span></span><a href="http://www.indiankanoon.org/doc/1090962/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Sasi
Thomas vs. State &</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">amp;
Ors. [(2007) 2 SCC (Criminal) 72], </span></span><a href="http://www.indiankanoon.org/doc/190260/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
Inspector of Police vs. Surya Sankaram Karri</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> [(2006)
3 SCC (Criminal) 225 and </span></span><a href="http://www.indiankanoon.org/doc/1974324/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">T.T.
Antony vs. State of Kerala</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> [(2001)
6 SCC 181. In 151</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<a href="http://www.indiankanoon.org/doc/1041213/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Nirmal
Singh Kahlon vs. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> [AIR
2009 SC 984] this Court specifically stated that a concept of fair
investigation and fair trial are concomitant to preservation of
fundamental right of accused under Article 21 of the Constitution of
India. We have referred to this concept of judicious and fair
investigation as the right of the accused to fair defence emerges
from this concept itself. The accused is not subjected to harassment,
his right to defence is not unduly hampered and what he is entitled
to received in accordance with law is not denied to him contrary to
law.</span></span></div>
<div align="JUSTIFY">
84) <span style="color: magenta;"><b>It
is pertinent to note here that one of the established canons of just,
fair and transparent investigation is the right of defence of an
accused.</b></span> An accused may be entitled to ask for certain
documents during the course of enquiry/trial by the Court. Let us
examine the extent of this right of an accused in light of the
statutory provisions and the manner in which the law has developed
under the criminal jurisprudence. To understand this concept in its
right perspective we must notice the scheme under the provisions of
Section 170 to 173 of the Criminal Procedure Code. All these
provisions fall under Chapter XII of the Code which deals with,
information of the police and their powers to investigate. The power
of the police to investigate freely and fairly is well recognized and
codified in law. In terms of Section 170, the investigating officer
when satisfied that sufficient evidence or reasonable grounds exist
he shall forward accused under custody to a Magistrate along with
such weapons or articles which may be necessary to be produced before
the Court. Section 172 of the Code has a meaningful bearing on the
entire investigation by a police officer. It is mandatory for him to
maintain a diary under this chapter where he shall enter day-by-day
proceedings in the investigation carried out by him. He is expected
to mention time of events and his departure, reporting back and
closing of the investigation, the place/places he visited and the
statements he recorded during investigation. The statement of the
witness is recorded during the investigation under Section 161 shall
be inserted in that diary. A Criminal Court is empowered under
Section 172 (2) to send for the diaries and they could be used by the
Court but not as evidence in the case but to aid it in such inquiry
for trial. However, Sub-section 3 of the same Section provides that
neither the accused nor his agents shall be entitled to call for such
diaries, nor they are entitled to see them but it is only where the
police officer who makes them to refresh his memory or the Court uses
them for the purposes of contradicting such police officers in terms
of Section 172 than Sections 161 or 145 provisions would apply.
Section 173 commands the investigating agency to complete the
investigation expeditiously without unnecessary delay and when such
an investigation is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of
offence on a police report with the details in the form as may be
prescribed by the State Government and provide the information
required under this Section. Provisions of Section 173 (5)
contemplates and make it obligatory upon the investigating officer
where the provisions of Section 170 apply to forward to the
Magistrate along with his report, all documents or relevant extracts
thereof on which the prosecution proposes to rely other than those
already sent to the Magistrate during investigation in terms of
Section 170 (2) of the Code. During investigation the statement
recorded under Section 161 of all the persons whom the prosecution
proposes to examine as witnesses shall also be sent to the
Magistrate. Some element of discretion is vested with the police
officer under Section 173 (6) where he is of the opinion that any
such statement is not relevant to the subject matter of the
proceedings or its disclosure to accused is not essential in the
interest of justice and is expedient in the public interest he shall
indicate that part of the statement refusing a Magistrate that part
from the copies to be granted to the accused and stating his reason
for making such a request. Sub- Section 7 of the same Section is
indicative of another discretion given to the police officer under
law that where he finds it convenient, he may fur<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">nish
the copy of documents refer to Sub-section 5 of the Section. Section
173 (8) empowers an investigating officer to submit a further report
if he is able to correct further evidence. Once this report in terms
of Section 173 is received the court shall proceed with the trial of
the case in accordance with law.</span></span></div>
<ol start="85">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">What
is the significance of requiring an investigating officer/officer in
charge of a police station to maintain a diary? The purpose and the
object seems to be quite clear that there should be fairness in
investigation, transparency and a record should be maintained to
ensure a proper investigation.</span></span></div>
</li>
<li><div align="JUSTIFY">
<span style="color: black;">
<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">In
the case of </span></span></span><a href="http://www.indiankanoon.org/doc/837762/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Habeeb
Mohammad v. State of Hyderabad, A.I.R.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1954
S.C. 51, this Court stated the principle of law that the criminal
court may send for the police diaries of a case under inquiry/trial
in such court and may use such diaries, not as evidence in the case
but to aid in such inquiry or trial. It seems to the Court that the
learned Judge in error in making use of the police diaries at all in
his judgment and in seeking confirmation of his opinion on the
question of appreciation of evidence from statements contained in
those diaries. The proper use of diaries he could make in terms of
Section 172 Cr.P.C. by elucidating points which need clarification.
The Court in this case was primarily concerned with the argument
that diaries were not produced.</span></span></div>
</li>
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Further
in the case of </span></span><a href="http://www.indiankanoon.org/doc/1122133/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Khatri
v. State of Bihar A.I.R.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1981
SC 1068 though in a writ petition this Court was concerned with a
question whether the documents called for by the Court vide its
Order dated 16th February, 1981 liable to be produced by the State
or production of those documents is barred under Sections 162 &
172 of the Code and the petitioners in those cases are not entitled
to see such documents. The Court rejecting the contention held as
under: "It is common ground that Shri L.V. Singh was
directed by the State Government under Section 3 of the Indian
Police Act, 1861 to investigate into twenty four cases of blinding
of under-trial prisoners where allegations were made by the
under-trial prisoners and First Information Reports were lodged that
they were blinded by the police officers whilst in police custody,
Shri L.V. Singh through his associates carried out this
investigation and submitted his reports in the discharge of the
official duty entrusted to him by the State Government. These
reports clearly relate to the issue as to how, in what manner and by
whom the twenty-four under-trial prisoners were blinded, for that is
the matter which Shri L.V. Singh was directed by the State
Government to investigate. If that be so, it is difficult to see how
the State can resist the production of these reports and their use
as evidence of these reports and their use as evidence in the
present proceeding. These reports are clearly relevant under Section
35 of the Indian Evidence Act." 88) In the case of</span></span><a href="http://www.indiankanoon.org/doc/275065/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Malkiat
Singh and Ors. v. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1991)
4 SCC 341 this Court reiterated the principle that use of entries in
the case diary is really of no use and is of benefit to the accused
but unless the investigating officer or the Court uses the entries
in the case where either to refresh the memory or contradicting the
investigating officer as previous statement under Section 161 in
terms of Section 145 of the Evidence Act the entries can be used by
the accused as evidence. The free use thereof is not permissible
under defence.</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">89)
In case </span></span><a href="http://www.indiankanoon.org/doc/1207114/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Mukund
Lal v. Union of India A.I.R.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1989
SC 144, this Court clearly stated the denial to the accused of an
unfettered right to make roving inspection of the entries in the case
diary regardless of whether these entries are used by the police
officer concerned to refresh his memory or regardless of the fact
whether the Court has used these entries for the purpose of
contradicting such police officer cannot be said to be unreasonable.
This was treated to be a very important safeguard as the Legislature
has reposed complete trust in the Court which is conducting the
inquiry or the trial and has empowered the Court to call for these
diaries therefore the right of the accused is not unfettered but in
fact is limited as noticed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">90)
Usefully, reference can also be made to the judgment of this Court in
the case of </span></span><a href="http://www.indiankanoon.org/doc/1239742/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Shamshul
Kanwar v. State of U.P. A.I.R.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1995
SC 1748 wherein this Court while issuing direction for requiring the
State to make a general hearing in terms of Section 172 of the Code
clearly stated that it was mandatory for the police officer/in charge
to maintain the diary in terms of the said provision and there is
jurisdiction in the criminal code to call such diaries and make use
of them not as evidence but only to aid such inquiry or trial. It is
generally confined to utilize the information therein as foundation
for the question put to the witnesses, particularly, to the police
witnesses where the police officer has used the entries to refresh
his memory or if the Court uses them for the purpose of contradicting
such police officer then provisions of Section 161, or 145, would be
applicable. The right of the accused to cross-examine the police
officer with reference to the entries in the General Diary is very
much limited in extent and even that limited scope arises only when
the Court uses the entries for the aforestated purposes. The
investigating officer has a right to refresh his memories and can
refer to the general diary. The Court has power to summon the case
diary in exercise of its powers and for the purposes stated. </span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
accused is vested with the power of making use of the statements
recorded during investigation for the purposes of contradiction and
copies thereof the accused is entitled to see in terms of Section 2
& 7 of the </b></span></span></span><a href="http://www.indiankanoon.org/doc/1435252/">Code
</a><a href="http://www.indiankanoon.org/doc/1435252/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">
State of Kerala v. Babu</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1999)
4 SCC 621 and </span></span><a href="http://www.indiankanoon.org/doc/339710/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Karnataka vs. K. Yarappa Reddy</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(1999)
8 SCC 715.</span></span></div>
<ol start="91">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="color: #004586;"><b>As
is evident from the consistently stated principles of law, that
right of the accused in relation to the police file and the general
diary is a very limited one and is controlled by the provisions
afore-referred. </b></span>But still the accused has been provided
with definite rights under the provisions of the Code and the
constitutional mandate to face the charge against him by a fair
investigation and trial. Fairness in both these actions essentially
needs to be adhered to. Under Section 170, the documents during
investigation are required to be forwarded to the Magistrate, while
in terms of Section 173 (5) all documents or relevant extracts and
the statement recorded under Section 161 have to be forwarded to the
Magistrate. The investigating officer is entitled to collect all the
material, what in his wisdom is required for proving the guilt of
the offender. He can record statement in terms of Section 161 and
his power to investigate the matter is a very wide one, which is
regulated by the provisions of the Code. <span style="color: #00cccc;"><b>The
statement recorded under Section 161 is not evidence per se under
Section 162 of the Code. The right of the accused to receive the
documents/statements submitted before the Court is absolute and it
must be adhered to by the prosecution and the Court must ensure
supply of documents/statements to the accused in accordance with
law</b></span>. Under proviso to Section 162 (1) the accused has a
statutory right of confronting the witnesses with the statements
recorded under Section 161 of the Code thus indivisible. Further,
Section 91 empowers the Court to summon production of any document
or thing which the Court considers necessary or desirable for the
purposes of any investigation, inquiry, trial or another proceeding
under the provisions of the Code. Where Section 91 read with Section
243 says that if the accused is called upon to enter his defence and
produce his evidence there he has also been given the right to apply
to the Court for issuance of process for compelling the attendance
of any witness for the purpose of examination, cross-examination or
the production of any document or other thing for which the Court
has to pass a reasoned order. The liberty of an accused cannot be
interfered with except under due process of law. The expression `due
process of law' shall deem to include fairness in trial. The Court
gives a right to the accused to receive all documents and statements
as well as to move an application for production of any record or
witness in support of his case. This constitutional mandate and
statutory rights given to the accused places an implied obligation
upon the prosecution (prosecution and the prosecutor) to make fair
disclosure. The concept of fair disclosure would take in its ambit
furnishing of a document which the prosecution relies upon whether
filed in Court or not. That document should essentially be furnished
to the accused and even in the cases where during investigation a
document is bona fide obtained by the investigating agency and in
the opinion of the prosecutor is relevant and would help in arriving
at the truth, that document should also be disclosed to the accused.
The role and obligation of the prosecutor particularly in relation
to disclosure cannot be equated under our law to that prevalent
under the English System as afore-referred. But at the same time,
the demand for a fair trial cannot be ignored. It may be of
different consequences where a document which has been obtained
suspiciously, fraudulently or by causing undue advantage to the
accused during investigation such document could be denied in the
discretion of the prosecutor to the accused whether the prosecution
relies or not upon such documents, however in other cases the
obligation to disclose would be more certain. As already noticed the
provisions of Section 207 has a material bearing on this subject and
makes an interesting reading. This provision not only require or
mandate that the Court without delay and free of cost should furnish
to the accused copies of the police report, first information
report, statement, confessional statement of the persons recorded
under Section 161 whom the prosecution wishes to examine as
witnesses, of course, excluding any part of a statement or document
as contemplated under Section 173 (6) of the Code, any other
document or relevant extract thereof which has been submitted to the
Magistrate by the police under Sub Section 5 of Section 173. In
contradistinction to the provisions of Section 173, where the
Legislature has used the expression `documents on which the
prosecution relies' are not used under Section 207 of the Code.
Therefore, the provisions of Section 207 of the Code will have to be
given liberal and relevant meaning so as to achieve its object. Not
only this, the documents submitted to the Magistrate along with the
report under Section 173 (5) would deem to include the documents
which have to be sent to the Magistrate during the course of
investigation as per the requirement of Section 170 (2) of the Code.</span></span></div>
</li>
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><b>The
right of the accused with regard to disclosure of documents is a
limited right but is codified and is the very foundation of a fair
investigation and trial. On such matters, the accused cannot claim
an indefeasible legal right to claim every document of the police
file or even the portions which are permitted to be excluded from
the documents annexed to the report under Section 173(2) as per
orders of the Court. </b>But certain rights of the accused flow both
from the codified law as well as from equitable concepts of
constitutional jurisdiction, as substantial variation to such
procedure would frustrate the very basis of a fair trial. To claim
documents within the purview of scope of Sections 207, 243 read with
the provisions of Section 173 in its entirety and power of the Court
under Section 91 of the Code to summon documents signifies and
provides precepts which will govern the right of the accused to
claim copies of the statement and documents which the prosecution
has collected during investigation and upon which they rely. It will
be difficult for the Court to say that the accused has no right to
claim copies of the documents or request the Court for production of
a document which is part of the general diary subject to satisfying
the basic ingredients of law stated therein. A document which has
been obtained bonafidely and has bearing on the case of the
prosecution and in the opinion of the public prosecutor, the same
should be disclosed to the accused in the interest of justice and
fair investigation and trial should be furnished to the accused.
Then that document should be disclosed to the accused giving him
chance of fair defence, particularly when non-production or
disclosure of such a document would affect administration of
criminal justice and the defence of the accused prejudicially. The
concept of disclosure and duties of the prosecutor under the English
System cannot, in our opinion, be made applicable to Indian Criminal
Jurisprudence stricto senso at this stage. However, we are of the
considered view that the doctrine of disclosure would have to be
given somewhat expanded application. As far as the present case is
concerned, we have already noticed that no prejudice had been caused
to the right of the accused to fair trial and non- furnishing of the
copy of one of the ballistic reports had not hampered the ends of
justice. Some shadow of doubt upon veracity of the document had also
been created by the prosecution and the prosecution opted not to
rely upon this document. In these circumstances, the right of the
accused to disclosure has not received any set back in the facts and
circumstances of the case. The accused even did not raise this issue
seriously before the Trial Court. Call Details:</span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">93)
The evidence of the telephone calls in the present case is admissible
under Sections 8 and 27 of the Indian Evidence Act. PW-16, Raj Narain
Singh, has deposed that Tel. No. 3782072 is installed at 15, BR Mehta
Lane in the name of O.P. Yadav - Ex.PW-16/C. Print out for the period
25.04.1999 to 11.05.1999 is Ex. PW-16/C-1. The evidence of PW-19
further proved that Tel. No. 4642868 was installed at Majid
Chakkarawali, Mathura Road vide Ex. PW 16/D and the print out for the
period 03.05.1999 to 05.05.1999 is Ex. PW-16/D-1. PW-17, Mohd. Jaffar
stated that Tel. No. 4642868 was installed at his PCO. Phone calls
were made to USA from his STD Booth on 04.05.1999. Photocopy of calls
made is Ex. PW-17/A. PW-16 also proved that Tel. No. 3793628 was
shifted to 23, Safdarjung (Ex. PW-16/E) and print out for the period
03.04.1999 to 31.05.1999 is Ex. PW-16/E-1. It is further in evidence
of PW-45, Sanjay Garg, that Tel. Nos. 660550, 660499, 705692, 741001,
741002 are installed in the various premises of Piccadilly and the
same is Ex. PW- 45/B.</span></span></div>
<ol start="94">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
details of the phone numbers subscribed to Piccadily group are Ex.
PW 45/C and the bill printouts are 45/C were received by the police
vide Ex. PW 45/D. PW- 66, Maj. AR. Satish has deposed that Mobile
No. 9811100237, which was in the name of Amardeep Singh Gill and the
print out of the same is exhibited PW-66/B. He also deposed that
Mobile No. 9811096893 was being purchased against a cash card. The
print out of the calls for the month of April, 1999 are in Ex.
PW-66/D. He further proved that Mobile No. 9811068169 stood in the
name of Alok Khanna and its print out is Ex. PW 66/C. 95) PW-32, Ved
Prakash Madan proved that Tel. No. 521491 was intalled at PCO,
Ambala and its print out is Ex. PW-32/B. PW-33, PV. Mathew has
corroborated the version of PW-32 and has proved that the calls were
made to USA. PW-15, Sumitabh Bhatnagar stated that Tata Sierra No.
HR-26N4348 and Tata Sierra MP-04-2634 were allotted to Amardeep
Singh Gill and Alok Khanna respectively. Similarly Mobile Nos.
981110237 and 9811068169 were also allotted to Amardeep Singh Gill
and Alok Khanna respectively. PW-51, Sh. Rajiv Talwar has stated
that Te. No. 660500 was installed in the office of Harvinder Chopra.
PW-39, Mansvi Mittal STD/PCO Booth Inderlok-Mittal Communication
Tel. No. 5157498 is installed at this booth. Calls made remain in
memory for a period of one month. Police has seized record of
04.05.1999 and 05.05.1999 in respect of Tel. No. 0017184768403 to
which calls were made. Figure 00 is international access code and
171 is the code call to be made to USA. 001 is also code call for
America. Print out dated 04.05.1999 is Ex. PW-39/1 and dated
05.05.1999 is Ex. PW-39/2 to 7, Seizure Memo dated 27.05.1999 is Ex.
39/A where entries Ex. PW-39/3-7 were made was present. PW-40, Ayub
Khan, PCO/STD/ISD Booth Okhla Phase II Tel. No. 6924575 was
installed on 10.05.1999. He also furnished similar details. Print
out slips were seized vide Ex. PW-40.A and print out is Ex.
PW-40/1-3 respectively. The testimony of PW 85, SI Pankaj Malik also
corroborates the version of the aforesaid witnesses.</span></span></div>
</li>
<li><div align="JUSTIFY">
The above phone
call details show that the accused were in touch with each other
which resulted in destructio<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">n
of evidence and harboring. Thus the finding of the trial Court that
in the absence of what they stated to each other is of no help to
the prosecution is an incorrect appreciation of evidence on record.
A close association is a very important piece of evidence in the
case of circumstantial evidence. The evidence of phone calls is a
very relevant and admissible piec</span></span>e
of evidence. The details of the calls made by the various accused to
one another are available in Ex. PW-66/B, PW-66/D and PW-66/C.</div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: large;"><b>Effect
of leading question by Public Prosecutor:</b></span></span></span></div>
<ol start="97">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Mr.
Ram Jethmalani, learned senior counsel next contended that the
Public Prosecutor in the present case had put a leading question to
Malini Ramani regarding identification of the accused Manu Sharma.
We verified the said question. The question put by the Public
Prosecutor, was at best clarificatory, and by no stretch of
imagination can be termed as a leading question favouring/eliciting
an answer favouring the prosecution. The evidence of Ms. Malini
Ramani two paragraphs prior to the leading question and two
paragraphs thereafter, if read in conjunction with each other
clarifies the whole scene and sequence of events. Learned senior
counsel has relied upon the judgment in </span></span><a href="http://www.indiankanoon.org/doc/1965090/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Varkey
Joseph vs. State of Kerala,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1993
Supp (3) SCC 745 to support his contention. The said judgment is
clearly distinguishable. On the facts in that case, this Court found
that the prosecutor had put leading questions, without objections by
the defence, to several material and key witnesses regarding the
culpability of the accused. The extent of the leading questions put,
were on the facts of that case found to violate the constitutional
right of a fair trial of the accused. The facts of the present
appeal are wholly different. The petitioner had adequate and
competent legal representation before the trial Court and leading
questions, if any, put by the prosecutor were objected to by the
defence and several questions were disallowed by the trial court.
Furthermore, the finding of guilt of the appellant herein by the
High Court has not been on account of any of the answers elicited to
any such questions. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>It
is not as if every single leading question would invalidate the
trial. The impact of the leading questions, if any, has to be
assessed on the facts of each case.</b></span></span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>Efforts
made to trace Sanjay Mehtani:</b></span></span></span></div>
<ol start="98">
<li><div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
has been contended by the learned senior counsel for the
appellant/Manu Sharma that the Sanjay Mehtani, friend of Malani
Ramani, who was also present at Qutub Colonnade at the scene of
offence was deliberately not examined by the Prosecution. Respondent
has pointed out that Sanjay Mehtani was examined during the course
of investigation and his statement was recorded under Section 161
Cr.P.C. He was also cited as a prosecution witness. During the trial
summons were issued for him and it was learnt that Sanjay Mehtani
had left India and was residing at Hong Kong and as such could not
be examined in the court. Further, it was pointed out that bare
perusal of the trial Court record of the present case will clearly
bring out the fallacy in the said argument of the defence. The
Police while filing the charge-sheet before the Magistrate had
enlisted Sanjay Mehtani's name in the list of witnesses. This fact
clearly shows that the prosecution had the intention to examine
Sanjay Mehtani as their witness. Further, the said witness was
summoned by the Court for examination vide orders dated 28.11.2001,
08.02.2002, 27.11.2003 and 11.12.2003. The said sequence of events
clearly show that the prosecution not only wanted to examine him as
a witness, but tried serving him with the summons many times, but
the same could not be achieved as Sanjay Mehtani had by then shifted
to Hong Kong and was not staying in India. Therefore to contend that
Sanjay Mehtani was deliberately not examined by the Prosecution is
absolutely baseless and not founded on the basis of the record.</span></span></div>
<div align="JUSTIFY">
</div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>The
conduct of Absconding:</b></span></span></span></div>
</li>
</ol>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">99)
From the testimony of PW-20 and PW-24, it is proved beyond reasonable
doubt that accused Sidharth Vashisht @ Manu Sharma after committing
the murder of Jessica Lal fled away from the scene of occurrence. It
is further proved from the testimony of PW-100, PW-101, PW-87 Raman
Lamba, PW-85 and PW-80 that from afternoon of 30.04.1999 search was
made for the black Tata Safari bearing Regn. No. CH-01-W-6535 and for
Sidharth Vashisht @ Manu Sharma, Director of Piccadilly Sugar
Industries at Bhadson, Kurukshetra, Chandigarh, his farmhouse at
Samalkha and Okhla Delhi. It is also proved that even after the
seizure of vehicle on 02.05.1999 the search for accused Sidharth
Vashisht @ Manu Sharma continued and search was made at Piccadilly
Cinema, Piccadilly Hotel, his residence at Chandigarh, PGI Hospital
where his father was subsequently admitted. However, accused Sidharth
Vashisht @ Manu Sharma was not found nor anybody informed his
whereabouts and it is only on 06.05.1999 that accused Sidharth
Vashisht @ Manu Sharma surrendered at Patiala Guest House, Chandigarh
in the presence of Shri Harish Ghai, advocate and Sh. Vinod Dada. The
above evidence of the witnesses clearly establishes beyond reasonable
doubt that accused Manu Sharma absconded after committing the crime
and surrendered on 06.05.1999 after extensive searches were made.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">100)
</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>A
criminal trial is not an enquiry into the conduct of an accused for
any purpose other than to determine whether he is guilty of the
offence charged.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>In
this connection, that piece of conduct can be held to be
incriminatory which has no reasonable explanation except on the
hypothesis that he is guilty. Conduct which destroys the presumption
of innocence can alone be considered as material.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
In this regard, it is useful to refer </span></span><a href="http://www.indiankanoon.org/doc/1813863/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Anant
Chaintaman Lagu vs. State of Bombay AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1960
SC 500:-</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="color: red;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Circumstantial
evidence in this context means a combination of facts creating a
network through which there is no escape for the accused, because the
facts taken as a whole do not admit of any inference but of his
guilt.... this conduct of the accused was so knit together as to make
a network of circumstances pointing only to his guilt......his
methods was his own undoing; because even the long arm of coincidence
could not explain the multitude of circumstances against him, and
they destroyed the presumption of innocence with which law clothed
him.” </span>Thus, it has been proved beyond reasonable doubt that
accused Manu Sharma absconded after the incident which is a very
relevant conduct u/s 8 of Evidence Act.</span></span></span></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<span style="color: black;"> <span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><span style="color: red;"><span style="font-size: medium;"><b>Disclosure
statements of the accused persons and their admissibility u/s 27
Evidence Act:</b></span></span></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">101)
PW-100 SI Sunil Kumar and PW-101 Inspector Surender Kumar Sharma
deposed that on the early morning of 05.05.1999 accused Amardeep
Singh Gill @ Tony Gill was arrested and he made a voluntary
disclosure vide Ex.PW 100/7 that on 29.04.1999 he had a talk with
Alok Khanna over telephone and thereafter a telephone call was
received at about 8.30 p.m. from Sidharth Vashisht @ Manu Sharma. He
has further disclosed that Alok Khanna came to his house in Tata
Sierra car no. MP 04V 2634. He has further disclosed that he and Alok
Khanna went to Qutub Colonnade in Alok Khanna's Tata Sierra bearing
No. MP-04-V-2634. Accused Manu Sharma surrendered on 06.05.1999 at
2.30 p.m. at Patiala Guest House, Chandigarh before Inspr. Raman
Lamba PW-87 and ASI Nirbhay Singh PW-80. After his arrest accused
Manu Sharma had made four disclosure statements. The first was an
oral disclosure made to Inspr. Raman Lamba wherein he said that he
could recover the pistol from Ravinder Sudan at Mani Majra. However,
it was pointed out that the search of the house at Chandigarh was
taken and since the diary containing the address of Ravinder Sudan
could not be found, no recovery could be affected.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"> <span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">102)
On 07.05.1999, he made a disclosure to Inspr. Surender Kumar Sharma
PW-101 which was recorded as Ex. PW 100/12. In the said disclosure,
he disclosed that he was using his younger brother Kartik's Cellphone
No. 9811096893 in making calls to his friends like Tony Gill, Alok
Khanna, Amit Jhingan and others. He also disclosed the phone Nos. of
some of the co-accused and that he handed over his cell bearing No.
9811096893 to Yograj Singh in Panchkula and can recover the same.
Pursuant to the disclosure of Sidharth Vashisht @ Manu Sharma the
mobile phone used by him was recovered from accused Yograj Singh.
Vide Ex.PW 100/23.</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">103)
The third disclosure is Ex. PW 100/Article-1 which was video recorded
on 07.05.1999 itself after the accused was produced before the
Metropolitan Magistrate and copies of which were duly supplied to the
accused during trial. From the disclosure Ex PW 100/Article-1 there
were further discovery of facts admissible under Section 27 of the
Evidence Act. Pursuant to the disclosures of Manu Sharma
investigations were carried out and it was that the accused were in
close contact with each other over phone and accused Manu Sharma had
made number of calls from the house of Vikas Yadav son of DP Yadav to
his house in Chandigarh and to Harvinder Chopra at Piccadilly.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">104)
The fourth disclosure of accused Sidharth Vashisht @ Manu Sharma was
recorded by PW-101 wherein he had disclosed that Ravinder Sudan @
Titu having concealed the pistol, had gone to Manali (HP) where he
met his uncle Shyam Sunder and he very well knew the place where they
concealed the pistol and that he could lead to Manali to recover the
pistol used in the incident. It further came on record that calls
were made to USA to Ravinder Sudan. It may not be out of place to
mention that calls were exchanged between the accused and made to USA
were discovered pursuant to disclosures made by the accused persons.</span></span></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>Test
Identification Parade-Refusal:</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">105)
The witnesses Deepak Bhojwani PW-1, Malini Ramani PW-6, Beena Ramani
PW-20 and George Mailhot PW-24 have clearly proved beyond reasonable
doubt the identification of the accused persons Manu Sharma, Amardeep
Singh Gill, Alok Khanna and Vikas Yadav. PW- 1 Deepak Bhojwani had
met Manu Sharma on the night of 29.04.1999 at Qutub Colonnade when
Manu Sharma introduced himself to Deepak Bhojwani and they were about
to exchange visiting cards when Amardeep Singh Gill @ Tony Gill took
him away towards the cafi. Both Amardeep Singh Gill and Manu Sharma
refused their TIP on 06.05.1999 and 07.05.1999 respectively before
PW-79 Ld. MM Sh. Rajnish Kumar Gupta without citing any credible
reason. Thereafter, photo identification was conducted in which they
were duly identified by Deepak Bhojwani. The said witness has also
clearly identified the two of them in the Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">106)
PW-6, Malini Ramani has categorically stated that she identified Manu
Sharma as the accused in the Police Station. She had seen accused in
the police station on 08.05.1999 and thus the same was after
07.05.1999 when accused Manu Sharma refused his TIP. In cross-
examination, PW-6 states that “During the first five days of May
1999, the interrogation of three of us was very intensive, and
photographs were shown to us of the culprits for identification. It
could be that the photograph of Manu Sharma had been shown to me but
since I was not in good frame of mind and rather disturbed for the
whole week and therefore, I do not remember whether the photograph of
Manu Sharma was shown to me or not on 01.05.1999. It is correct that
between 01.05.1999 to 05.05.1999, I had been shown the paragraph of
Manu Sharma.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Thus
she was not sure about her having been shown the photograph prior to
08.05.1999. PW-6 has nowhere stated in her testimony that photograph
of Manu Sharma were shown to her parents. Moreover, no photographs of
the other three accused were shown to her or her parents of the other
accused i.e. of Vikas Yadav, Amardeep Singh Gill or Alok Khanna as
contended. Further, PW-20 has categorically identified all the four
accused in the witness box and there is no cross examination of PW-20
to the effect that the photographs of the accused were shown only in
the police station. Even, PW-24 has identified accused Manu Sharma in
the court and his testimony also remains unshaken on this aspect.
PW-30 has also clearly identified accused Amardeep Singh Gill and
Vikas Yadav in the court and the photo identification with regard to
them was resorted after Amardeep Singh Gill @ Tony Gill had refused
TIP on 06.05.1999 and Vikas Yadav was granted anticipatory bail. That
the photographs of Vikas Yadav were taken from the Asstt. Registrar,
Ghaziabad Authority RTO, PW 38 on 20.05.1999.</span></span></div>
<div align="JUSTIFY">
107) PW-2 Shyan Munshi
had left for Kolkata and thereafter, photo identification was got
done when SI Sharad Kumar PW 76 went to Kolkata to get the
identification done by picking up from the photographs wherein he
identified the accused Manu Sharma though he refused to sign the
same. However, in the court PW-2 Shyan Munshi refused to recognize
him. In any case, the factum of photo-identification by PW-2 as
witnessed by the concerned Officer is a relevant and an admissible
piece of evidence. In this regard reliance may be placed on, R vs.
McCay (1991) 1 All ER 232. There the accused was identified by the
witness in the presence of the IO who took note of the said fa<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ct,
later the witness could not identify the accused in Court due to
lapse of time, thus the testimony of the IO was relied upon to prove
the said identification. The IO's testimony was upheld as admissible
on the ground that the act of the IO was contemporaneous with the act
of identification by the witn</span></span>ess.</div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">108)
PW-78 SI Sharad Kumar deposed</span></span></div>
<div align="JUSTIFY">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">I
thereafter went to Calcutta. The four photographs X1 to X4 were
identified by Shyan Munshi as those of the accused in my presence.
(Objected to by Sh. R.K. Naseem). I asked Shyan Munshi to sign on the
back of these photos but he refused to do so. Then I gave separate
markings on the back of the photographs X1 to X4 and signed them.
Markings and my signatures at the back of the photographs are at
points A on all the four photographs. I recorded the statement of
Shyan Munshi in this regard. The photocopy of the said statement is
Ex PW2/C which is in my hand and bears my signatures at point A. I
correctly recorded statement of Shyan Munshi and did not add or omit
therefrom on my own. After return from Calcutta, I handed over the
photographs and statement of Shyan Munshi and other documents to SHO
Surender Kumar”.</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">109)
PW-2 Shyan Munshi in this regard stated, "It is correct that
Delhi Police had contacted me in Calcutta at my residence but I do
not remember it was on 19th May, 1999. .... ..It is correct that some
photographs were shown to me by Delhi Police at Calcutta in May, 1999
at my residence"... "Police had shown me the
photograph and asked me if I could identify but I did not identify
any of the culprits. I was asked by the police to sign on the reverse
of those four photographs but I did not sign any such photograph.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">110)
Mr. Jethmalani next contended that identification is inherently
illegal because the witnesses were not only shown the photographs but
also the accused was physically shown. According to him, it was
further in evidence that accused Manu Sharma was shown to all the
three witnesses on 08.05.99 and they even admitted that it may have
been on 07.05.99. It is further contended that it is not denied that
the photos came in the newspaper during the prosecution. However, it
was pointed out by the defence that prosecution is certainly not
responsible for showing the photos. As far as refusal of TIP by
accused Manu Sharma is concerned, there is no justification in the
stand of the defence that TIP was not held due to his photo or he
himself being shown to the witness. In this regard, it would be
relevant to note that accused Manu Sharma surrendered on 06.05.99 and
on 07.05.99 he was produced in muffled face before the MM Shri
Rajneesh Gupta PW-79 and the proceedings thereof are recorded vide Ex
PW-79/G wherein accused Manu Sharma's contention for refusal of TIP
is that his photograph has appeared in newspapers and his photograph
has been shown to the witnesses and that he has been shown physically
to the witnesses. All the three contentions of the accused Manu
Sharma are incorrect and misconceived with regard to the appearance
of the photos in the newspapers. It is submitted that vide Ex PW
101/11 to 22 the newspapers from 01.05.99 to 06.05.99 have been duly
exhibited by PW-101. It was pointed out that in none of those
newspapers is the photograph of accused Manu Sharma shown. As a
matter of fact vide Ex. No. PW 101/15 photograph dated 06.05.1999
clearly shows that he is in muffled face. In the absence of any
defence refusal of TIP on this ground is totally unjustified and an
adverse inference ought to be drawn in this regard.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">111)
The next contention of the defence for refusal of TIP is that his
photograph has been shown to the witnesses is also incorrect. It is
not disputed that the photograph of accused Manu Sharma was obtained
from his farmhouse located in Samalkha on the intervening night
30.04.1999 & 01.05.1999. However, it is further in evidence
of PW-87 that he went to Chandigarh and he took the photograph of
accused Manu Sharma for the purposes of identification and it was
with him till 06.05.1999. Thus the photo of accused Manu Sharma could
not have been shown to any of the witnesses because the witnesses
were either in Delhi or Kolkata not in Chandigarh. The only witness
who has deposed with regard to the photograph having been shown is
PW-6 wherein she has stated:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
could be that the photograph of Manu Sharma that had been shown to me
on 01.05.1999 but since I was not in good frame of mind and rather
disturbed for the whole week and therefore I do not remember whether
the photograph of Manu Sharma was shown to me on 01.05.1999."
Her testimony on this point is clearly wavering in view of the fact
that immediately after the incident she fainted and that is why her
statement under Section 161 Cr.P.C. was recorded only on 03.05.99.
Moreover, it was explained that since on 02.05.99 the photograph in
question was not available in Delhi itself and therefore there was no
chance of showing the photograph to this witness, as on 01.05.99 she
was unwell and her statement also could not be recorded and thus the
issue of showing her the photograph could not arise. Further, this
witness nowhere says that photographs were shown to her parents as
well as being sought to be inferred by the defence. Thus refusal of
TIP on this ground was unjustified by accused Manu Sharma in the
morning of 07.05.1999. It is further submitted that after the refusal
of TIP it is only thereafter that the accused Manu Sharma was shown
to the witnesses PW-6, PW-20 and PW-24 and their statements under
Section 161 Cr.P.C. were recorded with regard to the identification
of accused Manu Sharma. The said process of identification was
necessary for the IO to be certain that this is the man that the said
witnesses had witnessed/seen as the person responsible. In the light
of Manu Sharma's refusal, the police had little choice but to
formally show the photo to the witnesses and record their statement
in that regard. Thus, firstly his refusal is not justified on the
ground that he has been shown to the witnesses, moreover, he was
shown to the witness only after his refusal of TIP so that it is
verified that he is the same person who is involved in the incident
and no adverse inference on this count can be taken against the
prosecution.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">112)
It is further pointed out that the accused Manu Sharma was sent to
judicial custody on 15.05.1999 and the statement of witnesses
continued even thereafter and thus resort to photo identification was
properly taken by mixing the photograph of accused Manu Sharma with
number of other photographs and asking the witnesses to pick up the
photograph of the person they had witnessed on the fateful night and
the morning thereafter i.e. 29/30.04.99. This mode of photo
identification was resorted to vis-`-vis Deepak Bhojwani PW-1 on
24.05.1999 at Delhi, Shiv Dass PW-3 and Karan Rajput PW-4 on 29.05.99
and Shyan Munshi PW-2 on 19.05.99 at Calcutta. Thus there is no merit
in the contention of the defense that the dock identification was a
farce as it was done for the first time in the Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">113)
It is also contended by the defence that since the photographs were
shown to the witnesses this circumstance renders the whole evidence
of identification in Court as inadmissible. For this, it was pointed
out that photo identification or TIP before the Magistrate, are all
aides in investigation and do not form substantive evidence.
Substantive evidence is the evidence of the witness in the court on
oath, which can never be rendered inadmissible on this count. It is
further pointed out that photo identification is not hit by 162
Cr.P.C. as adverted to by the defense as the photographs have not
been signed by the witnesses. In support of his argument the senior
counsel for Manu Sharma relies on the judgment of Kartar Singh vs.
Union of India (1994) 3 SCC 569 at page 711 wherein while dealing
with Section 22 TADA the Court observed that photo TIP is bad in law.
It is useful to mention that the said judgment has been distinguished
in </span></span><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><a href="http://www.indiankanoon.org/doc/1246995/">Umar
Abdul Sakoor Sorathia vs. </a><a href="http://www.indiankanoon.org/doc/1246995/">Intelligence
Officer, Narcotic Control Bureau,</a></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2000)
1 SCC 138 at page 143 where a Photo Identification has been held to
be valid. The relevant extract of the said judgment is as follows:-
"10. The next circumstance highlighted by the learned
counsel for the respondent is that a photo of the appellant was shown
to Mr. Albert Mkhatshwa later and he identified that figure in the
photo as the person whom he saw driving the car at the time of
interception of the truck.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
It was contended that identification by photo is inadmissible in
evidence and, therefore, the same cannot be used. No legal provision
has been brought to our notice, which inhibits the admissibility of
such evidence. However, learned counsel invited our attention to the
observations of the Constitution Bench in </span></span><a href="http://www.indiankanoon.org/doc/1813801/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Kartar
Singh vs. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> which
struck down Section 22 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987. By that provision the evidence of a witness
regarding identification of a proclaimed offender in a terrorist case
on the basis of the photograph was given the same value as the
evidence of a test identification parade. This Court observed in that
context: (SCC p. 711, para 361)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">361.
If the evidence regarding the identification on the basis of a
photograph is to be held to have the same value as the evidence of a
test identification parade, we feel that gross injustice to the
detriment of the persons suspected may result. Therefore, we are
inclined to strike down this provision and accordingly we strike down
Section 22 of the Act.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
In the present case prosecution does not say that they would rest
with the identification made by Mr. Mkhatshwa when the photograph was
shown to him. Prosecution has to examine him as a witness in the
court and he has to identify the accused in the court. Then alone it
would become substantive evidence. But that does not mean that at
this stage the court is disabled from considering the prospect of
such a witness correctly identifying the appellant during trial. In
so considering the court can take into account the fact that during
investigation the photograph of the appellant was shown to the
witness and he identified that person as the one whom he saw at the
relevant time. It must be borne in mind that the appellant is not a
proclaimed offender and we are not considering the eventuality in
which he would be so proclaimed. So the observations made in Kartar
Singh in a different context is of no avail to the appellant."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Even
a TIP before a Magistrate is otherwise hit by Section 162 of the
Code. Therefore to say that a photo identification is hit by section
162 is wrong. It is not a substantive piece of evidence. It is only
by virtue of section 9 of the Evidence Act that the same i.e. the act
of identification becomes admissible in Court. The logic behind TIP,
which will include photo identification lies in the fact that it is
only an aid to investigation, where an accused is not known to the
witnesses, the IO conducts a TIP to ensure that he has got the right
person as an accused. The practice is not born out of procedure, but
out of prudence. At best it can be brought under Section 8 of the
Evidence Act, as evidence of conduct of a witness in photo
identifying the accused in the presence of an IO or the Magistrate,
during the course of an investigation.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">114)
Mr. Jethmalani has further argued on the proposition that mere dock
identification is no identification in the eyes of law unless
corroborated by previous TIP before the Magistrate. It has been
further argued that in any case, even identification in Court is not
enough and that there should be something more to hold the accused
liable. In support of its arguments, he placed heavy reliance on the
decision of this Court in the case of Hari Nath & Ors vs.
State of U.P. (1988) 1 SCC 14 and Budhsen & Others vs. State
of U.P. (1970) 2 SCC 128. A close scrutiny of these judgments will
reveal that they infact support the case of the Prosecution. These
judgments make it abundantly clear that even where there is no
previous TIP, the Court may appreciate the dock identification as
being above-board and more than conclusive.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">115)
The law as it stands today is set out in the following decisions of
this Court which are reproduced as hereinunder in </span></span><a href="http://www.indiankanoon.org/doc/1102670/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Munshi
Singh Gautam vs. State of M.P.</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2005)
9 SCC 631, at page 643:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"16.
</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>As
was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75
identification tests do not constitute substantive evidence. They are
primarily meant for the purpose of helping the investigating agency
with an assurance that their progress with the investigation into the
offence is proceeding on the right lines. The identification can only
be used as corroborative of the statement in </b></span></span></span><a href="http://www.indiankanoon.org/doc/56524/">Court</a><a href="http://www.indiankanoon.org/doc/56524/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">.
(See Santokh Singh vs. Izhar Hussain</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1973
2 SCC 406.) The necessity for holding an identification parade can
arise only when the accused are not previously known to the
witnesses. The whole idea of a test identification parade is that
witnesses who claim to have seen the culprits at the time of
occurrence are to identify them from the midst of other persons
without any aid or any other source. The test is done to check upon
their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression and also to
enable the prosecution to decide whether all or any of them could be
cited as eyewitnesses of the crime. The identification proceedings
are in the nature of tests and significantly, therefore, there is no
provision for it in the Code and the Evidence Act. It is desirable
that a test identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary to eliminate
the possibility of the accused being shown to the witnesses prior to
the test identification parade. This is a very common plea of the
accused and, therefore, the prosecution has to be cautious to ensure
that there is no scope for making such an allegation. If, however,
circumstances are beyond control and there is some delay, it cannot
be said to be fatal to the prosecution.</span></span></div>
<div align="JUSTIFY">
17. <span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>It
is trite to say that the substantive evidence is the evidence of
identification in court.</b></span></span></span> Apart from
the clear provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court. The
facts, which establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. <span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>As
a general rule, the substantive evidence of a witness is the
statement made in court.</b></span></span></span> <span style="color: #0084d1;"><b>The
evidence of mere identification of the accused person at the trial
for the first time is from its very nature inherently of a weak
character. The purpose of a prior test identification, therefore, is
to test and strengthen </b></span><span style="color: #0084d1;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>the
trustworthiness of that evidence</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
It is, accordingly, considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witnesses in court
as to the identity of the accused who are strangers to them, in the
form of earlier identification proceedings. This rule of prudence,
however, is subject to exception, when, for example, the court is
impressed by a particular witness on whose testimony it can safely
rely, without such or other corroboration. The identification parades
belong to the stage of investigation, and there is no provision in
the Code which obliges the investigation agency to hold or confers a
right upon the accused to claim a test identification parade. They do
not constitute substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a test
identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such
identification should be a matter for the courts of fact. In
appropriate cases it may accept the evidence of identification even
without insisting on corroboration. </span></span><a href="http://www.indiankanoon.org/doc/794096/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">(See
Kanta Prashad vs. Delhi Administration AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1958
SC 350, Vaikuntam Chandrappa vs. State of A.P. AIR 1960 SC 1340,
Budhsen Vs State of U.P. (1970) 2 SCC 128 and Rameshwar Singh vs.
State of J&K (1971) 2 SCC 715)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">19.
In Harbhajan Singh vs. State of J&K (1975) 4 SCC 480, though
a test identification parade was not held, this Court upheld the
conviction on the basis of the identification in court corroborated
by other circumstantial evidence. In that case it was found that the
appellant and one Gurmukh Singh were absent at the time of roll call
and when they were arrested on the night of 16.12.1971 their rifles
smelt of fresh gunpowder and that the empty cartridge case which was
found at the scene of offence bore distinctive markings showing that
the bullet which killed the deceased was fired from the rifle of the
appellant. Noticing these circumstances this Court held: (SCC p. 481,
para 4).</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"In
view of this corroborative evidence we find no substance in the
argument urged on behalf of the appellant that the investigation
officer ought to have held an identification parade and tha</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">t
the failure of Munshi Ram to mention the names of the two accused to
the neighbours who came to the scene immediately after the occurrence
shows that his story cannot be true. As observed by this Court
in </span></span><a href="http://www.indiankanoon.org/doc/1956474/">Jadunath
Singh vs. State of U.P.</a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 17
absence of test identification is not necessarioy fatal. The fact
that Munshi Ram did not disclose the names of the two accused to the
villages only</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
shows that the accused were not previously known to him and the story
that the accused referred to each other by their respective names
during the course of the incident contains an element of
exaggeration. The case does not rest on the evidence of Munshi Ram
alone and the corroborative circumstances to which we have referred
to above lend enough assurance to the implication of the
appellant." Malkhansing vs. State of M.P., (2003) 5 SCC 746
at 752 "7. It is trite to say that the substantive evidence
is the evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in law is
well settled by a catena of decisions of this Court. The facts, which
establish the identity of the accused persons, are relevant under
Section 9 of the Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court. The evidence of
mere identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character. The
purpose of a prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to the
identity of the accused who are strangers to them, in the form of
earlier identification proceedings. This rule of prudence, however,
is subject to exceptions, when, for example, the court is impressed
by a particular witness on whose testimony it can safely rely,
without such or other corroboration. </span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
identification parades belong to the stage of investigation, and
there is no provision in the Code of Criminal Procedure which obliges
the investigation agency to hold, or confers a right upon the accused
to claim a test identification parade.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
They do not constitute substantive evidence and these parades are
essentially governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would not
make inadmissible the evidence of identification in court. The weight
to be attached to such identification should be a matter fro the
courts of fact. In appropriate cases it may accept the evidence of
identification even without insisting on corroboration.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">116)
Mr. Ram Jethmalani has further placed heavy reliance on two Books by
foreign authors, namely, `'Proof of Guilt by Glanville Williams,' 3rd
Edition and `Eye Witness Identification in Criminal Cases' by Patrick
M. Wall, to urge that identification of an accused in Court is a
serious matter and the chances of a false identification are very
high. These texts only reiterate what the various courts have held
time and again. The view of the said author has been quoted by this
Court, the earliest judgment being </span></span><a href="http://www.indiankanoon.org/doc/1035123/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Shivaji
Sahabrao Bobade vs. State of Maharashtra,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1973)
2 SCC 793, at page 800:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">The
evil of acquitting a guilty person light heartedly as a learned
Author (Glanville Williams in `Proof of Guilt') has sapiently
observed, goes much beyond the simple fact that just one guilty
person has gone unpunished. If unmerited acquittals become general,
they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against
indicted persons and more severe punishment of those who are found
guilty. Thus, too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of
the guiltless. For all these reasons it is true to say, with Viscount
Simon, that a miscarriage of justice may arise from the acquittal of
the guilty no less than from the conviction of the innocent.”</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">117)
Learned Solicitor General submitted that, even otherwise, an adverse
inference ought to be drawn against the appellants for their refusal
to join the TIP. This view has found favor time and again by this
Court. It is pertinent to note that it is dock identification which
is a substantive piece of evidence. Therefore even where no TIP is
conducted no prejudice can be caused to the case of the Prosecution.
In Mullagiri Vajram vs. State of A.P. 1993 Supp. (2) SCC 198, it was
held that though the accused was seen by the witness in custody, any
infirmity in TIP will not affect the outcome of the case, since the
deposition of the witnesses in Court was reliable and could sustain a
conviction. The photo identification and TIP are only aides in the
investigation and does not form substantive evidence. <span style="color: magenta;"><b>The
substantive evidence is the evidence in the court in oath.</b></span></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">118)
The following decisions relied upon by the learned senior counsel for
the appellant are clearly distinguishable from the present facts and
thus are not applicable. N.J. Suraj vs. State (2004) 11 SCC 346 is
distinguishable as there was no direct evidence on record against the
accused and the prosecution's case was based on last seen evidence of
accused with deceased and circumstantial evidence. The admission of
witnesses in regard to showing of photographs prior to TIP was
coupled with the fact that the writing of the accused did not match
with the entries made in the entry register which was contrary to the
case of the prosecution.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">119) </span></span><a href="http://www.indiankanoon.org/doc/563592/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Laxmipat
Chararia vs. State of Maharashtra, AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1968
SC 938, is distinguishable as the witness whose statement was
subjected to arguments as being put under pressure of prosecution and
was shown photographs of the accused was infact an accomplice and her
statement was also relied upon by the Court and held that her
evidence is admissible.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">120)
Hari Nath & Anr vs. State of U.P. (1988) 1 SCC 14 is also
distinguishable on facts as the accused were residing in village in
the close vicinity of the village of the prosecution witness (members
of house hold where dacoity was committed) and that accused and the
prosecution witness had been students of the same institution was
indicative of the fact that the accused were known to the prosecution
witnesses while there was an omission to mention name of the accused
persons in the FIR. Secondly, as it was also held that even on the
premise that no prior acquaintance was there, the TIP lacked
promptitude as was conducted after an unexplained delay of more than
4 months.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">121)
The judgment in Kanan & Ors vs. State of Kerala (1979) 3 SCC
319, is distinguishable as the witness though admitted that he knew
the two accused by face and yet he had named them while identifying
them in Court, which raised element of doubt & that names of
the accused were supplied to him from outside.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">122) </span></span><a href="http://www.indiankanoon.org/doc/1114345/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Dana
Yadav vs. State of Bihar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2002)
7 SCC 295 is also distinguishable as the identification by the
witness in court was not relied upon as the witness did not name the
accused before the Police but in Court had identified and also named
the accused, and as the identification was not further corroborated
by either previous identification or any other evidence. While other
witnesses though named the accused before the police but failed to
identify him in court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">123)
In Vijayan vs. State of Kerala (1999) 3 SCC 54, the witness was
admittedly shown the photograph of the accused before the TIP and
further told to identify the tallest man in the parade, as such this
TIP was discarded and in this light the dock identification of the
witness was also discarded. Further according to the witness the
accused was not a tall man whereas the height of the accused was more
than 6 feet.</span></span></div>
<div align="JUSTIFY">
124) George &am<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">p;
Ors. vs. State of Kerala & Anr. (1998) 4 SCC 605 is not
applicable on the facts of the present case in so far as the issue of
photo identification is concerned. The aforesaid judgment which is
sought to be relied upon by the appellant in support to their
contention on the issue that absence of TIP makes the dock
identification weak evidence is not applicable on the facts of the
present case. In the said decision the prosecution failed to hold TIP
whereas in case at hand the</span></span>
accused person refused TIP. The newspaper reports duly exhibited by
PW 101 in the present case nowhere show photographs of the accused
persons.</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">125)
Learned senior counsel for the appellant has argued that the
statement of the accused recorded under Section 313 of the Criminal
Procedure Code may be treated as evidence and by doing so this Court
must take into consideration the stand taken by the appellant as
regards his gun having been taken away by the police. In support of
his argument, he relied upon the decision of this Court in the case
of </span></span><a href="http://www.indiankanoon.org/doc/474416/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Hate
Singh Bhagar Singh vs. State of Madhya Bharat, AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1953
SC 468. It has been further argued that the evidence of witnesses has
not been put to the appellant thereby causing prejudice to the
appellant. </span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
said proposition of law is misplaced since a specific provision has
been provided by way of Section 315 of the Code whereby an accused
can, as a matter of right, appear as a witness on his own behalf.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
In the present case, the appellants exercised an option declining to
do so and in such manner failed to offer any evidence to show
loss/removal of his gun. Thus it cannot be urged by the defence
merely in order to suit his convenience that his statement may be
treated as evidence and that all facts stated therein be treated as
true unless contradicted by the prosecution. </span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;">While
answer given by the accused to question put under Section 313 of the
Code are not per se evidence because, firstly, it is not on oath and,
secondly, the other party i.e., the prosecution does not get an
opportunity to cross-examine the accused, it is nevertheless subject
to consideration by the Court to the limited extent of drawing an
adverse inference against such accused for any false answers
voluntarily offered by him and to provide an additional/missing link
in the chain of circumstances.</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
The judgment relied upon is of no use to the defence since the same
pertains to a period where the law did not allow the accused to step
into the witness box as a witness of his own innocence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">126)
Regarding the contention that evidence of each witness must be put to
the accused, it must be clarified that only the circumstances need to
be put and not the entire testimony. It is apt to quote the following
decision of this Court i.e.,</span></span><a href="http://www.indiankanoon.org/doc/814604/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Punjab vs. Swaran Singh,</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2005)
6 SCC 101 at page 104:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"9.
The only reason given by the learned Single Judge of the High Court
for acquitting the accused is that the evidence of PW 1 and PW 4 was
not specifically put to the accused under Section 313 CrPC and it was
held that in the absence of these facts in the form of questions to
the accused, the evidence could not have been used against him. It is
also pertinent to note in this regard that when PW 1 and PW 4 were
examined as witnesses, the accused did not seriously dispute the
evidence of PW 1 or PW 4. The only cross-examination was that it was
incorrect to suggest that the case property was not deposited with
him and he had deposed falsely. So also, the evidence of PW 4 was not
challenged in the cross-examination except for a general suggestion
that he had been deposing falsely and that no case property was
handed over to him by PW 1 Harbhajan Singh. The accused had no case
that the seal was ever tampered with by any person and that there was
any case of mistaken identity as regards the sample and that the
report of the chemical analyst was not of the same sample taken from
the accused. Except making a general suggestion, the accused had
completely admitted the evidence of PW 1 and PW 4 as regards the
receipt of the sample, sealing of the same and sending it to the
chemical analyst. This was pointed out only to show that the accused
was not in any way prejudiced by the fact of not having been
questioned by making a specific reference to the evidence of PW 1 and
PW 4. As regards the questioning of the accused under Section 313
CrPC, the relevant provision is as follows:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"313.
