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Chanmuniya Vs Chanmuniya Virendra Kumar Singh Kushwaha and Another [SC 2010 October]

Keywords :- Live in relationship:- wife-

Criminal Law-min

 Women in live-in relationships are also entitled to all the reliefs given in the said Act.

[ref: to larger bench]

(SUPREME COURT OF INDIA)

(Before : G. S. Singhvi and Asok Kumar Ganguly, JJ.)

Civil Appeal No. … of 2010 (Arising out of SLP (Civil) No. 15071 of 2009);

Decided On: 07-10-2010

Criminal Procedure Code, 1973—Section 125—Maintenance—Presumption of valid marriage—Man and woman living together for a long time without valid marriage—Where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay woman maintenance if he deserts her—Man should not be allowed to benefit from legal loopholes by enjoying advantages of a de facto marriage without undertaking duties and obligations.

Protection of Women from Domestic Violence Act, 2005—Section 20—Criminal Procedure Code, 1973—Section 125—Wife—Interpretation—Court has to take a broad view of definition of wife having regard to social object of Section 125—Women in live-in relationships are also entitled to all reliefs given in Act of 2005—If monetary relief and compensation can be awarded in cases of live-in relationships under Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C.

Hindu Marriage Act, 1955—Sections 9, 7, 7(1) and 28—Criminal Procedure Code, 1973—Sections 125 and 488—Constitution of India, 1950—Articles 15(3) and 39—Penal Code, 1860—Section 494.

JUDGMENT

Asok Kumar Ganguly, J—Leave granted.

2. One Sarju Singh Kushwaha had two sons, Ram Saran (elder son) and Virendra Kumar Singh Kushwaha (younger son and the first respondent). The appellant, Chanmuniya, was married to Ram Saran and had 2 daughters-Asha, the first one, was born in 1988 and Usha, the second daughter, was born in 1990. Ram Saran died on 7.03.1992.

3. Thereafter, the appellant contended that she was married off to the first respondent as per the customs and usages prevalent in the Kushwaha community in 1996. The custom allegedly was that after the death of the husband, the widow was married off to the younger brother of the husband. The appellant was married off in accordance with the local custom of Katha and Sindur. The appellant contended that she and the first respondent were living together as husband and wife and had discharged all marital obligations towards each other. The appellant further contended that after some time the first respondent started harassing and torturing the appellant, stopped her maintenance and also refused to discharge his marital obligations towards her.

4. As a result, she initiated proceedings under Section 125 of the Cr.P.C. for maintenance (No. 20/1997) before the 1st Additional Civil Judge, Mohamadabad, Ghazipur. This proceeding is pending.

5. She also filed a suit (No. 42/1998) for the restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in the Court of 1st Additional District Judge, Ghazipur.

6. The Trial Court decreed the suit for restitution of conjugal rights in favour of the appellant on 3.1.2004 as it was of the opinion that the appellant had remarried the first respondent after the death of Ram Saran, and the first respondent had deserted the appellant thereafter. Thus, it directed the first respondent to live with the appellant and perform his marital duties.

7. Hence, the first respondent preferred a first appeal (No. 110/2004) under Section 28 of the Hindu Marriage Act. The main issue in appeal was whether there was any evidence on record to prove that the appellant was the legally wedded wife of the first respondent. The High Court in its judgment dated 28.11.2007 was of the opinion that the essentials of a valid Hindu marriage, as required under Section 7 of the Hindu Marriage Act, had not been performed between the first respondent and the appellant and held that the first respondent was not the husband of the appellant and thus reversed the findings of the Trial Court.

8. Aggrieved by the aforesaid judgment of the High Court, the appellant sought a review of the order dated 28.11.2007. The review petition was dismissed on 23.01.2009 on the ground that there was no error apparent on the face of the record of the judgment dated 28.11.2007.

9. Hence, the appellant approached this Court by way of a special leave petition against the impugned orders dated 28.11.2007 and 23.01.2009.

10. One of the major issues which cropped up in the present case is whether or not presumption of a marriage arises when parties live together for a long time, thus giving rise to a claim of maintenance under Section 125 Cr.P.C. In other words, the question is what is meant by ‘wife’ under Section 125 of Criminal Procedure Code especially having regard to explanation under Clause (b) of the Section.

11. Thus, the question that arises is whether a man and woman living together for a long time, even without a valid marriage, would raise as in the present case, a presumption of a valid marriage entitling such a woman to maintenance.

12. On the question of presumption of marriage, we may usefully refer to a decision of the House of Lords rendered in the case of Lousia Adelaide Piers and Florence A.M. De Kerriguen v. Sir Henry Samuel Piers (1849) II HLC 331, in which their Lordships observed that the question of validity of a marriage cannot be tried like any other issue of fact independent of presumption. The Court held that law will presume in favour of marriage and such presumption could only be rebutted by strong and satisfactory evidence.

13. In Lieutenant C.W. Campbell v. John A.G. Campbell (1867) Law Rep. 2 HL 269, also known as the Breadalbane case, the House of Lords held that cohabitation, with the required repute, as husband and wife, was proof that the parties between themselves had mutually contracted the matrimonial relation. A relationship which may be adulterous at the beginning may become matrimonial by consent. This may be evidenced by habit and repute. In the instant case both the appellant and the first respondent were related and lived in the same house and by a social custom were treated as husband and wife. Their marriage was solemnized with Katha and Sindur. Therefore, following the ratio of the decisions of the House of Lords, this Court thinks there is a very strong presumption in favour of marriage. The House of Lords again observed in Captain De Thoren v. The Attorney-General (1876) 1 AC 686, that the presumption of marriage is much stronger than a presumption in regard to other facts.

14. Again in Sastry Velaider Aronegary and his wife v. Sembecutty Viagalie and Ors. (1881) 6 AC 364, it was held that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

15. In India, the same principles have been followed in the case of A. Dinohamy v. W.L. Balahamy AIR 1927 P.C. 185, in which the Privy Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

16. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan and Ors. AIR 1929 PC 135, the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.

17. In the case of Gokal Chand v. Parvin Kumari AIR 1952 SC 231, this Court held that continuous co- habitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long co- habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

18. Further, in the case of Badri Prasad v. Dy. Director of Consolidation and Ors., (1978) 3 SCC 527, the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.

19. Again, in Tulsa and Ors. v. Durghatiya and Ors., (2008) 4 SCC 520, this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.

20. Sir James Fitz Stephen, who piloted the Criminal Procedure Code of 1872, a legal member of Viceroy’s Council, described the object of Section 125 of the Code (it was Section 536 in 1872 Code) as a mode of preventing vagrancy or at least preventing its consequences.

21. Then came the 1898 Code in which the same provision was in Chapter XXXVI Section 488 of the Code. The exact provision of Section 488(1) of the 1898 Code runs as follows:

488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

22. In Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521, the Supreme Court observed with respect to Chapter XXXVI of Cr.P.C. of 1898 that provisions for maintenance of wives and children intend to serve a social purpose. Section 488 prescribes forums for a proceeding to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief.

23. In Nanak Chand v. Chandra Kishore Aggarwal and Ors., (1969) 3 SCC 802, the Supreme Court, discussing Section 488 of the older Cr.P.C, virtually came to the same conclusion that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties.

24. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors., AIR 1978 SC 1807, this Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Speaking for the Bench Justice Krishna Iyer observed that- “We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause- the cause of the derelicts.” (Para 9 on pages 1809-10)

25. Again in Vimala (K) v. Veeraswamy (K), (1991) 2 SCC 375, a three-Judge Bench of this Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. Explaining the meaning of the word ‘wife’ the Court held:

…The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept-mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage. The term ‘wife’ in Section 125 of the Code of Criminal Procedure, includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried. The woman not having the legal status of a wife is thus brought within the inclusive definition of the term ‘wife’ consistent with the objective….

26. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.

27. The Committee on Reforms of Criminal Justice System, headed by Dr. Justice V.S. Malimath, in its report of 2003 opined that evidence regarding a man and woman living together for a reasonably long period should be sufficient to draw the presumption that the marriage was performed according to the customary rites of the parties. Thus, it recommended that the word ‘wife’ in Section 125 Cr.P.C. should be amended to include a woman who was living with the man like his wife for a reasonably long period.

28. The Constitution Bench of this Court in Mohammad Ahmed Khan v. Shah Bano Begum and Ors. reported in, (1985) 2 SCC 556, considering the provision of Section 125 of the 1973 Code, opined that the said provision is truly secular in character and is different from the personal law of the parties. The Court further held that such provisions are essentially of a prophylactic character and cut across the barriers of religion. The Court further held that the liability imposed by Section 125 to maintain close relatives, who are indigent, is founded upon the individual’s obligation to the society to prevent vagrancy and destitution.

29. In a subsequent decision, in Dwarika Prasad Satpathy v. Bidyut Prava Dixit and Anr., (1999) 7 SCC 675, this Court held that the standard of proof of marriage in a Section 125 proceeding is not as strict as is required in a trial for an offence under Section 494 of IPC. The learned Judges explained the reason for the aforesaid finding by holding that an order passed in an application under Section 125 does not really determine the rights and obligations of parties as the section is enacted with a view to provide a summary remedy to neglected wives to obtain maintenance. The learned Judges held that maintenance cannot be denied where there was some evidence on which conclusions of living together could be reached. (See para 9)

30. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and Anr. reported in, AIR 1988 SC 644, a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper. (See para 6). The learned Judges also held (paras 4 & 8) that the expression ‘wife’ in Section 125 of the Code should be interpreted to mean only a legally wedded wife.

31. Again in a subsequent decision of this Court in Savitaben Somabhat Bhatiya v. State of Gujarat and Ors. reported in, AIR 2005 SC 1809, this Court held however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ‘wife’. The Bench held that this inadequacy in law can be amended only by the Legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in the Yamunabai case (supra).

32. It is, therefore, clear from what has been discussed above that there is a divergence of judicial opinion on the interpretation of the word ‘wife’ in Section 125.

33. We are inclined to take a broad view of the definition of ‘wife’ having regard to the social object of Section 125 in the Code of 1973. However, sitting in a two-Judge Bench, we cannot, we are afraid, take a view contrary to the views expressed in the abovementioned two cases.

34. However, law in America has proceeded on a slightly different basis. The social obligation of a man entering into a live-in relationship with another woman, without the formalities of a marriage, came up for consideration in the American courts in the leading case of Marvin v. Marvin (1976) 18 Cal. 660. In that context, a new expression of ‘palimony’ has been coined, which is a combination of ‘pal’ and ‘alimony’, by the famous divorce lawyer in the said case, Mr. Marvin Mitchelson.

35. In the Marvin case (supra), the plaintiff, Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement which provided that while “the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” The parties allegedly further agreed that Michelle would “render her services as a companion, homemaker, housekeeper and cook.” Michelle sought a judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship. The Supreme Court of California held as follows:

(1) The provisions of the Family Law Act do not govern the distribution of property acquired during a non-marital relationship; such a relationship remains subject solely to judicial decision.

(2) The courts should enforce express contracts between non-marital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services.

(3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

36. Though in our country, law has not developed on the lines of the Marvin case (supra), but our social context also is fast changing, of which cognizance has to be taken by Courts in interpreting a statutory provision which has a pronounced social content like Section 125 of the Code of 1973.

37. We think the larger Bench may consider also the provisions of the Protection of Women from Domestic Violence Act, 2005. This Act assigns a very broad and expansive definition to the term ‘domestic abuse’ to include within its purview even economic abuse. ‘Economic abuse’ has been defined very broadly in sub-explanation (iv) to explanation I of Section 3 of the said Act to include deprivation of financial and economic resources.

38. Further, Section 20 of the Act allows the Magistrate to direct the respondent to pay monetary relief to the aggrieved person, who is the harassed woman, for expenses incurred and losses suffered by her, which may include, but is not limited to, maintenance under Section 125 Cr.P.C. (Section 20(1)(d)).

39. Section 22 of the Act confers upon the Magistrate, the power to award compensation to the aggrieved person, in addition to other reliefs granted under the Act.

40. In terms of Section 26 of the Act, these reliefs mentioned above can be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent.

41. Most significantly, the Act gives a very wide interpretation to the term ‘domestic relationship’ as to take it outside the confines of a marital relationship, and even includes live-in relationships in the nature of marriage within the definition of ‘domestic relationship’ under Section 2(f) of the Act.

42. Therefore, women in live-in relationships are also entitled to all the reliefs given in the said Act.

43. We are thus of the opinion that if the abovementioned monetary relief and compensation can be awarded in cases of live-in relationships under the Act of 2005, they should also be allowed in a proceedings under Section 125 of Cr.P.C. It seems to us that the same view is confirmed by Section 26 of the said Act of 2005.

44. We believe that in light of the constant change in social attitudes and values, which have been incorporated into the forward-looking Act of 2005, the same needs to be considered with respect to Section 125 of Cr.P.C. and accordingly, a broad interpretation of the same should be taken.

45. We, therefore, request the Hon’ble Chief Justice to refer the following, amongst other, questions to be decided by a larger Bench. According to us, the questions are:

1. Whether the living together of a man and woman as husband and wife for a considerable period of time would raise the presumption of a valid marriage between them and whether such a presumption would entitle the woman to maintenance under Section 125 Cr.P.C?

2. Whether strict proof of marriage is essential for a claim of maintenance under Section 125 Cr.P.C. having regard to the provisions of Domestic Violence Act, 2005?

3. Whether a marriage performed according to customary rites and ceremonies, without strictly fulfilling the requisites of Section 7(1) of the Hindu Marriage Act, 1955, or any other personal law would entitle the woman to maintenance under Section 125 Cr.P.C.?

46. We are of the opinion that a broad and expansive interpretation should be given to the term ‘wife’ to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.

47. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.


JT 2010 (11) SC 132 : (2011) 1 SCC 141 : (2010) 10 SCALE 602

Counsel for Parties: Altaf Ahmad and P.S. Patwalia, Sr. Advs., Sibo Sankar Mishra and M. Indrani, Advs.   Mona K. Rajvanshi, Anurag Kashyap and B.K. Shahi, Advs.

Pallavi Bhardwaj Vs Pratap Chauhan[SC 2011]

Keywords:-Validity of Marriage-

SC INDEx

The High Court without coming to any finding about the validity of marriage and after recording that the validity of marriage was always denied by the Appellant gave certain directions which are wholly inconsistent with the facts of the case. Since no marriage has been established, directions given by the High Court are wholly inappropriate.

(SUPREME COURT OF INDIA)

Respondent

(Before : G.S. Singhvi and Asok Kumar Ganguly, JJ.)

Civil Appeal No. 5054 of 2011 (Arising out of SLP (C) No. 17485 of 2008) : Decided On: 04-07-2011

Hindu Marriage Act, 1955—Section 9—Restitution of conjugal rights

JUDGMENT

Asok Kumar Ganguly, J—Leave granted.

2. Heard learned Counsel for the parties and carefully perused the record.

3. This appeal is from a judgment and order datec 25.4.2008 passed by the Division Bench of the High Court in First Appeal No. 328/2008. The Division Bench of the High Court in the impugned judgment disposed of the First Appeal with certain directions relating to so-called matrimonial dispute between the parties.

4. The case is based on very peculiar facts. The grievances of the Appellant are that there is no marriage between him and the Respondent but the Respondent in order to defame her in society filed a suit for restitution for conjugal rights, inter alia, on the ground that marriage between them took place on 28th October, 2007. It is an admitted position that there is no valid document evidencing marriage. Nor is there any acceptable evidence of marriage. The Principal Judge, Family Court, Meerut in his judgment and order dated 01.04.2008 has elaborately discussed the facts. Since the facts have been very elaborately discussed in the judgment of the Family Court, the same need not be repeated here. The Family Court came to a finding that the attempt of the husband is to blackmail the Appellant herein and the Respondent husband had already married Smt. Seema, D/o Shri Jeet Singh, R/o 263 Begum Bagh, Meerut and a daughter was born in connection with the said marriage and was studying in school. In the background of those facts the Principal Judge, Family Court, Meerut held since there is no marriage there is no question of restitution. The Family Court, therefore, dismissed the said petition with cost of ` 2 lacs.

5. From the said judgment, an appeal was filed before the High Court in which the Division Bench of the High Court has taken very peculiar stand in proceeding by trying for conciliation. The High Court has noted that the Appellant girl has categorically denied the existence of marriage and the existence of joint account in a bank. The High Court has not recorded anywhere about the validity of the marriage. Even then the High Court strangely enough explored the possibility of a settlement between the parties. The High Court without coming to any finding about the validity of marriage and after recording that the validity of marriage was always denied by the Appellant gave certain directions which are wholly inconsistent with the facts of the case. Since no marriage has been established, directions given by the High Court are wholly inappropriate.

6. Therefore, the order of the High Court is set aside and we restore the judgment of the Family Court with cost of ` 2 lacs to be paid by the Respondent within 3 months in favour of Supreme Court Mediation Centre, New Delhi.

7. The appeal is thus allowed with costs of ` 2 lacs as aforesaid.


JT 2011 (8) SC 159 : (2011) 7 SCALE 625

Counsel for the Parties:

K.P.S. Dalal, Anil Karanwal and Satpal Singh (AOR), Advs.

S.R. Singh, Sr. Adv., Nagendra Singh and Vishwa Pal Singh, Advs.


 

Exhibit Meaning

7d0ff-dictionary

About the meaning of the word “exhibit”, a question rose before the Calcutta High Court in the case of Rakhaldas Pramanick v. Sm. Shantilata Ghose and others ­ AIR 1956 Calcutta 619 wherein it is made clear that “Exhibit” means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed. Let me therefore make it clear that the document when it is exhibited, the Court, while exhibiting the same does not finally decide the rights of the parties, or form any opinion, or express any opinion on the document or on the point that arises for consideration. In short, no legal complexion is given to the issues that arise for consideration. After the hearing is over, while finally adjudicating, the Court is free to discard a particular document holding that it was not duly proved or holding that the document was partly proved namely, execution alone thereof was proved, but as the contents thereof were not proved, the same cannot be taken into account. If either of the parties later on files during the course of the hearing an application to expunge the document admitted in record, the court may hearing the parties expunge the same if it finds that the document is not legally and correctly proved & exhibited. In short, by exhibiting the document merits or demerits thereof are not dissected, and the rights and obligations of the parties are not finally decided, or legal complexion is not given to the issue that arises for consideration as giving exhibit to the document is the procedural aspect of the matter and it merely shows that document is formally proved. The rights & obligations of the parties are to be decided while finally appreciating the evidence for the purpose of 22 of 50pronouncing final verdict. In view of the matter, the order passed, admitting the letters and greeting cards, in evidence can be said to be the interlocutory order.

Some of the decisions on the point in support of my such view may be referred to. In the case of Indra Nath Guha v. State of West Bengal ­ 1979 Cri. L.J. NOC 129 (CAL.),when likewise question was raised with regards to the admissibility of the oral evidence, it is held that the order concerning the admissibility of oral evidence is an interlocutory order and not the final order. This decision can mutatis mutandis be made applicable to the documentary evidence also. The Allahabad High Court in the case of Bhaiyalal v. Ram Din ­ AIR 1989 Allahabad 130 has held that by mere fact the document is exhibited, it does not follow that the Court stands precluded from examining the question on the basis of evidence led by the parties whether the document in question was exempted by the party by which it purports to have been executed. The fact that document is exhibited, it merely establishes that it has been formally proved. But where the execution of the document is challenged, the court of fact is clearly entitled to weigh the evidence led by the parties and decide whether the document was really executed by the party alleged to have executed the same. In Manohar Nath Sher v. State of J. & K. ­ 1980 CRI. L.J. 292, it is held that order allowing or disallowing the production of the document does not put an end to proceedings in which the order is made. Such an order is only a step in the proceeding and it relates to a procedural matter and does not purport to decide the rights of the parties. Such an order is the interlocutory order and revision against the same is not maintainable. The High Court of Lahore in Robert Cameron Chamarette v. Mrs. Phyllis Ethel Chamarette ­ A.I.R. 1937 Lahore 176 has held that admissibility of a particular evidence is the interlocutory order which can subsequently be held to be inadmissible though ofcourse it is not so done often. All these decisions abundantly make it clear that the document if exhibited by the Court passing the order, the order which is passed would be the interlocutory order and not the final order determining the rights and liabilities of the parties finally because subsequently either of the parties can question the genuineness of the document and in that case it is open to the Court to accept or discard the document having due regards to the facts and circumstances on record.

