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Criminal Procedure Code, 1973 — Sections 432 & 433 — Remission of minimum sentence

October 16th, 2013

Criminal Procedure Code, 1973 — Sections 432 & 433 — Remission of minimum sentence — Impermissibility of — Held, minimum sentence provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the Cr.PC.

(Para 35)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Remission of sentence in rape cases — Held, in the event of State invoking its powers under Section 432 or 433 of Cr.PC., the sentence under Section 376 of IPC shall not be remitted or commuted before seven years of imprisonment — Penal Code, 1860 — Section 376 — Remission of sentence in rape cases.

(Para 36)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 354(3) & 366 to 371 — Confirmation of death sentence by High Court — Reference of special reasons for, Requirement of — Held, High Court must refer to the special reasons found by the Sessions Court for inclusion of the case in the rarest of rare category.

Bachan Singh vs. State of Punjab, (1980)2 SCC 684, Machhi Singh and Others vs. State of Punjab, (1983)3 SCC 470, Shankar Kisanrao Khade vs. State of Maharashtra, (2013)5 SCC 546, State of Uttar Pradesh vs. Sattan alias Satyendra and Others, (2009)4 SCC 736 Mahesh s/o Ram Narain and Others vs. State of Madhya Pradesh, (1987)3 SCC 80 & Devender Pal Singh vs. State of NCT of Delhi and Another, (2002)5 SCC 234, Referred.

(Para 24)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 366 to 371 — Confirmation of death sentence by High Court — Mandatory requirements for — Discussed.

Kunal Majumdar vs. State of Rajasthan, (2012)9 SCC 320, Referred.

(Para 22)

HELD: These provisions lay down the detailed procedure on confirmation of death sentence. The following are the mandatory requirements:

i) Death Reference shall be heard by a Bench of minimum two Judges. The Chief Justice being the master of roster is free to constitute a Bench of more Judges.

ii) On any point having a bearing on the guilt or innocence of the convicted person, for which there is no clarity, the High Court may,

(a) conduct a further inquiry;

(b) take additional evidence;

(iii) On the basis also of the inquiry or additional evidence, if any, the High Court may,

a) confirm the death sentence; however, in case the convict has filed an appeal, the same has to be disposed of before passing the order of confirmation; and, no order of confirmation shall be passed until the period allowed for filing an appeal has expired.

b) pass any other sentence;

c) annul conviction;

d) convict the accused of any offence which the Court of Sessions would or could have convicted him.

(iv) Amend the charges.

v) Order fresh trial on charges already framed or on amended charges.

vi) May acquit the accused.

vii) In case the Bench is equally divided in opinion, their opinions shall be laid before a third Judge of that Court and the decision will depend on the opinion of the third Judge.

viii) If the third Judge before whom the opinions have been placed is of opinion that the matter should be heard by a larger Bench of Judges, the reference has to be heard by a larger Bench, in view of the requirement under Section 392 of Cr.PC.

(Para 22)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Consideration of mitigating factors — Role of poverty — Held, while considering the mitigating factors, poverty has to be understood in light of whether it was a factor influencing the commission of offence.

Sunil Damodar Gaikwad vs. State of Maharashtra, JT (2013) SC 310, Referred.

(Para 16)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Consideration of mitigating factors — Binding effect of — Held, Court is bound to consider the mitigating factors qua the criminal.

Bachan Singh vs. State of Punjab, (1980)2 SCC 684, Relied on.

(Para 16)

(Para 34)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Punishment — Object and consideration of factors for — Held, punishment has a penological purpose — Reformation, retribution, prevention, deterrence are some of the major factors in that regard.

(Para 35)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376 — Heinous rape of minors followed by murder — Rarest of rare category — Held, heinous rape of minors followed by murder is one such instance of a crime which shocks and repulses the collective conscience of the community and the Court — Such crimes, which shock the collective conscience of the society by creating extreme revulsion in the minds of the people, are to be treated as the rarest of rare category.

Ajitsingh Harnamsingh Gujral vs. State of Maharashtra, (2011)14 SCC 401, Referred.

(Para 15)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Imprisonment for life — Period of — Held, imprisonment for life is till the end of the biological life of the person.

Gopal Vinayak Godse vs. The State of Maharashtra and Others, AIR 1961 SC 600, Relied on.

(Para 31)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Punishment — Life imprisonment without commutation or remission, Requirement of introduction of — Held, it will do well in case a proper amendment under Section 53 of IPC is provided, introducing one more category of punishment-life imprisonment without commutation or remission.

Jagmohan Singh vs. State of U.P., (1973)1 SCC 20, Shri Bhagwan vs. State of Rajasthan, (2001)6 SCC 296, Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra, (2002)2 SCC 35, Ram Anup Singh and Others vs. State of Bihar, (2002)6 SCC 686, Dilip Premnarayan Tiwari and Another vs. State of Maharashtra, (2010)1 SCC 775, Neel Kumar alias Anil Kumar vs. State of Haryana, (2012)5 SCC 766, Swamy Shraddananda (2) alias Murali Manohar Mishra vs. State of Karnataka, (2008)13 SCC 767 & Ranjit Singh alias Roda vs. Union Territory of Chandigarh, (1984)1 SCC 31, Referred.

(Para 31 & 32)

HELD: However, this Court has been, for quite some time, conscious of the liberal approach and sometimes discriminatory too, taken by the States in exercise of their power under Sections 432 and 433 of Cr.PC in remitting or commuting sentences. In Jagmohan Singh vs. State of U.P., (1973)1 SCC 20, this Court had expressed concern about such approach made by the States in remitting life sentences. That led to the amendment in Cr.PC introducing Section 433A by Act 45 of 1978. Under Section 433A of Cr.PC, a sentence of imprisonment for life is imposed for an offence for which death is one of the punishments or where a death sentence is commuted to life under Section 433, he shall not be released unless he has served fourteen years of imprisonment. It appears that the provision has been generally understood to mean that life sentence would only be fourteen years of incarceration. Taking judicial notice of such a trend, this Court has, in cases where imposition of death sentence would be too harsh and imprisonment for life (the way it is understood as above) too inadequate, in several cases, has adopted different methods to ensure that the minimum term of life imprisonment ranges from at least twenty years to the end of natural life.

(Para 31)

State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 307, 147, 148, 149, 120-B r/w Section 34 — Cancellation of bail — Enlargement on bail on strength of High Court order, Non-consideration of parameters of law, Effect of — Rejection of first anticipatory bail application — Second application for anticipatory bail, wherein, single Judge directed petitioner to surrender before the Competent Court and to apply for regular bail — ASJ admitted appellant to bail on imposition of certain conditions — On petition of widow of deceased for modification, High court, set aside the order granting regular bail to appellant/accused — Appeal — Held, single Judge has taken note of certain supervening circumstances to cancel the bail, but the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in M.Cr.C. remaining oblivious of the parameters for grant of bail under Section 439 Cr.P.C. — Appeal disposed of in terms of modification in the order passed by single Judge in M.Cr.C. — Order of ASJ is set aside — Criminal Procedure Code, 1973 — Sections 439 & 438 — Cancellation of bail.

Central Bureau of Investigation v. V. Vijay Sai Reddy, 2013(7) SCALE 15 & Rashmi Rekha Thatoi and another v. State of Orissa and others, (2012)5 SCC 690, Relied on.

(Para 20, 25, 29 & 30)

(Para 26)

(Para 20)

Chaman Lal v. State of U.P., (2004)7 SCC 525, Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010)14 SCC 496 & Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and another, (2012)9 SCC 446, Relied on.

(Para 20)

(Para 29)

Ranjit Singh v. State of Madhya Pradesh [Bench Strength 2], Criminal Appeal No. 1545/2013 (Arising out of S.L.P. (Crl.) No. 7678/2013) (27/09/2013), Criminal Appeal No. 1545/2013 (Arising out of S.L.P. (Crl.) No. 7678/2013) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125(3) — Arrears of maintenance — Application u/S. 125(3) in continuation of earlier applications, Entitlement to — Trial court granted maintenance to appellants, wife and son of respondent from date of filing of the application under Section 125 CrPC — Trial court sentenced respondent to imprisonment due to default in payment of maintenance, on application of appellants — Another miscellaneous application by appellants claiming maintenance before High Court wherein High Court curtailed the entitlement of appellants to maintenance to a period of one year prior to the date of filing of the Crl. M.P. — Appeal — Held, application filed by the appellants under Section 125(3) was in continuation of earlier applications and for subsequent periods of default on the part of the Respondent — Entitlement of appellants to maintenance granted by trial court did not extinguish or limit — Respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition — Appeal allowed.

Kuldip Kaur v. Surinder Singh and Anr., (1989)1 SCC 405, Shantha alias Ushadevi and Another v. B.G. Shivananjappa, (2005)4 SCC 468 & Shahada Khatoon & Ors. v. Amjad Ali & Ors., (1999)5 SCC 672, Relied on.

(Para 7 & 8)

Poongodi v. Thangavel [Bench Strength 2], Criminal Appeal No. 1542/2013 (Arising out of SLP (Crl.) No. 4654/2005) (27/09/2013), Criminal Appeal No. 1542/2013 (Arising out of SLP (Crl.) No. 4654/2005) [Sudhansu Jyoti Mukhopadhaya, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 125(3) — Recovery of maintenance — Failure to take step within one year of entitlement, Availability of remedy — Held, procedure for recovery of maintenance, by construing the same to be a levy of a fine and detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the Court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued — However, in such a situation the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available.

(Para 4)

Poongodi v. Thangavel [Bench Strength 2], Criminal Appeal No. 1542/2013 (Arising out of SLP (Crl.) No. 4654/2005) (27/09/2013), Criminal Appeal No. 1542/2013 (Arising out of SLP (Crl.) No. 4654/2005) [Sudhansu Jyoti Mukhopadhaya, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Promotion — Claim for equal treatment with direct recruits, Voluntary absorption without protection of previous service, Effect of — By impugned judgment, High Court held that Service of Appellants/Rural Development Engineers’ Association in the RD Department before absorption and immediately after the absorption was in a lower post, i.e., Overseer, therefore, they could not be equated with the direct recruits who joined the RD Department as Assistant Engineers — Held, appellants having voluntarily opted to be absorbed in the RD Department, without any protection of their previous service, can not now be permitted to make a grievance that they have not been treated at par with the Direct Recruits — Having given the option to be absorbed in RD Department on the post of Overseer, their claim for absorption as AE is without any legal or factual justification — Dismissed.

(Para 27 28)

Tamil Nadu Rural Development Engineers Association v. Secretary to Government Rural Development Department [Bench Strength 2], Civil Appeal No. 8758/2013 (Arising out of SLP (C.) No. 20986/2007) (27/09/2013), Civil Appeal No. 8758/2013 (Arising out of SLP (C.) No. 20986/2007) [Surinder Singh Nijjar, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Quota rule — Claim to change ratio, Ratio fixed based on cadres strength, Effect of — By impugned judgment, High Court held that Service of Appellants/Rural Development Engineers’ Association in the RD Department before absorption and immediately after the absorption was in a lower post, i.e., Overseer, therefore, they could not be equated with the direct recruits who joined the RD Department as Assistant Engineers — Challenged claiming that promotion on the post of Assistant Executive Engineer ought to be made in the ratio of 1:1 instead of 6:2:1 between AE-direct recruits and AE-promotees, on the basis that direct recruits-respondents are much younger in age — Held, claim is wholly devoid of any merit — Appellants had already spent over 20 years in the Highways Department before their absorption in the RD Department — Therefore, in case the promotions are to be based purely on the basis of seniority, Appellants would never get a change to be promoted on the higher ranks — It is only upon their absorption that they now enjoy a chance of being promoted on the higher posts — Dismissed.

(Para 29)

(Para 30)

(Para 31)

Tamil Nadu Rural Development Engineers Association v. Secretary to Government Rural Development Department [Bench Strength 2], Civil Appeal No. 8758/2013 (Arising out of SLP (C.) No. 20986/2007) (27/09/2013), Civil Appeal No. 8758/2013 (Arising out of SLP (C.) No. 20986/2007) [Surinder Singh Nijjar, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Writ of certiorari — Remand to lower fora despite clear fact finding — Permissibility — Second respondent (now deceased and proceeded through legal heir) claimed that he had made application in prescribed Form-7 to revenue authority to inter his name in the revenue register as tenant cultivator of the land in question which belongs to appellant — On remand of the matter by Writ Court, the Land Tribunal conducted enquiry of the matter on merits and recorded finding that second respondent was neither tenant cultivator, nor he had sent alleged application in Form 7 depicting postal receipt — While allowing writ, High Court again remand the matter to consider whether application was made by second respondent and his application was in the file of records — Division Bench of High Court affirmed it — Held, Writ Court as well as Division Committed error to remand the matter despite clear finding on fact, accordingly set aside the order passed by High Court and order passed by Land Tribunal is restored — Karnataka Land Reforms Act, 1974 — Section 48-A — Practice and Procedure — Writ — Remand to lower fora.

HELD: Thus, it is clear that the Tribunal admitted Form No.7 produced by the 2nd respondent and on an enquiry gave definite finding that the applicant-2nd respondent was not in occupation or cultivation of the suit land as a tenant as on 1st March, 1974 or prior thereto. In view of such finding of the Tribunal it was not open for the learned Single Judge to remand the matter again to the Tribunal to enquire whether Form No.7 is on record or Form No.7 was produced by the 2nd respondent which in fact rendered the order dated 2nd June, 1997 passed by the Tribunal ineffective for no reason. The Division Bench of the High Court also failed to notice the above-said fact and thereby erred in affirming the order passed by the learned Single Judge.

(Para 13)

For the reasons aforesaid, we set aside the impugned order dated 2nd June, 2006 passed by the Division Bench in W.A.No.3836/2005(LR) and order dated 3rd June, 2005 passed by the learned Single Judge in W.P. No.15722/1997, order dated 2nd June, 1997 passed by the Land Tribunal, Dharwad is restored. The appeal is allowed.

(Para 14)

Channabasappa v. State of Karnataka [Bench Strength 2], Civil Appeal No. 8289/2013 (Arising out of SLP (C) No. 14496/2006) (17/09/2013), 2013(11) SCALE 558 [Sudhansu Jyoti Mukhopadhaya, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
CERC (Terms and Conditions for Determination of Tariff) Regulations, 2001 — Regulations 2(5), 1(9) & 1(10) — Additional capitalisation — Exceeded to approved expenditure of project — Allowability — Held, if the actual expenditure exceeds the approved expenditure the excess so incurred can be taken into consideration to the extent the same is allowed either by the Central Electricity Authority or by an appropriate independent agency nominated for the purpose — Electricity (Supply) Act, 1948 — Section 43-A.

HELD: A plain reading of the above makes it manifest that the basis for fixation has to be the “actual capital expenditure” incurred on the completion of the project. But where the actual expenditure exceeds the approved expenditure the excess so incurred can be taken into consideration to the extent the same is allowed by the Central Electricity Authority or an appropriate independent agency nominated for the purpose. This implies that the excess expenditure must go through a process of scrutiny either by the CEA or the independent agency before it can constitute an input for determination of the tariff.

(Para 13)

Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd. [Bench Strength 2], Civil Appeal No. 4117/2006 (18/09/2013), 2013(11) SCALE 661 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
CERC (Terms and Conditions for Determination of Tariff) Regulations, 2001 — Regulations 2(5) & 1(9) — Additional capitalisation — Expenditure exceeded to approved expenditure — Requirement of consideration by CEA or Independent Agency — Held, where a) the excess expenditure has been actually incurred or is a make believe or an exaggeration by the generating company; and (b) the expenditure was capital in nature, the CEA or Independent Agency has no option, but to approve the capitalisation — These agencies entitled for consideration only when either because the generating company fails to substantiate its claim of having incurred the expenditure as claimed or even if the amount is incurred, only a part of the same was in the nature of capital expenditure, the lesser amount alone will constitute an input for tariff determination — Electricity (Supply) Act, 1948 — Section 43-A.

HELD: Scrutiny of the excess would in turn primarily involve examination of two distinct aspects viz. (a) Whether the excess expenditure has been actually incurred or is a make believe or an exaggeration by the generating company; and (b) Whether the expenditure was capital in nature.