Power to examine the accused.--(1) In every inquiry or trial, for the
purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the court--</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(a)
may at any stage, without previously warning the accused, put such
questions to him as the court considers necessary;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(b)
shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the
case: Provided that in a summons case, where the court has dispensed
with the personal attendance of the accused, it may also dispense
with his examination under clause (b).</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(2)
No oath shall be administered to the accused when he is examined
under sub-section (1). (3) The accused shall not render himself
liable to punishment by refusing to answer such questions, or by
giving false answers to them.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(4)
The answers given by the accused may be taken into consideration in
such inquiry or trial, and put in evidence for or against him in any
other inquiry into, or trial for, any other offence which such
answers may tend to show he has committed."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">10.
The questioning of the accused is done to enable him to give an
opportunity to explain any circumstances which have come out in the
evidence against him. It may be noticed that the entire evidence is
recorded in his presence and he is given full opportunity to cross-
examine each and every witness examined on the prosecution side. He
is given copies of all documents which are sought to be relied on by
the prosecution. Apart from all these, as part of fair trial the
accused is given opportunity to give his explanation regarding the
evidence adduced by the prosecution. However, it is not necessary
that the entire prosecution evidence need be put to him and answers
elicited from the accused. If there were circumstances in the
evidence which are adverse to the accused and his explanation would
help the court in evaluating the evidence properly, the court should
bring the same to the notice of the accused to enable him to give any
explanation or answers for such adverse circumstance in the evidence.
<span style="color: magenta;">Generally, composite questions shall not be
asked to the accused bundling so many facts together. Questions must
be such that any reasonable person in the position of the accused may
be in a position to give rational explanation to the questions as had
been asked. There shall not be failure of justice on account of an
unfair trial.</span></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15.
In the instant case, the accused was not in any way prejudiced by not
giving him an opportunity to answer specifically regarding the
evidence of PW 1 and PW 4. If at all, the evidence of PW 1 and PW 4
was recorded in his presence, he had the opportunity to cross-examine
the witnesses but he did not specifically cross-examine these two
witnesses in respect of the facts deposed by them. The learned Single
Judge seriously erred in holding that the evidence of PW 1 and PW 4
could not have been used against the accused. The acquittal of the
accused was improper as the evidence in this case clearly established
that the accused was in possession of 5 kg of opium and thereby
committed the offence under Section 18 of the NDPS Act.”</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">127)
Further it is not necessary that the entire prosecution evidence need
to be put to the accused and answers elicited from him/even if an
omission to bring to the attention of the accused an inculpatory
material has occurred that ipso facto does not vitiate the
proceedings, the accused has to show failure of justice as held in
Swaran Singh (supra) and followed in Harender Nath Chakraborty vs.
State of West Bengal, (2009) 2 SCC</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">758.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">128)
Hate Singh's case (supra) relied upon by the appellant is clearly
distinguishable from the facts of the present case. In the said
matter, the case of the prosecution was that two brothers Hate and
Bheru fired one shot each at the deceased who received three wounds.
It was opined that three wounds which could have been from a single
shot. It was the consistent stand of the Bheru that he fired the
shots (with double barrel), whose appeal was, therefore, dismissed in
limine. While that of Hate (appellant in the said case) was that
though present with a gun, he did not fire any shot (with his single
barrel). That single barrel was found loaded (Article E) this fact
was accepted throughout. Witnesses also saw Bheru firing the first
shot. The Court held that the fact that both the brothers absconded
was given much importance by the High Court and Sessions Court but
were not asked to explain it at any stage.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">129)
Ranvir Yadav vs. State of Bihar, (2009) 6 SCC 595 relied upon by the
appellant is also distinguishable on facts as there was no accusation
specifically put in the question during examination to the accused.</span></span></div>
<div align="JUSTIFY">
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<span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>Adverse
Inferences Against the Accused:</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">130)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><u><b>(i)
False answers under Section 313 Cr.P.C.</b></u></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
This Court has time and again held that where an accused furnishes
false answers as regards proved facts, the Court ought to draw an
adverse inference qua him and such an inference shall become an
additional circumstance to prove the guilt of the accused. In this
regard, the prosecution seeks to place reliance on the judgments of
this Court in Peresadi vs. State of U.P., (1957) Crl.L.J. 328, </span></span><a href="http://www.indiankanoon.org/doc/173865/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of M.P. vs. Ratan Lal, AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1994
SC 458 and </span></span><a href="http://www.indiankanoon.org/doc/434509/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Anthony
D'Souza vs. State of Karnataka</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2003)
1 SCC 259 where this Court has drawn an adverse inference for wrong
answers given by the appellant under Section 313 Cr.P.C. In the
present case, the appellant-Manu Sharma has, inter alia, has taken
false pleas in reply to question nos. 50, 54, 55, 56, 57, 64, 65, 67,
72, 75 and 210 put to him under Section 313 of the Code.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(ii)
Adverse inference qua non explanation of Pistol Appellant/Accused -
Manu Sharma was holder of a pistol .22" bore P Berretta,
made in Italy duly endorsed on his arms licence. It was his duty to
have kept the same in safe custody and to explain its whereabouts. It
is proved beyond reasonable doubt on record that extensive efforts
were made to trace the pistol and the same could not be recovered.
Moreover as per the testimony of CN Kumar, PW-43, DSP/NCRB, RK Puram
there is no complaint or report of the said pistol. Thus an adverse
inference has to be drawn against the accused-Manu Sharma for non-
explanation of the whereabouts of the said pistol. Similarly another
plea not supported by any positive evidence led by the appellant-Manu
Sharma is that his pistol i.e. the weapon of offence and the arms
licence was recovered from his farm house on 30.04.1999, when in fact
it is an established fact that the pistol could not be recovered and
that the licence was surrendered on 06.05.1999 at the time of his
arrest. It defies all logic and ordinary course of conduct to allege
that the prosecution has withheld the pistol after seizing the same
from his farmhouse. The fact that he has failed to produce the
pistol, a presumption shall arise that if he has produced it, the
testing of the same would have been to his prejudice. The burden thus
shifts on him. (iii) Adverse inference since no report of theft or
loss of Tata safari CH-01-W-6535</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is the defence of the accused-Manu Sharma that the Tata Safari was
taken away on 30.04.1999 from Karnal. No report or complaint of the
taking away of the vehicle or the theft of the vehicle was ever
lodged by the appellant/accused and hence an adverse inference has to
be drawn against the accused on this count as well. Further the
conduct of the appellant/accused in not taking any steps despite
opportunity in reporting the alleged taking away of Tata Safari on
30.04.1999 and his licensed pistol on 01.05.1999 in itself is enough
material to draw serious adverse inference against the accused. (iv)
Appearance of PW-2 Shyan Munshi accompanied by Shri Ashok Bansal,
Advocate</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">By
order dated 06.03.2000, Shri Ashok Bansal, advocate had appeared as
proxy counsel for accused- Manu Sharma before the trial Court and on
the same day also took copy of the report of FSL/Jaipur on behalf of
accused-Manu Sharma. On 03.05.2001, PW-2, Shyan Munshi, was duly
accompanied by Shri Ashok Bansal, advocate wherein he clearly says
that he has come with a lawyer for his personal security. On behalf
of the State, it was contended that an adverse inference against
accused- Manu Sharma has to be drawn for influencing the witness. It
may not be out of place to mention here that PW-2, Shyan Munshi, who
is the maker of the FIR and complainant of the case, did not fully
support the prosecution case though he admitted having made statement
to the police and having signed the same. The stand of the State
cannot be ignored, on the other hand, it is acceptable.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">131)
Further as per the disclosure of accused-Manu Sharma, the pistol was
given to accused - Ravinder Sudan @ Titu (PO). It has been proved by
the testimony of PW- 37, Martin Raj and PW-49-Inspector Mahender
Singh Rathi that accused, Ravinder Sudan @ Titu left the country by
Gulf Airways on 04.05.1999. Accused-Manu Sharma surrendered on
06.05.1999 only after accused Ravinder Sudan @ Titu left the country.
It is pointed out by the State that calls were made from PCO, Ambala
and PCO Hazrat Nizamuddin which have been duly proved by the
testimony of PW-36, Ram Lal Jagdev, PW-16-Raj Narain Singh,
PW-17-Mohd. Jaffar. This conduct of accused-Manu Sharma which is
relevant and admissible under Section 8 of the Indian Evidence Act an
adverse inference has to be drawn against Manu Sharma for this
conduct.</span></span></div>
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<span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: large;"><b>Appeals
of other accused:</b></span></span></span></div>
<div align="JUSTIFY">
132) We have already
discussed the specific evidence, especially of presence at the time
of incident, remova<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">l
of Tata Safari, call details etc. as well as the evidence of PWs 30
and 101, for conviction under Section 201 read with Section 120-B IPC
against the other two appellants, namely, Amardeep Singh Gill @ Tony
Gill and Vikas Yadav. We are satisfied that the High Court, on
appreciation of the relevant materials, found against them and
convicted accordingly. On analysis of</span></span><span style="font-size: x-large;">
</span>all the materials, we agree with their conviction and
sentence.</div>
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<span style="color: magenta;"><span style="font-size: large;"><b>Adverse
remarks against prosecution and Trial Judge</b></span></span></div>
<div align="JUSTIFY">
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<div align="JUSTIFY">
133) In administration
of criminal justice system the possibility of errors of law,
appreciation of evidence or other serious violations is difficult to
be ruled out in its entirety. The higher Courts in exercise of their
appellate or original jurisdiction may find patent errors of law or
fact or appreciation of evidence in the judgment which have been
challenged before them. Despite this what is of significant
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">importance
is that, the Courts should correct the error in judgment and not
normally comment upon the judge. The possibility of taking a contrary
view is part of the system but the judicial propriety and discipline
does not necessarily command that some strictures or undesirable
language should be used by the higher Courts in exercise of their
jurisdiction. It would always be more appreciable that to keep the
process of correction in place when reasoning is given to criticize
the judgment under appeal rather than the Judge himself. The
individuals come and go but what actually stands for ever is the
institution.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">134)
In the present case the High Court in its judgment, on the one hand,
explicitly referred to certain criticism made by the trial Judge
against the investigating agency and the comments/remarks made in
this behalf and observed that these were uncalled for and that they
should have been avoided but, on the other hand, the Division Bench
itself while criticizing the reasoning in the judgment under appeal
but even made certain sweeping remarks against the trial Judge.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">135)
In this regard we are intentionally not referring to the criticism of
appreciation of evidence in fact and on law but are restricting
ourselves to certain observations and comments which, in our humble
opinion, are criticism of the Judge per se and could have been
avoided easily by the Division Bench of the High Court. It is also
desirable, that the language which may imply an allegation of
suspicion in the performance of function of the Court should also be
carefully examined and unless it is absolutely established on record
comment should be avoided. It will be appropriate to refer to the
relevant parts of the judgment in this regard:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">.............We
also find the criticism against him to be a matter of meaningless
hair splitting. There is a ring of truth around the deposition of PW
30 whom we find a reliable witness. The trial Court, while dealing
with this witness, has, with great respect, termed him as a `planted
witness'. This, we find, is not justified from material on record.
The cursory manner in which the witness has been discarded shows a
lack of proper appreciation of evidence. Once a reasonable
explanation has been given by a witness for his presence at the spot,
there was hardly any reason to stretch imagination to belie his
presence. Merely, because he was assigned to deliver a DD entry to SI
Rishi Pal which, the witness explains, he did not deliver, the
explanation given is logical and ought not to have been disbelieved
in this strange way of assessing the material and discarding it.”
Xxxx xxxx xxxx xxxx “.........The two weapon theory appears to be a
concoction to the defence and a manipulation of evidence in
particular that of Shyam Munshi, PW2 who, for the first time in
court, introduced such a story. The very fact that the empties were
sent for examination at such a belated stage, cannot rule out the
possibility of foul play to destroy the Prosecution's case during
trial. We, therefore, do not think it necessary to go into further
analysis of the evidence of Prem Sagar Manocha.”</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">136)
Let us examine various judgments of this Court which have
persistently taken the view and discouraged observations or
disparaging remarks by the higher Courts against the other Courts. In
the case of </span></span><a href="http://www.indiankanoon.org/doc/564691/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">A.M.
Mathur vs. Pramod Kumar Gupta &</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">amp;
Ors. (1990) 2 SCC 533 the Court stated the dictum that judicial
restraint and discipline are as necessary to the orderly
administration of justice as they are to the effectiveness of the
army. The duty of restraint , this humility of function should be
constant theme of our judges. The quality in decision making is as
much necessary for judges to command respect as to protect the
independence of the judiciary. Judicial restraint in this regard
might better be called judicial respect, that is respect by the
judiciary. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
avoidance of even the appearance of bitterness, so important in a
judge, required him not to cast aspersions on the professional
conduct of the appellant and that too without an opportunity for him
to meet such situation.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
The Court set aside the disparaging remarks that had been made by the
High Court against the Advocate General.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">137)
In the case of a judicial officer approaching this Court for
expunction of disparaging remarks on his conduct made by the High
Court in the matter of `K' A Judicial Officer (2001) 3 SCC 54, this
Court cautioned the higher courts to use the power of superintendence
with great care and circumference before making remarks on unworthy
conduct of an officer, his criticism or adverse remarks in relation
to judicial pronouncement should be avoided. The Court held as under:
"A Subordinate Judge faced with disparaging and undeserving
remarks made by a court of superior jurisdiction is not without any
remedy. He may approach the High Court invoking its inherent
jurisdiction seeking expunction of objectionable remarks which
jurisdiction vests in the High Court by virtue of its being a court
of record and possessing inherent powers as also the power of
superintendence. The view is settled by the law laid down in </span></span><a href="http://www.indiankanoon.org/doc/1152219/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Raghubir
Saran (Dr) vs. State of Bihar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1964)
2 SCR 336. However, if a similar relief is sought for against remarks
or observations contained in judgment or order of the High Court the
aggrieved judicial officer can, in exceptional cases, approach this
Court also invoking its jurisdiction under Articles 136 and/or 142 of
the Constitution. "</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">138)
In the case of Zahira Habibulla H. Sheikh & Anr. vs. State of
Gujarat & Ors. (2004) 4 SCC 158 another Bench of this Court
in unambiguous terms expressed its concern about entertaining
undesirable submissions against the working of an institution and
adverse observations being made in the paragraphs of the judgment.
The Court noticed that High Court had made observations and remarks
about persons/constitutional bodies like NHRC who were not before it.
Proceedings of the Court normally reflect the true state of affairs.
Even if it is accepted, that any such submission was made, it was not
proper or necessary for the High Court to refer to them in the
judgment to finally state that no serious note was taken of the
submissions. Avoidance of such manoeuvres would have augured well
with the judicial discipline. The expunction and deletion of the
contents of paragraph three of the judgment except the last limb
therein is ordered and it shall be always read to have not formed
part of the judgment.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">139)
Similarly, a three Judge Bench of this Court in the case of </span></span><a href="http://www.indiankanoon.org/doc/139702/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Samya
Sett vs. Shambhu Sarkar &</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">amp;
Anr. (2005) 6 SCC 767, again concerned with expunction of adverse
remarks made against the Additional Sessions Judge, who was the
appellant. The High Court had observed that, ignoring of directions
should imply an arrogant attitude of the learned Judge and was in
breach of the canons of judicial discipline and damage the judicial
system. This Court has, in several cases, deprecated the practice on
the part of judges in passing strictures and in making unsavoury,
undeserving, disparaging or derogatory remarks against parties,
witnesses as also subordinate officers.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">140)
It is also worthwhile to refer to the latest judgment of this Court
in the case of Parkash Singh Teji vs. Northern India Goods Transport
Company Private Limited and Another, (2009) 12 SCC 577. This Court,
while considering the order of the High Court, declining to expunge
the adverse remarks against the appellant/judicial officer has
observed "judicial restraint and discipline are as necessary
to the orderly administration of justice as they are to the
effectiveness of the army".</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Again
it was pointed out,</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"A
Judge tries to discharges his duties to the best of his capacity,
however, sometimes is likely to err. It has to be noted that the
lower judicial officers mostly work under a charged atmosphere and
are constantly under psychological pressure. They do not have the
benefits which are available in the higher courts. In those
circumstances, remarks/observations and strictures are to be avoided
particularly if the officer has no occasion to put forth his
reasonings."</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">141) </span></span><a href="http://www.indiankanoon.org/doc/1093731/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
Alok Kumar Roy vs. Dr. S.N. Sharma</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1968)
1 SCR 813 the vacation Judge of the High Court of Assam and Nagaland
passed an interim order during vacation in a petition entertainable
by the Division Bench. After reopening of the Court, the matter was
placed before the Division Bench presided over by the Chief Justice
in accordance with the High Court Rules. The learned Chief Justice
made certain remarks as to "unholy haste and hurry"
exhibited by the learned vacation Judge in dealing with the case.
When the matter reached this Court Wanchoo C.J., observed: (SCR pp
819 F- 820A)</span></span></div>
<div align="JUSTIFY">
"It is a
matter of regret that<span style="font-size: x-large;"> </span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">the
learned Chief Justice thought fit to make these remarks in his
judgment against a colleague and assumed without any justification or
basis that his colleague had acted improperly. Such observations even
about Judges of subordinate courts with the clearest evidence of
impropriety are uncalled for in a judgment. When made against a
colleague they are even more open to objection. We are glad that
Goswami J. did not associate himself with these remarks of the
learned</span></span><span style="font-size: x-large;">
</span>Chief Justice and was fair when he assumed that Dutta, J.
acted as he did in his anxiety todo whdat he thought was required in
the interest of justice. We wish the learned Chief Justice had
equally made the same assumption and had not made these <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">observations
castigating Dutta J. for they appear to us to be without any basis.
It is necessary that judicial decorum has to be maintained at all
times and even where criticism is justified it must be in language of
utmost restraint, keeping always in view that the person making the
comment is also fallible.” (emphasis supplied)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">142) </span></span><a href="http://www.indiankanoon.org/doc/393823/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">In
State of M.P. vs. Nandlal Jaiswal</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (1986)
4 SCC 566 disparaging and derogatory remarks were made by the High
Court against the State Government. When the matter came up before
this Court and a complaint was made against these remarks, it was
observed by this Court that the remarks were "totally
unjustified and unwarranted". Bhagwati, C.J. stated: (SCC
p.615,para 43) "43 We may observe in conclusion that judges
should not use strong and carping language while criticizing the
conduct of parties or their witnesses. They must at with sobriety,
moderation and restraint. They must have the humility to recognise
that they are not infallible and any harsh and disparaging strictures
passed by them against any party may be mistaken and unjustified and
if so, they may do considerable harm and mischief and result in
injustice." "I have never known any judges, no
difference how austere of manner, who discharged their judicial
duties in an atmosphere of pure, unadulterated reason. Alas! we are
"all the common growth of the Mother Earth' - even those of
us who wear the long robe". (emphasis supplied) Similar was
the view of Thomas Reed Powell, who said: "Judges have
preferences for social policies as you said and I. They form their
judgments after the varying fashions in which you and I form ours.
They have hands, organs, dimensions, senses, affections, passions.
They are warmed by the same winter and summer and by the same ideas
as a layman is”.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">In
the present case, however, as we have already noted in the earlier
part of the judgment, whether the order passed by the appellant was
correct or not, but the remarks made, strictures passed and
directions issued by the learned Single Judge of the High Court
against the appellant were improper, uncalled for and unwarranted.
Apart from the fact that they were neither necessary for deciding the
controversy raised before the Court nor an integral part of the
judgment, in the facts and circumstances of the case, they were not
justified. We, therefore, direct deletion of those remarks.”</span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">143)
In line with the consistent view of this Court, we are of the
considered view that the Division Bench could have avoided making
such observations which directly or impliedly indicates towards
impropriety in the functioning of the Court, appreciation of evidence
by the learned Judge and/or any other ancillary matter. The content
and merit of the judgment would have remained unaffected even if such
language or comments were not made against the learned trial Judge.
The respect of judiciary and for the judiciary, is of paramount
consideration. Every possible effort should be made and precaution
taken which will help in preservation of public faith and individual
dignity. A judicial consensus would require that the judgment should
be set aside or affirmed as the case may be but preferably without
offering any undesirable comments, disparaging remarks or indications
which would impinge upon the dignity and respect of judicial system,
actus curiae neminem gravabit. Despite exercise of such restraint,
if, in a given case, the Court finds compelling reasons for making
any comments in that event it will be in consonance with the basic
rule of law and adherence to the principles of natural justice that
view point of the concerned learned Judge should also be invited.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">144)
In view of our discussion supra we direct expunction of all remarks
made by the Trial Judge against the prosecution and by the Division
Bench against the Trial Judge.</span></span></div>
<div align="JUSTIFY">
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<span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: medium;"><b>Role
of the Media and Press:</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">145)
Mr. Ram Jethmalani, learned senior counsel for the appellant
submitted that the appellant-Manu Sharma had been specifically
targeted and maligned before and during the proceedings by the media,
who proclaimed him as guilty despite even after his acquittal by the
Trial Court. He took us through various news items that were
published in English & Hindi dailies. He elaborated that
</span></span><span style="color: magenta;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>“Justice
should not only be done, it should manifestly and undoubtedly be seen
to be done.”</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
This common law rule can not be ignored.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">146)
Cardozo, one of the great Judges of American Supreme Court in his
"Nature of the Judicial Process" observed that the
judges are subconsciously influenced by several forces. This Court
has expressed a similar view in P.C. Sen In Re: AIR 1970 SC 1821
and </span></span><a href="http://www.indiankanoon.org/doc/1351834/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Reliance
Petrochemicals Ltd. v. Proprietors of Indian Express</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1988
(4) SCC 592. 147) There is danger, of serious risk of prejudice if
the media exercises an unrestricted and unregulated freedom such that
it publishes photographs of the suspects or the accused before the
identification parades are constituted or if the media publishes
statements which out rightly hold the suspect or the accused guilty
even before such an order has been passed by the Court.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">148)
Despite the significance of the print and electronic media in the
present day, it is not only desirable but least that is expected of
the persons at the helm of affairs in the field, to ensure that trial
by media does not hamper fair investigation by the investigating
agency and more importantly does not prejudice the right of defence
of the accused in any manner whatsoever. It will amount to travesty
of justice if either of this causes impediments in the accepted
judicious and fair investigation and trial.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">149)
In the present case, certain articles and news items appearing in the
newspapers immediately after the date of occurrence, did cause
certain confusion in the mind of public as to the description and
number of the actual assailants/suspects. It is unfortunate that
trial by media did, though to a very limited extent, affect the
accused, but not tantamount to a prejudice which should weigh with
the Court in taking any different view. The freedom of speech
protected under Article 19 (1) (a) of the Constitution has to be
carefully and cautiously used, so as to avoid interference in the
administration of justice and leading to undesirable results in the
matters sub judice before the Courts.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">150)
A Bench of this Court in the case of </span></span><a href="http://www.indiankanoon.org/doc/58440/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">R.K.
Anand v. Delhi High Court</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2009)
8 SCC 106, clearly stated it would be a sad day for the court to
employ the media for setting its own house in order and the media too
would not relish the role of being the snoopers for the Court. Media
should perform the acts of journalism and not as a special agency for
the Court. The impact of television and newspaper coverage on a
person's reputation by creating a widespread perception of guilt,
regardless of any verdict in a Court of law. This will not be fair.
Even in the case of M.P. Lohia v. State of W.B. & Anr. (2005)
2 SCC 686, the Court reiterated its earlier view that freedom of
speech and expression sometimes may amount to interference with the
administration of justice as the articles appearing in the media
could be prejudicial, this should not be permitted.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">151)
Presumption of innocence of an accused is a legal presumption and
should not be destroyed at the very threshold through the process of
media trial and that too when the investigation is pending. In that
event, it will be opposed to the very basic rule of law and would
impinge upon the protection granted to an accused under Article 21 of
the Constitution [</span></span><a href="http://www.indiankanoon.org/doc/59539/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Anukul
Chandra Pradhan v. Union of India &</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">amp;
Ors. (1996) 6 SCC 354]. It is essential for the maintenance of
dignity of Courts and is one of the cardinal principles of rule of
law in a free democratic country, that the criticism or even the
reporting particularly, in sub judice matters must be subjected to
check and balances so as not to interfere with the administration of
justice.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">152)
In the present case, various articles in the print media had appeared
even during the pendency of the matter before the High Court which
again gave rise to unnecessary controversies and apparently, had an
effect of interfering with the administration of criminal justice. We
would certainly caution all modes of media to extend their
cooperation to ensure fair investigation, trial, defence of accused
and non interference in the administration of justice in matters sub
judice.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">153)
Summary of our Conclusion:</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1)
The appellate Court has all the necessary powers to re- evaluate the
evidence let in before the trial Court as well as the conclusions
reached. It has a duty to specify the compelling and substantial
reasons in case it reverses the order of acquittal passed by the
trial Court. In the case on hand, the High Court by adhering to all
the ingredients and by giving cogent and adequate reasons reversed
the order of acquittal. 2) The presence of the accused at the scene
of crime is proved through the ocular testimonies of PWs 1, 2, 6, 20,
23, 24 and 70, corroborated by Ex PW 12/D-I as well as 3 PCR calls Ex
PW 11/A, B and C.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3)
Phone calls made immediately after an incident to the police
constitutes an FIR only when they are not vague and cryptic. Calls
purely for the reason of getting the police to the scene of crime do
not necessarily constitute the FIR. In the present case, the phone
calls were vague and therefore could not be registered as the FIR.
The FIR was properly lodged as per the statement of Shyan Munshi
PW-2.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4)
Delay in recording the statement of the witnesses do not necessarily
discredit their testimonies. The court may rely on such testimonies
if they are cogent and credible. 5) The laboratory reports in the
present case are vague and ambiguous and, therefore, they cannot be
relied upon to reach any specific conclusion regarding the incident.
6) The evidence regarding the actual incident, the testimonies of
witnesses, the evidence connecting the vehicles and cartridges to the
accused - Manu Sharma, as well as his conduct after the incident
prove his guilt beyond reasonable doubt. The High Court has analyzed
all the evidence and arrived at the correct conclusion. 7) The public
prosecutor is under a duty of disclosure under the Cr.P.C., Bar
Council Rules and relevant principles of common law. Nevertheless, a
violation of this duty does not necessarily vitiate the entire trial.
A trial would only be vitiated if non-disclosure amounts to a
material irregularity and causes irreversible prejudice to the
accused. In the present case, no such prejudice was caused to the
accused, and therefore the trial is not vitiated.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8)
No prejudice had been caused to the right of the accused to fair
trial and non-furnishing of the copy of one of the ballistic reports
had not hampered the ends of justice. The right of the accused to
disclosure has not received any set back in the facts and
circumstances of the case. 9) The High Court has rightly convicted
the other two accused, namely, Amardeep Singh Gill @ Tony Gill and
Vikas Yadav after appreciation of the evidence of PWs 30 and 101. 10)
Normally, the judgment/order should be set aside or affirmed as the
case may be but preferably without offering any undesirable comments,
disparaging remarks or indications which would impinge upon the
dignity and respect of judicial system.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11)
Every effort should be made by the print and electronic media to
ensure that the distinction between trial by media and informative
media should always be maintained. Trial by media should be avoided
particularly, at a stage when the suspect is entitled to the
constitutional protections. Invasion of his rights is bound to be
held as impermissible.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">154)
In the light of the above discussion, we hold that the prosecution
has established its case beyond doubt against the appellants and we
are in agreement with the conclusion arrived at by the High Court,
consequently, all the appeals are devoid of any merit and are
accordingly dismissed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">..........................................J.
(P. SATHASIVAM)</span></span></div>
<div align="JUSTIFY">
<br />
<br /></div>
<div align="JUSTIFY" style="page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">..........................................J.
(SWATANTER KUMAR)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">NEW
DELHI;</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">APRIL
19, 2010.</span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-45239166267576170822013-08-16T11:02:00.001+05:302013-08-16T11:03:53.047+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<span style="color: black;"><span style="font-family: Times New Roman;"><span style="color: red;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"><b>Judgment:</b></span></span></span><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"> Arising
Out Of Special Leave Petition (Crl) No. 2857/2008</span></span><span style="color: #336699;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"><b>Arijit
Pasayat, J.</b></span></span></span><span style="color: red;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">-
Leave granted</span></span></span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">This
appeal has been filed by the accused who stands convicted for
offences punishable under Section 306 of Indian Penal Code and
Section 4 of the Dowry Prohibition Act 1961 and sentenced to
imprisonment for 5 years and 6 months R.I. respectively - both
sentences to run concurrently. The facts are as under:</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">3.
Karuna, deceased and the appellant Anand Kumar were married in the
year 1981 while she was yet a child. The gauna of the deceased,
however, took place on 13th May 1986 and a month thereafter she
visited her parents home to attend a family wedding and on 18th June
1986, returned to her matrimonial home accompanied by her
brother-in-law. She, however, consumed aluminium phosphide (Sulphas)
tablets on 28th June 1986 and in a precarious condition was removed
to Kothi hospital from where she was referred to the Civil Hospital,
Satna for further management. The Naib Tehsildar- cum-Executive
Magistrate concerned was called by the doctor who recorded her dying
declaration. Karuna, however, died soon thereafter, on which
information was sent to Police Station City Kotwali, Satna on 29th
June 1986 and a case under Section 498 A and 306 of the IPC and
Section 4 of the Dowry Prohibition Act was registered. On the
completion of the investigation, the four accused i.e. the appellant,
his father Manmohan Gautam, mother Ramdulari and brother Anoop Kumar
Gautam were committed to face trial and duly charged for the
offences, as above mentioned. The trial court after recording the
evidence of 20 witnesses and taking into account, in particular the
ocular evidence, acquitted the parents and brother of the appellant
but placing reliance on a letter dated 27th February 1986 Exhibit
P-20 allegedly written by the appellant to his father-in-law held the
case against the appellant proved and accordingly convicted and
sentenced him, as already indicated above. In appeal the High Court
confirmed the order of conviction and sentence. It is in these
circumstances that the matter is before us by special leave.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">5. Mr.
Tankha, the learned Senior Counsel for the appellant has, at the very
outset, pointed out that as per the findings recorded by the Trial
Court and confirmed by the High Court, the evidence adduced by the
Prosecution was unreliable so as to involve the three accused who had
been acquitted although the ocular evidence if at all pointed
directly towards Karuna's in-laws rather than at the appellant as
being the guilty party. He has submitted that in the fact that the
State had not chosen to challenge the acquittal of the three, it had
to be held that the evidence with regard to the present appellant too
was ambivalent and insufficient to bring home the charge against him.
He has further emphasized that the courts below too were conscious of
this fact and had accordingly chosen to rely on the letter Exhibit
P-20 in support of the ocular evidence against the appellant although
the said letter was inadmissible in evidence as it had not been
proved, and had on the other hand ignored the dying declaration
recorded by the Naib Tehsildar which exonerated all the accused of
any wrongdoing. Ms. Makhija, the learned State Counsel has, however,
pointed out that in the light of the presumption raised under Section
113-A of the Evidence Act, 1872 and the ocular evidence in the case
there was other unimpeachable evidence against the appellant, even
assuming that the letter Exhibit P-20 could not be looked into. She
has relied on State of Punjab Vs. Iqbal Singh and Others (1991) 3 SCC
1 to support her plea that a presumption had advisedly been raised
against an accused in an offence relating to abetment of suicide in
view of the malaise of dowry which had afflicted Indian society and
if this gross social evil had to be curbed, the court must also lend
a helping hand.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">6. We
have heard the learned counsel for the parties and gone through the
record. The fact that three of the accused have been acquitted and
that no appeal against their acquittal has been filed is admitted on
record. It is also clear from the impugned judgments that the courts
have relied heavily on the letter Exhibit P-20 to support the finding
of conviction against the appellant. This letter was sought to be
proved in evidence by PW-11 Ram Prasad, the father of the deceased,
to whom it had been addressed. This is what he had to say in his
examination in chief by way of its proof :</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"><i><b>"I
had received letter of threat from accused Anand Kumar on 27.02.86
through Peon Achchhe Lal and that letter is exhibit P20. He had
raised the demand for radio, watch, cycle and fan through that
letter, at the time of gauna, I had given him watch, radio, cycle and
fan as demanded in the letter."</b></i></span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">7. We
are of the opinion that <span style="color: red;"><b>this excerpt from
his evidence cannot be said to be proof of the document as no
statement was made that he recognized the handwriting or the
signature of the appellant</b></span>. Moreover, this letter had not
been produced before the police during the course of the initial
investigation and had been handed over to the police after several
months. This fact, as also a reading of the letter, indicates that
<span style="color: blue;"><b>this was a concocted piece of evidence and
the work of a legal mind, as no person would write such a letter
meeting all legal requirements for implicating himself and his near
relatives, in a claim for Dowry</b></span>.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">8.
Faced with this situation, Ms. Makhija has pointed out that even if
this letter was ignored, the other evidence against the appellant was
sufficient to maintain his conviction. She has, in particular, relied
on the evidence of Arun Kumar Mishra, the brother of the deceased
PW-1, a friend of the deceased Sudha Tripathi PW-8, her father Ram
Prasad PW-11, and Brij Kumari PW-17 Karuna's Sister-in-law to submit
that their evidence conclusively spelt out the prosecution's case.
We, however, find from a reading of the testimonies of these
witnesses that the problem, if any, lay with Karuna's mother- in-law
Ramdulari and she and nobody else was the villain and general
allegations with regard to the other accused find mention only in the
statement of Ram Prasad. We are, therefore, of the opinion that in
this background and keeping in view of the fact that Ramdulari has
been acquitted, it would not be possible to maintain the conviction
of the appellant on the basis of this evidence.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">9. Ms.
Makhija has then placed reliance on the presumption raised in a case
of abetment of suicide by a married woman, as envisaged under Section
113-A of the Evidence Act to contend that the onus lay on the accused
to prove his innocence. She has in this connection referred us to
Iqbal Singh's case (Supra) to emphasize that the legislative intent
in the introduction of Sections 113-A and 113-B of the Evidence Act
was to strengthen "the Prosecution hands by permitting a
presumption to be raised if certain foundational facts are
established and the unfortunate event has taken place within seven
years of marriage." She has accordingly submitted that in the
light of this presumption it was for the accused to prove that
nothing amiss had happened at their instance.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">10.
Undoubtedly, the aforesaid provisions do raise a presumption but the
facts of the case cannot be ignored. The different terminology of
Sections 113-A and 113-B itself brings out the real purpose behind
the two provisions and whereas Section 113-B places a heavier onus on
an accused, the onus placed under Section 113-A is far lighter. We
reproduce the two Sections hereunder to focus on this distinction:</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">"113-A.
Presumption as to abetment of suicide by a married woman.- When the
question is whether the commission of suicide by a woman had been
abetment by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the Court may presume,
having regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of her
husband.</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">113-B.
Presumption as to dowry death.- When the question is whether a person
has committed the dowry death of a woman and it is shown that soon
before her death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused the dowry
death. "</span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">11. <span style="color: red;"><b>A
comparative reading of the two provisions (particularly the
underlined portions) would highlight that under Section 113-A the
Court `may presume', having regard to all the other circumstances of
the case, an abetment of suicide as visualized by Section 306 of the
IPC but in Section 113-B which is relatable to Section 304-B the word
`may' has been substituted by `shall' and there is no reference to
the circumstances of the case. </b></span>Admittedly, the conviction
of the appellant has been recorded under Section 306 which is
relatable to Section 113-A and though the presumption against an
accused has to be raised therein as well, the onus is not as heavy as
in the case of a dowry death. In this background, Ms. Makhija's
arguments that the onus shifts exclusively and heavily on an accused
in such cases is not entirely correct and in the background of
sketchy ocular evidence and the additional fact that the dying
declaration recorded by the Naib Tehsildar completely exonerates all
the accused of any misconduct, clearly dispels any suspicion with
regard to their involvement in this unfortunate incident.</span></span></span><br />
<ol start="12">
<li><div style="border-bottom-color: rgb(0, 0, 0); border-bottom-width: 1.1pt; border-style: none none double; padding: 0in 0in 0.03in;">
We accordingly allow this appeal, set aside the impugned judgments
and direct that the Appellant be released forthwith, if not already
on bail</div>
</li>
</ol>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-77320762603082913752013-08-15T17:15:00.001+05:302013-08-15T17:16:31.354+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<span style="color: black;"><span style="font-family: Times New Roman;"><span style="color: red;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"><b>Judgment:</b></span></span></span><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"> (Arising
out of SLP(C)No.2173/2005)</span></span><span style="color: #336699;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;"><b>Tarun
Chatterjee, J.</b></span></span></span><span style="color: red;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">-
Leave granted</span></span></span></span></span><br />
<span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">This
Appeal is directed against an order dated 15th of December, 2004
passed by a Division Bench of the High Court of Karnataka at
Bangalore in Writ Appeal No.2945 of 2004.</span></span></span><br />
<span style="color: black;"> </span><span style="color: black;"><span style="font-family: MS Sans Serif;"><span style="font-size: x-small;">We
have heard learned counsel for the parties and examined the impugned
order and the order passed in the writ petition and other materials
on record. Having heard the learned counsel for the parties and after
going through the materials on record, we are not inclined to
interfere with the impugned order of the High Court as we find that
the High Court has rightly dismissed the writ appeal on the ground of
inordinate delay holding that the preliminary notification acquiring
the land in question including the lands of the appellants was issued
on </span></span></span>15th July, 1982 and the final
notification was issued on 16th August, 1985 and the award was passed
on 12th May, 1998 and possession of the land in question was taken
over on 30th June, 1998, and subsequent to that the writ petition was
filed in the year 2000. We are, therefore, of the view that the High
Court was justified in dismissing the writ appeal on the ground of
inordinate delay in filing the appeal. Accordingly, this appeal is
dismissed, with no order as to costs. Interim order passed by this
Court on 4.3.2005 stands vacated.<br />
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-20119022962958839862013-08-04T23:01:00.000+05:302013-08-04T23:06:38.856+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0in;">
<span style="color: #cdbfac;"><span style="font-family: georgia, verdana, sans-serif;"><b>Supreme
Court of India</b></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0.1in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><b>Lalita
Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012</b></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Author:
D Bhandari</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Bench:
Dalveer Bhandari, T.S. Thakur, Dipak Misra</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">IN
THE SUPREME COURT OF INDIA</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
ORIGINAL JURISDICTION</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">WRIT
PETITION (CRIMINAL) NO.68 OF 2008</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Lalita
Kumari ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Government
of U.P. & Others ...Respondents WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO.1410 OF 2011</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Samshudheen
...Appellant Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State,
Represented by Dy. Superintendent of Police Tamil Nadu ...Respondent
WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">SLP
(CRIMINAL) NO.5200 OF 2009</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Baldev
Singh Cheema ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State
of Punjab & Others ...Respondents WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">SLP
(CRIMINAL) NO.5986 OF 2010</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Surjit
Singh & Another ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State
of Punjab & Others ...Respondents AND</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CONTEMPT
PETITION NO. ARISING OUT OF D.26722 of 2008 IN</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">WRIT
PETITION (CRIMINAL) NO.68 OF 2008</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Daljit
Singh Grewal ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Inder Singh ...Respondent J U D G M E N T</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Dalveer
Bhandari, J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
We propose to deal with the abovementioned writ petition, the
criminal appeals and the contempt petition by this judgment. The
question of law involved in these cases is identical, therefore, all
these cases are being dealt with by a common judgment. In order to
avoid repetition, only the facts of the writ petition of Lalita
Kumari's case are recapitulated.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="font-family: georgia, verdana, sans-serif;">2.
<b><span style="color: red; font-size: large;">The petition has been filed before this Court under Article 32 of the
Constitution of India in the nature of habeas corpus</span></b> to produce
Lalita Kumari, the minor daughter of Bhola Kamat.</span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
On 5.5.2008, Lalita Kumari, aged about six years, went out of her
house at 9 p.m. When she did not return for half an hour and Bhola
Kamat was not successful in tracing her, he filed a missing report at
the police station Loni, Ghaziabad, U.P.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
On 11.5.2008, respondent no.5 met Bhola Kamat and informed him that
his daughter has been kidnapped and kept under unlawful confinement
by the respondent nos.6 to 13. The respondent-police did not take any
action on his complaint. Aggrieved by the inaction of the local
police, Bhola Kamat made a representation on 3.6.2008 to the Senior
Superintendent of Police, Ghaziabad. On the directions of the
Superintendent of Police, Ghaziabad, the police station Loni,
Ghaziabad registered a First Information Report (F.I.R.) No.484 dated
6.6.2008 under Sections 363/366/506/120B IPC against the private
respondents.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
Even after registration of the FIR against the private respondents,
the police did not take any action to trace Lalita Kumari. According
to the allegation of Bhola Kamat, he was asked to pay money for
initiating investigation and to arrest the accused persons.
Ultimately, the petitioner filed this petition under Article 32 of
the Constitution before this Court.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6.
This Court on 14.7.2008 passed a comprehensive order expressing its
grave anguish on non-registration of the FIR even in a case of
cognizable offence. The Court also issued notices to all Chief
Secretaries of the States and Administrators of the Union
Territories. In response to the directions of the Court, various
States and the Union Territories have filed comprehensive affidavits.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>7.
The short, but extremely important issue which arises in this
petition is whether under Section 154 of the Code of Criminal
Procedure Code, a police officer is bound to register an FIR when a
cognizable offence is made out or he has some latitude of conducting
some kind of preliminary enquiry before registering the FIR.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
Mr. S.B. Upadhyay, learned senior advocate appearing for the
petitioner has tried to explain the scheme of Section 154 Cr.P.C.
with the help of other provisions of the Act. According to him,
whenever information regarding cognizable offence is brought to the
notice of the SHO, he has no option but to register the First
Information Report.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
This Court also issued notice to the learned Attorney General for
India to assist the Court in this matter of general public
importance. Mr. Harish P Raval, the learned Additional Solicitor
General appeared before the Court and made comprehensive submissions.
He also filed written submissions which were settled by him and
re-settled by the learned Attorney General for India.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
Learned Additional Solicitor General submitted that the issue which
has been referred to this Court has been decided by a three-Judge
Bench of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/325716/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Aleque
Padamsee and Others v. Union of India and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2007)
6 SCC 171. In this case, this Court while referring to the judgment
in the case of </span></span><a href="http://indiankanoon.org/doc/116992/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Kumari v. State (NCT of Delhi) and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2006)
2 SCC 677 in paragraph 2 of the judgment has observed as under:-
"</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Whenever
cognizable offence is disclosed the police officials are bound to
register the same and in case it is not done, directions to register
the same can be given.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
11.
The State of Gujarat, the respondent in the above case, on the facts
thereof, contended that on a bare reading of a complaint lodged, it
appears that no offence was made and that whenever a complaint is
lodged, automatically and in a routine manner an FIR is not to be
registered. This Court after considering Chapter XII and more
particularly Sections 154 and 156 held (paragraphs 6 and 7) that
"<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>whenever
any information is received by the police about the alleged
commission of offence which is a cognizable one, there is a duty to
register the FIR.</b></span></span></span>" There
could be no dispute on that score as observed by this Court. The
issue referred to in the reference has already been answered by the
Bench of three Judges. The judgment in Aleque Padamsee and Others
(supra) is not referred in the reference order. It is therefore
prayed that the present reference be answered accordingly.</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
It was submitted on behalf of the Union of India that Section 154 (1)
provides that every information relating to the commission of a
cognizable offence if given orally, to an officer incharge of a
police station shall be reduced in writing by him or under his
directions. The provision is mandatory. The use of the word
"shall" by the legislation is indicative of the
statutory intent. In case such information is given in writing or is
reduced in writing on being given orally, it is required to be signed
by the persons giving it. It is further provided that the substance
of commission of a cognizable offence as given in writing or reduced
to writing "shall" be entered in a book to be kept
by such officer in such form as the State Government may prescribe in
this behalf. Sub-section (2) provides that a copy of such information
as recorded in sub-section (1) shall be given forthwith free of cost
to the informant.</span></span></div>
<ol start="13">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
light of the provisions contained in Section 154 (1) and the law
laid by this Court on the subject, the following submissions were
placed by the Union of India for consideration of this Court.</span></span></div>
</li>
<li><div align="JUSTIFY" style="line-height: 0.25in;">
a) <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
statutory intention is manifest on a bare reading of provisions of
Section 154(1) to the effect that when an officer incharge of a
police station to whom information relating to commission of
cognizable offence has been disclosed, he has no discretion save and
except to reduce the said information in writing by him or under his
direction.</span></span></div>
</li>
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">b)
Section 154(1) does not have ambiguity and is in clear terms.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">c)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
use of expression "shall" clearly manifest the
mandatory statutory intention.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">d)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>In
construing a statutory provision, the first and the foremost rule of
construction is the literal construction. It is submitted that all
that the Court has to see at the very outset is what does that
provision say. If the provision is unambiguous and if from that
provision, the legislative intent is clear, the Court need not call
into it the other rules on construction of statutes.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
[Para 22 of Hiralal Rattanlal etc.etc. v. State of U.P. and Another
etc.etc. 1973(1) SCC 216]. This judgment is referred to and followed
in a recent decision of this Court in </span></span><a href="http://indiankanoon.org/doc/421654/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">B.
Premanand and Others v. Mohan Koikal and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2011)
94 SCC 266 paras 8 and 9. It is submitted that the language employed
in Section 154 is the determinative factor of the legislative intent.
There is neither any defect nor any omission in words used by the
legislature. The legislative intent is clear. The language of Section
154(1), therefore, admits of no other construction. e) The use of
expression "shall" is indicative of the intention
of the legislature which has used a language of compulsive force.
There is nothing indicative of the contrary in the context indicating
a permissive interpretation of Section 154. It is submitted that the
said Section ought to be construed as preemptory. The words are
precise and unambiguous </span></span><a href="http://indiankanoon.org/doc/329988/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">(Govindlal
Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra and
Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1975
(2) SCC 482). It is submitted that </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>it
is settled law that judgments of the courts are not to be construed
as statutes</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
[para 11 of three-Judge Bench decision of this court in the case of
M/s Amar Nath Om Prakash and others etc. v. State of Punjab and
Others (1985) 1 SCC 345]. The abovesaid decision is followed by a
judgment of this Court in the case of Hameed Joharan (dead) and
others v. Abdul Salam (dead) by Lrs. and Others (2001) 7 SCC 573.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>f)
The provision of Section 154(1) read in light of statutory scheme do
not admit of conferring any discretion on the officer in charge of
the police station of embarking upon an preliminary enquiry prior to
registration of an FIR. A preliminary enquiry is a term which is
alien to the Code of Criminal Procedure, 1973 which talks of (i)
investigation (ii) inquiry and (iii) trial. These terms are definite
connotations having been defined under Section 2 of the Act.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">g)
The concept of preliminary enquiry as contained in Chapter IX of the
CBI (Crime) Manual, first published in 1991 and thereafter updated on
15.7.2005 cannot be relied upon to import the concept of holding of
preliminary enquiry in the scheme of the Code of Criminal Procedure.
h) <span style="color: red;"><b>The interpretation of Section 154 cannot
be depended upon a Manual regulating the conduct of officers of an
organization, i.e., CBI.</b></span> i) A reference to para 9.1. of
the said Manual would show that preliminary enquiry is contemplated
only when a complaint is received or information is available which
may after verification as enjoined in the said Manual indicates
serious misconduct on the part of the public servant but is not
adequate to justify registration of a regular case under provisions
of Section 154 Cr.P.C. Such preliminary inquiry as referred to in
para 9.1 of the CBI Manual as also to be registered after obtaining
approval of the competent authority. It is submitted that these
provisions cannot be imported into the statutory scheme of Section
154 so as to provide any discretion to a police officer in the matter
of registration of an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">j)
The purpose of registration of an FIR are manifold -that is to say</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">i)
To reduce the substance of information disclosing commission of a
cognizable offence, if given orally, into writing</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ii)
if given in writing to have it signed by the complainant</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iii)
to maintain record of receipt of information as regards commission of
cognizable offences</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iv)
to initiate investigation on receipt of information as regards
commission of cognizable offence</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">v)
to inform Magistrate forthwith of the factum of the information
received.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">14.
Reference has also been made to the celebrated judgment of the Privy
Council in the case of Emperor v. Khwaza Nazim Ahmad AIR 1945 PC 18
in which it is held that for the receipt and recording of an
information, report is not a condition precedent to the setting in
motion of a criminal investigation. It is further held, that no
doubt, in the great majority of cases criminal prosecution are
undertaken as a result of the information received and recorded in
this way. (As provided in Sections 154 to 156 of the earlier Code).
It is further held that there is no reason why the police, if in
possession through their own knowledge or by means of credible though
informal intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own motion
undertake an investigation into the truth of the matters alleged. It
is further held that Section 157 of the Code when directing that a
police officer, who has a reason to suspect from information or
otherwise, that an offence which he is empowered to investigate under
Section 156 has been committed, he shall proceed to investigate the
facts and circumstances of the case. It is further held in the said
judgment that, in truth the provisions as to an information report
(commonly called a First Information Report) are enacted for other
reasons. Its object is to obtain early information of alleged
criminal activity, to record the circumstances before there is time
for them to be forgotten or embellished, and it has to be remembered
that the report can be put in evidence when the informant is
examined, if it is desired to do so. <b>It is further held in the
said judgment that there is a statutory right on part of the police
to investigate the circumstances of an alleged cognizable crime
without requiring any authority from the judicial authorities.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15.
On behalf of the Union of India reference was made to the judgment of
this Court delivered in</span></span><a href="http://indiankanoon.org/doc/1256432/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">The
State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1964
SC 221 wherein it has been held vide para 8 that Section 154 of the
Code prescribed the mode of recording the information received orally
or in writing by an officer incharge of a police station in respect
of commission of a cognizable offence. Section 156 thereof authorizes
such an officer to investigate any cognizable offence prescribed
therein. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Though,
ordinarily investigation is undertaken on information received by a
police officer, the receipt of information is not a condition
precedent for investigation.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16.
It is further held that Section 157 prescribes the procedure in the
matter of such an investigation which can be initiated either on
information or otherwise. It is also held that it is clear from the
said provision that an officer in charge of a police station can
start investigation either on information or otherwise. The judges in
the said judgment referred to a decision of this Court in the case of
H.N. Rishbud and Inder Singh v. The State of Delhi 1955 SCR (1) 1150
at pp.1157-58 that the graphic description of the stages is only a
restatement of the principle that a vague information or an
irresponsible rumour would not by itself constitute information
within the meaning of Section 154 of the Code or the basis of an
investigation under Section 157 thereof. The said case was in respect
of an offence alleged under Prevention of Corruption Act, 1947. The
said case was under the old Code which did not define the term
`investigation' (paragraph 18 of the concurring judgment of Justice
Mudholkar at page 226). It is also observed that the main object of
investigation mean to bring home the offence to the offender. The
essential part of the duty of an investigating officer in this
connection is, apart from arresting the offender, to collect all
material necessary for establishing the accusation
"against" the offender.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">17.
The following observations in the concurring judgment of Bhagwant
Kishore Joshi (supra) were found in paragraph 18 : “In the absence
of any prohibition in the Code, express or implied, I am of opinion
that it is open to a Police Officer to make preliminary enquiries
before registering an offence and making a full scale investigation
into it. No doubt, s. 5A of the Prevention of Corruption Act was
enacted for preventing harassment to a Government servant and with
this object in view investigation, except with the previous
permission of a Magistrate, is not permitted to be made by an officer
below the rank of a Deputy Superintendent of Police. Where however, a
Police Officer makes some preliminary enquiries, does not arrest or
even question an accused or question any witnesses but merely makes a
few discreet enquiries or looks at some documents without making any
notes, it is difficult to visualise how any possible harassment or
even embarrassment would result therefrom to the suspect or the
accused person.”</span></span></div>
<ol start="18">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
case of H.N. Rishbud (supra), in the case under the Prevention of
Corruption Act, 1947, it is observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Investigation
usually starts on information relating to the commission of an
offence given to an officer in charge of a police station and
recorded under section 154 of the Code. If from information so
received or otherwise, the officer in charge of the police station
has reason to suspect the commission of an offence, he or some other
subordinate officer deputed by him, has to proceed to the spot to
investigate the facts and circumstances of the case and if necessary
to take measures for the discovery and arrest of the offender.”</span></span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in; page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is further held :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Thus
investigation primarily consists in the ascertainment of the facts
and circumstances of the case. By definition, it includes "all
the proceedings under the Code for the collection of evidence
conducted by a police officer”.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is further held in the said judgment that : “Thus, under the Code
investigation consists generally of the following steps:(1)
Proceeding to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements
into writing, if the officer thinks fit, (b) the search of places of
seizure of things considered necessary for the investigation and to
be produced at the trial, and (5) Formation of the opinion as to
whether on the material collected there is a case to place the
accused before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under section
173”.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">19.