Ajoy Kumar Ghose Vs State of Jharkhand and Another Respondent[SC 2009]

Keywords:- Difference between Proceeding instituted on Police report and Proceeding instituted otherwise than police report

Criminal Law-min

  • In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge.
  • Criminal Procedure Code, 1973—Sections 244, 245 and 246—Discharge—Magistrate has power to discharge accused at any previous stage of case—Previous stage could be from Sections 200 to 204, Cr.P.C. and till completion of evidence of prosecution under Section 244
  • Magistrate can discharge accused even when accused appears, in pursuance of summons or warrant and even before evidence is led under Section 244, makes an application for discharge—An application for discharge at that stage is perfectly justified—However, under Section 246(1), some evidence would have to be there for framing charge—It is incumbent upon Magistrate to examine the question whether accused could be discharged under Section 245—It is only when he finds it otherwise, he would resort to Section 246—Framing of charge straightaway after rejection of discharge application is premature—Order framing charge set aside.

(SUPREME COURT OF INDIA)

(Before : Tarun Chatterjee And V. S. Sirpurkar, JJ.)

Criminal Appeal No.485 of 2009 (arising out of SLP (Cri.) No.5196 of 2006),

Decided on : 18-03-2009.

Judgment

V. S. Sirpurkar, J—Leave granted.

2. A judgment passed by the High Court of Jharkand, Ranchi, dismissing the writ petition and confirming the order of the Trial Court, refusing to discharge the accused-appellant, is in challenge here.

3. The appellant Ajoy Kumar Ghosh, along with some others, is facing prosecution for the offences under Sections 177, 181, 182, 192, 196, 199, 209, 466, 468, 471 and 474 of the Indian Penal Code (hereinafter referred to as ‘IPC’ for short), before the Chief Judicial Magistrate, Ranchi. These charges are based on an official complaint filed by the Registrar General, Patna High Court against these accused persons including the present appellant, who, at the relevant time was Director, Indian School of Mines, Dhanbad. In the said complaint it is, inter alia, contended :

(i) That one Shri M.S. Chhabra, who was the Assistant Professor in the Indian School of Mines, Dhanbad, was proceeded against for misconduct and accordingly punishment of compulsory retirement was imposed on him.

(ii) Indian School of Mines, Dhanbad, a registered Society, is a deemed university governed by the Rules and Regulations and bye-laws of the School. In the matter of classification and method of appointment and terms and conditions of service for academic staff, Rules are framed with the approval of the Central Government. Rule 4 of the Rules and Regulations prescribes the constitution of General Council. The classification and method of appointment are governed by the bye-laws. Selection to the post of Assistant Professor is governed by Clause 38(b), while suspension and penalties are governed by Clauses 10 and 11 of the said bye-laws. Appeal is provided against the same under Rule 12. It is further stated in the complaint that the Council is defined under Clause 2(b) of the said bye-laws and means a General Council constituted under Rule 4 of the Rules and Regulations.

(iii) That Shri M.S. Chhabra, after being found guilty, was awarded the punishment of compulsory retirement and he preferred an appeal to the General Council against the imposed penalty, which appeal was disallowed. Shri M.S. Chhabra, therefore, filed CWJC No.678/92(R) for quashing the said order. However, even that was disposed of by the High Court with a direction to the General Council of the School to give personal hearing to the appellant/petitioner and to dispose of the appeal thereafter. Against this order of the High Court, the Chairman, Director-in-Charge and Acting Registrar, namely, Shri B.K. Rao, Shri A.K. Ghosh and Shri M. Ramakrishna, respectively, preferred an appeal in Supreme Court, which directed expeditious decision within three months after the fresh appeal was filed by Shri M.S. Chhabra. However, since the appeal was not disposed of, Shri M.S. Chhabra filed another writ petition which was registered as CWJC No.2932/ 92(R) and alleged therein that on 31.03.1989, no Head of the Department was the member of the General Council and without observing the procedure of amendment to the Rules as laid down under Section 23, mischievous efforts had been made by the Chairman, Director and the Registrar for getting new sets of Rules registered under the Societies Registration Act. He further alleged that services of one Shri A.K. Singh, Estate-cum-Securiry Officer were availed of for liaison work and thus the amendment was without the resolution of the General Council and without the approval of the Government of India, in which Heads of Department as member of the General Council were included and that resolution of the General Council for revised Memorandum of Association and Rules and Regulations were made to appear as if they were registered with he Inspector General of Registration, Patna on 18.06.1992. He further stated that the Chairman, Director and the Registrar, by indulging in the case maliciously, were acting under utter violation of procedure laid down under Section 23 of the Societies Registration Act.

(iv) That the counter affidavit had been filed to this writ petition by Shri M. Ramakrisha, s/o Shri M. Subbarao on behalf of the respondents in his alleged capacity of Acting Registrar. In para 37 of the said counter affidavit, the contention made by Shri M.S.Chhabra in paras 69 to 77 of the writ petition were denied and it was asserted that in view of the subsequent amendments made in the Rules and Regulations of the School, which were ratified by the Inspector General of Registration, the necessary amendments were made in the Rules and Regulations of the School and that was prior to the sitting of the General Council meeting dated 11.06.1992. A certificate to that effect was obtained from the office of the Inspector General of Registration, Patna, Bihar and the letter issued by the Inspector General, Registration was enclosed as Annexure-A to the counter affidavit. The said letter dated 09.06.1992 was allegedly issued by one Shri Vikas Prasad, Assistant Inspector General of Registration, Patna, Bihar.

(v) That Shri M. Ramakrishna had, in his counter affidavit stated that the contents of para 37, which have been quoted above, were based on information derived from the records of the case.

(vi) That the Writ Application was disallowed by the Division Bench of the Patna High Court by its judgment and order dated 05.04.1994, against which a special leave petition came to be filed before Supreme Court wherein the Court went into the issue raised by the appellant/petitioner with regard to the genuineness of the letter dated 09.06.1992, purported to have been written by Shri Vikas Prasad and enclosed as Annexure-A with the counter affidavit filed by Prof. M. Ramakrishna.

(vii) That a notice was sent to one Shri Vikram Prasad, Assistant Inspector General of Registration, who, however, filed an affidavit disclosing that the said letter was a forged document. Therefore, Supreme Court had directed to take action under the provisions of Section 340 of the Criminal Procedure Code with respect to that letter.

(viii) That in compliance of the order of Supreme Court, the complaint was being filed, for which first a notice was issued under Section 340, Cr. P.C. by Patna High Court and during the course of inquiry, it was found :

(a) That the letter bearing No. 1206 dated 09.06.1992 was forged and fabricated and was never issued from the office of the Inspector General of Registration.

(b) That the said letter which was produced in the Court and used in the writ petition CWJC No. 2932/92 (R) in the counter affidavit dated 21.01.1993 was filed by Shri M. Ramakrishna.

(c) Shri S.K. Das, Section Officer in the Office of the Inspector General of Registration was found to have delivered that letter to Shri A.K. Singh, Estate-cum-Security Officer.

(d) That Shri A.N. Tripathi, who was the Assistant Registrar (Establishment) of the School at the relevant time, was dealing with the writ and was acquainted with the facts and circumstances of the case.

(e) Shri A.K. Ghosh, the present petitioner was, at the relevant time Director of the School and in that capacity he was found to be fully involved and in the know of all concerned material.

(f) Shri Vikram Prasad, Assistant Inspector General of Registration, had filed an affidavit in the Supreme Court as also in the High Court to the effect that the letter was not issued by him, but till the last date of inquiry, he did not take a clear stand that the signature bearing a letter was not his signature.

(ix) That all the accused persons were guilty of using a fabricated and forged letter in the Court of law with active connivance and conspiracy on their part.

4. Cognizance was taken on the basis of this complaint by an order dated 20.08.1999 and summons were ordered to be issued by the CJM, Ranchi.

5. There are some events which took place before the cognizance was taken, for example, on 06.03.1998, Shri M.S. Chhabra had handed over an application which was purportedly an application under Section 340 of the Code of Criminal Procedure (hereinafter referred to as “Cr. P.C.” for short). The High Court accepted that application on the same day and directed that a notice be issued to the respondents including the present appellant by the Registry for their appearance before the Court on 02.04.1998. This order was challenged by the Indian School of Mines and some other persons including the present appellant by way of a Special Leave Petition in this Court whereupon this Court disposed it of as being premature. It was observed that the petitioners, instead of giving reply to the notice in the High Court, had rushed through a Special Leave Petition and, therefore, this Court did not find it a fit case to interfere.

6. The appellant thereafter filed reply to the show cause notice issued by the Patna High Court under Section 340 Cr. P.C. on 12.04.1999 wherein the appellant denied that he had any knowledge about the aforementioned document dated 09.06.1992. The Division Bench of the High Court at Patna, by its order dated 16.07.1999 straightway discharged the Chairman of the Governing Council, Shri B.K. Rao and two other members of the Governing Council, viz., Shri B.B. Dhar and Shri K. Paul. However, the Court directed filing of complaint against the appellant who was also a member of the Governing Council, since he happened to be the Acting Director of the Indian School of Mines, Dhanbad, at the relevant time. The High Court, however, included in the array of accused, Shri Vikram Prasad, Assistant Inspector General of Registration, Bihar who was a signatory to the letter dated 09.06.1992.

7. As has been stated earlier, the complaint came to be filed by the Registrar of Patna High Court on 09.08.1999 wherein cognizance was taken by CJM, Ranchi. The appellant thereafter filed Special Leave Petition No. 16037/1999 before this court against the order dated 16.07.1999 passed by the Patna High Court, wherein three other persons were discharged while complaint was directed to be filed against some others, including the appellant. This Court issued notice on 19.11.1999. However, on 17.04.2001, this court dismissed the aforesaid Special Leave Petition but permitted the appellant to raise all contentions in the Trial Court including the right to plead for discharge and also granted anticipatory bail to him. The order passed by this Court is as under :

“We permit the petitioners to raise all their contentions in the trial court including the right to plea for discharge. If petitioner would appear and apply for bail before the trial Court they shall be released on bail on executing a bond for such sum as may be fixed by that court with or without sureties. Accordingly, special leave petitions are dismissed.”

8. The appellant accordingly appeared before the CJM, Ranchi on 11.07.2005 and obtained bail. Thereafter, he moved an application for discharge on the same date. However, the Trial Court dismissed the discharge application in limine and proceeded to frame charges against the petitioner. The petitioner, therefore, filed a Writ Petition (Crl.) No. 315/2005, challenging the order dismissing discharge application and the order framing charge, before the High Court of Jharkhand at Ranchi which was dismissed on 03/07.07.2006, necessitating the filing of present Special Leave Petition.

9. In the impugned order, the High Court quoted the judgment passed by the Patna High Court dated 16.07.1999 and observed that the letter dated 09.06.1992 was found to be forged and fabricated in the inquiry instituted by the Department and, therefore, offence under Section 195(1)(b) Cr. P.C. appeared to have been committed in respect of that letter. The High Court came to the conclusion that since the Division Bench of the Patna High Court, by its earlier elaborate judgment, had clearly found, on the basis of evidence on record, that the appellant was well aware of filing of such counter affidavit in which a forged letter was used before the Court on behalf of Indian School of Mines, it could not be said that the allegations against the appellant were based on mere suspicion. It further recorded a finding that documentary evidence was sufficient to frame charge against the appellant. It is this judgment of the Patna High Court, which has fallen for our consideration.

10. Shri Ranjit Kumar, learned Senior Counsel appearing on behalf of the appellant firstly urged that there was no material whatsoever against the appellant who, at the relevant time, was the Acting Director of the Indian School of Mines, Dhanbad. He referred to the earlier order passed by this Court and pointed out that this Court had given the liberty to the appellant to file the discharge application and it was m terms of that order that the application was filed. The further argument of Shri Ranjit Kumar is that neither the Trial Court nor the High Court had considered the questions raised in the discharge application. He pointed out on merits that it was not the appellant who authored the aforementioned letter dated 09.06.1992, nor had the appellant sworn or filed the affidavit before the High Court, of which the alleged letter was part, since that affidavit was sworn by Shri M. Ramakrishna. He argued that the appellant had not even taken any advantage from the letter dated 09.06.1992. He further argued that in spite of the order of this Court, specifically granting liberty to the appellant to file a discharge application, the Division Bench of the Patna High Court did not go into the aspect of discharge at all. Learned Senior Counsel, by way of his legal submissions, urged that at the time when the inquiry under Section 340 Cr. P.C. was ordered in relation to the alleged forgery of the letter dated 09.06.1992, the provisions of law with reference to the forgery of document contemplated under Section 195(1)(b) Cr. P.C. and related Sections did not make a distinction between forgery being committed outside the Court and while the document was custodia legis. The learned counsel heavily relied upon a decision of this Court reported as Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another (2005) 4 SCC 370) wherein this Court had held that proceeding under Section 340 read with Section 195 Cr. P.C. could only be initiated if the forgery was committed during the time when the documents were custodia legis and not when the forgery was committed outside the Court i.e., before the document had been produced or given in evidence in a proceeding in any Court. He, therefore, urged that there could not be any initiation of proceedings under Section 340 Cr. P.C. much less for the offences under Section 195 Cr. P.C. and the other allied offences because, admittedly, the forgery was not committed in respect of the document dated 09.06.1992 when the letter was custodia legis. Learned counsel also invited our attention to the earlier order passed by the High Court wherein three other accused were discharged, who were similarly circumstanced as the appellant herein.

11. As against this, it was urged on behalf of respondent No. 2 that the High Court was correct in rejecting the petition of the petitioner/appellant and in refusing discharge from the prosecution. Learned counsel urged that there was enough material with the complainant and it was clear that the appellant was aware of the aforementioned forgery and he was party to the conspiracy of using forged letter.

12. There can be no doubt that in the present case, this Court had specifically granted liberty to the appellant to file a discharge application. We have quoted that order of this Court in para 7 of this judgment. Accordingly, the appellant filed a discharge application in the Trial Court, where the trial was pending, contending therein that there was no material available even for framing the charge. It was specifically pleaded in the said application that the said discharge was being sought for under sub-section (2) of Section 245 Cr. P.C.

13. The essential difference of procedure in the trial of warrant case on the basis of a police report and that instituted otherwise than on the police report, is particularly marked in Sections 238 and 239 Cr. P.C. on one side and Sections 244 and 245 Cr. P.C., on the other. Under Section 238, when in a warrant case, instituted on a police report, the accused appears or is brought before the Magistrate, the Magistrate has to satisfy himself that he has been supplied the necessary documents like police report, FIR, statements recorded under sub-section (3) of Section 161 Cr. P.C. of all the witnesses proposed to be examined by the prosecution, as also the confessions and statements recorded under Section 164 and any other documents, which have been forwarded by the prosecuting agency to the Court. After that, comes the stage of discharge, for which it is provided in Section 239 Cr. P.C. that the Magistrate has to consider the police report and the documents sent with it under Section 173 Cr. P.C. and if necessary, has to examine the accused and has to hear the prosecution and the accused, and if on such examination and hearing, the Magistrate considers the charge to be groundless, he would discharge the accused and record his reasons for so doing. The prosecution at that stage is not required to lead evidence. If, on examination of aforementioned documents, he comes to the prima facie conclusion that there is a ground for proceeding with the trial, he proceeds to frame the charge. For framing the charge, he does not have to pass a separate order. It is then that the charge is framed under Section 240 Cr. P.C. and the trial proceeds for recording the evidence. Thus, in such trial prosecution has only one opportunity to lead evidence and that too comes only after the charge is framed.


14. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr. P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr. P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, then the Magistrate has to consider under Section 245(1) Cr. P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if he is satisfied about the prima facie case against the accused, the Magistrate would frame a charge under Section 246(1) Cr. P.C. The complainant then gets the second opportunity to lead evidence in support of the charge unlike a warrant trial on police report, where there is only one opportunity. In the warrant trial instituted otherwise than the police report, the complainant gets two opportunities to lead evidence, firstly, before the charge is framed and secondly, after the charge. Of course, under Section 245(2) Cr. P.C., a Magistrate can discharge the accused at any previous stage of the case, if he finds the charge to be groundless.


15. Essentially, the applicable Sections are Sections 244 and 245 Cr. P.C., since this is a warrant trial instituted otherwise than on police report. There had to be an opportunity for the prosecution to lead evidence under Section 244(1) Cr. P.C. or to summon its witnesses under Section 244(2) Cr. P.C. This did not happen and instead, the accused proceeded to file an application under Section 245(2) Cr. P.C., on the ground that the charge was groundless.

16. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr. P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr. P.C.

17. The situation under Section 245(2) Cr. P.C. is, however, different. There, under sub-section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr. P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr. P.C. The words appearing in Section 245(2) Cr. P.C. “at any previous stage of the case”, clearly bring out this position. It will be better to see what is that “previous stage”.

18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr. P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr. P.C. to Section 204 Cr. P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr. P.C. Under Section 201 Cr. P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr. P.C. deals with the postponement of issue of process. Under sub-section (1), he may direct the investigation to be made by the Police Officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr. P.C., the Magistrate cannot give such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of Sessions. Under Section 202(1)(b) Cr. P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203 Cr. P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr. P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr. P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-sections (2), (3), (4) and (5) of Section 204 Cr. P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr. P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant-case under Section 244 Cr. P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr. P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr. P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr. P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr. P.C. and till the completion of the evidence of prosecution under Section 244 Cr. P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr. P.C., makes an application for discharge.

19. In the present case, the Magistrate did not dismiss the complaint under Section 203 Cr. P.C. However, since this was a complaint made by the Court, there was no question of examining complainant or any of his witnesses under Section 200 Cr. P.C. Further, there was no question of even issuing any direction for investigation under Section 202 Cr. P.C., since the complaint was made by the Court. This is clear from the wordings of Section 202(1) Cr. P.C. It is as under :-

“202(1) **********

Provided that no such direction for investigation shall be made –

(a) **********

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.”

We have already pointed out that since this was a complaint made by the Court, therefore, there would be no question of there being any examination of complainant or his witnesses on oath. As has already been stated earlier, the Magistrate simply issued the process under Section 204 Cr.P.C. When the accused appeared in pursuance to the summons sent to him, under Section 244 Cr.P.C., the defence came out with an application. There can be no difficulty that the discharge application was perfectly in order at that stage. Therefore, what was available before the Magistrate besides this discharge application was a bare complaint. There was absolutely nothing beyond the complaint available, for the Magistrate to consider the framing of charge. The Magistrate could, undoubtedly, have proceeded under Section 245(2) Cr.P.C., on the basis of discharge application and discharge him. However, he would have been required to give reasons for discharging at that stage, when no evidence or no material, whatsoever, was available with him, excepting a bare complaint.

20. The Magistrate, in this case, not only dismissed the application, but also proceeded to frame the charge, which order was also in challenge in the Writ Petition filed before the Division Bench. We have now to see as to whether the Magistrate was justified in dismissing the discharge application and then straightway to frame a charge under Section 246(1) Cr.P.C. If under Section 245(2) Cr.P.C., there could be a discharge at any previous stage which we have discussed about, there is a necessary sequel, an application could also be made at that stage. The Magistrate has the power to discharge the accused under Section 245(2) Cr.P.C. at any previous stage, i.e., before the evidence is recorded under Section 244(1) Cr.P.C., which seems to be the established law, particularly in view of the decision in Cricket Association of Bengal and others v. State of West Bengal and others reported in (1971) 3 SCC 239, as also the subsequent decision of the Bombay High Court in Luis de Piedade Lobo v. Mahadev reported in 1984 Criminal Law Journal 513. The same decision was followed by Kerala High Court in Manmohan Malhotra v. P.M. Abdul Salam and Another reported in 1994 Criminal Law Journal 1555 and Hon’ble Justice K.T. Thomas, as the learned Judge there was, accepted the proposition that the Magistrate has the power under Section 245(2) Cr.P.C. to discharge the accused at any previous stage. The Hon’ble Judge relied on a decision of Madras High Court in Mohammed Sheriff v. Abdul Karim reported in AIR 1928 Madras 129, as also the judgment of Himachal Pradesh High Court in Gopal Chauhan Vs. Smt. Satya reported in 1979 Criminal Law Journal 446. We are convinced that under Section 245(2) Cr.P.C., the Magistrate can discharge the accused at any previous stage, i.e., even before any evidence is recorded under Section 244(1) Cr.P.C. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.