(Para 13)

In cases where the answers to these two questions is in the affirmative, the CEA or the Independent Agency would have no reason to disallow such expenditure, nor would its consideration for tariff fixation present any difficulty. In case a lesser amount is allowed by the CEA or the Independent Agency either because the generating company fails to substantiate its claim of having incurred the expenditure as claimed or even if the amount is incurred, only a part of the same was in the nature of capital expenditure, the lesser amount alone will constitute an input for tariff determination. To that extent, there is no difficulty nor was Mr. Misra, Counsel for the appellant, able to suggest any other dimension which the CEA or the Independent Agency would be entitled to consider while examining the question of allowing or disallowing the excess expenditure incurred by the generating unit. If that be so, absence of a reference under Regulation 2.5 (supra) to the CEA or Independent Agency would make little or no difference having regard to the facts of the case at hand. We say so because although the respondent-Corporation had claimed an excess expenditure of Rs.6.101 crores the amount actually taken into consideration for fixation of the tariff was Rs.4.521 crores only. The CERC had on a prudent check disallowed a substantial part of the excess that was claimed by the respondent-Corporation. What is significant is that the appellant-Corporation had fairly conceded that an amount of Rs.4.521 crores was indeed spent by the respondent for the completion of the project.

(Para 14)

HELD: That is evident from the following observation of the Electricity Appellate Tribunal, where Mr. Misra learned counsel for the appellant made a candid admission as to the extent of the expenditure incurred over and above the approved Project cost.

(Para 14)

From the above, we have no difficulty in holding that the first of the two aspects that may have engaged the attention of the CEA or the Independent Agency was concluded by the admission of the appellant, which was the best evidence, in the matter apart from the fact that the figure arrived at by the Commission was based on a fair and prudent check of the extent of admissible expenditure said to have been incurred.

(Para 15)

Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd. [Bench Strength 2], Civil Appeal No. 4117/2006 (18/09/2013), 2013(11) SCALE 661 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
CERC (Terms and Conditions for Determination of Tariff) Regulations, 2001 — Regulations 2(5), 1(9) & 1(10) — Additional capitalisation — Capital expenditure or revenue expenditure — Challenging nature without raising specific question — CERC allowed capitalisation of expenditure incurred excess to approved expenditure which was approved by Appellate Tribunal — Appellant admitted excess expenditure, but disputed the nature of expenditure contending the same as revenue expenditure instead of capital expenditure — Held, the finding of CERC has been affirmed by Appellate Tribunal — There is no perversity — Leave to this appeal has not been granted on this issue — No specific question regarding nature of expenditure has been raised — In these circumstances, nothing miscarriage of justice can be appreciated for not referring the matter to CEA — Electricity (Supply) Act, 1948 — Section 43-A — Constitution of India — Article 136 — Civil appeal — Argument beyond ground of leave — Practice and Procedure — Leave to appeal.

HELD: That leaves us with the second aspect which, any scrutiny or examination by the CEA may have involved viz. whether the expenditure was capital or revenue in nature. The CERC has found the expenditure to be capital in nature which finding has been affirmed by the Appellate Tribunal. There is nothing perverse about that finding in our opinion nor has this appeal been admitted on the question whether the expenditure was capital or revenue. In the absence of any question relating to the nature of the expenditure, we find it difficult to appreciate how the absence of a reference to CEA has caused any miscarriage of justice for the appellant or vitiated the tariff fixation by the CERC. It follows that even if a reference to CEA was in the facts of the case required to be made, the absence of any failure of justice or prejudice would render it unnecessary for us to interfere with the orders passed by the CERC and the Appellate Tribunal.

(Para 17)

Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd. [Bench Strength 2], Civil Appeal No. 4117/2006 (18/09/2013), 2013(11) SCALE 661 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Electricity Regulatory Commission Act, 1998 — Section 51 — Tariff determination — By CERC without consideration of CEA — Effect of deletion of Section 43A (2) of 1948 Act — Appellant’s grievance that CERC wrongly allowed additional capitalisation holding it as capital expenditure instead of revenue expenditure and determination was not within jurisdiction of the Commission without consideration by CEA — Held, Section 51 of 1998 Act empowers the Central Government for deletion of Section 43A(2) of 1948 Act and the Central Government invoking such power deleted 43A(2) of 1948 Act — After deletion of such provision there is no requirement of consideration by CEA about tariff or excess capitalisation determination — CERC (Terms and Conditions for Determination of Tariff) Regulations, 2001 — Regulation 2 (5) — Electricity (Supply) Act, 1948 — Section 43-A (2) — Electricity Act, 2003 — Sections 7 & 73.

HELD: The Electricity (Supply) Act, 1948 inter alia dealt with the generation and supply of electricity by generating companies. Chapter V comprising Sections 28 to 58 of the said Act dealt with the preparation of schemes by generating companies and concurrence of the CEA for such schemes including the capital cost to be incurred by these generating companies. Section 43A of the Act dealt with sale of electricity by the generating companies and provided norms and parameters to be determined by the CEA and notified by the Government of India.

(Para 18)

In the year 1998, came the Electricity Regulatory Commissions Act, 1998, which established the Central Electricity Regulatory Commission (hereinafter referred to as “the Central Commission”). The Central Commission was inter alia charged with the function of determining tariffs of Central Units such as those owned and controlled by the respondent-Corporation. Significantly enough Section 51 of this Act empowered the Central Government to delete sub-section (2) of Section 43A with effect from such date as the Central Government may decide. The Central Government, invoked that power and by a notification dated 11th September, 2000, directed the deletion of Section 43A (2) of the Electricity Supply Act, 1948 in respect of generating companies regulated by the Central Commission retrospectively w.e.f. 24th July, 1998. Shortly thereafter the Central Commission issued an order in regard to operational norms applicable to generating stations owned among others by respondent-NTPC.

(Para 19)

The above was followed by the Central Commission framing Tariff Regulations 2001, in which Regulation 2.5 extracted earlier dealt with capital expenditure. It was in the above background that the Central Commission determined the Tariff for the generating unit in question for the period 1st April, 1997 to 31st March, 2001 by an order dated 30th October, 2002. Shortly after that order the Parliament enacted the Electricity Act, 2003 which came into force w.e.f. 10th June, 2003. The new legislation repealed the Electricity (Supply) Act, 1948. The effect of this repeal was that all provisions of the 1948 Act including those requiring approval by the CEA of the scheme of the generating stations and capital cost which the repealed Act provided for became inapplicable and irrelevant under the new Act. The new law aimed at deregulating electricity generation. In the case of Thermal Power Stations the capital cost was not required to be approved by the CEA, as was the position under the earlier law.

(Para 20)

Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd. [Bench Strength 2], Civil Appeal No. 4117/2006 (18/09/2013), 2013(11) SCALE 661 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
CERC (Terms and Conditions for Determination of Tariff) Regulations, 2001 — Regulations 2(5), 1(9) & 1(10) — Additional capitalisation — Allowed without consideration of CEA — Effect after enactment of 2003 Act — Appellant Tribunal held that after deletion of Section 43A(2) of 1948 Act, the CERC was within its jurisdiction to determine capitalisation of excess expenditure without consideration of CEA — Contention that the deletion was made after enactment of Electricity Act, 2003, whereby the deleted provision was restored, therefore, finding of Tribunal and CERC is not sustainable — Held, there is no gainsaying in the contention — The Act of 2003 did not set out any role for the CEA, in the matter of approval of the schemes for the generating companies or the capital expenditure for the completion of such projects — The entire exercise touching the regulation of the tariff of generating companies owned or controlled by the Central Government, like the respondent was entrusted to the Central Commission — The Act of 2003 confined to subjects as incorporated under Section 73 of the Act — Accordingly appeal is dismissed with cost of Rs. 50,000/- — Electricity Regulatory Commission Act, 1998 — Section 51 — Electricity (Supply) Act, 1948 — Section 43-A(2) — Electricity Act, 2003 — Sections 7 & 73.

HELD: In Petition No.139 of 2004, the respondent-Corporation sought additional capitalisation of the expenditure on the project in question relevant to the period 2001-2004. The Central Commission determined the additional capitalisation and allowed the same to the respondent, which determination was upheld by the Tribunal with the modification to which we have adverted in the beginning of this order.

(Para 21)

There is no gainsaying that the prayer for additional capitalisation was made by the respondent-Corporation and considered by CERC after the Electricity Act 2003 had come into force, repealing the earlier enactments. The new legislation did not set out any role for the CEA, in the matter of approval of the schemes for the generating companies or the capital expenditure for the completion of such projects. The entire exercise touching the regulation of the tariff of generating companies owned or controlled by the Central Government, like the respondent was entrusted to the Central Commission. The role of the Central Electricity Authority established under Section 7 of the 2003 Act, was limited to matters enumerated under Section 73 of the Act, approval of the scheme for generating companies or the capital expenditure for the completion of such projects or capitalisation of the additional expenditure not being one such function. The CERC was, therefore, right when it said that the Central Electricity Authority had no part to play in the matter of approval for purposes of capitalisation of the extra expenditure incurred on a project. That was so notwithstanding the continuance of Regulation 2.5 of the regulations framed by the CERC providing for such an approval by the CEA. The far reaching changes that came about in the legal framework with the enactment of the 2003 Act, made Regulation 2.5 redundant in so far as the same envisaged a reference to the CEA or an Independent Agency for approval of the additional capitalisation. Insistence on a reference, to the CEA for such approval, despite the sea change in the legal framework would have been both unnecessary as well as opposed to the spirit of new law that reduced the role of CEA to what was specified in Section 73 of the Act. The CERC and the Tribunal were in that view justified in holding that a reference to the CEA was not indicated nor did the absence of such a reference denude the CERC of its authority to fix the tariff after the 2003 Act had come into force. That was so notwithstanding the fact that proviso to Section 61 of the Electricity Act, 2003 continued the terms and conditions for determination of tariff under the enactments mentioned therein and those specified in the Schedule for a period of one year or till such terms were specified under that section whichever was earlier. In the result this appeal fails and is hereby dismissed with costs assessed at Rs.50,000/-.

(Para 22)

Uttar Pradesh Power Corporation Ltd. v. N.T.P.C. Ltd. [Bench Strength 2], Civil Appeal No. 4117/2006 (18/09/2013), 2013(11) SCALE 661 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Limitation Act, 1963 — Sections 1(2), 3, 5 & Article 54 — Applicability in Pondicheri — Act of 1963 vis-a-vis Article 2262 of the French Code Civil — Which one governs — Trial Court held that subject governs under French Code which was affirmed by lower appellate Court, but High Court, in RSA set aside the order passed by lower fora holding that matter was governed by Indian Limitation Act — Challenged — Held, at the time of notification of Limitation Act, the Pondichery was already in existence as one of the Union Territories of India — Section 1(2) of Limitation Act says that it extends to the whole of India except the State of Jammu and Kashmir — The Limitation Act automatically extended to the then Pondicherry — No error of finding of High Court, consequently appeal is dismissed — French Code Civil — Article 2262.

HELD: The Government of Union Territories Act, 1963 (Act 20 of 1963) was enacted to provide for Legislative Assemblies and Ministries for the Union Territories. It received the assent of the President on 10.5.1963. The Limitation Act, 1963 was passed by the Parliament on 5.10.1963. By that time, the Union Territory of Pondicherry had become part of India. Clause 2 of Section 1 of the Limitation Act, 1963 says that it extends to the whole of India except the State of Jammu and Kashmir. Since the Union Territory of Pondicherry having become part of India, the Limitation Act automatically extended to the then Pondicherry. The Limitation Act, 1963, consequently, came into force in the Union Territory of Pondicherry on 1.1.1964.

(Para 10)

Under such circumstances, as rightly held by the High Court, the suit filed beyond the period of limitation prescribed under Article 54 of the Indian Limitation Act, 1963 is clearly barred. Since the suit itself is barred by the law of limitation, the other questions of law framed by the High Court were rightly not answered. The appeal, therefore, lacks in merits and accordingly dismissed.

(Para 14)

Gothamchand Jain v. Arumugam [Bench Strength 2], Civil Appeal No. 8308/2013 (Arising out of SLP (Civil) No. 4836/2012) (18/09/2013), 2013(11) SCALE 580 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Limitation Act, 1963 — Sections 3, 5 & Article 54 — Applicability in Pondicheri — Act of 1963 vis-a-vis Article 2262 of the French Code Civil — Implied repeal of French provision — Held, reference can be taken to the Pondicherry (laws) Regulation, 1963 (No. 7 of 1963) and Pondicherry (Extension of Laws) Act, 1968 by virtue of which various specific legislations have been brought into force and any cause of action arose under these Acts, squarely governed by these Acts — However, Pondicherry (Extension of Laws) Act, 1968, as amended, has adopted several such legislations in the State of Pondicherry, but the Act which governs limitation is the general law of the land that is the Indian Limitation Act, consequently Limitation Act governs the subject instead of French Act — French Code Civil — Article 2262.

Syndicate Bank v. Prabha D. Naik and Another, (2001) 4 SCC 713, Relied.

HELD: The question that we have to consider is whether, by virtue of the Limitation Act, 1963, the French Law of Limitation which had been in force till 1.1.1964, was in any manner repealed or modified by the Limitation Act, 1963.

(Para 11)

We may, in this case, refer to the Pondicherry (laws) Regulation, 1963 (No. 7 of 1963) which deals with the regulation to extend certain laws to the Union Territory of Pondicherry. Reference may also be made to the Pondicherry (Extension of Laws) Act, 1968. By virtue of those legislations, the Indian Contract Act, 1872, the Transfer of Property Act, 1882 and various other enactments were brought into force in Pondicherry. It is, therefore, to be seen as to whether specific legislations containing the subjects under which the cause of action had arisen, would govern the field or the procedural law assuming it would have its due application in replacement of the governing statute. This question was also pointedly considered by this Court in Syndicate Bank (supra) and the Court took the view that the cause of action of the suit, namely, money lent and advanced in terms of the agreement stands squarely governed by the Contract Act read with the Negotiable Instruments Act by reason of the admitted execution of the promissory note and, as such, cannot be said to be governed by the Portuguese Civil Code. The Court held that the Portuguese Civil Code cannot be read to be providing distinct and separate period of limitation for cause of action arising under the Indian Contract Act and other related laws.

(Para 13)

Pondicherry (Extension of Laws) Act, 1968, as amended, has adopted several such legislations in the State of Pondicherry, but the Act which governs limitation is the general law of the land that is the Indian Limitation Act. Consequently, it is not Article 2262 of the French Code Civil that applies to the suit in question, but Section 54 of the Indian Limitation Act, 1963.

(Para 14)

Gothamchand Jain v. Arumugam [Bench Strength 2], Civil Appeal No. 8308/2013 (Arising out of SLP (Civil) No. 4836/2012) (18/09/2013), 2013(11) SCALE 580 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Pondicherry (Administration) Act, 1962 — Section 4 — The law governing Pondichery — After merger in India — Parliamentary history — Discussed.

HELD: We may notice that de jure merger of the erstwhile French Territory of Pondicherry took place on 16.8.1962 following the Treaty of Cession concluded between France and India on 28.5.1956 establishing the cession of the French Establishments by France to India in full sovereignty. The Parliament enacted the Pondicherry (Administration) Act, 1962 (Act 49 of 1962) to provide for the administration of Pondicherry and for matters connected therewith. The said Act came into force on 15.12.1962. Section 4 of the Pondicherry (Administration) Act, 1962 deals with continuance of existing laws and their adaptation.

(Para 8)

By the Fourteenth Amendment to the Constitution, which came into force on 20.12.1962, in the First Schedule to the Constitution under the heading “II. The Union Territories”, after entry 8, the following entry was inserted, namely: “9. Pondicherry : The territories which immediately before the sixteenth day of August, `96, were comprised in the French Establishments in India known as Pondicherry, Karaikal, Mahe and Yanam.” Later, by the Pondicherry (Alteration of Name) Act, 2006, instead of “Pondicherry”, the word “Puducherry” was inserted with effect from 1.10.2006.

(Para 9)

Gothamchand Jain v. Arumugam [Bench Strength 2], Civil Appeal No. 8308/2013 (Arising out of SLP (Civil) No. 4836/2012) (18/09/2013), 2013(11) SCALE 580 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Juvenile Justice (Care and Protection of Children) Act, 2000 — Section 2(1) — Juvenility — Records of school or opinion of medical board — Discarding SLC without challenge — On reference of CJM, Juvenile Justice Board, initially relying on school records and deposition of heads of the school determined that the appellant was juvenile on date of occurrence — Thereafter, prosecution and complainant moved application alleging that the appellant produced forged registers, accordingly prayer was made for recalling of earlier order and taking opinion of medical board — Thereafter, Juvenile Justice Board called the Head Mistress at the time of issuing the school leaving certificate (SLC) to appellant who proved certificate and signature of the Principle as genuine — However, there was some doubt of the name of appellant which was mentioned in the SLC — Board also sought opinion of medical board who opined age of appellant at the time of incidence about 20 years old — Accordingly, Board recalled earlier order and held appellant not a juvenile — The lower appellate Court set side the order and granted benefit of doubt in favour of accused, but High Court reversed the lower appellate Court and restored the Board — Challenged — Held, SLC was dully proved by Head Mistress who dully proved the signature of then Head Master which was not challenged — There was no reason to discard her evidence — Report of IO that the difference of name are two persons — SLC produced by appellant was dully proved — Accordingly we set aside order of High Court and restore Lower Appellate Court directing trial of appellant by JJ Board — Juvenile Justice (Care and Protection of Children) Rules, 2007 — Rule 12 — Penal Code, 1860 — Sections 376, 302 & 201.

Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, Relied.

HELD: No cogent reasons have been stated by the High court to discard the school leaving certificate which was issued on 10.04.2004 by the then Principal of the school. The certificate reveals the date of birth of the accused as 10.05.1991. The school leaving certificate was proved by examining the head mistress of the school. She has recognized the signatures of the principal who issued the school leaving certificate. The evidence adduced by the head mistress was not challenged. Consequently, there is no reason to discard that document. Further, we notice that there was some confusion as to whether the appellant, whose name is Ranjeet Goswami is the same person Rajiv Ranjan Goswami. The investigating officer’s report indicates that they are different persons. Consequently we have to take it that the school leaving certificate produced was in respect of the appellant which has been proved.

(Para 9)

We, therefore, find no reason to reject the school leaving certificate. If that be so, as per the ratio laid down in Ashwani Kumar Saxena (supra) there is no question of subjecting the accused to a medical examination by a medical board. Going by the school leaving certificate since the appellant was a juvenile on the date of occurrence, he can be tried only by the JJ Board. Consequently, the order passed by the High Court is set aside and that of the Sessions Judge, Dumka is restored. The appeal is allowed, as stated above.

(Para 10)

Ranjeet Goswami v. State of Jharkhand [Bench Strength 2], Criminal Appeal No. 1465/2013 (@ Special Leave Petition (Criminal) No. 10661/2010) (18/09/2013), 2013(11) SCALE 577 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Education — Approval — Enhanced intake for MBBS Course — Extension of time schedule only for Government College — Private Medical College challenged the extension of time schedule only for Government Medical Colleges contending the same was arbitrary and offending Article 14 of Constitution — Held, MCI received the copy of the Circular of 2013 after last date for receiving application, accordingly requested the Central Government for extension of time schedule — However, it was not possible for MCI to consider all applications of private medical colleges, therefore, requested the Central Government to extend the time schedule only for government colleges — There is no serious error in extending time schedule only for government medical colleges considering statutory power of Central Government and direction issued by this court for strict time schedule adherence in admissions — Decision of Central Government is neither arbitrary nor perverse, consequently writ is dismissed — Enhancement of Annual Intake Capacity in Under-graduate Courses in Medical College for the Academic Session 2013-14 only Regulations 2013 — Schedule II Regulations 3 & 4 — Medical Council Act, 1956 — Section 10-A — Constitution of India — Article 14.

Mridul Dhar (Minor) and Another v. Union of India and Others, (2005) 2 SCC 65, Priya Gupta v. State of Chhattisgarh and Others, (2012) 7 SCC 433, Followed.

HELD: MCI, in their counter affidavit, stated that the above mentioned notification dated 8.7.2013 was received by the Council Office only on 16.7.2013. By that time, the last date fixed for receipt of application by the Board of Governors was over, which was on 15.7.2013.

(Para 12)

The MCI, therefore, requested the Government of India to modify the time schedule and extend the last date of receipt of application to 24.7.2013, since they could not receive the applications by the various medical colleges prior to 15.7.2013, as the very Regulations 2013 dated 8.7.2013 was received by the MCI only on 16.7.2013.

(Para 13)

The Central Government considered the request and pointed out that it would not be possible for the Board of Governors of MCI to process all the applications preferred by the Non-government medical colleges within the time fixed, therefore, it decided to issued a corrigendum which modified that the date of 24.7.2013 would apply only to Government medical colleges.

(Para 14)

We find no serious error in the view taken by the Central Government confining Regulations 2013 to Government medical colleges alone in view of strict time limit fixed in the Schedule for receipt of applications i.e. 15.7.2013 and the preremptory directions given by this Court in judgments referred to above.-We may make it clear that the time limit fixed for starting a medical college as well as for additional intake are of extreme importance, or else it may collide with the time limit fixed for starting the academic session. If the time limit fixed in the notification dated 8.7.2013 was to be adhered to strictly, the majority of the Non-government medical colleges could not have applied, since the Regulations 2013 was received by the MCI only on 16.7.2013 beyond the last date fixed for the receipt of application by the Board of Governors of MCI.

(Para 15)

We notice that the above corrigendum extending the last date was made applicable only to the Government medical colleges recording the reason that the time would be very short so as to process the applications by the MCI received from the non- government medical colleges. We cannot say that the decision taken by the Central Government is perverse, arbitrary or unreasonable, so as to strike down the corrigendum issued under the extra-ordinary jurisdiction of this Court under Article 32 of the Constitution of India.

(Para 21)

B.R. Ambedkar Medical College v. Union of India [Bench Strength 2], Writ Petition (Civil) No. 580/2013 (18/09/2013), 2013(11) SCALE 585 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Medical Council Act, 1956 — Sections 3(c) & 10-A — Additional intake of seats — Extension of time schedule for only Government College — Arbitrariness — Plea that the Central Government had extended time schedule only for Government Medical Colleges are arbitrary and offending Article 14 of the Constitution — Held, Central Government is within statutory jurisdiction to do so for any callas of medical colleges as mentioned in Circular of 2012 — Accordingly extension of time schedule only for Government Colleges by cogent reason is neither arbitrary nor offending Article 14 of the Constitution — Education — Approval — Additional annual intake of seats — Extension of time schedule — Establishment of Medical College Regulations, 1999 — Schedule II Regulations 3 & 4 — Constitution of India — Article 14.

HELD: State Government/Union Territory can also set up a Medical College and take additional intake of seats, apart from the other categories mentioned above. In a given case, the Central Government, for reasons to be recorded in writing, can modify the time schedule in respect of any class or category of applicants mentioned hereinbefore. Such a power has been conferred on Central Government by virtue of Establishment of Medical College Regulations (Amendment), 2012.-Establishment of Medical College Regulations (Amendment), 2012, provides for time schedule for grant of letter of permission by the Medical Council of India for establishment of a Medical College as well as increase in admission capacity in MBBS course.

(Para 17)

The note specifically indicates that the time schedule could be modified by Central Government for reasons to be recorded in writing in respect of any category, class of applicants which, in our view, could also be invoked in the case of increase of annual intake as well. Resultantly, the Central Government has the power to modify the date from 15.7.2013 to 24.7.2013 in respect of any class or category of applications. So far as the present case is concerned, it is in exercise of that statutory power, the Corrigendum has been issued by the Central Government modifying the time schedule to the Government Medical College alone out of the five categories mentioned hereinbefore. We are not prepared to say favouring the Government Medical College alone in such circumstances is violative of Article 14 of the Constitution.

(Para 19)

B.R. Ambedkar Medical College v. Union of India [Bench Strength 2], Writ Petition (Civil) No. 580/2013 (18/09/2013), 2013(11) SCALE 585 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Medical Council Act, 1956 — Section 3(c) — Directions by Central Government — Corrigendum in time schedule — Binding on Board of Governors of MCI — Held, Central Government is also empowered under Section 3(c) of Indian Medical Council Act, as amended in 2010, to issue various directions to the Board of Governor of the MCI — Board of Governors of the MCI is, therefore, bound by the Corrigendum issued by the Central Government — Enhancement of Annual Intake Capacity in Under-graduate Courses in Medical College for the Academic Session 2013-14 only Regulations 2013 — Schedule II Regulations 3 & 4.

(Para 20)

B.R. Ambedkar Medical College v. Union of India [Bench Strength 2], Writ Petition (Civil) No. 580/2013 (18/09/2013), 2013(11) SCALE 585 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Education — Admission — Strict adherence of time limit — Directed for MBBS Course — Held, this Court directed in Mridul Dhar’s case for strict adherence of time limits for admission in post graduate and supper specialty courses in the interests of students — This guidelines be strictly adhered to for MBBS courses — Enhancement of Annual Intake Capacity in Under-graduate Courses in Medical College for the Academic Session 2013-14 only Regulations 2013 — Schedule II Regulations 3 & 4.

Mridul Dhar (Minor) and Another v. Union of India and Others, (2005) 2 SCC 65, Priya Gupta v. State of Chhattisgarh and Others, (2012) 7 SCC 433, Followed.

HELD: We have heard learned senior counsel on either side at length. We need not reiterate the imperative need to follow the time limit fixed by this Court in the matter of admission to MBBS/BDS courses in Mridul Dhar case (supra) which was done in the interest of students` community, for admission to the Post Graduate and Super Speciality courses. Timely admission of the students to these courses is of utmost importance so that the students would get quality and timely education. In Mridul Dhar case (supra), this Court clearly indicated that the time schedule for establishment of new college or to increase intake in existing college shall be adhered to strictly by all concerned, failing which defaulting party would be liable to be personally proceeded with.

(Para 7)

B.R. Ambedkar Medical College v. Union of India [Bench Strength 2], Writ Petition (Civil) No. 580/2013 (18/09/2013), 2013(11) SCALE 585 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
T.N. Borstal Schools Act, 1925 — Sections 8 & 10 — Adolescence — Age above 21 years on date of conviction — Sufficiency for ground of bail — Held, Petitioner was over 21 years old, and therefore, was not a juvenile under the erstwhile or current statutory dispensation — No impediment was to send the petitioner in ordinary jail — On the contrary being an adult it would not have been advisable for him to be detained in a Borstal School as he may detrimentally influence younger persons — Apart from this the petitioner is at present above 30 years of age, therefore, all discussions are academic and accordingly bail petition is dismissed — Juvenile Justice (Care and Protection of Children) Act, 2000 — Sections 2(1) & 8.

Yaduraj Singh v. State of U.P., (1976) 4 SCC 310 and C. Elumalai v. State of Tamil Nadu, (1984) 4 SCC 539, Distinguished.

HELD: So far as the facts in the present Appeal are concerned, since on the date of his conviction the Petitioner was over 21 years old, and therefore, was not a juvenile under the erstwhile or current statutory dispensation as per the wisdom of the Legislature, there was no impediment or legal impropriety in his having to undergo his sentence in an ordinary jail; on the contrary being an adult it would not have been advisable for him to be detained in a Borstal School as he may detrimentally influence younger persons. The position would have been totally different had he, on the date of his conviction, been between ages of 16 and 21 years as he would then have required to be placed in a Borstal School. Even if this infraction had occurred, the Petitioner would not be entitled to bail today solely on that score. In any event, the entire argument is totally academic since on the present date the Petitioner is over 30 years of age and on the date of his conviction for the commission of the offence, the Petitioner was over 21 years of age. The Borstal Schools Act merely concerns detention of a convict, whereas the Juvenile Justice Act deals with detention as also the punishment or sentence that can be imposed.

(Para 5)

Accordingly the Application for bail, on the grounds pressed before us, is devoid of merit and is dismissed.

(Para 6)

Nagoor Pichai v. State [Bench Strength 2], Crl. M.P. No. 853/2013 in Criminal Appeal No. 811/2011 (19/09/2013), 2013(11) SCALE 671 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
T.N. Borstal Schools Act, 1925 — Section 8 — Adolescence — Provision for Brostal School — Rationality — Held, the rationale behind these provisions is obviously to insulate a young person or adolescent in contradistinction to a juvenile, during his waning impressionable years, from the pernicious influence of hardened criminals; and, on the other hand, to similarly insulate other persons sentenced to detention in Borstal Schools from the influence of convicts who have attained the age of 23 years or who have been detained in a Borstal School for five years.

(Para 3)

Nagoor Pichai v. State [Bench Strength 2], Crl. M.P. No. 853/2013 in Criminal Appeal No. 811/2011 (19/09/2013), 2013(11) SCALE 671 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
T.N. Borstal Schools Act, 1925 — Section 8 — Adolescence — Sentence — Power of Court — Held, Under Section 8 of the Borstal Schools Act, the Court is empowered to pass a sentence of detention in the Borstal School when it appears to it expedient to pass such a sentence for a term which shall not be less than two years, but shall not exceed five years.

(Para 3)

Nagoor Pichai v. State [Bench Strength 2], Crl. M.P. No. 853/2013 in Criminal Appeal No. 811/2011 (19/09/2013), 2013(11) SCALE 671 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Words and Phrases — Adolescence — Meaning of — Held, adolescence is the penumbral period (presently between 18 years and 23 years) when, for good reason, a person is not perceived and treated as an adult for the purposes of incarceration — T.N. Borstal Schools Act, 1925 — Section 8.

(Para 2)

Nagoor Pichai v. State [Bench Strength 2], Crl. M.P. No. 853/2013 in Criminal Appeal No. 811/2011 (19/09/2013), 2013(11) SCALE 671 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
T.N. Borstal Schools Act, 1925 — Section 8 — Brostal School — Difference between juvenile and adolescence — Legal effect — Held, Brostal School provides only a half way house intended to prepare a person to go for jail where as juvenile has a bunch of rights of legal protection from criminal trial, punishment and jail — Juvenile Justice (Care and Protection of Children) Act, 2000 — Sections 2(1), 8 & 16.

HELD: The Borstal School is a halfway house intended to prepare a person for imprisonment in a regular/ordinary jail. Section 8 of the Borstal Schools Act stipulates that a convict cannot remain in a Borstal School beyond a period of five years or his attaining the age of 23 years. We should immediately note the distinction, as the relevant statutes ordain, between an `adolescent’ and a `juvenile’. `Juvenile’ and its statutory synonym `child’ (and now even `minor’) has been defined in the Juvenile Justice (Care and Protection of Children) Act, 2000 [for short, `Juvenile Justice Act’] simply as a person who has not completed eighteen years of age. The repealed Juvenile Justice Act treated any person below the age of sixteen years as a juvenile and it is this age which is contemplated in the Borstal Schools Act. By virtue, therefore, of Section 8 of the Juvenile Justice Act, Special Homes have to be established for the `reception and rehabilitation of a juvenile in conflict with law’. Again, it is this Act in terms of Section 16, that places an embargo on the imposition of any sentence of death or imprisonment for life.

(Para 3)

Nagoor Pichai v. State [Bench Strength 2], Crl. M.P. No. 853/2013 in Criminal Appeal No. 811/2011 (19/09/2013), 2013(11) SCALE 671 [T.S. Thakur, J.: Vikramajit Sen, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(2) — Death sentence — Member of unlawful assembly, but without any overt act — Seven cold murders — Held, we do not deem it proper to sentence A3 to death in light of there being no overt act attributable to him — His death sentence is commuted to life imprisonment for rest of life — Penal Code, 1860 — Sections 302 & 149.

Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28, Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775, Sebastian v. State of Kerala, (2010) 1 SCC 58, Rajesh Kumar v. State, (2011) 13 SCC 706, Amit v. State of U.P., (2012) 4 SCC 107, State of U.P. v. Dharmendra Singh, (1999) 8 SCC 325. Relied.

HELD: However, in the present case, while taking an overall view, no overt act in the commission of crime could be attributed to A3. The role played by A3 during commission of the crime as established was to hold the barrels of kerosene along with one other.

(Para 84)

However, in the peculiar facts of this case, the possibility of A3 being less culpable than the other accused cannot be answered in affirmative. Therefore, in our considered view, we do not deem it proper to sentence A3 to death in light of there being no overt act attributable to him and sentence to imprisonment till the end of his life would appropriately serve as punishment proportional to the degree of offence committed by him.

(Para 86)

The sentence awarded to A3 is commuted to life imprisonment till the rest of his life.

(Para91)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(2) — Death sentence — Acting role and leader of unlawful assembly — Seven cold murders in vengeance of legal action — Held, appellant(A1) threatened to burn house of deceased in case of not withdrawing the FIR lodged by informant against him — Kerosene was scripted on his instruction and he had lit the match followed by opening of fire when informant tried to escape — A2 put informant on ground — Regarding future menace to the society, nevertheless, the law prescribes for future, based upon its knowledge of the past and is being forced to deal with tomorrow’s problems with yesterday’s tools — Respect of A1 and A2, we are of the considered view that the instant case falls into such category of rarest of the rare cases where culpability has assumed the proportion of extreme depravity and the appellant-accused are perfect example of a blood thirsty, scheming and hardened criminals who slayed seven innocent lives to quench their thirst for revenge and such revenge evolving out of a fellow citizens refusal to abstain from resorting to machinery of law to protect his rights — Accordingly, death sentence awarded to them by the lower Courts are confirmed — Penal Code, 1860 — Sections 302 & 149.