It was further submitted that this Court in the case of </span></span><a href="http://indiankanoon.org/doc/274915/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Damodar
v. State of Rajasthan</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> reported
in 2004(12) SCC 336 referred to the observations of the judgment of
this Court rendered in case of</span></span><a href="http://indiankanoon.org/doc/452608/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramsinh
Bavaji Jadeja v. State of Gujarat</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1994
(2) SCC 685 and observed that the question as to at what stage the
investigation commence has to be considered and examined on the facts
of each case especially when the information of alleged cognizable
offence has been given on telephone. The said case deals with
information received on telephone by an unknown person. In paragraph
10 it is observed thus “in order to constitute the FIR, the
information must reveal commission of act which is a cognizable
offence.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">20.
It is further observed in paragraph 11 in the case of Damodar (supra)
that in the context of the facts of the said case, that any
telephonic information about commission of a cognizable offence, if
any, irrespective of the nature and details of such information
cannot be treated as an FIR. It is further held that if the
telephonic message is cryptic in nature and the officer incharge
proceeds to the place of occurrence on the basis of that information
to find out the details of the nature of the offence, if any, then it
cannot be said that the information which had been received by him on
telephone shall be deemed to be an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">21.
It is also observed that the object and purpose of giving such
telephonic message is not to lodge an FIR, but to make the officer
incharge of the police station reach the place of occurrence. It is
further held that if the information given on telephone is not
cryptic and on the basis of that information the officer incharge is
prima facie satisfied about commission of a cognizable offence and he
proceeds from the police station after recording such information, to
investigate such offence, then any statement made by any person in
respect of the said offence including the participants shall be
deemed to be statement made by a person to the police officer in the
course of investigation covered by Section 162 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">22.
This Court in the case of </span></span><a href="http://indiankanoon.org/doc/1460988/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Binay
Kumar Singh v. The State of Bihar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1997(1)
SCC 283 observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">.....It
is evidently a cryptic information and is hardly sufficient for
discerning the commission of any cognizable offence therefrom. Under
Section 154 of the Code the information must unmistakably relate to
the commission of a cognizable offence and it shall be reduced to
writing (if given orally) and shall be signed by its maker. The next
requirement is that the substance thereof shall be entered in a book
kept in the police station in such form as the State Government has
prescribed. First information report (FIR) has to be prepared and it
shall be forwarded to the magistrate who is empowered to take
cognizance of such offence upon such report. The officer in charge of
a police station is not obliged to prepare FIR on any nebulous
information received from somebody who does not disclose any
authentic knowledge about commission of the cognizable offence. It is
open to the officer-in-charge to collect more information containing
details about the occurrence, if available, so that he can consider
whether a cognizable offence has been committed warranting
investigation thereto.”</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">23.
It is submitted that in the said judgment what fell for consideration
of the Court was the conviction and sentence in respect of the
offence under Sections 302/149 of the IPC in respect of a murder
which took place in a Bihar village wherein lives of 13 people were
lost and 17 other were badly injured along with burning alive of
large number of mute cattle and many dwelling houses. It is also
submitted that the interpretation of Section 154 was not directly in
issue in the said judgment.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">24.
Reliance is placed on a decision of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/740262/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Madhu
Bala v. Suresh Kumar and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> reported
as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2), 154 and
190(1) (a) and (b) and more particularly upon the following
paragraphs of the said judgment. The same read as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Coming
first to the relevant provisions of the Code, Section 2(d) defines
“complaint” to mean any allegation made orally or in writing to a
Magistrate, with a view to his taking action under the Code, that
some person, whether known or unknown has committed an offence, but
does not include a police report. Under Section 2(c) “cognizable
offence” means an offence for which, and “cognizable case”
means a case in which a police officer may in accordance with the
First Schedule (of the Code) or under any other law for the time
being in force, arrest without a warrant. Under Section 2(r) “police
report” means a report forwarded by a police officer to a
Magistrate under sub- section (2) of Section 173 of the Code. Chapter
XII of the Code comprising Sections 154 to 176 relates to information
to the police and their powers to investigate. Section 154 provides,
inter alia, that the officer in charge of a police station shall
reduce into writing every information relating to the commission of a
cognizable offence given to him orally and every such information if
given in writing shall be signed by the person giving it and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Section
156 of the Code with which we are primarily concerned in these
appeals reads as under:</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">(1)
Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a court having
jurisdiction over the local area within the limits of such station
would have power to inquire into or try under the provisions of
Chapter XIII.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(2)
No proceeding of a police officer in any such case shall at any stage
be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(3)
Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">On
completion of investigation undertaken under Section 156(1) the
officer in charge of the police station is required under Section
173(2) to forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the
State Government containing all the particulars mentioned therein.
Chapter XIV of the Code lays down the conditions requisite for
initiation of proceedings by the Magistrate. Under sub-section (1) of
Section 190 appearing in that Chapter any Magistrate of the First
Class and any Magistrate of the Second Class specially empowered may
take cognizance of any offence (a) upon receiving a “complaint”
of facts which constitutes such offence; (b) upon a "police
report" of such facts; or (c) upon information received from
any person other than a police officer, or upon his own knowledge
that such offence has been committed. Chapter XV prescribes the
procedure the Magistrate has to initially follow if it takes
cognizance of an offence on a complaint under Section 190(1)(a).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">25.
Learned counsel for the Union of India relied on the following
passage from Madhu Bala (supra) :- “From a combined reading of the
above provisions it is abundantly clear that when a written complaint
disclosing a cognizable offence is made before a Magistrate, he may
take cognizance upon the same under Section 190(1)(a) of the Code and
proceed with the same in accordance with the provisions of Chapter
XV. The other option available to the Magistrate in such a case is to
send the complaint to the appropriate police station under Section
156(3) for investigation. Once such a direction is given under
sub-section (3) of Section 156 the police is required to investigate
into that complaint under sub- section (1) thereof and on completion
of investigation to submit a "police report" in
accordance with Section 173(2) on which a Magistrate may take
cognizance under Section 190(1)(b) -- but not under 190(1)(a). Since
a complaint filed before a Magistrate cannot be a "police
report" in view of the definition of "complaint"
referred to earlier and since the investigation of a "cognizable
case" by the police under Section 156(1) has to culminate in
a "police report" the "complaint"
-- as soon as an order under Section 156(3) is passed thereon --
transforms itself to a report given in writing within the meaning of
Section 154 of the Code, which is known as the first information
report (FIR). As under Section 156(1), the police can only
investigate a cognizable "case", it has to formally
register a case on that report."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">26.
Mr. Raval also relied on the following passage from Madhu Bala' s
case:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"From
the foregoing discussion it is evident that whenever a Magistrate
directs an investigation on a "complaint" the
police has to register a cognizable case on that complaint treating
the same as the FIR and comply with the requirements of the above
Rules. It, therefore, passes our comprehension as to how the
direction of a Magistrate asking the police to "register a
case" makes an order of investigation under Section 156(3)
legally unsustainable. Indeed, even if a Magistrate does not pass a
direction to register a case, still in view of the provisions of
Section 156(1) of the Code which empowers the police to investigate
into a cognizable "case" and the Rules framed under
the Indian Police Act, 1861 it (the police) is duty-bound to formally
register a case and then investigate into the same. The provisions of
the Code, therefore, do not in any way stand in the way of a
Magistrate to direct the police to register a case at the police
station and then investigate into the same. In our opinion when an
order for investigation under Section 156(3) of the Code is to be
made the proper direction to the police would be "to
register a case at the police station treating the complaint as the
first information report and investigate into the same".</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">27.
This Court in the case of </span></span><a href="http://indiankanoon.org/doc/185635/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Hallu
and others v. State of Madhya Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1974
(4) SCC 300 in the context of Section 154 of the Code held (para 7)
that Section 154 of the Code does not require that the Report must be
given by a person who has personal knowledge of the incident
reported. It is further held that the said Section speaks of an
information relating to the commission of a cognizable offence given
to an officer incharge of a police station.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">28.
Mr. Raval placed reliance on para 8 of the judgment of this Court in
the case of </span></span><a href="http://indiankanoon.org/doc/1792824/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Rajinder
Singh Katoch v. Chandigarh Administration and others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2007
(10) SCC 69, wherein this Court observed as under:- "8.Although
the officer in charge of a police station is legally bound to
register a first information report in terms of Section 154 of the
Code of Criminal Procedure, if the allegations made by them give rise
to an offence which can be investigated without obtaining any
permission from the Magistrate concerned, the same by itself,
however, does not take away the right of the competent officer to
make a preliminary enquiry, in a given case, in order to find out as
to whether the first information sought to be lodged had any
substance or not. In this case, the authorities had made
investigations into the matter. In fact, the Superintendent of Police
himself has, pursuant to the directions issued by the High Court,
investigated into the matter and visited the spot in order to find
out the truth in the complaint of the petitioner from the neighbours.
It was found that the complaint made by the appellant was false and
the same had been filed with an ulterior motive to take illegal
possession of the first floor of the house."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">29.
While referring to the decision of this Court in Ramesh Kumari
(supra) in para 11 of the judgment in Rajinder Singh's case, it is
observed as under:- "11. We are not oblivious to the
decision of this Court in Ramesh Kumari v. State (NCT of Delhi)
wherein such a statutory duty has been found in the police officer.
But, as indicated hereinbefore, in an appropriate case, the police
officers also have a duty to make a preliminary enquiry so as to find
out as to whether allegations made had any substance or not."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">30.
It is further submitted that the above observations run concurrently
to the settled principles of law and more particularly the three
judge Bench decision of this Court in Aleque Padamsee and Others
(supra).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31.
In the context of the statutory provisions, the learned counsel for
the Union of India drew the attention of this Court to the decision
of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/898506/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Superintendent
of Police, CBI and Others v. Tapan Kumar Singh AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2003
SC 4140, paragraph 20 at page 4145 as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is well settled that a First Information Report is not an
encyclopedia, which must disclose all facts and details relating to
the offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence took
place. A first informant need not necessarily be an eye witness so as
to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must
disclose the commission of a cognizable offence and the information
so lodged must provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is enough if the
police officer on the basis of the information given suspects the
commission of a cognizable offence, and not that he must be convinced
or satisfied that a cognizable offence has been committed. If he has
reasons to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also
not necessary for him to satisfy himself about the truthfulness of
the information. It is only after a complete investigation that he
may be able to report on the truthfulness or otherwise of the
information. Similarly, even if the information does not furnish all
the details, he must find out those details in the course of
investigation and collect all the necessary evidence. The information
given disclosing the commission of a cognizable offence only sets in
motion the investigative machinery, with a view to collect all
necessary evidence, and thereafter to take action in accordance with
law. The true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the concerned
police officer is empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or
depute any other competent officer to conduct the investigation. The
question as to whether the report is true, whether it discloses full
details regarding the manner of occurrence, whether the accused is
named, and whether there is sufficient evidence to support the
allegations are all matters which are alien to the consideration of
the question whether the report discloses the commission of a
cognizable offence. Even if the information does not give full
details regarding these matters, the investigating officer is not
absolved of his duty to investigate the case and discover the true
facts, if he can.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">32.
This Court in its decision in the case of Ramesh Kumari (supra) has
observed as under in paragraphs 3, 4 and 5 :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"3.
Mr Vikas Singh, the learned Additional Solicitor General, at the
outset, invites our attention to the counter-affidavit filed by the
respondent and submits that pursuant to the aforesaid observation of
the High Court the complaint/representation has been subsequently
examined by the respondent and found that no genuine case was
established. We are not convinced by this submission because the sole
grievance of the appellant is that no case has been registered in
terms of the mandatory provisions of Section 154(1) of the Criminal
Procedure Code. Genuineness or otherwise of the information can only
be considered after registration of the case. Genuineness or
credibility of the information is not a condition precedent for
registration of a case. We are also clearly of the view that the High
Court erred in law in dismissing the petition solely on the ground
that the contempt petition was pending and the appellant had an
alternative remedy. The ground of alternative remedy nor pending of
the contempt petition would be no substitute in law not to register a
case when a citizen makes a complaint of a cognizable offence against
a police officer.</span></span></div>
<ol start="4">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">That
a police officer mandatorily registers a case on a complaint of a
cognizable offence by the citizen under Section 154 of the Code is
no more res integra. The point of law has been set at rest by this
Court in </span></span><a href="http://indiankanoon.org/doc/1033637/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Haryana v. Bhajan Lal. This Court</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> after
examining the whole gamut and intricacies of the mandatory nature of
Section 154 of the Code has arrived at the finding in paras 31 and
32 of the judgment as under: (SCC pp. 354-55)</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31.
At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the
mandate of Section 154(1) of the Code, the police officer concerned
cannot embark upon an enquiry as to whether the information, laid by
the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not reliable or
credible. On the other hand, the officer in charge of a police
station is statutorily obliged to register a case and then to proceed
with the investigation if he has reason to suspect the commission of
an offence which he is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we have
proposed to make a detailed discussion about the power of a police
officer in the field of investigation of a cognizable offence within
the ambit of Sections 156 and 157 of the Code in the ensuing part of
this judgment, we do not propose to deal with those sections in
extenso in the present context.) In case, an officer in charge of a
police station refuses to exercise the jurisdiction vested in him and
to register a case on the information of a cognizable offence
reported and thereby violates the statutory duty cast upon him, the
person aggrieved by such refusal can send the substance of the
information in writing and by post to the Superintendent of Police
concerned who if satisfied that the information forwarded to him
discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by sub-section (3) of
Section 154 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">32.
Be it noted that in Section 154(1) of the Code, the legislature in
its collective wisdom has carefully and cautiously used the
expression `information' without qualifying the same as in Section
41(1)(a) or (g) of the Code wherein the expressions, `reasonable
complaint' and `credible information' are used. Evidently, the
non-qualification of the word `information' in Section 154(1) unlike
in Section 41(1)(a) and (g) of the Code may be for the reason that
the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with the
reasonableness or credibility of the information. In other words,
`reasonableness' or `credibility' of the said information is not a
condition precedent for registration of a case. A comparison of the
present Section 154 with those of the earlier Codes will indicate
that the legislature had purposely thought it fit to employ only the
word `information' without qualifying the said word. Section 139 of
the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the
Legislative Council of India read that `every complaint or
information' preferred to an officer in charge of a police station
should be reduced into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that `every complaint' preferred to an officer in
charge of a police station shall be reduced in writing. The word
`complaint' which occurred in previous two Codes of 1861 and 1872 was
deleted and in that place the word `information' was used in the
Codes of 1882 and 1898 which word is now used in Sections 154, 155,
157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An
overall reading of all the Codes makes it clear that the condition
which is sine qua non for recording a first information report is
that there must be an information and that information must disclose
a cognizable offence.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">33.
Finally, this Court in Ramesh Kumari (supra) in para 33 said :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"33.
It is, therefore, manifestly clear that if any information disclosing
a cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">34.
The views expressed by this Court in paras 31, 32 and 33 as quoted
above leave no manner of doubt that the provision of Section 154 of
the Code is mandatory and the officer concerned is duty-bound to
register the case on the basis of such an information disclosing
cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">35.
In the case of Ramesh Kumari (supra), this Court has held that the
views expressed by this Court in the case of </span></span><a href="http://indiankanoon.org/doc/1033637/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Haryana and Others v. Bhajan Lal and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1992
Suppl. (1) SCC 335 leave no matter of doubt that the provisions of
Section 154 of the Code is mandatory and the officer concerned is
duty bound to register the case on the basis of such information
disclosing a cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">36.
Mr. Raval while concluding his arguments reiterated that Section 154
of the Code it is mandatory for the officer concerned to register the
case on the basis of such information including cognizable offence.
According to Union of India, the police officer has no discretion in
the matter and this is according to the legislative intention behind
enacting Section 154 of the Code of Criminal Procedure.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">37.
Mr. Ratnakar Das, learned senior advocate appearing for the State of
U.P. adopted the arguments addressed by Mr. Raval on behalf of the
Union of India and submitted that the word `shall' appearing in
Section 154 mandates the police to enter the information about
commission of a cognizable offence in a book in such form commonly
known as "First Information Report'. At that stage, the
police cannot go into the question about the truth or otherwise of
the information and make a roving enquiry.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">38.
It was also submitted by Mr. Das that the word `information' is not
qualified by credible information. It has to be recorded with utmost
dispatch and if its recording is dependent upon any type of
preliminary enquiry, then there would be a great temptation to
incorporate the details and circumstances advantageous to the
prosecution which may be lacking in the earlier information.
Similarly, if the police is given the power to hold a preliminary
inquiry before registration of an FIR it may benefit the wrongdoer
because by afflux of time, the evidence would be obliterated or
destroyed and thereby justice would be denied to the victim of crime.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">39.
Mr. Das gave an example that in a bride burning case, when a person
makes a complaint that the husband and the in-laws of his daughter
have doused her with kerosene and set her ablaze and arrangements
were being made to cremate the dead body, in that case, if the police
instead of taking immediate steps to register an FIR proceeds to the
spot to seize the dead body and the burnt clothes etc. on the plea
that he is required to make preliminary enquiry to ascertain the
truth, then during the interregnum, no evidence would be available to
bring the offenders to book. It needs to mention that power is
conferred upon the police under the Code to make seizure in course of
investigation and not during the enquiry. So, the police being in
connivance with the accused may permit them to cremate the dead body
in order to cause disappearance of the evidence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">40.
It is further submitted by Mr. Das that now-a-days custodial violence
is on the rise. Horror of Bhagalpur blinding case and the Maya Tyagi
case in Uttar Pradesh are still in the minds of the people. It is
complained that the police do not take action against their own
brethren who commit crimes. Most of the times the Court intervenes
and it is only then that the person wronged gets justice. In such
cases if the police is given handle to hold a preliminary enquiry the
offender will get a scope to fabricate evidence and ultimately the
police will deny registration of an FIR on the ground that the
preliminary enquiry does not reveal any such offence having been
committed at all.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">41.
It was submitted on behalf of the Union of India and the State of
U.P. that in the Code the Legislature never intended to incorporate
any provision for conducting any `preliminary enquiry' before
registering an FIR when a report regarding commission of a cognizable
offence is made. The specific question on this issue was never raised
or agitated earlier before this Court at any point of time whether as
a general rule the police should hold a preliminary enquiry before
registering an FIR and take further steps in the investigation. Only
in two cases in respect of the offence under Prevention of Corruption
Act which was to be investigated by the Central Bureau of
Investigation (CBI) this Court taking note of the peculiar facts and
circumstances of those cases, made an observation that where public
servant is charged with acts of dishonesty amounting to serious
misdemeanor, registering an FIR should be preceded by some suitable
preliminary enquiry. In another case in which dispute regarding
property between the brothers was involved, this Court in the
peculiar facts of that case made an observation that though the
officer in charge of a police station is legally bound to register a
First Information Report in terms of Section 154 of the Code, if the
allegations give rise to an offence which can be investigated without
obtaining permission from the Magistrate, the same however, does not
take away the right of the competent officer to make a preliminary
enquiry in a given case in order to find whether the FIR sought to be
lodged has any substance or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">42.
According to him, the grievance of the appellant in the said case was
that his report which revealed commission of a cognizable case was
not treated as an FIR by the concerned police. It was not the issue
nor was any argument advanced as to whether registering of an FIR as
provided under Section 154 of the Code should be preceded by some
sort of preliminary enquiry or not. In such view of the matter, the
observation of this Court that it does not take away the right of the
competent officer to make a preliminary enquiry in a given case is
nothing but a passing observation.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">43.
According to Mr. Das, the provision of law about registration of an
FIR is very clear and whenever information relating to cognizable
offence is received by the police, in that event the police had no
option but to register the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">44.
Mr. Shekhar Naphade, learned Senior counsel appearing for the State
of Maharashtra on the other hand has taken a different view as taken
by the Union of India and submitted that before registering an FIR
under Section 154 Cr.P.C. it is open to the SHO to hold a preliminary
enquiry to ascertain whether there is prime facie case of commission
of cognizable offence or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">45.
Mr. Naphade has comprehensively explained the statutory scheme of
Section 154 Cr.P.C.. According to him, Sections 41, 57 154(3) 156(1)
and 156(3), 157, 167, 190 and 202 are an integral part of the
statutory scheme relating to investigation of crimes. These
provisions clearly contemplate that the police officer can exercise
powers under the aforesaid provisions provided he is prima-facie
satisfied that there are reasonable grounds to believe that the
accused is guilty of commission of the cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">46.
Section 154 of Cr.P.C. forms a part of a chain of statutory
provisions relating to investigation, and therefore, it must follow
that the provisions of Sections 41, 157, 167 etc. have a bearing on
the interpretation of Section 154 of Cr.P.C. The said judgments have
interpreted Section 154 of Cr.P.C. purely on the literal
interpretation test and while doing so, the other important tests of
statutory interpretation, like a statute must be read as a whole and
no provision of a statute should be considered and interpreted
de-hors the other provisions, the rule of purposive construction etc.
are lost sight of. He referred to the following cases - Tarachand and
Another v. State of Haryana 1971 (2) SCC 579, Sandeep Rammilan Shukla
v. State of Maharashtra and Others 2009 (1) Mh.L.J. 97, Sakiri Vasu
v. State of Uttar Pradesh and Others 2008 (2) SCC 409, </span></span><a href="http://indiankanoon.org/doc/1183254/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Nasar
Ali v. State of Uttar Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1957
SCR 657,</span></span><a href="http://indiankanoon.org/doc/1787029/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Union
of India and Another v. W.N. Chadha</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1993
(Suppl.) 4 SCC 260, </span></span><a href="http://indiankanoon.org/doc/342595/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of West Bengal v. S.N. Basak</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1963
(2) SCR 52.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">47.
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Mr.Naphade
submitted that in the case of allegations relating to medical
negligence on the part of doctors, this Court has clearly held that
no medical professional should be prosecuted merely on the basis of
the allegations in the complaint. There should be an in- depth
enquiry into the allegations relating to negligence and this
necessarily postulates a preliminary enquiry before registering an
FIR or before entering on investigation.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
He reported to </span></span><a href="http://indiankanoon.org/doc/521213/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of M.P. v. Santosh Kumar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> -
2006 (6) SCC 1 and </span></span><a href="http://indiankanoon.org/doc/650550/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Dr.
Suresh Gupta v. Govt. of NCT of Delhi and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2004(6)
SCC 422.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">48.
He also submitted that the same principle can also be made applicable
to the people of different categories. The literal interpretation of
Section would mean the registration of an FIR to a mechanical act.
The registration of an FIR results into serious consequences for the
person named as accused therein. It immediately results in loss of
reputation, impairment of his liberty, mental anguish, stigma, etc.
It is reasonable to assume that the legislature could not have
contemplated that a mere mechanical act on the part of SHO should
give rise to such consequences.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">49.
He submitted that the registration of an FIR under Section 154 of
Cr.P.C. is an administrative act of a police officer. In the case
of </span></span><a href="http://indiankanoon.org/doc/1318432/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Rai
Sahib Ram Jawaya Kapur and Others v. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1955
(2) SCR 225, </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>this
Court has explained what is administrative function and has said that
ordinarily the executive power connotes the residue of Government
functions that remain after legislative/judicial functions are taken
away. Every administrative act must be based on application of mind,
scrutiny and verification of the facts. No administrative act can
ever be a mechanical one. This is the requirement of rule of law.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
Reference was made to paras 12 and 13 of </span></span><a href="http://indiankanoon.org/doc/24956/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
(Anti-Corruption Branch), Govt. of NCT of Delhi and Another v. Dr.
R.C. Anand and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2004
(4) SCC 615.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">50.
According to Mr. Naphade, these judgments have not considered the
impact of Article 21 on Section 154 of Cr.P.C. After and beginning
with </span></span><a href="http://indiankanoon.org/doc/1766147/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Maneka
Gandhi v. Union of India and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1978
(1) SCC 248, this Court has applied Article 21 to several provisions
relating to criminal law. This Court has also said that the
expression "law" contained in Article 21
necessarily postulates law which is reasonable and not merely a
statutory provision irrespective of its reasonableness or otherwise.
In the light of Article 21, provisions of Section 154 of Cr.P.C. must
be read down to mean that before registering an FIR, the Station
House Officer must have a prima-facie satisfaction that there is
commission of cognizable offence as registration of an FIR leads to
serious consequences for the person named as accused and for this
purpose, the requirement of preliminary enquiry can be spelt out in
Section 154 and can be said to be implicit within the provisions of
Section 154 of Cr.P.C. Reliance was placed on Maneka Gandhi (supra)
and </span></span><a href="http://indiankanoon.org/doc/699319/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">S.M.D.
Kiran Pasha v. Government of Andhra Pradesh and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1990
(1) SCC 328.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">51.
The fact that Sections 154 (3), 156(3), 190, 202 etc. clearly provide
for remedies to a person aggrieved by refusal on the part of the SHO
to register an FIR, clearly show that the statute contemplates that
in certain circumstances the SHO can decline to register an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">52.
To require SHO to register an FIR irrespective of his opinion that
the allegations are absurd or highly improbable, motivated etc. would
cause a serious prejudice to the person named as accused in the
complaint and this would violate his rights under Article 21. This
Court has recognized the concept of pre- violation protection
implicit in Article 21. The said judgments while relying upon the
literal interpretation test have not considered the rule of statutory
interpretation that in certain situations the expression
"shall" does not convey mandatory character of the
provisions. For example, proviso to Section 202 (2) has been held
using the expression "shall" not to be mandatory
but directory. After all, Section 154 of Cr.P.C. is a part of the
procedural law and in respect of procedural law, the expression
"shall" may not always necessarily convey that the
provision is mandatory. Mr. Naphade placed reliance on the following
cases - </span></span><a href="http://indiankanoon.org/doc/928147/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">P.T.
Rajan v. T.P.M. Sahir and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2003(8)
SCC 498, </span></span><a href="http://indiankanoon.org/doc/633700/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Shivjee
Singh v. Nagendra Tiwary and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2010
(7) SCC 578 and Sarbananda Sonowal (II) etc. v. Union of India 2007
(1) SCC 174. The said judgments have also not considered the rule of
purposive interpretation and also that the statute must be considered
as a whole and no provision can be interpreted in isolation. 4</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">53.
The non-registration of an FIR does not result in crime going
unnoticed or unpunished. The registration of an FIR is only for the
purpose of making the information about the cognizable offence
available to the police and to the judicial authorities at earliest
possible opportunity. The delay in lodging an FIR does not
necessarily result in acquittal of the accused. The delay can always
be explained.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">54.
Mr. Naphade also submitted that this Court has also held that
registration of an FIR is not a condition precedent for initiating
investigation into the commission of a cognizable offence. Section
154 Cr.P.C. clearly imposed a duty on the police officer. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>When
an information is received, the officer in charge of the police
station is expected to reach the place of occurrence as early as
possible. It is not necessary for him to take steps only on the basis
of an FIR. It is the duty of the State to protect the life of an
injured as also an endeavour on the part of the responsible police
officer to reach the place of occurrence in his implicit duty and
responsibility.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
This has been held in the case of </span></span><a href="http://indiankanoon.org/doc/1112252/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Animireddy
Venkata Ramana and Others v. Public Prosecutor, High Court of Andhra
Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2008
(5) SCC 368.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">55.
Mr. Naphade further submitted that ordinarily the SHO should record
an FIR upon receiving a complaint disclosing the ingredients of a
cognizable offence, but in certain situations he should have the
discretion of holding a preliminary enquiry and thereafter if he is
satisfied, register an FIR.</span></span></div>
<ol start="56">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
provisions contained in Section 154 Cr.P.C. of 1973 were also there
in the 1898 Cr.P.C. and even the earlier one of 1877. The
interpretation that was placed by the High Courts and the Privy
Council on these provisions prior to Maneka Gandhi (supra) rested
principally on the words used in the Section de-hors the other
provisions of the Act and also de-hors the impact of Article 21 of
the Constitution on the criminal jurisprudence. In other words, the
courts have followed the test of literal interpretation without
considering the impact of Article 21.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">57.
It is a trite proposition that a person who is named in an FIR as an
accused, suffers social stigma. If an innocent person is falsely
implicated, he not only suffers from loss of reputation but also
mental tension and his personal liberty is seriously impaired. After
Maneka Gandhi's case, the proposition that the law which deprives a
person of his personal liberty must be reasonable, both from the
stand point of substantive aspect as well as procedural aspect is now
firmly established in our constitutional law. This warrants a fresh
look at Section 154 of Cr.P.C. Section 154 Cr.P.C. must be read in
conformity with the mandate of Article 21. If it is so interpreted,
the only conclusion is that if a Police Officer has doubts about the
veracity of the complaint, he can hold preliminary enquiry before
deciding to record or not to record an FIR. 5</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">58.
It is the mandate of Article 21 which requires a Police Officer to
protect a citizen from baseless allegations. This, however, does not
mean that before registering an FIR the police officer must fully
investigate the case. A delicate balance has to be maintained between
the interest of the society and protecting the liberty of an
individual. Therefore, what should be the precise parameters of a
preliminary enquiry cannot be laid down in abstract. The matter must
be left open to the discretion of the police officer.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">59.
A proposition that the moment the complaint discloses ingredients a
cognizable offence is lodged, the police officer must register an FIR
without any scrutiny whatsoever, is an extreme proposition and is
contrary to the mandate of Article 21. Similarly, the extreme point
of view is that the police officer must investigate the case
substantially before registering an FIR is also an argument of the
other extreme. <b>Both must be rejected and a middle path must be
chosen.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5</span></span></div>
<ol start="60">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Mr.Naphade
mentioned about Maneka Gandhi's case and observed that the attempt
of the Court should be to expand the reach and ambit of the
fundamental rights, rather than to attenuate their meaning and
contents by a process of judicial construction. The immediate impact
of registration of an FIR on an innocent person is loss of
reputation, impairment of personal liberty resulting in mental
anguish and, therefore, the act of the police officer in registering
an FIR must be informed by reason and it can be so only when there
is a prima facie case against the named accused.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">61.
According to Mr. Naphade, the provisions of Article 14 which are an
anti-thesis of arbitrariness and the provisions of Articles 19 and 21
which offer even a pre- violation protection require the police
officer to see that an innocent person is not exposed to baseless
allegations and, therefore, in appropriate cases he can hold
preliminary enquiry. In Maneka Gandhi's case this Court has
specifically laid down that in R.C. Cooper's case it has been held
that <b>all fundamental rights must be read together and that
Articles 14, 19 and 21 overlap in their content and scope and that
the expression `personal liberty' is of the widest amplitude and
covers a variety of rights which go to constitute personal liberty of
a citizen. </b>(Reliance was particularly placed on paras 5,6 and 7
on pages 278-284).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">62.
Mr. Naphade further argued that this Court has held that in order to
give concrete shape to a right under Article 21, this Court can issue
necessary directions in the matter. If directions as regards arrest
can be given, there is no reason why guidelines cannot be framed by
this Court as regards registration or non-registration of an FIR
under Section 154 Cr.P.C.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">63.
Mr. Naphade also submitted that the importance of the need of the
police officer's discretion of holding a preliminary inquiry is well
illustrated by the judgment of this Court in the case of Uma Shankar
Sitani v. Commissioner of Police, Delhi and Ors. 1996 (11) SCC 714.
In that case the complaint was lodged by one Sarvjeet Chauhan against
one Uma Shankar relating to alleged cognizable offence. Uma Shankar
was arrested and upon investigation it was found that the complainant
was a fictitious person. Somebody else had filed the false complaint.
The residential address of the fictitious complainant was also
fictitious. In the whole process Uma Shankar went through serious
mental turmoil as not only the allegation was found to be false, but
he was arrested by the police and had to undergo humiliation and loss
of reputation. Such incidents can happen and must have happened in
scores of cases as filing of false cases due to personal, political,
business rivalry, break- down of matrimonial relationship etc. are
rampant.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">64.
Mr. Naphade submitted that Section 498-A of I.P.C. which was meant to
be a measure of protection, turned out to be an instrument of
oppression. Judicial notice of this has been taken by this Court in
the case of Preeti Gupta and Another v. State of Jharkhand and
Another (2010) 7 SCC 667. In the said case, this Court has referred
to rapid increase in filing of complaints which are not bona fide and
are filed with oblique motives. Such false complaints lead to
insurmountable harassment, agony and pain to the accused. This Court
has observed that the allegations of the complainant in such cases
should be scrutinized with great care and circumspection. Is it,
therefore, not advisable that before registering an FIR, a
preliminary inquiry at least to verify the identity of the
complainant and his residential address should be carried out. This
case illustrates how on a false complaint, a person's right to life
and liberty under Article 21 of the Constitution can be put to
serious jeopardy.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">65.
This Court in its judgment in </span></span><a href="http://indiankanoon.org/doc/78536/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Francis
C. Mullin v. Administrator, Union Territory of Delhi</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1981
(1) SCC 608 [paras 4 and 5) has held that Article 21 requires that no
one shall be deprived of his life and personal liberty except by
procedure established by law and this procedure must be reasonable,
fair and just. If the procedure is not reasonable, fair and just, the
Court will immediately spring into action and run to the rescue of
the citizen. From this it can be easily deduced that where the police
officer has a reasonable doubt about the veracity of the complaint
and the motives that prompt the complainant to make the complaint, he
can hold a preliminary inquiry. Holding of preliminary inquiry is the
mandate of Article 21 in such cases. If the police officer
mechanically registers the complaint involving serious allegations,
even though he has doubts in the matter, Article 21 would be
violated. Therefore, Section 154 must be read in the light of Article
21 and so read preliminary inquiry is implicit in Section 154. In
paras 7 and 8 of the said judgment, this Court has made an
unequivocal declaration of the law that </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>any
act which damages or injures or interferes with use of any limb or
faculty of a person, either permanently or even temporarily, would be
within the ambit of Article 21.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
</span></span>
</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">66.
Not only this, every act which offends against and imperils human
dignity, would constitute deprivation pro tanto of this right to live
and it would have to be in accordance with the reasonable, just and
fair procedure established by law which stands the test of other
fundamental rights. A baseless allegation is a violation of human
dignity and despite the police officer having doubts about the
allegation, he being required to register an FIR, would be a clear
infringement of Article 21.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">67.
<b>Mr. Naphade further submitted that it is settled principle of law
that no single provision of a statute can be read and interpreted in
isolation. The statute must be read as a whole. In the present case,
the provisions of Sections 41,57, 156, 157, 159, 167, 190, 200 and
202 of Cr.P.C. must be read together. These provisions constitute the
statutory scheme relating to investigation of offences and,
therefore, no single provision can be read in isolation. Both,
Sections 41 and 154 deal with cognizable offence. Section 41 empowers
the police to arrest any person without warrant from the Magistrate
if such person is concerned in any cognizable offence or against whom
a reasonable complaint has been made or credible information has been
received or reasonable suspicion exits of such person having been so
concerned with the cognizable offence. Section 41 also specifically
refers to a cognizable complaint about commission of a cognizable
offence.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">68.
The scheme of the Act is that after the police officer records an FIR
under Section 154 Cr.P.C., he has to proceed to investigate under
Section 156 Cr.P.C. and while investigating the police officer has
power to arrest. What is required to be noted is that for the purpose
of arresting the accused, the police officer must have a reasonable
ground to believe that the accused is involved in the commission of a
cognizable offence. If Sections 41 and 154 are so read together, it
is clear that before registering an FIR under Section 154 the police
officer must form an opinion that there is a prima facie case against
the accused. If he does not form such an opinion and still proceeds
to record an FIR, he would be guilty of an arbitrary action. Every
public authority exercising any powers under any statute is under an
obligation to exercise that power in a reasonable manner. This
principle is well settled and it forms an integral part of the legal
system in this country.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">69.
Mr. Naphade submitted that the provisions of Section 154(3) enable
any complainant whose complaint is not registered as an FIR by the
SHO to approach the higher police officer for the purpose of getting
his complaint registered as an FIR and in such case, the higher
police officer has all the powers of recording an FIR and directing
investigation into the matter. Apart from this power under Section 36
any police officer senior in rank to an officer in charge of the
police station can exercise the same powers as may be exercised by
such officer in charge of the police station. Provisions of Section
154 (3) and Section 36 are clear indication that in an appropriate
case a police officer can either decline to register the FIR or defer
its registration. The provisions of Section 154(3) and Section 36 is
a sufficient safeguard against an arbitrary refusal on the part of a
police officer to register the FIR. The very fact that a provision
has been made in the statute for approaching the higher police
officer, is an indication of legislative intent that in appropriate
cases, a police officer may decline to register an FIR and/or defer
its registration.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>70.
In addition to the remedy available to the aggrieved person of
approaching higher police officer, he can also move the concerned
Magistrate either under Section 156(3) for making a complaint under
Section 190. If a complaint is lodged, the Magistrate can examine the
complainant and issue process against the accused and try the case
himself and in case triable by Sessions Court, then he will commit
the case to Sessions under Section 209.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">71.
The Magistrate can also on receipt of a complaint, hold an enquiry or
direct the police to investigate. In addition to the above, the
Magistrate also has a power to direct investigation under Section 159
Cr.P.C. In the case of Mona Panwar v. High Court of Judicature of
Allahabad (2011) 3 SCC 496 in paras 17 and 18 on page 503 this Court
has, inter alia, held that if the complaint relating to a cognizable
officer is not registered by the police, then the complainant can go
the Magistrate and then the Magistrate has the option of either
passing an order under Section 156(3) or proceeding under Section
200/202 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">72.
It was also submitted by Mr. Naphade that an order under Section
156(3) of the Code is in the nature of a preemptory reminder or
intimation to the police to exercise its plenary power of
investigation under Section 156(1). Such an investigation embraces
the entire continuous process which begins with the collection of
evidence under Section 156 and ends with the vital report either
under Section 169 or submission of a charge-sheet under Section 173
of the Code. A Magistrate can under Section 190 of the Code before
taking cognizance, direct investigation by the police by order under
Section 156(3) of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">73.
Mr. Naphade also submitted that the very fact that the Legislature
has provided adequate remedies against refusal to register an FIR and
hold investigation in cognizable offences is indicative of
legislative intent that the police officer is not bound to record an
FIR merely because the ingredients of cognizable offences are
disclosed in the complaint if he has doubt about the veracity of the
complaint.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">74.
In further support of the proposition that a police officer is not
bound to register an FIR on mere disclosure of existence of
ingredients of cognizable offence, it is submitted that the statute
does not contemplate that for the purpose of investigation, recording
of an FIR is a condition precedent. Section 156 empowers the police
to do so. Similarly, Section 157 clearly lays down that if from
information received or otherwise an officer in charge of the police
station has reason to suspect the commission of an offence, he can
investigate into the same. In Section 157(1) the expression
"from information received" obviously refers to
complaint under Section 154 Cr.P.C. registered as an FIR. The word
"otherwise" in Section 157 Cr.P.C. clearly
indicates that recording of an FIR is not a condition precedent to
initiation of investigation. The very fact that the police have a
power of investigation independent of registration of an FIR is a
clear pointer to the legislative intent that a police officer is not
bound to register an FIR in each and every case.</span></span></div>
<ol start="75">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Mr.
Naphade relied on the case of Apren Joseph alias current Kunjukunju
and Others v. State of Kerala 1973 (3) SCC 114 wherein in para 11
this Court has held that recording of an FIR is not a condition
precedent for setting in motion criminal investigation. In doing so,
this Court has approved the observation of Privy Council made in the
case of Khwaja Nazim Ahmad (supra).</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">76.
Mere recording of an FIR under Section 154 Cr.P.C. is of no
consequence unless the alleged offence is investigated into. For the
purpose of investigation after registration of the FIR, the police
officer must have reason to suspect commission of an offence. Despite
registration of the FIR, the police officer may not have a reasonable
ground to suspect that an offence has been committed and in that
situation he may decline to carry out investigation and may come to
the conclusion that there is no sufficient ground for carrying out
investigation. If under the proviso (b) to Section 157 Cr.P.C. the
police officer has such discretion of not investigating, then it
stands to reason that registration of an FIR should not result into
an empty formality.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">77.
The registration of an FIR should be effective and it can be
effective only if further investigation is to be carried out and
further investigation can be carried out only if the police officer
has reasonable ground to suspect that the offence is committed. If,
therefore, there is no reasonable ground to suspect the commission of
cognizable offence, the police officer will not investigate and if
that is a situation, then on the same footing he may decline to
register the FIR. This is clearly implicit in the provisions of
Section 154(1). It is, submitted that if the provisions of Section
154 are read with Sections 41,57,156,157,159,167,190,200 and 202
Cr.P.C., the only possible conclusion is that a police officer is not
bound to register each and every case.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">78.
Mr. Naphade placed reliance on </span></span><a href="http://indiankanoon.org/doc/1879287/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Maharashtra and Others v. Sarangdharsingh Shivdassingh Chavan and
Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2011)
1 SCC 577 wherein in paragraphs 29 and 30, this Court has observed as
follows:- “29. The legal position is well settled that on
information being lodged with the police and if the said information
discloses the commission of a cognizable offence, the police shall
record the same in accordance with the provisions contained under
Section 154 of the Criminal Procedure Code. The police officer's
power to investigate in case of a cognizable offence without order of
the Magistrate is statutorily recognised under Section 156 of the
Code. Thus the police officer in charge of a police station, on the
basis of information received or otherwise, can start investigation
if he has reasons to suspect the commission of any cognizable
offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">30.
This is subject to provisos (a) and (b) to Section 157 of the Code
which leave discretion with the police officer in charge of police
station to consider if the information is not of a serious nature, he
may depute a subordinate officer to investigate and if it appears to
the officer- in-charge that there does not exist sufficient ground,
he shall not investigate. This legal framework is a very vital
component of the rule of law in order to ensure prompt investigation
in cognizable cases and to maintain law and order.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">79.
He submitted that if the police officer is of the opinion that the
complaint is not credible and yet he is required to register the FIR,
then he would be justified in not investigating the case. In such a
case the FIR would become a useless lumber and a dead letter. The
police officer would then submit a closure report to the Magistrate.
The Magistrate then would issue notice to the complainant and hear
him. If the Magistrate is of the opinion that there is a case, then
he may direct police to investigate.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">80.
Mr. Napahde submitted that the aforesaid analysis of various
provisions of Criminal Procedure Code clearly bring out that the
statutory provisions clearly maintain a balance between the rights of
a complainant and of the Society to have a wrongdoer being brought to
book and the rights of the accused against baseless allegations.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>81.
The provisions have also to be read in the light of the principle of
malicious prosecution and the fundamental rights guaranteed under
Articles 14, 19 and 21. Every citizen has a right not to be subjected
to malicious prosecution and every police officer has an in- built
duty under Section 154 to ensure that an innocent person is not
falsely implicated in a criminal case. If despite the fact that the
police officer is not prima facie satisfied as regards commission of
a cognizable offence, and proceeds to register an FIR and carry out
investigation and thereby putting the liberty of a citizen in
jeopardy, he would expose himself to the charge of malicious
prosecution and against the charge of malicious prosecution the
doctrine of sovereign immunity will not protect him. There is no law
protecting a police officer who takes part in the malicious
prosecution.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">82.
Mr. Naphade also submitted that the word "shall"
used in the statute does not always mean absence of any discretion in
the matter.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">83.
The word "shall" does not necessarily lead to
provision being imperative or mandatory.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">84.
The use of word "shall" raises a presumption that
the particular provision is imperative. But, this presumption may be
rebutted by other considerations such as, object and scope of the
enactment and other consequences flowing from such construction.
There are numerous cases where the word "shall"
has, therefore, been construed as merely directory.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">85.
In the case of </span></span><a href="http://indiankanoon.org/doc/1628739/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Sainik
Motors, Jodhpur and Others v. State of Rajasthan AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1961
SC 1480, Hidayatullah, J. has held that the word "shall"
is ordinarily mandatory, but it is sometimes not so interpreted if
the context of intention otherwise demands.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">86.
Further, Subba Rao, J. in the case of </span></span><a href="http://indiankanoon.org/doc/1540511/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Uttar Pradesh and Others v. Babu Ram Upadhya AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1961
SC 751, has observed that when the statute uses the word
"shall" prima facie it is mandatory, but the Court
may ascertain the real intention of the legislature carefully
attending to the whole scope of the statute.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">87.
In the case of </span></span><a href="http://indiankanoon.org/doc/936398/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Madhya Pradesh v. M/s Azad Bharat Finance Co. and Another AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1967
SC 276 it has been held that the word "shall" does
not always mean that the provision is obligatory or mandatory. It
depends upon the context in which the word "shall"
occur and the other circumstances.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">88.
In the case of Shivjee Singh (supra) it has been held that the use of
word "shall" in proviso to Section 202 (2) of
Cr.P.C. prima facie is indicative of mandatory character of the
provision contained therein. But, a close and critical analysis
thereof along with other provisions show that the same is not
mandatory. Further, it has been observed that by its very
nomenclature, Cr.P.C. is a compendium of law relating to criminal
procedure. The provisions contained therein are required to be
interpreted keeping in view the well recognized rule of construction
that procedural prescriptions are meant for doing substantial
justice. If violation of procedural provisions does not result in
denial of a fair hearing or causes prejudice to the party, the same
has to be treated as directly notwithstanding the use of the word
"shall". </span></span>
</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">89.
In P.T. Rajan (supra), this Court has discussed the principles as to
whether a statute is mandatory or directory. The Court has observed
that a statute as is well known must be read in the text and context
thereof. Whether a statute is directory or mandatory would not be
dependent on the use of the word "shall" or
"may". Such a question must be posed and answered
having regard to the purpose and object it seeks to achieve. It has
further been held that a provision in a statute which is procedural
in nature although employs the word "shall" may not
be held to be mandatory if thereby no prejudice is caused. The
analysis of various provisions of Cr.P.C. clearly shows that no
prejudice is caused if police officer does not register an FIR. The
complainant has effective remedies under Sections 154(3), 156, 190
Cr.P.C. etc.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">90.
Mr. Naphade, the learned senior counsel submitted that it is
impossible to put the provisions of Section 154 Cr.P.C. in any
straight jacket formula. However, some guidelines can be framed as
regards registration or non- registration of an FIR. According to
him, some such guidelines are as follows:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Normally in the ordinary course a police officer should record an
FIR, if the complaint discloses a cognizable offence. However, in
exceptional cases where the police officer has reason to suspect that
the complaint is motivated on account of personal or political
rivalry, he may defer recording of the FIR, and take a decision after
preliminary enquiry.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
In case of complaints which are a result of vendetta like complaints
under Section 498A Cr.P.C. (IPC), the police officer should be slow
in recording an FIR and he should record an FIR only if he finds a
prima facie case.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
The police officer may also defer recording of an FIR if he feels
that the complainant is acting under a mistaken belief.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
The police officer may also defer registering an FIR if he finds that
the facts stated in the complaint are complex and complicated, as
would be in respect of some offences having financial contents like
criminal breach of trust, cheating etc.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">91.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant deferment of an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">92.
The second aspect of the matter is what test should the police
officer take in case he is of the opinion that registration of an FIR
should be deferred. He suggested the following measures :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
The police officer must record the complaint in the Station/General
Diary. This will ensure that there is no scope for manipulation and
if subsequently he decides to register an FIR, the entry in
Station/General Diary should be considered as the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
He should immediately report the matter to the superior police
officer and convey him his reasons or apprehensions and take his
permission for deferring the registration. A brief note of this
should be recorded in the station diary.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
The police officer should disclose to the complainant that he is
deferring registration of the FIR and call upon him to comply with
such requisitions the police officer feels necessary to satisfy
himself about the prima facie credibility of the complaint. The
police officer should record this in the station diary. All this is
necessary to avoid any charge as regard to the delay in recording the
FIR. It is a settled law that a mere delay in registering an FIR is
not harmful if there are adequate reasons to explain the delay in
filing an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>93.
According to him, in the light of the above discussion in respect of
the impact of Article 21 on statutory provisions, it must be held
that Section 154 of Cr.P.C. must be interpreted in the light of
Article 21. The requirement of Article 21 is that the procedure
should be just and fair. If, therefore, the police officer himself
has doubts in the matter, it is imperative that he should have the
discretion of holding a preliminary inquiry in the matter. If he is
debarred from holding such a preliminary inquiry, the procedure would
then suffer from the vice of arbitrariness and unreasonableness.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">94.
Learned counsel appearing for the State of Tamil Nadu adopted the
arguments submitted by Mr. Naphade, the learned senior counsel for
Maharashtra and submitted that ordinarily a police officer has to
register an FIR when a cognizable offence is made out, but in
exceptional cases he must have some discretion or latitude of
conducting some kind of preliminary inquiry before recording of the
FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">95.
Learned counsel for the parties have drawn our attention to two sets
of cases decided by this Court expressing totally divergent judicial
opinions. We deem it appropriate to briefly summarise them in the
following paragraphs.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">96.
This Court in the case of Bhajan Lal and Others (supra), Ramesh
Kumari (supra), Parkash Singh Badal and Another v. State of Punjab
and Others (2007) 1 SCC 1 and Aleque Padamsee and Others (supra) held
that if a complaint alleging commission of cognizable offence is
received in the Police Station, then the S.H.O. has no option but to
register an F.I.R. under Section 154 Cr.P.C..</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">97.
On the other hand, this Court in following cases, namely, Rajinder
Singh Katoch (supra), P. Sirajuddin etc. v. State of Madras etc. 1970
(1) SCC 595, Bhagwant Kishore Joshi (supra), Sevi and Another etc. v.
State of Tamil Nadu and Another 1981 (Suppl.) SCC 43 have taken
contrary view and held that before registering the FIR under Section
154 of Cr.P.C., it is open to the SHO to hold a preliminary enquiry
to ascertain whether there is a prima facie case of commission of
cognizable offence or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">98.
We deem it appropriate to give a brief ratio of these cases.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">99.
In Bhajan Lal (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">100.
In Ramesh Kumari (supra), this Court observed that the provision of
Section 154 of the Code is mandatory and the officer concerned is
duty-bound to register the case on the basis of such an information
disclosing cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">101.
In Parkash Singh Badal (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">102.
In Aleque Padamsee (supra), this Court observed as under :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"The
correct position in law, therefore, is that the police officials
ought to register the FIR whenever facts brought to their notice show
that cognizable offence has been made out."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">103.
There is another set of cases where this Court has taken contrary
view.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">104.
In Rajinder Singh Katoch (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"We
are not oblivious to the decision of this Court in </span></span><a href="http://indiankanoon.org/doc/116992/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Kumari v. State (NCT of Delhi)</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">wherein
such a statutory duty has been found in the police officer. But, as
indicated hereinbefore, in an appropriate case, the police officers
also have a duty to make a preliminary enquiry so as to find out as
to whether allegations made had any substance or not."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">105.
In Bhagwant Kishore Joshi (supra), Mudholkar, J. in his concurring
judgment has observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
am of opinion that it is open to a Police Officer to make preliminary
enquiries before registering an offence and making a full scale
investigation into it."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">106.
In P. Sirajuddin etc. (supra), this Court quoted the observations of
the High Court as under:- "(a) "substantial
information and evidence had been gathered before the so-called first
information report was registered"."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">107.
In Sevi and Another (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"If
he was not satisfied with the information given by PW 10 that any
cognizable offence had been committed he was quite right in making an
entry in the general diary and proceeding to the village to verify
the information without registering any FIR."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">108.
It is quite evident from the ratio laid down in the aforementioned
cases that different Benches of this Court have taken divergent views
in different cases. In this case also after this Court's notice, the
Union of India, the States and the Union Territories have also taken
or expressed divergent views about the interpretation of Section 154
Cr.P.C.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">109.
We have carefully analysed various judgments delivered by this Court
in the last several decades. We clearly discern divergent judicial
opinions of this Court on the main issue whether under Section 154
Cr.P.C., a police officer is bound to register an FIR when a
cognizable offence is made out or he (police officer) has an option,
discretion or latitude of conducting some kind of preliminary enquiry
before registering the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">110.
Learned counsel appearing for the Union of India and different States
have expressed totally divergent views even before this Court. This
Court also carved out a special category in the case of medical
doctors in the aforementioned cases of Santosh Kumar (supra) and Dr.
Suresh Gupta (supra) where preliminary enquiry had been postulated
before registering an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">111.
Some counsel also submitted that the CBI Manual also envisages some
kind of preliminary enquiry before registering the FIR. The issue
which has arisen for consideration in these cases is of great public
importance.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">112.
In view of the divergent opinions in a large number of cases decided
by this Court, it has become extremely important to have a clear
enunciation of law and adjudication by a larger Bench of this Court
for the benefit of all concerned - the courts, the investigating
agencies and the citizens.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">113.
Consequently, we request Hon'ble the Chief Justice to refer these
matters to a Constitution Bench of at least five Judges of this Court
for an authoritative judgment.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">...................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(Dalveer
Bhandari)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">..................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(T.S.