21. However, the real difficulty arises in the Trial Court’s proceeding to frame the charge under Section 246 Cr.P.C. It is obvious that at that stage of framing a charge in this case, no material, whatsoever, was available with the Trial Court, excepting the complaint, which was also not supported by any statement on oath, by the complainant or any of his witnesses, which ordinarily are recorded at the stage of Section 200 Cr.P.C. In this case, since the complaint was by the Court, no such statement came to be recorded, of the complainant or any of his witnesses present. Here also, the Trial Court has committed no mistake. Again, the Trial Court has also not made any mistake in issuing the process, if the Trial Court felt that there was a ground for proceeding. The real question, which conies, however, is as to how after rejecting the application made by the accused under Section 245(2) Cr.P.C., the Trial Court straightway proceeded to frame the charge.

22. The charge is framed under Section 246(1) Cr.P.C., which runs as under :-

“246(1). If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.” The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) Cr.P.C., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C., by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge. Now here, there is, however, one grey area. Section 246(1) Cr.P.C. is very peculiarly worded. The said grey area is on account of phrase “or at any previous stage of the case”. The question is as to whether, even before any evidence is led under Section 244 Cr.P.C., can the Magistrate straightway proceed to frame a charge. The debate on this question is not new, though there is no authoritative pronouncement of this Court, on that issue. There are cases, where the High Courts have specifically taken a view that the phrase does not empower the Magistrate to frame any charge in the absence of any evidence, whatsoever. It must be, at this stage, borne in mind that the word used in Section 246 Cr.P.C. is “evidence”, so also, in Section 244 Cr.P.C., the word used is “evidence”. Therefore, ordinarily, the scheme of the Section 246 Cr.P.C. is that, it is only on the basis of any evidence that the Magistrate has to decide as to whether there is a ground to presume that the accused has committed an offence triable under this Chapter.

23. Before we approach this question, we must note that while Section 245(2) Cr.P.C. speaks about the discharge of the accused on the ground that the charge is groundless, Section 246(1) operates in entirely different sphere. An order under Section 245(2) Cr.P.C., results in discharge of the accused, whereas, an order under Section 246 Cr.P.C., creates a situation for the accused to face a full-fledged trial. Therefore, the two Sections would have to be interpreted in slightly different manner, keeping in mind the different spheres, in which they operate. The words “or at any previous stage of the case” appearing in Section 246 Cr.P.C., would include Section 245 also, where the accused has not been discharged under Section 245 Cr.P.C., while the similar term in Section 246(2) can include the stage even before any evidence is recorded. It cannot, therefore, be held that the words “at any previous stage of the case” as appearing in Section 245 Cr.P.C., would have to be given the same meaning when those words appear in Section 246 Cr.P.C.

24. The Bombay High Court, in a decision in Sambhaji Nagu v. State of Maharashtra reported in 1979 Criminal Law Journal 390, has considered the matter. While interpreting the words “at any previous stage” under Section 246(1) Cr.P.C., the Learned single Judge in that case, came to the conclusion that the phraseology only suggested that the Magistrate can frame charge, even before “all” the evidence is completed under Section 244 Cr.P.C. Section 244 Cr.P.C., specifically mandates that as soon as the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Further, Section 245 Cr.P.C. also mandates that if upon taking all the evidence referred to in Section 244 Cr.P.C., the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. In Section 246 Cr.P.C. also, the phraseology is “if, when such evidence has been taken”, meaning thereby, a clear reference is made to Section 244 Cr.P.C. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the learned Single Judge in that matter relied on the ruling in Abdul Nabi Vs. Gulam Murthuza reported in 1968 Criminal Law Journal 303. The similar view seems to have been taken in T.K. Appu Nair v. Earnest reported in AIR 1967 Madras 262 and in re. M. Srihari Rao reported in AIR 1964 Andhra Pradesh 226. The similar view has been expressed in P. Ugender Rao and others v. J. Sampoorna and others reported in 1990 Criminal Law Journal 762, where it has been expressed that previous stage is a stage, after recording some evidence. It is neither a stage before recording any evidence at all nor a stage after recording the entire evidence, but is in between. The interpretation, thus, placed on words “at any previous stage of the case”, occurring in Section 246(1) Cr.P.C. also appears to be more in consonance with the order of the Sections numbered in the Code and also with the heading given to Section 246 Cr.P.C., viz., “Procedure where accused is not discharged”. The very heading of the Section even indicates that it would come into play only after the matter is examined in the light of Section 245 Cr.P.C. and the accused is not discharged thereunder. Therefore, it is incumbent upon the Magistrate to examine the matter for purposes of considering the question whether the accused could be discharged under Section 245 Cr.P.C. and it is only when he finds it otherwise, he could have resort to Section 246 Cr.P.C.

25. The Learned single Judge in this ruling has also noted another ruling by the same High Court in Abdul Nabi v. Gulam Murthuza reported in 1968 Criminal Law Journal 303 (cited supra). We, therefore, find that consistently, the view taken by the High Court is that there would have to be some evidence before the charge is framed. In the last mentioned case of P. Ugender Rao and others v. J. Sampoorna and others reported in 1990 Criminal Law Journal 762, there is one incorrect observation in respect of a decision of this Court in Cricket Association of Bengal and others v. State of West Bengal and others reported in (1971) 3 SCC 239 (cited supra) to the effect that the Magistrate cannot discharge the accused before recording any evidence, whatsoever, under Section 244 Cr.P.C. We have not been able to find out such an expression in the aforementioned case of Cricket Association of Bengal and othersv. State of West Bengal and others (cited supra). That was a case under old Section 253(2), which is pari materia to the present Section 245(1). On the other hand, the Court has very specifically stated therein that Section 253(2) gives ample jurisdiction to the Magistrate to discharge the accused in the circumstances mentioned therein and the order of discharge can be passed at any previous stage of the case. It is further stated in Para 13 that subsection (1) under those circumstances will not operate as a bar to the exercise of jurisdiction by the Magistrate under sub-section (2). Since we have found error in the above mentioned judgment, we have mentioned so. However, the ruling in Cricket Association of Bengal and others v. State of West Bengal and others (cited supra) also supports our earlier finding that the Magistrate has the power to discharge the accused, even before any evidence is recorded and thus, an application for discharge at that stage is perfectly justifiable. However, insofar as Section 246(1) Cr.P.C. is concerned, we are of the clear opinion that some evidence would have to be there for framing the charge.

26. There is only one judgment of the Andhra Pradesh High Court in Verendra v. Aashraya Makers reported in 1999 Criminal Law Journal 4206, which has taken the view that the Magistrate can frame the charge even without any evidence having been taken under Section 244 Cr.P.C. We do not think that is a correct expression of law, as the right of the accused to cross-examine the witnesses at the stage of Section 244(1) Cr.P.C. would be completely lost, if the view is taken that even without the evidence, a charge can be framed under Section 246(1) Cr.P.C. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show, by way of the cross-examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored. Unfortunately, the earlier cases of the same Court, which we have referred to above, were brought to the notice of the learned Judge. Again, the learned Judge has not considered the true impact of the clause “at any previous stage of the case”, which could only mean that even with a single witness, the Magistrate could proceed to frame the charge.

27. Now, coming to the facts of this case, it is clear that the opportunity to the accused to cross-examine the witnesses is lost, as the Trial Court has straightway proceeded to frame the charge. In that view, we would have to quash the order, framing the charge. It is accordingly, quashed. The matter will now go back before the Trial Court, where the prosecution may offer the witnesses under Section 244(1) Cr.P.C. and the opportunity to cross-examine, would be offered to the accused. It is only thereafter, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The charge framed in this case is clearly premature, in view of the reasons given by us. The order framing the charge would, therefore, have to be set aside.

28. We are not expressing anything on merits, particularly because we have directed the evidence of the prosecution to be led under Section 244 (1) Cr.P.C. Any expressions on our part are likely to cause prejudice to the prosecution, as the case may be, accused. We are, therefore, leaving the matter at this.

29. Accordingly, the appeal is disposed of with the direction that the matter shall now go back to the Trial Court and the Trial Court shall proceed to examine all the witnesses offered by the prosecution and it is only after the evidence of those witnesses is recorded, that the Trial Court would proceed to decide as to whether the charge is to be framed or not. The appeal, thus, succeeds partly.


AIR 2009 SC 2282 : (2009) 4 SCR 515 : JT 2009 (4) SC 245 : (2009) 4 SCALE 267 : (2009) CriLJ SC 2824

Counsel for the Parties:  Ranjit Kumar, Sr. Advocate, Balraj Dewan, Dr. Aurbindo, Ishant Shukla, for Appellant ; Ajay Kr. Jha, Ms. Divya Singha (for M/s. P.H. Parekh and Co.), Ratan Kumar Choudhari, M.S. Chhabra, for Respondents.


 

Harinarayan G. Bajaj Versus State of Maharashtra and Others[SC 2010]

Keywords:- Cross-examination before Charge-Denovo trial – Meaning of Evidence

Criminal Law-min

  • under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh.
  • the word ‘proceedings’ which has been deliberately used by the Legislature. The Legislature does not use the word ‘trial’ which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word ‘trial’. The deliberate use of the word ‘proceedings’ would then include not only the trial but also the inquiry which commences with Section 244, Cr.P.C.

(SUPREME COURT OF INDIA)

Criminal Appeal No. 28 of 2010 (Arising out of SLP (Crl.) 6485 of 2008);

Decided On: 06-01-2010

(Before : V. S. Sirpurkar and Mukundakam Sharma , JJ.)

Acts:-Criminal Procedure Code, 1973—Sections 319, 245, 246, 319(4) and 244—Penal Code, 1860—Sections 114, 403, 409 and 34.

JUDGMENT

V.S. Sirpurkar, J—Leave granted.

2. Interpretation of Section 319 of the Code of Criminal Procedure (hereinafter called “Cr.P.C.” for short) and, more particularly, Sub-section (4) thereof has fallen for consideration in this appeal.

3. The factual scenario: A complaint was filed against three accused persons, being respondent Nos. 2, 3 and 4 herein for offence under Section 406 read with Section 114 of the Indian Penal Code (for short ‘IPC’) in the Court of the Metropolitan Magistrate. We need not go into the facts stated in the said complaint in view of the narrow question which falls for consideration in this appeal. The Trial Court took the cognizance of the offences on 03.04.1998 and issued process against respondent Nos. 2 to 4. The Trial Court proceeded to examine the witnesses before framing the charge. Number of revisions including the discharge application were filed by the accused and the trial went on up to 15.09.2005 when the Bombay High Court expedited the trial. On 13.06.2006, the cross-examination of the first witness of the prosecution at the stage of evidence before charge was completed by the Advocate of the accused persons. This cross-examination ran into 115 pages. Since the matter could not be finished up to the date fixed by the Bombay High Court, it was extended up to 30.06.2006 for completion of trial. The time was further extended till December, 2006 and further up to 31.05.2007. In the meantime, the second witness was cross-examined which cross-examination consisted of 148 pages. Likewise, third witness of the prosecution was also examined on 11.05.2007. The Trial Court discharged Shri Pramod Banka and Smt. Rani V. Agrawal and framed charges against the third respondent herein. The time was again extended by the High Court till 31.12.2007. This was challenged by way of the revision by the appellant, which was allowed. The third respondent also filed a revision which was dismissed by the High Court and the High Court directed the Trial Court to frame charge against respondent No. 2 to 4 also under the provisions of Sections 403, 409 read with Section 34, IPC. Ultimately, the charges came to be framed against respondent Nos. 2 to 4 on 28.11.2007.

4. At this stage, on 15.12.2007, the appellant herein filed an application under Section 319 Cr.P.C. requesting to array respondent No. 5 herein as a co-accused in the said proceedings. On 31.12.2007, this application was allowed and the summons was issued to the 5th respondent, Creative Garments Ltd. a company incorporated under the Companies Act through its Managing Director.

5. On 03.01.2008, the 5th respondent preferred an application to the Trial Court to commence the proceedings qua the 5th respondent from the stage of inquiry i.e. from the stage of Section 244, Cr.P.C. and to allow the cross-examination of the witnesses of the prosecution at the stage of evidence before charge. On 22.02.2008, this application came to be allowed. However, the Trial Court split the trial of respondent No. 5 and the other respondent Nos. 2 to 4. Respondent Nos. 2 to 4 challenged the order dated 22.02.2008 splitting the trial. That order was quashed by the High Court by an order dated 31.03.2008. Further, an application came to be made by respondents on 15.04.2008 seeking the clarification of the High Court’s order which clarification was given by the High Court on 23.04.2008 holding that the order was restricted only to the aspect of splitting of trial and not to any other matter.

6. The appellant also filed a criminal application on 30,04.2008 seeking the quashing of the order dated 22.02.2008 by which the Trial Court had ordered the de novo proceedings as against respondent No. 5 from the stage of inquiry. Further, a direction was sought to straightaway frame charge against respondent No. 5 for the same offence with which respondent Nos. 2 to 4 were charged. The High Court, however, rejected this application by the complainant (appellant herein) and held that there could be no dispute that the Court must commence de novo proceedings against respondent No. 5 and it further observed that mere delay which might be caused to the complaint would be of no consequence.

7. Shri Naphade, learned Senior Counsel appearing on behalf of the complainant-appellant urges that the High Court has erred in confirming the order of the Trial Court permitting the de novo proceedings against respondent No. 5 in the sense that it allowed the further cross-examination of the witnesses who were already examined before framing the charge. Contention by learned Senior Counsel is that there would be no question of such a permission of the cross-examination of the witnesses who were examined before framing of the charge since firstly, the charge against the other accused persons has already been framed and secondly, there is no such right of cross-examination under Section 244, 245 and 246, Cr.P.C. The Counsel argues that the term ‘evidence’ as mentioned in Section 244, Cr.P.C. does not necessarily include the cross-examination of the witnesses who were examined at that stage. The further contention of the counsel is that Section 319(4), Cr.P.C. does not require a de novo inquiry as has been ordered by the Trial Court and affirmed by the High Court. Reliance was placed on Rakesh v. State of Haryana, (2001) 6 SCC 248, Ram Gopal and Anr. v. State of U.P., 1999 Crl. LJ. 1865 and Michael Machado v. Central Bureau of Investigation, (2000) 3 SCC 262.

8. As against this, Shri Ponda, learned Counsel appearing on behalf of the respondent accused urged that the analysis of Section 319 Cr.P.C. itself would show that there has to be de novo inquiry in the sense that the newly joined accused in such a trial must be given a right to cross-examine the witnesses who were examined prior to the framing of charge. He pointed out that if the interpretation as canvassed by the appellant is given, then there is a likelihood of the complainant taking advantage of his own wrong and such an interpretation would give rise to a mischief.

9. Learned Counsel pointed out that the rulings pointed out by the appellant were not applicable to the controversy. Learned Counsel also urged that the use of the word ‘evidence’ in Sections 244, 245, 246, Cr.P.C. supports that the accused under those Sections have the right of cross-examination and, more particularly, if such a right is not spelt out from the language, then it would only mean that the accused in the warrant trial based on the complaint case would have to helplessly watch the charge being framed. This is all the more true, according to learned Counsel, in a case where accused has been joined under Section 319, Cr.P.C. On these rival contentions, it is to be seen whether the Trial Court and the High Court were right in ordering a de novo inquiry.

10. The relevant part of Section 319, Cr.P.C. is as under 319(1):

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) **********

(3) **********

(4) Where the Court proceeds against such person under Sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which an inquiry or trial was commenced.

11. Even a glance at this Section suggests that there is no escape from commencing the proceedings afresh and also that the witnesses have to be re-heard. Clause (a) is the basic provision and the use of the words ‘proceedings’ and the term ‘commence afresh’ has its own significance. If we accept the contention of Shri Naphade that the newly joined accused has no right of cross-examination, it would mean that on being joined under Section 319(1), Cr.P.C., the only step that would be required would be framing of charge against him. In that, there would be a complete denial to such accused of an important right of cross-examination of the witnesses before the framing of the charge. It would only then mean that such accused would remain a mute spectator till the framing of the charge.

12. We would also give a meaningful interpretation to the word ‘proceedings’ which has been deliberately used by the Legislature. The Legislature does not use the word ‘trial’ which essentially begins after framing of the charge. If the Legislature had intended that the newly joined accused should not get the right of cross-examining the witnesses examined before framing of the charge, it might have used the word ‘trial’. The deliberate use of the word ‘proceedings’ would then include not only the trial but also the inquiry which commences with Section 244, Cr.P.C. and ends with the framing of the charge under Section 246, Cr.P.C. The terminology ‘commence afresh’ has also its own force. It indicates that the whole inquiry which commences from Section 244 Cr.P.C. must begin afresh. The interpretation that we give to the words ‘proceedings’ is buttressed by the language of 319 (b), Cr.P.C. The plain language takes back the whole proceedings to the stage of taking cognizance. If we accept the contention of the appellant herein, then Sub-clause (b) would be rendered otiose. We have, therefore, no doubt that the language of Section 319, Cr.P.C. itself pushes the proceedings back to the stage of inquiry, once the order under Section 319(1) Cr. P.C. is passed by the Court and a new accused is joined therein.

13. There is one more angle and that is the angle of mischief. If the interpretation given by the appellant is to be accepted then a complainant, wherein it is a case of multiple accused, may mischievously join only few of them and after getting the charge framed, make an application under Section 319, Cr.P.C. to join some other accused persons who would then have no right of cross-examination of the witnesses and who would be required to be the mute spectators to the charge being framed against which they could have successfully resisted by cross-examining the witnesses.

14. There is one more aspect that before summoning the accused under Section 319(1), Cr.P.C. there is no requirement of allowing such accused person to cross-examine the witnesses. That stage comes only after an accused is summoned under Sub-section (1). Therefore, it would be a case where the newly added accused who has not had the advantage of hearing the evidence would be put to prejudice because firstly, he has not heard the evidence and secondly, he cannot even cross-examine those witnesses in the warrant trial based on a private complaint.

15. This brings us to the question argued by Shri Naphade on the basic right of cross-examination to the accused in the proceedings under Section 244, Cr.P.C. In fact, in view of our interpretation of Section 319(4), it is really not necessary to go into that question. However, since the Learned Senior Counsel argues that there is no right at all to give opportunity of cross-examination to any accused whether brought before the Court initially or by way of Section 319(1), we proceed to consider the question.

16. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244,. then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him. In Ajoy Kumar Ghose v. State of Jharkhand [Criminal Appeal No. 485 of 2009], one of us (V.S. Sirpurkar, J.) held that there is a right to the accused to cross-examine the witnesses examined before framing the charge and that the said right is extremely important. It is observed in para 25:

the right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross-examine the witnesses who have been offered at the stage of Section 244(1) Cr.P.C.

17. Therefore, the situation is clear that under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence. This Court has already held so in Shashi Kant Singh v. Tarkeshwar Singh and Anr., (2002) 5 SCC 738.

18. Though a feeble attempt was made to argue that in that ruling the Supreme Court had expressed, ‘in short there has to be a de novo trial against him. The provision of de novo trial is mandatory’ and therefore, it is only a ‘trial’ which has to be ordered and not the ‘proceedings’. The argument is absolutely incorrect because in Shashi Kant Singh’ case (cited supra), the Court was dealing with a warrant trial case, not based on a private complaint and, therefore, the Supreme Court used the words de novo trial. The High court has correctly appreciated this provision.

19. This takes us to the rulings cited which we must consider. In Rakesh v. State of Haryana, (2001) 6 SCC 248, this Court framed the question in paragraph 3 in the following words:

Whether the statement of a prosecution witness without the said witness having been cross-examined constitutes “evidence” within the meaning of Section 319, Cr.P.C.

It is in that behalf that the Court expressed:

…the contention that the term ‘evidence’ as used in Section 319 Criminal Procedure Code would mean evidence which is tested by cross examination cannot be accepted

The Court, however, immediately expressed that the question of discharging the evidence by cross-examination would arise only after the addition of the accused and that there was no question of cross-examining the witnesses prior to adding such person as accused. It was further said that the Section does not contemplate an additional stage of first summoning the person and giving him the opportunity to cross-examine the witness who has deposed against him and thereby testing whether such person to be added as accused or not. Once the Sessions Court records the statement of the witnesses, it would be part of the evidence. Therefore, it was in different factual situation that this Court had made those observations. We do not think that such observations can be taken advantage of. This is apart from the fact that the Court has specifically held that the interpretation of the evidence was only for the purpose of Section 319, Cr.P.C.