Dagdu v. State of Maharashtra, (1977) 3 SCC 68, Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 611, M.A. Antony v. State of Kerala, (2009) 6 SCC 220, Jagdish v. State of M.P., (2009) 9 SCC 495, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434, Ram Singh v. Sonia, (2007) 3 SCC 1, Holiram Bordoloi v. State of Assam, (2005) 3 SCC 793, Karan Singh v. State of U.P., (2005) 6 SCC 342, Gurmeet Singh v. State of U.P., (2005) 12 SCC 107, State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224, Om Prakash v. State of Uttaranchal, (2003) 1 SCC 648, Gurdev Singh v. State of Punjab, (2003) 7 SCC 258, Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199, Suresh v. State of U.P., (2005) 6 SCC 130, Ranjeet Singh v. State of Rajasthan, (1988) 1 SCC 633, Ramdeo Chauhan v. State of Assam, (2000) 7 SCC 455, Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457, Surja Ram v. State of Rajasthan, (1996) 6 SCC 271, Ravji v. State of Rajasthan, (1996) 2 SCC 175, Sudam v. State of Maharashtra, (2011) 7 SCC 125, Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1, Ajitsingh Harnamsingh Gujral v. State of Maharashtra, (2011) 14 SCC 401, Relied.

HELD: While determining the gravity of the offence committed by the appellants it must be noticed that it is only A1 who had threatened the informant of burning his house in case the FIR against his family and him were not withdrawn. Further, A1 during the occurrence not only scripted and instructed the rest of the unlawful assembly but also lighted the matchstick to burn the house as well informant’s body. A2, pushed the informant to the ground and later fired at him.

(Para 84)

Further, in respect of the mitigating factors of lack of criminal antecedents or probabilities of the appellants to be menace to the society, we would re-iterate the observations of this Court in Gurdev Singh v. State of Punjab, (2003) 7 SCC 258 that it is indeed true that the underlying principle of our sentencing jurisprudence is reformation and there is nothing in evidence to show that the appellants have been a threat or menace to the society at large besides the FIR regarding the theft of buffalo. It is also true that we cannot say that they would be a further menace to the society or not as we live as creatures saddled with an imperfect ability to predict the future. Nevertheless, the law prescribes for future, based upon its knowledge of the past and is being forced to deal with tomorrow’s problems with yesterday’s tools.

(Para 86)

In respect of A1 and A2, we are of the considered view that the instant case falls into such category of rarest of the rare cases where culpability has assumed the proportion of extreme depravity and the appellant-accused are perfect example of a blood thirsty, scheming and hardened criminals who slayed seven innocent lives to quench their thirst for revenge and such revenge evolving out of a fellow citizens refusal to abstain from resorting to machinery of law to protect his rights. The entire incident is extremely revolting and shocks the collective conscience of the community. The acts of murder committed by the appellants are so gruesome, merciless and brutal that the aggravating circumstances far outweigh the mitigating circumstances.

(Para 87)

Therefore, the sentence of death imposed on A1 and A2 is confirmed.

(Para 91)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(3) — Special reason — Seven cold murders in pre-ordained fashion without any provocation — Sufficiency for death sentence — A1 threatened the informant to burn his house in case he could not withdraw FIR pending against him — In furtherance of such, he managed to gather unlawful assembly and lit the house of the informant closing door from out side — Held, A1 and A2 have committed a cold blooded murder in a pre-ordained fashion without any provocation — Motive behind the gruesome act was to avenge the act of informant in approaching the machinery of law enforcement inspite of threats by the appellants — After setting ablaze to five children and wife of informant, A1 and A2, first gagging the informant, thereafter attempting to burn him alive and later, when he tried to escape, firing at him thereby leaving no stone unturned in translating their threats into reality — The brutally committed by them it pricks and shocks not only the judicial conscience but even the collective conscience of the society — It demands just punishment from the Court and the Court is bound to respond within legal parameters, however it is a discretionary power of court — Accordingly, regard to A1 and A2 this case falls into the category of rarest of the rare cases and is not a case where imprisonment for life is an adequate sentence and thus, constrained to reach the inescapable conclusion that death sentence imposed on A1 and A2 be confirmed — Penal Code, 1860 — Sections 302 & 149.

HELD: We now proceed to examine such special reasons which negate the possibility of any sentence but for death penalty. Herein, A1 and A2 have committed a cold blooded murder in a pre-ordained fashion without any provocation whatsoever. The motive behind the gruesome act was to avenge the act of informant in approaching the machinery of law enforcement inspite of threats by the appellants. The victims were five innocent children and wife of the informant who were sleeping unalarmed when the appellants came and locked them inside their house while it was set ablaze. Further, wrath of A1 and A2 is reflected in their act of first gagging the informant, thereafter attempting to burn him alive and later, when he tried to escape, firing at him thereby leaving no stone unturned in translating their threats into reality. As a result of the aforesaid incident, having witnessed the threats of burning given by the A1 to the informant tuned into reality, none but the family of the deceased- informant came forth to depose against the appellant-accused persons during the trial. The crime, enormous in proportion having wiped off the whole family, is committed so brutally that it pricks and shocks not only the judicial conscience but even the collective conscience of the society. It demands just punishment from the Court and the Court is bound to respond within legal parameters. The demand for justice and the award of punishment have to be in consonance with the legislative command and the discretion vested in the Courts.

(Para 88)

In light of the aforesaid, having regard to the gravity of the offence committed, we are of the considered opinion that with regard to A1 and A2 this case falls into the category of rarest of the rare cases and is not a case where imprisonment for life is an adequate sentence and thus, constrained to reach the inescapable conclusion that death sentence imposed on A1 and A2 be confirmed.

(Para 90)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Special Leave Petition — Leave to appeal in criminal cases — Scope of constrained by Cr.P.C. — Held, the appellate jurisdiction vested in this Court by virtue of Article 136 is not plain statutory but expansive and extraordinary — The Court exercises its discretion and grants leave to appeal in cases where it is satisfied that the same would circumvent a grave miscarriage of justice — Such jurisdiction is not fettered by rules of criminal procedure but guided by judicially evolved principles — Practice and Procedure — Criminal appeal — Power under SLP.

State of U.P. v. Dharmendra Singh, (1999) 8 SCC 325, Moran M. Baselios Marthoma Mathews II v. State of Kerala, (2007) 6 SCC 517, Netai Bag v. State of W.B., (2000) 8 SCC 262, Relied.

(Para 23)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 136 — Death sentence — Examination of special reason — Power of Supreme Court — Held, this Court while considering the question of correctness or otherwise of the sentence awarded by the Courts below has exercised discretionary jurisdiction under Article 136 and hence can not only examine the reasons so assigned under Section 354(3) but also substantiate upon the same, if need so be — Criminal Procedure Code, 1973 — Section 354(3) — Special reason — Practice and procedure — Examination of special reason — Death sentence awarded by lower fora.

State of U.P. v. Dharmendra Singh, (1999) 8 SCC 325, Moran M. Baselios Marthoma Mathews II v. State of Kerala, (2007) 6 SCC 517, Netai Bag v. State of W.B., (2000) 8 SCC 262, Relied.

HELD: Thus, jurisdiction of this Court in appeal under Article 136 though circumscribed to the scope of earlier proceedings is neither fettered by the rules of criminal procedure nor limited to mere confirmation or rejection of the appeal. This Court while considering the question of correctness or otherwise of the sentence awarded by the Courts below has exercised discretionary jurisdiction under Article 136 and hence can not only examine the reasons so assigned under Section 354(3) but also substantiate upon the same, if need so be.

(Para 27)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(3) — Death Sentence — Special reason — Requirement and duty of Court — Held, under old Act, duty was cast on Court for assigning death sentence in case of murder but this provision has been altered in new Act, whereby the legislature has casts a statutory duty on the Court to state reasons for choice of the sterner sentence to be awarded in exceptional cases as against the rule of life imprisonment — By making such provision it has been cast duty on court that Court has no option to this harsh sentence — Criminal Procedure Code, 1898 — Section 367(5) — Penal Code, 1860 — Sections 302 & 149.

Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, Joseph v. State of Goa, (1977) 3 SCC 280, Harnam v. State of U.P., (1976) 1 SCC 163, Allauddin Mian v. State of Bihar, (1989) 3 SCC 5, Bachan Singh case (supra), State of Maharashtra v. Goraksha Ambaji Adsul, (2011) 7 SCC 437; Sangeet v. State of Haryana, (2013) 2 SCC 452; Sandesh v. State of Maharashtra, (2013) 2 SCC 479, Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, Shashi Nayar v. Union, (1992) 1 SCC 96, Sandesh v. State of Maharashtra, (2013) 2 SCC 479, Relied.

HELD: Under Section 367(5) of the Code of Criminal Procedure, 1898 (for short “old Code”), the normal sentence to be awarded to a person found guilty of murder was death and imprisonment for life was an exception. The Amending Act 26 of 1955 amended Section 367(5) of the old Code resulting in vesting of discretion with the Court to inflict the sentence of life imprisonment or death each according to the circumstances and exigencies of the case.

(Para 29)

The present Code which was legislated in 1973 brought a shift in the then existing penological trend by making imprisonment for life a rule and death sentence an exception. It makes it mandatory for the Court in cases of conviction for an offence punishable with imprisonment for life to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Court awards the death penalty, “special reasons” for such sentence shall be stated in the judgment.

(Para 30)

Under this provision the legislature casts a statutory duty on the Court to state reasons for choice of the sterner sentence to be awarded in exceptional cases as against the rule of life imprisonment and by necessary implication, a legal obligation to explain them as distinguished from the expression “reasons” follows. The legislative mandate of assigning “special reasons” assures that the imposition of the capital punishment is well considered by the Court and that only upon categorization of the case as “rarest of rare”, thus leaving no room for imposition of a less harsh sentence, should the Court sentence the accused person to death.

(Para 42)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(3) — Death Sentence — Recording special reason — Requirement of independent conclusion in each stage — Held, the Courts at all stages-trial and appellate must peruse and analyze the facts of the case in hand and reach an independent conclusion which must be appropriately and cogently justified in the “reasons” or “special reasons” recorded by them for imposition of life imprisonment or death penalty — Penal Code, 1860 — Sections 302 & 149.

HELD: Incontrovertibly, the judicial approach towards sentencing has to be cautious, circumspect and careful. The Courts at all stages-trial and appellate must therefore peruse and analyze the facts of the case in hand and reach an independent conclusion which must be appropriately and cogently justified in the “reasons” or “special reasons” recorded by them for imposition of life imprisonment or death penalty. The length of the discussion would not be a touchstone for determining correctness of a decision. The test would be that reasons must be lucid and satisfy the appellate Court that the Court below has considered the case in toto and thereafter, upon balancing all the mitigating and aggravating factors, recorded the sentence.

(Para 43)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(3) — Death Sentence — Affording opportunity of hearing — Requirement and jurisdiction of courts — Discussed — Penal Code, 1860 — Sections 302 & 149.

HELD: We must now briefly advert to the sentencing procedure prescribed by law. Under Section 235(2) of the Code, the Court on convicting an accused must unquestionably afford an opportunity to the accused to present his case on the question of sentence and under Section 354(3) record the extraordinary circumstances which warrant imposition of death sentence keeping in view the entire facts of the case and the submissions of the accused. In doing so if, for any reason, it omits to do so or does not assign elaborate reasons and the accused makes a grievance of it before the higher court, it would be open to that Court to remedy the same by elaborating upon the said reasons. Even when the reasons recorded by the Courts below do not conform to the statutory mandate or the judicially evolved principles, this Court, should reach the conclusion that harsher sentence of death requires to be imposed, could supplement them so as to justify the imposition of such sentence instead of remanding the matter to Courts below for re-consideration on the question of sentence. Further, should this Court opine to the contrary that the facts and circumstances of the case do not require imposition of capital punishment and the ends of justice would be achieved by a less harsh sentence, it could accordingly commute the sentence awarded by the Courts below. This Court in Dagdu case (supra) has observed that remand is an exception, not the rule, and therefore ought to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.

(Para 44)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(3) — Special reason — Appropriate procedure — Requirement of interference — Held, Trial Court has afforded opportunity to both parties, accused as well prosecution and discussed and recorded reason — High Court has also discussed its own reason — Appellant has not raised any objection that courts bellow have not given proper opportunity of hearing — No defects in procedure followed by lower courts — Penal Code, 1860 — Sections 302 & 149.

HELD: Herein, it is not the case of the appellants that the opportunity to be heard on the question of sentence separately as provisioned for under Section 235(2) of the Code was not provided by the Courts below. Further, the Trial Court has recorded and discussed the submissions made by the appellants and the prosecution on the said question and thereafter, rejected the possibility of awarding a punishment less harsh than the death penalty. However, the High Court while confirming the sentence has recorded reasons though encapsulated. The High Court has noticed the motive of the appellants being non withdrawal of the case by the informant and the ghastly manner of commission of crime whereby six innocent persons as young as 3 year old were charred to death and concluded that the incident shocks the conscience of the entire society and thus deserves nothing lesser but death penalty.

(Para 45)

There being no impropriety by the Courts below in compliance with the procedure prescribed under law for sentencing the appellants, only the question of adequacy and correctness of the special reasons assigned for awarding sentence of death requires to be considered by us. In our considered opinion, as noticed above, it is only upon examination of the facts and circumstances of the case could the adequacy of the special reasons recorded by the Courts below be determined by us. Therefore, we would now consider the second issue to determine whether at all the case falls in the category of rarest of the rare offences.

(Para 46)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 354(2) — Death sentence — Mitigating and Aggravating circumstances — Required for rarest of the rare case — Held, only in those exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the collective conscience of the community, would it be appropriate to award death sentence — Since such circumstances cannot be laid down as a straight jacket formula but must be ascertained from case to case, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence — Penal Code, 1860 — Sections 302 & 149.

Bachan Singh v. State, (1980) 2 SCC 684, Rajesh Kumar v. State, (2011) 13 SCC 706, Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, Relied.

Macchi Singh v. State of Punjab, (1983) 3 SCC 470, Referred.

(Para 51)

Deepak Rai v. State of Bihar [Bench Strength 3], Criminal Appeal Nos. 249-250/2011 (19/09/2013), 2013(11) SCALE 677 [H.L. Dattu, J.: Sudhansu Jyoti Mukhopadhaya, J.: M.Y. Eqbal, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376 — Rape — Place and time of occurrence — Accused known to prosecutrix and acquaintance with her family — Accused was close acquaintance of family of prosecutrix and known to her at least for two years — Prosecutrix alleged that when she was going for her job at 8.30 AM accused caught hold her and forcibly carried her in compound of a building and committed rape without her consent — Trial Court and High Court held that once the incidence of rape occurred the subsequent consensual sex was immaterial, accordingly convicted — Challenged — Held, accused was known to prosecutrix and alleged act was done at 8.30 AM adjacent to a public road in compound of building but not within the building — Father and mother of prosecutrix deposed that they knew the act after notice of her pregnancy, but they remains silence till giving birth of a child by prosecutrix — Though allegation that accused promised the prosecutrix to marry, but her parents never approached the family of accused for this purpose and approached directly to police after birth of child — If she had made any semblance of resistance or made any hue and cry it would have attracted large number of people from the locality — FIR was lodged after 10 months of occurrence — All these factors cast some shadow of doubt on the version of prosecutrix — The trial Court as well as the High Court has committed an error in holding that the accused is guilty of the offence punishable under Section 376 IPC, consequently, impugned order is set aside and appellant is acquitted.

Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88, Ramdas and Others v. State of Maharashtra, (2007) 2 SCC 170, Vijayan v. State of Kerala, (2008) 14 SCC 763, K. P. Thimmappa Gowda v. State of Karnataka, (2011) 14 SCC 475, Relied.

HELD: The incident alleged to have occurred at 8.30 AM in day light and at a place near the compound of one Karunakaran, not within the four walls of a house or a building. Accused was not a stranger. The The prosecutrix had previous acquaintance with the accused or else in all probability she would have resisted forcefully, attracting passersby or people from the neighbourhood. She has stated that she was threatened and made to believe that the accused would marry her. She later became pregnant and delivered a child, and the paternity of the child is disputed by the accused. FIR was lodged after a period of 10 months from the date of incident.

(Para 13)

The evidence of PW2 to PW4 and that their consistent version is that PW2 had previous acquaintance with the accused being her elder brother’s friend for a period of more than two years before the date of incident. The place of the alleged incident and the time is very crucial, so for as this case is concerned. It was early morning at 8.30 AM and the place of the alleged incident was on the side of a public road. If she had made any semblance of resistance or made any hue and cry it would have attracted large number of people from the locality. Further the first information report, as already indicated, was lodged after a period of 10 months of the alleged incident. All these factors cast some shadow of doubt on the version of PW2.