Thakur)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">...................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(Dipak
Misra)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">New
Delhi;</span></span></div>
<div align="JUSTIFY" style="border-bottom-color: rgb(0, 0, 0); border-bottom-width: 1.1pt; border-style: none none double; line-height: 0.25in; padding: 0in 0in 0.03in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">February
27, 2012</span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-7631630163564748982013-08-04T22:44:00.001+05:302013-08-04T22:48:09.243+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0in;">
<span style="color: #cdbfac;"><span style="font-family: georgia, verdana, sans-serif;"><b>Supreme
Court of India</b></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0.1in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><b>Lalita
Kumari vs Govt.Of U.P.& Ors. on 27 February, 2012</b></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Author:
D Bhandari</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Bench:
Dalveer Bhandari, T.S. Thakur, Dipak Misra</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">IN
THE SUPREME COURT OF INDIA</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
ORIGINAL JURISDICTION</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">WRIT
PETITION (CRIMINAL) NO.68 OF 2008</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Lalita
Kumari ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Government
of U.P. & Others ...Respondents WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO.1410 OF 2011</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Samshudheen
...Appellant Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State,
Represented by Dy. Superintendent of Police Tamil Nadu ...Respondent
WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">SLP
(CRIMINAL) NO.5200 OF 2009</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Baldev
Singh Cheema ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State
of Punjab & Others ...Respondents WITH</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in; page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">SLP
(CRIMINAL) NO.5986 OF 2010</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Surjit
Singh & Another ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">State
of Punjab & Others ...Respondents AND</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CONTEMPT
PETITION NO. ARISING OUT OF D.26722 of 2008 IN</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">WRIT
PETITION (CRIMINAL) NO.68 OF 2008</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Daljit
Singh Grewal ...Petitioner Versus</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Inder Singh ...Respondent J U D G M E N T</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Dalveer
Bhandari, J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
We propose to deal with the abovementioned writ petition, the
criminal appeals and the contempt petition by this judgment. The
question of law involved in these cases is identical, therefore, all
these cases are being dealt with by a common judgment. In order to
avoid repetition, only the facts of the writ petition of Lalita
Kumari's case are recapitulated.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
The petition has been filed before this Court under Article 32 of the
Constitution of India in the nature of habeas corpus to produce
Lalita Kumari, the minor daughter of Bhola Kamat.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
On 5.5.2008, Lalita Kumari, aged about six years, went out of her
house at 9 p.m. When she did not return for half an hour and Bhola
Kamat was not successful in tracing her, he filed a missing report at
the police station Loni, Ghaziabad, U.P.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
On 11.5.2008, respondent no.5 met Bhola Kamat and informed him that
his daughter has been kidnapped and kept under unlawful confinement
by the respondent nos.6 to 13. The respondent-police did not take any
action on his complaint. Aggrieved by the inaction of the local
police, Bhola Kamat made a representation on 3.6.2008 to the Senior
Superintendent of Police, Ghaziabad. On the directions of the
Superintendent of Police, Ghaziabad, the police station Loni,
Ghaziabad registered a First Information Report (F.I.R.) No.484 dated
6.6.2008 under Sections 363/366/506/120B IPC against the private
respondents.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
Even after registration of the FIR against the private respondents,
the police did not take any action to trace Lalita Kumari. According
to the allegation of Bhola Kamat, he was asked to pay money for
initiating investigation and to arrest the accused persons.
Ultimately, the petitioner filed this petition under Article 32 of
the Constitution before this Court.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">6.
This Court on 14.7.2008 passed a comprehensive order expressing its
grave anguish on non-registration of the FIR even in a case of
cognizable offence. The Court also issued notices to all Chief
Secretaries of the States and Administrators of the Union
Territories. In response to the directions of the Court, various
States and the Union Territories have filed comprehensive affidavits.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>7.
The short, but extremely important issue which arises in this
petition is whether under Section 154 of the Code of Criminal
Procedure Code, a police officer is bound to register an FIR when a
cognizable offence is made out or he has some latitude of conducting
some kind of preliminary enquiry before registering the FIR.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
Mr. S.B. Upadhyay, learned senior advocate appearing for the
petitioner has tried to explain the scheme of Section 154 Cr.P.C.
with the help of other provisions of the Act. According to him,
whenever information regarding cognizable offence is brought to the
notice of the SHO, he has no option but to register the First
Information Report.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
This Court also issued notice to the learned Attorney General for
India to assist the Court in this matter of general public
importance. Mr. Harish P Raval, the learned Additional Solicitor
General appeared before the Court and made comprehensive submissions.
He also filed written submissions which were settled by him and
re-settled by the learned Attorney General for India.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
Learned Additional Solicitor General submitted that the issue which
has been referred to this Court has been decided by a three-Judge
Bench of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/325716/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Aleque
Padamsee and Others v. Union of India and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2007)
6 SCC 171. In this case, this Court while referring to the judgment
in the case of </span></span><a href="http://indiankanoon.org/doc/116992/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Kumari v. State (NCT of Delhi) and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2006)
2 SCC 677 in paragraph 2 of the judgment has observed as under:-
"</span></span><span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Whenever
cognizable offence is disclosed the police officials are bound to
register the same and in case it is not done, directions to register
the same can be given.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
11.
The State of Gujarat, the respondent in the above case, on the facts
thereof, contended that on a bare reading of a complaint lodged, it
appears that no offence was made and that whenever a complaint is
lodged, automatically and in a routine manner an FIR is not to be
registered. This Court after considering Chapter XII and more
particularly Sections 154 and 156 held (paragraphs 6 and 7) that
"<span style="color: red;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>whenever
any information is received by the police about the alleged
commission of offence which is a cognizable one, there is a duty to
register the FIR.</b></span></span></span>" There
could be no dispute on that score as observed by this Court. The
issue referred to in the reference has already been answered by the
Bench of three Judges. The judgment in Aleque Padamsee and Others
(supra) is not referred in the reference order. It is therefore
prayed that the present reference be answered accordingly.</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
It was submitted on behalf of the Union of India that Section 154 (1)
provides that every information relating to the commission of a
cognizable offence if given orally, to an officer incharge of a
police station shall be reduced in writing by him or under his
directions. The provision is mandatory. The use of the word
"shall" by the legislation is indicative of the
statutory intent. In case such information is given in writing or is
reduced in writing on being given orally, it is required to be signed
by the persons giving it. It is further provided that the substance
of commission of a cognizable offence as given in writing or reduced
to writing "shall" be entered in a book to be kept
by such officer in such form as the State Government may prescribe in
this behalf. Sub-section (2) provides that a copy of such information
as recorded in sub-section (1) shall be given forthwith free of cost
to the informant.</span></span></div>
<ol start="13">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
light of the provisions contained in Section 154 (1) and the law
laid by this Court on the subject, the following submissions were
placed by the Union of India for consideration of this Court.</span></span></div>
</li>
<li><div align="JUSTIFY" style="line-height: 0.25in;">
a) <span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
statutory intention is manifest on a bare reading of provisions of
Section 154(1) to the effect that when an officer incharge of a
police station to whom information relating to commission of
cognizable offence has been disclosed, he has no discretion save and
except to reduce the said information in writing by him or under his
direction.</span></span></div>
</li>
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">b)
Section 154(1) does not have ambiguity and is in clear terms.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">c)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>The
use of expression "shall" clearly manifest the
mandatory statutory intention.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">d)
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>In
construing a statutory provision, the first and the foremost rule of
construction is the literal construction. It is submitted that all
that the Court has to see at the very outset is what does that
provision say. If the provision is unambiguous and if from that
provision, the legislative intent is clear, the Court need not call
into it the other rules on construction of statutes.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
[Para 22 of Hiralal Rattanlal etc.etc. v. State of U.P. and Another
etc.etc. 1973(1) SCC 216]. This judgment is referred to and followed
in a recent decision of this Court in </span></span><a href="http://indiankanoon.org/doc/421654/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">B.
Premanand and Others v. Mohan Koikal and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2011)
94 SCC 266 paras 8 and 9. It is submitted that the language employed
in Section 154 is the determinative factor of the legislative intent.
There is neither any defect nor any omission in words used by the
legislature. The legislative intent is clear. The language of Section
154(1), therefore, admits of no other construction. e) The use of
expression "shall" is indicative of the intention
of the legislature which has used a language of compulsive force.
There is nothing indicative of the contrary in the context indicating
a permissive interpretation of Section 154. It is submitted that the
said Section ought to be construed as preemptory. The words are
precise and unambiguous </span></span><a href="http://indiankanoon.org/doc/329988/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">(Govindlal
Chhaganlal Patel v. Agricultural Produce Market Committee, Godhra and
Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1975
(2) SCC 482). It is submitted that </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>it
is settled law that judgments of the courts are not to be construed
as statutes</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
[para 11 of three-Judge Bench decision of this court in the case of
M/s Amar Nath Om Prakash and others etc. v. State of Punjab and
Others (1985) 1 SCC 345]. The abovesaid decision is followed by a
judgment of this Court in the case of Hameed Joharan (dead) and
others v. Abdul Salam (dead) by Lrs. and Others (2001) 7 SCC 573.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>f)
The provision of Section 154(1) read in light of statutory scheme do
not admit of conferring any discretion on the officer in charge of
the police station of embarking upon an preliminary enquiry prior to
registration of an FIR. A preliminary enquiry is a term which is
alien to the Code of Criminal Procedure, 1973 which talks of (i)
investigation (ii) inquiry and (iii) trial. These terms are definite
connotations having been defined under Section 2 of the Act.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">g)
The concept of preliminary enquiry as contained in Chapter IX of the
CBI (Crime) Manual, first published in 1991 and thereafter updated on
15.7.2005 cannot be relied upon to import the concept of holding of
preliminary enquiry in the scheme of the Code of Criminal Procedure.
h) <span style="color: red;"><b>The interpretation of Section 154 cannot
be depended upon a Manual regulating the conduct of officers of an
organization, i.e., CBI.</b></span> i) A reference to para 9.1. of
the said Manual would show that preliminary enquiry is contemplated
only when a complaint is received or information is available which
may after verification as enjoined in the said Manual indicates
serious misconduct on the part of the public servant but is not
adequate to justify registration of a regular case under provisions
of Section 154 Cr.P.C. Such preliminary inquiry as referred to in
para 9.1 of the CBI Manual as also to be registered after obtaining
approval of the competent authority. It is submitted that these
provisions cannot be imported into the statutory scheme of Section
154 so as to provide any discretion to a police officer in the matter
of registration of an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">j)
The purpose of registration of an FIR are manifold -that is to say</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">i)
To reduce the substance of information disclosing commission of a
cognizable offence, if given orally, into writing</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ii)
if given in writing to have it signed by the complainant</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iii)
to maintain record of receipt of information as regards commission of
cognizable offences</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">iv)
to initiate investigation on receipt of information as regards
commission of cognizable offence</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">v)
to inform Magistrate forthwith of the factum of the information
received.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">14.
Reference has also been made to the celebrated judgment of the Privy
Council in the case of Emperor v. Khwaza Nazim Ahmad AIR 1945 PC 18
in which it is held that for the receipt and recording of an
information, report is not a condition precedent to the setting in
motion of a criminal investigation. It is further held, that no
doubt, in the great majority of cases criminal prosecution are
undertaken as a result of the information received and recorded in
this way. (As provided in Sections 154 to 156 of the earlier Code).
It is further held that there is no reason why the police, if in
possession through their own knowledge or by means of credible though
informal intelligence which genuinely leads them to the belief that a
cognizable offence has been committed, should not of their own motion
undertake an investigation into the truth of the matters alleged. It
is further held that Section 157 of the Code when directing that a
police officer, who has a reason to suspect from information or
otherwise, that an offence which he is empowered to investigate under
Section 156 has been committed, he shall proceed to investigate the
facts and circumstances of the case. It is further held in the said
judgment that, in truth the provisions as to an information report
(commonly called a First Information Report) are enacted for other
reasons. Its object is to obtain early information of alleged
criminal activity, to record the circumstances before there is time
for them to be forgotten or embellished, and it has to be remembered
that the report can be put in evidence when the informant is
examined, if it is desired to do so. <b>It is further held in the
said judgment that there is a statutory right on part of the police
to investigate the circumstances of an alleged cognizable crime
without requiring any authority from the judicial authorities.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15.
On behalf of the Union of India reference was made to the judgment of
this Court delivered in</span></span><a href="http://indiankanoon.org/doc/1256432/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">The
State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1964
SC 221 wherein it has been held vide para 8 that Section 154 of the
Code prescribed the mode of recording the information received orally
or in writing by an officer incharge of a police station in respect
of commission of a cognizable offence. Section 156 thereof authorizes
such an officer to investigate any cognizable offence prescribed
therein. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Though,
ordinarily investigation is undertaken on information received by a
police officer, the receipt of information is not a condition
precedent for investigation.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16.
It is further held that Section 157 prescribes the procedure in the
matter of such an investigation which can be initiated either on
information or otherwise. It is also held that it is clear from the
said provision that an officer in charge of a police station can
start investigation either on information or otherwise. The judges in
the said judgment referred to a decision of this Court in the case of
H.N. Rishbud and Inder Singh v. The State of Delhi 1955 SCR (1) 1150
at pp.1157-58 that the graphic description of the stages is only a
restatement of the principle that a vague information or an
irresponsible rumour would not by itself constitute information
within the meaning of Section 154 of the Code or the basis of an
investigation under Section 157 thereof. The said case was in respect
of an offence alleged under Prevention of Corruption Act, 1947. The
said case was under the old Code which did not define the term
`investigation' (paragraph 18 of the concurring judgment of Justice
Mudholkar at page 226). It is also observed that the main object of
investigation mean to bring home the offence to the offender. The
essential part of the duty of an investigating officer in this
connection is, apart from arresting the offender, to collect all
material necessary for establishing the accusation
"against" the offender.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">17.
The following observations in the concurring judgment of Bhagwant
Kishore Joshi (supra) were found in paragraph 18 : “In the absence
of any prohibition in the Code, express or implied, I am of opinion
that it is open to a Police Officer to make preliminary enquiries
before registering an offence and making a full scale investigation
into it. No doubt, s. 5A of the Prevention of Corruption Act was
enacted for preventing harassment to a Government servant and with
this object in view investigation, except with the previous
permission of a Magistrate, is not permitted to be made by an officer
below the rank of a Deputy Superintendent of Police. Where however, a
Police Officer makes some preliminary enquiries, does not arrest or
even question an accused or question any witnesses but merely makes a
few discreet enquiries or looks at some documents without making any
notes, it is difficult to visualise how any possible harassment or
even embarrassment would result therefrom to the suspect or the
accused person.”</span></span></div>
<ol start="18">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">In
case of H.N. Rishbud (supra), in the case under the Prevention of
Corruption Act, 1947, it is observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Investigation
usually starts on information relating to the commission of an
offence given to an officer in charge of a police station and
recorded under section 154 of the Code. If from information so
received or otherwise, the officer in charge of the police station
has reason to suspect the commission of an offence, he or some other
subordinate officer deputed by him, has to proceed to the spot to
investigate the facts and circumstances of the case and if necessary
to take measures for the discovery and arrest of the offender.”</span></span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in; page-break-before: always;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is further held :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Thus
investigation primarily consists in the ascertainment of the facts
and circumstances of the case. By definition, it includes "all
the proceedings under the Code for the collection of evidence
conducted by a police officer”.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">It
is further held in the said judgment that : “Thus, under the Code
investigation consists generally of the following steps:(1)
Proceeding to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and arrest of the suspected
offender, (4) Collection of evidence relating to the commission of
the offence which may consist of (a) the examination of various
persons (including the accused) and the reduction of their statements
into writing, if the officer thinks fit, (b) the search of places of
seizure of things considered necessary for the investigation and to
be produced at the trial, and (5) Formation of the opinion as to
whether on the material collected there is a case to place the
accused before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under section
173”.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">19.
It was further submitted that this Court in the case of </span></span><a href="http://indiankanoon.org/doc/274915/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Damodar
v. State of Rajasthan</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> reported
in 2004(12) SCC 336 referred to the observations of the judgment of
this Court rendered in case of</span></span><a href="http://indiankanoon.org/doc/452608/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramsinh
Bavaji Jadeja v. State of Gujarat</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1994
(2) SCC 685 and observed that the question as to at what stage the
investigation commence has to be considered and examined on the facts
of each case especially when the information of alleged cognizable
offence has been given on telephone. The said case deals with
information received on telephone by an unknown person. In paragraph
10 it is observed thus “in order to constitute the FIR, the
information must reveal commission of act which is a cognizable
offence.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">20.
It is further observed in paragraph 11 in the case of Damodar (supra)
that in the context of the facts of the said case, that any
telephonic information about commission of a cognizable offence, if
any, irrespective of the nature and details of such information
cannot be treated as an FIR. It is further held that if the
telephonic message is cryptic in nature and the officer incharge
proceeds to the place of occurrence on the basis of that information
to find out the details of the nature of the offence, if any, then it
cannot be said that the information which had been received by him on
telephone shall be deemed to be an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">21.
It is also observed that the object and purpose of giving such
telephonic message is not to lodge an FIR, but to make the officer
incharge of the police station reach the place of occurrence. It is
further held that if the information given on telephone is not
cryptic and on the basis of that information the officer incharge is
prima facie satisfied about commission of a cognizable offence and he
proceeds from the police station after recording such information, to
investigate such offence, then any statement made by any person in
respect of the said offence including the participants shall be
deemed to be statement made by a person to the police officer in the
course of investigation covered by Section 162 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">22.
This Court in the case of </span></span><a href="http://indiankanoon.org/doc/1460988/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Binay
Kumar Singh v. The State of Bihar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1997(1)
SCC 283 observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">.....It
is evidently a cryptic information and is hardly sufficient for
discerning the commission of any cognizable offence therefrom. Under
Section 154 of the Code the information must unmistakably relate to
the commission of a cognizable offence and it shall be reduced to
writing (if given orally) and shall be signed by its maker. The next
requirement is that the substance thereof shall be entered in a book
kept in the police station in such form as the State Government has
prescribed. First information report (FIR) has to be prepared and it
shall be forwarded to the magistrate who is empowered to take
cognizance of such offence upon such report. The officer in charge of
a police station is not obliged to prepare FIR on any nebulous
information received from somebody who does not disclose any
authentic knowledge about commission of the cognizable offence. It is
open to the officer-in-charge to collect more information containing
details about the occurrence, if available, so that he can consider
whether a cognizable offence has been committed warranting
investigation thereto.”</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">23.
It is submitted that in the said judgment what fell for consideration
of the Court was the conviction and sentence in respect of the
offence under Sections 302/149 of the IPC in respect of a murder
which took place in a Bihar village wherein lives of 13 people were
lost and 17 other were badly injured along with burning alive of
large number of mute cattle and many dwelling houses. It is also
submitted that the interpretation of Section 154 was not directly in
issue in the said judgment.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">24.
Reliance is placed on a decision of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/740262/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Madhu
Bala v. Suresh Kumar and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> reported
as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2), 154 and
190(1) (a) and (b) and more particularly upon the following
paragraphs of the said judgment. The same read as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">Coming
first to the relevant provisions of the Code, Section 2(d) defines
“complaint” to mean any allegation made orally or in writing to a
Magistrate, with a view to his taking action under the Code, that
some person, whether known or unknown has committed an offence, but
does not include a police report. Under Section 2(c) “cognizable
offence” means an offence for which, and “cognizable case”
means a case in which a police officer may in accordance with the
First Schedule (of the Code) or under any other law for the time
being in force, arrest without a warrant. Under Section 2(r) “police
report” means a report forwarded by a police officer to a
Magistrate under sub- section (2) of Section 173 of the Code. Chapter
XII of the Code comprising Sections 154 to 176 relates to information
to the police and their powers to investigate. Section 154 provides,
inter alia, that the officer in charge of a police station shall
reduce into writing every information relating to the commission of a
cognizable offence given to him orally and every such information if
given in writing shall be signed by the person giving it and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this
behalf.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Section
156 of the Code with which we are primarily concerned in these
appeals reads as under:</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;">“<span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">(1)
Any officer in charge of a police station may, without the order of a
Magistrate, investigate any cognizable case which a court having
jurisdiction over the local area within the limits of such station
would have power to inquire into or try under the provisions of
Chapter XIII.</span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(2)
No proceeding of a police officer in any such case shall at any stage
be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(3)
Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">On
completion of investigation undertaken under Section 156(1) the
officer in charge of the police station is required under Section
173(2) to forward to a Magistrate empowered to take cognizance of the
offence on a police report, a report in the form prescribed by the
State Government containing all the particulars mentioned therein.
Chapter XIV of the Code lays down the conditions requisite for
initiation of proceedings by the Magistrate. Under sub-section (1) of
Section 190 appearing in that Chapter any Magistrate of the First
Class and any Magistrate of the Second Class specially empowered may
take cognizance of any offence (a) upon receiving a “complaint”
of facts which constitutes such offence; (b) upon a "police
report" of such facts; or (c) upon information received from
any person other than a police officer, or upon his own knowledge
that such offence has been committed. Chapter XV prescribes the
procedure the Magistrate has to initially follow if it takes
cognizance of an offence on a complaint under Section 190(1)(a).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">25.
Learned counsel for the Union of India relied on the following
passage from Madhu Bala (supra) :- “From a combined reading of the
above provisions it is abundantly clear that when a written complaint
disclosing a cognizable offence is made before a Magistrate, he may
take cognizance upon the same under Section 190(1)(a) of the Code and
proceed with the same in accordance with the provisions of Chapter
XV. The other option available to the Magistrate in such a case is to
send the complaint to the appropriate police station under Section
156(3) for investigation. Once such a direction is given under
sub-section (3) of Section 156 the police is required to investigate
into that complaint under sub- section (1) thereof and on completion
of investigation to submit a "police report" in
accordance with Section 173(2) on which a Magistrate may take
cognizance under Section 190(1)(b) -- but not under 190(1)(a). Since
a complaint filed before a Magistrate cannot be a "police
report" in view of the definition of "complaint"
referred to earlier and since the investigation of a "cognizable
case" by the police under Section 156(1) has to culminate in
a "police report" the "complaint"
-- as soon as an order under Section 156(3) is passed thereon --
transforms itself to a report given in writing within the meaning of
Section 154 of the Code, which is known as the first information
report (FIR). As under Section 156(1), the police can only
investigate a cognizable "case", it has to formally
register a case on that report."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">26.
Mr. Raval also relied on the following passage from Madhu Bala' s
case:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"From
the foregoing discussion it is evident that whenever a Magistrate
directs an investigation on a "complaint" the
police has to register a cognizable case on that complaint treating
the same as the FIR and comply with the requirements of the above
Rules. It, therefore, passes our comprehension as to how the
direction of a Magistrate asking the police to "register a
case" makes an order of investigation under Section 156(3)
legally unsustainable. Indeed, even if a Magistrate does not pass a
direction to register a case, still in view of the provisions of
Section 156(1) of the Code which empowers the police to investigate
into a cognizable "case" and the Rules framed under
the Indian Police Act, 1861 it (the police) is duty-bound to formally
register a case and then investigate into the same. The provisions of
the Code, therefore, do not in any way stand in the way of a
Magistrate to direct the police to register a case at the police
station and then investigate into the same. In our opinion when an
order for investigation under Section 156(3) of the Code is to be
made the proper direction to the police would be "to
register a case at the police station treating the complaint as the
first information report and investigate into the same".</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">27.
This Court in the case of </span></span><a href="http://indiankanoon.org/doc/185635/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Hallu
and others v. State of Madhya Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1974
(4) SCC 300 in the context of Section 154 of the Code held (para 7)
that Section 154 of the Code does not require that the Report must be
given by a person who has personal knowledge of the incident
reported. It is further held that the said Section speaks of an
information relating to the commission of a cognizable offence given
to an officer incharge of a police station.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">28.
Mr. Raval placed reliance on para 8 of the judgment of this Court in
the case of </span></span><a href="http://indiankanoon.org/doc/1792824/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Rajinder
Singh Katoch v. Chandigarh Administration and others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2007
(10) SCC 69, wherein this Court observed as under:- "8.Although
the officer in charge of a police station is legally bound to
register a first information report in terms of Section 154 of the
Code of Criminal Procedure, if the allegations made by them give rise
to an offence which can be investigated without obtaining any
permission from the Magistrate concerned, the same by itself,
however, does not take away the right of the competent officer to
make a preliminary enquiry, in a given case, in order to find out as
to whether the first information sought to be lodged had any
substance or not. In this case, the authorities had made
investigations into the matter. In fact, the Superintendent of Police
himself has, pursuant to the directions issued by the High Court,
investigated into the matter and visited the spot in order to find
out the truth in the complaint of the petitioner from the neighbours.
It was found that the complaint made by the appellant was false and
the same had been filed with an ulterior motive to take illegal
possession of the first floor of the house."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">29.
While referring to the decision of this Court in Ramesh Kumari
(supra) in para 11 of the judgment in Rajinder Singh's case, it is
observed as under:- "11. We are not oblivious to the
decision of this Court in Ramesh Kumari v. State (NCT of Delhi)
wherein such a statutory duty has been found in the police officer.
But, as indicated hereinbefore, in an appropriate case, the police
officers also have a duty to make a preliminary enquiry so as to find
out as to whether allegations made had any substance or not."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">30.
It is further submitted that the above observations run concurrently
to the settled principles of law and more particularly the three
judge Bench decision of this Court in Aleque Padamsee and Others
(supra).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31.
In the context of the statutory provisions, the learned counsel for
the Union of India drew the attention of this Court to the decision
of this Court in the case of </span></span><a href="http://indiankanoon.org/doc/898506/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Superintendent
of Police, CBI and Others v. Tapan Kumar Singh AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2003
SC 4140, paragraph 20 at page 4145 as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is well settled that a First Information Report is not an
encyclopedia, which must disclose all facts and details relating to
the offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence took
place. A first informant need not necessarily be an eye witness so as
to be able to disclose in great details all aspects of the offence
committed. What is of significance is that the information given must
disclose the commission of a cognizable offence and the information
so lodged must provide a basis for the police officer to suspect the
commission of a cognizable offence. At this stage it is enough if the
police officer on the basis of the information given suspects the
commission of a cognizable offence, and not that he must be convinced
or satisfied that a cognizable offence has been committed. If he has
reasons to suspect, on the basis of information received, that a
cognizable offence may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is also
not necessary for him to satisfy himself about the truthfulness of
the information. It is only after a complete investigation that he
may be able to report on the truthfulness or otherwise of the
information. Similarly, even if the information does not furnish all
the details, he must find out those details in the course of
investigation and collect all the necessary evidence. The information
given disclosing the commission of a cognizable offence only sets in
motion the investigative machinery, with a view to collect all
necessary evidence, and thereafter to take action in accordance with
law. The true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the concerned
police officer is empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or
depute any other competent officer to conduct the investigation. The
question as to whether the report is true, whether it discloses full
details regarding the manner of occurrence, whether the accused is
named, and whether there is sufficient evidence to support the
allegations are all matters which are alien to the consideration of
the question whether the report discloses the commission of a
cognizable offence. Even if the information does not give full
details regarding these matters, the investigating officer is not
absolved of his duty to investigate the case and discover the true
facts, if he can.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">32.
This Court in its decision in the case of Ramesh Kumari (supra) has
observed as under in paragraphs 3, 4 and 5 :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"3.
Mr Vikas Singh, the learned Additional Solicitor General, at the
outset, invites our attention to the counter-affidavit filed by the
respondent and submits that pursuant to the aforesaid observation of
the High Court the complaint/representation has been subsequently
examined by the respondent and found that no genuine case was
established. We are not convinced by this submission because the sole
grievance of the appellant is that no case has been registered in
terms of the mandatory provisions of Section 154(1) of the Criminal
Procedure Code. Genuineness or otherwise of the information can only
be considered after registration of the case. Genuineness or
credibility of the information is not a condition precedent for
registration of a case. We are also clearly of the view that the High
Court erred in law in dismissing the petition solely on the ground
that the contempt petition was pending and the appellant had an
alternative remedy. The ground of alternative remedy nor pending of
the contempt petition would be no substitute in law not to register a
case when a citizen makes a complaint of a cognizable offence against
a police officer.</span></span></div>
<ol start="4">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">That
a police officer mandatorily registers a case on a complaint of a
cognizable offence by the citizen under Section 154 of the Code is
no more res integra. The point of law has been set at rest by this
Court in </span></span><a href="http://indiankanoon.org/doc/1033637/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Haryana v. Bhajan Lal. This Court</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> after
examining the whole gamut and intricacies of the mandatory nature of
Section 154 of the Code has arrived at the finding in paras 31 and
32 of the judgment as under: (SCC pp. 354-55)</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">31.
At the stage of registration of a crime or a case on the basis of the
information disclosing a cognizable offence in compliance with the
mandate of Section 154(1) of the Code, the police officer concerned
cannot embark upon an enquiry as to whether the information, laid by
the informant is reliable and genuine or otherwise and refuse to
register a case on the ground that the information is not reliable or
credible. On the other hand, the officer in charge of a police
station is statutorily obliged to register a case and then to proceed
with the investigation if he has reason to suspect the commission of
an offence which he is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we have
proposed to make a detailed discussion about the power of a police
officer in the field of investigation of a cognizable offence within
the ambit of Sections 156 and 157 of the Code in the ensuing part of
this judgment, we do not propose to deal with those sections in
extenso in the present context.) In case, an officer in charge of a
police station refuses to exercise the jurisdiction vested in him and
to register a case on the information of a cognizable offence
reported and thereby violates the statutory duty cast upon him, the
person aggrieved by such refusal can send the substance of the
information in writing and by post to the Superintendent of Police
concerned who if satisfied that the information forwarded to him
discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him in the manner provided by sub-section (3) of
Section 154 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">32.
Be it noted that in Section 154(1) of the Code, the legislature in
its collective wisdom has carefully and cautiously used the
expression `information' without qualifying the same as in Section
41(1)(a) or (g) of the Code wherein the expressions, `reasonable
complaint' and `credible information' are used. Evidently, the
non-qualification of the word `information' in Section 154(1) unlike
in Section 41(1)(a) and (g) of the Code may be for the reason that
the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a
case thereon on the ground that he is not satisfied with the
reasonableness or credibility of the information. In other words,
`reasonableness' or `credibility' of the said information is not a
condition precedent for registration of a case. A comparison of the
present Section 154 with those of the earlier Codes will indicate
that the legislature had purposely thought it fit to employ only the
word `information' without qualifying the said word. Section 139 of
the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the
Legislative Council of India read that `every complaint or
information' preferred to an officer in charge of a police station
should be reduced into writing which provision was subsequently
modified by Section 112 of the Code of 1872 (Act 10 of 1872) which
thereafter read that `every complaint' preferred to an officer in
charge of a police station shall be reduced in writing. The word
`complaint' which occurred in previous two Codes of 1861 and 1872 was
deleted and in that place the word `information' was used in the
Codes of 1882 and 1898 which word is now used in Sections 154, 155,
157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An
overall reading of all the Codes makes it clear that the condition
which is sine qua non for recording a first information report is
that there must be an information and that information must disclose
a cognizable offence.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">33.
Finally, this Court in Ramesh Kumari (supra) in para 33 said :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"33.
It is, therefore, manifestly clear that if any information disclosing
a cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">34.
The views expressed by this Court in paras 31, 32 and 33 as quoted
above leave no manner of doubt that the provision of Section 154 of
the Code is mandatory and the officer concerned is duty-bound to
register the case on the basis of such an information disclosing
cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">35.
In the case of Ramesh Kumari (supra), this Court has held that the
views expressed by this Court in the case of </span></span><a href="http://indiankanoon.org/doc/1033637/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Haryana and Others v. Bhajan Lal and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1992
Suppl. (1) SCC 335 leave no matter of doubt that the provisions of
Section 154 of the Code is mandatory and the officer concerned is
duty bound to register the case on the basis of such information
disclosing a cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">36.
Mr. Raval while concluding his arguments reiterated that Section 154
of the Code it is mandatory for the officer concerned to register the
case on the basis of such information including cognizable offence.
According to Union of India, the police officer has no discretion in
the matter and this is according to the legislative intention behind
enacting Section 154 of the Code of Criminal Procedure.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">37.
Mr. Ratnakar Das, learned senior advocate appearing for the State of
U.P. adopted the arguments addressed by Mr. Raval on behalf of the
Union of India and submitted that the word `shall' appearing in
Section 154 mandates the police to enter the information about
commission of a cognizable offence in a book in such form commonly
known as "First Information Report'. At that stage, the
police cannot go into the question about the truth or otherwise of
the information and make a roving enquiry.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">38.
It was also submitted by Mr. Das that the word `information' is not
qualified by credible information. It has to be recorded with utmost
dispatch and if its recording is dependent upon any type of
preliminary enquiry, then there would be a great temptation to
incorporate the details and circumstances advantageous to the
prosecution which may be lacking in the earlier information.
Similarly, if the police is given the power to hold a preliminary
inquiry before registration of an FIR it may benefit the wrongdoer
because by afflux of time, the evidence would be obliterated or
destroyed and thereby justice would be denied to the victim of crime.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">39.
Mr. Das gave an example that in a bride burning case, when a person
makes a complaint that the husband and the in-laws of his daughter
have doused her with kerosene and set her ablaze and arrangements
were being made to cremate the dead body, in that case, if the police
instead of taking immediate steps to register an FIR proceeds to the
spot to seize the dead body and the burnt clothes etc. on the plea
that he is required to make preliminary enquiry to ascertain the
truth, then during the interregnum, no evidence would be available to
bring the offenders to book. It needs to mention that power is
conferred upon the police under the Code to make seizure in course of
investigation and not during the enquiry. So, the police being in
connivance with the accused may permit them to cremate the dead body
in order to cause disappearance of the evidence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">40.
It is further submitted by Mr. Das that now-a-days custodial violence
is on the rise. Horror of Bhagalpur blinding case and the Maya Tyagi
case in Uttar Pradesh are still in the minds of the people. It is
complained that the police do not take action against their own
brethren who commit crimes. Most of the times the Court intervenes
and it is only then that the person wronged gets justice. In such
cases if the police is given handle to hold a preliminary enquiry the
offender will get a scope to fabricate evidence and ultimately the
police will deny registration of an FIR on the ground that the
preliminary enquiry does not reveal any such offence having been
committed at all.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">41.
It was submitted on behalf of the Union of India and the State of
U.P. that in the Code the Legislature never intended to incorporate
any provision for conducting any `preliminary enquiry' before
registering an FIR when a report regarding commission of a cognizable
offence is made. The specific question on this issue was never raised
or agitated earlier before this Court at any point of time whether as
a general rule the police should hold a preliminary enquiry before
registering an FIR and take further steps in the investigation. Only
in two cases in respect of the offence under Prevention of Corruption
Act which was to be investigated by the Central Bureau of
Investigation (CBI) this Court taking note of the peculiar facts and
circumstances of those cases, made an observation that where public
servant is charged with acts of dishonesty amounting to serious
misdemeanor, registering an FIR should be preceded by some suitable
preliminary enquiry. In another case in which dispute regarding
property between the brothers was involved, this Court in the
peculiar facts of that case made an observation that though the
officer in charge of a police station is legally bound to register a
First Information Report in terms of Section 154 of the Code, if the
allegations give rise to an offence which can be investigated without
obtaining permission from the Magistrate, the same however, does not
take away the right of the competent officer to make a preliminary
enquiry in a given case in order to find whether the FIR sought to be
lodged has any substance or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">42.
According to him, the grievance of the appellant in the said case was
that his report which revealed commission of a cognizable case was
not treated as an FIR by the concerned police. It was not the issue
nor was any argument advanced as to whether registering of an FIR as
provided under Section 154 of the Code should be preceded by some
sort of preliminary enquiry or not. In such view of the matter, the
observation of this Court that it does not take away the right of the
competent officer to make a preliminary enquiry in a given case is
nothing but a passing observation.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">43.
According to Mr. Das, the provision of law about registration of an
FIR is very clear and whenever information relating to cognizable
offence is received by the police, in that event the police had no
option but to register the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">44.
Mr. Shekhar Naphade, learned Senior counsel appearing for the State
of Maharashtra on the other hand has taken a different view as taken
by the Union of India and submitted that before registering an FIR
under Section 154 Cr.P.C. it is open to the SHO to hold a preliminary
enquiry to ascertain whether there is prime facie case of commission
of cognizable offence or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">45.
Mr. Naphade has comprehensively explained the statutory scheme of
Section 154 Cr.P.C.. According to him, Sections 41, 57 154(3) 156(1)
and 156(3), 157, 167, 190 and 202 are an integral part of the
statutory scheme relating to investigation of crimes. These
provisions clearly contemplate that the police officer can exercise
powers under the aforesaid provisions provided he is prima-facie
satisfied that there are reasonable grounds to believe that the
accused is guilty of commission of the cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">46.
Section 154 of Cr.P.C. forms a part of a chain of statutory
provisions relating to investigation, and therefore, it must follow
that the provisions of Sections 41, 157, 167 etc. have a bearing on
the interpretation of Section 154 of Cr.P.C. The said judgments have
interpreted Section 154 of Cr.P.C. purely on the literal
interpretation test and while doing so, the other important tests of
statutory interpretation, like a statute must be read as a whole and
no provision of a statute should be considered and interpreted
de-hors the other provisions, the rule of purposive construction etc.
are lost sight of. He referred to the following cases - Tarachand and
Another v. State of Haryana 1971 (2) SCC 579, Sandeep Rammilan Shukla
v. State of Maharashtra and Others 2009 (1) Mh.L.J. 97, Sakiri Vasu
v. State of Uttar Pradesh and Others 2008 (2) SCC 409, </span></span><a href="http://indiankanoon.org/doc/1183254/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Nasar
Ali v. State of Uttar Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1957
SCR 657,</span></span><a href="http://indiankanoon.org/doc/1787029/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Union
of India and Another v. W.N. Chadha</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1993
(Suppl.) 4 SCC 260, </span></span><a href="http://indiankanoon.org/doc/342595/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of West Bengal v. S.N. Basak</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1963
(2) SCR 52.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">47.
</span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Mr.Naphade
submitted that in the case of allegations relating to medical
negligence on the part of doctors, this Court has clearly held that
no medical professional should be prosecuted merely on the basis of
the allegations in the complaint. There should be an in- depth
enquiry into the allegations relating to negligence and this
necessarily postulates a preliminary enquiry before registering an
FIR or before entering on investigation.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
He reported to </span></span><a href="http://indiankanoon.org/doc/521213/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of M.P. v. Santosh Kumar</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> -
2006 (6) SCC 1 and </span></span><a href="http://indiankanoon.org/doc/650550/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Dr.
Suresh Gupta v. Govt. of NCT of Delhi and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2004(6)
SCC 422.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">48.
He also submitted that the same principle can also be made applicable
to the people of different categories. The literal interpretation of
Section would mean the registration of an FIR to a mechanical act.
The registration of an FIR results into serious consequences for the
person named as accused therein. It immediately results in loss of
reputation, impairment of his liberty, mental anguish, stigma, etc.
It is reasonable to assume that the legislature could not have
contemplated that a mere mechanical act on the part of SHO should
give rise to such consequences.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">49.
He submitted that the registration of an FIR under Section 154 of
Cr.P.C. is an administrative act of a police officer. In the case
of </span></span><a href="http://indiankanoon.org/doc/1318432/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Rai
Sahib Ram Jawaya Kapur and Others v. State of Punjab</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1955
(2) SCR 225, </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>this
Court has explained what is administrative function and has said that
ordinarily the executive power connotes the residue of Government
functions that remain after legislative/judicial functions are taken
away. Every administrative act must be based on application of mind,
scrutiny and verification of the facts. No administrative act can
ever be a mechanical one. This is the requirement of rule of law.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
Reference was made to paras 12 and 13 of </span></span><a href="http://indiankanoon.org/doc/24956/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
(Anti-Corruption Branch), Govt. of NCT of Delhi and Another v. Dr.
R.C. Anand and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2004
(4) SCC 615.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">50.
According to Mr. Naphade, these judgments have not considered the
impact of Article 21 on Section 154 of Cr.P.C. After and beginning
with </span></span><a href="http://indiankanoon.org/doc/1766147/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Maneka
Gandhi v. Union of India and Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1978
(1) SCC 248, this Court has applied Article 21 to several provisions
relating to criminal law. This Court has also said that the
expression "law" contained in Article 21
necessarily postulates law which is reasonable and not merely a
statutory provision irrespective of its reasonableness or otherwise.
In the light of Article 21, provisions of Section 154 of Cr.P.C. must
be read down to mean that before registering an FIR, the Station
House Officer must have a prima-facie satisfaction that there is
commission of cognizable offence as registration of an FIR leads to
serious consequences for the person named as accused and for this
purpose, the requirement of preliminary enquiry can be spelt out in
Section 154 and can be said to be implicit within the provisions of
Section 154 of Cr.P.C. Reliance was placed on Maneka Gandhi (supra)
and </span></span><a href="http://indiankanoon.org/doc/699319/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">S.M.D.
Kiran Pasha v. Government of Andhra Pradesh and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1990
(1) SCC 328.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">51.
The fact that Sections 154 (3), 156(3), 190, 202 etc. clearly provide
for remedies to a person aggrieved by refusal on the part of the SHO
to register an FIR, clearly show that the statute contemplates that
in certain circumstances the SHO can decline to register an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">52.
To require SHO to register an FIR irrespective of his opinion that
the allegations are absurd or highly improbable, motivated etc. would
cause a serious prejudice to the person named as accused in the
complaint and this would violate his rights under Article 21. This
Court has recognized the concept of pre- violation protection
implicit in Article 21. The said judgments while relying upon the
literal interpretation test have not considered the rule of statutory
interpretation that in certain situations the expression
"shall" does not convey mandatory character of the
provisions. For example, proviso to Section 202 (2) has been held
using the expression "shall" not to be mandatory
but directory. After all, Section 154 of Cr.P.C. is a part of the
procedural law and in respect of procedural law, the expression
"shall" may not always necessarily convey that the
provision is mandatory. Mr. Naphade placed reliance on the following
cases - </span></span><a href="http://indiankanoon.org/doc/928147/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">P.T.
Rajan v. T.P.M. Sahir and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2003(8)
SCC 498, </span></span><a href="http://indiankanoon.org/doc/633700/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Shivjee
Singh v. Nagendra Tiwary and Others</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2010
(7) SCC 578 and Sarbananda Sonowal (II) etc. v. Union of India 2007
(1) SCC 174. The said judgments have also not considered the rule of
purposive interpretation and also that the statute must be considered
as a whole and no provision can be interpreted in isolation. 4</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">53.
The non-registration of an FIR does not result in crime going
unnoticed or unpunished. The registration of an FIR is only for the
purpose of making the information about the cognizable offence
available to the police and to the judicial authorities at earliest
possible opportunity. The delay in lodging an FIR does not
necessarily result in acquittal of the accused. The delay can always
be explained.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">54.
Mr. Naphade also submitted that this Court has also held that
registration of an FIR is not a condition precedent for initiating
investigation into the commission of a cognizable offence. Section
154 Cr.P.C. clearly imposed a duty on the police officer. </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>When
an information is received, the officer in charge of the police
station is expected to reach the place of occurrence as early as
possible. It is not necessary for him to take steps only on the basis
of an FIR. It is the duty of the State to protect the life of an
injured as also an endeavour on the part of the responsible police
officer to reach the place of occurrence in his implicit duty and
responsibility.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
This has been held in the case of </span></span><a href="http://indiankanoon.org/doc/1112252/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Animireddy
Venkata Ramana and Others v. Public Prosecutor, High Court of Andhra
Pradesh</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 2008
(5) SCC 368.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">55.
Mr. Naphade further submitted that ordinarily the SHO should record
an FIR upon receiving a complaint disclosing the ingredients of a
cognizable offence, but in certain situations he should have the
discretion of holding a preliminary enquiry and thereafter if he is
satisfied, register an FIR.</span></span></div>
<ol start="56">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">The
provisions contained in Section 154 Cr.P.C. of 1973 were also there
in the 1898 Cr.P.C. and even the earlier one of 1877. The
interpretation that was placed by the High Courts and the Privy
Council on these provisions prior to Maneka Gandhi (supra) rested
principally on the words used in the Section de-hors the other
provisions of the Act and also de-hors the impact of Article 21 of
the Constitution on the criminal jurisprudence. In other words, the
courts have followed the test of literal interpretation without
considering the impact of Article 21.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">57.
It is a trite proposition that a person who is named in an FIR as an
accused, suffers social stigma. If an innocent person is falsely
implicated, he not only suffers from loss of reputation but also
mental tension and his personal liberty is seriously impaired. After
Maneka Gandhi's case, the proposition that the law which deprives a
person of his personal liberty must be reasonable, both from the
stand point of substantive aspect as well as procedural aspect is now
firmly established in our constitutional law. This warrants a fresh
look at Section 154 of Cr.P.C. Section 154 Cr.P.C. must be read in
conformity with the mandate of Article 21. If it is so interpreted,
the only conclusion is that if a Police Officer has doubts about the
veracity of the complaint, he can hold preliminary enquiry before
deciding to record or not to record an FIR. 5</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">58.
It is the mandate of Article 21 which requires a Police Officer to
protect a citizen from baseless allegations. This, however, does not
mean that before registering an FIR the police officer must fully
investigate the case. A delicate balance has to be maintained between
the interest of the society and protecting the liberty of an
individual. Therefore, what should be the precise parameters of a
preliminary enquiry cannot be laid down in abstract. The matter must
be left open to the discretion of the police officer.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">59.
A proposition that the moment the complaint discloses ingredients a
cognizable offence is lodged, the police officer must register an FIR
without any scrutiny whatsoever, is an extreme proposition and is
contrary to the mandate of Article 21. Similarly, the extreme point
of view is that the police officer must investigate the case
substantially before registering an FIR is also an argument of the
other extreme. <b>Both must be rejected and a middle path must be
chosen.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5</span></span></div>
<ol start="60">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Mr.Naphade
mentioned about Maneka Gandhi's case and observed that the attempt
of the Court should be to expand the reach and ambit of the
fundamental rights, rather than to attenuate their meaning and
contents by a process of judicial construction. The immediate impact
of registration of an FIR on an innocent person is loss of
reputation, impairment of personal liberty resulting in mental
anguish and, therefore, the act of the police officer in registering
an FIR must be informed by reason and it can be so only when there
is a prima facie case against the named accused.</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">61.
According to Mr. Naphade, the provisions of Article 14 which are an
anti-thesis of arbitrariness and the provisions of Articles 19 and 21
which offer even a pre- violation protection require the police
officer to see that an innocent person is not exposed to baseless
allegations and, therefore, in appropriate cases he can hold
preliminary enquiry. In Maneka Gandhi's case this Court has
specifically laid down that in R.C. Cooper's case it has been held
that <b>all fundamental rights must be read together and that
Articles 14, 19 and 21 overlap in their content and scope and that
the expression `personal liberty' is of the widest amplitude and
covers a variety of rights which go to constitute personal liberty of
a citizen. </b>(Reliance was particularly placed on paras 5,6 and 7
on pages 278-284).</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">62.
Mr. Naphade further argued that this Court has held that in order to
give concrete shape to a right under Article 21, this Court can issue
necessary directions in the matter. If directions as regards arrest
can be given, there is no reason why guidelines cannot be framed by
this Court as regards registration or non-registration of an FIR
under Section 154 Cr.P.C.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">63.
Mr. Naphade also submitted that the importance of the need of the
police officer's discretion of holding a preliminary inquiry is well
illustrated by the judgment of this Court in the case of Uma Shankar
Sitani v. Commissioner of Police, Delhi and Ors. 1996 (11) SCC 714.
In that case the complaint was lodged by one Sarvjeet Chauhan against
one Uma Shankar relating to alleged cognizable offence. Uma Shankar
was arrested and upon investigation it was found that the complainant
was a fictitious person. Somebody else had filed the false complaint.
The residential address of the fictitious complainant was also
fictitious. In the whole process Uma Shankar went through serious
mental turmoil as not only the allegation was found to be false, but
he was arrested by the police and had to undergo humiliation and loss
of reputation. Such incidents can happen and must have happened in
scores of cases as filing of false cases due to personal, political,
business rivalry, break- down of matrimonial relationship etc. are
rampant.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">64.
Mr. Naphade submitted that Section 498-A of I.P.C. which was meant to
be a measure of protection, turned out to be an instrument of
oppression. Judicial notice of this has been taken by this Court in
the case of Preeti Gupta and Another v. State of Jharkhand and
Another (2010) 7 SCC 667. In the said case, this Court has referred
to rapid increase in filing of complaints which are not bona fide and
are filed with oblique motives. Such false complaints lead to
insurmountable harassment, agony and pain to the accused. This Court
has observed that the allegations of the complainant in such cases
should be scrutinized with great care and circumspection. Is it,
therefore, not advisable that before registering an FIR, a
preliminary inquiry at least to verify the identity of the
complainant and his residential address should be carried out. This
case illustrates how on a false complaint, a person's right to life
and liberty under Article 21 of the Constitution can be put to
serious jeopardy.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">65.
This Court in its judgment in </span></span><a href="http://indiankanoon.org/doc/78536/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Francis
C. Mullin v. Administrator, Union Territory of Delhi</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1981
(1) SCC 608 [paras 4 and 5) has held that Article 21 requires that no
one shall be deprived of his life and personal liberty except by
procedure established by law and this procedure must be reasonable,
fair and just. If the procedure is not reasonable, fair and just, the
Court will immediately spring into action and run to the rescue of
the citizen. From this it can be easily deduced that where the police
officer has a reasonable doubt about the veracity of the complaint
and the motives that prompt the complainant to make the complaint, he
can hold a preliminary inquiry. Holding of preliminary inquiry is the
mandate of Article 21 in such cases. If the police officer
mechanically registers the complaint involving serious allegations,
even though he has doubts in the matter, Article 21 would be
violated. Therefore, Section 154 must be read in the light of Article
21 and so read preliminary inquiry is implicit in Section 154. In
paras 7 and 8 of the said judgment, this Court has made an
unequivocal declaration of the law that </span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>any
act which damages or injures or interferes with use of any limb or
faculty of a person, either permanently or even temporarily, would be
within the ambit of Article 21.</b></span></span></span><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">
</span></span>
</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">66.
Not only this, every act which offends against and imperils human
dignity, would constitute deprivation pro tanto of this right to live
and it would have to be in accordance with the reasonable, just and
fair procedure established by law which stands the test of other
fundamental rights. A baseless allegation is a violation of human
dignity and despite the police officer having doubts about the
allegation, he being required to register an FIR, would be a clear
infringement of Article 21.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">67.
<b>Mr. Naphade further submitted that it is settled principle of law
that no single provision of a statute can be read and interpreted in
isolation. The statute must be read as a whole. In the present case,
the provisions of Sections 41,57, 156, 157, 159, 167, 190, 200 and
202 of Cr.P.C. must be read together. These provisions constitute the
statutory scheme relating to investigation of offences and,
therefore, no single provision can be read in isolation. Both,
Sections 41 and 154 deal with cognizable offence. Section 41 empowers
the police to arrest any person without warrant from the Magistrate
if such person is concerned in any cognizable offence or against whom
a reasonable complaint has been made or credible information has been
received or reasonable suspicion exits of such person having been so
concerned with the cognizable offence. Section 41 also specifically
refers to a cognizable complaint about commission of a cognizable
offence.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">68.
The scheme of the Act is that after the police officer records an FIR
under Section 154 Cr.P.C., he has to proceed to investigate under
Section 156 Cr.P.C. and while investigating the police officer has
power to arrest. What is required to be noted is that for the purpose
of arresting the accused, the police officer must have a reasonable
ground to believe that the accused is involved in the commission of a
cognizable offence. If Sections 41 and 154 are so read together, it
is clear that before registering an FIR under Section 154 the police
officer must form an opinion that there is a prima facie case against
the accused. If he does not form such an opinion and still proceeds
to record an FIR, he would be guilty of an arbitrary action. Every
public authority exercising any powers under any statute is under an
obligation to exercise that power in a reasonable manner. This
principle is well settled and it forms an integral part of the legal
system in this country.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">69.
Mr. Naphade submitted that the provisions of Section 154(3) enable
any complainant whose complaint is not registered as an FIR by the
SHO to approach the higher police officer for the purpose of getting
his complaint registered as an FIR and in such case, the higher
police officer has all the powers of recording an FIR and directing
investigation into the matter. Apart from this power under Section 36
any police officer senior in rank to an officer in charge of the
police station can exercise the same powers as may be exercised by
such officer in charge of the police station. Provisions of Section
154 (3) and Section 36 are clear indication that in an appropriate
case a police officer can either decline to register the FIR or defer
its registration. The provisions of Section 154(3) and Section 36 is
a sufficient safeguard against an arbitrary refusal on the part of a
police officer to register the FIR. The very fact that a provision
has been made in the statute for approaching the higher police
officer, is an indication of legislative intent that in appropriate
cases, a police officer may decline to register an FIR and/or defer
its registration.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>70.
In addition to the remedy available to the aggrieved person of
approaching higher police officer, he can also move the concerned
Magistrate either under Section 156(3) for making a complaint under
Section 190. If a complaint is lodged, the Magistrate can examine the
complainant and issue process against the accused and try the case
himself and in case triable by Sessions Court, then he will commit
the case to Sessions under Section 209.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<br />
<br /></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">71.