20. To the similar effect was the ruling relied upon by the appellant in Ram Gopal and Anr. v. State, 1999 CrLJ 1865. In fact Ram Gopal’s case is also restricted to the interpretation of the word ‘evidence’ as is used under Section 319, Cr.P.C. Though there are some other observations in respect of Section 244, Cr. P.C., we do not think that the observations in paragraph 29 are correct. In fact the observations in paragraph 35 therein clarified the ratio of that decision. In that view, that judgment will be of no help.

21. Our attention was also invited to R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716 paragraphs 45 and 46, We do not think that there is any need on our part to comment on this case, more particularly, to assess the scope of Sections 244 and 245, Cr. P.C. because if Section 319(4) Cr.P.C. is interpreted in the manner that we have interpreted it, there would not necessity of going into the scope of Section 244, Cr.P.C. as because of that interpretation all the proceedings would be relegated back and start afresh whereby there would be clear scope and right for the newly added accused to hear the evidence of witnesses examined before framing of charge and to cross-examine them.

22. A reference was also made to Michael Machado v. Central Bureau of Investigation, (2000) 3 SCC 262. However, in our opinion Michael Machado’s case is not an authority on the true scope of Section 319(4) Cr.P.C.

23. Shri Naphade also tried to suggest by taking us to the old Section 252, Cr.P.C. to suggest that there is no right of cross-examination. As we have already clarified, once we interpret the provisions of Section 319(4), Cr.P.C. to mean that the proceedings have to go back and have to be commenced afresh and the witnesses have also to be re-heard, then the right of cross-examination would be innate and under the circumstances there would be no necessity of specifically commenting upon the scope of Section 244, Cr.P.C.

24. In view of what we have held, we find that the High Court’s judgment confirming the Trial Court’s judgment is correct and we see no reason to interfere with the same. The appeal has no merits and is, therefore, dismissed.


 Alternative Citation :JT 2010 (1) SC 10 : (2010) 1 SCALE 46 : (2010) 11 SCC 520 : (2010) 1 SCR 171

Counsel for the Parties:

Shekhar Naphade, Sr. Adv., Gaurav Goel, Adv. for E.C. Agrawala, Adv., Sanjay V. Kharde, Asha G. Nair, A.H.H. Ponda, Girish B. Kedia, Rakhi Ray, S.S. Ray and Bina Gupta, Advs


 

Sunil Mehta & ANR. Vs. State of Gujarat & ANR.[SC 2013]

Evidence before Charge in Complaint case- trial of Complaint case

Criminal Law-min

Under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh.

SUPREME COURT OF INDIA

[Criminal Appeal No. 327 of 2013 arising out of S.L.P. (CRL.) No.374 of 2012]

Acts:- 244 of Cr.P.C

Bench: (T.S. THAKUR) (SUDHANSU JYOTI MUKHOPADHAYA)

T.S. THAKUR, J.

1. Leave granted.

2. The short question that falls for our determination in this appeal is whether depositions of the complainant and his witnesses recorded under Chapter XV of the Code of Criminal Procedure, 1973 before cognizance is taken by the Magistrate would constitute evidence for the Magistrate to frame charges against the accused under Part B of Chapter XIX of the said Code. The question arises in the following backdrop:

3. A complaint alleging commission of offences punishable under Sections 406, 420 and 114 read with Section 34 of the Indian Penal Code, 1860 was filed by respondent No.2-Company before the Chief Judicial Magistrate, Gandhi Nagar, Gujarat. The Magistrate upon examination of the complaint directed an enquiry in terms of Section 156(3) of the Cr.P.C. by the jurisdictional police station. The report received from the police suggested that the dispute between the parties was of a civil nature in which criminal proceedings were out of place. The Chief Judicial Magistrate was not, however, satisfied with the police enquiry and the conclusion, and hence conducted an enquiry in terms of Section 202 of the Cr.P.C. and issued process against the appellants for offences punishable under Sections 406 read with 114 IPC.

4. Aggrieved, the appellants unsuccessfully questioned the summoning order before the High Court in Criminal Misc. Application No.10173 of 2010. Inevitably the matter came up before the trial Court under Section 244 of the Cr.P.C. where the accused appeared pursuant to the summons issued by the Court. Instead of adducing evidence in support of the prosecution as mandated by Section 244, the complainant filed a pursis (memo) stating that he did not wish to lead any additional evidence and that the evidence submitted along with the complaint may be considered as evidence for purposes of framing of the charge. The Magistrate took the pursis on record and fixed the case for arguments on framing of charges. The appellants’ case is that written submissions filed by them before the Magistrate raised a specific contention that no charge could be framed against them as the complainant had not led any evidence in terms of Section 244 of the Code and that the depositions recorded before the Magistrate under Section 202 of the Cr.P.C. could not be considered as evidence for the purposes of framing of charges. The Magistrate, however, brushed aside that contention and framed charges against the appellants under Sections 406 and 420 read with Section 34 of the IPC.

5. Aggrieved by the order passed by the Magistrate, the appellants preferred Criminal Revision Application No.56 of 2011 before the Sessions Judge at Gandhi Nagar who allowed the same by his order dated 18th July,2011 primarily on the ground that non-compliance with the provisions of Section 245(2) of the Cr.P.C. rendered the order passed by the Magistrate unsustainable. The Sessions Judge accordingly remitted the matter back to the trial Court with a direction to proceed in accordance with the provisions of Sections 244 to 247 of the Code keeping in view the decision of this Court in Ajoy Kumar Ghose v. State of Jharkhand and Anr. (2009) 14SCC 115.

6. Undeterred by the revisional order the respondent-company filed Special Criminal Application No.1917 of 2011 before the High Court of Gujarat at Ahmedabad which application has been allowed by the High Court in terms of the order impugned before us. The High Court observed: “In the facts of the case, it is not that the witnesses of the complainant have not been examined, therefore, the evidence has been recorded. Therefore, at that stage the opportunity was available with the accused as provided under law to cross examine the witnesses, however, it is not availed of by exercising the right of cross examination. It cannot be said that the procedure, as required, is not followed. Therefore, the observation made by the learned Sessions Judge relying on this judgment are misconceived.

7. “It is difficult to appreciate the logic underlying the above observations. It appears that the High Court considered the deposition of this complainant and his witnesses recorded before the appearance of the accused under Section 202 of the Cr.P.C. to be ‘evidence’ for purposes of framing of charges against the appellants. Not only that, the High Court by some involved process of reasoning held that the accused persons had an opportunity to cross-examine the witnesses when the said depositions were recorded. The High Court was, in our opinion, in error on both counts. We say so for reasons that are not far to seek. Chapter XV of the Code of Criminal Procedure, 1973 deals with complaints made to Magistrates. Section200 which appears in the said Chapter inter alia provides that the Magistrate taking cognizance of an offence on a complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and signed by the complainant and the witnesses, as also the Magistrate. An exception to that general rule is, however, made in terms of the proviso to Section 200in cases where the complaint is made by a public servant acting or purporting to act in the discharge of his official duties, or where a Court has made the complaint, or the Magistrate makes over the case for enquiry or trial by another Magistrate under Section 192 of the Cr.P.C.

8. Section 201 deals with the procedure which a Magistrate not competent to take cognizance of the case is required to follow. Section 202 empowers the Magistrate to postpone the issue of process against the accused either to inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. Sub-section (2) of Section 202 empowers the Magistrate to take evidence of witnesses on oath in an inquiry under sub-section (1) thereof. Section 203, which is the only other provision appearing in Chapter XV, empowers the Magistrate to dismiss the complaint if he is of the opinion that no sufficient ground for proceeding with the same is made out.

9. There is no gainsaying that a Magistrate while taking cognizance of an offence under Section 200, whether such cognizance is on the basis of the statement of the complainant and the witnesses present or on the basis of an inquiry or investigation in terms of Section 202, is not required to notify the accused to show cause why cognizance should not be taken and process issued against him or to provide an opportunity to him to cross-examine the complainant or his witnesses at that stage.

10. In contra distinction, Chapter XIX of the Code regulates trial of warrant cases by Magistrates. While Part A of that Chapter deals with cases instituted on a police report, Part B deals with cases instituted otherwise than on a police report. Section 244 that appears in Part B of Chapter XIX requires the Magistrate to “proceed to hear the prosecution” and “take all such evidence as may be produced in support of the prosecution” once the accused appears or is brought before him. Section 245 empowers the Magistrate to discharge the accused upon taking all the evidence referred to in Section 244, if he considers that no case against the accused has been made out which if un rebutted would warrant his conviction. Sub-section (2) of Section 245 empowers the Magistrate to discharge an accused even “at any previous stage” if for reasons to be recorded by such Magistrate the charges are considered to be “groundless”. In cases where the accused is not discharged, the Magistrate is required to follow the procedure under Section 246 of the Code. That provision may at this stage be extracted: “246. Procedure where accused is not discharged –

(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re- examination (if any), they shall also be discharged.

11. “A simple reading of the above would show that the Magistrate is required to frame in writing a charge against the accused “when such evidence has been taken” and there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and adequately punish.

12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the evidence recorded under Section 244. The expression “when such evidence has been taken” appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code.

There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tent amounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report.

The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution.

13. Mr. U.U. Lalit, learned senior counsel appearing for the respondent-complainant strenuously argued that Section 244 does not envisage, leave alone provide for in specific terms, cross-examination of witnesses produced by the prosecution by the accused. He submitted that since the provision of Section 244 did not recognise any such right of an accused before framing of charges, it did not make any difference whether the Court was evaluating evidence adduced at the stage of cognizance and summoning of the accused or that adduced after he had appeared before the Magistrate under Section 244.

He particularly drew our attention to sub-section (4) to Section 246 which requires the Magistrate to ask the accused whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. It was contended by Mr. Lalit that the provision of sub-section (4) to Section 246 provides for cross-examination by the accused only after charges have been framed and not before. There is, in our opinion, no merit in that contention which needs to be noticed only to be rejected. We say so for reasons more than one. In the first place, the expression “Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution” appearing in Section 244 refers to evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Section 3 reads asunder: 3. Interpretation clause – In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:- xx xx xx “Evidence”.-“Evidence” means and includes-

1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

14. “We may also refer to Chapter X of the Evidence Act which deals with examination of witnesses. Section 137 appearing in that Chapter defines the expressions examination-in-chief, cross and re-examination while Section138 stipulates the order of examinations and reads as under: “138. Order of examinations.- Witnesses shall be first examined- in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination- in-chief. Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross- examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

15. ” It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.

16. Suffice it to say that evidence referred to in Sections 244, 245 and246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned.

17. Secondly, because evidence under Chapter XIX (B) has to be recorded in the presence of the accused and if a right of cross-examination was not available to him, he would be no more than an idle spectator in the entire process. The whole object underlying recording of evidence under Section244 after the accused has appeared is to ensure that not only does the accused have the opportunity to hear the evidence adduced against him, but also to defend himself by cross-examining the witnesses with a view to showing that the witness is either unreliable or that a statement made by him does not have any evidentiary value or that it does not incriminate him. Section 245 of the Code, as noticed earlier, empowers the Magistrate to discharge the accused if, upon taking of all the evidence referred to in Section 244, he considers that no case against the accused has been made out which may warrant his conviction.

Whether or not a case is made out against him, can be decided only when the accused is allowed to cross-examine the witnesses for otherwise he may not be in a position to demonstrate that no case is made out against him and thereby claim a discharge under Section 245 of the Code. It is elementary that the ultimate quest in any judicial determination is to arrive at the truth, which is not possible unless the deposition of witnesses goes through the fire of cross-examination. In a criminal case, using a statement of a witness at the trial, without affording to the accused an opportunity to cross-examine, is tantamount to condemning him unheard. Life and liberty of an individual recognised as the most valuable rights cannot bejeopardised leave alone taken away without conceding to the accused the right to question those deposing against him from the witness box.

18. Thirdly, because the right of cross-examination granted to an accused under Sections 244 to 246 even before framing of the charges does not, in the least, cause any prejudice to the complainant or result in any failure of justice, while denial of such a right is likely and indeed bound to prejudice the accused in his defence. The fact that after the Court has found a case justifying framing of charges against the accused, the accused has a right to cross-examine the prosecution witnesses under Section 246(4)does not necessarily mean that such a right cannot be conceded to the accused before the charges are framed or that the Parliament intended to take away any such right at the pre-charge stage.

19. We are supported in the view taken by us by the decision of this Court in Ajoy Kumar Ghose (supra). That was a case where the trial Court had framed charges against the accused without the prosecution having any evidence whatsoever in terms of Section 244 of the Cr.P.C. This Court held that the procedure adopted by the trial Court was not correct because the language of Section 246(1) Cr.P.C. itself sufficiently indicated that charges have to be framed against the accused on the basis of some evidence offered by the complainant at the stage of Section 244(1). This Court observed: “The language of the Section clearly suggests that it is on the basis of the evidence offered by the complainant at the stage of Section 244(1) Cr.P.C., that the charge is to be framed, if the Magistrate is of the opinion that there is any ground for presuming that the accused has committed an offence triable under this Chapter. Therefore, ordinarily, when the evidence is offered under Section 244 Cr.P.C. by the prosecution, the Magistrate has to consider the same, and if he is convinced, the Magistrate can frame the charge.

20. “This Court further clarified that the expression “or at any previous stage of the case” appearing in Section 246(1) did not imply that a Magistrate can frame charges against an accused even before any evidence was led under Section 24. This Court approved the decision of the High Court of Bombay in Sambhaji Nagu Koli v. State of Maharashtra 1979 Cri LJ390 (Bom), where the High Court has explained the purport of the expression” at any previous stage of the case”. The said expression, declared this Court, only meant that the Magistrate could frame a charge against the accused even before all the evidence which the prosecution proposed to adduce under Section 244(1) was recorded and nothing more. This Court observed: “44. In Section 246 Cr.P.C. also, the phraseology is “if, when such evidence has been taken”, meaning thereby, a clear reference is made to Section 244 Cr.P.C. The Bombay High Court came to the conclusion that the phraseology would, at the most, mean that the Magistrate may prefer to frame a charge, even before all the evidence is completed. The Bombay High Court, after considering the phraseology, came to the conclusion that the typical clause did not permit the Magistrate to frame a charge, unless there was some evidence on record. For this, the Learned Single Judge in that matter relied on the ruling in Abdul Nabi v. Gulam Murthuza Khan 1968 Cri LJ 303 (AP).

21. “More importantly, this Court recognised the right of cross-examination as a salutary right to be exercised by the accused when witnesses are offered by the prosecution at the stage of Section 244(1) of the Code and observed: “51. The right of cross-examination is a very salutary right and the accused would have to be given an opportunity to cross- examine the witnesses, who have been offered at the stage of Section 244(1) Cr.P.C. The accused can show, by way of the cross- examination, that there is no justifiable ground against him for facing the trial and for that purpose, the prosecution would have to offer some evidence. While interpreting this Section, the prejudice likely to be caused to the accused in his losing an opportunity to show to the Court that he is not liable to face the trial on account of there being no evidence against him, cannot be ignored.”

22. In Harinarayan G. Bajaj v. State of Maharashtra & Ors. (2010) 11 SCC520, this Court reiterated the legal position stated in Ajoy Kumar Ghose(supra) and held that the right of an accused to cross-examine witnesses produced by the prosecution before framing of a charge against him was a valuable right. It was only through cross-examination that the accused could show to the Court that there was no need for a trial against him and that the denial of the right of cross-examination under Section 244 would amount to denial of an opportunity to the accused to show to the Magistrate that the allegations made against him were groundless and that there was no reason for framing a charge against him.

The following passages are in this regard apposite: “18. This Court has already held that right to cross-examine the witnesses who are examined before framing of the charge is a very precious right because it is only by cross-examination that the accused can show to the Court that there is no need of a trial against him. It is to be seen that before framing of the charge under Section 246, the Magistrate has to form an opinion about there being ground for presuming that the accused had committed offence triable under the Chapter. If it is held that there is no right of cross-examination under Section 244. Then the accused would have no opportunity to show to the Magistrate that the allegations are groundless and that there is no scope for framing a charge against him. xx xx xx 20. Therefore, the situation is clear that under Section 244, Cr. P.C. the accused has a right to cross-examine the witnesses and in the matter of Section 319, Cr.P.C. when a new accused is summoned, he would have similar right to cross-examine the witness examined during the inquiry afresh. Again, the witnesses would have to be re-heard and then there would be such a right. Merely presenting such witnesses for cross-examination would be of no consequence.

23. “In the light of what we have said above, we have no hesitation in holding that the High Court fell in palpable error in interfering with the order passed by the Revisional Court of Sessions Judge, Gandhi Nagar. The High Court was particularly in error in holding that the appellant had an opportunity to cross-examine the witnesses or that he had not availed of the said opportunity when the witnesses were examined at the stage of proceedings under Chapter XV of the Code. The High Court, it is obvious, has failed to approach the issue from the correct perspective while passing the impugned order.

24. In the result we allow this appeal with costs assessed at Rs.50,000/-, set aside the order passed by the High Court and restore that passed by the Sessions Judge. The costs shall be deposited by respondent No.2-companyin the SCBA Lawyers’ Welfare Fund within two weeks of the pronouncement of this order.

………………………..J. (T.S. THAKUR)

………………………..J. (SUDHANSU JYOTI MUKHOPADHAYA)

New Delhi

February 20, 2013

Preamble – The Constitution of The Islamic Republic of Pakistan 1973

12th April, 1973

[In the Name of Allah..]

Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust;

And whereas it is the will of the people of Pakistan to establish an order :-

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;

Therein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;

Wherein the independence of the judiciary shall be fully secured;

Wherein the integrity of the territories of the Federation, its independence and all its rights, including its sovereign rights on land, sea and air, shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity :

Now, therefore, we, the people of Pakistan,

Cognisant of our responsibility before Almighty Allah and men;

Cognisant of the sacrifices made by the people in the cause of Pakistan;

Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice;

Dedicated to the preservation of democracy achieved by the unremitting struggle of the people against oppression and tyranny;

Inspired by the resolve to protect our national and political unity and solidarity by creating an egalitarian society through a new order;

Do hereby, through our representatives in the National Assembly, adopt, enact and give to ourselves, this Constitution


 

Fundamental rights under Constitution of Pakistan 1973

Article 7. Definition of the State

In this Part, unless the context otherwise requires, “the State” means the Federal Government,  Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess.

Chapter 1: Fundamental Rights

8. Laws inconsistent with or in derogation of fundamental rights to be void.

(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. (3) The provisions of this Article shall not apply to :-(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or 13[(b) any of the:-(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;(ii) other laws specified in Part I of the First Schedule; and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.

(4) Notwithstanding anything contained in paragraph (b) of clause (3), within a period of two years from the commencing day, the appropriate Legislature shall bring the laws specified in  Part II of the First Schedule into conformity with the rights conferred by this Chapter:

Provided that the appropriate Legislature may by resolution extend the said period of two years by a period not exceeding six months.

Explanation:- If in respect of any law  Majlis-e-Shoora (Parliament) is the appropriate Legislature, such resolution shall be a resolution of the National Assembly. (5) The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution.

 9. Security of person.No person shall be deprived of life or liberty save in accordance with law.

10 Safeguards as to arrest and detention(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

 (2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in :custody beyond the said period without the authority of a magistrate.

 (3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding  [three months]  unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of  18[three months] 18, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

Explanation-I: In this Article, “the appropriate Review Board” means:-(i) in the case of a person detained under a Federal law, a Board appointed by the Chief Justice of Pakistan and consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court; and(ii) in the case of a Person detained under a Provincial law, a Board appointed by the Chief Justice of the High Court concerned and consisting of a Chairman and two other persons, each of whom is or has been a Judge of a High Court.

Explanation-II: The opinion of a Review Board shall be expressed in terms of the views of the majority of its members.

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall,  within fifteen days from such detention, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order: Provided that the authority making any such order may refuse to disclose facts which such authority considers it to be against the public interest to disclose.