(Para 18)

Behaviour of the parents of the prosecutirix viz. PW3 and PW4 also appears to be strange. On their evidence they stated that they came to know about the relations between the appellant and the prosecutrix when they found her pregnant. Prosecutrix had told them that the appellant had agreed to marry her. They knew the appellant and his family already. However, there is not even a whisper that they approached the appellant or his family members for marrying the prosecutrix. They straightaway went to the police station to lodge the report, that too after the birth of the child. All these factors cast a doubt on the prosecution version. The version of victim, in rape commands great respect and acceptability, but, if there are some circumstances which cast some doubt in the mind of the court of the veracity of the victim’s evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape.

(Para 19)

The trial Court as well as the High Court has committed an error in holding that the accused is guilty of the offence punishable under Section 376 IPC. In such circumstances, we are inclined to allow this appeal and set aside the conviction and sentence imposed on the appellant and order accordingly.

(Para 20)

Kaini Rajan v. State of Kerala [Bench Strength 2], Criminal Appeal No. 1467/2013 (Arising out of SLP (Crl.) No. 3093/2012) (19/09/2013), 2013(11) SCALE 606: 2013(12) JT 538 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 375 — Rape — Expression ‘without her consent’ — Meaning and contents — Discussed.

State v. Mango Ram, (2000) 7 SCC 224, Referred.

HELD: Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.

(Para 12)

Kaini Rajan v. State of Kerala [Bench Strength 2], Criminal Appeal No. 1467/2013 (Arising out of SLP (Crl.) No. 3093/2012) (19/09/2013), 2013(11) SCALE 606: 2013(12) JT 538 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Words and Phrases — Consent — Meaning — Held, consent is stated to be an act of reason coupled with deliberation — It denotes an active will in the mind of a person to permit the doing of an act complained of — Penal Code, 1860 — Sections 90 & 375.

(Para 13)

Kaini Rajan v. State of Kerala [Bench Strength 2], Criminal Appeal No. 1467/2013 (Arising out of SLP (Crl.) No. 3093/2012) (19/09/2013), 2013(11) SCALE 606: 2013(12) JT 538 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376 — Rape — Version of prosecutrix — Reliability — Held, the version of victim, in rape commands great respect and acceptability, but, if there are some circumstances which cast some doubt in the mind of the court of the veracity of the victim’s evidence, then, it is not safe to rely on the uncorroborated version of the victim of rape — Evidence Act, 1872 — Sections 3 & 60.

(Para 19)

Kaini Rajan v. State of Kerala [Bench Strength 2], Criminal Appeal No. 1467/2013 (Arising out of SLP (Crl.) No. 3093/2012) (19/09/2013), 2013(11) SCALE 606: 2013(12) JT 538 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
University Grants Commission Regulations, 2010 — Regulations 3.3.1, 4 & 2 — Additional qualifying marks for teachers — Addition to prescribe for NET — Competency of UGC — While notifying National Eligibility Test, 2012 (NET), UGC decided to covert third paper from descriptive to objective, thereafter, the Commission relying on expert’s body recommendations prescribed that candidates have to obtain prescribed aggregate marks in each paper in addition to minimum marks prescribed for NEET — This was challenged before High Court which declared that fixing of any further aggregate marks after obtaining the minimum prescribed marks for NET was beyond competency of UGC and offending Article 14 of the Constitution — Challenged — Held, additional qualifying marks was fixed on recommendation of expert committee which was subsequently modified to some extent considering representations of candidates — UGC has competence to do so for maintaining educational standards and additional qualifying marks was fixed as per strict provisions of NET Notification 2012 — The candidates were not misled in any manner — Accordingly impugned order is set aside and appeal is allowed — University Grants Commission Act, 1956 — Section 12(j) — National Eligibility Test, Notification dated 6.12.2012 — Clause 7 — Constitution of India — Articles 14 & 246 and Schedule VII List-I Entry 66.

HELD: It is in exercise of the above statutory powers, the UGC has issued the notification for holding the NET on 24th June, 2012. Para 7 of the Notification deals with the Scheme of the Act which clearly indicates that the candidates are required to obtain minimum marks separately in Paper I, Paper II and Paper III. It also clearly indicates that only such candidates who obtain minimum required marks in each paper will be considered for final preparation of results. The final qualifying criteria for JRF and eligibility for lectureship shall be decided by UGC before declaration of result. Above clause deals with the following requirements to be followed before the final declaration of the results: —

i) Candidates to obtain minimum marks separately in Paper I, Paper II and Paper III;

ii) Candidates who have satisfied the above criteria only would be subjected to a qualifying criteria before the final preparation of result; (Consideration Zone)

iii) UGC has to fix the final qualifying criteria before the declaration of results.

(Para 23)

Candidates are seeking final declaration of results the moment they have obtained the minimum marks separately in Paper I, Paper II and Paper III, ignoring the other two steps, referred to hereinbefore, and also forgetting the fact that only those who obtain the minimum required marks alone will fall in the consideration zone. All these steps, as we have referred to above, have been clearly stipulated in the notification for NET Examination, 2012.

(Para 24)

We find, 2,04,150 candidates have obtained the minimum marks separately in Paper I, Paper II and Paper III. All those candidates were subjected to a final qualifying criteria fixed by the Committee constituted by the UGC, since they fell within the Consideration Zone. (Para 25)

We notice, based on the recommendations of the Expert Committee, the final results were declared and 43,974 candidates were declared qualified for lectureship eligibility as per the qualifying criteria. As already indicated, some more relaxation was also granted in favour of those persons who got the minimum qualifying marks since those candidates figured amongst the top 7% of all the candidates who appeared in NET, which was in addition to the candidates declared as qualified in the original result declared on 18.9.2012. 15,178 candidates were benefitted by that relaxation. Consequently, as already stated, a total of 57,550 candidates were declared passed in the NET Exam. 2012.

(Para 26)

We are of the considered opinion that all the steps taken by the UGC were strictly in accordance with clause 7 of the Notification for the NET Examination, 2012. Prescribing the qualifying criteria as per clause 7, in our view, does not amount to a change in the rule of the game as it was already pre-meditated in the notification. We are not inclined to say that the UGC has acted arbitrarily or whimsically against the candidates. The UGC in exercise of its statutory powers and the laid down criteria in the notification for NET June, 2012, has constituted a Moderation Committee consisting of experts for finalising the qualifying criteria for lectureship eligibility and JRF. UGC acted on the basis of the recommendations made by the Expert Committee. The recommendations made by them have already been explained in the earlier part of the judgment. Reason for making such recommendations has also been highlighted in the Report.

(Para 27)

We are of the considered view that the candidates were not misled in any manner. Much emphasis has been made on the words “clearing the National Eligibility Test”. “Clearing” means clearing the final results, not merely passing in Paper I, Paper II and Paper III, which is only the initial step, not final. To clear the NET Examination, as already indicated, the candidate should satisfy the final qualifying criteria laid down by the UGC before declaration of the results.

(Para 28)

The Appeals are accordingly allowed and the judgment of the High Court is set aside. The Applications for Impleadment and Intervention are dismissed. There shall be no order as to costs.

(Para 30)

University Grants Commission v. Neha Anil Bobde (Gadekar) [Bench Strength 2], Civil Appeal No. 8355/2013 (Arising out of SLP (Civil) No. 19933/2013) (19/09/2013), 2013(11) SCALE 593 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
University Grants Commission Act, 1956 — Sections 12 & 26 — Fixing minimum qualification of teachers — Implementing recommendation of expert committee — Arbitrariness — Held, UGC as an expert body entrusted with the duty to maintain standards of teaching in universities — Fixing criteria for eligibility of teachers has direct nexus with standard of teaching — Such fixation of eligibility criteria is for mere implementation of experts recommendation is not arbitrary or violation of Article 14 of the Constitution — University Grants Commission Regulations, 2010 — Regulations 2, 3.3.1 & 4.4.1. — Constitution of India — Article 14.

University of Mysore vs. C.D. Govinda Rao, AIR 1965 SC 491, Tariq Islam vs. Aligarh Muslim University, (2001) 8 SCC 546 and Rajbir Singh Dalal vs. Chaudhary Devi Lal University, (2008) 9 SCC 284, Relied.

HELD: UGC as an expert body has been entrusted with the duty to take steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in the University. For attaining the said standards, it is open to the UGC to lay down any “qualifying criteria”, which has a rational nexus to the object to be achieved, that is for maintenance of standards of teaching, examination and research. Candidates declared eligible for lectureship may be considered for appointment as Assistant Professors in Universities and colleges and the standard of such a teaching faculty has a direct nexus with the maintenance of standards of education to be imparted to the students of the universities and colleges. UGC has only implemented the opinion of the Experts by laying down the qualifying criteria, which cannot be considered as arbitrary, illegal or discriminatory or violative of Article 14 of the Constitution of India.

(Para 29)

University Grants Commission v. Neha Anil Bobde (Gadekar) [Bench Strength 2], Civil Appeal No. 8355/2013 (Arising out of SLP (Civil) No. 19933/2013) (19/09/2013), 2013(11) SCALE 593 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
University Grants Commission Act, 1956 — Section 12 — UGC — Powers and Functions — Purpose — Discussed — Constitution of India — Article 246, and Schedule VII List-I Entry 66.

HELD: The UGC Act, 1956 was enacted by the Parliament under the provisions of Entry 66 List I of the Seventh Schedule of the Constitution, which entitles it to legislate in respect of “co-ordination and determination of standards in Institutions for higher education or research and scientific and technical education”. For the said purpose, the Act authorized the Central Government to establish a commission, by name, the University Grants Commission. Chapter III of the Act deals with the powers and functions of the Commission. Section 12 states that it shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under the Act, the Commission has been bestowed with certain powers under the Act.

(Para 5)

HELD: UGC, in exercise of its powers conferred under Clauses (e) and (g) of Section 26(1) of the UGC Act and in supersession of the University Grants Commission (Minimum Qualifications required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000, issued the University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education)Regulations, 2010. Regulation 2 states that the minimum qualifications for appointment and other service conditions of University and College teachers, Librarians and Directors of Physical Education and Sports as a measure for the maintenance of standards in higher education, shall be as provided in the Annexure to the above Regulations.

(Para 7)

UGC, in exercise of its powers conferred on it under the various provisions mentioned hereinabove, is duty bound to conduct the NET for conferring eligibility for lectureship and for awarding Junior Research Fellowship (for short “JRF”). UGC conducts such a test every year.

(Para 9)

We have elaborately referred to various statutory provisions which would clearly indicate that the UGC as an expert body has been entrusted by UGC Act the general duty to take such steps as it may think fit for the determination and maintenance of standards of teaching, examination and research in Universities. It is also duty bound to perform such functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India. The UGC has also got the power to define the qualification that should ordinarily be required for any person to be appointed to the teaching staff of the University and to regulate the maintenance of standards and coordination of work and faculties in the Universities.

(Para 20)

University Grants Commission v. Neha Anil Bobde (Gadekar) [Bench Strength 2], Civil Appeal No. 8355/2013 (Arising out of SLP (Civil) No. 19933/2013) (19/09/2013), 2013(11) SCALE 593 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
University Grants Commission Act, 1956 — Section 12(j) — Standards of teaching — Expression ‘as it thinks fit’ — Power of UGC regarding appointment of teachers — Held, the minimum eligibility condition for recruitment and for appointment of Assistant Professors in the Universities/Colleges/Institutions, Clause 4.4.1 stipulates that before fulfilling the other prescribed qualifications, the candidates must have cleared the National Eligibility Test conducted by the UGC — Therefore, the power of the UGC to prescribe, as it thinks fit, the qualifying criteria for maintenance of standards of teaching, examination etc. cannot be disputed — University Grants Commission Regulations, 2010 — Regulations 2, 3.3.1 & 4.4.1.

University of Delhi v. Raj Singh, 1994 Supp. (3) SCC 516, University Grants Commission v. Sadhana Chaudhary and Others, (1996) 10 SCC 536, Annamalai University represented by Registrar v. Secretary to Government, Information and Tourism Department and Others, (2009) 4 SCC 590, Relied.

HELD: UGC, in exercise of its powers conferred under clauses (e) and (g) of Section 26(1) of the UGC Act, issued the UGC (Minimum Qualification of Teachers and other Academic Staff in Universities and Colleges and other measures for Maintenance of Standards of Higher Education) Regulations, 2010. Clause 3.3.1 of the Regulation specifically states the NET shall remain the minimum eligibility condition for recruitment and for appointment of Assistant Professors in the Universities/Colleges/Institutions. Clause 4.4.1 stipulates that before fulfilling the other prescribed qualifications, the candidates must have cleared the National Eligibility Test conducted by the UGC. Therefore, the power of the UGC to prescribe, as it thinks fit, the qualifying criteria for maintenance of standards of teaching, examination etc. cannot be disputed.

(Para 23)

University Grants Commission v. Neha Anil Bobde (Gadekar) [Bench Strength 2], Civil Appeal No. 8355/2013 (Arising out of SLP (Civil) No. 19933/2013) (19/09/2013), 2013(11) SCALE 593 [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Public Interest Litigation — Filed for bench hunting — Entertainability — PIL was filed against order passed by National Environment Appellate Authority — Objection was raised by appellant against its maintainability, but the Division Bench ignored the objection that the matter was entertainable by Single Bench and set aside the impugned order with direction for remanding the same for reconsideration — Challenged — Held, matter ought to be heard by Single Bench, but in disguise of public interest litigation it was entertained by Division Bench which was legally impermissible — Every Bench of High Court must be strictly adhered with its jurisdiction — Accordingly impugned order is set aside with direction it to be heard by Single Bench on merits — Practice and Procedure — Usurp jurisdiction in disguise of PIL — Delhi High Court Rules — Chapter III Part A — Jurisdiction of Single Bench.

HELD: A bare reading of the above reproduced provisions makes it clear that the petition filed by respondent No.1 for quashing order dated 31.12.2008 could be heard only by Single Bench of the Delhi High Court. However, by disguising the petition as a Public Interest Litigation, respondent No.1 succeeded in getting the same listed before the Division Bench of the High Court. Unfortunately, the Division Bench did not deal with the objection raised by the appellant to the maintainability of the petition filed by respondent No.1 and proceeded to decide the matter on merits which, in our considered view, was legally impermissible.

(Para 14)

We are not suggesting that respondent No.1 had indulged in Bench hunting but it needs to be emphasised that every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost.

(Para 15)

In the result, the appeal is allowed and the impugned order is set aside. The writ petition filed by respondent No.1 shall now be listed before a Single Judge of the High Court, who shall decide the same without being influenced by the observations contained in the impugned order or this order.

(Para 16)

Monnet Ispat and Energy Limited v. Jan Chetna [Bench Strength 2], Civil Appeal No. 8288/2013 (Arising out of SLP (C) No. 27387/2012) (19/09/2013), 2013(11) SCALE 612 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Practice and Procedure — Jurisdiction — Division of work between Single Bench and Division Bench of High Courts — Requirement of strict adherence of rules — Held, every Bench of the High Court should scrupulously follow the relevant rules and should not violate statutory provisions specifying its jurisdiction, else the sanctity of the rules relating to distribution of causes between the Single, the Division Bench and larger Benches will be lost.

(Para 15)

Monnet Ispat and Energy Limited v. Jan Chetna [Bench Strength 2], Civil Appeal No. 8288/2013 (Arising out of SLP (C) No. 27387/2012) (19/09/2013), 2013(11) SCALE 612 [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 452, 364 & 302 r/ws 120-B — Abduction and murder — Occurrence by police officer — Sufficiency of circumstantial evidence — PW3 the informant had written to DGP of State alleging appellants along with other personnel arrived in the house of informant and picked up seven members of his family in the vehicles, accordingly he was under fear to murder them or falsely implicate in any case by those police personnel — He further alleged that he had seen his family members in government vehicle at various places and also in the police station — On intervention of IG, Crime Branch, FIR was lodged against appellants and they were convicted under above sections and awarded maximum punishment of life imprisonment under Section 302 IPC — Conviction and sentence was affirmed by High Court — Challenged — Held, witnesses deposed that seven person abducted were seen in various police stations under control of first appellant — This is not sufficient to hold that 7 abducted were killed by mere 2 appellants — State alleged that all police stations were under control of first appellant, but could not indicate which particular PS was under his control where victims were lastly seen — PW3 deposed that terrorism was continued at relevant time in the State — Abducted persons were not missing immediately after abduction, but they were seen at different places — No evidence that the abducted were last seen in custody of appellants, accordingly, prosecution under Section 302 read with Section 120-B IPC is set aside, but conviction of the appellants under Sections 364 and 452, IPC is maintained, however, sentence and fine are awarded is multiplied by 7 for each abduction which shall not run concurrently but run consecutively — Evidence Act, 1872 — Section 3.