The Magistrate can also on receipt of a complaint, hold an enquiry or
direct the police to investigate. In addition to the above, the
Magistrate also has a power to direct investigation under Section 159
Cr.P.C. In the case of Mona Panwar v. High Court of Judicature of
Allahabad (2011) 3 SCC 496 in paras 17 and 18 on page 503 this Court
has, inter alia, held that if the complaint relating to a cognizable
officer is not registered by the police, then the complainant can go
the Magistrate and then the Magistrate has the option of either
passing an order under Section 156(3) or proceeding under Section
200/202 of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">72.
It was also submitted by Mr. Naphade that an order under Section
156(3) of the Code is in the nature of a preemptory reminder or
intimation to the police to exercise its plenary power of
investigation under Section 156(1). Such an investigation embraces
the entire continuous process which begins with the collection of
evidence under Section 156 and ends with the vital report either
under Section 169 or submission of a charge-sheet under Section 173
of the Code. A Magistrate can under Section 190 of the Code before
taking cognizance, direct investigation by the police by order under
Section 156(3) of the Code.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">73.
Mr. Naphade also submitted that the very fact that the Legislature
has provided adequate remedies against refusal to register an FIR and
hold investigation in cognizable offences is indicative of
legislative intent that the police officer is not bound to record an
FIR merely because the ingredients of cognizable offences are
disclosed in the complaint if he has doubt about the veracity of the
complaint.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">74.
In further support of the proposition that a police officer is not
bound to register an FIR on mere disclosure of existence of
ingredients of cognizable offence, it is submitted that the statute
does not contemplate that for the purpose of investigation, recording
of an FIR is a condition precedent. Section 156 empowers the police
to do so. Similarly, Section 157 clearly lays down that if from
information received or otherwise an officer in charge of the police
station has reason to suspect the commission of an offence, he can
investigate into the same. In Section 157(1) the expression
"from information received" obviously refers to
complaint under Section 154 Cr.P.C. registered as an FIR. The word
"otherwise" in Section 157 Cr.P.C. clearly
indicates that recording of an FIR is not a condition precedent to
initiation of investigation. The very fact that the police have a
power of investigation independent of registration of an FIR is a
clear pointer to the legislative intent that a police officer is not
bound to register an FIR in each and every case.</span></span></div>
<ol start="75">
<li><div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Mr.
Naphade relied on the case of Apren Joseph alias current Kunjukunju
and Others v. State of Kerala 1973 (3) SCC 114 wherein in para 11
this Court has held that recording of an FIR is not a condition
precedent for setting in motion criminal investigation. In doing so,
this Court has approved the observation of Privy Council made in the
case of Khwaja Nazim Ahmad (supra).</span></span></div>
</li>
</ol>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">76.
Mere recording of an FIR under Section 154 Cr.P.C. is of no
consequence unless the alleged offence is investigated into. For the
purpose of investigation after registration of the FIR, the police
officer must have reason to suspect commission of an offence. Despite
registration of the FIR, the police officer may not have a reasonable
ground to suspect that an offence has been committed and in that
situation he may decline to carry out investigation and may come to
the conclusion that there is no sufficient ground for carrying out
investigation. If under the proviso (b) to Section 157 Cr.P.C. the
police officer has such discretion of not investigating, then it
stands to reason that registration of an FIR should not result into
an empty formality.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">77.
The registration of an FIR should be effective and it can be
effective only if further investigation is to be carried out and
further investigation can be carried out only if the police officer
has reasonable ground to suspect that the offence is committed. If,
therefore, there is no reasonable ground to suspect the commission of
cognizable offence, the police officer will not investigate and if
that is a situation, then on the same footing he may decline to
register the FIR. This is clearly implicit in the provisions of
Section 154(1). It is, submitted that if the provisions of Section
154 are read with Sections 41,57,156,157,159,167,190,200 and 202
Cr.P.C., the only possible conclusion is that a police officer is not
bound to register each and every case.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">78.
Mr. Naphade placed reliance on </span></span><a href="http://indiankanoon.org/doc/1879287/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Maharashtra and Others v. Sarangdharsingh Shivdassingh Chavan and
Another</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> (2011)
1 SCC 577 wherein in paragraphs 29 and 30, this Court has observed as
follows:- “29. The legal position is well settled that on
information being lodged with the police and if the said information
discloses the commission of a cognizable offence, the police shall
record the same in accordance with the provisions contained under
Section 154 of the Criminal Procedure Code. The police officer's
power to investigate in case of a cognizable offence without order of
the Magistrate is statutorily recognised under Section 156 of the
Code. Thus the police officer in charge of a police station, on the
basis of information received or otherwise, can start investigation
if he has reasons to suspect the commission of any cognizable
offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">30.
This is subject to provisos (a) and (b) to Section 157 of the Code
which leave discretion with the police officer in charge of police
station to consider if the information is not of a serious nature, he
may depute a subordinate officer to investigate and if it appears to
the officer- in-charge that there does not exist sufficient ground,
he shall not investigate. This legal framework is a very vital
component of the rule of law in order to ensure prompt investigation
in cognizable cases and to maintain law and order.”</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">79.
He submitted that if the police officer is of the opinion that the
complaint is not credible and yet he is required to register the FIR,
then he would be justified in not investigating the case. In such a
case the FIR would become a useless lumber and a dead letter. The
police officer would then submit a closure report to the Magistrate.
The Magistrate then would issue notice to the complainant and hear
him. If the Magistrate is of the opinion that there is a case, then
he may direct police to investigate.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">80.
Mr. Napahde submitted that the aforesaid analysis of various
provisions of Criminal Procedure Code clearly bring out that the
statutory provisions clearly maintain a balance between the rights of
a complainant and of the Society to have a wrongdoer being brought to
book and the rights of the accused against baseless allegations.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>81.
The provisions have also to be read in the light of the principle of
malicious prosecution and the fundamental rights guaranteed under
Articles 14, 19 and 21. Every citizen has a right not to be subjected
to malicious prosecution and every police officer has an in- built
duty under Section 154 to ensure that an innocent person is not
falsely implicated in a criminal case. If despite the fact that the
police officer is not prima facie satisfied as regards commission of
a cognizable offence, and proceeds to register an FIR and carry out
investigation and thereby putting the liberty of a citizen in
jeopardy, he would expose himself to the charge of malicious
prosecution and against the charge of malicious prosecution the
doctrine of sovereign immunity will not protect him. There is no law
protecting a police officer who takes part in the malicious
prosecution.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">82.
Mr. Naphade also submitted that the word "shall"
used in the statute does not always mean absence of any discretion in
the matter.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">83.
The word "shall" does not necessarily lead to
provision being imperative or mandatory.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">84.
The use of word "shall" raises a presumption that
the particular provision is imperative. But, this presumption may be
rebutted by other considerations such as, object and scope of the
enactment and other consequences flowing from such construction.
There are numerous cases where the word "shall"
has, therefore, been construed as merely directory.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">85.
In the case of </span></span><a href="http://indiankanoon.org/doc/1628739/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Sainik
Motors, Jodhpur and Others v. State of Rajasthan AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1961
SC 1480, Hidayatullah, J. has held that the word "shall"
is ordinarily mandatory, but it is sometimes not so interpreted if
the context of intention otherwise demands.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">86.
Further, Subba Rao, J. in the case of </span></span><a href="http://indiankanoon.org/doc/1540511/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Uttar Pradesh and Others v. Babu Ram Upadhya AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1961
SC 751, has observed that when the statute uses the word
"shall" prima facie it is mandatory, but the Court
may ascertain the real intention of the legislature carefully
attending to the whole scope of the statute.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">87.
In the case of </span></span><a href="http://indiankanoon.org/doc/936398/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">State
of Madhya Pradesh v. M/s Azad Bharat Finance Co. and Another AIR</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"> 1967
SC 276 it has been held that the word "shall" does
not always mean that the provision is obligatory or mandatory. It
depends upon the context in which the word "shall"
occur and the other circumstances.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">88.
In the case of Shivjee Singh (supra) it has been held that the use of
word "shall" in proviso to Section 202 (2) of
Cr.P.C. prima facie is indicative of mandatory character of the
provision contained therein. But, a close and critical analysis
thereof along with other provisions show that the same is not
mandatory. Further, it has been observed that by its very
nomenclature, Cr.P.C. is a compendium of law relating to criminal
procedure. The provisions contained therein are required to be
interpreted keeping in view the well recognized rule of construction
that procedural prescriptions are meant for doing substantial
justice. If violation of procedural provisions does not result in
denial of a fair hearing or causes prejudice to the party, the same
has to be treated as directly notwithstanding the use of the word
"shall". </span></span>
</div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">89.
In P.T. Rajan (supra), this Court has discussed the principles as to
whether a statute is mandatory or directory. The Court has observed
that a statute as is well known must be read in the text and context
thereof. Whether a statute is directory or mandatory would not be
dependent on the use of the word "shall" or
"may". Such a question must be posed and answered
having regard to the purpose and object it seeks to achieve. It has
further been held that a provision in a statute which is procedural
in nature although employs the word "shall" may not
be held to be mandatory if thereby no prejudice is caused. The
analysis of various provisions of Cr.P.C. clearly shows that no
prejudice is caused if police officer does not register an FIR. The
complainant has effective remedies under Sections 154(3), 156, 190
Cr.P.C. etc.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">90.
Mr. Naphade, the learned senior counsel submitted that it is
impossible to put the provisions of Section 154 Cr.P.C. in any
straight jacket formula. However, some guidelines can be framed as
regards registration or non- registration of an FIR. According to
him, some such guidelines are as follows:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Normally in the ordinary course a police officer should record an
FIR, if the complaint discloses a cognizable offence. However, in
exceptional cases where the police officer has reason to suspect that
the complaint is motivated on account of personal or political
rivalry, he may defer recording of the FIR, and take a decision after
preliminary enquiry.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
In case of complaints which are a result of vendetta like complaints
under Section 498A Cr.P.C. (IPC), the police officer should be slow
in recording an FIR and he should record an FIR only if he finds a
prima facie case.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
The police officer may also defer recording of an FIR if he feels
that the complainant is acting under a mistaken belief.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
The police officer may also defer registering an FIR if he finds that
the facts stated in the complaint are complex and complicated, as
would be in respect of some offences having financial contents like
criminal breach of trust, cheating etc.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">91.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant deferment of an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">92.
The second aspect of the matter is what test should the police
officer take in case he is of the opinion that registration of an FIR
should be deferred. He suggested the following measures :-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
The police officer must record the complaint in the Station/General
Diary. This will ensure that there is no scope for manipulation and
if subsequently he decides to register an FIR, the entry in
Station/General Diary should be considered as the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
He should immediately report the matter to the superior police
officer and convey him his reasons or apprehensions and take his
permission for deferring the registration. A brief note of this
should be recorded in the station diary.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
The police officer should disclose to the complainant that he is
deferring registration of the FIR and call upon him to comply with
such requisitions the police officer feels necessary to satisfy
himself about the prima facie credibility of the complaint. The
police officer should record this in the station diary. All this is
necessary to avoid any charge as regard to the delay in recording the
FIR. It is a settled law that a mere delay in registering an FIR is
not harmful if there are adequate reasons to explain the delay in
filing an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>93.
According to him, in the light of the above discussion in respect of
the impact of Article 21 on statutory provisions, it must be held
that Section 154 of Cr.P.C. must be interpreted in the light of
Article 21. The requirement of Article 21 is that the procedure
should be just and fair. If, therefore, the police officer himself
has doubts in the matter, it is imperative that he should have the
discretion of holding a preliminary inquiry in the matter. If he is
debarred from holding such a preliminary inquiry, the procedure would
then suffer from the vice of arbitrariness and unreasonableness.</b></span></span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">94.
Learned counsel appearing for the State of Tamil Nadu adopted the
arguments submitted by Mr. Naphade, the learned senior counsel for
Maharashtra and submitted that ordinarily a police officer has to
register an FIR when a cognizable offence is made out, but in
exceptional cases he must have some discretion or latitude of
conducting some kind of preliminary inquiry before recording of the
FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">95.
Learned counsel for the parties have drawn our attention to two sets
of cases decided by this Court expressing totally divergent judicial
opinions. We deem it appropriate to briefly summarise them in the
following paragraphs.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">96.
This Court in the case of Bhajan Lal and Others (supra), Ramesh
Kumari (supra), Parkash Singh Badal and Another v. State of Punjab
and Others (2007) 1 SCC 1 and Aleque Padamsee and Others (supra) held
that if a complaint alleging commission of cognizable offence is
received in the Police Station, then the S.H.O. has no option but to
register an F.I.R. under Section 154 Cr.P.C..</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">97.
On the other hand, this Court in following cases, namely, Rajinder
Singh Katoch (supra), P. Sirajuddin etc. v. State of Madras etc. 1970
(1) SCC 595, Bhagwant Kishore Joshi (supra), Sevi and Another etc. v.
State of Tamil Nadu and Another 1981 (Suppl.) SCC 43 have taken
contrary view and held that before registering the FIR under Section
154 of Cr.P.C., it is open to the SHO to hold a preliminary enquiry
to ascertain whether there is a prima facie case of commission of
cognizable offence or not.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">98.
We deem it appropriate to give a brief ratio of these cases.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">99.
In Bhajan Lal (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">100.
In Ramesh Kumari (supra), this Court observed that the provision of
Section 154 of the Code is mandatory and the officer concerned is
duty-bound to register the case on the basis of such an information
disclosing cognizable offence.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">101.
In Parkash Singh Badal (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"It
is, therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code,
the said police officer has no other option except to enter the
substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">102.
In Aleque Padamsee (supra), this Court observed as under :-</span></span></div>
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<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"The
correct position in law, therefore, is that the police officials
ought to register the FIR whenever facts brought to their notice show
that cognizable offence has been made out."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">103.
There is another set of cases where this Court has taken contrary
view.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">104.
In Rajinder Singh Katoch (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"We
are not oblivious to the decision of this Court in </span></span><a href="http://indiankanoon.org/doc/116992/"><span style="color: #1100cc;"><span style="font-family: georgia, verdana, sans-serif;">Ramesh
Kumari v. State (NCT of Delhi)</span></span></a><span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">wherein
such a statutory duty has been found in the police officer. But, as
indicated hereinbefore, in an appropriate case, the police officers
also have a duty to make a preliminary enquiry so as to find out as
to whether allegations made had any substance or not."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">105.
In Bhagwant Kishore Joshi (supra), Mudholkar, J. in his concurring
judgment has observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"I
am of opinion that it is open to a Police Officer to make preliminary
enquiries before registering an offence and making a full scale
investigation into it."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">106.
In P. Sirajuddin etc. (supra), this Court quoted the observations of
the High Court as under:- "(a) "substantial
information and evidence had been gathered before the so-called first
information report was registered"."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">107.
In Sevi and Another (supra), this Court observed as under:-</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">"If
he was not satisfied with the information given by PW 10 that any
cognizable offence had been committed he was quite right in making an
entry in the general diary and proceeding to the village to verify
the information without registering any FIR."</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">108.
It is quite evident from the ratio laid down in the aforementioned
cases that different Benches of this Court have taken divergent views
in different cases. In this case also after this Court's notice, the
Union of India, the States and the Union Territories have also taken
or expressed divergent views about the interpretation of Section 154
Cr.P.C.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">109.
We have carefully analysed various judgments delivered by this Court
in the last several decades. We clearly discern divergent judicial
opinions of this Court on the main issue whether under Section 154
Cr.P.C., a police officer is bound to register an FIR when a
cognizable offence is made out or he (police officer) has an option,
discretion or latitude of conducting some kind of preliminary enquiry
before registering the FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">110.
Learned counsel appearing for the Union of India and different States
have expressed totally divergent views even before this Court. This
Court also carved out a special category in the case of medical
doctors in the aforementioned cases of Santosh Kumar (supra) and Dr.
Suresh Gupta (supra) where preliminary enquiry had been postulated
before registering an FIR.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">111.
Some counsel also submitted that the CBI Manual also envisages some
kind of preliminary enquiry before registering the FIR. The issue
which has arisen for consideration in these cases is of great public
importance.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">112.
In view of the divergent opinions in a large number of cases decided
by this Court, it has become extremely important to have a clear
enunciation of law and adjudication by a larger Bench of this Court
for the benefit of all concerned - the courts, the investigating
agencies and the citizens.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">113.
Consequently, we request Hon'ble the Chief Justice to refer these
matters to a Constitution Bench of at least five Judges of this Court
for an authoritative judgment.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">...................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(Dalveer
Bhandari)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">..................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(T.S.
Thakur)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">...................................J.</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(Dipak
Misra)</span></span></div>
<div align="JUSTIFY" style="line-height: 0.25in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">New
Delhi;</span></span></div>
<div align="JUSTIFY" style="border-bottom-color: rgb(0, 0, 0); border-bottom-width: 1.1pt; border-style: none none double; line-height: 0.25in; padding: 0in 0in 0.03in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">February
27, 2012</span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-59062380622670316622013-08-04T22:36:00.001+05:302013-08-04T22:36:29.781+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
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IN THE SUPREME COURT OF
INDIA</div>
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CRIMINAL APPELLATE
JURISDICTION</div>
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CRIMINAL APPEAL NO. 1765
OF 2011</div>
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(ARISING OUT OF S.L.P.
(CRL.) NO. 1088 OF 2008)</div>
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JAKIA NASIM AHESAN & ANR.
-- APPELLANTS</div>
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VERSUS</div>
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STATE OF GUJARAT & ORS.
-- RESPONDENTS</div>
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O
R D E R</div>
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1. Leave granted.
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2. This appeal by special
leave, arises out of the judgment dated 2nd
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November, 2007, delivered by
the High Court of Gujarat at
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Ahmedabad in Special Criminal
Application No. 421 of 2007,
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dismissing the writ petition
preferred by one of the hapless victims of
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the abominable and woeful
events which took place in the State of
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Gujarat between February, 2002
and May, 2002 after the abhorrent
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Godhra incident on 27th
February, 2002. By the said petition under
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Article 226 of the Constitution of
India read with Section 482 of the
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Code of Criminal Procedure,
1973 (for short "the Code"), the
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appellant had sought for a direction
to the Director General of Police,
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State of Gujarat, to register her
private complaint dated 8th June, 2006
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as a First Information
Report and direct investigation therein by an
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independent agency. By the impugned
judgment, the High Court has
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come to the conclusion that
since a remedy under Section 190 read
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with Section 200 of the Code was
available to the appellant, the writ
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petition was not tenable. The writ
petition was accordingly dismissed
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by the High Court with the
observation that if the appellant had got
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certain additional material
against some persons accused in her
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complaint, it was open to
her to approach the investigating agency,
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requesting further
investigation, or, alternatively she could herself
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approach the Court concerned
for further investigation in terms of
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Section 173(8) of the Code.</div>
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3. The appellant lost her husband, a
former Member of Parliament, in the
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calamitous events which took
place on 28th February, 2002, in the
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surroundings of Gulberg
Society, Ahmedabad, where the appellant
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resided along with her
family. An FIR relating to the incident was
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registered by the Police
with Meghaninagar Police Station,
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Ahmedabad. After investigation, on
the filing of the charge-sheet, the
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2</div>
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case was committed to the Court of
Sessions, Ahmedabad. It was the
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case of the appellant that
subsequently she received certain material
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which showed that the incidents
which took place during the period
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between 27th
February, 2002 and 10th May, 2002, were aided,
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abetted and conspired by
some responsible persons in power, in
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connivance with the State
Administration, including the Police. The
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appellant thus sought
registration of another FIR against certain
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persons named in the
complaint, dated 8th June, 2006, for offences
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
punishable under Section 302
read with Section 120B as also under
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Section 193 read with
Sections 114, 186 & 153A, 186, 187 of the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Indian Penal Code, 1860.
However, as the police declined to take
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
cognizance of her complaint,
the appellant filed the aforementioned
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
petition before the High Court.
Having failed to convince the High
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court that it was a fit case for
investigation by an independent agency,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the appellant-complainant, supported
by an NGO, is before us in this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
appeal.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4. On 3rd March, 2008 while
issuing notice to the Union of India and
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
State of Gujarat, an Amicus Curiae
was appointed to assist the Court.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Vide order dated 27th April, 2009,
the Special Investigation Team (for
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
short "the SIT"),
which had been constituted vide order dated 26th
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
March, 2008 to carry out further
investigations in nine cases, subject
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
matter of Writ Petition No. 109 of
2003, was directed `to look into',
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the complaint submitted by
the appellant on 8th June, 2006 to the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Director General of Police,
Gujarat. Pursuant to the said direction
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Shri A.K. Malhotra, former D.I.G.
(C.B.I.) and one of the members of
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the SIT, examined a number
of witnesses and looked into a large
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
number of documents made
available to him. A report, dated 12th
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
May, 2010, was submitted to
this Court by the Chairman, SIT,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
concurring with the findings of Shri
A.K. Malhotra.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
5. In his report dated 12th
May, 2010, Shri A.K. Malhotra, inter alia
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
recommended further investigation
under Section 173(8) of the Code
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
against certain Police
officials and a Minister in the State Cabinet.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Consequently, further investigation
was conducted and a report dated
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
17th November, 2010, was submitted
by the SIT. On 23rd November,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2010, Shri Raju Ramachandran,
Senior Advocate and Shri Gaurav
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Agarwal, Advocate, replaced
the previous Amicus Curiae, who had
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
expressed his unwillingness to
continue.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6. On 20th January, 2011, a preliminary
note was submitted by Shri Raju
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ramachandran, the learned Amicus
Curiae; whereon, vide order dated
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
15th March, 2011, the SIT
was directed to submit its report, and if
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
necessary carry out further
investigation in light of the observations
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
made in the said note. The SIT
conducted further investigation under
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
Section 173(8) of the Code
in Meghaninagar Police Station Crime
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Report No.67 of 2002--Gulberg
Society case, and submitted a report
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
on 24th April, 2011. After
examining the said report, on 5th May,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2011, the following order was passed
:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"Pursuant to our
order dated 15th March, 2011, the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Chairman, Special
Investigation Team (SIT) has
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
filed report on the
further investigations carried out
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
by his team along
with his remarks thereon.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Statements of
witnesses as also the documents
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
have been placed on
record in separate volumes.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Let a copy of all these
documents along with the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
report of the
Chairman be supplied to Mr. Raju
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ramachandran, the learned
Amicus Curiae.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
The learned Amicus
Curiae shall examine the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
report; analyze and
have his own independent
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
assessment of the
statements of the witnesses
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
recorded by the SIT
and submit his comments
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
thereon. It will be
open to the learned Amicus
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Curiae to interact with
any of the witnesses, who
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
have been examined
by the SIT, including the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
police officers, as he
may deem fit.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
If the learned Amicus
Curiae forms an opinion that
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
on the basis of the
material on record, any offence
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
is made out against
any person, he shall mention
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the same in his report."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7. The learned Amicus Curiae has now
submitted his final report dated
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
25th July, 2011. In light of the
above conspectus and the report of the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
learned Amicus Curiae, the
question for determination is the future
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
course of action in the matter.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<b>8. We are of the opinion that
bearing in mind the scheme of Chapter XII of the Code, once the
investigation has been conducted and completed by the SIT, in terms
of the orders passed by this Court from time to time, there is no
course available in law, save and except to forward the final
report under Section 173 (2) of the Code to the
Court empowered to take cognizance of the offence alleged. As
observed by a three-Judge Bench of this Court in M.C.
Mehta (Taj Corridor Scam) Vs. Union of India & Ors.1, </b><span style="color: red;"><b>in
cases monitored by this Court, it is concerned with ensuring
proper and honest performance of its duty by the
investigating agency and not with the merits of the
accusations in investigation, which are to be determined at the trial
on the filing of the charge-sheet in the competent Court, according
to the ordinary procedure prescribed by law</b></span><b>. </b>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9. Accordingly, we direct the
Chairman, SIT to forward a final report,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
along with the entire material
collected by the SIT, to the Court which
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
had taken cognizance of
Crime Report No.67 of 2002, as required
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
under Section 173(2) of the Code.
Before submission of its report, it
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
will be open to the SIT to obtain
from the Amicus Curiae copies of his
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
reports submitted to this
Court. The said Court will deal with the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
matter in accordance with
law relating to the trial of the accused,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
named in the report/charge-sheet,
including matters falling within the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
1 (2007) 1 SCC 110</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
ambit and scope of Section
173(8) of the Code. However, at this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
juncture, we deem it
necessary to emphasise that if for any stated
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
reason the SIT opines in
its report, to be submitted in terms of this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
order, that there is no
sufficient evidence or reasonable grounds for
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
proceeding against any person named
in the complaint, dated 8th June
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2006, before taking a
final decision on such `closure' report, the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court shall issue notice to the
complainant and make available to her
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
copies of the statements of the
witnesses, other related documents and
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the investigation report strictly in
accordance with law as enunciated
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
by this Court in Bhagwant
Singh Vs. Commissioner of Police &
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Anr.2. For the sake of ready
reference, we may note that in the said
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
decision, it has been held that in a
case where the Magistrate to whom
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
a report is forwarded under Section
173(2)(i) of the Code, decides not
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
to take cognizance of the offence
and to drop the proceedings or takes
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
a view that there is no sufficient
ground for proceeding against some
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
of the persons mentioned in the FIR,
the Magistrate must give notice
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
to the informant and provide him an
opportunity to be heard at the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
time of consideration of the report.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
10.Having so directed, the next
question is whether this Court should
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
continue to monitor the case
any further. The legal position on the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
point is made clear by this Court in
Union of India & Ors. Vs. Sushil
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
2 (1985) 2 SCC 537</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
7</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
Kumar Modi & Ors.3,
wherein, relying on the decision in Vineet
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Narain & Ors. Vs. Union of India
& Anr.4, a Bench of three learned
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Judges had observed thus :</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"...that once a
charge-sheet is filed in the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
competent court
after completion of the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
investigation, the
process of monitoring by this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court for the purpose of
making the CBI and other
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
investigative agencies
concerned perform their
</div>
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<br />
</div>
<div style="margin-bottom: 0in;">
function of
investigating into the offences
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
concerned comes to
an end; and thereafter it is
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
only the court in
which the charge-sheet is filed
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
which is to deal with
all matters relating to the trial
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
of the accused,
including matters falling within the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
scope of Section
173(8) of the Code of Criminal
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Procedure. We make
this observation only to
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
reiterate this clear
position in law so that no doubts
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
in any quarter may
survive."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
11.In M.C. Mehta Vs. Union of India
& Ors.5, a question arose as to
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
whether after the submission
of the final report by the CBI in the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court of Special Judge, pursuant to
this Court's directions, this Court
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
should examine the legality and
validity of CBI's action in seeking a
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
sanction under Section 197 of the
Code for the prosecution of some of
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
the persons named in the
final report. Dismissing the application
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
moved by the learned Amicus Curiae
seeking directions in this behalf,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
a three-Judge Bench, of which one of
us (D.K. Jain, J.) was a member,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
observed thus:</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
3 (1998) 8 SCC 661</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
4 (1996) 2 SCC 199</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
5 (2008) 1 SCC 407</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
8</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"The
jurisdiction of the Court to issue a writ of
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
continuous mandamus
is only to see that proper
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
investigation is
carried out. Once the Court
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
satisfies itself that
a proper investigation has been
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
carried out, it
would not venture to take over the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
functions of the
Magistrate or pass any order
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
which would
interfere with his judicial functions.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<b>Constitutional
scheme of this country envisages dispute resolution
mechanism by an independent and impartial tribunal. </b>
No authority, save and
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
except a superior
court in the hierarchy of
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
judiciary, can issue
any direction which otherwise
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
takes away the
discretionary jurisdiction of any
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
court of law. Once a
final report has been filed in
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
terms of sub-section
(1) of Section 173 of the Code
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
of Criminal
Procedure, it is the Magistrate and
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Magistrate alone
who can take appropriate
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
decision in the matter
one way or the other. If he
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
errs while passing a
judicial order, the same may
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
be a
subject-matter of appeal or judicial review.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
There may be a
possibility of the prosecuting
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
agencies not
approaching the higher forum against
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
an order passed by the
learned Magistrate, but the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
same by itself
would not confer a jurisdiction on
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
this Court to step
in."
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
12.Recently, similar views have been
echoed by this Court in Narmada
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Bai Vs. State of Gujarat &
Ors.6. In that case, dealing with the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
question of further monitoring in
a case upon submission of a report
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
by the C.B.I. to this
Court, on the conclusion of the investigation,
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
referring to the earlier
decisions in Vineet Narain (supra), Sushil
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Kumar Modi (supra) and M.C.
Mehta (Taj Corridor Scam) (supra),
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
6 (2011) 5 SCC 79</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
9</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
speaking for the Bench, one of us,
(P. Sathasivam, J.) has observed as
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
under :</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
"70. The above
decisions make it clear that though
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
this Court is competent
to entrust the investigation
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
to any independent
agency, once the investigating
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
agency complete
their function of investigating
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
into the offences,
it is the court in which the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
charge-sheet is
filed which is to deal with all
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
matters relating to
the trial of the accused
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
including matters
falling within the scope of
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Section 173(8) of the
Code. Thus, generally, this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court may not
require further monitoring of the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
case/investigation.
However, we make it clear that
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
if any of the
parties including CBI require any
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
further direction,
they are free to approach this
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Court by way of an
application."</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
13. Deferentially concurring with
the dictum of this Court in the
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
aforenoted decisions, we are of the
opinion that in the instant case we
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
have reached a stage where the
process of monitoring of the case must
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
come to an end. It would neither be
desirable nor advisable to retain
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
further seisin over this case. We
dispose of this appeal accordingly.
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
14.Before parting, we direct
the State of Gujarat to reimburse to Shri
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Raju Ramachandran, all the
expenses borne by him for travel from
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Delhi to Ahmedabad and back.
We also place on record our deep
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
appreciation for the able
assistance rendered to us by Shri Raju
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
Ramachandran and Shri Gaurav
Agarwal, the learned Amicus Curiae.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
1</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in; page-break-before: always;">
<br />
</div>
<div style="margin-bottom: 0in;">
...........................................</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(D.K. JAIN, J.)
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
............................................</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(P. SATHASIVAM, J.)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
.............................................
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
(AFTAB ALAM, J.)</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
NEW DELHI;</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
SEPTEMBER 12, 2011.</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
ARS</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-79182249474192003852013-08-04T22:31:00.001+05:302013-08-04T22:31:55.081+05:30Justice Dhingra’s Landmark Judgment On Purpose Of CrPC 125<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">CrPC
125 is meant to serve as a tool to prevent destitution. Highly
qualified Indian women have been harassing their husbands by filing
these cases to sit on their butts and collect healthy tax free pay
checks.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Justice
Dhingra has turned his attention to putting an end to this malaise of
laziness. This judgment embodies everything that can be done to end
the abuse of CrPC 125.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Here
is the text of this short and sharp judgment:</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0in; padding: 0in;">
<span style="color: red;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">The
petitioner who is an MBBS qualified Doctor and admittedly had been in
practice before, claims that she was sitting at home despite being a
qualified Doctor and does not work. The petitioner claimed
maintenance against her husband who is in service. The Trial Court
granted maintenance of Rs.4,000/- per month. This petition is made
against observation of the Trial Court that she was working somewhere
and earning around Rs.8,000 to 10,000/- PM and that the maintenance
granted by the Trial Court was made subject to adjustment of the
maintenance being received by her under Section 125. Since counsel
for the petitioner states that petitioner is not working anywhere,
despite being a qualified Doctor, I consider that as she is receiving
maintenance from husband, the Court should not allow her experience
and qualification to go waste. I consider that she should be directed
to work as a honorary Doctor in some public welfare institute or
school free of charges where she can take care of health of the poor
people. Let her come to Court and give an undertaking that she was
prepared to work without charging anything in any institution named
by this Court around her house minimum 5 hours a day and 6 days a
week, so long she receives maintenance from her husband on the plea
of being unemployed.</span></span></span></div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Here
is the judgment: </span></span></span><a href="http://ipc498a.files.wordpress.com/2008/10/justice-dhingra-hammers-crpc-125-into-shape.pdf"><span style="color: #bb4411;"><span style="text-decoration: none;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Justice
Dhingra’s Landmark Judgment On Purpose Of CrPC 125</span></span></span></span></a>
</div>
<div style="margin-bottom: 0in;">
<br />
</div>
<div style="margin-bottom: 0in;">
http://ipc498a.files.wordpress.com/2008/10/justice-dhingra-hammers-crpc-125-into-shape.pdf</div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-87268153526907603672013-08-04T22:27:00.001+05:302013-08-04T22:27:31.216+05:30Advocate Pradeep Nawani Nails The Wife, The In Laws And Corrupt Cops<div dir="ltr" style="text-align: left;" trbidi="on">
<a href="http://ipc498a.wordpress.com/category/arrest/" target="_blank">http://ipc498a.wordpress.com/category/arrest/ </a><br />
<br />
<br />
<br />
<br />
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Adv
Pradeep Nawani has shown us the way on how to go about nailing the
scum that infest the ranks of the Indian police and has also shown us
to how to nail the bitter half and her enablers under Dowry
Prohibition Act Section 3 (DP3).</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Here
is the coverage in the news. </span></span></span><a href="http://www.dnaindia.com/report.asp?newsid=1211561"><span style="color: #bb4411;"><span style="text-decoration: none;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">This
is reproduced from DNA India</span></span></span></span></a><span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">:</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">NEW
DELHI: A Noida court has ordered police to book a woman and her
parents for giving dowry. The chief judicial magistrate (CJM) of
Noida ordered the police to register an FIR against Noida-based call
centre employee Natasha Juyal and her parents under section 3 of the
Dowry Prohibition Act (DPA) for giving dowry. The CJM also ordered
action against police officers who refused to register Natasha’s
husband Namit Juyal’s complaint.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Giving
or taking dowry is a criminal offence under Section 3 of the DPA with
imprisonment. This is a rare case where the section was evoked
against a woman and her family.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">Namit’s
lawyer Pradeep Nawani argued that Natasha had not only accepted to
giving dowry, but also submitted a list of stridhan that was not as
per the DPA. Even her claim of huge wedding expense did not match her
father’s financial capacity.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">According
to Nawani, Natasha filed a complaint of dowry harassment in Noida’s
sector-20 police station last year, saying Namit was given Rs10 lakh
as dowry in 2005.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">The
Noida police arrested Namit and packed him off to Dasna jail in UP.
After getting bail, Namit sought information under RTI from the Noida
police, seeking to know on what basis he was arrested.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">He
was horrified to hear that he was arrested on the basis of his wife’s
mere written complaint and verbal statement with no records to back
her allegations. He then asked police to register a complaint against
his wife and family for giving dowry.</span></span></span></div>
<div align="JUSTIFY" style="border: none; line-height: 0.23in; margin-bottom: 0.14in; margin-top: 0.14in; padding: 0in;">
<span style="color: #444444;"><span style="font-family: Lucida Grande, Verdana, Arial, sans-serif;"><span style="font-size: x-small;">On
refusal by the police, he approached court to get a complaint
registered against his wife and her parents. He also sought contempt
of court action against the police for failing to comply with a
supreme court order, stipulating that refusing to register police
complaint by a husband in a dowry case is tantamount to the contempt
of court.</span></span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-90997300842544056582013-08-04T21:51:00.001+05:302013-08-04T21:51:56.755+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<span style="color: black;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">Cites
10 docs - [</span></b></span></span><a href="http://indiankanoon.org/search/?formInput=cites:176146407"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">View
All</span></b></span></span></span></a><span style="color: black;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">]</span></b></span></span></div>
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<a href="http://indiankanoon.org/doc/190229/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">The
National Security Act, 1980</span></b></span></span></span></a></div>
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<a href="http://indiankanoon.org/doc/1569253/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">The
Indian Penal Code, 1860</span></b></span></span></span></a></div>
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<a href="http://indiankanoon.org/doc/682299/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">Section
3 in The National Security Act, 1980</span></b></span></span></span></a></div>
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<a href="http://indiankanoon.org/doc/1389751/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">The
Unlawful Activities (Prevention) Act, 1967</span></b></span></span></span></a></div>
<div style="border: none; margin-bottom: 0in; padding: 0in;">
<a href="http://indiankanoon.org/doc/1199182/"><span style="color: #000099;"><span style="text-decoration: none;"><span style="font-family: arial, sans-serif;"><b><span style="background: #ffffff;">Article
21 in The Constitution Of India 1949</span></b></span></span></span></a></div>
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<div align="JUSTIFY" style="margin-bottom: 0in;">
<span style="color: #cdbfac;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Supreme
Court of India</b></span></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.1in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Yumman
Ongbi Lembi Leima vs State Of Manipur & Ors. on 4 January, 2012</b></span></span></span></div>
<div align="JUSTIFY" style="margin-bottom: 0.05in;">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;"><b>Bench:
Altamas Kabir, Surinder Singh Nijjar, J. Chelameswar</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">IN
THE SUPREME COURT OF INDIA</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPELLATE JURISDICTION</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">CRIMINAL
APPEAL NO. 26 OF 2012</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">(Arising
out of SLP(Crl) No.7926 of 2011) YUMMAN ONGBI LEMBI LEIMA ...
APPELLANT Vs.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">STATE
OF MANIPUR & ORS. ... RESPONDENT J U D G M E N T</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">ALTAMAS
KABIR, J.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">1.
Leave granted.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">2.
Under the Detention Order No.Cril/NSA/No.10 of 2011, Imphal, the 31st
January, 2011, issued by the District Magistrate, Imphal West
District, Manipur, the Appellant's husband, Yumman Somendro @ Somo @
Tiken, was detained under the provisions of the National Security
Act, 1980. The said detention order was approved by the Governor of
Manipur on 7th February, 2011, in exercise of his powers conferred
under Section 3(4) of the aforesaid Act. The order of the Governor of
Manipur dated 18th March, 2011, confirming the detention order passed
against the husband of the Appellant and fixing the period of
detention for 12 months on the subjective satisfaction of the
detaining authority that the detenu was likely to be released on bail
by the normal criminal Courts in the near future, was challenged on
behalf of Yumman Somendro in the Gauhati High Court (Imphal Bench),
but without success. This Appeal is directed against the said order
of the High Court and the order of detention itself. Earlier, the
Appellant's husband had been arrested on 21st March, 1994 in
connection with FIR No.478(3)1994 IPS u/s 13 Unlawful Activities
(Prevention) Act, but was released on bail by the normal criminal
Court. Despite the above, again on 29th June, 1995, the Appellant's
husband was arrested in connection with FIR No.450(6)95 under
Churachandpur P.S. under Sections 386 and 34 IPC. Though he was
released on bail by the normal criminal Court, he was again arrested
under Section 13 UA (P) Act in connection with FIR No.190(5)98 and
was released on bail on 8th July, 1998. After being released on bail
by the normal Criminal Court, Yumman Somendro was again arrested on
16th January, 2011, in connection with FIR No.21(1)11 IPS under
Section 302 IPC for the alleged murder of the then Chairman of the
Board of Secondary Education, Manipur, Dr. N. Kunjabihari Singh. The
Appellant's husband was produced before the Magistrate on 17th
January, 2011, who remanded him to police custody till 31st January,
2011. On the said date, he was further remanded to police custody
till 2nd February, 2011, and when he was produced before the Chief
Judicial Magistrate in connection with the said case, he was served
with a copy of the detention order dated 31st January, 2011, issued
by the District Magistrate, Imphal West, under the National Security
Act, 1980.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">3.
On 31st January, 2011, the Appellant's husband was served with the
grounds of detention under the National Security Act, 1980, under the
authority of the District Magistrate, Imphal West. Along with the
said order, copies of the documents on which the detaining authority
had relied on to arrive at the conclusion that the detention of the
Appellant's husband was necessary, was also served on him.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">4.
On a perusal of the grounds of detention, it is clear that the
subjective satisfaction of the detaining authority is founded on the
belief that after having availed of bail facility, the Appellant's
husband could indulge in commission of further prejudicial
activities. An alternative preventive measure was, therefore,
immediately needed in the circumstances.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">5.
On behalf of the Appellant, Mr. Sanjay Parikh, relied heavily on the
decision of this Court in Rekha Vs. State of Tamil Nadu through Sec.
to Govt. [(2011) 4 SCC 260], in which it had been held that in the
absence of material particulars in similar cases in which bail had
been granted, the subjective satisfaction of the detaining authority
was merely a ruse for issuance of the impugned detention order. After
considering various decisions of this Court and the views of several
jurists and the submissions made on behalf of the parties, the
Division Bench of the High Court was of the view that the subjective
satisfaction of the detaining authority was based on proper material
and the detaining authority was also aware that the detenu was in
custody and was likely to be released on bail. The detaining
authority, therefore, was of the view that the detention of the
detenu was required in order to prevent him from acting in a manner
prejudicial to the maintenance of public order as he was likely to be
released on bail in the near future by the normal criminal Courts. On
the aforesaid reasoning, the Division Bench of the High Court
dismissed the Writ Petition filed by the detenu's wife.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;"><span style="font-size: small;">6.
The main contention urged by Mr. Parikh appearing for the Appellant
was that the personal life and liberty of a person was too precious
to be allowed to be interfered with in the manner in which it had
been done. Mr. Parikh submitted that as would be evident, the
detention order was passed on a mere supposition that the Appellant's
husband was likely to be released on bail in the near future in
connection with the case in respect of which he had been arrested and
that in view of such future apprehension, the detention order was
sought to be legitimised. Mr. Parikh submitted that not only had the
Appellant's husband not applied for bail at any stage, nor was there
any indication that he intends to do so, which could give rise to the
supposition that in the future there was every likelihood that he
would be released on bail. <b>Mr. Parikh submitted that supposition
could never take the place of facts which were necessary to establish
a case which warranted the detention of a person without any trial.</b></span></span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">7.
Mr. Parikh pointed out that Yumman Somendro had been arrested in
connection with several cases, but had been released on bail in all
the said cases till ultimately an order of detention was passed
against him under the National Security Act, 1980, on the flimsiest
of excuses. Mr. Parikh submitted that if at all the Appellant's
husband was alleged to have committed a crime which was punishable
under the Indian Penal Code, the same could not be equated with the
national security in any way, which warranted the issuance of a
detention order under the National Security Act, 1980.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">8.
Referring to the provisions of Section 3 of the aforesaid Act, Mr.
Parikh submitted that the <b>sine qua non for an order of detention
to be passed under the National Security Act, 1980, is that the
Central Government or the State Government would have to be satisfied
that in order to prevent any person from acting in any manner
prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of the public order or from acting in
any manner prejudicial to the maintenance of supply of services
essential to the community that it was necessary so to do, make an
order directing that such person be detained.</b> Mr. Parikh
submitted that although the Appellant's husband had been charged with
having committed an offence under Section 302 IPC, Section 386 and
Section 13 Unlawful Activities (Prevention) Act, there was no
material whatsoever to bring the Appellant's husband within the ambit
of the grounds enumerated in Sub-Section (2) of Section 3 of the
aforesaid Act. Mr. Parikh submitted that the order of detention had
been passed not for the reasons enumerated in Sub-Section (2) of
Section 3, but since the police was unable to pin any offence against
the Appellant's husband on account whereof he could be denied bail by
the Courts.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">9.
In support of his submissions, Mr. Parikh firstly referred to the
decision of this Court in Union of India Vs. Paul Manickam &
Anr. [(2003) 8 SCC 342], wherein while considering the delay in
disposal of a representation in the matter of preventive detention,
this Court noticed that when the detenu was already in custody, the
anticipated and apprehended acts were practical impossibilities, as
was the case as far as the Appellant's husband is concerned. This
Court further observed that as far as the question relating to the
procedure to be adopted in case the detenu is already in custody is
concerned, the detaining authorities would have to apply their minds
and show their awareness in this regard in the grounds of detention.
The necessity of keeping such person in detention under preventive
detention laws have to be clearly indicated. It was further observed
that the subsisting custody of the detenu by itself does not
invalidate an order of his preventive detention and the decision in
this regard has to depend on the facts of each case. </span></span>
</div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">However,
preventive detention being necessary to prevent the detenu from
acting in any manner prejudicial to the security of the State or to
the maintenance of public order or economic stability, ordinarily it
is not needed when the detenu is already in custody and the detaining
authority must be reasonably satisfied with cogent materials that
there is likelihood of his release and in view of his antecedent
activities which are proximate in point of time, he must be detained
in order to prevent him from indulging in such prejudicial
activities.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">10.
Mr. Parikh also referred to another decision of this Court in
Haradhan Saha Vs. The State of West Bengal & Ors. [(1975) 3
SCC 198], wherein in the case of a preventive detention order passed
under the Maintenance of Internal Security Act, 1971, the distinction
between preventive detention and criminal prosecution was sought to
be defined and it was held that the essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done, but to prevent him from doing it. It was
further observed that the basis of detention is the satisfaction of
the Executive of a reasonable probability or the likelihood of the
detenu acting in a manner similar to his past acts and preventing him
by detention from doing the same. The criminal conviction, on the
other hand, is for an act already done which can only be possible by
a trial and legal evidence.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">11.
Referring to the Division Bench order dated 31st January, 2011, Mr.
Parikh submitted that the same did not contain any material
whatsoever on which the detaining authority could have arrived at a
satisfaction that Yumman Somendro had acted in any manner which
warranted his detention under the provisions of Section 3(2) of the
National Security Act, 1980. The only reason given for issuing such
order of detention was that Yumman Somendro, who was in police
custody, was likely to be released on bail in the near future by the
normal criminal Courts, as, according to him, bails are granted in
similar cases by the criminal Courts. Mr. Parikh submitted that this
is a case where the detention order passed against the Appellant's
husband was without any basis whatsoever and had been resorted to on
account of the failure of the police to keep him in judicial custody.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">12.
On the other hand, appearing for the State of Manipur, Mr. Jaideep
Gupta, learned Senior Advocate, repeated the facts indicated earlier
to the effect that the Appellant's husband had been arrested in
connection with several cases and, in particular, for the murder of
Dr. N. Kunjabihari Singh, the then Chairman of the Board of Secondary
Education, Manipur, in his office room on 11th January, 2011. Mr.
Gupta submitted that it was subsequent to the murder of Dr. N.
Kunjabihari Singh that on 31st January, 2011, the order of detention
was passed under Section 3 of the aforesaid Act and was served on the
Appellant's husband, while he was in judicial custody, on 2nd
February, 2011. It was also submitted that thereafter the grounds of
detention were provided to the Appellant's husband, as required under
Section 8 of the above-mentioned Act to enable him at the earliest
opportunity of making a representation against the order to the
appropriate Government. The detention order was considered by the
State Government which approved the same on 7th February, 2011, and
the representation made by Yumman Somendro to the State Government
was rejected on 10th February, 2011. The matter was, thereafter,
referred to the Advisory Board which came to the conclusion that
since Yumman Somendro was a member of the banned organization,
Kanglei Yaol Kanna Lup, he was a potential danger to society, whose
activities were prejudicial to the maintenance of public order and
there was a likelihood that he would continue such activities the
moment he was released from detention and accordingly he should be
detained for the maximum period of 12 months, as provided under
Section 13 of the Act. Mr. Gupta submitted that since the detention
order was to end on 31st January, 2012, there could be no reason to
interfere with the same prior to its dissolution by efflux of time.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">13.
Having carefully considered the submissions made on behalf of
respective parties, we are inclined to hold that the extra-ordinary
powers of detaining an individual in contravention of the provisions
of Article 22(2) of the Constitution was not warranted in the instant
case, where the grounds of detention do not disclose any material
which was before the detaining authority, other than the fact that
there was every likelihood of Yumman Somendro being released on bail
in connection with the cases in respect of which he had been
arrested, to support the order of detention. Article 21 of the
Constitution enjoins that no person shall be deprived of his life or
personal liberty except, according to procedure established by law.
In the instant case, although the power is vested with the concerned
authorities, unless the same are invoked and implemented in a
justifiable manner, such action of the detaining authority cannot be
sustained, inasmuch as, such a detention order is an exception to the
provisions of Articles 21 and 22(2) of the Constitution.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">14.
When the Courts thought it fit to release the Appellant's husband on
bail in connection with the cases in respect of which he had been
arrested, the mere apprehension that he was likely to be released on
bail as a ground of his detention, is not justified. In addition to
the above, the FIRs in respect of which the Appellant's husband had
been arrested relate to the years 1994, 1995 and 1998 respectively,
whereas the order of detention was passed against him on 31st
January, 2011, almost 12 years after the last FIR No.190(5)98 IPS
under Section 13 of the Unlawful Activities (Prevention) Act. There
is no live link between the earlier incidents and the incident in
respect of which the detention order had been passed.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">15.
As has been observed in various cases of similar nature by this
Court, the personal liberty of an individual is the most precious and
prized right guaranteed under the Constitution in Part III thereof.
The State has been granted the power to curb such rights under
criminal laws as also under the laws of preventive detention, which,
therefore, are required to be exercised with due caution as well as
upon a proper appreciation of the facts as to whether such acts are
in any way prejudicial to the interest and the security of the State
and its citizens, or seek to disturb public law and order, warranting
the issuance of such an order. An individual incident of an offence
under the Indian Penal Code, however heinous, is insufficient to make
out a case for issuance of an order of preventive detention.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">16.
In our view, the detaining authority acted rather casually in the
matter in issuing the order of detention and the High Court also
appears to have missed the right to liberty as contained in Article
21 of the Constitution and Article 22(2) thereof, as well as the
provisions of Section 167 of the Code of Criminal Procedure.</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">17.
The Appeal must, therefore, succeed. The impugned order of detention
dated 31st January, 2011, passed by the District Magistrate, Imphal
West District, Manipur, in regard to the detention of Yumman Somendro
@ Somo @ Tiken son of Y. Roton Singh, is hereby quashed. The Appeal
accordingly succeeds. Let the Appellant's husband, Yumman Somendro,
be released from custody, if he is not required in connection with
any other case.
............................................................J.
(ALTAMAS KABIR)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">............................................................J.
(SURINDER SINGH NIJJAR)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">............................................................J.