(6) The authority making the order shall furnish to the appropriate Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

 (7) Within a period of twenty-four months commencing on the day of his first detention in pursuance of an order made under a law providing for preventive detention, no person shall be detained in pursuance of any such order for more than a total period of eight months in the case of a person detained for acting in a manner prejudicial to public order and twelve months in any other case:Provided that this clause shall not apply to any person who is employed by, or works for, or acts on instructions received from, the enemy  20[or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof or who commits or attempts to commit any act which amounts to an anti-national activity as defined in a Federal law or is a member of any association which has for its objects, or which indulges in, any such anti-national activity.

(8) The appropriate Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family.

 (9) Nothing in this Article shall apply to any person who for the time being is an enemy alien.

10A. Right to fair trial:

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

11. Slavery, forced labour, etc. prohibited

(1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form. (2) All forms of forced labour and traffic in human beings are prohibited. (3) No child below the age of fourteen years shall be engaged in any factory or mine or any other hazardous employment. (4) Nothing in this Article shall be deemed to affect compulsory service:-(a) by any person undergoing punishment for an offence against any law; or(b) required by any law for public purpose provided that no compulsory service shall be of a cruel nature or incompatible with human dignity.

 12. Protection against retrospective punishment(1) No law shall authorize the punishment of a person:-(a) for an act or omission that was not punishable by law at the time of the act or omission; or(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of March, one thousand nine hundred and fifty-six, an offence.

 13. Protection against double punishment and self incrimination.No person:-(a) shall be prosecuted or punished for the same offence more than once; or(b) shall, when accused of an offence, be compelled to be a witness against himself.

14. Inviolability of dignity of man, etc.(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence.

 15. Freedom of movement, etc.Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.

16. Freedom of assembly.

Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.

17. Freedom of association:

(1) Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and such law shall provide that where the Federal Government declares that any political party has been formed or is operating in a manner prejudicial to the soverignty or integrity of Pakistan, the Federal Government shall, within fifeen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final.

(3) Every political party shall account for the source of its funds in accordance with law.

18. Freedom of trade, business or profession.

Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:Provided that nothing in this Article shall prevent:-(a) the regulation of any trade or profession by a licensing system; or(b) the regulation of trade, commerce or industry in the interest of free competition therein; or(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.

19. Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court,  30[commission of or incitement to an offence.

19A. Right to information:

Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.

20. Freedom to profess religion and to manage religious institutions.

Subject to law, public order and morality:-(a) every citizen shall have the right to profess, practice and propagate his religion; and(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

21. Safeguard against taxation for purposes of any particular religion.

No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own.

22. Safeguards as to educational institutions in respect of religion, etc.

(1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.

 (2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.

 (3) Subject to law:(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.

(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens.

 23. Provision as to property

Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.

24. Protection of property rights

(1) No person shall be compulsorily deprived of his property save in accordance with law.

 (2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.

(3) Nothing in this Article shall affect the validity of :-

(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or

(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or

(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or

(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the proper management of the property, or for the benefit of its owner; or

(e) any law providing for the acquisition of any class of property for the purpose of

(i) providing education and medical aid to all or any specified class of citizens or

(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or

(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves ; or

(f) any existing law or any law made in pursuance of Article 253.

(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court.

 25. Equality of citizens.(1) All citizens are equal before law and are entitled to equal protection of law.

(2) There shall be no discrimination on the basis of sex  .

 (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

25A. Right to education: The State shall provide free and compulsory education to all children of the age of five to sixteen years in such manner as may be determined by law.

26. Non-discrimination in respect of access to public places

(1) In respect of access to places of public entertainment or resort not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth.

 (2) Nothing in clause (1) shall prevent the State from making any special provision for women and children.

 27. Safeguard against discrimination in services.

(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth:Provided that, for a period not exceeding [forty]  years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan:Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex

Provided also that under-representation of any class or area in the service of Pakistan may be redressed in such manner as may be determined by an Act of Majlis-e-Shoora (Parliament).

(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province. for a period not exceeding three years, prior to appointment under that Government or authority.

 28. Preservation of language, script and culture.

Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purpose

[All amendment up to 2017 has been incorporated accordingly]



 

Supreme Judicial Council Pakistan

Keywords: Appointment of Judges- Investigation

Supreme Judicial Council (Investigating Body)

The Supreme Judicial Council is comprised of the Chief Justice of Pakistan as Chairman, two most senior Judges of the Supreme Court and two most senior Chief Justices of High Courts as members. The Registrar, Supreme Court of Pakistan acts as its Secretary. On a reference received from President or through suo-moto action, the Supreme Judicial Council investigates the matter and presents its finding to the President. If the council decides that the Judge is incapable of performing the duties of office or is guilty of misconduct, and therefore should be removed from office, the President may order the removal of such judge. A judge may not be removed from service except on the specified grounds and subject to the prescribed procedure.(Source: Supreme Court of Pakistan)

Judicial Commission(Appointing Body)

Article 175A. Appointment of Judges to the Supreme Court, High Courts and the Federal Shariat Court

(1) There shall be a Judicial Commission of Pakistan, hereinafter in this Article referred to as the Commission, for appointment of Judges of the Supreme Court, High Courts and the Federal Shariat Court, as hereinafter provided.

(2) For appointment of Judges of the Supreme Court, the Commission shall consist of—

(i) Chief Justice of Pakistan; Chairman
(ii) [four] most senior Judges of the Supreme Court;Member
(iii) a former Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the [four] member Judges, for a term of two years; Member
(iv) Federal Minister for Lawand Justice;Member
(v) Attorney-General for Pakistan; and Member
(vi) a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years.Member

(3) Notwithstanding anything contained in clause (1) or clause (2), the President shall appoint the most senior Judge of the Supreme Court as the Chief Justice of Pakistan.

(4) The Commission may make rules regulating its procedure.

(5) For appointment of Judges of a High Court, the Commission in clause (2) shall also include the following, namely:-

(i) Chief Justice of the High Court to which the appointment is being made; Member
(ii) the most senior Judge of that High Court; Member
(iii) Provincial Minister for Law; and Member
1[(iv) an advocate having not less than fifteen year practice in the High Court to be nominated by the concerned Bar Council for a term of two years:] Member
2[Provided that for appointment of the Chief Justice of a High Court the most Senior Judge mentioned in paragraph (ii) shall not be member of the Commission:
Provided further that if for any reason the Chief Justice of High Court is not available, he shall be subtitued by a former Chief Justice or former Judge of that Court,to be nominated by the Chief Justice of Pakistan in consultation with the four member judges of the Commission mentioned in paragraph (ii) of clause (2).]

(6) For appointment of judges of the Islamabad High Court, the Commission in clause (2) shall also include the following, namely:-

(i) Chief Justice of the Islamabad High Court; and Member
(ii) most senior Judge of that High Court:Member

Provided that for initial appointment of the [Chief Justice and the] Judges of the Islamabad High Court, the Chief Justices of the four Provincial High Courts shall also be members of the Commission.

Provided further that subject to the foregoing proviso, in case of appointment of Chief Justice of Islamabad High Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(7) For appointment of Judges of the Federal Shariat Court, the Commission in clause (2) shall also include the Chief Justice of the Federal Shariat Court and the most senior Judge of that Court as its members:

Provided that for appointment of Chief Justice of Federal Shariat Court, the provisos to clause (5) shall, mutatis mutandis, apply.

(8) The Commission by majority of its total membership shall nominate to the Parliamentary Committee one person, for each vacancy of a Judge in the Supreme Court, a High Court or the Federal Shariat Court, as the case may be;

(9) The Parliamentary Committee, hereinafter in this Article referred to as the Committee, shall consist of the following eight members, namely:-

(i) four members from the Senate; and
(ii) four members from the National Assembly.

Provided that when the National Assembly is dissolved,the total membership of the parliamentary Committee shall consist of the members from the Senate only mentioned in paragraph (i) and the provisions of this Article shall,mutatis mutandis,apply.

(10) Out of the eight members of the Committee, four shall be from the Treasury Benches, two from each House and four from the Opposition Benches, two from each House. The nomination of members from the Treasury Benches shall be made by the Leader of the House and from the Opposition Benches by the Leader of the Opposition.

(11) Secretary, Senate shall act as the Secretary of the Committee.

(12) The Committee on receipt of a nomination from the Commission may confirm the nominee by majority of its total membership within fourteen days, failing which the nomination shall be deemed to have been confirmed:

Provided that the Committee for reasons to be recorded ,may not confirm the nomination by three-fourth majority of its total membership within the said period.

Provided further that if a nomination is not confirmed by the Committee it shall forward its decision with reasons so recorded to the Commission through the Prime Minister.

Provided further that if a nomination is not confirmed, the Commission shall send another nomination.

(13) The Committee shall send the name of the nominee confirmed by it or deemed to have been confirmed to the Prime Minister who shall forward the same to the President for appointment.

(14) No action or decision taken by the Commission or a Committee shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof.

(15) The meetings of the Committee shall be held in camera and the record of its proceedings shall be maintained.

(16) The provisions of Article 68 shall not apply to the proceedings of the Committee.

(17) The Committee may make rules for regulating its procedure.

 

Compare

Collegium of Indian Supreme CourtSUPREME COURT 2

 

Quaid-i-Azam Muhammad Ali Jinnah

The first session of the first Constituent Assembly of Pakistan was held on 10th August 1947 at Sindh Assembly Building Karachi. On 11th August 1947 Quaid-i-Azam Muhammad Ali Jinnah was elected unanimously as the President of the Constituent Assembly of Pakistan and the National Flag was formally approved by the Assembly.

On 12th August 1947, a resolution was approved regarding officially addressing Mr Muhammad Ali Jinnah as “Quaid-i-Azam Muhammad Ali Jinnah”( The Great Leader). On the same day, a special committee called the “Committee on Fundamental Rights of Citizens and Minorities of Pakistan” was appointed to look into and advise the Assembly on matters relating to fundamental rights of the citizens, particularly the minorities, with the aim to legislate on these issues appropriately. On 14th August 1947, the Transfer of Power took place. Lord Mountbatten, Governor General of India, addressed the Constituent Assembly of Pakistan. The Quaid gave a reply to the address in the House, on which the principles of the State of Pakistan were laid. On 15th August 1947, Quaid-i-Azam was sworn in as the first Governor General of Pakistan. Mian Sir Abdur Rashid, Chief Justice of Pakistan, administered oath of office from him. The Quaid remained in this position till his death i.e.11th September 1948.(Source National Assembly of Pakistan)

Dishonestly issuing a cheque -Pakistan Penal Code 1860

Section 489

Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.

S 24. “Dishonestly”- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.

Mr. Jinnah’s presidential address to the Constituent Assembly of Pakistan[1947]

Keywords:-Corruption, Nepotism, Hindu- Muslim- Division of India

August 11, 1947

LAW OF PAKISTAN


 

Mr. President, Ladies and Gentlemen!

I cordially thank you, with the utmost sincerity, for the honour you have conferred upon me – the greatest honour that is possible to confer – by electing me as your first President.

I also thank those leaders who have spoken in appreciation of my services and their personal references to me. I sincerely hope that with your support and your co-operation we shall make this Constituent Assembly an example to the world.

The Constituent Assembly has got two main functions to perform. The first is the very onerous and responsible task of framing the future constitution of Pakistan and the second of functioning as a full and complete sovereign body as the Federal Legislature of Pakistan. We have to do the best we can in adopting a provisional constitution for the Federal Legislature of Pakistan. You know really that not only we ourselves are wondering but, I think, the whole world is wondering at this unprecedented cyclonic revolution which has brought about the clan of creating and establishing two independent sovereign Dominions in this sub-continent. As it is, it has been unprecedented; there is no parallel in the history of the world. This mighty sub-continent with all kinds of inhabitants has been brought under a plan which is titanic, unknown, unparalleled. And what is very important with regards to it is that we have achieved it peacefully and by means of an evolution of the greatest possible character.

Dealing with our first function in this Assembly, I cannot make any well-considered pronouncement at this moment, but I shall say a few things as they occur to me. The first and the foremost thing that I would like to emphasize is this: remember that you are now a sovereign legislative body and you have got all the powers. It, therefore, places on you the gravest responsibility as to how you should take your decisions. The first observation that I would like to make is this: You will no doubt agree with me that the first duty of a government is to maintain law and order, so that the life, property and religious beliefs of its subjects are fully protected by the State.

The second thing that occurs to me is this: One of the biggest curses from which India is suffering – I do not say that other countries are free from it, but, I think our condition is much worse – is bribery and corruption. That really is a poison. We must put that down with an iron hand and I hope that you will take adequate measures as soon as it is possible for this Assembly to do so.

Black-marketing is another curse. Well, I know that black marketeers are frequently caught and punished. Judicial sentences are passed or sometimes fines only are imposed. Now you have to tackle this monster, which today is a colossal crime against society, in our distressed conditions, when we constantly face shortage of food and other essential commodities of life. A citizen who does black-marketing commits, I think, a greater crime than the biggest and most grievous of crimes. These black marketeers are really knowing, intelligent and ordinarily responsible people, and when they indulge in black-marketing, I think they ought to be very severely punished, because the entire system of control and regulation of foodstuffs and essential commodities, and cause wholesale starvation and want and even death.

The next thing that strikes me is this: Here again it is a legacy which has been passed on to us. Along with many other things, good and bad, has arrived this great evil, the evil of nepotism and jobbery. I want to make it quite clear that I shall never tolerate any kind of jobbery, nepotism or any any influence directly of indirectly brought to bear upon me. Whenever I will find that such a practice is in vogue or is continuing anywhere, low or high, I shall certainly not countenance it.

I know there are people who do not quite agree with the division of India and the partition of the Punjab and Bengal. Much has been said against it, but now that it has been accepted, it is the duty of everyone of us to loyally abide by it and honourably act according to the agreement which is now final and binding on all. But you must remember, as I have said, that this mighty revolution that has taken place is unprecedented. One can quite understand the feeling that exists between the two communities wherever one community is in majority and the other is in minority. But the question is, whether it was possible or practicable to act otherwise than what has been done, A division had to take place. On both sides, in Hindustan and Pakistan, there are sections of people who may not agree with it, who may not like it, but in my judgement, there was no other solution and I am sure future history will record is verdict in favour of it. And what is more, it will be proved by actual experience as we go on that was the only solution of India’s constitutional problem. Any idea of a united India could never have worked and in my judgement it would have led us to terrific disaster. Maybe that view is correct; maybe it is not; that remains to be seen. All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now, what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges, and obligations, there will be on end to the progress you will make.

I cannot emphasize it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community, because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on, will vanish. Indeed if you ask me, this has been the biggest hindrance in the way of India to attain the freedom and independence and but for this we would have been free people long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time, but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State. As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the government of their country and they went through that fire step by step. Today, you might say with justice that Roman Catholics and Protestants do not exist; what exists now is that every man is a citizen, an equal citizen of Great Britain and they are all members of the Nation.

Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.

Well, gentlemen, I do not wish to take up any more of your time and thank you again for the honour you have done to me. I shall always be guided by the principles of justice and fairplay without any, as is put in the political language, prejudice or ill-will, in other words, partiality or favouritism. My guiding principle will be justice and complete impartiality, and I am sure that with your support and co-operation, I can look forward to Pakistan becoming one of the greatest nations of the world.

I have received a message from the United States of America addressed to me. It reads:

I have the honour to communicate to you, in Your Excellency’s capacity as President of the Constituent Assembly of Pakistan, the following message which I have just received from the Secretary of State of the United States:

On the occasion of the first meeting of the Constituent Assembly for Pakistan, I extend to you and to the members of the Assembly, the best wishes of the Government and the people of the United States for the successful conclusion of the great work you are about to undertake.


 

Deepak Aggarwal vs Keshav Kaushik & Ors[SC 2013]

Keywords: Public Prosecutor

SC INDEx

In our view, none of the five private appellants, on their appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each one of them continued to be ‘advocate’, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2). The view of the Division Bench is clearly erroneous and cannot be sustained.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 561 OF 2013
(Arising out of SLP(C) No. 17463 of 2010)

Deepak Aggarwal …… Appellant

Vs.

Keshav Kaushik and others …… Respondents
WITH

CIVIL APPEAL NOS. 562-567 OF 2013
(Arising out of SLP(C) Nos. 17723-17728 of 2010)

CIVIL APPEAL NOS. 568-572 OF 2013
(Arising out of SLP(C) Nos. 17793-17797 of 2010)

CIVIL APPEAL NOS. 573-578 OF 2013
(Arising out of SLP(C) Nos. 17366-17371 of 2010)

CIVIL APPEAL NOS. 579-584 OF 2013
(Arising out of SLP(C) Nos. 21344-21349 of 2010)

CIVIL APPEAL NOS. 585-590 OF 2013
(Arising out of SLP(C) Nos. 23205-23210 of 2010)

CIVIL APPEAL NOS. 591-596 OF 2013

(Arising out of SLP(C) Nos. 32273-32278 of 2011)

Act:

Bench: R.M. Lodha, Anil R. Dave, Ranjan Gogoi

 Decided:

21 January, 2013

JUDGMENT
R.M. LODHA, J.

Leave granted. What is the meaning of the expression ‘the service’ in Article 233(2) of the Constitution of India? What is meant by ‘advocate’ or ‘pleader’ under Article 233(2)? Whether a District Attorney/Additional District Attorney/Public Prosecutor/Assistant Public Prosecutor/Assistant Advocate General, who is full time employee of the Government and governed and regulated by the statutory rules of the State and is appointed by direct recruitment through the Public Service Commission, is eligible for appointment to the post of District Judge under Article 233(2) of the Constitution? These are the questions which have been raised for consideration in this group of appeals.

2. The above questions and some other incidental questions in these appeals have arisen from the judgment of the Punjab and Haryana High Court delivered on 18.05.2010. The Division Bench of the High Court by the above judgment disposed of 12 writ petitions wherein challenge was laid to the selection and appointment of certain candidates to the post of Additional District and Sessions Judge in the Haryana Superior Judicial Service (HSJS) on diverse grounds. The High Court by its judgment disposed of the writ petitions in the following manner :

“(A) Selections/appointments of respondents no. 9 – (Dinesh Kumar Mittal), 12 (Rajesh Malhotra), 13 (Deepak Aggarwal), 15 (Chandra Shekhar) and 18 (Desh Raj Chalia) in CWP No. 9157 of 2008 (wherever they may be in other writ petitions) as Additional District and Sessions Judges, are hereby quashed. This direction shall, however, remain in abeyance for a period of two months to enable the High Court to make alternative arrangements;
(B) As a consequence of the quashment of the
selections/appointments of above named respondents, the
resultant five vacancies shall be filled up from the candidates next in the order of merit, out of the panel prepared by the Selection Committee;
(C) The appointment of Fast Track Court Judges by a process of absorption after further examination and selection contained in the recommendation of the Selection Committee dated 18.03.2008 is affirmed.
(D) Order dated 22.09.2008 (Annexure P-8 in CWP No. 17708 of 2008 rejecting the request of the High Court for de- reservation of six vacancies (four Scheduled Caste, 2 Backward Classes) is hereby quashed. Resultantly, the matter is remitted back to the Government to re-consider the request of the High Court for de-reservation in relaxation of rules by the competent authority empowered under the Government instructions dated 7.9.2008 and Rule 31 of the Haryana Superior Judicial Service Rules, 2007. The process of re-consideration shall be completed within six weeks and the decision be communicated to the High Court.
(E) If on such re-consideration, the State decides to de- reserve the vacancies, candidates recommended by the High Court vide its recommendation letter dated 25.4.2008, shall be appointed.”
3. The appellants in this group of seven appeals are, Deepak Aggarwal, Dinesh Kumar Mittal, Rajesh Malhotra, Chandra Shekhar and Desh Raj Chalia, whose selections/appointments as Additional District and Sessions Judges have been quashed by the High Court, and the Punjab and Haryana High Court, Chandigarh on its administrative side.

4. On 18.05.2007, the Punjab and Haryana High Court, Chandigarh through its Registrar General issued a notification inviting applications for recruitment to certain posts of Additional District and Sessions Judge. The written examinations were conducted pursuant to the said notification wherein 64 candidates were recommended for the interview. After conducting the interview, the High Court recommended the names of 16 candidates in order of merit to the post of Additional District and Sessions Judge in the State of Haryana by direct recruitment. Of the 16 candidates recommended by the High Court, 5 were the appellants. At the time of appointment, Deepak Aggarwal was working as Assistant District Attorney in Himachal Pradesh; Chandra Shekhar and Desh Raj Chalia were working as Assistant District Attorney in the State of Haryana, Rajesh Malhotra was working as Public Prosecutor in the office of Central Bureau of Investigation and Dinesh Kumar Mittal was working as Deputy Advocate General in the office of the Advocate General, Punjab.