HELD: We, therefore find that the evidence adduced by PW-3, PW-4, PW-5 and PW-6 is that the seven persons abducted by the appellants were found in different police stations and also in residential quarters near the police station. On this evidence, the court cannot hold that the two appellants have killed the seven abducted persons only because the seven persons have not been traced or are found missing. Learned counsel for the State submitted that the appellant Baldev Singh was in control of all the police stations in his area but no material has been placed before the court to show which were the police stations which were under the control of the appellant Baldev Singh. No material has been placed before the Court to establish that the last police station in which the seven persons or any of the seven persons were kept was under the control of the appellant Baldev Singh and the other appellant Balwinder Singh. From the evidence of PW-3, we find that terrorism was prevailing in the State of Punjab at the time when the seven persons were abducted and action was being taken by the police against the terrorists. When the seven persons abducted by the appellants did not go missing immediately after their abduction and were found in different police stations in the State of Punjab and one of them was also found going in a Gypsy at Amritsar, the Court cannot hold that the seven abducted persons were last in the custody of the appellants and hence they must discharge the burden under Section 106 of the Evidence Act and must explain what they did to the seven abducted persons. The prosecution should have examined witnesses from amongst the police personnel or the Police Station to establish that the seven abducted persons were last seen in the custody of the appellants. In absence of such evidence, the finding of guilt recorded by the trial court and the High Court under Section 302 IPC against the appellants, in our view, was not correct either on facts or on law.

(Para 27)

We, therefore, set aside the conviction of the two appellants under Section 302 read with Section 120-B, IPC but maintain the conviction of the appellants under Sections 364 and 452, IPC. The trial court has imposed a punishment of three years rigorous imprisonment and a fine of Rs.3000/- for the offence under Section 452, IPC and five years rigorous imprisonment and a fine of Rs.4000/- for the offence under Section 364, IPC, and the High Court has maintained the aforesaid sentences for the two offences. We maintain the sentence and fine under Section 452, IPC. But so far as the sentence and fine under Section 364, IPC is concerned, we find from illustration (h) under Section 220 of the Cr.P.C. that where an accused commits the same offence against three persons, then he can be charged with three offences. As seven persons had been abducted by the appellants, the appellants were guilty of seven offences under Section 364, IPC, and they should be punished for each of these offences under Section 364, IPC. We, therefore, direct that the fine amount as imposed by the trial court will be Rs.4000/- for each of the seven offences of abduction and the period of rigorous imprisonment will be five years for each of the seven offences of abduction and these five years rigorous imprisonment for each of the seven offences of abduction will not run concurrently but consecutively. In case, the fine amount of Rs.4,000/- is not paid, the appellants will have to undergo one more year of rigorous imprisonment. The appeals are allowed to the extent indicated above.

(Para 28)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 220-Illustration (h) — Sentence and fine — Same offence against 7 persons in same transaction — Concurrently or consecutively — Appellants were convicted for abduction of 7 members of a family, accordingly Trial Court awarded 5 years of RI with fine of Rs. 4000/- — Held, illustration (h) under Section 220 of the Cr.P.C. says that where an accused commits the same offence against three persons, then he can be charged with three offences — Accordingly the punishment awarded by Trial Court and affirmed by High Court shall be seven separate punishments and shall not run concurrently but run consequently — Penal Code, 1860 — Section 364.

HELD: But so far as the sentence and fine under Section 364, IPC is concerned, we find from illustration (h) under Section 220 of the Cr.P.C. that where an accused commits the same offence against three persons, then he can be charged with three offences. As seven persons had been abducted by the appellants, the appellants were guilty of seven offences under Section 364, IPC, and they should be punished for each of these offences under Section 364, IPC. We, therefore, direct that the fine amount as imposed by the trial court will be Rs.4000/- for each of the seven offences of abduction and the period of rigorous imprisonment will be five years for each of the seven offences of abduction and these five years rigorous imprisonment for each of the seven offences of abduction will not run concurrently but consecutively.

(Para 28)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 302 & 364 r/w Section 120-B — Abduction and murder — Delayed FIR of 2 months and 21 days — Occurrence by police personnel — Held, no doubt that delay in the lodging of the FIR often results in embellishment as well as the introduction of a distorted version of what may have actually happened, but the facts of each case have to be examined to find out whether the delay in lodging the FIR is fatal for the prosecution case — Among accused, one was Dy.S.P. and another was police constable — Terrorist activities was continued in the State — Informant waited for 2 months and 21 days with the hope that they would be released by the police and only after all his efforts to get them released failed, he lodged the complaint — Delay was not fatal to prosecution — Criminal Procedure Code, 1973 — Section 154.

Gauri Shanker Sharma vs. State of U.P., 1990 (Supp) SCC 656, Referred.

HELD: The first question that we have to decide is whether the delay of 2 months and 21 days in lodging the FIR could make the prosecution case one which is not believable. There cannot be any doubt that delay in the lodging of the FIR often results in embellishment as well as the introduction of a distorted version of what may have actually happened, but the facts of each case have to be examined to find out whether the delay in lodging the FIR is fatal for the prosecution case. In the present case, we find from the evidence of PW-3 that the terrorists were active in the State of Punjab and the police was taking action against the terrorists and in such a state of affairs, PW-3 was apprehensive of the consequences of lodging an FIR against appellants, one of whom was a Deputy Superintendent of Police in control of several police stations and the other was a police constable. Hence, after seven members of his family were picked up on 29.10.1991, PW-3 waited for 2 months and 21 days with the hope that they would be released by the police and only after all his efforts to get them released failed, he lodged the complaint on 19.01.1992 (Ex.PB). The fact that the complainant addressed the complaint (Ex. PB) not to the police station but to the Director General of Police, Punjab, is enough evidence of the fact that PW-3 was afraid of lodging the complaint to the local police station which was under the control of the appellant Baldev Singh.

(Para 16)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 302, 364 r/w Section 120-B — Abduction and murder — Delayed recording of statement under Section 161 Cr.P.C. — Reliability — Held, allegation was against police officers and investigation was conducted by crime branch of state police — There was possibility of resistance — Trial came in progress after direction in a Writ — Accordingly, delayed recording of statement after 2 years of lodging FIR was not fatal to prosecution — Criminal Procedure Code, 1973 — Section 161 — Evidence Act, 1872 — Sections 27, 60 & 3.

Jagjit Singh alias Jagga v. State of Punjab, [(2005) 3 SCC 689] and State of Andhra Pradesh v. S. Swarnalatha & Ors., [(2009) 8 SCC 383] Distinguished.

HELD: In the facts of the present case, the investigation was against the Deputy Superintendent of Police and several other police persons and the investigation was being conducted by the Investigating Officer of the Crime Branch of the State Police. There was, therefore, resistance within the police against the investigation and it was only on account of intervention of this Court in Writ Petition (Criminal) No. 221 of 1994 that there was progress in the investigation and the statements of witnesses came to be recorded by the Investigating Officer. This being explanation for the delay in examining the witnesses under Section 161 Cr.P.C., we are not inclined to accept the statement on behalf of the appellants that the prosecution witnesses should not be relied on because of delay in recording the statements under Section 161, Cr.P.C.

(Para 19)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Evidence Act, 1872 — Sections 118 & 3 — Animosity with witness — Evidentiary value — Competency — Held, where there is previous enmity between the witness and the accused, the evidence of the witness has to be carefully scrutinized by the Court before it is accepted, but only on account of such enmity the Court cannot discard the evidence of the witness altogether.

State of U.P. vs. Kishanpal and Others, (2008) 16 SCC 73, Relied.

(Para 20)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 302, 364 r/w Section 120-B — Abduction and murder — Animosity with witness — Accused powerful police officer — Plea that PW4 and PW5 have animosity with appellants, accordingly Trial Court as well High Court ought not be relied on their evidence — Held, when witnesses would not be relatives of victim then the situation would be different — One of accused is police officer of Dy.S.P. rank and many other police officers were under trial — Even if some one had witnessed the incident, he would prefer not to narrate the incident either before the Investigating Officer or before the Court — Version of PW3 has been corroborated by PW4 — Trial Court and High Court did not commit any error in relying their evidence — Evidence Act, 1872 — Sections 118 & 3.

State of U.P. vs. Kishanpal and Others, (2008) 16 SCC 73, Relied.

HELD: Moreover, witnesses who are not related to a victim of an offence are in some situations difficult to find. This is one such situation where the appellants have come to the house of the complainant (PW-3) early in the morning at 5.00 am on 29.10.1991 and picked up seven members of his family and it is difficult to find persons witnessing this incident at 5.00 a.m. during the last part of October. Moreover, one of the appellants was a Deputy Superintendent of Police and therefore even if some one had witnessed the incident, he would prefer not to narrate the incident either before the Investigating Officer or before the Court. In such a situation, the Court has to consider carefully and cautiously the evidence of witnesses who may have had enmity with the accused. On such careful and cautious consideration, it is difficult to discard the evidence of PW-3 that the appellants picked up seven members of his family on 29.10.1991 at 5.00 a.m. from his house particularly when it is corroborated by the evidence of PW-4 as well as the complaint dated 19.01.1992 (Ext. PB) of PW-3 which had been registered as the FIR. In our considered opinion, therefore, the trial court and the High Court could not have rejected the evidence of PW-3 and PW-4 on the ground of enmity between PW-3 and PW-4 on the one hand and the appellants on the other hand.

(Para 20)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Evidence Act, 1872 — Sections 145 & 3 — Improvement in statements — Contradiction to statement under Section 161 Cr.P.C. — Effect — Plea that statements of witnesses are progressive therefore, the same is not reliable — Held, unless the omission in the statement recorded under Section 161, Cr.P.C. of a witness is significant and relevant having regard to the context in which the omission occurs, it will not amount to a contradiction to the evidence of the witness recorded in court — In this matter improvement is not regarding relevant facts of the offence, but it is only regarding vehicles and number of persons participated in occurrence — No error ignoring the same by courts bellow — Criminal Procedure Code, 1973 — Sections 161 & 162-Explanation.

HELD: Unless the omission in the statement recorded under Section 161, Cr.P.C. of a witness is significant and relevant having regard to the context in which the omission occurs, it will not amount to a contradiction to the evidence of the witness recorded in court. The evidence of PW-3 is that on 29.10.1991, the appellant Baldev Singh accompanied by the appellant Balwinder Singh accompanied by twenty to twenty five persons came in three to four vehicles to his house and Sadhu Singh (his father), Hardev Singh (his son), Gurdip Singh (his brother), Amanjit Singh (his son), Sharanjit Singh (son of his brother, Sajjan Singh), Davinder Singh and Sukhdev Singh (sons of his brother Khazan Singh) in all seven persons were made to sit in the Gypsy and the appellants took these seven persons with them. There is no omission with regard to these facts about the picking up of seven members of his family from his house on 29.10.1991 and the names of these seven members of his family in the statement of PW-3 recorded under Section 161 Cr.P.C. The omissions in the statement of PW-3 recorded under Section 161 Cr.P.C. are with regard to the nature, number and colour of the vehicles and the number of men who had come as well as what happened after the aforesaid incident on 29.10.1991. In our view, the trial court and the High Court had rightly considered these omissions as not material omissions amounting to contradictions covered by the Explanation under Section 162, Cr.P.C. In our view, therefore, the High Court rightly maintained the conviction of the appellants under Sections 364 and 452 IPC.

(Para 21)

Baldev Singh v. State of Punjab [Bench Strength 2], Criminal Appeal No. 1303/2005 (20/09/2013), 2013(11) SCALE 631: 2013(6) Supreme 353 [A.K. Patnaik, J.: Gyan Sudha Misra, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Terrorist activities — Neither name in FIR nor identified by injured witness — Defective investigation — On 13.02.1992, at about 9.30 PM, there was a gruesome carnage in which 35 persons were killed, and 7 persons were injured — All belongs to Bhumihar sub-community — Appellants were chargesheeted among 119, but initially they were absconders while trial of other 13 accused persons — In earlier trial, out of 13 accused persons, 4 were convicted and awarded death punishment which was confirmed by majority of this Court, other 4 were acquitted and 4 others were convicted and awarded life imprisonment by Trial Court, but their conviction was set aside by this Court — Designated Court found second appellant along with other two guilty under Section 3 (1) of TADA and Sections 203, 307 read with Section 149 IPC and awarded death sentence — In the current batch of Trial apart from appellants 3 other accused persons were tried and acquitted — First two were acquitted for the reason that in earlier batch of trial Supreme Court found confessional statement unreliable and third was acquitted for the reason that the witness who named him, could identify him — Challenged — Held, though trial was held defective in earlier trial on same FIR — Even if this is ignored, the name of second appellant was not mentioned in FIR, the injured witness deposed in his examination that he had seen slitting the throats by him but he failed to identify him in the dock — Another injured witness did not attribute any role of accused — None deposed that second appellant being a member of MC, the organization which sponsored the occurrence — In the circumstances, in our view, Naresh Paswan, second appellant deserves an acquittal — Accordingly appeal allowed.

Krishna Mochi and Others v. State of Bihar reported in 2002 (6) SCC 81, Followed minority view.

HELD: In the present case, even if we decide to ignore the similar deficiencies in the prosecution, and look into the oral evidence which has come on record, the case of prosecution against appellant no: 2, Naresh Paswan is rather weak. His name was not mentioned in the FIR. PW-2 Birendra Singh who is an injured witness, though states in the dock that he had seen the appellants slitting the throats, he failed to identify Naresh Paswan in Court. None of the other witnesses including PW-3 Lawlesh Singh, who is another injured witness, have attributed any role to him. None of them said that he was a member of MCC. It is material to note that Madhusudan who was named at Sr. No.5 in the FIR also faced a similar allegation. It was PW-2 Birendra Singh who named Madhusudan as one of the accused who slit the throats of the deceased, but had failed to identify him in the dock. In the absence of other witnesses throwing any light on his participation in the occurrence, Madhusudan was acquitted by the learned designated Judge. In paragraph 39 of his judgment in Krishna Mochi (supra) Hon’ble Mr. Justice Aggarwal, rejected the theory of some of the accused being mere sight-seers. This was because, as the paragraph indicates, a specific role was attributed to them such as entering into the houses by breaking open the doors, and forcibly taking the inmates, tying their hands and taking them to the temple and thereafter near to the canal, where their legs were tied, and thereafter killing some of them. As far as Naresh Paswan is concerned, no such role is attributed to him by any of the witnesses. This being so, Naresh Paswan is entitled to have the same yardstick applied to him as was applied to Madhusudan. In the circumstances, in our view, Naresh Paswan deserves an acquittal.

(Para 29)

In the circumstances, Crl. Appeal No.791 of 2009 is allowed in part. The judgment convicting appellant no.2, accused Naresh Paswan is set-aside, and he will stand acquitted. He is acquitted of the offences for which he was charged, and it is ordered that he be released forthwith if not required in any other case.

(Para 35)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Caste massacre — Testimony of injured witness — No reason to discard conviction — On 13.02.1992, at about 9.30 PM, there was a gruesome carnage in which 35 persons were killed, and 7 persons were injured — Designated Court held convicted the all three appellants and awarded death sentence — Challenged — Held, one of injured witness deposed slitting the throats by third appellant — His name was mentioned in FIR — Though second injured witness did not attributed his any specific act but both witnesses deposed his participation and correctly identified in the dock — Name of first appellant was also mentioned in FIR — Though he was not attributed in FIR any specific role, but by injured witness deposed slitting the throats by him — He was also correctly identified in dock — There is no reason to discard his evidence — The conviction of these two accused under Section 302 of IPC and other charges will have to be upheld — Penal Code, 1860 — Sections 202 & 149.

HELD: As far as the other appellant no.3, Bugal Mochi is concerned, in addition to his name being mentioned in the FIR as one who was slitting the throats, he was identified by PW-2 injured witness Birendra Singh in Court. Bugal Mochi is attributed the role of slitting the throats by Birendra Singh in his oral deposition. Though other witnesses did not attribute any specific role to him, he was identified by them as a participant in the crime.

(Para 30)

As far as appellant no.1, Vyas Ram is concerned, though his name was mentioned in the FIR, the heinous act of slitting the throats was not attributed to him in the FIR. PW-2, Birendra Singh has however stated in oral evidence that Vyas Ram was slitting the throats, and he identified him in the court as well, though no other witness has attributed any particular role to him. Birendra Singh being an injured witness, his testimony cannot be ignored. It is true that his testimony was not accepted in Krishna Mochi, but that was so with respect to other accused. In the present case, he has attributed a specific role to these two accused. There is no reason to discard his evidence. The conviction of these two accused under Section 302 of IPC and other charges will have to be upheld.