(J. CHELAMESWAR)</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">New
Delhi</span></span></div>
<div align="JUSTIFY">
<span style="color: black;"><span style="font-family: georgia, verdana, sans-serif;">Dated:
04.01.2012</span></span></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-44864122979750121772013-08-04T21:21:00.000+05:302013-08-04T21:32:37.719+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
IN THE SUPREME COURT OF INDIA<br />
CRIMINAL APPELLATE JURISDICTION<br />
<br />
CRIMINAL APPEAL NO. 750 OF 2012<br />
(Arising out of S.L.P. (Criminal) No. 7281 of 2011<br />
<br />
<br />
<br />
<br />
Rashmi Rekha Thatoi & Anr. ... Appellants<br />
Versus<br />
State of Orissa & Ors. ... Respondents<br />
WITH<br />
<br />
CRIMINAL APPEAL NO. 751 OF 2012<br />
(Arising out of S.L.P. (Criminal) No. 7286 of 2011<br />
<br />
<br />
<br />
<br />
J U D G M E N T<br />
<br />
<br />
Dipak Misra, J.<br />
<br />
<br />
Leave granted in both the petitions.<br />
<br />
2. <span style="color: magenta;"><b><span style="font-size: large;">“Liberty is to the collective body, what health is to every individual body. </span><span style="font-size: x-large;">Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.”</span></b></span><br />
<br />
Thus spoke Bolingbroke.<br />
<br />
3. Liberty is the precious possession of the human soul. No one would<br />
barter it for all the tea in China. Not for nothing Patrick Henry<br />
thundered:<br />
<b><span style="color: blue;">"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death !"</span></b><br />
<br />
<b><u> The thought of losing one's liberty immediately brings in a feeling</u></b><br />
<b><u>of fear, a shiver in the spine, an anguish of terrible trauma, an</u></b><br />
<b><u>uncontrollable agony, a penetrating nightmarish perplexity and above all a</u></b><br />
<b><u>sense of vacuum withering the very essence of existence. It is because</u></b><br />
<b><u>liberty is deep as eternity and deprivation of it, infernal. May be for</u></b><br />
<b><u>this protectors of liberty ask, "How acquisition of entire wealth of the</u></b><br />
<b><u>world would be of any consequence if one's soul is lost?" It has been quite</u></b><br />
<b><u>often said that life without liberty is eyes without vision, ears without</u></b><br />
<b><u>hearing power and mind without coherent thinking faculty.</u></b><br />
4. Almost two centuries and a decade back thus spoke Edmund Burke: -<br />
“Men are qualified for civil liberty, in exact proportion to<br />
their disposition to put moral chains upon their own appetites;<br />
in proportion as their love to justice is above their rapacity;<br />
in proportion as their soundness and sobriety of understanding<br />
is above their vanity and presumption; in proportion as they<br />
are more disposed to listen to the counsel of the wise and<br />
good, in preference to the flattery of knaves. Society cannot<br />
exist unless a controlling power upon will and appetite be<br />
placed somewhere and the less of it there is within, the more<br />
there must be without. It is ordained in the eternal<br />
constitution of things that men of intemperate minds cannot be<br />
free. Their passions forge their fetters.”<br />
5. Similar voice was echoed by E. Barrett Prettyman, a retired Chief<br />
Judge of U.S. Court of Appeals:-<br />
<b><span style="color: purple;"> “In an ordered society of mankind there is no such thing as</span></b><br />
<b><span style="color: purple;"> unrestricted liberty, either of nations or of individuals.</span></b><br />
<b><span style="color: purple;"> Liberty itself is the product restraints; it is inherently a</span></b><br />
<b><span style="color: purple;"> composite of restraints; it dies when restraints are withdrawn.</span></b><br />
<b><span style="color: purple;"> Freedom, I say, is not an absence of restraints; it is a</span></b><br />
<b><span style="color: purple;"> composite of restraints. There is no liberty without order.</span></b><br />
<b><span style="color: purple;"> There is no order without systematized restraint. Restraints are</span></b><br />
<b><span style="color: purple;"> the substance without which liberty does not exist. They are the</span></b><br />
<b><span style="color: purple;"> essence of liberty. The great problem of the democratic process</span></b><br />
<b><span style="color: purple;"> is not to strip men of restraints merely because 'they are</span></b><br />
<b><span style="color: purple;"> restraints. The great problem is to design a system of</span></b><br />
<b><span style="color: purple;"> restraints which will nurture the maximum development of man's</span></b><br />
<b><span style="color: purple;"> capabilities, not in a massive globe of faceless animations but</span></b><br />
<b><span style="color: purple;"> as a perfect realization, of each separate human mind, soul and</span></b><br />
<b><span style="color: purple;"> body; not in mute, motionless meditation but in flashing,</span></b><br />
<b><span style="color: purple;"> thrashing activity.”</span></b><br />
6. Keeping the cherished idea of liberty in mind, the fathers of our<br />
Constitution engrafted in its Preamble: "Liberty of thought, expression,<br />
belief, faith and worship." After a lot of debate in the Constituent<br />
Assembly, Article 21 of the Constitution came into existence in the present<br />
form laying down in categorical terms that no person shall be deprived of<br />
his life and personal liberty except according to the procedure established<br />
by law.<br />
7. We have begun with the aforesaid prologue, as the seminal question<br />
that falls for consideration in these appeals is whether the High Court,<br />
despite the value attached to the concept of liberty, could afford to<br />
vaporise the statutory mandate enshrined under Section 438 of the Code of<br />
Criminal Procedure (for short ‘the Code’). It is not to be forgotten that<br />
liberty is not an absolute abstract concept. True it is, individual<br />
liberty is a very significant aspect of human existence but it has to be<br />
guided and governed by law. Liberty is to be sustained and achieved when<br />
it sought to be taken away by permissible legal parameters. <span style="color: blue; font-size: large;"><b>A court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy.</b></span><br />
<br />
8. Presently to the narration. In these two appeals arising out of SLP<br />
No. 7281 of 2011 and 7286 of 2011, the challenge is to the orders dated<br />
22.07.2011 and 05.08.2011 in BLAPL No. 13036 of 2011 and 12975 of 2011<br />
respectively passed by the High Court of Judicature of Orissa at Cuttack in<br />
respect of five accused persons under Section 438 of the Code pertaining to<br />
offences punishable under Section 341/294/506 and 302 read with Section 34<br />
of the Indian Penal Code (for short “the IPC”) in connection with<br />
Binjharpur PS Case No. 88/2011 corresponding to GR Case No. 343 of 2011<br />
pending in the Court of learned SDJM, Jajpur.<br />
<br />
9. The present appeals have been preferred by the sister of the deceased<br />
and the complainant, an eye witness, seeking quashing of the orders on the<br />
foundation that the High Court has extended the benefit of Section 438 (1)<br />
of the Code in an illegal and impermissible manner.<br />
<br />
10. The facts that had formed the bedrock in setting the criminal law in<br />
motion need not be stated, for the nature of orders passed by High Court in<br />
both the cases have their own peculiarity. If we allow ourselves to say<br />
they have the enormous potentiality to create colossal puzzlement as<br />
regards the exercise of power under Section 438 of the Code.<br />
<br />
11. While dealing with the case of accused Uttam Das and Ranjit Das, vide<br />
order dated 22.07.2011 the High Court, as stated, perused the case file and<br />
passed the following order.<br />
<br />
“Considering the facts and circumstances of the case and the<br />
materials available on record, this Court is not inclined to<br />
grant anticipatory bail to the petitioners. This court directs<br />
that if petitioner No. 1 Uttam Das surrenders before the learned<br />
S.D.J.M., Jajpur and moves an application for bail in the<br />
aforesaid case, in such event the learned S.D.J.M. shall release<br />
him on bail on such terms and conditions as he may deem fit and<br />
proper.<br />
<br />
So far as petitioner No. 2 Ranjit Das is concerned, this<br />
court directs him to surrender before the learned S.D.J.M.,<br />
Jajpur and move an application for bail in connection with the<br />
aforesaid case, in such event his application shall be<br />
considered by the learned S.D.J.M., on its own merits.<br />
<br />
The Bail Application is accordingly disposed of.”<br />
<br />
[Underlining is ours]<br />
<br />
12. In the case of the other accused persons, namely, Abhimanyu Das,<br />
Murlidhar Patra and Bhagu Das the High Court on 05.08.2011 passed the<br />
order on following terms.<br />
<br />
“Considering the facts and circumstances of the case this<br />
Court is not inclined to grant anticipatory bail to the<br />
petitioners. Since there are some materials against Bhagu Das @<br />
Sanjit Kumar Das petitioner No. 3, this Court directs that in<br />
case petitioner No. 3 surrenders before the leaned S.D.J.M.,<br />
Jajpur and moves an application for bail, the learned S.D.J.M.<br />
shall consider and dispose of the same on its own merit in<br />
accordance with law.<br />
<br />
So far as the prayer for bail of petitioner Nos. 1 and 2<br />
is concerned since one of the co-accused namely, Uttam Das has<br />
been released on bail in pursuance of order dated 02.07.2011<br />
passed by this Court in BLAPL No. 13036 of 2011 and petitioner<br />
Nos. 1 and 2 stands on similar footing with co-accused Uttam<br />
Das, this Court directs that in case petitioner Nos. 1 and 2<br />
surrender before the learned S.D.J.M., Jajpur and move an<br />
application for bail, the learned S.D.J.M., shall release them<br />
on bail on such terms and conditions as he may deem fit and<br />
proper with further condition that petitioner Nos. 1 and 2 shall<br />
give an undertaking before the Court below that they will not<br />
commit any similar type of offence. In case any complaint is<br />
received against them that will amount to cancellation of bail”<br />
<br />
[Emphasis supplied]<br />
<br />
13. On a perusal of both the orders it is perceivable that the<br />
commonality in both the orders is that while the High Court had expressed<br />
its opinion that though it is not inclined to grant anticipatory bail to<br />
the petitioners yet it has directed on their surrender some of the accused<br />
petitioners would be enlarged on bail on such terms and conditions as may<br />
be deemed fit and proper by the concerned Sub Divisional Judicial<br />
Magistrate and cases of certain accused persons on surrender shall be dealt<br />
with on their own merits.<br />
<br />
14. The learned counsel for the petitioner has contended that the High<br />
Court has gravely flawed in passing such kind of orders in exercise of<br />
power under Section 438 of the Code which the law does not countenance and,<br />
therefore, they deserved to be lancinated. It is his further submission<br />
that when the accused persons are involved in such serious offences the<br />
High Court could not have dealt with them by taking recourse to an<br />
innovative method which has no sanction in law.<br />
<br />
15. The learned counsel for the respondent made a very feeble attempt to<br />
support the orders.<br />
<br />
16. The pivotal issue that emanates for consideration is whether the<br />
orders passed by the High Court are legitimately acceptable and legally<br />
sustainable within the ambit and sweep of Section 438 of the Code. To<br />
appreciate the defensibility of the order it is condign to refer to Section<br />
438 of the Code which reads as follows.<br />
<br />
“438. Direction for grant of bail to person apprehending arrest.-<br />
-(1) Where any person has reason to believe that he may be<br />
arrested on accusation of having committed a non-bailable<br />
offence, he may apply to the High Court or the Court of Session<br />
for a direction under this section that in the event of such<br />
arrest he shall be released on bail; and that Court may, after<br />
taking into consideration, inter alia, the following factors,<br />
namely:-<br />
<br />
(i) the nature and gravity of the accusation;<br />
<br />
(ii) the antecedents of the applicant including the fact as<br />
to whether he has previously undergone imprisonment on<br />
conviction by a Court in respect of any cognizable offence;<br />
<br />
(iii) the possibility of the applicant to flee from<br />
justice; and<br />
<br />
(iv) where the accusation has been made with the object of<br />
injuring or humiliating the applicant by having him so<br />
arrested,<br />
<br />
either reject the application forthwith or issue an interim<br />
order for the grant of anticipatory bail:<br />
<br />
Provided that, where the High Court or, as the case may be, the<br />
Court of Session, has not passed any interim order under this<br />
sub-section or has rejected the application for grant of<br />
anticipatory bail, it shall be open to an officer in-charge of a<br />
police station to arrest, without warrant the applicant on the<br />
basis of the accusation apprehended in such application.<br />
<br />
(1A) Where the Court grants an interim order under sub-section<br />
(1), it shall forthwith cause a notice being not less than seven<br />
days notice, together with a copy of such order to be served on<br />
the Public Prosecutor and the Superintendent of Police, with a<br />
view to give the Public Prosecutor a reasonable opportunity of<br />
being heard when the application shall be finally heard by the<br />
Court.<br />
<br />
(1B) The presence of the applicant seeking anticipatory bail<br />
shall be obligatory at the time of final hearing of the<br />
application and passing of final order by the Court, if on an<br />
application made to it by the Public Prosecutor, the Court<br />
considers such presence necessary in the interest of justice.<br />
<br />
(2) When the High Court or the Court of Session makes a<br />
direction under sub-section (1), it may include such conditions<br />
in such directions in the light of the facts of the particular<br />
case, as it may thinks fit, including -<br />
<br />
(i) a condition that the person shall make himself<br />
available for interrogation by a police officer as and when<br />
required;<br />
<br />
(ii) a condition that the person shall not, directly or<br />
indirectly, make any inducement, threat or promise to any<br />
person acquainted with the facts of the case so as to<br />
dissuade him from disclosing such facts to the court or to<br />
any police officer;<br />
<br />
(iii) a condition that the person shall not leave India<br />
without the previous permission of the court;<br />
<br />
(iv) such other condition as may be imposed under sub-<br />
section (3) of section 437, as if the bail were granted<br />
-under that section.<br />
<br />
(3) If such person is thereafter arrested without warrant by an<br />
officer in charge of a police station on such accusation, and is<br />
prepared either at the time of arrest or at any time while in<br />
the custody of such officer to give bail, he shall be released<br />
on bail, and if a Magistrate taking cognizance of such offence<br />
decides that a warrant should issue in the first instance<br />
against that person, he shall issue a bailable warrant in<br />
conformity with the direction of the court under sub-section<br />
(1).”<br />
<br />
17.<b><span style="color: #660000; font-size: large;"> The aforesaid provision in its denotative compass and connotative </span></b><b><span style="color: #660000; font-size: large;">expanse enables one to apply and submit an application for bail where one </span></b><b><span style="color: #660000; font-size: large;">anticipates his arrest in a non-bailable offence. Though the provision </span></b><b><span style="color: #660000; font-size: large;">does not use the expression "anticipatory bail", yet the same has come in</span></b><br />
<b><span style="color: #660000; font-size: large;">vogue by general usage and also has gained acceptation in the legal world.</span></b><br />
<br />
18<b>. The Constitution Bench in Gurbaksh Singh Sibbia etc. v. The State of</b><br />
<b>Punjab[1], has drawn a distinction between an order of ordinary bail and</b><br />
<b>order of anticipatory bail by stating that the former is granted when the</b><br />
<b>accused is in custody and, therefore, means release from the custody of the</b><br />
<b>Police, and the latter is granted in anticipation of arrest and hence,</b><br />
<b>effective at the very moment of arrest. It has been held therein, an</b><br />
<b>order of anticipatory bail constitutes, so to say, an insurance against</b><br />
<b>Police custody falling upon arrest for offences in respect of which the</b><br />
<b>order is issued. Their Lordships clarifying the distinction have observed</b><br />
<b>that unlike a post-arrest order of bail, it is a pre-arrest legal process</b><br />
<b>which directs that if the person in whose favour it is issued is thereafter</b><br />
<b>arrested on the accusation in respect of which the direction is issued, he</b><br />
<b>shall be released on bail.</b><br />
<br />
19. The Constitution Bench partly accepted the verdict in Balchand Jain v<br />
State of Madhya Pradesh[2] by stating as follows:-<br />
<br />
“<b><span style="color: purple;">We agree, with respect, that the power conferred by S. 438 is</span></b><br />
<b><span style="color: purple;"> of an extraordinary character in the sense indicated above,</span></b><br />
<b><span style="color: purple;"> namely, that it is not ordinarily resorted to like the power</span></b><br />
<b><span style="color: purple;"> conferred by Ss. 437 and 439. We also agree that the power to</span></b><br />
<b><span style="color: purple;"> grant anticipatory bail should be exercised with due care and</span></b><br />
<b><span style="color: purple;"> circumspection.”</span></b><br />
<br />
20. T<span style="color: blue;"><b>hereafter, the larger Bench referred to the concept of liberty</b></span><br />
<span style="color: blue;"><b>engrafted in Article 21 of the Constitution, situational and circumstantial</b></span><br />
<span style="color: blue;"><b>differences from case to case and observed that in regard to anticipatory</b></span><br />
<span style="color: blue;"><b>bail, if the proposed accusation appears to stem not from motives of</b></span><br />
<span style="color: blue;"><b>furthering the ends of justice but from some ulterior motive, the object</b></span><br />
<span style="color: blue;"><b>being to injure and humiliate the applicant by having him arrested, a</b></span><br />
<span style="color: blue;"><b>direction for the release of the applicant on bail in the event of his</b></span><br />
<span style="color: blue;"><b>arrest would generally be made. On the other hand, if it appears likely,</b></span><br />
<span style="color: blue;"><b>considering the antecedents of the applicant, that taking advantage of the</b></span><br />
<span style="color: blue;"><b>order of anticipatory bail he will flee from justice, such an order would</b></span><br />
<span style="color: blue;"><b>not be made. However, it cannot be laid down as an inexorable rule that</b></span><br />
<span style="color: blue;"><b>anticipatory bail cannot be granted unless the proposed accusation appears</b></span><br />
<span style="color: blue;"><b>to be actuated by mala fides; and equally, that anticipatory bail must be</b></span><br />
<span style="color: blue;"><b>granted if there is no fear that the applicant will abscond. The</b></span><br />
<span style="color: blue;"><b>Constitution Bench also opined the Court has to take into consideration the</b></span><br />
<span style="color: blue;"><b>combined effect of several other considerations which are too numerous to</b></span><br />
<span style="color: blue;"><b>enumerate and the legislature has endowed the responsibility on the High</b></span><br />
<span style="color: blue;"><b>Court and the Court of Session because of their experience.</b></span><br />
<br />
21. The Constitution Bench proceeded to state the essential concept of<br />
exercise of jurisdiction under Section 438 of the Code on following terms:-<br />
<br />
<b><span style="color: red;">“Exercise of jurisdiction under Section 438 of Code of Criminal</span></b><br />
<b><span style="color: red;"> Procedure is extremely important judicial function of a judge</span></b><br />
<b><span style="color: red;"> and must be entrusted to judicial officers with some experience</span></b><br />
<b><span style="color: red;"> and good track record. Both individual and society have vital</span></b><br />
<b><span style="color: red;"> interest in orders passed by the courts in anticipatory bail</span></b><br />
<b><span style="color: red;"> applications.”</span></b><br />
<br />
<br />
22. In Savitri Agarwal v. State of Maharashtra and Anr.[3], the Bench<br />
culled out the principles laid down in Gurbaksh Singh (supra). Some<br />
principles which are necessary to be reproduced are as follows:-<br />
<br />
<b>“ (i) Before power under Sub-section (1) of Section 438 of the</b><br />
<b> Code is exercised, the Court must be satisfied that the</b><br />
<b> applicant invoking the provision has reason to believe that he</b><br />
<b> is likely to be arrested for a non-bailable offence and that</b><br />
<b> belief must be founded on reasonable grounds. Mere "fear" is not</b><br />
<b> belief, for which reason, it is not enough for the applicant to</b><br />
<b> show that he has some sort of vague apprehension that some one</b><br />
<b> is going to make an accusation against him, in pursuance of</b><br />
<b> which he may be arrested. The grounds on which the belief of the</b><br />
<b> applicant is based that he may be arrested for a non-bailable</b><br />
<b> offence, must be capable of being examined by the Court</b><br />
<b> objectively. Specific events and facts must be disclosed by the</b><br />
<b> applicant in order to enable the Court to judge of the</b><br />
<b> reasonableness of his belief, the existence of which is the sine</b><br />
<b> qua non of the exercise of power conferred by the Section.</b><br />
<br />
<br />
ii) The provisions of Section 438 cannot be invoked after the<br />
arrest of the accused. After arrest, the accused must seek his<br />
remedy under Section437 or Section 439 of the Code, if he wants<br />
to be released on bail in respect of the offence or offences for<br />
which he is arrested.<br />
<br />
viii) An interim bail order can be passed under Section 438 of<br />
the Code without notice to the Public Prosecutor but notice<br />
should be issued to the Public Prosecutor or to the Government<br />
advocate forthwith and the question of bail should be re-<br />
examined in the light of respective contentions of the parties.<br />
The ad-interim order too must conform to the requirements of the<br />
Section and suitable conditions should be imposed on the<br />
applicant even at that stage.”<br />
<br />
<br />
<br />
23. <b><u>At this juncture we may note with profit that there was some</u></b><br />
<b><u>departure in certain decisions after the Constitution Bench decision. In</u></b><br />
<b><u>Salauddin Abdulsamad Shaikh v. State of Maharashta[4], it was held that it</u></b><br />
<b><u>was necessary that under certain circumstances anticipatory bail order</u></b><br />
<b><u>should be of a limited duration only and ordinarily on the expiry of that</u></b><br />
<b><u>duration or extended duration the Court granting anticipatory bail should</u></b><br />
<b><u>leave it to the regular court to deal with the matter on appreciation of</u></b><br />
<b><u>material placed before it.</u></b><br />
<br />
24. <span style="color: blue;"> In K. L. Verma v. State and Anr.[5], it was ruled that limited</span><br />
<span style="color: blue;">duration must be determined having regard to the facts of the case and the</span><br />
<span style="color: blue;">need to give the accused sufficient time to move the court for regular</span><br />
<span style="color: blue;">bail and to give the regular court sufficient time to determine the bail</span><br />
<span style="color: blue;">application. It was further observed therein that till the bail</span><br />
<span style="color: blue;">application is disposed of one way or the other, the Court may allow the</span><br />
<span style="color: blue;">accused to remain on anticipatory bail.</span><br />
<br />
25. <b><span style="color: #990000;">In Nirmal Jeet Kaur v. State of M. P. and Another[6],</span></b><br />
<b><span style="color: #990000;"> the decision in K. L. Verma’s case (supra) was clarified by</span></b><br />
<b><span style="color: #990000;">stating that the benefit of anticipatory bail may be extended few days</span></b><br />
<b><span style="color: #990000;">thereafter to enable the accused persons to move the High Court if they so</span></b><br />
<b><span style="color: #990000;">desire.</span></b><br />
<br />
26. In Adri Dharan Das v. State of West Bengal[7], a two-Judge Bench<br />
while accepting for grant of bail for limited duration has held that <b><span style="color: #20124d; font-size: large;">arrest is a part of the process of investigation intended to secure several purposes. </span><span style="color: red;">The accused may have to be questioned in detail regarding various</span></b><br />
<b><span style="color: red;">facets of motive, preparation, commission and aftermath of the crime and</span></b><br />
<b><span style="color: red;">the connection of other persons, if any, in the crime. There may be</span></b><br />
<b><span style="color: red;">circumstances in which the accused may provide information leading to</span></b><br />
<b><span style="color: red;">discovery of material facts. It may be necessary to curtail his freedom in</span></b><br />
<b><span style="color: red;">order to enable the investigation to proceed without hindrance and to</span></b><br />
<b><span style="color: red;">protect witnesses and persons connected with the victim of the crime, to</span></b><br />
<b><span style="color: red;">prevent his disappearance to maintain law and order in the locality. For</span></b><br />
<b><span style="color: red;">these or other reasons, arrest may become inevitable part of the process of</span></b><br />
<b><span style="color: red;">investigation. </span><span style="color: lime;">The legality of the proposed arrest cannot be gone into in</span></b><br />
<b><span style="color: lime;">an application under Section 438 of the Code</span></b>. <span style="color: magenta;"><b>The role of the investigator</b></span><br />
<span style="color: magenta;"><b>is well-defined and the jurisdictional scope of interference by the Court</b></span><br />
<span style="color: magenta;"><b>in the process of investigation is limited. The Court ordinarily will not</b></span><br />
<span style="color: magenta;"><b>interfere with the investigation of a crime or with the arrest of accused</b></span><br />
<span style="color: magenta;"><b>in a cognizable offence. An interim order restraining arrest, if passed</b></span><br />
<span style="color: magenta;"><b>while dealing with an application under Section 438 of the Code will amount</b></span><br />
<span style="color: magenta;"><b>to interference in the investigation, which cannot, at any rate, be done</b></span><br />
<span style="color: magenta;"><b>under Section 438 of the Code.</b></span><br />
<br />
<br />
27. After analysing the ratio in the cases of Salauddin Abdulsamad Shaikh<br />
(supra), K. L. Verma (supra), Nirmal Jeet Kaur (supra), Niranjan Singh and<br />
Anr. v. Prabhakar Rajaram Kharote and Ors.[8] the Bench opined thus:-<br />
<br />
“14. After analyzing the crucial question is when a person is in<br />
custody, within the meaning of Section 439 of the Code, it was<br />
held in Nirmal Jeet Kaur's case (supra) and Sunita Devi's case<br />
(supra) that <b><span style="color: red;">for making an application under Section 439 the</span></b><br />
<b><span style="color: red;"> fundamental requirement is that the accused should be in</span></b><br />
<b><span style="color: red;"> custody</span></b>. As observed in Salauddin's case (supra) the protection<br />
in terms of Section 438 is for a limited duration during which<br />
the regular Court has to be moved for bail. Obviously, such bail<br />
is bail in terms of Section 439 of the Code, mandating the<br />
applicant to be in custody. Otherwise, the distinction between<br />
orders under Sections 438 and 439 shall be rendered meaningless<br />
and redundant.<br />
15. If the protective umbrella of Section 438 is extended beyond<br />
what was laid down in Salauddin's case (supra) the result would<br />
be clear bypassing of what is mandated in Section 439 regarding<br />
custody. In other words, till the applicant avails remedies up<br />
to higher Courts, the requirements of Section 439 become dead<br />
letter. No part of a statute can be rendered redundant in that<br />
manner.”<br />
<br />
<br />
28. In Union of India v. Padam Narain Agarwal[9] this Court while dealing<br />
with an order wherein the High Court had directed that the respondent<br />
therein shall appear before the concerned customs authorities in response<br />
to the summons issued to them and in case the custom authorities found a<br />
non-bailable against the accused persons they shall not arrest without ten<br />
days prior notice to them. The two-Judge Bench relied on the decisions in<br />
Gurbaksh Singh Sibbia (supra), Adri Dharan Das (supra), and State of<br />
Mahrashtra v. Mohd. Rashid and Anr.[10] and eventually held thus:-<br />
“In our judgment, on the facts and in the circumstances of the<br />
present case, neither of the above directions can be said to be<br />
legal, valid or in consonance with law. Firstly, the order<br />
passed by the High Court is a blanket one as held by the<br />
Constitution Bench of this Court in Gurbaksh Singh and seeks to<br />
grant protection to respondents in respect of any non-bailable<br />
offence. Secondly, it illegally obstructs, interferes and<br />
curtails the authority of Custom Officers from exercising<br />
statutory power of arrest a person said to have committed a non-<br />
bailable offence by imposing a condition of giving ten days<br />
prior notice, a condition not warranted by law. The order passed<br />
by the High Court to the extent of directions issued to the<br />
Custom Authorities is, therefore, liable to be set aside and is<br />
hereby set aside.”<br />
29. Be it noted, the principle of grant of anticipatory bail for a<br />
limited duration in cases of Salauddin Abdulsamad Shaikh (supra), K. L.<br />
Verma (supra), Adri Dharan Das (supra), Sunita Devi v. State of Bihar &<br />
Anr.[11] was held to be contrary to the Constitution decision in Gurbaksh<br />
Singh Sibbia’s case (supra) by a two-Judge Bench in Siddharam Satlingappa<br />
Mhetre v. State of Maharashtra and Ors.[12] and accordingly the said<br />
decisions were treated as per incurium. It is worth noting though the<br />
Bench treated Adri Dharan Das (supra) to be per incuriam, as far as it<br />
pertained to grant of anticipatory bail for limited duration, yet it has<br />
not held that the view expressed therein that the earlier decisions<br />
pertaining to the concept of deemed custody as laid down in Salauddin<br />
Abdulsamad Shaikh (supra) and similar line of cases was per incuriam. It<br />
is so as the controversy involved in Siddharam Satlingappa Mhetre (supra)<br />
did not relate to the said arena.<br />
<br />
30. We have referred to the aforesaid pronouncements to highlight how the<br />
Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) had<br />
analysed and explained the intrinsic underlying concepts under Section 438<br />
of the Code, the nature of orders to be passed while conferring the said<br />
privilege, the conditions that are imposable and the discretions to be used<br />
by the courts. On a reading of the said authoritative pronouncement and<br />
the principles that have been culled out in Savitri Agarwal (supra) <span style="color: red; font-size: large;"><b>there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender.</b></span> <b>When the High Court in</b><br />
<b>categorical terms has expressed the view that it not inclined to grant</b><br />
<b>anticipatory bail to the accused petitioners it could not have issued such</b><br />
<b>a direction which would tantamount to conferment of benefit by which the</b><br />
<b>accused would be in a position to avoid arrest. It is in clear violation</b><br />
<b>of the language employed in the statutory provision and in flagrant</b><br />
<b>violation of the dictum laid down in the case of Gurbaksh Singh Sibbia</b><br />
<b>(supra) and the principles culled out in the case of Savitri Agarwal</b><br />
<b>(supra). It is clear as crystal the court cannot issue a blanket order</b><br />
<b>restraining arrest and it can only issue an interim order and the interim</b><br />
<b>order must also conform to the requirement of the section and suitable</b><br />
<b>conditions should be imposed.</b> <span style="color: #0b5394;"><b>In the case of Gurbaksh Singh Sibbia (supra)</b></span><br />
<span style="color: #0b5394;"><b>the Constitution Bench has clearly observed that exercise of jurisdiction</b></span><br />
<span style="color: #0b5394;"><b>under Section 438 of the Code is an extremely important judicial function</b></span><br />
<span style="color: #0b5394;"><b>of a judge and both individual and society have vital interest in the</b></span><br />
<span style="color: #0b5394;"><b>orders passed by the court in anticipatory bail applications</b></span>.<br />
<br />
31. In this context it is profitable to refer to a three-Judge Bench<br />
decision in Dr. Narendra K. Amin v. State of Gujarat and another[13]. In<br />
the said case a learned Judge of the Gujarat High Court cancelled the bail<br />
granted to the appellant therein in exercise of power under Section 439(2)<br />
of the Code. It was contended before this Court that the High Court had<br />
completely erred by not properly appreciating the distinction between the<br />
parameters for grant of bail and cancellation of bail. The Bench referred<br />
to the decision in Puran v. Rambilas and another[14] wherein it has been<br />
noted that the concept of setting aside an unjustified, illegal or perverse<br />
order is totally different from the cancelling an order of bail on the<br />
ground that the accused has misconducted himself or because of some<br />
supervening circumstances warranting such cancellation. The three-Judge<br />
Bench further observed that when irrelevant materials have been taken into<br />
consideration the same makes the order granting bail vulnerable. In<br />
essence, the three-Judge Bench has opined that if the order is perverse,<br />
the same can be set at naught by the superior court. <b> <span style="color: blue;"><u>In the case at hand the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law</u></span></b>. <span style="color: purple;"><b>It is contradictory in terms and law does not countenance paradoxes.</b></span><br />
It gains respectability and acceptability when its solemnity is maintained.<br />
Passing such kind of orders the interest of the collective at large and<br />
that of the individual victims is jeopardised. That apart, it curtails the<br />
power of the regular court dealing with the bail applications.<br />
<br />
32. <b><span style="color: purple;"> In this regard it is to be borne in mind that a court of law has to</span></b><br />
<b><span style="color: purple;">act within the statutory command and not deviate from it. It is a well</span></b><br />
<b><span style="color: purple;">settled proposition of law what cannot be done directly, cannot be done</span></b><br />
<b><span style="color: purple;">indirectly. While exercising a statutory power a court is bound to act</span></b><br />
<b><span style="color: purple;">within the four corners thereof. The statutory exercise of power stands on</span></b><br />
<b><span style="color: purple;">a different footing than exercise of power of judicial review.</span></b> This has<br />
been so stated in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and<br />
Ors.[15] and U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain<br />
Pandey[16].<br />
<br />
33. Judging on the foundation of aforesaid well settled principles, the<br />
irresistible conclusion is that the impugned orders directing enlargement<br />
of bail of the accused persons, namely, Uttam Das, Abhimanyu Das and<br />
Murlidhar Patra by the Magistrate on their surrendering are wholly<br />
unsustainable and bound to founder and accordingly the said directions are<br />
set aside. Consequently the bail bonds of the aforenamed accused persons<br />
are cancelled and they shall be taken into custody forthwith. It needs no<br />
special emphasis to state that they are entitled to move applications for<br />
grant of bail under Section 439 of the Code which shall be considered on<br />
their own merits.<br />
<br />
34. The appeals are accordingly disposed of.<br />
<br />
<br />
<br />
<br />
<br />
……………………………….J.<br />
[K. S. Radhakrishnan]<br />
<br />
<br />
<br />
<br />
……………………………….J.<br />
[Dipak Misra]<br />
<br />
New Delhi;<br />
May 04, 2012.<br />
<br />
<br />
<br />
-----------------------<br />
[1] AIR 1980 SC 1632<br />
[2] AIR 1976 SC 366<br />
[3] (2009)8SCC325<br />
[4] AIR 1996 SC 1042<br />
[5] (1998) 9 SCC 348<br />
[6] ( 2004) 7 SCC 558<br />
[7] (2005) 4 SCC 303<br />
[8] (1980) 2 SCC 559<br />
[9] AIR 2009 SC 254<br />
[10] (2005) 7 SCC 56<br />
[11] (2005) 1 SCC 608<br />
[12] (2011) 1 SCC 694<br />
[13] 2008 (6) SCALE 415<br />
[14] (2001) 6 SCC 338<br />
[15] (2006) 13 SCC 737<br />
[16] (2006) 1 SCC 479<br />
<div>
<br /></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-67488689842753950472013-08-04T21:17:00.001+05:302013-09-09T15:41:34.457+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
IN THE SUPREME COURT OF INDIA<br />
CRIMINAL APPELLATE JURISDICTION<br />
<br />
CRIMINAL APPEAL NO. 750 OF 2012<br />
(Arising out of S.L.P. (Criminal) No. 7281 of 2011<br />
<br />
<br />
<br />
<br />
Rashmi Rekha Thatoi & Anr. ... Appellants<br />
Versus<br />
State of Orissa & Ors. ... Respondents<br />
WITH<br />
<br />
CRIMINAL APPEAL NO. 751 OF 2012<br />
(Arising out of S.L.P. (Criminal) No. 7286 of 2011<br />
<br />
<br />
<br />
<br />
J U D G M E N T<br />
<br />
<br />
Dipak Misra, J.<br />
<br />
<br />
Leave granted in both the petitions.<br />
<br />
2. “Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.”<br />
<br />
Thus spoke Bolingbroke.<br />
<br />
3. Liberty is the precious possession of the human soul. No one would<br />
barter it for all the tea in China. Not for nothing Patrick Henry<br />
thundered:<br />
"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death !"<br />
<br />
The thought of losing one's liberty immediately brings in a feeling<br />
of fear, a shiver in the spine, an anguish of terrible trauma, an<br />
uncontrollable agony, a penetrating nightmarish perplexity and above all a<br />
sense of vacuum withering the very essence of existence. It is because<br />
liberty is deep as eternity and deprivation of it, infernal. May be for<br />
this protectors of liberty ask, "How acquisition of entire wealth of the<br />
world would be of any consequence if one's soul is lost?" It has been quite<br />
often said that life without liberty is eyes without vision, ears without<br />
hearing power and mind without coherent thinking faculty.<br />
4. Almost two centuries and a decade back thus spoke Edmund Burke: -<br />
“Men are qualified for civil liberty, in exact proportion to<br />
their disposition to put moral chains upon their own appetites;<br />
in proportion as their love to justice is above their rapacity;<br />
in proportion as their soundness and sobriety of understanding<br />
is above their vanity and presumption; in proportion as they<br />
are more disposed to listen to the counsel of the wise and<br />
good, in preference to the flattery of knaves. Society cannot<br />
exist unless a controlling power upon will and appetite be<br />
placed somewhere and the less of it there is within, the more<br />
there must be without. It is ordained in the eternal<br />
constitution of things that men of intemperate minds cannot be<br />
free. Their passions forge their fetters.”<br />
5. Similar voice was echoed by E. Barrett Prettyman, a retired Chief<br />
Judge of U.S. Court of Appeals:-<br />
“In an ordered society of mankind there is no such thing as<br />
unrestricted liberty, either of nations or of individuals.<br />
Liberty itself is the product restraints; it is inherently a<br />
composite of restraints; it dies when restraints are withdrawn.<br />
Freedom, I say, is not an absence of restraints; it is a<br />
composite of restraints. There is no liberty without order.<br />
There is no order without systematized restraint. Restraints are<br />
the substance without which liberty does not exist. They are the<br />
essence of liberty. The great problem of the democratic process<br />
is not to strip men of restraints merely because 'they are<br />
restraints. The great problem is to design a system of<br />
restraints which will nurture the maximum development of man's<br />
capabilities, not in a massive globe of faceless animations but<br />
as a perfect realization, of each separate human mind, soul and<br />
body; not in mute, motionless meditation but in flashing,<br />
thrashing activity.”<br />
6. Keeping the cherished idea of liberty in mind, the fathers of our<br />
Constitution engrafted in its Preamble: "Liberty of thought, expression,<br />
belief, faith and worship." After a lot of debate in the Constituent<br />
Assembly, Article 21 of the Constitution came into existence in the present<br />
form laying down in categorical terms that no person shall be deprived of<br />
his life and personal liberty except according to the procedure established<br />
by law.<br />
7. We have begun with the aforesaid prologue, as the seminal question<br />
that falls for consideration in these appeals is whether the High Court,<br />
despite the value attached to the concept of liberty, could afford to<br />
vaporise the statutory mandate enshrined under Section 438 of the Code of<br />
Criminal Procedure (for short ‘the Code’). It is not to be forgotten that<br />
liberty is not an absolute abstract concept. True it is, individual<br />
liberty is a very significant aspect of human existence but it has to be<br />
guided and governed by law. Liberty is to be sustained and achieved when<br />
it sought to be taken away by permissible legal parameters. A court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy.<br />
<br />
8. Presently to the narration. In these two appeals arising out of SLP<br />
No. 7281 of 2011 and 7286 of 2011, the challenge is to the orders dated<br />
22.07.2011 and 05.08.2011 in BLAPL No. 13036 of 2011 and 12975 of 2011<br />
respectively passed by the High Court of Judicature of Orissa at Cuttack in<br />
respect of five accused persons under Section 438 of the Code pertaining to<br />
offences punishable under Section 341/294/506 and 302 read with Section 34<br />
of the Indian Penal Code (for short “the IPC”) in connection with<br />
Binjharpur PS Case No. 88/2011 corresponding to GR Case No. 343 of 2011<br />
pending in the Court of learned SDJM, Jajpur.<br />
<br />
9. The present appeals have been preferred by the sister of the deceased<br />
and the complainant, an eye witness, seeking quashing of the orders on the<br />
foundation that the High Court has extended the benefit of Section 438 (1)<br />
of the Code in an illegal and impermissible manner.<br />
<br />
10. The facts that had formed the bedrock in setting the criminal law in<br />
motion need not be stated, for the nature of orders passed by High Court in<br />
both the cases have their own peculiarity. If we allow ourselves to say<br />
they have the enormous potentiality to create colossal puzzlement as<br />
regards the exercise of power under Section 438 of the Code.<br />
<br />
11. While dealing with the case of accused Uttam Das and Ranjit Das, vide<br />
order dated 22.07.2011 the High Court, as stated, perused the case file and<br />
passed the following order.<br />
<br />
“Considering the facts and circumstances of the case and the<br />
materials available on record, this Court is not inclined to<br />
grant anticipatory bail to the petitioners. This court directs<br />
that if petitioner No. 1 Uttam Das surrenders before the learned<br />
S.D.J.M., Jajpur and moves an application for bail in the<br />
aforesaid case, in such event the learned S.D.J.M. shall release<br />
him on bail on such terms and conditions as he may deem fit and<br />
proper.<br />
<br />
So far as petitioner No. 2 Ranjit Das is concerned, this<br />
court directs him to surrender before the learned S.D.J.M.,<br />
Jajpur and move an application for bail in connection with the<br />
aforesaid case, in such event his application shall be<br />
considered by the learned S.D.J.M., on its own merits.<br />
<br />
The Bail Application is accordingly disposed of.”<br />
<br />
[Underlining is ours]<br />
<br />
12. In the case of the other accused persons, namely, Abhimanyu Das,<br />
Murlidhar Patra and Bhagu Das the High Court on 05.08.2011 passed the<br />
order on following terms.<br />
<br />
“Considering the facts and circumstances of the case this<br />
Court is not inclined to grant anticipatory bail to the<br />
petitioners. Since there are some materials against Bhagu Das @<br />
Sanjit Kumar Das petitioner No. 3, this Court directs that in<br />
case petitioner No. 3 surrenders before the leaned S.D.J.M.,<br />
Jajpur and moves an application for bail, the learned S.D.J.M.<br />
shall consider and dispose of the same on its own merit in<br />
accordance with law.<br />
<br />
So far as the prayer for bail of petitioner Nos. 1 and 2<br />
is concerned since one of the co-accused namely, Uttam Das has<br />
been released on bail in pursuance of order dated 02.07.2011<br />
passed by this Court in BLAPL No. 13036 of 2011 and petitioner<br />
Nos. 1 and 2 stands on similar footing with co-accused Uttam<br />
Das, this Court directs that in case petitioner Nos. 1 and 2<br />
surrender before the learned S.D.J.M., Jajpur and move an<br />
application for bail, the learned S.D.J.M., shall release them<br />
on bail on such terms and conditions as he may deem fit and<br />
proper with further condition that petitioner Nos. 1 and 2 shall<br />
give an undertaking before the Court below that they will not<br />
commit any similar type of offence. In case any complaint is<br />
received against them that will amount to cancellation of bail”<br />
<br />
[Emphasis supplied]<br />
<br />
13. On a perusal of both the orders it is perceivable that the<br />
commonality in both the orders is that while the High Court had expressed<br />
its opinion that though it is not inclined to grant anticipatory bail to<br />
the petitioners yet it has directed on their surrender some of the accused<br />
petitioners would be enlarged on bail on such terms and conditions as may<br />
be deemed fit and proper by the concerned Sub Divisional Judicial<br />
Magistrate and cases of certain accused persons on surrender shall be dealt<br />
with on their own merits.<br />
<br />
14. The learned counsel for the petitioner has contended that the High<br />
Court has gravely flawed in passing such kind of orders in exercise of<br />
power under Section 438 of the Code which the law does not countenance and,<br />
therefore, they deserved to be lancinated. It is his further submission<br />
that when the accused persons are involved in such serious offences the<br />
High Court could not have dealt with them by taking recourse to an<br />
innovative method which has no sanction in law.<br />
<br />
15. The learned counsel for the respondent made a very feeble attempt to<br />
support the orders.<br />
<br />
16. The pivotal issue that emanates for consideration is whether the<br />
orders passed by the High Court are legitimately acceptable and legally<br />
sustainable within the ambit and sweep of Section 438 of the Code. To<br />
appreciate the defensibility of the order it is condign to refer to Section<br />
438 of the Code which reads as follows.<br />
<br />
“438. Direction for grant of bail to person apprehending arrest.-<br />
-(1) Where any person has reason to believe that he may be<br />
arrested on accusation of having committed a non-bailable<br />
offence, he may apply to the High Court or the Court of Session<br />
for a direction under this section that in the event of such<br />
arrest he shall be released on bail; and that Court may, after<br />
taking into consideration, inter alia, the following factors,<br />
namely:-<br />
<br />
(i) the nature and gravity of the accusation;<br />
<br />
(ii) the antecedents of the applicant including the fact as<br />
to whether he has previously undergone imprisonment on<br />
conviction by a Court in respect of any cognizable offence;<br />
<br />
(iii) the possibility of the applicant to flee from<br />
justice; and<br />
<br />
(iv) where the accusation has been made with the object of<br />
injuring or humiliating the applicant by having him so<br />
arrested,<br />
<br />
either reject the application forthwith or issue an interim<br />
order for the grant of anticipatory bail:<br />
<br />
Provided that, where the High Court or, as the case may be, the<br />
Court of Session, has not passed any interim order under this<br />
sub-section or has rejected the application for grant of<br />
anticipatory bail, it shall be open to an officer in-charge of a<br />
police station to arrest, without warrant the applicant on the<br />
basis of the accusation apprehended in such application.<br />
<br />
(1A) Where the Court grants an interim order under sub-section<br />
(1), it shall forthwith cause a notice being not less than seven<br />
days notice, together with a copy of such order to be served on<br />
the Public Prosecutor and the Superintendent of Police, with a<br />
view to give the Public Prosecutor a reasonable opportunity of<br />
being heard when the application shall be finally heard by the<br />
Court.<br />
<br />
(1B) The presence of the applicant seeking anticipatory bail<br />
shall be obligatory at the time of final hearing of the<br />
application and passing of final order by the Court, if on an<br />
application made to it by the Public Prosecutor, the Court<br />
considers such presence necessary in the interest of justice.<br />
<br />
(2) When the High Court or the Court of Session makes a<br />
direction under sub-section (1), it may include such conditions<br />
in such directions in the light of the facts of the particular<br />
case, as it may thinks fit, including -<br />
<br />
(i) a condition that the person shall make himself<br />
available for interrogation by a police officer as and when<br />
required;<br />
<br />
(ii) a condition that the person shall not, directly or<br />
indirectly, make any inducement, threat or promise to any<br />
person acquainted with the facts of the case so as to<br />
dissuade him from disclosing such facts to the court or to<br />
any police officer;<br />
<br />
(iii) a condition that the person shall not leave India<br />
without the previous permission of the court;<br />
<br />
(iv) such other condition as may be imposed under sub-<br />
section (3) of section 437, as if the bail were granted<br />
-under that section.<br />
<br />
(3) If such person is thereafter arrested without warrant by an<br />
officer in charge of a police station on such accusation, and is<br />
prepared either at the time of arrest or at any time while in<br />
the custody of such officer to give bail, he shall be released<br />
on bail, and if a Magistrate taking cognizance of such offence<br />
decides that a warrant should issue in the first instance<br />
against that person, he shall issue a bailable warrant in<br />
conformity with the direction of the court under sub-section<br />
(1).”<br />
<br />
17. The aforesaid provision in its denotative compass and connotative<br />
expanse enables one to apply and submit an application for bail where one<br />
anticipates his arrest in a non-bailable offence. Though the provision<br />
does not use the expression "anticipatory bail", yet the same has come in<br />
vogue by general usage and also has gained acceptation in the legal world.<br />
<br />
18. The Constitution Bench in Gurbaksh Singh Sibbia etc. v. The State of<br />
Punjab[1], has drawn a distinction between an order of ordinary bail and<br />
order of anticipatory bail by stating that the former is granted when the<br />
accused is in custody and, therefore, means release from the custody of the<br />
Police, and the latter is granted in anticipation of arrest and hence,<br />
effective at the very moment of arrest. It has been held therein, an<br />
order of anticipatory bail constitutes, so to say, an insurance against<br />
Police custody falling upon arrest for offences in respect of which the<br />
order is issued. Their Lordships clarifying the distinction have observed<br />
that unlike a post-arrest order of bail, it is a pre-arrest legal process<br />
which directs that if the person in whose favour it is issued is thereafter<br />
arrested on the accusation in respect of which the direction is issued, he<br />
shall be released on bail.<br />
<br />
19. The Constitution Bench partly accepted the verdict in Balchand Jain v<br />
State of Madhya Pradesh[2] by stating as follows:-<br />
<br />
“We agree, with respect, that the power conferred by S. 438 is<br />
of an extraordinary character in the sense indicated above,<br />
namely, that it is not ordinarily resorted to like the power<br />
conferred by Ss. 437 and 439. We also agree that the power to<br />
grant anticipatory bail should be exercised with due care and<br />
circumspection.”<br />
<br />
20. Thereafter, the larger Bench referred to the concept of liberty<br />
engrafted in Article 21 of the Constitution, situational and circumstantial<br />
differences from case to case and observed that in regard to anticipatory<br />
bail, if the proposed accusation appears to stem not from motives of<br />
furthering the ends of justice but from some ulterior motive, the object<br />
being to injure and humiliate the applicant by having him arrested, a<br />
direction for the release of the applicant on bail in the event of his<br />
arrest would generally be made. On the other hand, if it appears likely,<br />
considering the antecedents of the applicant, that taking advantage of the<br />
order of anticipatory bail he will flee from justice, such an order would<br />
not be made. However, it cannot be laid down as an inexorable rule that<br />
anticipatory bail cannot be granted unless the proposed accusation appears<br />
to be actuated by mala fides; and equally, that anticipatory bail must be<br />
granted if there is no fear that the applicant will abscond. The<br />
Constitution Bench also opined the Court has to take into consideration the<br />
combined effect of several other considerations which are too numerous to<br />
enumerate and the legislature has endowed the responsibility on the High<br />
Court and the Court of Session because of their experience.<br />
<br />
21. The Constitution Bench proceeded to state the essential concept of<br />
exercise of jurisdiction under Section 438 of the Code on following terms:-<br />
<br />
“Exercise of jurisdiction under Section 438 of Code of Criminal<br />
Procedure is extremely important judicial function of a judge<br />
and must be entrusted to judicial officers with some experience<br />
and good track record. Both individual and society have vital<br />
interest in orders passed by the courts in anticipatory bail<br />
applications.”<br />
<br />
<br />
22. In Savitri Agarwal v. State of Maharashtra and Anr.[3], the Bench<br />
culled out the principles laid down in Gurbaksh Singh (supra). Some<br />
principles which are necessary to be reproduced are as follows:-<br />
<br />
“ (i) Before power under Sub-section (1) of Section 438 of the<br />
Code is exercised, the Court must be satisfied that the<br />
applicant invoking the provision has reason to believe that he<br />
is likely to be arrested for a non-bailable offence and that<br />
belief must be founded on reasonable grounds. Mere "fear" is not<br />
belief, for which reason, it is not enough for the applicant to<br />
show that he has some sort of vague apprehension that some one<br />
is going to make an accusation against him, in pursuance of<br />
which he may be arrested. The grounds on which the belief of the<br />
applicant is based that he may be arrested for a non-bailable<br />
offence, must be capable of being examined by the Court<br />
objectively. Specific events and facts must be disclosed by the<br />
applicant in order to enable the Court to judge of the<br />
reasonableness of his belief, the existence of which is the sine<br />
qua non of the exercise of power conferred by the Section.<br />
<br />
<br />
ii) The provisions of Section 438 cannot be invoked after the<br />
arrest of the accused. After arrest, the accused must seek his<br />
remedy under Section437 or Section 439 of the Code, if he wants<br />
to be released on bail in respect of the offence or offences for<br />
which he is arrested.<br />
<br />
viii) An interim bail order can be passed under Section 438 of<br />
the Code without notice to the Public Prosecutor but notice<br />
should be issued to the Public Prosecutor or to the Government<br />
advocate forthwith and the question of bail should be re-<br />
examined in the light of respective contentions of the parties.<br />
The ad-interim order too must conform to the requirements of the<br />
Section and suitable conditions should be imposed on the<br />
applicant even at that stage.”<br />
<br />
<br />
<br />
23. At this juncture we may note with profit that there was some<br />
departure in certain decisions after the Constitution Bench decision. In<br />
Salauddin Abdulsamad Shaikh v. State of Maharashta[4], it was held that it<br />
was necessary that under certain circumstances anticipatory bail order<br />
should be of a limited duration only and ordinarily on the expiry of that<br />
duration or extended duration the Court granting anticipatory bail should<br />
leave it to the regular court to deal with the matter on appreciation of<br />
material placed before it.<br />
<br />
24. In K. L. Verma v. State and Anr.[5], it was ruled that limited<br />
duration must be determined having regard to the facts of the case and the<br />
need to give the accused sufficient time to move the court for regular<br />
bail and to give the regular court sufficient time to determine the bail<br />
application. It was further observed therein that till the bail<br />
application is disposed of one way or the other, the Court may allow the<br />
accused to remain on anticipatory bail.<br />
<br />
25. In Nirmal Jeet Kaur v. State of M. P. and Another[6],<br />
the decision in K. L. Verma’s case (supra) was clarified by<br />
stating that the benefit of anticipatory bail may be extended few days<br />
thereafter to enable the accused persons to move the High Court if they so<br />
desire.<br />
<br />
26. In Adri Dharan Das v. State of West Bengal[7], a two-Judge Bench<br />
while accepting for grant of bail for limited duration has held that arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various<br />
facets of motive, preparation, commission and aftermath of the crime and<br />
the connection of other persons, if any, in the crime. There may be<br />
circumstances in which the accused may provide information leading to<br />