5. Based on the recommendation of the High Court, the State of Haryana issued appointment orders. Some of the unsuccessful candidates filed writ petitions before the High Court raising diverse grounds of challenge. However, as indicated above, the appointments of five appellants who were working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General have been quashed holding that they did not have the requisite criteria to qualify for the recruitment as contemplated in Article 233 of the Constitution and that some of the candidates did not have requisite experience.

6. Article 233 of the Constitution of India provides for appointment of District Judges. It reads as follows:

“233. Appointment of district judges.—(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.”
7. Haryana Superior Judicial Service Rules, 2007 (for short, ‘HSJS Rules’) regulate the appointment of subordinate judges in the State of Haryana. Part III of these Rules deals with method of recruitment. Rules 5, 6 and 11 of the HSJS Rules are relevant for the purposes of consideration of these appeals and they read as under :

“R.5. Recruitment to the Service shall be made by the Governor,—
(i) by promotion from amongst the Haryana Civil Service (Judicial Branch) in consultation with the High Court; and
(ii) by direct recruitment from amongst eligible Advocates on the recommendations of the High Court on the basis of the written and viva voce test conducted by the High Court.
R.6. (1) Recruitment to the Service shall be made,—
a) 50 per cent by promotion from amongst the Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division) on the basis of principle of merit-cum-seniority and passing a suitability test;
b) 25 per cent by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service as Civil Judges (Senior Division)/Chief Judicial Magistrates/Additional Civil Judges (Senior Division); and who are not less than thirty five years of age on the last date fixed for submission of applications for taking up the limited competitive examinations; and
c) 25 per cent of the posts shall be filled by direct recruitment from amongst the eligible Advocates on the basis of the written and viva voce test, conducted by the High Court.
(2) The first and second post would go to category (a) (by promotion on the basis of merit-cum-seniority), third post would go to category (c) (direct recruitment from the bar) and fourth post would go to category (b) (by limited competitive examination) of rule 6, and so on.
R. 11. The qualifications for direct recruits shall be as follows :
(a) must be a citizen of India;
(b) must have been duly enrolled as an Advocate and has practiced for a period not less than seven years;
(c) must have attained the age of thirty five years and have not attained the age of forty five years on the 1st day of January of the year in which the applications for recruitment are invited.”
8. It will be convenient at this stage to refer to some other provisions which have bearing in the matter and are relevant for the purpose of these appeals. Section 2(u) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) defines ‘Public Prosecutor’ to mean any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor. Section 24 deals with ‘Public Prosecutors’. It reads as under:
“24. Public Prosecutors,— (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.
(3) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare, a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
Explanation – For the purposes of this sub-section,–
(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;
(b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:
“Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice, as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.”
9. Some of the States have amended Section 24 Cr.P.C. Insofar as Haryana is concerned, an explanation has been added to sub-section (6) of Section 24 with effect from 29.11.1985 which provides that for the purpose of sub-section (6), the persons constituting the Haryana State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal Service (Group B) shall be deemed to be a regular Cadre of Prosecuting Officers.
10. Section 25 Cr.P.C deals with Assistant Public Prosecutors for conducting prosecutions in the court of Magistrates. Section 25A was brought in the Cr.P.C. by Act 25 of 2005. It, inter alia, provides that the State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. Sub-section (5) of Section 25A makes a provision that every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1) or under sub-section (8) of Section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. In terms of sub-section (6) of Section 25A, every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub- section (3) or under sub-section (8) of Section 24 to conduct cases in district courts and every Assistant Public Prosecutor appointed under sub- section (1) of Section 25 shall be subordinate to the Deputy Director of Prosecution. Sub-section (8), however, clarifies that the Advocate General for the State while performing the functions of public prosecutor shall not be covered by Section 25A.

11. Section 2(7) of the Code of Civil Procedure, 1908 (for short, ‘CPC’) defines ‘government pleader’. According to this provision, ‘government pleader’ includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by the CPC on the government pleader and also any pleader acting under the directions of the government pleader.

12. Section 2(15) CPC defines ‘pleader’ which means any person entitled to appear and plead for another in court, and includes an advocate, a vakil and an attorney of a High Court.

13. Prior to Indian Advocates Act, 1961, [The Indian] Bar Councils Act, 1926 (for short, ‘1926 Act’) dealt with the functions of the Bar Council and the admission and enrolment of advocates. Section 2(1)(a) of the 1926 Act had defined ‘advocate’ as meaning an advocate entered in the roll of advocates of a High Court under the provisions of that Act.

14. Section 8(1) of the 1926 Act provided as under:

“8.Enrolment of advocates. – (1) No person shall be entitled as of right to practice in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act:
Provided that nothing in this sub-section shall apply to any attorney of the High Court.”
15. Section 9 of the 1926 Act dealt with qualifications and admission of advocates while Section 14 provided for right of advocates to practice.

16. On constitution of the State Bar Council under the Advocates Act, 1961 (for short, ‘1961 Act’), the relevant provisions of the 1926 Act stood repealed. Section 17 of the 1961 Act provides that every State Bar Council shall prepare and maintain a roll of advocates. It further provides that no person shall be enrolled as an advocate on the roll of more than one State Bar Council. Section 24 provides for the eligibility of the persons who may be admitted as advocates on State roll. Inter alia, it states that a person shall be qualified to be admitted as an advocate on a State roll if he fulfills such other conditions as may be specified in the rules made by the State Bar Council under Chapter III. Section 28 empowers a State Bar Council to make rules to carry out the purposes of Chapter III. Clause (d), sub-section (2) of Section 28 states that such rules may provide for the conditions subject to which a person may be admitted as an advocate on the State roll. Chapter IV of the 1961 Act deals with the right to practice. This Chapter comprises of five sections. Section 29 provides that from the appointed day, there shall be only one class of persons entitled to practice profession of law, namely, advocates. Section 30 provides for right of advocates to practice. Section 33 makes a provision that except as otherwise provided in the Act or in any other law for the time being in force, no person shall on or after the appointed day, be entitled to practice in any event or before any authority or person unless he is enrolled as advocate under the Act.

17. Section 49 gives power to the Bar Council of India to make rules for discharging its functions and also to frame rules in respect of the subjects enumerated in clauses (a) to (j). Clause (ah) deals with the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court. The first proviso following the main Section provides that no rules made with reference to clause (c) or (gg) shall have effect unless they have been approved by the Chief Justice of India. The second proviso provides that no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government. Pursuant to the power given under Section 49, the Bar Council of India has framed the Bar Council of India Rules (for short, ‘BCI Rules’). Rule 43 provides that an advocate, who has taken a full-time service or part-time service or engaged in business or any avocation inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within 90 days. On his failure to do so or in the absence of sufficient cause for not doing so, he may face suspension of licence to practice. Prior to 2001, Rule 49 of the BCI Rules read as under :

“49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment.
Nothing in this rule shall apply to a Law Officer of the Central Government or a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full time salaried employee.
Law Officer for the purpose of this Rule means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in courts on behalf of his employer.
18. By resolution dated 22.06.2001, the Bar Council of India deleted the second and third para of the above rule. The said resolution was published in the Government Gazette on 13.10.2001. The Chief Justice of India gave his consent to the said deletion on 23.04.2008. Rule 49 in its present form, consequent on amendment, reads as under:

“An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practise as an advocate so long as he continues in such employment”.
19. The High Court has held, and in our view rightly, that the consent of Chief Justice of India was not needed because rule in respect of eligibility is traceable to clause (ah). The amendment thus became effective in any case on its publication in the Government Gazette on 13.10.2001.

20. The High Court while considering the issue relating to eligibility of the appellants for selection and appointment under Article 233(2), dealt with Sections 17, 22, 24, 29 and 33 of the 1961 Act and Rule 49 of the BCI Rules and observed that an advocate could not be a full-time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice.

21. The High Court referred to various decisions including decisions of this Court in Mundrika Prasad Sinha v. State of Bihar[1], Mukul Dalal and others v. Union of India and Others[2], Kumari Shrilekha Vidyarthi and Others v. State of U.P. and Others[3], Chandra Mohan v. State of U.P. and Others[4], Satya Narain Singh v. High Court of Judicature at Allahabad and Others[5], Sushma Suri v. Government of National Capital Territory of Delhi and Another[6], Satish Kumar Sharma v. Bar Council of H.P.[7], Sunil Kumar Goyal v. Rajasthan Public Service Commission[8] and finally held that Dinesh Kumar Mittal, Rajesh Malhotra, Deepak Aggarwal, Chandra Shekhar and Desh Raj Chalia were ineligible at the time of their appointment as Additional District and Sessions Judge. The Bench formulated its opinion on account of the following :

“They were in regular government service with the Union or the State. Their recruitment to the posts of Deputy Advocate General, Assistant District Attorney’s/Prosecutors was pursuant to their selection by the respective Public Service Commission/Government. All of them were in the graded pay scale and subjected to all rigors of service conditions of a government servant known to service jurisprudence. We may not be misunderstood to mean that the Law Officers as a genre are ineligible for judicial appointment.
Disqualification/ineligibility is attracted only to such category of Law Officers who opt for regular Government employment. However, no such ineligibility is attached to the other category of Law Officers who are practicing lawyers and are engaged on behalf of the Government or any other organization/authority, even on salary to appear on their behalf either under any contractual arrangement or on case to case basis, without subjecting themselves to the conditions of regular government employment such as the Advocate General, Additional Advocate General in the State, Assistant Solicitor General or Central Government Standing counsel or any other Law Officer engaged by various Government Corporations or otherwise who are engaged to represent them in courts of law.”
22. The High Court also held that except Rajesh Malhotra, the other four, namely, Dinesh Kumar Mittal, Deepak Aggarwal, Chandra Shekhar and Desh Raj Chalia were having less than seven years of practice at the Bar before their engagement as Assistant District Attorneys/Public Prosecutors.

23. Mr. P.P. Rao, learned senior counsel who led the arguments on behalf of the appellants, argued that Article 233(2) of the Constitution is a self-contained Code. Service of a Public Prosecutor or an Assistant Public Prosecutor or a Government Pleader does not render a person ineligible for appointment as a District Judge if he has been for not less than seven years an advocate or a pleader. According to him, it is open to the State to appoint a Government Pleader in terms of Section 2(7) of C.P.C. for conducting civil cases and Public Prosecutors under Section 24 of Cr.P.C. for criminal cases on mutually agreed terms, either on a case to case basis or piece-rate basis for each item of work done or on a tenure basis or on a permanent basis. Though called ‘appointment’, it is in reality and in substance an engagement of an advocate for conducting cases in courts. Advocates with experience are only eligible for these posts and even after appointment as Government Pleader or Public Prosecutor or Assistant Public Prosecutor or Assistant District Attorney, their job is exclusively or mainly to conduct cases as advocates in courts. The nature of their functions remains the same. They are always Officers of the Court.

24. It was submitted by Mr. P.P. Rao that the 1961 Act and the BCI Rules, including Rule 49 , must be read harmoniously with the relevant provisions of C.P.C. and Cr.P.C. having regard to the object and scheme of appointment of the Government Pleaders, Public Prosecutors, Assistant Public Prosecutors or Assistant District Attorneys etc. He contended that rule making power by Bar Council of India cannot be exercised inconsistent with the provisions contained in CPC and Cr.P.C; it is not an overriding power and the persons who are eligible in terms of Article 233(2) of the Constitution cannot be made ineligible by a rule made by the Bar Council of India. According to him, the meaning of the word, ‘advocate’ occurring in Article 233(2) must be fixed and identified which the Constitution makers had in mind. Neither the 1961 Act nor the BCI Rules framed thereunder can curtail the meaning of the word ‘advocate’ that is understood under Article 233(2) of the Constitution.

25. Mr. P.P. Rao, learned senior counsel submitted that it could never be the intention of the Bar Council of India when it made Rule 49 that appointment of advocate by the Government for conducting its cases in courts as an advocate on a full time salary basis would attract the bar in Rule 49. The bar applies to employees engaged for work other than conducting cases in courts as advocates. He suggested that in order to save the operation of Rule 49, it needs to be read down and the test laid down by this Court in Satish Kumar Sharma7 and Sushma Suri6 must be applied, i.e. whether a person is engaged to act and/or plead in a court of law as an advocate and not whether such person is engaged on terms of salary or payment of remuneration. In his view, what is important is not the employment but the functions that a Public Prosecutor or a Government Pleader discharges.

26. The contention of Mr. P.P. Rao is that the BCI Rules cannot override the operation of any law made by the Parliament, including the CPC or the Cr.P.C., much less Article 233(2) of the Constitution which contains the word ‘advocate’ having a definite meaning i.e., person enrolled as a member of the Bar to conduct cases in courts. He highlighted the consistent practice before the Constitution and after the Constitution of the Government Pleaders and Public Prosecutors on regular or permanent basis with fixed emoluments being appointed as District Judges by way of direct recruitment in view of their experience in conducting government cases. He submitted that to declare them ineligible would defeat the object of recruitment underlying Article 233(2) of the Constitution.

27. Mr. A.K. Ganguli, learned senior counsel appearing in the appeals preferred by Dinesh Kumar Mittal adopted the arguments of Mr. P.P. Rao and further submitted that it is right to practice that determines whether one is advocate or not and that is what must be understood by the term ‘advocate’ occurring in Article 233(2) of the Constitution.

28. Mr. B.H. Marlapalle, learned senior counsel for the appellant Desh Raj Chalia, submitted that Article 233(2) provided two different sources of appointment to the post of District Judge, namely, by promotion from service and by nomination from the law practitioners with practice of not less than seven-years. The requirement of practice for not less than seven-years is only for the appointment by nomination. He relied upon decisions of this Court in Rameshwar Dayal v. State of Punjab and others[9], Chandra Mohan4 and Satya Narain Singh5. Learned senior counsel argued that Section 24, Cr.P.C. is the source of power for appointment of the Public Prosecutor/Additional Public Prosecutor either as part of the regular service cadre or from the panel prepared by the District Magistrate. The scheme of Section 24 Cr.P.C. cannot be allowed to be defeated by Rule 49 of the BCI Rules as amended by the resolution dated 22.06.2001. Learned senior counsel submitted that a Public Prosecutor appointed by State Government as a part of regular service cadre cannot be excluded from the scheme of Section 30 of the 1961 Act just because he has chosen to appear for the State Government. Any law practitioner/advocate has the choice to restrict his practice. He heavily relied upon the observations made by this Court in paragraphs 6, 10 and 11 of the decision in Sushma Suri6 and submitted that principles laid down therein were fully applicable to the appellant’s submission that he is eligible for being selected by nomination to the post of District Judge from amongst the law practitioners.

29. Mr. B.H. Marlapalle referred to various provisions of the 1961 Act and Rule 49 of the BCI Rules and submitted that any person who is a law officer of the State/Central Government and who by the said term is required to act and plead in a court on behalf of his employer is entitled to be admitted as an advocate to the State roll. Rule 49, as amended by the Bar Council of India, cannot be interpreted to mean that every Public Prosecutor/Additional Public Prosecutor, who is appointed by the State Government as a part of regular service cadre, ceases to be an advocate. If a Public Prosecutor forming part of service cadre, ceases to be an advocate then his tenure as a Public Prosecutor under Section 24, Cr.P.C. would automatically come to an end. Such an interpretation of Rule 49 of the BCI Rules would not be proper.

30. Learned senior counsel also challenged the finding recorded by the High Court with regard to appellant Desh Raj Chalia that he did not complete seven years of law practice. According to him, his tenure as Assistant District Attorney was required to be counted for the purpose of computing period of practice and the appellant had completed more than 11 years of law practice.

31. Mr. S.S. Ray, learned counsel appearing for one of the appellants, argued that the amendment to Rule 49 in 2001 has not affected the position of the appellant as an advocate in any manner and the judgment of this Court in Sushma Suri6 is squarely applicable. Learned counsel would submit that ‘advocate’ means any person who pleads for his client. The word, ‘advocate’ is genus whereas expressions, Law Officer/Assistant District Attorney/Public Prosecutor are species. They are covered within the meaning of term ‘advocate’. Suspension of the licence or deleting the name from the roll of advocates cannot exclude a Public Prosecutor or Assistant District Attorney from the definition of word ‘advocate’. He further argued that if Public Prosecutor and Assistant District Attorney are taken out from the definition of ‘advocate’ then they cannot plead the case before the court even on behalf of the Government. He submitted that the provisions contained in CPC and Cr.P.C. should prevail over the BCI Rules. With regard to interpretation of Article 233(2), he adopted the arguments of Mr. P.P. Rao.

32. Mr. Raju Ramchandran, learned senior counsel appeared for the High Court of Punjab and Haryana on administrative side. He submitted that District Attorney, Public Prosecutor and Assistant Advocate General are in essence lawyers. Even though Rule 49 was amended by the Bar Council of India, yet under the amended rule District Attorneys, Public Prosecutors/Assistant Advocate General continue to appear as advocates as they continue to have their licence. Rule 49 per se does not bar them from appearing before a court. Reference was made to the provisions of Haryana State Prosecution Legal Service (Group ‘C’) Rules, 1979 to show that the Government Pleader and Public Prosecutor may be fully engaged by the Government but in essence they are lawyers representing the Government. He submitted that High Court failed to notice the explanation to Section 24(6) and its interplay with Section 24(9) Cr.P.C. Learned senior counsel suggested that the test enunciated in Sushma Suri6 , namely, whether he is engaged to act or plead on behalf of the employer in a court of law as an advocate should be applied to find out whether the private appellants whose appointments have been cancelled met the prescribed eligibility or not.

33. Learned senior counsel sought to distinguish the decision of this Court in Mallaraddi H. Itagi & Ors. v. High Court of Karnataka by highlighting that Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962 did not allow the Public Prosecutors to appear as advocates before the Court; the candidates therein admitted that they were government servants; and the candidates therein had surrendered their licence.

34. A plea of estoppel was also raised on behalf of the High Court and it was submitted that the writ petitioners were estopped from challenging the selection process as they had taken a chance to get selected and after having remained unsuccessful, they have now challenged the appointment of successful candidates.

35. On the other hand, Mr. Prashant Bhushan, learned counsel for the respondent – Keshav Kaushik (writ petitioner before the High Court) in the appeal preferred by Deepak Aggarwal, referred to Article 233(2) of the Constitution and submitted that in order to be eligible, the candidate must not be in the service of Union or the State and must have been an advocate for at least seven years. It was submitted that the expression, “if he has been for not less than seven years an advocate” must be read to mean seven years immediately preceding his appointment/ application. It cannot mean any seven years any time in the past. If that interpretation were to be accepted, it would mean that a person who is enrolled as an advocate for seven years and thereafter took up a job for the last twenty years would also become eligible for being appointed as District Judge. This would defeat the object of the qualification prescribed in Article 233(2).

36. Mr. Prashant Bhushan contended that a Public Prosecutor being a full time employee of the Government, ceases to be an advocate by virtue of Rule 49 of the BCI Rules. The candidates whose appointment was challenged were in full time employment of the Government; were liable to be transferred and posted with the Government Companies as law officers and they have several functions other than appearances in courts as Public Prosecutors. Merely because one of the functions of these Public Prosecutors is to appear in courts would not make them advocates and eligible for appointment under Article 233 (2) of the Constitution. He justified the view of the High Court.

37. Mr. P.S. Patwalia, learned senior counsel also arguing for respondent no. 1 in the appeal by Chandra Shekhar, submitted that Rule 49 expressly debars a person from practising as an advocate on taking up employment. Rule 43 of BCI Rules makes it imperative on any such person to file a declaration within 90 days on taking up employment failing which the State Bar Council can suspend the licence of such a person to practice. It was submitted that full time employees have a limited right of appearance before the courts by virtue of Section 24 Cr.P.C. and Section 2(7) C.P.C. Such employees can only appear in briefs marked to them by State Government for specified courts.