(Para 30)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Death sentence — Commuting to life imprisonment — Consideration of defective investigation and circumstances of accused — Caste massacre in which 35 murdered by slitting the throats and seven inured — Designated Court awarded death sentence — Held, as held by this Court in earlier batch of trial on same FIR that investigation was defective — It was a caste retaliation against Ranveer Sena — Though action was sponsored by MCC, but none of the witness deposed connection of appellants with MCC — It is possible that appellants might join in the incident due to their lower caste and poverty — No harm was caused to women and children — Though the death sentence has been confirmed in Krishna Mochi on same FIR but the case of appellants are different and the minority view in that case was against confirmation of death sentence — Criminal Procedure Code, 1973 — Section 354(2) — Penal Code, 1860 — Sections 302 & 149.

Bachan Singh v. State of Punjab, 1980 (2) SCC 684, Machi Singh v. State of Punjab, 1983 (3) SCC 470, Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in AIR 2008 SC 3040, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 2009 (6) SCC 498, Relied.

Krishna Mochi and Others v. State of Bihar reported in 2002 (6) SCC 81, Referred.

HELD: Then comes the question of sentence to appellant nos.1 and 3 i.e. Vyas Ram and Bugal Mochi. It is true that in Krishna Mochi (supra), by a majority of two versus one, the crime in the instant case was held to be one which deserved the extreme penalty of death. This was apparently on the lines of the judgment of the Constitution Bench in Bachan Singh v. State of Punjab, 1980 (2) SCC 684 as being one belonging to the rarest of the rare category. We have, however, to note that as far as the present trial is concerned, the occurrence of the crime is of February 1992 and the charges were framed in May 2004. More than nine years have gone thereafter also, and the appellants have been facing the trauma of the crime and the trial all this period. Besides, as noted earlier, the manner in which the investigation has proceeded was far from satisfactory. In all cases where death sentences are to be awarded, the circumstances of the accused are also required to be considered. The present case there was more or less a caste war between the haves and the have nots. The appellants belonged to the latter category. The present incident was claimed to be a retaliatory attack by the members of MCC. They are essentially the persons belonging to the scheduled castes and backward classes, and economically weaker and exploited sections of society. The attack was supposed to be in retaliation to an earlier attack by the Bhumihar community, led by the Ranvir Sena. It must also be noted that none of the witnesses have attributed to these appellants that they belonged to the MCC. It is quite possible that due to their poverty and caste conflict in the villages they were drawn in the melee and participated in the crime. At the same time no harm was done to women and children. Appellant No.1 Vyas Ram worked with one Jamuna Singh. No harm was done to any member from his family either. This is not to say that such acts are to be condoned, but at the same time we have to consider as to whether after taking into account these circumstances of the accused, death sentence was warranted. We do not think so.

(Para 32)

In this connection we must state that though the FIR was common, the testimonies in the two cases are in fact different, and on the analysis thereof we have come to the conclusion that one of the accused is not guilty, however, the other two are, but considering the circumstances in their case the death sentence is not warranted.

(Para 33)

Even with respect to the death sentence awarded in Krishna Mochi (supra), having considered the dissenting opinion rendered by Hon’ble Shah J., we must note the approach adopted by this Court.

(Para 34)

As far as appellant nos.1 and 3, accused Vyas Ram and Bugal Mochi are concerned, although their conviction under the offences for which they were charged is upheld, the death sentence awarded to them is commuted to imprisonment for life, which is to mean the rest of their natural life.

(Para 35)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Section 20-A — Trial before Special Court — Benefit of amendment — Applicability of provision — Held, the amendment of 1993 would apply to the cases which were pending investigation on 22.5.1993, and in which the challan had not been filed in Court till then — Present case not in this category.

HELD: Besides as far as applicability of Section 20A is concerned, the submission on behalf of the appellant is not wholly correct. In fact at the end of paragraph 25 of Hitendra Thakur (supra), this court has held that the amendment of 1993 would apply to the cases which were pending investigation on 22.5.1993, and in which the challan had not been filed in Court till then. The present case was registered on 13.02.1992, the charge-sheet was submitted on 12.02.1993, and the cognizance was taken 6 days thereafter i.e. on 18.02.1993. Thus, all these steps were taken before coming into force of the amendment act. Therefore, the appellants cannot claim the benefit of the amendment, nor does the case cited by them come to their rescue.

(Para 13)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 149 — Unlawful assembly — Act attracting offence — Liability of every member — Held, the provision required to attract liability in case only participation of a member to further common object or he has knowledge of such object — As per Masalti’s case participation is sufficient to held vicariously liable, however, as per Baladin’s case, if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of Section 149 — At the same time, we must also note that in that very matter where there was evidence of an injured witness, deposing against the accused, the same was accepted.

Masalti v. State of U.P. AIR 1965 SC 202, Baladin v. State of U.P AIR 1956 SC 181, Krishna Mochi and Others v. State of Bihar 2002 (6) SCC 81, Jamuna Chaudhary v. State of Bihar AIR 1974 SC 1822, Relied.

HELD: Thus, the defining ingredient for the involvement of the accused would be the common intention. Section-149 of I.P.C makes it amply clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence is a member of the same assembly, is guilty of that offence. Masalti (supra) emphatically brings home the principle that the punishment prescribed by Section-149 is in a sense vicarious, and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. At the same time we cannot ignore the law as laid down in Baladin (supra) that if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of Section 149.

(Para 18)

The submission of the appellants which does merit a close scrutiny and a thorough examination by the court is, however, concerning the allegedly faulty investigation, especially the failure of the prosecution to conduct a Test Identification Parade, and the delay in recording the statements of the witnesses which according to them rendered the entire alleged identification of the appellants doubtful. The appellants claim to be entitled to the benefit of doubt as it is dangerous to uphold the death sentence of the appellants on such shaky evidence. The appellants draw support from a judgment in the case of Jamuna Chaudhary v. State of Bihar reported in AIR 1974 SC 1822. In that case benefit of doubt was given to some of the accused in view of the unsatisfactory material on record. At the same time, we must also note that in that very matter where there was evidence of an injured witness, deposing against the accused, the same was accepted. The appellants have also drawn the attention of the court to the fact that a set of persons who were accused in the same case had been acquitted in the case of Bihari Manjhi and Others v. State (supra). However, here the bone of contention is with respect to their participation itself, in the light of the deficiency in the investigation. Those deficiencies also find a place in Hon’ble Mr. Justice Shah’s observations in the Krishna Mochi case (supra).

(Para 19)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Terrorist and Disruptive Activities (Prevention) Act, 1987 — Sections 3(1) & 19 — Terrorist activities — Defective investigation — Effect — Appellants were convicted and awarded death sentence — Informant was subsequently involved in anther Case and could not produced for examination — Neither case diary of initial IO was produced nor he was examined in the case — Investigation has been carried on oral instruction of SP without any written order as required under the Act — SP has recorded the confession of one of accused, but he could not identified him in the dock — Subsequent investigation was carried by inspector, a lower post than prescribed under the Act — SHO of concerned police station admitted that he was accused of murder case of a close relative of one of accused — Held, investigation was a defective investigation, therefore, Hon’ble Mr. Justice Shah (minority) had set aside conviction of other accused in earlier set of trial on same FIR — Delay in recording the statements of witnesses by the Investigating Officer and absence of the Test Identification Parade were also instrumental in demolishing the credibility of the investigation.

Kamaksha Rai v. State of U.P., reported in 1999 (8) SCC 701, Binay Kumar Singh v. State of Bihar reported in 1997(1) SCC 283, Referred.

HELD: Suresh Chander Sharma (PW21) who had taken over the investigation after Ram Japit Kumar, had admitted in his cross examination that the entire investigation had been conducted by Ram Japit Kumar. PW 21 had not recorded the statements of many witnesses including the three chowkidaars who were the first to meet inspector Vijay Pratap Singh the then Station Incharge, and report the incident to him when he had come on patrolling, and heard the sounds of firing and explosion. The investigation conducted by Ram Japit had never been brought on record nor was his case diary submitted. PW21 had also admitted that the case diary was not with him, and that he had not seen the notification under TADA (para 61). It was also admitted that investigation has been done on the oral instructions of the Superintendent of Police without the necessary written orders from him or Director General of Police.

(Para 20)

According to the statement of the Superintendent of Police Sunil Kumar, he received the information of Bihari Manjhi’s arrest on 27.2.1992, and he went there to record the statement. He claims to have met Bihari Manjhi and told him to make his statement without fear or favour, and Bihari Manjhi did so. However, the same officer was not able to identify Bihari Manjhi in the Court. Moreover, the police personnel of P.S. Tekari were busy in making arrests, and a number of V.I.Ps were visiting. So the investigation had been entrusted to Suresh Chander Sharma, Inspector from Chandauti Police Station. Surprisingly, he does not remember whether written permission, to invoke TADA was taken or not, and whether under TADA the investigation had to be carried out only by an officer of rank of DSP or above.

(Para 21)

He admitted that he was an accused in the murder case of Vasuki Yadav, nephew of Vakil Yadav, (one of the accused in the present case), and had filed a petition before the Supreme Court for quashing the cognizance taken against him in that case.

(Para 22)

Hon’ble Mr. Justice Shah had drawn support from the principle laid down in Masalti’s case to emphasise the impossibility of basing the conviction on such shaky investigation.

(Para 23)

The delay in recording the statements of witnesses by the Investigating Officer and absence of the Test Identification Parade were also instrumental in demolishing the credibility of the investigation, and thus led to Hon’ble Mr. Justice Shah’s dissenting opinion.

(Para 24)

Vyas Ram v. State of Bihar [Bench Strength 2], Criminal Appeal No. 791/2009 (20/09/2013), 2013(11) SCALE 645 [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 21 Rules 90 & 83 — Execution — Inordinate delay in recovery — Judgment debtor failed to pay despite several opportunities — Suit was filed in 1955 and after passing final decree execution was filed in 1962 — Attachment was made for execution but sale was deferred on application of JD to make payment but payment was not made — Thereafter, property was auction sold, but again objection was filed on ground that sale was effectuated on lower price — Objection was allowed by Execution Court — However, Lower appellate court set aside the objection — In second appeal, High Court stayed the sale subject to condition that appellant JD should pay entire decretal amount within prescribed time — No payment was made within time, consequently stay was vacated automatically — Challenged — Plea of appellant that now entire decretal amount has been deposited in Court — Held, decree holders are unable to get the decretal amount despite filing execution in 1962 — Sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal — Practice and procedure — Much delay in execution.

HELD: We have heard the learned counsel and have also considered the facts of the case. It is really deplorable that the heirs of the plaintiff who had filed the original suit somewhere in 1955 are still unable to get the decretal amount. In our opinion, sufficient opportunities had been provided to the judgment debtor to pay the decretal amount but every time the appellant failed to pay the decretal amount within the period prescribed, this matter should have an end at this stage and therefore, we dismiss the appeal and the stay granted by this Court also stands vacated.

(Para 13)

Manju Swarup v. Bhupenshwar Prasad [Bench Strength 2], Civil Appeal No. 8398/2013 (Arising out of SLP (C) No. 6094/2007) (20/09/2013), 2013(11) SCALE 659 [Anil R. Dave, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Environment (Protection) Act, 1986 — Sections 5 & 3 — Transportation of animals and functioning of slaughter houses — Direction by Central Government — Direction for strict compliance — Held, in compliance of order passed by this Court dated 23.8.2012 and 9.7.2013, the Ministry of Environment and Forrest has formulated detail guidelines regarding transportation of animals and functioning of slaughter house, the text of the guidelines is extracted in this judgment — Some States have filed action taken report (ATR) in compliance of the previous orders — All States and other concerns are directed for strict compliance of guidelines of MoEF and those States who have not filed ATR are directed to file within three months — Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000 — Solid Wastes (Management and Handling) Rules, 2000 — Prevention of Cruelty to Animals (Slaughter House) Rules, 2000.

HELD: We reiterate the importance of proper implementation of the provisions of the Prevention of Cruelty to Animals (Establishment and Registration of Societies for Prevention of Cruelty to Animals) Rules, 2000, the Environment Protection Act, 1986, the Solid Wastes (Management and Handling) Rules, 2000 and the Prevention of Cruelty to Animals (Slaughter House) Rules, 2000. Over and above, it is also of extreme importance that all the State Governments, the State Animal Welfare Boards, Pollution Control Board etc. should scrupulously follow the guidelines issued by the MoEF, in obedience to the direction given by this Court on 10.10.2012.

(Para 3)

We direct all the State Governments/UTs and the Committees constituted to effectively follow the above-mentioned guidelines. For giving further directions, initially we are inclined to direct the States of Tamil Nadu, Karnataka, Kerala, Delhi, Maharashtra and Uttar Pradesh to implement the provisions of the Act mentioned earlier as well as the guidelines issued by the MoEF, and file an action taken report within three months. Post after three months along with the Action Taken Reports. Communicate the order to the Chief Secretaries of the above-mentioned States.

(Para 4)

Laxmi Narain Modi v. Union of India [Bench Strength 2], Writ Petition (C) No. 309/2003 (27/08/2013), 2013(11) SCALE 313: 2013(12) JT 348 [K.S. Radhakrishnan, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Bihar Municipal Officers and Servants Pension Rules, 1987 — Rules 4(ii) & 1 — Statutory right to pension — Denial by adopting resolution, Legality of — Pension Rules, 1987 came into effect but Municipal Corporation, disabled two employees/petitioners from exercising their option, by taking view that Rules were not applicable until adopted resolution to give pensionary benefits to its employees who had retired from service from the year 2000 onwards in accordance with Rules — Held, resolution was clearly in contravention of the Rules — Municipal Corporation cannot take advantage of such a disability caused by itself and deny their statutory right to pension under the Rules — Moreover, two employees have also not received part or whole of provident fund contribution although they have retired in 1996 and 1997 and hence they could not have been deemed to have exercised their option to retain existing provident fund — Impugned judgment set aside and appellants to be given the pensionary benefits including pension and family pension, as the case may be, in accordance with the Rules — Appeals allowed — Service and Labour Law — Pensionary benefits.

(Para 8 & 9)

(Para 6)

HELD: A bare reading of the Rules 1 and 4(i) of the Rules makes it clear that the Rules apply to permanent employees of the Municipalities and Notified Area Committees in the State of Bihar. Thus, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation were statutorily entitled to the pension under the Rules. Rule 4(ii) of the Rules provided further that municipal employees who retired before the date of effect of the Rules and received part or whole amount of provident fund contribution will not be eligible for pension. Hence, Municipal employees who had retired before the date of effect of the Rules and had received part or whole of provident fund contribution were not entitled for the pension under the Rules. In other words, all permanent employees of Municipalities and Notified Area Committees including the Ara Municipal Corporation had a statutory right to get pension if they had not retired before the date of effect of the Rules and had not received part or whole of provident fund contribution.

(Para 6)

Sanchari Devi v. Ara Municipal Corporation [Bench Strength 2], Civil Appeal Nos. 4802-4803/2013 Arising out of Special Leave Petition (C) Nos. 14922-14923/2009 (25/06/2013), 2013(9) SCALE 694 [A.K. Patnaik, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Summon to face trial — Absence of evidence on record, Sustainability of — Appeal preferred against order passed by ASJ, summoning appellant to face trial for an offence punishable under Sections 304 and 115 of IPC, based on accusation made by respondent No.2 that he is guilty of the offence in view of dying declaration of husband/deceased in which he stated that his wife threw kerosene oil lamp over him when he snatched the mobile from her, who was alleged to be talking with appellant — Held, it does not appear from evidence that appellant committed offence for which such person could be tried together with accused — Appellant was not present at the time of the incident which took place in the house of the couple nor was he anywhere near it — There is no allegation that the appellant has instigated or inferenced his wife to throw the kerosene lamp over him or to attack oil lamp over deceased or to attack him — Appellant therefore could not have committed the offence under Sections 304 and 115 of IPC — Appeal allowed — Penal Code, 1860 — Sections 304 & 115 — Summing order under — Quashing of.

(Para 4 & 5)

Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Power of court to proceed from evidence on record — Held, Court is empowered in the course of an inquiry or trial of an offence to proceed against a person for in offence from the evidence on record.

(Para 4)

Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 319 — Reference of evidence under — Interpretation of — Held, evidence refers to evidence which is already brought on record and not the evidence already brought on record when the order under Section 319 is made and not evidence which is brought on record for the trial of the person added as an accused.

Sarojben Ashwin Kumar Shah v. State of Gujarat & Anr., III (2011) BC 543 (SC): III (2011) CCR 273 (SC): VI (2011) SLT 119: III (2011) DLT (Crl.) 615 (SC): 2011 (74) ACC 951, Referred.