discovery of material facts. It may be necessary to curtail his freedom in<br />
order to enable the investigation to proceed without hindrance and to<br />
protect witnesses and persons connected with the victim of the crime, to<br />
prevent his disappearance to maintain law and order in the locality. For<br />
these or other reasons, arrest may become inevitable part of the process of<br />
investigation. The legality of the proposed arrest cannot be gone into in<br />
an application under Section 438 of the Code. The role of the investigator<br />
is well-defined and the jurisdictional scope of interference by the Court<br />
in the process of investigation is limited. The Court ordinarily will not<br />
interfere with the investigation of a crime or with the arrest of accused<br />
in a cognizable offence. An interim order restraining arrest, if passed<br />
while dealing with an application under Section 438 of the Code will amount<br />
to interference in the investigation, which cannot, at any rate, be done<br />
under Section 438 of the Code.<br />
<br />
<br />
27. After analysing the ratio in the cases of Salauddin Abdulsamad Shaikh<br />
(supra), K. L. Verma (supra), Nirmal Jeet Kaur (supra), Niranjan Singh and<br />
Anr. v. Prabhakar Rajaram Kharote and Ors.[8] the Bench opined thus:-<br />
<br />
“14. After analyzing the crucial question is when a person is in<br />
custody, within the meaning of Section 439 of the Code, it was<br />
held in Nirmal Jeet Kaur's case (supra) and Sunita Devi's case<br />
(supra) that for making an application under Section 439 the<br />
fundamental requirement is that the accused should be in<br />
custody. As observed in Salauddin's case (supra) the protection<br />
in terms of Section 438 is for a limited duration during which<br />
the regular Court has to be moved for bail. Obviously, such bail<br />
is bail in terms of Section 439 of the Code, mandating the<br />
applicant to be in custody. Otherwise, the distinction between<br />
orders under Sections 438 and 439 shall be rendered meaningless<br />
and redundant.<br />
15. If the protective umbrella of Section 438 is extended beyond<br />
what was laid down in Salauddin's case (supra) the result would<br />
be clear bypassing of what is mandated in Section 439 regarding<br />
custody. In other words, till the applicant avails remedies up<br />
to higher Courts, the requirements of Section 439 become dead<br />
letter. No part of a statute can be rendered redundant in that<br />
manner.”<br />
<br />
<br />
28. In Union of India v. Padam Narain Agarwal[9] this Court while dealing<br />
with an order wherein the High Court had directed that the respondent<br />
therein shall appear before the concerned customs authorities in response<br />
to the summons issued to them and in case the custom authorities found a<br />
non-bailable against the accused persons they shall not arrest without ten<br />
days prior notice to them. The two-Judge Bench relied on the decisions in<br />
Gurbaksh Singh Sibbia (supra), Adri Dharan Das (supra), and State of<br />
Mahrashtra v. Mohd. Rashid and Anr.[10] and eventually held thus:-<br />
“In our judgment, on the facts and in the circumstances of the<br />
present case, neither of the above directions can be said to be<br />
legal, valid or in consonance with law. Firstly, the order<br />
passed by the High Court is a blanket one as held by the<br />
Constitution Bench of this Court in Gurbaksh Singh and seeks to<br />
grant protection to respondents in respect of any non-bailable<br />
offence. Secondly, it illegally obstructs, interferes and<br />
curtails the authority of Custom Officers from exercising<br />
statutory power of arrest a person said to have committed a non-<br />
bailable offence by imposing a condition of giving ten days<br />
prior notice, a condition not warranted by law. The order passed<br />
by the High Court to the extent of directions issued to the<br />
Custom Authorities is, therefore, liable to be set aside and is<br />
hereby set aside.”<br />
29. Be it noted, the principle of grant of anticipatory bail for a<br />
limited duration in cases of Salauddin Abdulsamad Shaikh (supra), K. L.<br />
Verma (supra), Adri Dharan Das (supra), Sunita Devi v. State of Bihar &<br />
Anr.[11] was held to be contrary to the Constitution decision in Gurbaksh<br />
Singh Sibbia’s case (supra) by a two-Judge Bench in Siddharam Satlingappa<br />
Mhetre v. State of Maharashtra and Ors.[12] and accordingly the said<br />
decisions were treated as per incurium. It is worth noting though the<br />
Bench treated Adri Dharan Das (supra) to be per incuriam, as far as it<br />
pertained to grant of anticipatory bail for limited duration, yet it has<br />
not held that the view expressed therein that the earlier decisions<br />
pertaining to the concept of deemed custody as laid down in Salauddin<br />
Abdulsamad Shaikh (supra) and similar line of cases was per incuriam. It<br />
is so as the controversy involved in Siddharam Satlingappa Mhetre (supra)<br />
did not relate to the said arena.<br />
<br />
30. We have referred to the aforesaid pronouncements to highlight how the<br />
Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) had<br />
analysed and explained the intrinsic underlying concepts under Section 438<br />
of the Code, the nature of orders to be passed while conferring the said<br />
privilege, the conditions that are imposable and the discretions to be used<br />
by the courts. On a reading of the said authoritative pronouncement and<br />
the principles that have been culled out in Savitri Agarwal (supra) there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in<br />
categorical terms has expressed the view that it not inclined to grant<br />
anticipatory bail to the accused petitioners it could not have issued such<br />
a direction which would tantamount to conferment of benefit by which the<br />
accused would be in a position to avoid arrest. It is in clear violation<br />
of the language employed in the statutory provision and in flagrant<br />
violation of the dictum laid down in the case of Gurbaksh Singh Sibbia<br />
(supra) and the principles culled out in the case of Savitri Agarwal<br />
(supra). It is clear as crystal the court cannot issue a blanket order<br />
restraining arrest and it can only issue an interim order and the interim<br />
order must also conform to the requirement of the section and suitable<br />
conditions should be imposed. In the case of Gurbaksh Singh Sibbia (supra)<br />
the Constitution Bench has clearly observed that exercise of jurisdiction<br />
under Section 438 of the Code is an extremely important judicial function<br />
of a judge and both individual and society have vital interest in the<br />
orders passed by the court in anticipatory bail applications.<br />
<br />
31. In this context it is profitable to refer to a three-Judge Bench<br />
decision in Dr. Narendra K. Amin v. State of Gujarat and another[13]. In<br />
the said case a learned Judge of the Gujarat High Court cancelled the bail<br />
granted to the appellant therein in exercise of power under Section 439(2)<br />
of the Code. It was contended before this Court that the High Court had<br />
completely erred by not properly appreciating the distinction between the<br />
parameters for grant of bail and cancellation of bail. The Bench referred<br />
to the decision in Puran v. Rambilas and another[14] wherein it has been<br />
noted that the concept of setting aside an unjustified, illegal or perverse<br />
order is totally different from the cancelling an order of bail on the<br />
ground that the accused has misconducted himself or because of some<br />
supervening circumstances warranting such cancellation. The three-Judge<br />
Bench further observed that when irrelevant materials have been taken into<br />
consideration the same makes the order granting bail vulnerable. In<br />
essence, the three-Judge Bench has opined that if the order is perverse,<br />
the same can be set at naught by the superior court. In the case at hand the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law. It is contradictory in terms and law does not countenance paradoxes.<br />
It gains respectability and acceptability when its solemnity is maintained.<br />
Passing such kind of orders the interest of the collective at large and<br />
that of the individual victims is jeopardised. That apart, it curtails the<br />
power of the regular court dealing with the bail applications.<br />
<br />
32. In this regard it is to be borne in mind that a court of law has to<br />
act within the statutory command and not deviate from it. It is a well<br />
settled proposition of law what cannot be done directly, cannot be done<br />
indirectly. While exercising a statutory power a court is bound to act<br />
within the four corners thereof. The statutory exercise of power stands on<br />
a different footing than exercise of power of judicial review. This has<br />
been so stated in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and<br />
Ors.[15] and U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain<br />
Pandey[16].<br />
<br />
33. Judging on the foundation of aforesaid well settled principles, the<br />
irresistible conclusion is that the impugned orders directing enlargement<br />
of bail of the accused persons, namely, Uttam Das, Abhimanyu Das and<br />
Murlidhar Patra by the Magistrate on their surrendering are wholly<br />
unsustainable and bound to founder and accordingly the said directions are<br />
set aside. Consequently the bail bonds of the aforenamed accused persons<br />
are cancelled and they shall be taken into custody forthwith. It needs no<br />
special emphasis to state that they are entitled to move applications for<br />
grant of bail under Section 439 of the Code which shall be considered on<br />
their own merits.<br />
<br />
34. The appeals are accordingly disposed of.<br />
<br />
<br />
<br />
<br />
<br />
……………………………….J.<br />
[K. S. Radhakrishnan]<br />
<br />
<br />
<br />
<br />
……………………………….J.<br />
[Dipak Misra]<br />
<br />
New Delhi;<br />
May 04, 2012.<br />
<br />
<br />
<br />
-----------------------<br />
[1] AIR 1980 SC 1632<br />
[2] AIR 1976 SC 366<br />
[3] (2009)8SCC325<br />
[4] AIR 1996 SC 1042<br />
[5] (1998) 9 SCC 348<br />
[6] ( 2004) 7 SCC 558<br />
[7] (2005) 4 SCC 303<br />
[8] (1980) 2 SCC 559<br />
[9] AIR 2009 SC 254<br />
[10] (2005) 7 SCC 56<br />
[11] (2005) 1 SCC 608<br />
[12] (2011) 1 SCC 694<br />
[13] 2008 (6) SCALE 415<br />
[14] (2001) 6 SCC 338<br />
[15] (2006) 13 SCC 737<br />
[16] (2006) 1 SCC 479<br />
<div>
<br /></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-26405875142603406952013-08-04T20:51:00.000+05:302013-08-04T21:04:48.733+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
IN THE SUPREME COURT OF INDIA<br />
<br />
CRIMINAL APPELLATE JURISDICTION<br />
<br />
CRIMINAL APPEAL NO.1950 OF 2009<br />
<br />
<br />
Sampath Kumar ...Appellant<br />
<br />
<br />
Versus<br />
<br />
<br />
Inspector of Police, Krishnagiri ...Respondent<br />
<br />
<br />
(With Crl. Appeal No. 66/2010 and Crl. Appeal No.1205/2010)<br />
<br />
<br />
J U D G M E N T<br />
<br />
<br />
T.S. THAKUR, J.<br />
<br />
<br />
1. These appeals by special leave call in question the<br />
<br />
<br />
correctness of an order dated 30th April 2009 passed by the High<br />
<br />
<br />
Court of Madras, whereby Criminal Appeal No. 1008 of 2007 filed<br />
<br />
<br />
by the appellants against their conviction under Section 302 read<br />
<br />
<br />
with Section 34 IPC has been dismissed and the sentence of<br />
<br />
<br />
imprisonment for life awarded to them by the trial Court upheld.<br />
<br />
<br />
2. Briefly stated, the prosecution case is as under:<br />
<br />
<br />
The appellants, namely, Shanmugam, Velu and Sampath<br />
<br />
<br />
Kumar were close friends of the deceased-Senthil Kumar and<br />
<br />
<br />
Palani (PW7). Appellant-Velu has a younger sister, named, Usha<br />
<br />
<br />
who, according to the prosecution story, had fallen in love with<br />
<br />
<br />
the deceased-Senthil Kumar and wanted to marry him.<br />
<br />
<br />
Appellant-Velu did not approve of the said relationship and had<br />
<br />
<br />
asked appellant-Shanmugan to convey to the deceased-Senthil<br />
<br />
<br />
Kumar to keep off Usha or else he would break his hands and<br />
<br />
<br />
legs. In July 2002, appellant-Velu appears to have come on leave<br />
<br />
<br />
from his army services and during this period he and his mother-<br />
<br />
<br />
Balammal are said to have informed Murugambal (PW2)- mother<br />
<br />
<br />
of the deceased, sister-Lakshmi (PW3) and her husband-Selvam<br />
<br />
<br />
(PW1) that they had decided to give Usha in marriage to the<br />
<br />
<br />
deceased-Senthil Kumar. Further discussion regarding the<br />
<br />
<br />
marriage was, however, deferred till the passing of the Tamil<br />
<br />
<br />
month Adi, considered inauspicious for finalisation of matrimonial <br />
<br />
<br />
alliance. On 27th July, 2002 i.e. two days after the marriage<br />
<br />
<br />
proposal was made, Ramesh (PW9) was employed to paint the<br />
<br />
<br />
house of Lakshmi (PW3) when he saw the deceased-Senthil<br />
<br />
<br />
Kumar and Usha embracing one another in one of the rooms of<br />
<br />
<br />
the house. According to Ramesh (PW9), even the appellant-<br />
<br />
<br />
Shanmugam saw Usha and Senthil Kumar in a romantic embrace.<br />
<br />
<br />
The appellant-Shanmugam was also, according to the<br />
<br />
<br />
prosecution, one of the suitors of Usha and had a one-sided <br />
<br />
<br />
affection for her. On the following day, i.e. 28th July, 2002 PWs.<br />
<br />
<br />
1 to 3, their neighbour and the appellant-Shanmugam went to a<br />
<br />
<br />
theatre to see a movie and retuned home around 9.30 p.m. While<br />
<br />
<br />
Selvam (PW1), Murugambal (PW2) and Lakshmi (PW3) retired to<br />
<br />
<br />
bed inside the house after dinner, the deceased-Senthil Kumar<br />
<br />
<br />
and Palani (PW7) slept as usual in the verandah of the house.<br />
<br />
<br />
The appellant-Shanmugam also used to sleep with them but for<br />
<br />
<br />
some reason he did not turn up to do so on that day. At about <br />
<br />
<br />
2.45 a.m. on the night intervening 28th and 29th July, 2002, Palani<br />
<br />
<br />
(PW7) heard the sound of a stone being thrown. He woke up to<br />
<br />
<br />
see the appellant-Shanmugam standing near the head of the<br />
<br />
<br />
deceased and the remaining two appellants also standing close<br />
<br />
<br />
by. The prosecution case is that Palani (PW7) was threatened by<br />
<br />
<br />
the appellants not to disclose to anyone regarding anything for<br />
<br />
<br />
otherwise they would kill him also. At this, Palani (PW7) shouted<br />
<br />
<br />
and ran to hide himself on the rear side of the house. In the<br />
<br />
<br />
meantime, PWs 1 to 3 who were sleeping inside the house also <br />
<br />
<br />
awoke upon hearing the noise and started shouting for help. This <br />
<br />
<br />
woke up their neighbour (PW8) in the opposite house who went <br />
<br />
<br />
over to the house and opened the door to help them come out.<br />
<br />
<br />
PWs 1 and 8 then went to the rear side of the house to find the <br />
<br />
<br />
appellant-Shanmugam lying beside a plantain tree with his hands<br />
<br />
<br />
tied with a cloth.<br />
<br />
<br />
It was also noticed on removing the blanket covering the<br />
<br />
<br />
deceased that someone had smashed his head with a stone which<br />
<br />
<br />
was lying at his side. When the appellant-Shanmugam was asked<br />
<br />
<br />
as to who had beaten him and thrown him behind the house, he <br />
<br />
<br />
stated that it was some stranger who had done so. Senthil was<br />
<br />
<br />
rushed to the hospital but died en-route. Selvam (PW1) went to<br />
<br />
<br />
the police station and lodged an oral complaint. The police<br />
<br />
<br />
registered a case under Sections 302 and 324 IPC. <br />
<br />
<br />
3. After completion of the investigation the police filed a<br />
<br />
<br />
charge-sheet against the appellants accusing them of committing<br />
<br />
<br />
the murder of Senthil Kumar. The appellants were then<br />
<br />
<br />
committed to the Sessions Judge, where they pleaded not guilty<br />
<br />
<br />
and claimed trial. At the trial the prosecution examined as many<br />
<br />
<br />
as 18 witnesses to prove its case. The Sessions Judge eventually<br />
<br />
<br />
came to the conclusion that the prosecution had proved its case <br />
<br />
<br />
beyond a reasonable doubt and accordingly convicted the<br />
<br />
<br />
appellants for the murder of the deceased-Senthil Kumar and<br />
<br />
<br />
sentenced them to undergo imprisonment for life under Section<br />
<br />
<br />
302 read with Section 34 IPC. They were also sentenced to pay a<br />
<br />
<br />
fine of Rs.2,000/- each and in default of payment of fine, to<br />
<br />
<br />
undergo further rigorous imprisonment for two years. The<br />
<br />
<br />
Sessions Judge based his conviction primarily on the strong<br />
<br />
<br />
motive which appellants Shanmugam and Velu had to do away<br />
<br />
<br />
with the deceased due to his love affair with Usha. The Sessions<br />
<br />
<br />
Judge relied heavily upon the deposition of Palani (PW7) and the<br />
<br />
<br />
letter Exh. P-22 allegedly written by appellant-Shanmugam to the<br />
<br />
<br />
mother of the deceased, Murugambal (PW2) accusing appellant-<br />
<br />
<br />
Velu to be the person responsible for the death of the deceased.<br />
<br />
<br />
4. Aggrieved by their conviction and sentence imposed upon<br />
<br />
<br />
them, the accused person preferred Criminal Appeal<br />
<br />
<br />
No.1008/2007 before the High Court of Madras which appeal has<br />
<br />
<br />
been dismissed thereby confirming the conviction and sentence<br />
<br />
<br />
recorded by the trial Court. The High Court held that while the<br />
<br />
<br />
deposition of Palani (PW7) was reliable, letter Exh. P-22 allegedly<br />
<br />
<br />
written by the appellant-Shanmugam to the mother of the<br />
<br />
<br />
deceased, Murugambal (PW2) was not. The confessional<br />
<br />
<br />
statement was held to be inadmissible having been produced<br />
<br />
<br />
after the statement of the accused persons had been recorded<br />
<br />
<br />
under Section 313 Cr.P.C. Independent of the said document, the <br />
<br />
<br />
High Court felt that the evidence on record formed a complete<br />
<br />
<br />
chain of circumstances that unerringly pointed to the guilt of the<br />
<br />
<br />
appellants. The present appeals assail the correctness of the said<br />
<br />
<br />
judgment as noticed above.<br />
<br />
<br />
<br />
<br />
5. Mr. K. Kanagaraj, learned senior counsel for the appellant<br />
<br />
<br />
strenuously argued that the trial Court as also the High Court had<br />
<br />
<br />
fallen in error in holding that the charge against the appellants<br />
<br />
<br />
had been proved beyond a reasonable doubt. He urged that the<br />
<br />
<br />
entire case was based on circumstantial evidence and that the<br />
<br />
<br />
courts below had failed to keep in view the legal requirements<br />
<br />
<br />
attracted to cases that are based on circumstantial evidence. He<br />
<br />
<br />
further argued that the deposition of Palani (PW7) was not<br />
<br />
<br />
reliable for reasons more than one and the trial Court as also the <br />
<br />
<br />
High Court had committed an error in ignoring those reasons. <br />
<br />
<br />
The fact that there was a motive, assuming that any such motive<br />
<br />
<br />
had been established in the present case, was also not sufficient<br />
<br />
<br />
by itself to justify the conclusion that the appellants were<br />
<br />
<br />
responsible for the murder of the deceased. <br />
<br />
<br />
6. The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled <br />
by a long line of decisions of this Court. It is unnecessary to burden this judgment by making reference to all such decisions. We are content with reference to some of those decisions. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, this Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:<br />
<br />
<br />
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.<br />
<br />
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.<br />
<br />
(3) The circumstances should be of a conclusive nature and tendency.<br />
<br />
(4) They should exclude every possible hypothesis except the one to be proved, and<br />
<br />
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."<br />
<br />
<br />
7. The decision of this Court in Aftab Ahmad Ansari v. State of Uttaranchal (2010) 2 SCC 583 is a timely reminder<br />
of the abovementioned requirements in the following words:<br />
<br />
<b><u>"In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. </u></b><br />
<b><u> If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be."</u></b><br />
<br />
<br />
8. Coming to the facts of the present case, the prosecution <br />
<br />
<br />
relies entirely upon the deposition of PWs. 1, 2, 3 and 7. Of<br />
<br />
<br />
these depositions PWs. 1, 2 and 3 are not admittedly eye-<br />
<br />
<br />
witnesses to the occurrence, nor have they stated anything<br />
<br />
<br />
against the appellants except that the deceased was fond of Usha<br />
<br />
<br />
and wanted to marry her which was not to the liking of her<br />
<br />
<br />
brother-Velu, the appellant before us. It is only the deposition of<br />
<br />
<br />
Palani (PW7) that holds the key to whether the appellants are<br />
<br />
<br />
guilty or innocent. According to this witness who was sleeping<br />
<br />
<br />
with the deceased in the verandah of the house of PWs 1 to 3, at<br />
<br />
<br />
about 2.45 a.m. at night he heard a sound that woke him up. He<br />
<br />
<br />
also noticed the appellants standing near the deceased.<br />
<br />
<br />
According to the witness, the appellants threatened him not to<br />
<br />
<br />
disclose anything to anyone otherwise he would meet the same<br />
<br />
<br />
fate. The witness, however, made no disclosure to PWs. 1, 2 and<br />
<br />
<br />
3 who were inside the house, even when they had been woken<br />
<br />
<br />
up because of the sound and wanted to come out but could not<br />
<br />
<br />
because the door was bolted from outside. He made no<br />
<br />
<br />
disclosure of what he had seen even after the police had arrived <br />
<br />
<br />
at the scene after the registration of the case. In his statement<br />
<br />
<br />
before the police under Section 161 Cr.P.C., Palani (PW7) made<br />
<br />
<br />
no such accusations against the appellants nor did he disclose to<br />
<br />
<br />
anyone that he had seen the accused persons on the spot around<br />
<br />
<br />
the time of the commission of the offence. It was only five years <br />
<br />
<br />
after the occurrence that the witness for the first time disclosed <br />
<br />
<br />
in the Court the story about his having seen the appellants<br />
<br />
<br />
standing near the deceased when the former woke up on account<br />
<br />
<br />
of the noise of a stone falling hard on the ground. The witness <br />
<br />
<br />
did not offer any explanation, much less a cogent and acceptable<br />
<br />
<br />
one for his silence for such a long period. His assertion that he<br />
<br />
<br />
was scared by the appellants even after they had been taken into<br />
<br />
<br />
custody by the police and, therefore, did not reveal anything<br />
<br />
<br />
about the actual events till he had the courage to come to the<br />
<br />
<br />
Court to make a statement, is hard to believe. <b><span style="color: red;"> At any rate, reliance upon the deposition of a witness who has made such a material improvement in his version is wholly unsafe unless it is corroborated by some other independent evidence that may probabilize his version.</span></b><br />
<br />
<br />
9. <b>In Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (AIR 2000 SC 3352), this Court held that while</b><br />
<b>discrepancies in the testimony of a witness which may be caused by memory lapses were acceptable, contradictions in the testimony were not. This Court observed:</b><br />
<br />
<br />
<span style="font-size: large;"> <span style="color: #20124d;"><b> "Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution become doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."</b></span></span><br />
<br />
<br />
10. The difference between discrepancies and contradictions was explained by this Court in State of Himachal Pradesh v. Lekh Raj and Anr. (AIR 1999 SC 3916). Reference may also be made to the decision of this Court in State of Haryana v. Gurdial Singh & Pargat Singh (AIR 1974 SC 1871), where the prosecution witness had come out with two inconsistent versions of the occurrence. One of these versions was given in the Court while the other was contained in the statement made before the Police. This Court held that these are contradictory versions on which the conclusion of fact could not be safely based. This Court observed:<br />
<br />
<br />
<b> "The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police...In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained."</b><br />
<br />
<br />
11. Reference may also be made to the decision of this Court in Kehar Singh and Ors. v. State (Delhi Administration) AIR <br />
1988 SC 1883. This Court held that <b><span style="color: red;">if the discrepancies between the first version and the evidence in Court were material, it was safer to err in acquitting than in convicting the accused. </span></b><br />
<br />
12. In the present case the statement made by Palani (PW7)<br />
<br />
<br />
is in complete contrast with the statement made by him before<br />
<br />
<br />
the Police where the witness stated nothing about having seen<br />
<br />
<br />
the appellants standing near the deceased around the time of the<br />
<br />
<br />
incident. This omission is of very vital character. What affects<br />
<br />
<br />
the credibility of the witness is that he did not in his version to <br />
<br />
<br />
the police come out with what according him is the truth, but <br />
<br />
<br />
withheld it for a period of five years till he was examined as a<br />
<br />
<br />
prosecution witness in the Court. <b><span style="color: magenta;">This Court in Vadivelu Thevar v. The State of Madras (AIR 1957 SC 614) classified witnesses into three categories, namely, (i) those that are wholly reliable, (ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In the case of the first category the Courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.</span></b><br />
<br />
<br />
13. To the same effect is the decision of this Court in Lallu <br />
<br />
<br />
Manjhi v. State of Jharkhand, (AIR 2003 SC 854) where this<br />
<br />
<br />
Court felt that the testimony of the witness Mannu (PW9) could<br />
<br />
<br />
neither be totally discarded nor implicitly accepted. Mannu was a<br />
<br />
<br />
witness who could have been naturally present with his brother<br />
<br />
<br />
while ploughing the field. However, his testimony was found to<br />
<br />
<br />
have been improved substantially at the trial. He was considered<br />
<br />
<br />
neither wholly reliable nor wholly unreliable. <br />
<br />
<br />
14. In the present case the testimony cannot be wholly<br />
<br />
<br />
reliable or wholly unreliable. He is not a chance witness who had <br />
<br />
<br />
no reason to be found near the deceased at the time of the<br />
<br />
<br />
occurrence. There is evidence to show that Palani (PW7) used to<br />
<br />
<br />
sleep with the deceased-Senthil in the verandah of the house.<br />
<br />
<br />
What makes it suspect is that the witness has, despite being a<br />
<br />
<br />
natural witness, made a substantial improvement in the version<br />
<br />
<br />
without their being any acceptable explanation for his silence in<br />
<br />
<br />
regard to the fact and matters which was in his knowledge and<br />
<br />
<br />
which would make all the difference in the case. The Court would,<br />
<br />
<br />
therefore, look for independent corroboration to his version,<br />
<br />
<br />
which corroboration is not forthcoming. <b><span style="color: blue;">All that is brought on record by the prosecution is the presence of a strong motive but that by itself is not enough to support a conviction especially in a case where the sentence can be capital punishment</span></b>. In N.J. <br />
<br />
<br />
Suraj v. State represented by Inspector of Police (2004) <br />
<br />
<br />
11 SCC 346, the prosecution case was based entirely upon<br />
<br />
<br />
circumstantial evidence and a motive. Having discussed the circumstances relied upon by the prosecution, this Court rejected motive which was the only remaining circumstance relied upon by the prosecution stating that <b><span style="color: purple;">the presence of a motive was not enough for supporting a conviction, for it is well-settled that the chain of circumstances should be such as to lead to an irresistible conclusion, that is incompatible with the innocence of the accused.</span></b> To the same effect is the decision of this Court in Santosh Kumar Singh v. State through CBI. (2010) 9 SCC 747 and Rukia Begum v. State of Karnataka AIR 2011 SC 1585 where this Court held that motive alone in the absence of any other circumstantial evidence would not be sufficient to convict the appellant. Reference may also be made to the decision of this Court in Sunil Rai @ Paua and Ors. v. Union Territory, Chandigarh (AIR 2011 SC 2545). This Court explained the legal position as follows :<br />
<br />
<br />
<b><span style="color: #741b47;"> "In any event, motive alone can hardly be a ground for conviction. On the materials on record, there may be some suspicion against the accused but as is often said <span style="font-size: x-large;">suspicion, howsoever, strong cannot take the place of proof."</span></span></b><br />
<br />
<br />
15. Suffice it to say although, according to the appellants the question of the appellant-Velu having the motive to harm the deceased-Senthil for falling in love with his sister, Usha did not survive once the family had decided to offer Usha in matrimony to the deceased-Senthil. Yet even assuming that the appellant-Velu had not reconciled to the idea of Usha getting married to the deceased-Senthil, all that can be said was that the appellant-Velu had a motive for physically harming the deceased. That may be an important circumstance in a case based on circumstantial evidence but cannot take the place of conclusive proof that the person concerned was the author of the crime. <b><span style="color: red;">One could even say that the presence of motive in the facts and circumstances of the case creates a strong suspicion against the appellant but suspicion, howsoever strong, also cannot be a substitute for proof of the guilt of the accused beyond a reasonable doubt. </span></b><br />
<br />
<br />
16. In the totality of the circumstances, we are of the view<br />
<br />
<br />
that the prosecution has not proved its case against the<br />
<br />
<br />
appellants who are, in our opinion, entitled to acquittal giving<br />
<br />
<br />
them the benefit of doubt. In the result, these appeals succeed <br />
<br />
<br />
and are hereby allowed. <u><span style="color: magenta;">The appellants shall stand acquitted of the charges framed against</span></u> them giving them the benefit of doubt. <br />
<br />
<br />
<br />
<br />
..........................................J.<br />
<br />
<br />
(T.S. THAKUR)<br />
<br />
<br />
<br />
<br />
<br />
..........................................J.<br />
<br />
(GYAN SUDHA MISRA)<br />
<br />
New Delhi<br />
<br />
March 2, 2012<br />
<div>
<br /></div>
</div>
free333http://www.blogger.com/profile/07472921528961614010noreply@blogger.com0tag:blogger.com,1999:blog-9112074976247602619.post-41888376831525912312013-07-26T23:57:00.002+05:302013-07-28T01:11:14.250+05:30<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
IN THE SUPREME COURT OF INDIA<br />
<br />
<br />
CRIMINAL APPELLATE JURISDICTION<br />
<br />
<br />
TRANSFER PETITION (CRL.) NO. 45 OF 2012<br />
<br />
<br />
<br />
<br />
Rajesh Talwar .... Petitioner<br />
<br />
<br />
Versus<br />
<br />
<br />
Central Bureau of Investigation & Ors. .... Respondents<br />
<br />
<br />
<br />
<br />
WITH<br />
<br />
<br />
TRANSFER PETITION (CRL.) NO. 46 OF 2012<br />
<br />
<br />
<br />
<br />
Nupur Talwar .... Petitioner<br />
<br />
<br />
Versus<br />
<br />
<br />
Central Bureau of Investigation & Ors. .... Respondents<br />
<br />
<br />
<br />
<br />
<br />
ORDER<br />
<br />
<br />
1. Dr. Rajesh Talwar has filed Transfer Petition (Crl.) no. 45 of 2012<br />
<br />
<br />
and Dr. Mrs. Nupur Talwar has filed Transfer Petition (Crl.) no. 46 of 2012. <br />
<br />
<br />
These petitions have been filed under Section 406 of the Code of Criminal<br />
<br />
<br />
Procedure, 1973, praying for the transfer of Special Case No. 01/2011<br />
<br />
<br />
pending before the Court of the Special Judicial Magistrate (CBI)<br />
<br />
<br />
2<br />
<br />
<br />
<br />
Ghaziabad, U.P., to a Court of competent jurisdiction at Delhi/New Delhi.<br />
<br />
<br />
Both these petitions are being disposed of by a common order, because<br />
<br />
<br />
the prayers made are identical and are based on the same grounds,<br />
<br />
<br />
arising out of the same factual background.<br />
<br />
<br />
2. Before dealing with the grounds raised by the petitioners, it is<br />
<br />
<br />
necessary to briefly record the sequence of events leading to the filing of<br />
<br />
<br />
the instant transfer petitions. The prosecution under reference pertains to<br />
<br />
<br />
the murder of Aarushi Talwar, daughter of the two petitioners, namely,<br />
<br />
<br />
Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar, on the night intervening<br />
<br />
<br />
15.5.2008 and 16.5.2008. On 16.5.2008, Dr. Rajesh Talwar got a first<br />
<br />
<br />
information report registered at police station, Sector 20, Noida, alleging<br />
<br />
<br />
that their domestic help Hemraj had committed the murder of their<br />
<br />
<br />
daughter Aarushi Talwar. On the following day, i.e., on 17.5.2008, the<br />
<br />
<br />
body of Hemraj was also found on the roof of the petitioners' residence. <br />
<br />
<br />
Hemraj had also been murdered. On 23.5.2008, Dr. Rajesh Talwar was<br />
<br />
<br />
arrested by the State Police. On 24.5.2008, Dr. Rajesh Talwar was<br />
<br />
<br />
produced before the Chief Judicial Magistrate, Gautam Buddh Nagar. On<br />
<br />
<br />
27.5.2008, the Chief Judicial Magistrate, granted police custody of<br />
<br />
<br />
Dr. Rajesh Talwar till 30.5.2008. Even though the matter was originally<br />
<br />
<br />
investigated by the State Police, on 29.5.2008, investigation was<br />
<br />
<br />
transferred to the Central Bureau of Investigation (hereinafter referred to<br />
<br />
<br />
3<br />
<br />
<br />
<br />
as "the CBI"). The CBI then recorded a separate first information report. <br />
<br />
<br />
On 30.5.2008, Dr. Rajesh Talwar was sent to judicial custody.<br />
<br />
<br />
3. Having concluded the investigation, the CBI filed an application<br />
<br />
<br />
(purported to be an application under Section 169 of the Code of Criminal<br />
<br />
<br />
Procedure), asserting lack of incriminating evidence against Dr. Rajesh<br />
<br />
<br />
Talwar. In the application it was also asserted, that further judicial custody<br />
<br />
<br />
of Dr. Rajesh Talwar was unnecessary. Accordingly, on 11.7.2008, the<br />
<br />
<br />
Special Judicial Magistrate (CBI) Ghaziabad, ordered the release of Dr.<br />
<br />
<br />
Rajesh Talwar, on bail.<br />
<br />
<br />
4. On 29.12.2010, a closure report was submitted by the CBI before<br />
<br />
<br />
the Special Judicial Magistrate (CBI) Ghaziabad. It was contended<br />
<br />
<br />
therein, that sufficient evidence was not available to prove the guilt of Dr.<br />
<br />
<br />
Rajesh Talwar, in the murder of his daughter Aarushi Talwar. Accordingly,<br />
<br />
<br />
a prayer was made for the closure of the case due to insufficient evidence.<br />
<br />
<br />
Since Dr. Rajesh Talwar was the author of the first information report dated<br />
<br />
<br />
16.5.2008, notice of the aforesaid application came to be issued to him.<br />
<br />
<br />
On 25.1.2011, Dr. Rajesh Talwar filed a detailed protest petition. By an<br />
<br />
<br />
order dated 9.2.2011, the Special Judicial Magistrate (CBI) Ghaziabad,<br />
<br />
<br />
rejected the prayer made by the CBI for closure of the case due to<br />
<br />
<br />
insufficient evidence. Simultaneously, the Magistrate summoned<br />
<br />
<br />
Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar to face trial under Section<br />
<br />
<br />
302 read with Section 34 and Section 201 read with Section 34 of the <br />
<br />
<br />
4<br />
<br />
<br />
<br />
Indian Penal Code. The summoning order dated 9.2.2011 was assailed by<br />
<br />
<br />
the petitioners by filing Criminal Revision no. 1127 of 2011 before the High <br />
<br />
<br />
Court of Judicature at Allahabad. The aforesaid challenge made under<br />
<br />
<br />
Section 482 of the Code of Criminal Procedure, was rejected by the High<br />
<br />
<br />
Court on 18.3.2011. Dr. Rajesh Talwar assailed the order passed by the<br />
<br />
<br />
High Court by filing Special Leave Petition (Crl.) No. 2981 of 2011,<br />
<br />
<br />
whereas, the said order was assailed by Dr. Mrs. Nupur Talwar by filing<br />
<br />
<br />
Special Leave Petition (Crl.) No. 2982 of 2011. The challenge raised by<br />
<br />
<br />
the petitioners was declined by this Court vide an order dated 6.1.2012 (in<br />
<br />
<br />
Special Leave Petition (Crl.) No. 2982 of 2011 filed by Dr. Mrs. Nupur<br />
<br />
<br />
Talwar) and on 9.1.2012 (in the Special Leave Petition (Crl.) No. 2981 of<br />
<br />
<br />
2011 filed by Dr. Rajesh Talwar). The aforesaid rejection order dated<br />
<br />
<br />
9.1.2012 is being extracted hereinbelow:-<br />
<br />
<br />
"We have heard learned counsel for the parties. It appears that<br />
<br />
pursuant to the order of this Hon'ble Court in Criminal Appeal No. 68<br />
<br />
of 2012 titled "Dr. Mrs. Nupur Talwar versus C.B.I. Delhi & Anr.", <br />
<br />
whereby this Hon'ble Court upheld the order dated 9.2.2011 of the<br />
<br />
Special Judicial Magistrate (CBI), Ghaziabad in Special Case No. 01<br />
<br />
of 2011 whereby cognizance was taken, the petitioner herein would<br />
<br />
appear before the Special Judicial Magistrate (CBI), Ghaziabad on<br />
<br />
4.2.2012 which, we understand, is the date fixed for hearing.<br />
<br />
It is also not in dispute that the petitioner Dr. Rajesh Talwar is<br />
<br />
on bail since 2008 virtually by an order dated 11th July, 2008 and he<br />
<br />
also furnished bail bond pursuant to that order. In that view of the<br />
<br />
matter, we direct the petitioner - Dr. Rajesh Talwar to remain on<br />
<br />
bail. It is understood that the petitioner has already deposited his<br />
<br />
passport and the same is lying with the Court of the learned<br />
<br />
Magistrate. In the meantime, the petitioner shall not leave the local<br />
<br />
Police Station without obtaining the permission of the learned<br />
<br />
Magistrate.<br />
<br />
<br />
5<br />
<br />
<br />
<br />
With this order, the present Special Leave Petition is disposed<br />
<br />
of. We make it clear that this order will not prevent either of the<br />
<br />
parties from moving such application as they are entitled to in<br />
<br />
accordance with law."<br />
<br />
<br />
5. The instant two transfer petitions seeking transfer of the proceedings<br />
<br />
<br />
in Special Case No. 01/2011 from the Court of Special Judicial Magistrate<br />
<br />
<br />
(CBI) Ghaziabad, to a Court of competent jurisdiction at Delhi/New Delhi,<br />
<br />
<br />
have been separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur<br />
<br />
<br />
Talwar, primarily on the grounds of convenience and personal security.<br />
<br />
<br />
During the course of hearing, learned counsel for the petitioners raised the<br />
<br />
<br />
following contentions on the issue of convenience:-<br />
<br />
<br />
(i) It was submitted, that after the murder of Aarushi Talwar on<br />
<br />
<br />
the night intervening 15.5.2008 and 16.5.2008, for the<br />
<br />
<br />
petitioners to reside in the same premises where the murder<br />
<br />
<br />
of their daughter had been committed, had become<br />
<br />
<br />
impossible. Consequently, they had shifted their residence<br />
<br />
<br />
from Noida to New Delhi. As such, it was submitted that it<br />
<br />
<br />
would be more convenient for the petitioners to face trial in<br />
<br />
<br />
Delhi/New Delhi rather than at Ghaziabad.<br />
<br />
<br />
(ii) Ghaziabad, it was pointed out, was farther away from Noida<br />
<br />
<br />
(where the murder was committed) than New Delhi. In this<br />
<br />
<br />
behalf, it was submitted, that distance between Noida and<br />
<br />
<br />
Ghaziabad is 35 kms., whereas, the distance between Noida<br />
<br />
<br />
6<br />
<br />
<br />
<br />
and New Delhi is only 17 kms. Based on the traffic situation<br />
<br />
<br />
between Delhi and Ghaziabad, it was submitted, that the<br />
<br />
<br />
petitioners would have to undertake several hours of travel<br />
<br />
<br />
time to attend Court proceedings on each date of hearing.<br />
<br />
<br />
This inconvenience could be avoided if the proceedings in<br />
<br />
<br />
question were transferred from Ghaziabad to Delhi/New Delhi.<br />
<br />
<br />
(iii) It was pointed out, that since the first information report was <br />
<br />
<br />
lodged by the CBI at New Delhi itself, there would be no<br />
<br />
<br />
difficulty in proceeding with the case at Delhi itself.<br />
<br />
<br />
(iv) It was also contended, that holding trial before a Court of<br />
<br />
<br />
competent jurisdiction at Delhi/New Delhi would also be a<br />
<br />
<br />
matter of convenience to the prosecuting agency, inasmuch<br />
<br />
<br />
as, the counsel, as also the officials/officers of the CBI were <br />
<br />
<br />
Delhi/New Delhi based, and they too would not have to travel<br />
<br />
<br />
to Ghaziabad on each date of hearing.<br />
<br />
<br />
(v) Lastly, it was asserted, that a large number of witnesses<br />
<br />
<br />
would also have to be summoned from outside U.P. It was<br />
<br />
<br />
also pointed out, that these witnesses would have to<br />
<br />
<br />
unnecessarily travel to Ghaziabad. Just like the petitioners, all<br />
<br />
<br />
outside witnesses would likewise face avoidable<br />
<br />
<br />
inconvenience, if the prayer made in the instant petition is<br />
<br />
<br />
accepted.<br />
<br />
<br />
7<br />
<br />
<br />
<br />
6. On the issue of personal security, learned counsel for the petitioners<br />
<br />
<br />
contended, that when the petitioners had gone to attend court proceedings<br />
<br />
<br />
at Ghaziabad on 25.1.2011, and whilst they were physically inside the<br />
<br />
<br />
court premises alongwith their lawyers, Dr. Rajesh Talwar faced a vicious<br />
<br />
<br />
attack at the hands of one Utsav Sharma, with a cleaver knife. It was<br />
<br />
<br />
submitted, that Dr. Rajesh Talwar suffered grievous injuries and was<br />
<br />
<br />
rushed to undergo several reconstructive surgeries in the intensive care<br />
<br />
<br />
unit of the Indraprastha Apollo Hospital, New Delhi. While explaining the<br />
<br />
<br />
assault, it was pointed out, that Dr. Rajesh Talwar was given three blows <br />
<br />
<br />
with the meat cleaver causing a grevious injury on the right side of his<br />
<br />
<br />
forehead, which also resulted in the rupture of a major artery, and also, <br />
<br />
<br />
serious injuries on both of his hands. It was also alleged, that Dr. Rajesh<br />
<br />
<br />
Talwar was rendered handicapped as a result of the injuries inflicted upon<br />
<br />
<br />
him by Utsav Sharma, for more than two months. It was pointed out, that a<br />
<br />
<br />
first information report was registered by Dr. Dinesh Talwar (brother of Dr.<br />
<br />
<br />
Rajesh Talwar) at police station Kavi Nagar, Ghaziabad on 25.1.2011, in<br />
<br />
<br />
connection with the aforesaid assault. The aforesaid encounter within the<br />
<br />
<br />
court premises, according to learned counsel for the petitioners, has<br />
<br />
<br />
completely shaken the confidence of the petitioners. The petitioners are<br />
<br />
<br />
stated to be under deep fear of attending court-proceedings at Ghaziabad<br />
<br />
<br />
after the said assault. Relying on the judgment rendered by this Court in Maneka Sanjay Gandhi Vs. Rani Jethmalani, (1979) 4 SCC 167, it was asserted, that this Court had authoritatively held, that <span style="color: red; font-size: large;"><b> the safety of the person of an accused (as also, the complainant) is an essential condition for participation in a criminal trial. Where safety itself is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, it was submitted, a request as the one in the instant case, for transfer of proceedings should be acceded to.</b></span> Insofar as the present case is concerned, it was submitted on behalf of the petitioners, that the circumstances in the present case have gone far beyond the possibility of a physical assault, inasmuch as, a brutal physical attack has actually been made on Dr. Rajesh Talwar (on 25.1.2011). Relying on the judgment rendered by this Court in Zahira Habibulla H. Sheikh Vs. State of Gujarat, (2004) 4 SCC 158, it was contended, that justice should not only be done but it should be seen to be done. It was pointed out, that where circumstances are such that render holding of a fair and impartial trial, uninfluenced by extraneous considerations impossible, an apprehension expressed by an individual seeking transfer, should be accepted as reasonable. Inviting the Court's attention to the incident of 25.1.2011, it was submitted, that there could be no doubt, that in the circumstances prevalent in the courts at Ghaziabad, the apprehension expressed by the petitioners, that they are unlikely to be subjected to a fair and impartial trial, uninfluenced by extraneous considerations, is not unreal. Relying on the judgment rendered by this Court in Central Bureau of Investigation (CBI) Vs. Hopeson Ningshen, (2010) 5 SCC 115, it was submitted, that in a case wherein the CBI itself felt that there was a real danger of the accused being physically attacked during the course of the trial, this Court came to be approached (by the CBI) for transfer of the venue of prosecution. The prayer made by the CBI was acceded to by this Court by observing, that there could be no quarrel, that there was a real possibility of a physical attack on the respondent-accused so long as he was at Manipur. Yet again, it is emphasized by the learned counsel appearing on behalf of the petitioners, that the present case stands on a<br />
<br />
<br />
far better footing, inasmuch as, a factual assault resulting in serious<br />
<br />
<br />
injuries has actually been suffered by Dr. Rajesh Talwar within the court<br />
<br />
<br />
premises at Ghaziabad. It is, therefore, contended, that the fear in the<br />
<br />
<br />
minds of the petitioners, is not imaginary. The fear in the minds of the<br />
<br />
<br />
petitioners, is very real and bonafide. In order to support the prayer of the<br />
<br />
<br />
petitioners on the facts delineated hereinabove, learned counsel for the<br />
<br />
<br />
petitioners placed reliance on the judgment rendered by this Court in Ravir<br />
<br />
<br />
Godbole Vs. State of M.P., (2006) 9 SCC 786. The order relied upon by<br />
<br />
<br />
the petitioners is being extracted hereinbelow:-<br />
<br />
<br />
"1. We have heard counsel for the parties.<br />
<br />
2. The petitioner is being tried of an offence punishable under<br />
<br />
Section 307 IPC. The trial was to take place at Indore but, in<br />
<br />
view of the fact that the rival gang has been after his blood<br />
<br />
and two attempts were made on his life, the High Court<br />
<br />
transferred his trial to Bhopal. It appears that even during the<br />
<br />
trial at Bhopal he was attacked a third time and serious<br />
<br />
<br />
10<br />
<br />
<br />
<br />
injuries were caused to him which necessitated his being<br />
<br />
admitted to the hospital and an operation being performed to<br />
<br />
repair his damaged liver.<br />
<br />
3. In these circumstances, the petitioner has prayed that his case<br />
<br />
may be transferred to any court outside the State of M.P.<br />
<br />
Counsel for the State does not dispute the fact that the<br />
<br />
petitioner has been attacked thrice during this period and he<br />
<br />
does face danger to his life. Of course, the State contends<br />
<br />
that it will provide him with protection such as is considered<br />
<br />
necessary. We notice that a gunman was deputed to provide<br />
<br />
security to the petitioner but despite that he was attacked a<br />
<br />
third time causing him serious injuries, and the gunman<br />
<br />
deputed to protect him could do nothing except to make<br />
<br />
himself scarce.<br />
<br />
4. In these facts and circumstances, we transfer Sessions Trial<br />
<br />
No. 65 of 2004 pending before the Special Court (Atrocities),<br />
<br />
Bhopal Sessions Court, Bhopal to the Court of the District and<br />
<br />
Sessions Judge, Nasik who may try the case himself or assign<br />
<br />
the trial to a court of competent jurisdiction. The record of the<br />
<br />
case shall be immediately transmitted by the Bhopal Sessions<br />
<br />
Court to the Court of the District and Sessions Judge, Nasik.<br />
<br />
5. This transfer petition is allowed."<br />
<br />
(emphasis is ours)<br />
<br />
<br />
7. It would be relevant to notice, that in the pleadings of the two<br />
<br />
<br />
transfer petitions, the petitioners have raised a third ground (besides those<br />
<br />
<br />
of convenience and personal security, referred to in the foregoing<br />
<br />
<br />
paragraphs). No submissions were addressed in connection therewith<br />
<br />
<br />
during the course of hearing. Reference to the third ground has been<br />
<br />
<br />
made in this order only because it was pointed out by the learned counsel<br />
<br />
<br />
representing the CBI, that the petitioners had alleged, that they were not<br />
<br />
<br />
likely to get justice, as it appeared to them, that the Ghaziabad court was <br />
<br />
<br />
proceeding with the matter with a pre-determined mind. The cause of the<br />
<br />
<br />
petitioners instant impression (as per the pleadings), emerges from an<br />
<br />
<br />
11<br />
<br />
<br />
<br />
application filed by Dr. Rajesh Talwar on 28.2.2011 under Section 205 of<br />
<br />
<br />
the Code of Criminal Procedure. In the aforesaid application, Dr. Rajesh<br />
<br />
<br />
Talwar had sought exemption from personal appearance, on the ground<br />
<br />
<br />
that he had suffered a physical assault in the court premises on 25.1.2011,<br />
<br />
<br />
and had been advised bed rest. The Special Judicial Magistrate (CBI)<br />
<br />
<br />
Ghaziabad, had rejected the application for exemption, and issued bailable<br />
<br />
<br />
warrants against Dr. Rajesh Talwar. Insofar as Dr. Mrs. Nupur Talwar is<br />
<br />
<br />
concerned, she too had sought exemption from personal appearance on<br />
<br />
<br />
the ground, that she had to file an affidavit at Allahabad in a criminal<br />
<br />
<br />
revision petition, to assail the summoning order dated 9.2.2011(refer to<br />
<br />
<br />
paragraph 4 above). It is submitted, that the application filed by Dr. Mrs.<br />
<br />
<br />
Nupur Talwar was also declined. In the order dated 28.2.2011 the Special<br />
<br />
<br />
Judicial Magistrate (CBI) Ghaziabad, ordered issuance of bailable warrants<br />
<br />
<br />
against the petitioners. From the aforesaid determination, it was sought to<br />
<br />
<br />
be inferred, that the petitioners were not likely to get justice, as the<br />
<br />
<br />
Ghaziabad Court was proceeding with the matter with a pre-determined<br />
<br />
<br />
mind.<br />
<br />
<br />
8. During the course of hearing, another ground was also canvassed<br />
<br />
<br />
on behalf of the petitioners, although no mention thereof had been made in<br />
<br />
<br />
the pleadings of the two transfer petitions. During the course of hearing,<br />
<br />
<br />
our attention was invited by the learned counsel appearing on behalf of the<br />
<br />
<br />
petitioners, to an affidavit dated 24.2.2012 filed by Shri Praveen Kumar<br />
<br />
<br />
12<br />
<br />
<br />
<br />
Rai, Advocate. The said Shri Praveen Kumar Rai, in his affidavit, interalia<br />
<br />
<br />
deposed, that on 25.1.2011, the Special Judicial Magistrate (CBI)<br />
<br />
<br />
Ghaziabad, had noticed the sensitivity of the case and had, by invoking the<br />
<br />
<br />
court's inherent power under Section 327 of the Code of Criminal<br />
<br />
<br />
Procedure, directed, that no person would be allowed to enter the court-<br />
<br />
<br />
room except the parties to the case or their respective counsel; yet during<br />
<br />
<br />
the course of hearing on 4.2.2012, a lot of media-persons and advocates<br />
<br />
<br />
unrelated to the case, were present inside the court-room. While dilating<br />
<br />
<br />
on the court proceedings conducted on 4.2.2012, without disclosing the<br />
<br />
<br />
identity of any particular counsel/advocate, it was averred in paragraphs 5<br />
<br />
<br />
and 6 (of the affidavit dated 24.2.2012) as under:-<br />
<br />
<br />
"5. That one of the advocates, who on earlier occasion has been<br />
<br />
rebuked by the Ld. Magistrate and certain strictures have also<br />
<br />
been passed against him as well, was also present in the<br />
<br />
Court room. It is pertinent to mention here that on 7.1.2011<br />
<br />
the said counsel had filed an application and thereafter during<br />
<br />
the course of arguments on the said application misbehaved<br />
<br />
with the Court and others therein. The Ld. Magistrate in her<br />
<br />
order dated 21.1.2011 while dismissing the application<br />
<br />
disapproved the behaviour of the counsel and passed<br />
<br />
strictures after warning him for future. However, the said<br />
<br />
warning and strictures have not affected him at all. He not<br />
<br />
only interfered in the case, but also attempted to stop the<br />
<br />
counsels for the petitioner herein from advancing their<br />
<br />
submissions. The deponent immediately brought this to the<br />
<br />
notice of the Ld. Magistrate but to no avail and the<br />
<br />
interruptions continued in the proceedings. It is germane to<br />
<br />
state that the concerned advocate does not represent either<br />
<br />
the prosecution or the accused persons and thus, no privilege<br />
<br />
of hearing can be extended to the concerned advocate. A true<br />
<br />
translated copy of the order dated 21.1.2011 is annexed<br />
<br />
herewith and marked as Annexure A-2.<br />
<br />
<br />
13<br />
<br />
<br />
<br />
6. That faced with such a perilous situation the counsels did not<br />
<br />
have any option but to file an application before the Ld.<br />
<br />
Magistrate for taking appropriate actions and passing<br />
<br />
necessary directions in the matter. The said application is still<br />
<br />
pending. A photocopy of certified copy of the said application<br />
<br />
dated 4.2.2012 is annexed herewith and marked as Annexure<br />
<br />
A-3."<br />
<br />
<br />
It is also necessary to extract hereunder the application dated 4.2.2012<br />
<br />
<br />
(appended as Annexure A-3 to the affidavit dated 24.2.2012) of Shri<br />
<br />
<br />
Praveen Kumar Rai, counsel for Dr. Mrs. Nupur Talwar:-<br />
<br />
<br />
"Sir,<br />
<br />
It is most respectfully submitted that in the above noted case<br />
<br />
the applicants counsels appear before the Hon'ble Court today<br />
<br />
to move application in the light of order passed by Hon'ble<br />
<br />
Supreme Court in Transfer Petition. The counsel for<br />
<br />
applicants were restrained by some other Advocates who<br />
<br />
have no concern with the case during the course of their<br />
<br />
submission. This happened even when, the order passed by<br />
<br />
Hon'ble Court dated 25.1.2011 U/s 327 Cr.P.C. is still in force.<br />
<br />
It is, therefore, most humbly prayed that in the above<br />
<br />
said reason and in the interest of justice Hon'ble Court may<br />
<br />
kindly restrained the persons and advocates who have no<br />
<br />
concerned in the case by entering in the Court room during<br />
<br />
the hearing of the case."<br />
<br />
<br />
Based on the aforesaid factual position it is contended that the petitioners<br />
<br />
<br />
have strong reservations whether unimpaired proceedings are at all<br />
<br />
<br />
possible in the case in hand. It is therefore contended, that it would be in<br />
<br />
<br />
the fitness of the matter, to transfer proceedings in the case, from<br />
<br />
<br />
Ghaziabad to Delhi/New Delhi<br />
<br />
<br />
9. We have recorded hereinabove the four different grounds under<br />
<br />
<br />
which the petitioners have sought to press their claim for transfer of the<br />
<br />
<br />
14<br />
<br />
<br />
<br />
proceedings pending before the court of the Special Judicial Magistrate<br />
<br />
<br />
(CBI), Ghaziabad, U.P., to a court of competent jurisdiction at Delhi/New<br />
<br />
<br />
Delhi. It would be appropriate and in the fitness of matters to first record<br />
<br />
<br />
the response of the learned Senior Counsel representing the CBI to each<br />
<br />
<br />
of the issues. The submissions of the learned counsel representing the<br />
<br />
<br />
respondents are therefore being summarized hereinafter:-<br />
<br />
<br />
10. As noticed in paragraph 5 hereinabove, the foremost contention<br />
<br />
<br />
seeking transfer of proceedings from Ghaziabad to Delhi/New Delhi is<br />
<br />
<br />
based on the inconvenience of the petitioners to travel from New Delhi to<br />
<br />
<br />
Ghaziabad on each date of hearing. In so far as the instant aspect of the<br />
<br />
<br />
matter is concerned, it was the contention of the learned counsel for the<br />
<br />
<br />
respondents, that shifting of the residence of an accused cannot be a valid<br />
<br />
<br />
justification for seeking transfer, nor is the place where the first information<br />
<br />
<br />
report was registered by the CBI relevant for the said purpose. It is<br />
<br />
<br />
submitted that <b><span style="color: blue; font-size: large;">the identity of the jurisdictional court is determined on the basis of the provisions of the Code of Criminal Procedure,</span></b> wherein <br />
<br />
<br />
residence of the accused and the place of registration of the first<br />
<br />
<br />
information report are inconsequential. In so far as the inconvenience<br />
<br />
<br />
alleged by the petitioners to travel to Ghaziabad is concerned, it was<br />
<br />
<br />
brought to our notice that 72 of the witness likely to be produced during the<br />
<br />
<br />
course of the prosecution under reference, are located in the State of Uttar<br />
<br />
<br />
Pradesh, whereas, 61 witnesses are from Delhi or from outside U.P. Of<br />
<br />
<br />
15<br />
<br />
<br />
<br />
the aforesaid 61 witnesses, 19 are CBI officials/officers; 16 are employees<br />
<br />
<br />