38. Chapter IV of the 1961, Act which deals with right to practice, was referred to by the learned senior counsel, particularly, Sections 29 to 33, and it was submitted that on a conjoint reading of these provisions with Rules 43 to 49 of the BCI Rules and Section 24 Cr.P.C. and Section 2(7) C.P.C., Additional District Attorney/Public Prosecutor/Assistant Advocate General cannot be said to practice law. Reference was made to the Resolution passed by Bar Council of India in this regard which provides that if a Public Prosecutor/Additional District Attorney is a whole time employee drawing regular salary, he will not be entitled to be enrolled as an advocate.

39. In support of the above submissions, Mr. P.S. Patwalia relied upon decision of this Court in Satish Kumar Sharma7 and a decision of this Court in Mallaraddi H. Itagi. Reference was also made to the decision of the Karnataka High Court in Mallaraddi H. Itagi from which the appeals were preferred before this Court. Learned senior counsel submitted that the view taken by Karnataka High Court and upheld by this Court is the view which has been taken by various other high courts, namely, Kerala High Court in K.R. Biju Babu v. High Court of Kerala & Another[10], Jammu and Kashmir High Court in Gurjot Kaur and Others v. High Court of Jammu and Kashmir and Another decided on 14.09.2010, Bombay High Court in Sudhakar Govindrao Deshpande v. State of Maharashtra and Others[11], Allahabad High Court in Akhilesh Kumar Misra and Others v. The High Court of Judicature at Allahabad and Others[12] Rajasthan High Court in Pawan Kumar Vashistha v. High Court of Judicature for Rajasthan, Jodhpur and Another decided on 21.02.2012.

40. Mr. P.S. Patwalia referred to Article 233(2) of the Constitution and the decision of this Court in Chandra Mohan4 and submitted that a person already employed in the executive service of a State is ineligible to be appointed. He heavily relied upon paragraphs 49 and 50 of the impugned judgment and submitted that the findings returned by the High Court were in accord with law.

41. On behalf of the respondents in the appeal by Dinesh Kumar Mittal, it was submitted that Article 233(2) of the Constitution lays down three essentials for appointment of a person to the post of District Judge and all of them are mandatorily required to be fulfilled and are to be read simultaneously. It was submitted that independence of judiciary is the basic structure of the Constitution. The Public Prosecutors holding a regular post in regular pay scale are government servants and they can not be treated as ‘advocate’ within the meaning of Sections 24, 29 and 30 of the 1961 Act read with Rule 49 of the BCI Rules. It was suggested that the words “has been” in Article 233(2) must be read to mean the advocate or pleader who continues to be so at the time of his appointment.

42. Article 233 of the Constitution makes provision for appointment and qualification for District Judges. Under clause (1) of Article 233 no special qualifications are laid down. The Governor can appoint a person who is already in service of the Union or of the State as a District Judge in consultation with the relevant High Court. Clause (2) of Article 233 lays down three essentials for appointment of a person to the post of District Judge; (i) a person shall not be in service of the Union or of the State;

(ii) he has been for not less than seven years an advocate or a pleader; and (iii) his name is recommended by the relevant High Court for appointment. In other words, as regards a person not already in service what is required is that he should be an advocate or pleader of seven years’ standing and that his name is recommended by the High Court for appointment as District Judge. We have to find out what is the meaning of the expression “the service” under Article 233 (2) of the Constitution. The expression “the service” occurring in clause (2) of Article 233 came up for consideration before a Constitution Bench of this Court in Chandra Mohan4.

43. In the case of Chandra Mohan4 the facts were these: during 1961 and 1962, the Registrar of the Allahabad High Court called for applications for recruitment with regard to ten vacancies in the Uttar Pradesh Higher Judicial Service from Barristers, Advocates, Vakils and Pleaders of more than seven years’ standing and from judicial officers. The Selection Committee, constituted under the Rules, selected six candidates for appointment to the said service. The three of the selected candidates were advocates and three were judicial officers. The Selection Committee sent two lists, one comprising the names of three advocates and the other comprising the names of three judicial officers to the High Court. Chandra Mohan, who was Member of U.P. Civil Services (Judicial Branch) and who was at that time acting as a District Judge, and some other officers who were similarly situated, filed writ petitions in the High Court of Allahabad under Article 226 challenging the selection of the six candidates for appointment to the U.P. Higher Judicial Service. The matter was heard by the Division Bench. The members of the Bench agreed that selection from the Bar was good but as regards selection from the cadre of judicial officers, there was difference of opinion on the aspect of non-issuance of notification under Article 237 of the Constitution. The matter was referred to a third Judge who agreed with one of the Judges who held that selection from the judicial officers was also good. Thus, the writ petitions were dismissed. The High Court on the application for certificate to appeal to this Court certified the case a fit one for appeal, consequently, the appeal was filed. As there was some debate on the scope of the certificate granted by the High Court, this Court also granted Special Leave to Appeal against the order of the High Court. Diverse arguments were advanced on behalf of the appellants before this Court. While dealing with the question whether the Governor can directly appoint persons from services other than the judicial service as District Judges in consultation with the High Court and on a further question whether the Governor can appoint judicial officers as District Judges, this Court dealt with Articles 233, 234, 236 and 237 of the Constitution and observed in paragraph 15 of the Report (pgs. 1993-94) as follows:

“The gist of the said provisions may be stated thus. Appointments of persons to be, and the posting and promotion of district judges in any State shall be made by the Governor of the State. There are two sources of recruitment namely (i) service of the Union or of the State, and (ii) members of the Bar. The said Judges from the first source are appointed in consultation with the High Court and those from the second source are appointed on the recommendation of the High Court.
But in the case of appointments of persons to the judicial service other than as district Judges they will be made by the Governor of the State in accordance with rules framed by him in consultation with the High Court and the Public Service Commission. But the High Court has control over all the district Courts and Courts subordinate thereto, subject to certain prescribed limitations.” This Court then in paragraphs 16 and 17 (pg. 1994) of the Report observed as follows:

“16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as district Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district Judge? The acceptance of this position would take us back to the pre- independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Art. 233(1) stood alone, it may be argued that the Governor may appoint any person as a district Judge, whether legally qualified or not, if he belongs to any service under the State. But Art. 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in Cl (2) thereof. Under Cl. (2) of Art. 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution “the service of the Union or of the State” means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate Courts, in which the expression “the service” appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Art. 236(2) defines the expression “judicial service” to mean a service consisting exclusively of persons intended to fill the post of district Judge and other civil judicial posts inferior to the post of district Judge. If this definition, instead of appearing in Art. 236, is placed as a clause before Art. 233(2), there cannot be any dispute that “the service” in Art. 233(2) can only mean the judicial service. The circumstance that the definition of “judicial service” finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression “the service” is used whereas in Arts. 234 and 235 the expression “judicial service” is found is not decisive of the question whether the expression “the service” in Art. 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district Judges. The expressions “exclusively” and “intended” emphasise the fact that the judicial service consists only of persons intended to fill up the post of district Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined “judicial service” in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district Judge.
17. Reliance is placed upon the decision of this Court in Rameshwar Dayal v. State of Punjab, (AIR 1961 SC 816), in support of the contention that “the service” in Art. 233(2) means any service under the State. The question in that case was, whether a person whose name was on the roll of advocates of the East Punjab High Court could be appointed as a district Judge. In the course of the judgment S.K. Das, J., speaking for the Court, observed :
“Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Cl. (1) the Governor can appoint such a person as a district Judge in consultation with the relevant High Court. As to a person not already in service, a qualification is laid down in Cl.
(2) and all that is required is that he should be an advocate or pleader of seven years’ standing.” This passage is nothing more than a summary of the relevant provisions. The question whether “the service” in Art. 233 (2) is any service of the Union or of the State did not arise for consideration in that case nor did the Court express any opinion thereon.” Explaining the meaning of the expression, ‘the service’, this is what this Court said in paragraph 20 of the Report (Pg. 1995) in Chandra Mohan4.
“……….Though S. 254(1) of the said Act was couched in general terms similar to those contained in Art. 233 (1) of the Constitution, the said rules did not empower him to appoint to the reserved post of district Judge a person belonging to a service other than the judicial service. Till India attained independence, the position was that district Judges were appointed by the Governor from three sources, namely, (i) the Indian Civil Service, (ii) the Provincial Judicial Service, and
(iii) the Bar. But after India attained independence in 1947, recruitment to the Indian Civil Service was discontinued and the Government of India decided that the members of the newly created Indian Administrative Service would not be given judicial posts. Thereafter district Judges have been recruited only from either the judicial service or from the Bar. There was no case of a member of the executive having been promoted as a district Judge. If that was the factual position at the time the Constitution came into force, it is unreasonable to attribute to the makers of the Constitution, who had so carefully provided for the independence of the judiciary, an intention to destroy the same by an indirect method. What can be more deleterious to the good name of the judiciary than to permit at the level of district Judges, recruitment from the executive departments? Therefore, the history of the services also supports our construction that the expression “the service” in Art. 233(2) can only mean the judicial service.”
44. The Constitution Bench in Chandra Mohan4 has thus clearly held that the expression ‘the service’ in Article 233(2) means the judicial service.

45. In Satya Narain Singh5, this Court again had an occasion to consider Article 233 of the Constitution. This Court referred to an earlier decision of this Court in Rameshwar Dayal9 and construed Article 233 as follows:

“…….The first clause deals with “appointments of persons to be, and the posting and promotion of, District Judges in any State” while the second clause is confined in its application to persons “not already in the service of the Union or of the State”. We may mention here that “service of the Union or of the State” has been interpreted by this Court to mean Judicial Service. Again while the first clause makes consultation by the Governor of the State with the High Court necessary, the second clause requires that the High Court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High Court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years’ rule has no application but there has to be consultation with the High Court. A clear distinction is made between the two sources of recruitment and the dichotomy is maintained. The two streams are separate until they come together by appointment. Obviously the same ship cannot sail both the streams simultaneously………….”.
After referring to Chandra Mohan4 , this Court in paragraph 5 (pg. 230) stated as under :

“5. Posing the question whether the expression “the service of the Union or of the State” meant any service of the Union or of the State or whether it meant the Judicial Service of the Union or of the State, the learned Chief Justice emphatically held that the expression “the service” in Article 233(2) could only mean the Judicial Service. But he did not mean by the above statement that persons who are already in the service, on the recommendation by the High Court can be appointed as District Judges, overlooking the claims of all other seniors in the Subordinate Judiciary contrary to Article 14 and Article 16 of the Constitution.”
46. From the above, we have no doubt that the expression, ‘the service’ in Article 233(2) means the “judicial service”. Other members of the service of Union or State are as it is excluded because Article 233 contemplates only two sources from which the District Judges can be appointed. These sources are: (i) judicial service; and (ii) the advocate/pleader or in other words from the Bar. District Judges can, thus, be appointed from no source other than judicial service or from amongst advocates. Article 233(2) excludes appointment of District Judges from the judicial service and restricts eligibility of appointment as District Judges from amongst the advocates or pleaders having practice of not less than seven years and who have been recommended by the High Court as such.

47. The question that has been raised before us is whether a Public Prosecutor/Assistant Public Prosecutor/District Attorney/Assistant District Attorney/Deputy Advocate General, who is in full time employ of the Government, ceases to be an advocate or pleader within the meaning of Article 233(2) of the Constitution.

48. In Kumari Shrilekha Vidyarthi3 , this Court dealt with scheme of the Cr.P.C. relating to Public Prosecutors and it was held that the Code invests the Public Prosecutors with the attribute of the holder of public office. In paragraph 14 of the Report (Pgs. 232-233) this Court stated as under :

“………..This power of the Public Prosecutor in charge of the case is derived from statute and the guiding consideration for it, must be the interest of administration of justice. There can be no doubt that this function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interest of administration of justice. In the case of Public Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal Procedure, undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot be whittled down by the assertion that their engagement is purely professional between a client and his lawyer with no public element attaching to it.”
49. In State of U.P. and Others v. U.P. State Law Officers Association and Others[13], this Court, while distinguishing the judgment of this Court in Kumari Shrilekha Vidyarthi3 , observed that appointment of lawyers by the Government and the public bodies to conduct work on their behalf and their subsequent removal from such appointment have to be examined from three different angles, namely, the nature of the legal profession, the interest of the public and the modes of the appointment and removal. With regard to the legal profession, this Court said in paras 14 and 15 (pg. 216) as under:

“14. Legal profession is essentially a service-oriented profession. The ancestor of today’s lawyer was no more than a spokesman who rendered his services to the needy members of the society by articulating their case before the authorities that be. The services were rendered without regard to the remuneration received or to be received. With the growth of litigation, lawyering became a full-time occupation and most of the lawyers came to depend upon it as the sole source of livelihood. The nature of the service rendered by the lawyers was private till the Government and the public bodies started engaging them to conduct cases on their behalf. The Government and the public bodies engaged the services of the lawyers purely on a contractual basis either for a specified case or for a specified or an unspecified period. Although the contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work. This is so even today, though the lawyers on the full-time rolls of the Government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment.
15. The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his lawyer. The lawyer in turn is not an agent of his client but his dignified, responsible spokesman. He is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an adviser to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer’s discretion to choose the facts and the points of law which he would advance. Being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.”
50. In S.B. Shahane and Others v. State of Maharashtra and another[14], this Court held in para 12 (Pg. 43) as under:

“12. When Assistant Public Prosecutors are appointed under Section 25 of the Code for conducting prosecutions in courts of Magistrates in a district fairly and impartially, separating them from the police officers of the Police Department and freeing them from the administrative or disciplinary control of officers of the Police Department, are the inevitable consequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, inasmuch as, taking of such actions are statutory obligations impliedly imposed upon it under sub-section (3) thereof. When such consequential actions are taken by the State Government in respect of large number of persons appointed as Assistant Public Prosecutors, it becomes necessary for putting them on a separate cadre of Assistant Public Prosecutors and creating a separate Prosecution Department as suggested by the Law Commission in its Report making those Assistant Public Prosecutors subject to control of their superiors in the hierarchy in matters of administration and discipline, with the head of such Prosecution Department being made directly responsible to the State Government in respect of conduct of prosecutions by the Assistant Public Prosecutors of his department. Since the aforesaid notification dated 1-4-1974 issued by the Government of Maharashtra under Section 25 of the Code merely appoints the appellants and others, as mentioned in Schedule to the notification, the police prosecutors of the Police Department as Assistant Public Prosecutors without freeing such Assistant Public Prosecutors from the administrative and disciplinary control of the Police Department to which they belonged earlier, and without creating a separate department of prosecution for them with the head of that department or departments being made directly responsible to the Government, the Government of Maharashtra has failed to discharge its statutory obligation impliedly imposed upon it in that regard under sub-section (3) of Section 25 of the Code.”
51. In Sushma Suri6, a three-Judge Bench of this Court considered the meaning of the expression “advocate” occurring in Article 233 (2) of the Constitution and unamended Rule 49 of the BCI Rules. In paragraph 6 of the Report (Pg. 335) this Court held as under :

“6. If a person on being enrolled as an advocate ceases to practise law and takes up an employment, such a person can by no stretch of imagination be termed as an advocate. However, if a person who is on the rolls of any Bar Council is engaged either by employment or otherwise of the Union or the State or any corporate body or person practises before a court as an advocate for and on behalf of such Government, corporation or authority or person, the question is whether such a person also answers the description of an advocate under the Act. That is the precise question arising for our consideration in this case.” Then in paragraph 8 of the Report, this Court observed that for the purposes of the 1961 Act and the BCI Rules, a law officer (Public Prosecutor or Government Pleader) would continue to be an advocate. Not accepting the view of Delhi High Court in Oma Shanker Sharma v. Delhi Administration case (C.W.P. No. 1961 of 1987), this Court having regard to the object of recruitment under Article 233(2) held in paragraph 9 (Pg.
336):

“………To restrict it to advocates who are not engaged in the manner stated by us earlier in this order is too narrow a view, for the object of recruitment is to get persons of necessary qualification, experience and knowledge of life. A Government Counsel may be a Public Prosecutor or Government Advocate or a Government Pleader. He too gets experience in handling various types of cases apart from dealing with the officers of the Government. Experience gained by such persons who fall in this description cannot be stated to be irrelevant nor detrimental to selection to the posts of the Higher Judicial Service. The expression “members of the Bar” in the relevant Rule would only mean that particular class of persons who are actually practising in courts of law as pleaders or advocates. In a very general sense an advocate is a person who acts or pleads for another in a court and if a Public Prosecutor or a Government Counsel is on the rolls of the Bar Council and is entitled to practise under the Act, he answers the description of an advocate.” With regard to unamended Rule 49 of the BCI Rules, this Court held as under :
“10. Under Rule 49 of the Bar Council of India Rules, an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment. However, an exception is made in such cases of law officers of the Government and corporate bodies despite his being a full-time salaried employee if such law officer is required to act or plead in court on behalf of others. It is only to those who fall into other categories of employment that the bar under Rule 49 would apply. An advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate in terms of Rule 49 if the condition is that such advocate is required to act or plead in courts on behalf of the employer. The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all. What is of essence is as to what such law officer engaged by the Government does — whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer, then he ceases to be an advocate. If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression “advocate” as one who is actually practising before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.”
52. The authority most strongly relied on for the appellants is the decision of this Court in Sushma Suri6. Their contention is that the decision in Sushma Suri6 is on all fours irrespective of amendment in Rule 49 of the BCI Rules. On the other hand, the High Court has held – and the respondent (successful writ petitioner) supports the view of the High Court – that Rule 49 in the present form has altered the legal position and Sushma Suri6 has no application. We shall deal with this aspect a little later.
53. In Satish Kumar Sharma7, the facts were these : the appellant was initially appointed as Assistant (Legal) by the Himachal Pradesh State Electricity Board (for short, ‘Board’); the said post was re-designated as Law Officer Grade-II. Later on, the appellant was allowed to act as an advocate of the Board and, accordingly, his application seeking enrollment was sent by the Board to the Bar Council of Himachal Pradesh. The Bar Council of Himachal Pradesh communicated to the Board that the appellant did not meet the requirements of the Rules; he should be first designated as Law Officer and the order of appointment and the terms of such appointment be communicated. Consequent on the communication received from the Bar Council of Himachal Pradesh, the Board designated the appellant as Law Officer. The Bar Council of Himachal Pradesh issued a certificate of enrolment dated 9.7.1984 to the appellant. Subsequently, the appellant was given ad hoc promotion to the post of Under Secretary, (Legal)-cum-Law Officer and then promoted as Under Secretary, (Legal)-cum-Law Officer on officiating basis. Bar Council of Himachal Pradesh issued a notice to the appellant to show cause why his enrolment be not withdrawn. The appellant responded to the said notice. In the meanwhile, appellant was also promoted as Deputy Secretary (Legal)-cum-Law Officer on ad hoc basis. On 12.5.1996, the Bar Council of Himachal Pradesh passed an order withdrawing the enrolment of the appellant with immediate effect and directed him to surrender the enrolment certificate within 15 days therefrom. It was this resolution which was challenged by the appellant before the Himachal Pradesh High Court. However, he was unsuccessful before the High Court and he approached this Court. This Court referred to Sections 24, 28 and 49 of the 1961 Act and Rule 49 of the BCI Rules. This Court also considered the terms of appointment, nature of duties and service conditions relating to the appellant and in paragraph 17 (Pg. 377) of the Report noted as follows :

“17. Looking to the various appointment/promotion orders issued by the Board to the appellant and regulation of business relating to Legal Cell of the Board aforementioned, we can gather that:
(1) the appellant was a full-time salaried employee at the time of his enrolment as an advocate and continues to be so, getting fixed scales of pay;
(2) he is governed by the conditions of service applicable to the employees of the Board including disciplinary proceedings. When asked by us, the learned counsel for the appellant also confirmed the same;
(3) he joined the services of the Board as a temporary Assistant (Legal) and continues to head the Legal Cell after promotions, a wing in the Secretariat of the Board;
(4) his duties were/are not exclusively or mostly to act or plead in courts; and (5) promotions were given from time to time in higher pay scales as is done in case of other employees of the Board on the basis of recommendation of Departmental Promotion Committee.” 53.1. Then with regard to Rule 49 of the BCI Rules, this Court in paragraph 18 (pgs. 377-378) observed as under :