(Para 4)

Vikas v. State of Uttar Pradesh [Bench Strength 2], Criminal Appeal Nos. …./2013 (08/07/2013), 2013(7) SLT 513 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Grant of benefit, Without recording statement of complainant, Effect of — Complaint, alleging kidnapping of appellant by private respondents — Charge sheet only for offences punishable under Sections 323, 343 read with Section 34 IPC — Trial court allowed application of respondents-accused for pleading guilty and further given them benefit of Probation of the Offenders Act, 1958 — By impugned order, High Court rejected the application filed by appellant for setting aside the judgment and order passed by trial court — Appeal –Held, trial court proceeded not only in great haste, but adopted a procedure not known in law — High Court failed to appreciate that before the statement of appellant or any other witness could be recorded, trial court disposed off the matter on the date when the application itself had been submitted admitting the guilt — Appeal allowed — Judgment and order of trial court as well as of High Court are set aside — Matter remitted to trial court to be decided afresh in accordance with law — Probation of Offenders Act, 1958 — Section 12 — Benefit under — Without issuing notice to victim, Effect of.

State of U.P. v. Ranjit Singh, AIR 1999 SC 1201 & Shankar Dass v. Union of India & Anr., AIR 1985 SC 772, Relied on.

(Para 9, 13 & 14)

Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Observation of conviction not adversely affecting services of accused, Legality of — Trial court while allowing application of respondents-accused for pleading guilty, observed that order of conviction would not adversely affect the services of respondents-accused — Challenged — Held, trial court had no competence to make any observation having civil consequences so far as the private respondents are concerned.

Sushil Kumar Singhal v. Regional Manager, Punjab National Bank, (2010) 8 SCC 573 & Karamjit Singh v. State of Punjab, (2009) 7 SCC 178, Referred.

(Para 13)

Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Chapter 21-A — Plea bargaining — Grant of benefit, Requirement of notice to victim — Held, if trial court wanted to entertain any issue of plea bargaining, then too court was obliged to put the victim to notice before extending any such benefits that have been given in the present case.

(Para 13)

Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 228/251 r/w Sections 216 & 217 — Alteration of charges — Opportunity of hearing to accused, Requirement of — Held, filing of charge sheet and taking cognizance has nothing to do with the finality of charges, as charges framed after the cognizance is taken by the court, can be altered/amended/changed and any charge can be added at any stage upto the stage of conviction — Only legal requirement is that, accused is entitled to an opportunity of show- cause/hearing.

Umesh Kumar v. State of A.P., JT 2013 (12) SC 213, Referred.

(Para 6)

Girraj Prasad Meena v. State of Rajasthan [Bench Strength 2], Criminal Appeal No. 1547/2013 (30/09/2013), Criminal Appeal No. 1547/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Bombay Public Trust Act, 1950 — Section 18 — Unification of churches and formation of CNI — Resolution to accept unification, Lack of reference of dissolution of FDCB, Effect of — Unification of six churches which included the FDCB, when CNI was formed — Charity Commissioner dismissed the objections raised against the Change Reports, allowing the properties vested in FDCB to be vested in CNI — Civil Court Judge quashed and set aside the order of Charity Commissioner — Single Judge confirmed order of Civil Court — Challenged — Held, unification has no legal foundation — FDCB is a religious society registered under the Societies Registration Act and its property vests with a Trust regulated by the BPTA — Procedure for dissolution of FDCB has not conformed to the requirements of the SR Act and the procedure as laid down in the BPT Act — Society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust — Resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution — Appeals dismissed — Societies Registration Act, 1860 — Sections 13 & 5 — Formation of society — Non-compliance of provisions of statute — Effect of.

Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.

The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 & Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors., AIR 1954 SC 388, Distinguished.

(Para 12, 15, 17, 25 & 26)

(Para 15)

Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.

(Para 22)

Vinod Kumar Mathurseva Malvia & Anr. v. Maganlal Mangaldas Gameti and Ors., 2006 (9) SCC 282 & Church of North India v. Lavajibhai Ratanjibhai & Ors., 2005 (10) SCC 760, Relied on.

(Para 23)

(Para 12)

(Para 13)

Vinod Kumar M. Malavia v. Maganlal Mangaldas Gameti [Bench Strength 2], Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) (30/09/2013), Civil Appeal Nos. 8800-8801/2013 (Arising out of Special Leave Petition (Civil) Nos. 16575-16576/2012) [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 156(3) — Complaint against public servant — Investigation at pre-cognizance stage, Requirement of sanction — Private complaint on allegations of offences punishable under PC Act — Special Judge/Magistrate directed investigation by Deputy Superintendent of Police, without production of valid sanction order — High Court quashed the order passed by Special Judge, as well as complaint — Appeals by complainants — Held, once it is noticed that there was no previous sanction, Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. — No error in the order passed by High Court — Appeals dismissed — Prevention of Corruption Act, 1988 — Sections 19 & 2(c) — Sanction — Pre-condition for ordering investigation.

State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Subramanium Swamy v. Manmohan Singh and another, (2012) 3 SCC 64 & General Officer, Commanding v. CBI, Criminal Appeal No. 257 of 2011, Relied on.

(Para 13)

Maksud Saiyed v. State of Gujarat and Others, (2008) 5 SCC 668, Relied on.

(Para 8)

State of Uttar Pradesh v. Paras Nath Singh, (2009) 6 SCC 372, Referred.

(Para 10)

(Para 11)

Anil Kumar v. M.K. Aiyappa [Bench Strength 2], Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) (01/10/2013), Criminal Appeal Nos. 1590-1591/2013 (@ Special Leave Petition (Criminal) Nos. 6652-6653/2013) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 — Section 59 — Direction of Chief Commissioner — For inclusion of cadre in list of identified posts, Validity of — Respondent applied for promotion under physically handicapped person`s quota after availing all facilities of restructured Cadre — Chief Commissioner entertained the complaint and directed the appellants to include the TOA cadre which is required to do clerical work and other such jobs in the list of identified jobs — Challenged — Held, promotion in the physically handicapped quota was limited to certain categories of posts — Since the respondent was a TOA, which was not identified for the purpose of reservation for physically handicapped persons and hence his claim for promotion to Grade-IV could not be allowed since the promotion to the Grade was based on seniority in the basic cadre and in fact there was no reservation even for SC/ST candidates for promotion to Grade-IV — Appeal allowed.

(Para 9, 10 & 11)

(Para 12)

Bharat Sanchar Nigam Limited v. G. Sarvothaman [Bench Strength 2], Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) (04/10/2013), Civil Appeal No. 8947/2013 (Arising out of S.L.P. (Civil) No. 24120/2007) [K.S. Radhakrishnan, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Arbitration Act, 1940 — Sections 20 & 21 — Reference to arbitration — B-1 Agreements, Lack of clause to confer role of arbitrator, Effect of — B-1 Agreements between Government of Maharashtra and appellant — Dispute arose between parties and recovery proceedings initiated before court — Trial Court declared that Clause 30 of B-1 Agreement is an arbitration clause and appointed Chief Engineer (PWD) as an Arbitrator and referred all the disputes to him — In Revision Application filed by respondents against the order of the trial Court, Single Judge held that Clause 30 of B-1 Agreement cannot be treated as an arbitration clause — Appeal — Held, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle — High Court rightly held that Clause 30 of B-I Agreement is not an Arbitration Agreement and the trial Court was not right in appointing the Chief Engineer as an Arbitrator — Appeals dismissed

Bihar State Mineral Development Corporation and another v. Encon Builders (I)(P) Limited, (2003) 7 SCC 418, Referred.

Mallikarjun Vs. Gulbarga University, 2004 (1) SCC 372 & Punjab State v. Dina Nath, (2007) 5 SCC 28, Distinguished.

(Para 17 & 31)

State of U.P. Vs. Tipper Chand, 1980(2) SCC 341, State of Maharashtra v. M/s. Ranjeet Constructio, Civil Appeal No. 4700/1985, State of Orissa Vs. Damodar Das, 1996 (2) SCC 216, K.K. Modi v. K.N. Modi (1998) 3 SCC 573 & Bharat Bhushan Bansal v. U.P. Small Industries Corporation Limited, Kanpur, (1999) 2 SCC 166, Relied on.

(Para 17)

HELD: A conjoint reading of Clauses 29 and 30 of B-1 Agreements entered into between the parties shows that the appellant had to execute all works subject to the approval in all respects of Superintending Engineer of the Circle, who could issue directions from time to time about the manner in which work was to commence and execute. By virtue of Clause 30, decision of the Superintending Engineer of the Circle was made final, conclusive and binding on all the parties in respect of all questions relating to the meaning of the specifications, designs, drawings, quality of workmanship or materials used on the work or any other question relating to claim, right, matter or things arising out of or relating to the contract designs, drawings, specifications, estimates, instructions, orders, etc. These two clauses by which the Superintending Engineer was given over all supervisory control were incorporated for smooth execution of the works in accordance with the approved designs and specifications and also to ensure that quality of work is not compromised. The power conferred upon the Superintending Engineer of the Circle was in the nature of a departmental dispute resolution mechanism and was meant for expeditious sorting out of problems which could crop up during execution of the work. Since the Superintending Engineer was made overall in-charge of all works to be executed under the contract, he was considered by the parties to be the best person who could provide immediate resolution of any controversy relating to specifications, designs, drawings, quality of workmanship or material used, etc. It was felt that if all this was left to be decided by the regular civil Courts, the object of expeditious execution of work of the project would be frustrated. This is the primary reason why the Superintending Engineer of the Circle was entrusted with the task of taking decision on various matters. However, there is nothing in the language of Clause 30 from which it can be inferred that the parties had agreed to confer the role of arbitrator upon the Superintending Engineer of the Circle.

(Para 17)

Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Section 2(a) — Arbitration agreement — Circulars issued by State Government to interpret, Binding effect of — Held, circulars issued by the State Government may provide useful guidance to the authorities involved in the implementation of the project but the same are not conclusive of the correct interpretation of the relevant clauses of the agreement and, in any case, Government`s interpretation is not binding on the Courts.

(Para 32)

Vishnu v. State of Maharashtra [Bench Strength 3], Civil Appeal No. 3680/2005 (04/10/2013), Civil Appeal No. 3680/2005 [G.S. Singhvi, J.: V. Gopala Gowda, J.: C. Nagappan, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Dismissal from service — Misconduct of forcibly entering Principal`s office, During duty hours in inebriated condition, Proportionality of — Penalty of `removal` from the service — High Court modified the penalty and imposed lesser punishment — Appellant-school approached Supreme Court — Held, entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal`s room would constitute a serious misconduct — Penalty of removal for such a misconduct cannot be treated as disproportionate — In all cases dealing with the penalty of removal, dismissal or compulsory retirements, hardship would result — That cannot a ground for the Court to interdict with the penalty — Reasoning of the High Court unacceptable — Appeal allowed — Punishment of removal of respondent from service is upheld — Central Civil Services (Classification, Control and Appeal) Rules, 1965 — Rule 14 — Misconduct — Central Civil Services (Conduct) Rules, 1964 — Rule 20 — Misconduct — Constitution of India — Articles 226 & 227 — Punishment — Interference by high Court, Effect of.

H.G.E. Trust & Anr. vs. State of Karnataka & Ors., (2006) 1 SCC 430 Karnataka Bank Ltd. Vs. A.L. Mohan Rao, (2006) 1 SCC 63, Ex-Constable Ramvir Singh vs. Union of India & Ors., (2009) 3 SCC 97 & Charanjit Lamba vs. Commanding Officer, (2010) 11 SCC 314, Referred.

(Para 11, 12 & 13)

(Para 10)

(Para 6)

HELD: When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the-delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal.

(Para 6)

(Para 11)

Council of Civil Service Unions vs. Minister for Civil Service & Ranjit Thakur vs. Union of India (1987) 4 SCC 611, Referred.

(Para 7)

HELD: When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with doctrine of Wednesbury Rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary.

(Para 7)

Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad, (2010) 5 SCC 775, Referred.

(Para 6)

Deputy Commissioner, KVS v. J. Hussain [Bench Strength 2], Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) (04/10/2013), Civil Appeal No. 8948/2013 (Arising Out/the SLP (Civil) No. 18271/2006) [Sudhansu Jyoti Mukhopadhaya, J.: A.K. Sikri, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 354 — Appeal against conviction — Concurrent findings of court below, Guilt proved beyond reasonable doubt, Effect of — Appellant suddenly came on the way of complainant and forcibly caught hold of her hair and planted a kiss, resultantly, she suffered a cut over her lower lip and started bleeding — Claimed for benefit under Probation of Offenders Act, 1958 — Held, this court not inclined to re-appreciate the evidence and same is also not warranted in view of the fact that the complainant, who had no enmity against the appellant has been very consistent about the factual matrix not only in her statement under Section 161 of Cr.P.C. but also before the court and had supported the prosecution case fully — Her version was corroborated by several other witnesses and the courts below have recorded a finding that the appellant was guilty beyond reasonable doubt — As appellant behaved like a road side Romeo, not a fit case where the benefit of the Act 1958 should be given to the appellant — Probation of Offenders Act, 1958 — Section 12 — Denial of benefit under.

Musa Khan & Ors. v. State of Maharashtra, AIR 1976 DV 2566, Karamjit Singh v. State of Punjab, (2009) 7 SCC 178 & State of Himachal Pradesh v. Dharam Pal, (2004) 9 SCC 681, Referred.

(Para 7 & 12)

Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Chinnadurai v. State of Tamil Nadu, AIR 1996 SC 546, State of U.P. v. Shri Kishan, AIR 2005 SC 1250 & Sadhupati Nageswara Rao v. State of Andhra Pradesh, AIR 2012 SC 3242, Relied on.

(Para 21 & 22)

State of Punjab v. Major Singh, AIR 1967 SC 63, Aman Kumar v. State of Haryana, AIR 2004 SC 1497; Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677; Turkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr., AIR 1996 SC 309, Vishaka & Ors. v. State of Rajasthan & Ors., AIR 1997 SC 3011 & Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, Referred.

(Para 14)

Abuzar Hossain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489, Relied on.

(Para 13)

Ajahar Ali v. State of West Bengal [Bench Strength 2], Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) (04/10/2013), Criminal Appeal No. 1623/2013 (Arising out of SLP (Crl.) No. 2817/2013) [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 21, 14 & 309 — Trial by Special Judge — Continuation on contractual basis after retirement, Allowability of — Prosecution against petitioners for having assets disproportionate to their known income — State Government passed an order whereby directed respondent no.4, Special Public Prosecutor not to appear in the pending prosecution against petitioners, impending his retirement — Petitioners challenged validity of action of State Government removing Respondent No. 4 on the ground that fundamental rights for speedy trial have been breached — Held, order of removal of respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed — State Government is competent to appoint Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court — Therefore, matter referred to High Court to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of Special Judge — Karnataka Civil Services (General Recruitment) Rules, 1977 — Rule 11(2) — Fair trial.

Chandramouleshwar Prasad v. The Patna High Court & Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal Sheth & Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat & Anr. v. Justice R.A. Mehta (Retired) & Ors., (2013) 3 SCC 1, Distinguished.

(Para 30 & 31)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 21 — Fair trial — Right of every accused — Held, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case — Criminal Law — Fair trial — Right of every accused.

(Para 26)

HELD: Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the `majesty of the law’ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also.

(Para 26)

Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State of M.P., (2012) 4 SCC 516 & Natasha Singh v. CBI, (2013) 5 SCC 741, Referred.

(Para 26)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 142 — Exercise of extraordinary power — Order violating statutory provisions, Permissibility of — Held, Supreme Court generally should not pass any order in exercise of its extraordinary power to do complete justice if such order violates any statutory provisions.

Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors., (2004) 2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099 & State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537, Referred.

(Para 29)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Discretionary power — Exercise for unlawful purpose, Effect of — Held, if discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith and the order becomes vulnerable and liable to be set aside.

State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., AIR 2011 SC 3470, M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors., AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India Manufacturers Organization & Ors., AIR 2006 SC 1846; A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR 2011 SC 3298, Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC 49, Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR 2012 SC 1339 & Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745, Referred.

(Para 25)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Consultation — Involvement of authorities for — Held, whenever consultation is mandated by law, it necessarily involves two authorities; one, on whom a duty is cast to consult and the other who has the corresponding right(s) to be consulted — Constitution of India — Article 235 — Consultation.

(Para 17)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Consultation — Failure to consult, Effect of — Held, it is not legitimate for the party who has a duty to consult and who has failed in that duty, to make a grievance that there has been no consultation — Constitution of India — Article 235 — Consultation.

(Para 17)

Selvi J. Jayalalithaa v. State of Karnataka [Bench Strength 2], Writ Petition (Criminal) No. 154/2013 (30/09/2013), Writ Petition (Criminal) No. 154/2013 [B.S. Chauhan, J.: S.A. Bobde, J.] <<LAWPACK SUPREME COURT>>
Statute Law — Statute — Proving certain manner to do, Effect of — Held, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all.

State of Uttar Pradesh v. Singhara Singh & Ors., AIR 1964 SC 358 & Accountant General, State of Madhya Pradesh v. S.K. Dubey & Anr., (2012) 4 SCC 578, Referred.

(Para 29)

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