of the Central Forensic Science Laboratory or the All India Institute of<br />
<br />
<br />
Medical Sciences, New Delhi; 6 witnesses are from telephone companies,<br />
<br />
<br />
20 witnesses have been examined earlier out of which some are relations<br />
<br />
<br />
of the petitioners themselves; and of the remaining two witnesses one is<br />
<br />
<br />
from Punjab and the other is from Haryana. It is also submitted, that none<br />
<br />
<br />
of the 61 witnesses, to be produced from Delhi or from outside U.P., have<br />
<br />
<br />
expressed inconvenience to depose before the Special Judicial Magistrate<br />
<br />
<br />
(CBI), Ghaziabad, U.P. It is contended, that the distance between Noida<br />
<br />
<br />
and Ghaziabad, as also, between Noida and Delhi depicted in the<br />
<br />
<br />
submissions advanced by the learned counsel for the petitioners are<br />
<br />
<br />
irrelevant. It is submitted, that<span style="color: #990000; font-size: large;"><b> the issue of jurisdiction is never determined on the basis of distance(s), but is based on the territorial jurisdiction of the court within which an offence has been committed.</b></span> It is submitted that Dr.<br />
<br />
<br />
Rajesh Talwar and Dr. Mrs. Nupur Talwar have been attending court<br />
<br />
<br />
proceedings at Ghaziabad since 2008, i.e., for the last about three years.<br />
<br />
<br />
It is pointed out, that neither of the petitioners ever expressed<br />
<br />
<br />
inconvenience to participate in the court proceedings at Ghaziabad hitherto<br />
<br />
<br />
before. However, all these pleas are being raised only after the Special<br />
<br />
<br />
Judicial Magistrate (CBI), Ghaziabad, U.P., by his/her order dated<br />
<br />
<br />
9.2.2011 had summoned the petitioners to face trial under Section 302<br />
<br />
<br />
read with Section 34 of the Indian Penal Code, and Section 201 read with<br />
<br />
<br />
16<br />
<br />
<br />
<br />
Section 34 of the Indian Penal Code, in connection with the murder of<br />
<br />
<br />
Arushi Talwar. It is accordingly submitted that the plea raised by the<br />
<br />
<br />
petitioners for transfer of proceedings on the basis of inconvenience, is<br />
<br />
<br />
wholly trumped up and ought to be rejected.<br />
<br />
<br />
11. In so far as the second issue canvassed at the hands of the<br />
<br />
<br />
petitioners on the ground of personal security is concerned (see paragraph<br />
<br />
<br />
6 hereinabove), learned Senior Counsel representing the respondents<br />
<br />
<br />
invited our attention to the counter affidavit filed on behalf of the<br />
<br />
<br />
respondent-CBI, wherein, while repudiating the contention advanced at the<br />
<br />
<br />
hands of the petitioners, it has been pointed out that the attack on Dr.<br />
<br />
<br />
Rajesh Talwar in the court-premises at Ghaziabad on 25.1.2011 was at the<br />
<br />
<br />
hands of a psychologically disturbed person hailing from Varanasi, who<br />
<br />
<br />
had come to Ghaziabad from Ahmedabad (in Gujarat). It is therefore the<br />
<br />
<br />
contention of the learned counsel for the respondents, that the attack was<br />
<br />
<br />
not aimed at interfering with the petitioners right to defend themselves, but<br />
<br />
<br />
because of mental imbalance of the attacker. It is submitted, that the<br />
<br />
<br />
same person Utsav Sharma had also attacked DGP Rathore in a court-<br />
<br />
<br />
premises at Chandigarh, prior to having attacked Dr. Rajesh Talwar. It is<br />
<br />
<br />
therefore contended, that the physical attack on Dr. Rajesh Talwar was<br />
<br />
<br />
certainly not aimed at disrupting court-proceedings or interfering with the<br />
<br />
<br />
defence of the petitioners. As such, it is submitted that the aforesaid stray <br />
<br />
<br />
incident cannot be a justifiable basis for seeking transfer of proceedings<br />
<br />
<br />
17<br />
<br />
<br />
<br />
under Section 406 Cr.P.C. from the court of the Special Judicial Magistrate<br />
<br />
<br />
(CBI), Ghaziabad, U.P. to some other court of competent jurisdiction in<br />
<br />
<br />
Delhi/New Delhi. Learned counsel representing the respondents also<br />
<br />
<br />
pointed out, from the counter affidavit filed by the CBI, that the Sessions<br />
<br />
<br />
Judge, Ghaziabad had personally reviewed the security arrangements in<br />
<br />
<br />
the entire court-premises at Ghaziabad, whereupon, security/police<br />
<br />
<br />
personnel have been deployed to prevent any similar untoward incident in<br />
<br />
<br />
future. It was also brought to our notice, from the counter affidavit filed by<br />
<br />
<br />
the CBI, that the venue of the proceedings relating to the petitioners, has<br />
<br />
<br />
been shifted to a new building, which has a proper boundary wall on all<br />
<br />
<br />
sides, with only one small entrance. The counter affidavit also records an<br />
<br />
<br />
assurance, that as and when the case of the petitioners will be fixed for<br />
<br />
<br />
hearing, proper police force will be deployed by the local administration, to<br />
<br />
<br />
ensure safety and security of the petitioners. It is therefore the contention<br />
<br />
<br />
of the learned Senior Counsel representing the CBI, duly supported by the<br />
<br />
<br />
learned counsel for the State of Uttar Pradesh, that all possible care will be<br />
<br />
<br />
taken, for the safety and welfare of the petitioners.<br />
<br />
<br />
12. Even though learned counsel representing the petitioners did not<br />
<br />
<br />
canvass the third ground (see paragraph 7 hereinabove) during the course<br />
<br />
<br />
of hearing, yet learned counsel for the respondents had expressly drawn<br />
<br />
<br />
our attention to the same. The purpose of inviting our attention to the third<br />
<br />
<br />
ground was to demonstrate, that the petitioners have not even spared the<br />
<br />
<br />
18<br />
<br />
<br />
<br />
presiding officer of the court. The petitioners have cast aspersions on the<br />
<br />
<br />
court itself. It has been averred in the pleadings, that the petitioners are<br />
<br />
<br />
not likely to get justice from the Ghaziabad court, because the Special<br />
<br />
<br />
Judicial Magistrate (CBI), Ghaziabad, U.P. by his/her order dated<br />
<br />
<br />
28.2.2011 had declined the prayer made by the petitioners for exempting<br />
<br />
<br />
them from personal appearance, and since the petitioners had not<br />
<br />
<br />
appeared on 28.2.2011, the court had issued bailable warrants against the<br />
<br />
<br />
petitioners. This, according to the learned Senior Counsel representing<br />
<br />
<br />
the respondents, can never constitute a valid basis for drawing any<br />
<br />
<br />
inference against a court, specially when the challenge raised by the<br />
<br />
<br />
petitioners in assailing the order dated 28.2.2011 (declining exemption<br />
<br />
<br />
from personal appearance, and ordering issuance of bailable warrants),<br />
<br />
<br />
before the High Court of Judicature at Allahabad was rejected. In fact, it is<br />
<br />
<br />
the contention of the learned Senior Counsel for the respondents, that the<br />
<br />
<br />
insinuation levelled on behalf of the petitioners is contemptuous in nature,<br />
<br />
<br />
and calls for initiation of proceedings against the petitioners under the<br />
<br />
<br />
Contempt of Courts Act, 1971. Based on all the submissions recorded<br />
<br />
<br />
hereinabove, it was the contention of the learned counsel for the<br />
<br />
<br />
respondents, that even the third ground raised by the petitioners for<br />
<br />
<br />
seeking transfer of proceedings under Section 406 of the Code of Criminal<br />
<br />
<br />
Procedure, cannot be accepted.<br />
<br />
<br />
19<br />
<br />
<br />
<br />
13. In so far as the last contention is concerned (see paragraph 8<br />
<br />
<br />
hereinabove), the same was based on the affidavit of Shri Praveen Kumar<br />
<br />
<br />
Rai, Advocate, dated 24.2.2012. It was submitted at the hands of the<br />
<br />
<br />
learned counsel for the respondents, that there was no occasion for the<br />
<br />
<br />
respondents to repudiate the same, as the factual position depicted therein<br />
<br />
<br />
does not emerge from the pleadings of the transfer petitions filed by the <br />
<br />
<br />
two petitioners. It is therefore the contention of the learned counsel for the<br />
<br />
<br />
respondents, that the petitioners should not be permitted to press the<br />
<br />
<br />
instant ground for seeking transfer. Be that as it may, it is further the<br />
<br />
<br />
contention of the learned Senior Counsel representing the respondents,<br />
<br />
<br />
that the allegations contained in the affidavit dated 24.2.2012 are vague, <br />
<br />
<br />
as the identity of the counsel who attempted to stop the counsel<br />
<br />
<br />
representing the petitioners from advancing their submission, has not been<br />
<br />
<br />
disclosed. In the application allegedly filed on 4.2.2012 (appended as<br />
<br />
<br />
Annexure A-3, with the affidavit dated 24.2.2012) also, the identity of the<br />
<br />
<br />
counsel who restrained the counsel representing the petitioners, from<br />
<br />
<br />
making his submissions has also not been disclosed. Accordingly, it is<br />
<br />
<br />
asserted that the allegations made in the last submission being vague <br />
<br />
<br />
cannot be relied upon to accept the prayer of the petitioners for transfer of<br />
<br />
<br />
proceedings under Section 406 of the Code of Criminal Procedure.<br />
<br />
<br />
14. We have noticed hereinabove the grounds of challenge canvassed<br />
<br />
<br />
at the hands of the learned counsel for the petitioners, as also, the<br />
<br />
<br />
20<br />
<br />
<br />
<br />
response thereto at the hands of the learned counsel representing the<br />
<br />
<br />
respondents. In so far as the issue of transfer of criminal proceedings from<br />
<br />
<br />
one court to another under Section 406 of the Code of Criminal Procedure<br />
<br />
<br />
is concerned, it would be in the fitness of matters to examine the<br />
<br />
<br />
parameters laid down by this Court for transfer of proceedings. In this<br />
<br />
<br />
behalf reference may, first of all, be made to the decision rendered in Sri<br />
<br />
<br />
Jayendra Saraswathy Swamigal (II), Tamil Nadu v. State of Tamil Nadu,<br />
<br />
<br />
(2005) 8 SCC 771, wherein in paragraph 5, this court recorded the<br />
<br />
<br />
grounds on which transfer was sought and thereafter, recorded its own<br />
<br />
<br />
determination in paragraph 23. Accordingly, paragraphs 5 and 23 of the<br />
<br />
<br />
judgment are being extracted hereunder:<br />
<br />
<br />
"5. The transfer of the case has been sought on several grounds and<br />
<br />
basically speaking they are as under:<br />
<br />
(i) The State machinery in Tamil Nadu and specially the Special<br />
<br />
Investigation Team headed by Shri Prem Kumar, Superintendent of<br />
<br />
Police, has shown great zeal and has made extraordinary efforts,<br />
<br />
much beyond what is required under the law to anyhow secure the<br />
<br />
conviction of the accused and to achieve that object has procured<br />
<br />
and fabricated false evidence.<br />
<br />
(ii) The Chief Minister of the State of Tamil Nadu, who is also holding<br />
<br />
the Home portfolio, has made statements on the floor of the House<br />
<br />
that the petitioner and the other co-accused are actually involved in<br />
<br />
the murder of Sankararaman and has also given some press<br />
<br />
statements and has thereby pre-empted a fair decision in the<br />
<br />
criminal trial, as statements of persons holding such high offices and<br />
<br />
specially those made on the floor of the House, are generally<br />
<br />
believed to be correct and thus the accused stand condemned even<br />
<br />
before the commencement of the trial.<br />
<br />
(iii) A solatium of Rs 5 lakhs was paid by the Chief Minister of Tamil<br />
<br />
Nadu to Padma Sankararaman (widow of deceased Sankararaman)<br />
<br />
on 24-11-2004, long before completion of investigation and<br />
<br />
<br />
21<br />
<br />
<br />
<br />
submission of charge-sheet, and this was given wide publicity in the<br />
<br />
electronic media and newspapers, etc., which shows that the State<br />
<br />
Government is taking special interest in the case and is too keen to<br />
<br />
secure conviction of the accused in order to justify the stand taken<br />
<br />
by it.<br />
<br />
(iv) Concocted and false cases have been registered against 16 co-<br />
<br />
accused. Even before their bail applications in the present case<br />
<br />
could be heard, detention orders were passed against them under<br />
<br />
the Tamil Nadu Prevention of Dangerous Activities of Bootleggers,<br />
<br />
Drug Offenders, Forest Offenders, Goondas, Immoral Traffic<br />
<br />
Offenders, Slum Grabbers and Video Pirates Act, 1982 (for short<br />
<br />
"the Goondas Act") between 16-1-2005 and 6-2-2005 so that even<br />
<br />
after grant of bail by the Court they may remain in custody.<br />
<br />
(v) The advocates appearing for the petitioner and other co-accused<br />
<br />
have been put under great threat on account of lodging of false and<br />
<br />
fabricated criminal cases against them and a situation has been<br />
<br />
created wherein they may not be in a position to defend the accused<br />
<br />
properly. This will also have a general effect as other lawyers would<br />
<br />
feel hesitant to conduct the case on behalf of the accused.<br />
<br />
(vi) The Mutt and other associated and connected trusts have 183<br />
<br />
accounts in banks, which were all frozen by SIT resulting in<br />
<br />
paralysing the religious and other activities of the Mutt and other<br />
<br />
connected bodies.<br />
<br />
(vii) Criminal cases have been lodged against some leading<br />
<br />
journalists of the country and other prominent personalities, who had<br />
<br />
written articles criticising the arrest of the petitioner, which not only<br />
<br />
violates right of free speech but also creates an atmosphere of<br />
<br />
threat against anyone daring to speak or write in favour of the<br />
<br />
accused and thus the accused seriously apprehend that they would<br />
<br />
not get a fair trial in the State of Tamil Nadu.<br />
<br />
(viii) Shri Prem Kumar, who is heading the Special Investigation<br />
<br />
Team, is not a fair and upright officer and superior courts have<br />
<br />
passed strictures against him several times in the past for his<br />
<br />
uncalled-for actions in going out of the way to implicate innocent<br />
<br />
persons in criminal cases.<br />
<br />
<br />
<br />
23. We have discussed above many facets of the case which do show that the State machinery in Tamil Nadu is not only taking an undue interest but is going to any extent in securing the conviction of the accused by any means and to stifle even publication of any article or expression of dissent in the media or press, interview by journalists or persons who have held high positions in public life and are wholly unconnected with the criminal case. The affidavits and the documents placed on record conclusively establish that a serious attempt has been made by the State machinery to launch criminal prosecution against lawyers, who may be even remotely connected with the defence of the accused. The Superintendent of Police, SIT and the Police Inspector connected with the investigation even went to the extent of prompting the approver Ravi Subramaniam to make insinuation against a very Senior Counsel, who has been practising for over 43 years and is appearing as counsel for the petitioner. The other counsel had to file writ petitions in the Madras High Court for seeking a direction for transferring investigation of the criminal cases registered against them from the local police to CBI. The police submitted charge-sheet against two junior lady lawyers under various sections of IPC including Section 201 IPC when even accepting every word in the FIR lodged by Smt Chitra, wife of Ravi Subramaniam (approver) as correct, no offence under the said provision is made out. <b><span style="color: #073763; font-size: large;">Clause (1) of Article 22, which finds place in Part III of the Constitution dealing with fundamental rights, gives a guarantee to a person arrested and detained to be defended by a legal practitioner of his choice.</span></b> Section 303 of the Code of Criminal Procedure says that any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code, may of right be defended by a pleader of his choice. Even under the British rule when the Code of Criminal Procedure, 1898 was enacted, Section 340(1) thereof gave a similar right to an accused. <b><span style="color: purple; font-size: large;">It is elementary that if a lawyer whom the accused has engaged for his defence is put under a threat of criminal prosecution, he can hardly discharge his professional duty of defending his client in a fearless manner. A senior and respected counsel is bound to get unnerved if an insinuation is made against him in court that he approached the wife of a witness for not giving evidence against the accused in the court. From the material placed before us we are prima facie satisfied that a situation has arisen in the present case wherein the lawyers engaged by the petitioner and other co-accused cannot perform their professional duty in a proper and dignified manner on account of various hurdles created by the State machinery. The lawyers would be more concerned with shielding their own reputation or their liberty rather than cross-examining the prosecution witnesses for eliciting the truth. The constant fear of not causing any annoyance to the prosecution witnesses specially those of the Police Department would loom large over their mind vitally affecting the defence of the accused.</span></b> Passing of the detention order against 16 co-accused soon after grant of bail<br />
<br />
<br />
23<br />
<br />
<br />
<br />
to the petitioner by this Court on 10-1-2005, which order could be of<br />
<br />
some support in seeking parity or otherwise for securing bail in the<br />
<br />
present murder case, is a clear pointer to the fact that the State<br />
<br />
wanted to deprive them of any chance to secure release from<br />
<br />
custody. Even though this Court has issued notice on the special<br />
<br />
leave petition filed by the State against the order of the High Court<br />
<br />
by which habeas corpus petition of the 16 co-accused was allowed,<br />
<br />
yet the observations made in the said order show in unmistakable<br />
<br />
terms that the even tempo of life was not disturbed, nor was public<br />
<br />
order affected by the murder of Sankararaman and the detention<br />
<br />
order was passed without any basis. Again, the action of the State in<br />
<br />
directing the banks to freeze all the 183 accounts of the Mutt in the<br />
<br />
purported exercise of the power conferred under Section 102 CrPC,<br />
<br />
which had affected the entire activities of the Mutt and other<br />
<br />
associated trusts and endowments only on the ground that the<br />
<br />
petitioner, who is the head of the Mutt, has been charge-sheeted for<br />
<br />
entering into a conspiracy to murder Sankararaman, leads to an<br />
<br />
inference that the State machinery is not only interested in securing<br />
<br />
conviction of the petitioner and the other co-accused but also to<br />
<br />
bring to a complete halt the entire religious and other activities of the<br />
<br />
various trusts and endowments and the performance of pooja and<br />
<br />
other rituals in the temples and religious places in accordance with<br />
<br />
the custom and traditions and thereby create a fear psychosis in the<br />
<br />
minds of the people. This may deter anyone from appearing in court<br />
<br />
and give evidence in defence of the accused. Launching of<br />
<br />
prosecution against prominent persons who have held high political<br />
<br />
offices and prominent journalists merely because they expressed<br />
<br />
some dissent against the arrest of the petitioner shows the attitude<br />
<br />
of the State that it cannot tolerate any kind of dissent, which is the<br />
<br />
most cherished right in a democracy guaranteed by Article 19 of the<br />
<br />
Constitution." (emphasis is ours)<br />
<br />
<br />
<br />
Reference may also be made to the decision rendered by this Court in<br />
<br />
<br />
Central Bureau of Investigation (CBI) v. Hopeson Ningshen, (2010) 5 SCC<br />
<br />
<br />
115, wherein this Court recorded its conclusion in the following<br />
<br />
<br />
paragraphs:<br />
<br />
<br />
<br />
"18. CBI in its capacity as the investigating agency has clearly<br />
<br />
conveyed the risks associated with conducting the trial in Manipur.<br />
<br />
<br />
24<br />
<br />
<br />
<br />
Even if one were to concede that the apprehension about social unrest<br />
<br />
and communal tension between the Meteies and the Nagas were a little<br />
<br />
exaggerated, there can be no quarrel that there exists a real possibility<br />
<br />
of a physical attack on the respondent-accused as long as he is in<br />
<br />
Manipur. It was precisely because of this consideration that the<br />
<br />
respondent-accused is being held in custody at a distant location in<br />
<br />
Delhi. Furthermore, conducting the trial in Manipur could also<br />
<br />
reasonably lead to more friction in the State of Manipur which in turn<br />
<br />
could affect the trial proceedings themselves.<br />
<br />
<br />
<br />
19. We must especially take note of the fact that the killings took place<br />
<br />
in a region where opinions are sharply divided on the justness of the<br />
<br />
causes espoused by NSCN(IM) and that the respondent-accused is a<br />
<br />
member of the same organisation. This creates a risk of intimidation of<br />
<br />
the witnesses as well as undue prejudice seeping into the minds of<br />
<br />
those who may be involved in the legal proceedings in different<br />
<br />
capacities.<br />
<br />
<br />
<br />
20. In this scenario, in our considered view it would be expedient in the<br />
<br />
ends of justice to conduct the trial in Delhi. We accordingly direct that<br />
<br />
the impugned cases be transferred from the Court of the Chief Judicial<br />
<br />
Magistrate, Ukhrul, Manipur to a Designated CBI Court (manned by a<br />
<br />
judicial officer of the rank of a Sessions Judge) in New Delhi."<br />
<br />
(emphasis is ours)<br />
<br />
<br />
The scope of jurisdiction under Section 406 of the Code of Criminal <br />
<br />
<br />
Procedure was also considered by this Court in Surendra Pratap Singh v.<br />
<br />
<br />
State of Uttar Pradesh, (2010) 9 SCC 475, wherein this Court held as<br />
<br />
<br />
under:<br />
<br />
<br />
<br />
14. Mr Gupta submitted that except for wild allegations made against<br />
<br />
the investigating authorities and the officials of the State Government,<br />
<br />
nothing substantial has been disclosed from the submissions made on<br />
<br />
behalf of the petitioner which would indicate that either the investigating<br />
<br />
agencies or the prosecuting agency was in any way biased in favour of<br />
<br />
Respondent 2. On the other hand, upon a fair investigation undertaken<br />
<br />
by two separate agencies, which included CB CID, it had been found<br />
<br />
that Respondent 2 was not in any way connected with the alleged<br />
<br />
incident of 24-6-2005. In fact, at the relevant time, the party to which he<br />
<br />
<br />
25<br />
<br />
<br />
<br />
belonged was not in power which would enable him to influence the<br />
<br />
course of investigation. Mr. Gupta submitted that no interference was<br />
<br />
called for with the investigation reports submitted both by the local<br />
<br />
police as also by CB CID, and the transfer petition was, therefore, liable <br />
<br />
to be dismissed.<br />
<br />
<br />
<br />
15. We have carefully considered the submissions made on behalf of<br />
<br />
the respective parties. While the arrest of Respondent 2 may have been<br />
<br />
stayed by the High Court, the circumstances in which the incident had<br />
<br />
occurred on 24-6-2005 coupled with the fact that Respondent 2 was<br />
<br />
returned as an MLA in the same elections, does to some extent justify<br />
<br />
the apprehension of the petitioner that the perspective of the<br />
<br />
prosecution may become polluted. There is no getting away from the<br />
<br />
fact that Respondent 2 is an MLA and that too belonging to the present <br />
<br />
dispensation. <b><span style="color: #660000; font-size: large;">Since justice must not only be done but must also seem to be done,</span></b> this case, in our view, is an example where the said idiomatic expression is relevant.<br />
<br />
<br />
<br />
16. It would not be proper on our part to dilate on this question further<br />
<br />
during the pendency of the trial. We are, however, of the view that in<br />
<br />
order to do fair justice to all the parties, the trial should be held outside<br />
<br />
the State of Uttar Pradesh and, accordingly, we allow the transfer<br />
<br />
petition and direct that the matter be transferred to the High Court of<br />
<br />
Madhya Pradesh which shall decide the place and the court before<br />
<br />
which the trial may be conducted." (emphasis is ours)<br />
<br />
<br />
The issue in hand was also examined by this Court in Nahar Singh Yadav<br />
<br />
<br />
v. Union of India, (2011) 1 SCC 307. Relevant extract including the<br />
<br />
<br />
parameters delineated by this Court which ought to be kept in mind while<br />
<br />
<br />
considering an application for transfer and the consideration of the factual<br />
<br />
<br />
matrix involved in the controversy dealt with are being extracted<br />
<br />
<br />
hereunder:<br />
<br />
<br />
<br />
<span style="color: magenta; font-size: large;"><b> "21. Reverting to the main issue, a true and fair trial is sine qua non of Article 21 of the Constitution, which declares that:</b></span><br />
<span style="color: magenta; font-size: large;"><b><br /></b></span>
<span style="color: magenta; font-size: large;"><b> "21. Protection of life and personal liberty.--No person shall be deprived of his `life' or `personal liberty' except according to procedure established by law."</b></span><br />
<br />
<b><span style="color: blue; font-size: large;">It needs no emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. Therefore, as and when it is shown that the public confidence in the fairness of a particular trial is likely to be seriously undermined, for any reason whatsoever, Section 406 CrPC empowers this Court to transfer any case or appeal from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal</span></b><br />
<b><span style="color: blue; font-size: large;">court of equal or superior jurisdiction subordinate to another High Court, to meet the ends of justice.</span></b><br />
<br />
<br />
<b>22. It is, however, the trite law that power under Section 406 CrPC has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the</b><br />
<b>entire State judiciary but also the prosecuting agency, which would include the Public Prosecutors as well.</b><br />
<b><br /></b>
<b><br /></b>
<b>XXX XXX XXX XXX</b><br />
<b><br /></b>
<b><br /></b>
<b><br /></b>
<b>29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:</b><br />
<br />
<span style="color: #741b47;"><b>(i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of</b></span><br />
<span style="color: #741b47;"><b>miscarriage of justice due to the lackadaisical attitude of the prosecution;</b></span><br />
<span style="color: #741b47;"><b><br /></b></span>
<span style="color: #741b47;"><b> (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;</b></span><br />
<span style="color: #741b47;"><b><br /></b></span>
<span style="color: #741b47;"><b> (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses;</b></span><br />
<span style="color: #741b47;"><b><br /></b></span>
<span style="color: #741b47;"><b> (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial because of the accusations made and the nature of the crime committed by the accused; and</b></span><br />
<span style="color: #741b47;"><b><br /></b></span>
<span style="color: #741b47;"><b> (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice.</b></span><br />
<br />
<br />
<br />
30. Having considered the rival claims of both the parties on the<br />
<br />
touchstone of the aforestated broad parameters, we are of the view<br />
<br />
that the apprehension entertained by CBI that the trial of the case at<br />
<br />
Ghaziabad may not be fair, resulting in miscarriage of justice, is<br />
<br />
misplaced and cannot be accepted. From the material on record, we<br />
<br />
are unable to draw any inference of a reasonable apprehension of<br />
<br />
bias nor do we think that an apprehension based on a bald<br />
<br />
allegation that since the trial Judge and some of the named accused<br />
<br />
had been close associates at some point of time and that some of<br />
<br />
the witnesses are judicial officers, the trial at Ghaziabad would be<br />
<br />
biased and not fair, undermining the confidence of the public in the<br />
<br />
system. <span style="color: #cc0000; font-size: large;"><b>While it is true that Judges are human beings, not automatons, but it is imperative for a judicial officer, in whatever capacity he may be functioning, that he must act with the belief that he is not to be guided by any factor other than to ensure that he shall render a free and fair decision, which according to his conscience is the right one on the basis of materials placed before him. There is no exception to this imperative.</b></span> Therefore, we are not<br />
disposed to believe that either the witnesses or the Special Judge<br />
<br />
will get influenced in favour of the accused merely because some of<br />
<br />
them happen to be their former colleagues. As already stated,<br />
<br />
acceptance of such allegation, without something more substantial,<br />
<br />
seriously undermines the credibility and the independence of the<br />
<br />
entire judiciary of a State. Accordingly, we outrightly reject this<br />
<br />
ground urged in support of the prayer for transfer of the trial from<br />
<br />
Ghaziabad.<br />
<br />
<br />
<br />
31. As regards the plea that the Court of Special Judge, CBI,<br />
<br />
Ghaziabad is already heavily overburdened, in our opinion, that is<br />
<br />
again not a ground for transfer of trial. If at all the said court is <br />
<br />
overburdened, it will be open to the High Court to request the State<br />
<br />
Government to create another court of a Special Judge at<br />
<br />
Ghaziabad and we are confident that having regard to the nature of<br />
<br />
the case and the serious concern already shown by the State<br />
<br />
Government by issuing Notification dated 10-9-2008 promptly and<br />
<br />
expeditiously, the State Government will take appropriate steps in<br />
<br />
that behalf so that the guilty are brought to book at the earliest not<br />
<br />
only in this case but in other sensitive trials, stated to be pending in<br />
<br />
that court, as well.<br />
<br />
<br />
32. For the aforestated reasons, as at present, we do not find any<br />
<br />
merit in the request of CBI for transfer of the trial from Ghaziabad to<br />
<br />
any other place. Accordingly, the prayer is declined. The trial court is<br />
<br />
directed to proceed with the case expeditiously." <br />
<br />
(emphasis is ours)<br />
<br />
<br />
The issue of transfer of proceedings under Section 406 of the Code of<br />
<br />
<br />
Criminal Procedure was examined by this Court in Vikas Kumar<br />
<br />
<br />
Roorkewal v. State of Uttarakhand, (2011) 2 SCC 178, wherein this Court<br />
<br />
<br />
observed as under:<br />
<br />
<br />
<br />
"23. It is true that there must be reasonable apprehension on the part of the party to a case that justice may not be done and mere allegation that there is apprehension that justice will not be done cannot be the basis for transfer. However, there is no manner of doubt that the reasonable apprehension that there would be failure of justice and acquittal of the accused only because the witnesses are threatened is made out by the petitioner.<br />
<br />
<br />
24. This Court, on various occasions, had opportunity to discuss the<br />
<br />
importance of fair trial in criminal justice system and various<br />
<br />
circumstances in which a trial can be transferred to dispense fair and<br />
<br />
impartial justice. It would be advantageous to notice a few decisions<br />
<br />
of this Court with regard to the scope of Section 406 of the Code of<br />
<br />
Criminal Procedure.<br />
<br />
<br />
XXX XXX XXX XXX<br />
<br />
<br />
29. From the averments made in the petition it is evident that the<br />
<br />
accused belong to a powerful gang operating in U.P. from which the<br />
<br />
State of Uttarakhand is carved out. The petitioner has been able to<br />
<br />
show the circumstances from which it can be reasonably inferred<br />
<br />
that it has become difficult for the witnesses to safely depose truth<br />
<br />
because of fear of being haunted by those against whom they have<br />
<br />
to depose. The reluctance of the witnesses to go to the court at<br />
<br />
Haridwar in spite of receipt of repeated summons is bound to<br />
<br />
hamper the course of justice. <b><span style="color: red;">If such a situation is permitted to continue, it will pave way for anarchy, oppression, etc., resulting in breakdown of criminal justice system. In order to see that the incapacitation of the eyewitnesses is removed and justice triumphs, it has become necessary to grant the relief claimed in the instant</span></b><br />
<b><span style="color: red;">petition.</span></b> On the facts and in the circumstances of the case this Court is of the opinion that interest of justice would be served if transfer of the case from Haridwar to Delhi is ordered."<br />
<br />
(emphasis is ours)<br />
<br />
<br />
Last of all reference may be made to the decision rendered by this Court in<br />
<br />
<br />
Jahid Shaikh v. State of Gujarat, (2011) 7 SCC 762. The observations<br />
<br />
<br />
made by this Court with reference to Section 406 of the Code of Criminal<br />
<br />
<br />
Procedure, are placed below:<br />
<br />
<br />
<br />
"39. However, such a ground, though of great importance, cannot be<br />
<br />
the only aspect to be considered while deciding whether a criminal<br />
<br />
trial could be transferred out of the State which could seriously affect<br />
<br />
the prosecution case, considering the large number of witnesses to<br />
<br />
<br />
30<br />
<br />
<br />
<br />
be examined to prove the case against the accused. <span style="color: red;"><b>The golden thread which runs through all the decisions cited on behalf of the parties, is that justice must not only be done, but must also be seen to be done.</b></span> If the said principle is disturbed, fresh steps can always be taken under Section 406 CrPC and Order 36 of the Supreme Court Rules, 1966 for the same reliefs.<br />
<br />
<br />
<br />
40. The offences with which the accused have been charged are of a very serious nature, but except for an apprehension that justice would not be properly administered, there is little else to suggest that the charged atmosphere which existed at the time when the offences were alleged to have been committed, still exist and was likely to prejudice the accused during the trial. <span style="color: purple;"><b>All judicial officers cannot be tarred with the same brush and denial of a proper opportunity at the stage of framing of charge, though serious, is not insurmountable. The accused have their remedies elsewhere and the prosecution still has to prove its case.</b></span><br />
<br />
<br />
<br />
41. As mentioned earlier, the communally surcharged atmosphere<br />
<br />
which existed at the time of the alleged incidents, has settled down<br />
<br />
considerably and is no longer as volatile as it was previously. The<br />
<br />
Presiding Officers against whom bias had been alleged, will no<br />
<br />
longer be in charge of the proceedings of the trial. The conditions in<br />
<br />
Gujarat today are not exactly the same as they were at the time of<br />
<br />
the incidents, which would justify the shifting of the trial from the<br />
<br />
State of Gujarat. On the other hand, in case the sessions trial is<br />
<br />
transferred outside the State of Gujarat for trial, the prosecution will<br />
<br />
have to arrange for production of its witnesses, who are large in<br />
<br />
number, to any venue that may be designated outside the State of<br />
<br />
Gujarat.<br />
<br />
42. At the present moment, the case for transfer of the trial outside<br />
<br />
the State of Gujarat is based on certain incidents which had<br />
<br />
occurred in the past and have finally led to the filing of charges<br />
<br />
against the accused. The main ground on which the petitioners have<br />
<br />
sought transfer is an apprehension that communal feelings may,<br />
<br />
once again, raise its ugly head and permeate the proceedings of the<br />
<br />
trial if it is conducted by the Special Judge, Ahmedabad. However, <br />
<br />
such an allegation today is more speculative than real, <span style="color: #073763;"><b>but in order to dispel such apprehension, we also keep it open to the petitioners that in the event the apprehension of the petitioners is proved to be real during the course of the trial, they will be entitled to move afresh before this Court for the relief sought for in the present transfer petition." </b></span> (emphasis is ours)<br />
<br />
<br />
It is in light of the parameters recorded by this Court that we shall <br />
<br />
<br />
endeavour to determine the veracity of the prayer made by the petitioners<br />
<br />
<br />
for transfer of proceedings from the court of the Special Judicial Magistrate<br />
<br />
<br />
(CBI), Ghaziabad, U.P., to a court of competent jurisdiction in Delhi/New<br />
<br />
<br />
Delhi. <br />
<br />
<br />
15. First and foremost we shall deal with the ground of inconvenience<br />
<br />
<br />
raised by the petitioners for seeking transfer of proceedings. In so far as<br />
<br />
<br />
the instant issue is concerned, besides the judgments referred to<br />
<br />
<br />
hereinabove, reference may be made to the decision rendered in Bhairu<br />
<br />
<br />
Ram v. Central Bureau of Investigation, (2010) 7 SCC 799, wherein the<br />
<br />
<br />
issue of inconvenience was considered, and this Court held as under:<br />
<br />
<br />
<br />
"10. In the case on hand, except convenience, the petitioners have<br />
<br />
not pressed into service any other ground for transfer. In fact, Mr<br />
<br />
P.H. Parekh, informed this Court that the petitioners are willing to<br />
<br />
attend the proceedings at Delhi, if the case is transferred to Special<br />
<br />
Court, CBI, Delhi.<br />
<br />
<br />
<br />
11. Mr H.P. Raval, learned Additional Solicitor General, after taking<br />
<br />
us through specific averments made in the counter-affidavit filed on<br />
<br />
behalf of Respondents 1 and 2 (CBI), submitted that the main<br />
<br />
accused Shri B.R. Meena is a very influential person in the State of<br />
<br />
Rajasthan and there is strong apprehension that due to influence of<br />
<br />
Shri B.R. Meena, there would be no fair trial at Jaipur or any other<br />
<br />
place in the State of Rajasthan. He also pointed out that the Court of<br />
<br />
Special Judge, CBI at Greater Mumbai has ample jurisdiction to try<br />
<br />
this case because various movable properties have been found in<br />
<br />
Mumbai and the main accused, Shri B.R. Meena, was posted in<br />
<br />
Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and<br />
<br />
<br />
32<br />
<br />
<br />
<br />
this is the period during which most of the properties were allegedly<br />
<br />
acquired by him and his family members.<br />
<br />
<br />
<br />
12. We have already adverted to the fact that against the main<br />
<br />
accused Shri B.R. Meena, (IRS 1977), Commissioner of Income<br />
<br />
Tax, Income Tax Appellate Tribunal, Mumbai, a case has been<br />
<br />
registered on 29-9-2005 under Section 13(2) read with Section 13(1)<br />
<br />
(e) of the Prevention of Corruption Act, 1988 for possession of<br />
<br />
assets in his own name and in the name of his family members to<br />
<br />
the extent of Rs 43,29,394 which were disproportionate to his known<br />
<br />
sources of income and could not be satisfactorily accounted for. It<br />
<br />
further shows that Respondent 3, during the check period i.e. 1-4-<br />
<br />
1993 to 4-10-2005, acquired assets disproportionate to his known<br />
<br />
sources of income to the extent of Rs 1,39,39,025.<br />
<br />
<br />
<br />
13. The petitioners have been charge-sheeted for commission of<br />
<br />
offences under Section 109 read with Section 193 IPC read with<br />
<br />
Section 13(2) read with Section 13(1)(e) of the Prevention of<br />
<br />
Corruption Act, 1988 for having actively aided and abetted<br />
<br />
Respondents 3 to 4 by fabricating false evidence through<br />
<br />
preparation of false agreements to sell with the object to<br />
<br />
justify/explain the huge cash recoveries from the residential<br />
<br />
premises of Respondent 3. It further reveals that the petitioners<br />
<br />
entered into false transactions with Respondent 3 showing receipt of<br />
<br />
cash amounts against alleged purchase of immovable properties<br />
<br />
from him. The stamp papers were purchased against (sic after)<br />
<br />
registration of case and false agreements to sell were prepared in<br />
<br />
connivance with each other.<br />
<br />
<br />
<br />
14. A perusal of the charge-sheet containing all these details clearly<br />
<br />
shows that witnesses to be examined are not only from Jaipur,<br />
<br />
Rajasthan, but also from various other places including Mumbai.<br />
<br />
Though the petitioners may have a little inconvenience, the mere<br />
<br />
inconvenience may not be sufficient ground for the exercise of<br />
<br />
power of transfer but it must be shown that the trial in the chosen<br />
<br />
forum will result in failure of justice.<br />
<br />
<br />
<br />
15. We have already pointed out that except the plea of<br />
<br />
inconvenience on the ground that they have to come all the way<br />
<br />
from Rajasthan no other reason was pressed into service. Even, the<br />
<br />
request for transfer to Delhi cannot be accepted since it would not<br />
<br />
be beneficial either to the petitioners or to the prosecution. In fact,<br />
<br />
<br />
33<br />
<br />
<br />
<br />
the main accused, Respondents 3 and 4 have not filed any petition<br />
<br />
seeking transfer. In such circumstances, the plea of the petitioners<br />
<br />
for transfer of the case from the Court of Special Judge, CBI,<br />
<br />
Greater Mumbai to Special Judge, CBI, Jaipur on the ground of<br />
<br />
inconvenience cannot be accepted." (emphasis is<br />
<br />
ours)<br />
<br />
<br />
The ground of inconvenience for transfer again came up for consideration<br />
<br />
<br />
before this Court in Jyoti Mishra v. Dhananjaya Mishra, (2010) 8 SCC 803,<br />
<br />
<br />
wherein the Court observed as follows:<br />
<br />
<br />
<br />
"5. <b><span style="color: red;">It is true that in cases of dissolution of marriage, restitution of conjugal rights or maintenance, this Court shows much indulgence to the wife and ordinarily transfers the case to a place where it would be more convenient for the wife to prosecute the proceedings</span></b>. But a criminal case is on a somewhat different footing. The accused may not be able to attend the court proceedings at Indore for many reasons, one of which may be financial constraints, but the consequences of non-appearance of the accused before the Indore Court would be quite drastic.<br />
<br />
<br />
6. Having regard to the consequences of non-appearance of the accused in a criminal trial, we are loath to entertain the petitioner's prayer for transfer.<span style="color: #3d85c6; font-size: large;"><b> In a criminal proceeding, the right of the accused to a fair trial and a proper opportunity to defend himself cannot be ignored for the convenience of the complainant simply because she happens to be the estranged wife."</b></span> (emphasis is ours)<br />
<br />
<br />
From the two judgments, referred to hereinabove, it clearly emerges that<br />
<br />
<br />
inconvenience cannot be a valid basis for transfer of "criminal proceedings"<br />
<br />
<br />
from one court to another under Section 406 of the Code of Criminal<br />
<br />
<br />
Procedure. Be that as it may, we are of the view that the instant <br />
<br />
<br />
contention advanced at the hands of the learned counsel for the petitioner<br />
<br />
<br />
is wholly frivolous. According to the factual position depicted by the<br />
<br />
<br />
learned counsel for the petitioners themselves, the distance between<br />
<br />
<br />
34<br />
<br />
<br />
<br />
Noida and Ghaziabad is 35 kms. whereas the distance between Noida and<br />
<br />
<br />
Delhi is 17 kms. Based on a simple mathematical conclusion the distance<br />
<br />
<br />
between Delhi and Ghaziabad must be approximately 52 kms.<br />
<br />
<br />
(35+17=52). It is ununderstandable how a plea of inconvenience can be<br />
<br />
<br />
based to avoid travelling a distance of merely 52 kms. Even if it is<br />
<br />
<br />
assumed that a couple of hours would be consumed for travelling to and<br />
<br />
<br />
fro (from Delhi to Ghaziabad and back) the inconvenience would not be<br />
<br />
<br />
such as can be the basis for seeking transfer. <span style="color: #cc0000;"><b>Jurisdiction of a court to conduct criminal prosecution is based on the provisions of Code of Criminal Procedure.</b></span> <span style="color: magenta; font-size: large;"><b>Often either the complainant or the accused have to</b></span><br />
<span style="color: magenta; font-size: large;"><b>travel across an entire State to attend to criminal proceedings, before a jurisdictional court. In some cases to reach the venue of the trial court, a complainant or an accused may have to travel across several States. Likewise, witnesses too may also have to travel long distances, in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another, on the basis of time taken to travel to the court conducting the criminal trial is accepted, the provisions contained in the Criminal Procedure Code earmarking the courts having jurisdiction to try cases would be rendered meaningless. Convenience or inconvenience are inconsequential so far as the mandate of law is concerned. </b></span> The instant plea therefore, deserves outright rejection.<br />
<br />
<br />
35<br />
<br />
<br />
<br />
16. In so far as the second contention advanced at the hands of the<br />
<br />
<br />
counsel for the petitioner is concerned, transfer has been sought on the<br />
<br />
<br />
issue of threatened personal security. The petitioners believed that their<br />
<br />
<br />
personal security is at risk on account of a vicious attack with a cleaver's<br />
<br />
<br />
knife on Dr. Rajesh Talwar, which resulted in his having suffered grievous <br />
<br />
<br />
injuries not only on his face but on both his hands as well. The injuries are<br />
<br />
<br />
stated to have rendered Dr. Rajesh Talwar handicapped for more than two<br />
<br />
<br />
months. The aforesaid incident has allegedly had the effect of making<br />
<br />
<br />
both the petitioners scared to attend any court-proceedings at the<br />
<br />
<br />
Ghaziabad court-complex. The case set up by the petitioners is, that the<br />
<br />
<br />
incident in question has completely shaken the confidence of the<br />
<br />
<br />
petitioners, and that, it is unsafe for the petitioners to appear before the<br />
<br />
<br />
Special Judicial Magistrate (CBI), Ghaziabad, U.P. to defend themselves.<br />
<br />
<br />
Whilst we are of the view that all preventive measures should have been in<br />
<br />
<br />
place to avoid any assault of the nature which Dr.Rajesh Talwar <br />
<br />
<br />
encountered on 25.1.2011, we appreciate the impossibility of the aforesaid<br />
<br />
<br />
task specially when the attacker is a person suffering from a mental<br />
<br />
<br />
disability. <b><span style="font-size: large;"> Such an attack cannot be deemed to have been aimed at disabling the petitioners to defend themselves</span></b>. The physical assault<br />
<br />
<br />
suffered by the petitioner was clearly unrelated to their court-proceedings.<br />
<br />
<br />
In the aforesaid view of the matter, the incident relied upon by the learned<br />
<br />
<br />
counsel for the petitioners to seek transfer of proceedings by invoking<br />
<br />
<br />
36<br />
<br />
<br />
<br />
Section 406 of the Code of Criminal Procedure, is clearly misconceived. <br />
<br />
<br />
Even otherwise, the counter affidavit filed on behalf of the CBI is<br />
<br />
<br />
categorical on the issue in hand, to the effect that the Sessions Judge,<br />
<br />
<br />
Ghaziabad, has personally reviewed the security system in the entire<br />
<br />
<br />
court-premises, security/police personnel have been deployed so that no<br />
<br />
<br />
untoward incident occurs in future. Additionally, the venue of the court-<br />
<br />
<br />
proceedings of the petitioners has been shifted to a new building which<br />
<br />
<br />
has proper boundary walls on all sides, with only one small entrance. The<br />
<br />
<br />
building where the petitioners are required to attend the court proceedings<br />
<br />
<br />
is therefore totally safe. In the counter affidavit filed by the CBI it has been <br />
<br />
<br />
expressed, that whenever the case of the petitioners' is to be heard,<br />
<br />
<br />
adequate police force would be deployed by the local administration. The<br />
<br />
<br />
aforesaid undertaking (expressed in the counter affidavit, filed on behalf of<br />
<br />
<br />
the CBI has been endorsed by the learned counsel representing the State<br />
<br />
<br />
of Uttar Pradesh. Even though it has been pointed out that the petitioners<br />
<br />
<br />
have not moved any application either to the Special Judicial Magistrate<br />
<br />
<br />
(CBI), Ghaziabad, U.P. or to the police for seeking protection; we are<br />
<br />
<br />
assured, if such a request is made at the hands of the petitioners, the<br />
<br />
<br />
same will be duly considered in accordance with law. We have extracted<br />
<br />
<br />
a relevant part of the affidavit dated 24.2.2012 filed by Shri Praveen Kumar<br />
<br />
<br />
Rai, Advocate in paragraph 8 hereinabove. While perusing the aforesaid<br />
<br />
<br />
affidavit we noticed reference therein to an order dated 25.1.2011 passed<br />
<br />
<br />
37<br />
<br />
<br />
<br />
in respect of the proceedings pending before the Special Judicial<br />
<br />
<br />
Magistrate (CBI), Ghaziabad, U.P. While dealing with the contention in<br />
<br />
<br />
hand, it is necessary to place on record the aforesaid order dated<br />
<br />
<br />
25.1.2011, the same is accordingly being extracted hereunder:-<br />
<br />
<br />
"Under the circumstances seeing the sensitivity of the case, by<br />
<br />
invoking inherent provisions under section 327 Cr.P.C. the court<br />
<br />
feels it in the interest of justice that during the proceedings of the <br />
<br />
instant case no person shall be allowed to enter in the courtroom<br />
<br />
except for the parties to the case and their respective counsels.<br />
<br />
Sd/-<br />
<br />
Special Judicial Magistrate<br />
<br />
(CBI),Ghaziabad"<br />
<br />
<br />
<br />
<br />
The aforesaid order reveals the seriousness of the presiding officer<br />
<br />
<br />
concerned. So as to ensure not only the safety of the petitioners but also<br />
<br />
<br />
a free and fair trial, keeping in mind the sensitive nature of the case, an <br />
<br />
<br />
appropriate order has already been passed by the presiding officer. We<br />
<br />
<br />
have no doubt in our mind, that the order dated 25.1.2011 shall be<br />
<br />
<br />
enforced in letter and in spirit. In case of breach thereof we would expect<br />
<br />
<br />
the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take appropriate<br />
<br />
<br />
steps including coercive measures if necessary, to enforce the same. The<br />
<br />
<br />
majesty of law must be maintained at all costs. In the background of the<br />
<br />
<br />
aforesaid developments, we are of the view that the proceedings being<br />
<br />
<br />
conducted at the court-complex at Ghaziabad, cannot be termed as<br />
<br />
<br />
unsafe, so as to be considered as threatening the personal security of the<br />
<br />
<br />
petitioners. As such, we find no merit in the prayer for transfer of<br />
<br />
<br />
38<br />
<br />
<br />
<br />
proceedings from Ghaziabad to Delhi/New Delhi even on the ground of<br />
<br />
<br />
personal security.<br />
<br />
<br />
17. The third ground raised by the petitioners, noticed in paragraph 7 hereinabove, needs no adjudication at our hands on account of the fact that the same was not pressed by the learned counsel representing the<br />
petitioners during the course of hearing. The details depicting the third ground have been noticed only because the learned Senior Counsel representing the respondents insisted on inviting our attention to the fact that the petitioners had expressed baseless insinuations against the presiding officer of the court. Based on certain insinuations the petitioners<br />
had asserted, that they were not likely to get justice, as the concerned court was proceeding in the matter with a pre-determined mind. The insinuations levelled by the petitioners are based on an order passed by the Special Judicial Magistrate (CBI), Ghaziabad, U.P. dated 28.2.2011. Learned counsel for the petitioners advisedly refrained from pressing the instant ground during the course of hearing. <span style="color: magenta;"><b> Even raising such a ground in the pleadings, to state the least, can certainly be termed as most irresponsible.</b></span> The impertinence of the petitioners in the instant case, is magnified manifold because the order dated 28.2.2011 was assailed by the petitioners before the High Court of Judicature at Allahabad, but the challenge failed. In this view of the matter, the insinuations can also be stated to have been aimed even at the High Court. <span style="color: blue; font-size: large;">Although we could have initiated action against the petitioners, yet in the peculiar facts and circumstances of this case, we refrain ourselves from doing so. However, we consider it just and appropriate to warn the petitioners from any such impertinence in future.</span><br />
<br />
<br />
18. In so far as the last contention advanced at the hands of the learned<br />
<br />
<br />
counsel for the petitioners is concerned, the same was based on the<br />
<br />
<br />
affidavit of Shri Praveen Kumar Rai, Advocate dated 24.2.2012, as also,<br />
<br />
<br />
an application filed by the said counsel on 4.2.2012 (Annexure A-3 with the<br />
<br />
<br />
affidavit, independently extracted hereinabove). We find merit in the<br />
<br />
<br />
contention advanced at the hands of the learned Senior Counsel<br />
<br />
<br />
representing the respondents, that the application dated 4.2.2012<br />
<br />
<br />
(Annexure A-3) as also the affidavit of Shri Praveen Kumar Rai, Advocate,<br />
<br />
<br />
dated 24.2.2012 are vague, and as such, cannot be the basis of a<br />
<br />
<br />
justifiable claim for supporting a prayer for transfer of proceedings, under<br />
<br />
<br />
Section 406 of the Code of Criminal Procedure. As pointed out by the<br />
<br />
<br />
learned counsel for the respondents, even though allegations have been<br />
<br />
<br />
levelled in the application (dated 4.2.2012) as well as the affidavit (dated <br />
<br />
<br />
24.2.2012), that the petitioners counsel were prevented from discharging<br />
<br />
<br />
their responsibility appropriately; neither the application nor the affidavit<br />
<br />
<br />
disclose what the petitioners counsel were prevent from, as also, the<br />
<br />
<br />
identity of those responsible. Therefore, the last contention, in our<br />
<br />
<br />
40<br />
<br />
<br />
<br />
considered view, is also devoid of any merit and as such deserves<br />
<br />
<br />
rejection.<br />
<br />
<br />
19. For the reasons stated hereinabove, we find no merit in the Transfer <br />
<br />
<br />
Petitions separately filed by Dr. Rajesh Talwar and Dr. Mrs. Nupur Talwar.<br />
<br />
<br />
It is not possible in the facts and circumstances of this case for us to<br />
<br />
<br />
conclude, that the petitioners will be deprived of a free and fair trial at<br />
<br />
<br />
Ghaziabad. We are also satisfied that there is no well-substantiated<br />
<br />
<br />
apprehension, that justice will not be dispensed to the petitioners<br />
<br />
<br />
impartially, objectively and without any bias. It is also not possible for us to<br />
<br />
<br />
accept that the physical assault on Dr. Rajesh Talwar on 25.1.2011 at the<br />
<br />
<br />
hands of a psychopath can be a valid basis for transfer of the present<br />
<br />
<br />
proceedings from Ghaziabad to Delhi/New Delhi. In view of the measures<br />
<br />
<br />
adopted by the Sessions Judge, the CBI and the State Administration<br />
<br />
<br />
towards security arrangements in the court-premises generally, and also,<br />
<br />
<br />
the special arrangements which the respondents have undertaken to<br />
<br />
<br />
make, with particular reference to the petitioners, we are satisfied that<br />
<br />
<br />
justice will be dispensed to the petitioners in an atmosphere shorn of any<br />
<br />
<br />
fear or favour. We have extracted the order passed by the Special <br />
<br />
<br />
Judicial Magistrate (CBI), Ghaziabad, U.P. dated 25.1.2011 in paragraph<br />
<br />
<br />
16 hereinabove. We wish to reiterate, that the order dated 25.1.2011 shall<br />
<br />
<br />
be enforced in letter and in spirit. In case of breach thereof we would<br />
<br />
<br />
expect the Special Judicial Magistrate (CBI), Ghaziabad, U.P. to take<br />
<br />
<br />
41<br />
<br />
<br />
<br />
appropriate steps including coercive measures if necessary, to enforce the<br />
<br />
<br />
same. The majesty of law must be maintained at all costs. We have no<br />
<br />
<br />
doubt, that the basis on which the petitioners are seeking transfer of<br />
<br />
<br />
proceedings are just speculative and unjustified apprehensions based<br />
<br />
<br />
interalia on vague and non-specific allegations. The instant Transfer<br />
<br />
<br />
Petitions are accordingly dismissed. We also wish to caution the<br />
<br />
<br />
petitioners, from making any irresponsible insinuations with reference to<br />
<br />
<br />
court-proceedings. The proper course would be, to assail before a<br />
<br />
<br />
superior court, any order which may not be to the satisfaction of the<br />
<br />
<br />
petitioners, in accordance with law.<br />
<br />
<br />
<br />
<br />
..................................J.<br />
<br />
(B.S. Chauhan)<br />
<br />
<br />
<br />
<br />
..................................J.<br />
<br />
(Jagdish Singh Khehar)<br />
<br />
New Delhi;<br />
<br />
March 2, 2012<br />
<div>
<br /></div>
</div>
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