“18. On a proper and careful analysis, having regard to the plain language and clear terms of Rule 49 extracted above, it is clear that:
(i) the main and opening paragraph of the rule prohibits or bars an advocate from being a full-time salaried employee of any person, Government, firm, corporation or concern so long as he continues to practice and an obligation is cast on an advocate who takes up any such employment to intimate the fact to the Bar Council concerned and he shall cease to practice so long as he continues in such employment;
(ii) para 2 of the rule is in the nature of an exception to the general rule contained in main and opening paragraph of it. The bar created in para 1 will not be applicable to Law Officers of the Central Government or a State or any public corporation or body constituted by a statute, if they are given entitlement under the rules of their State Bar Council. To put it in other way, this provision is an enabling provision. If in the rules of any State Bar Council, a provision is made entitling Law Officers of the Government or authorities mentioned above, the bar contained in Rule 49 shall not apply to such Law Officers despite they being full-time salaried employees;
(iii) not every Law Officer but only a person who is designated as Law Officer by the terms of his appointment and who by the said terms is required to act and/or plead in courts on behalf of his employer can avail the benefit of the exception contained in para 2 of Rule 49.” 53.2. In paragraph 19, this Court noted that no rules have been framed by the Bar Council of Himachal Pradesh in respect of Law Officer appointed as a full time salaried employee and if there are no rules in this regard then there is no entitlement for enrolment and the appellant’s case could not fit in the exception of Rule 49 and the bar contained in the first paragraph of Rule 49 was attracted. It also noted that the appellant was/is a full time salaried employee and his work was not mainly or exclusively to act or plead in the Court. The decision in Sushma Suri6 was held to be of no help to the case of the appellant. In paragraph 23 (Pgs. 380-381), the Court observed that the work being done by the appellant was different from Prosecutors and Government Pleaders in relation to acting and pleading in court. This is what the Court said :

“23. We find no merit in the ground urged that the appellant was discriminated against the prosecutors and the government pleaders. The duties, nature of work and service conditions of the appellant, details of which are already given above, are substantially different from the duties and nature of work of prosecutors and government pleaders particularly in relation to acting and pleading in court. Thus the appellant stood on a different footing. The High Court in paras 24-26 has dealt with this aspect of the case and rightly rejected the argument based on the ground of discrimination.”
54. In State of U.P. & Another v. Johri Mal[15] , a three-Judge Bench of this Court while dealing with the nature of the office of the District Government Counsel, held in paras 71, 72, 73 and 74 (pgs.744-745) as under:

“71. The District Government Counsel appointed for conducting civil as also criminal cases hold offices of great importance. They are not only officers of the court but also the representatives of the State. The court reposes a great deal of confidence in them. Their opinion in a matter carries great weight. They are supposed to render independent, fearless and non-partisan views before the court irrespective of the result of litigation which may ensue.
72. The Public Prosecutors have greater responsibility. They are required to perform statutory duties independently having regard to various provisions contained in the Code of Criminal Procedure and in particular Section 320 thereof.
73. The Public Prosecutors and the Government Counsel play an important role in administration of justice. Efforts are required to be made to improve the management of prosecution in order to increase the certainty of conviction and punishment for most serious offenders and repeaters. The prosecutors should not be overburdened with too many cases of widely varying degrees of seriousness with too few assistants and inadequate financial resources. The prosecutors are required to play a significant role in the administration of justice by prosecuting only those who should be prosecuted and releasing or directing the use of non-punitive methods of treatment of those whose cases would best be processed.
74. The District Government Counsel represent the State. They, thus, represent the interest of the general public before a court of law. The Public Prosecutors while presenting the prosecution case have a duty to see that innocent persons may not be convicted as well as an accused guilty of commission of crime does not go unpunished. Maintenance of law and order in the society and, thus, to some extent maintenance of rule of law which is the basic fibre for upholding the rule of democracy lies in their hands. The Government Counsel, thus, must have character, competence, sufficient experience as also standing at the Bar. The need for employing meritorious and competent persons to keep the standard of the high offices cannot be minimised. The holders of the post have a public duty to perform. Public element is, thus, involved therein.”
55. In Mahesh Chandra Gupta v. Union of India and Others[16], with reference to the provisions contained in the Legal Practitioners Act, 1879, the 1926 Act and the 1961 Act, this Court observed as follows:

“66. Thus, it becomes clear from the legal history of the 1879 Act, the 1926 Act and the 1961 Act that they all deal with a person’s right to practise or entitlement to practise. The 1961 Act only seeks to create a common Bar consisting of one class of members, namely, advocates. Therefore, in our view, the said expression “an advocate of a High Court” as understood, both, pre and post 1961, referred to person(s) right to practise. Therefore, actual practise cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as “an advocate of the High Court”. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on “right to practise” and not actual practice.”
56. The Karnataka High Court in Mallaraddi H. Itagi and Others v. The High Court of Karnataka, Bangalore and Another[17] was, inter alia, concerned with the question whether the petitioners, who were working as either Assistant Public Prosecutors or Senior Assistant Public Prosecutors or Public Prosecutors, were eligible to be considered for appointment as District Judges under Article 233(2) of the Constitution and Rule 2 of Karnataka Judicial Services (Recruitment) Rules, 1983 (for short, ‘Karnataka Recruitment Rules’). The Division Bench of the High Court considered the relevant provisions and the decisions of this Court in Sushma Suri6 and Satya Narain Singh5. The High Court held that having regard to the provisions in the Karnataka Recruitment Rules, the petitioners were civil servants in the employment of the State Government and could not be treated as practicing advocates from the date they were appointed to the post of Assistant Public Prosecutors. The High Court took into consideration Rule 49 of the BCI Rules and held as under (Pg. 86-88):

“The petitioners 1 to 9 came to be appointed as Assistant Public Prosecutors/Senior Assistant Public Prosecutors/Public Prosecutors in terms of the Recruitment Rules framed by the State Government. Therefore, in terms of the main provision contained in Rule 49 of the Bar Council of India Rules, the petitioners on their appointment as Assistant Public Prosecutors ceased to be practising Advocates. Further, as noticed by us earlier, when once the petitioners had surrendered their Certificate of Practice and suspended their practice in terms of Rule 5 of the Bar Council of India Rules, it is not possible to take the view that they still continue to be practising Advocates. The rules which prescribe the qualification for appointment to the post of District Judges by direct recruitment provides that an applicant must be practising on the last date fixed for submission of application, as an Advocate and must have so practised for not less than 7 years as on such date. The case of Sushma Suri, supra, does not deal with the situation where the Law Officers had surrendered the Certificate of Practice and suspended their practice. The facts of that case indicates that the Hon’ble Supreme Court proceeded on the basis that the exception provided to Rule 49 of the Rules applies to the Law Officers in that case inasmuch as the Law Officers in those cases were designated by terms of their appointment as Law Officers for the purpose of appearing before the Courts on behalf of their employers. Therefore, facts of those cases are different from the facts of the case of petitioners 1 to 9. The rule similar to the one before us which provides that an Advocate must be a practising Advocate on the date of the submission of the application did not fall for consideration before the Hon’ble Supreme Court. The Delhi Higher Judicial Services Rules, 1970 did not provide that an Advocate should be a practising Advocate on the date of submission of his application. Under these circumstances, in our considered view, the observation made by the Hon’ble Supreme Court in the case of Sushma Suri, supra, at paragraph 8 of the judgment which is strongly relied upon by the learned Counsel for the petitioners wherein it is stated that “for purposes of the Advocates Act and the Rules framed thereunder the Law Officer (Public Prosecutor or Government Counsel) will continue to be an Advocate. The intention of the relevant rules is that a candidate eligible for appointment to the higher judicial service should be a person who regularly, practices before the Court or Tribunal appearing for a client” has no application to the facts of the present case. As noticed by us, the qualification prescribed for Assistant Public Prosecutor is three years of practice as an Advocate on the date of submission of application. The qualification prescribed for recruitment to the post of Munsiff, i.e., Civil Judge (Junior Division) is that an applicant, on the last date fixed for submission of application, must be a practising Advocate and must have practiced for not less than four years on the date of application; or who is working as an Assistant Public Prosecutor/Senior Assistant Public Prosecutor or as a Public Prosecutor in the Department of Prosecutions and must have so worked for not less than 4 years as on the date of application. Therefore, the Assistant Public Prosecutors/Senior Assistant Public Prosecutor/Assistant Public Prosecutor are made eligible for appointment only to the post of Munsiffs Civil Judge (Junior Division) under the Recruitment Rules. But, they are not made eligible under the Rules for appointment as District Judges. Therefore, when the Rule making Authority itself has not made the Assistant Public Prosecutor/Senior Assistant Public Prosecutor/Public Prosecutor as eligible for appointment to the post of District Judges, it is not permissible to treat the Assistant Public Prosecutor/Senior Assistant Public Prosecutor/Public Prosecutor as practising Advocates by judicial interpretation and by giving extended meaning to make them eligible for appointment to the post of District Judges.” With reference to the decision of this Court in Satya Narain Singh5 , the Karnataka High Court held as under (Pg. 88-89) :
“The Hon’ble Supreme Court in the case of Satya Narain Singh v. High Court of Judicature at Allahabad and Ors., 1985 (1) SCC 225, while interpreting Sub-clause (2) of Article 233 of the Constitution of India has taken the view that “a person not already in service of Union or of the State” shall mean only officers in judicial service and the Judicial Officers who are already in service are not eligible for appointment in respect of the post reserved for direct recruitment under Sub-clause (2) of Article 233 of the Constitution of India. Therefore, the Judicial Officers who are in the State services are ineligible for appointment in respect of direct recruitment vacancies. However, if the argument of the learned Counsel for petitioners is accepted as correct, the Assistant Public Prosecutor and Senior Assistant Public Prosecutor who are only made eligible under the Recruitment Rules to the post of Munsiffs which is the lowest cadre in the District Judiciary would be eligible for appointment to the post of District Judges in respect of the posts reserved for direct recruitment vacancies. In our view, the acceptance of such a position would lead to discrimination between the officers of the State who are in judicial services on the one hand and Assistant Public Prosecutors, Senior Assistant Public Prosecutors and Public Prosecutors on the other. While considering the contention of the learned Counsel for the petitioners that the Assistant Public Prosecutor/Senior Assistant Public Prosecutor/Public Prosecutors should be treated as practising Advocates, this Court cannot ignore the consequence of resultant incongruous situation, if such an argument is accepted. We are also unable to accede to the submission of the learned Counsel for the petitioners that so long as the names of the petitioners 1 to 9 are not removed from the Rolls of State Bar Council, the said petitioners would be practising Advocates. In our view, there is no merit in this submission. No doubt, Section 2(a) of the Advocates Act (hereinafter referred to as the “Act”) provides that “an ‘Advocate’ means an Advocate entered in any roll under the provisions of Advocates Act”. That does not mean the Advocate who has surrendered the Certificate of Practice to the State Bar Council and who has suspended his practice also can be treated either as an Advocate or as a practising Advocate. May be that once a Law graduate enrolls himself as an Advocate, his name finds a place in the Rolls of the State Bar Council till it is removed from the Rolls of the State Bar Council in terms of Clause (d) of Sub-section (3) of Section 35 of the Act. But, that does not mean a person who has suspended his practice on securing a full time appointment can still be considered as a practising Advocate. This conclusion of ours gets support from the Sub-section (4) of Section 35 of the Act wherein it is provided that where an Advocate is suspended from practice, during the period of suspension he is debarred from practising in any Court or before any authority or person in India. Therefore, if the object of surrendering Certificate of Practice and suspending the practice is to give up the right to practice before the Court; the petitioners 1 to 9 who were required to surrender the Certificate of Practice and who have so suspended their practice, cannot in our view, be held either as Advocates or as practising Advocates. In our view, during the period of suspension of practice, such a person ceases to be an Advocate; and continuance of his name on the Rolls of Bar Council is of no consequence so far as his right to practice is concerned and such a person cannot designate himself as an Advocate. Therefore, we are of the view that the petitioners 1 to 9 not being practising Advocates on the date of submission of their applications, they are not eligible for appointment as District Judges in terms of the qualification prescribed. Therefore, the Selection Committee has, in our view, rightly rejected the claim of the petitioners 1 to 9 for appointment as District Judges and they were rightly not called for interview. The petitioners cannot have any grievance on that account.”
57. The judgment of the Karnataka High Court in Mallaraddi H.
Itagi17 was challenged before this Court. This Court dismissed the appeals on 18.05.2009[18] and, upholding the judgment of the High Court, observed as follows:

“7. On that basis the Court came to the conclusion that the appellant therein was not liable to be considered as he was holding a regular post. In paragraph 19 it was observed:
“These orders clearly show that the appellant was required to work in the Legal Cell of the Secretariat of the Board; was given different pay scales; rules of seniority were applicable; promotions were given to him on the basis of the recommendations of the Departmental Promotion Committee; was amenable to disciplinary proceedings, etc. Further looking to the nature of duties of Legal Cell as stated in the regulation of business of the Board extracted above, the appellant being a full-time salaried employee had/has to attend to so many duties which appear to be substantial and predominant. In short and substance we find that the appellant was/is a full-time salaried employee and his work was not mainly or exclusively to act or plead in court.
Further, there may be various challenges in courts of law assailing or relating to the decisions/actions taken by the appellant himself such as challenge to issue of statutory regulation, notification, the institution/ withdrawal of any prosecution or other legal/quasi-legal proceedings etc. In a given situation the appellant may be amenable to disciplinary jurisdiction of his employer and/or to the disciplinary jurisdiction of the Bar Council. There could be conflict of duties and interest. In such an event, the appellant would be in an embarrassing position to plead and conduct a case in a court of law.
Moreover, mere occasional appearances in some courts on behalf of the Board even if they be, in our opinion, could not bring the appellant with the meaning of “Law Officer” in terms of para 3 of Rule 49.” and has also taken a view that in a situation like this the decision in Sushma Suri case is not applicable. We have no reason to take any different view, as had already been taken by this court, as the situation is not different. It is already considered before the High Court that the appellants were holding a regular post they were having the regular pay scale, they were considered for promotion, they were employed by the State Government Rules and therefore they were actually the Government servants when they made applications for the posts of District Judges.”
58. The decision of the Karnataka High Court in Mallaraddi H. Itagi17 and the judgment of this Court18 in the appeals from that decision have been heavily relied on by the respondent – successful writ petitioner.

59. Few decisions rendered by some of the High Courts on the point may also be noticed here. In Sudhakar Govindrao Deshpande11, the issue that fell for consideration before the Bombay High Court was whether the petitioner therein who was serving as Deputy Registrar at the Nagpur Bench of the Bombay High Court, was eligible for appointment to the post of the District Judge. The advertisement that was issued by the High Court inviting applications for five posts of District Judges, inter alia, stated, ‘candidate must ordinarily be an advocate or pleader who has practised in the High Court, Bombay or Court subordinate thereto for not less than seven years on the 1st October, 1980’. The Single Judge of the Bombay High Court considered Articles 233, 234 and 309 of the Constitution, relevant Recruitment Rules and noted the judgments of this Court in Chandra Mohan4, Satya Narain Singh5 and Rameshwar Dayal9. It was observed as follows:

“ . . . . . . . . the phrase “has been an Advocate or a pleader” must be interpreted as a person who has been immediately prior to his appointment a member of the Bar, that is to say either an Advocate or a pleader. In fact, in the above judgment, the Supreme Court has repeatedly referred to the second group of persons eligible for appointment under Article 233 (2) as “members of the Bar”. Article 233(2) therefore, when it refers to a person who has been for not less than seven years an Advocate or pleader refers to a member of the Bar who is of not less than seven years’ standing.”
60. In Smt. Jyoti Gupta v. Registrar General, High Court of M.P., Jabalpur and Another[19], Madhya Pradesh High Court was concerned with the question as to whether the Assistant Public Prosecutors were eligible to apply for appointment to the post of District Judges. The Madhya Pradesh High Court held as under :

“. . . . . . A careful reading of the note provided in the exception states that nothing in Rule 49 of the Bar Council of India Rules shall apply to a Law Officer of the Central Government, State Government or a body corporate who is entitled to be enrolled under the rules of the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 despite his being a full-time salaried employee. Hence, the exception to Rule 49 has been provided because of the provisions in the Rules of State Bar Council made under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 for a Law Officer of the Central Government or the State Government or a body corporate to be admitted into the roll of the State Bar Council if he is required by the terms of his appointment to act and/or plead in Courts on behalf of his employer. In other words, if the rules made by the State Bar Council under Section 28(2)(d) read with Section 24(1)(e) of the Advocates Act, 1961 provide for admission as an Advocate, enrolment in the State Bar Council as an Advocate or a Law Officer of the Central Government or the State Government or a body corporate, who, by the terms of his employment, is required to act and/or plead in Courts on behalf of his employer, he can be admitted as an Advocate and enrolled in the State Bar Council by virtue of the provisions of Sections 24(1)(e) and 28(2)(d) of the Advocates Act, 1961 and the rules made thereunder by the State Bar Council and he does not cease to be an Advocate on his becoming such Law Officer of the Central Government, State Government or a body corporate. As we have seen, the State Bar Council of M.P. has provided under Proviso(i) of Rule 143 that a Law Officer of the Central Government or a Government of State or a public corporation or a body constituted by a statute, who by the terms of his appointment, is required to act and/or plead in Courts on behalf of his employer, is qualified to be admitted as an Advocate even though he may be in full or part-time service or employment of such Central Government, State Government, public corporation or a body corporate. The position of law, therefore, has not materially altered after the deletion of the note contained in the exception under Rule 49 of the Bar Council of India Rules by the resolution of the Bar council of India, dated 22nd June, 2001.
…..
…..
…..
In the result, we hold that if a person has been enrolled as an Advocate under the Advocates Act, 1961 and has thereafter been appointed as Public Prosecutor/Assistant Public Prosecutor or Assistant District Public Prosecutor and by the terms of his appointment continues to conduct cases on behalf of the State Government before the Criminal Courts, he does not cease to be an Advocate within the meaning of Article 233(2) of the Constitution and Rule 7(1)(c) of M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, 1994 for the purpose of recruitment to the post of District Judge (Entry Level) in the M.P. Higher Judicial Service.”
61. In K. Appadurai v. The Secretary to Government of Tamil Nadu and Another[20], one of the questions under consideration before the Madras High Court was whether for appointment to the post of District Judge (Entry Level), the applications could have been invited from the Assistant Public Prosecutor (Grade I & II). The Division Bench of that Court referred to Article 233 of the Constitution, Rule 49 of the BCI Rules and the decisions of this Court in Satya Narain Singh5, Chandra Mohan4, Sushma Suri6, Johri Mal15 and Satish Kumar Sharma7. The Division Bench held as under:

“22. In the light of the ratio laid down by the Supreme Court in the decisions quoted hereinbefore, it can safely be concluded that the nature of duties of the Assistant Public Prosecutors is to act and plead in Courts of Law on behalf of the State as Advocates. Even after becoming Assistant Public Prosecutors they continue to practice as advocates and plead the cases on behalf of the Government and their names remained in the roll of advocates maintained by the Bar Council. As Public Prosecutors they acquired much experience in dealing criminal cases.
23. It was argued on behalf of the petitioners that the note appended to Rule 49 of the Bar Council of India Rules having been deleted by a resolution dated 22nd June, 2001 of the Bar Council of India, the ratio decided by the Supreme Court in Sushma Suri Case (supra) will not apply, and therefore, an advocate who is employed as a full time salaried employee of the government, ceases to practice as an advocate so long as he continues in such employment. The submission made by the counsel has no substance.
24. As noticed above, Rule 49 of the Bar Council of India Rules provides an exception where in case of Law Officers of the government and corporate bodies, despite they being employed by the government as Law Officers, they cannot cease to be advocates so long as they are required to plead in the courts. For example, Assistant Public Prosecutors so appointed by the government on payment of salary their only nature of work is to act, plead and defend on behalf of the State as an advocate. Hence, an advocate employed by the government as Law Officer namely, an Assistant Public Prosecutor on terms of payment of salary would not cease to be an advocate in terms of Rule 49 of the Bar Council of India Rules for the purpose of appointment, as such advocate is required to act or plead in courts on behalf of the State. If, in terms of the appointment, an advocate is made a Law Officer on payment of salary to discharge his duties at the Secretariat and handle the legal files, he ceased to be an advocate. In our considered opinion, therefore, the deletion of the note appended to under Rule 49 of the Bar Council of India Rules will not in any way affect the legal proposition of law. We are also of the view that in the light of the relevant clauses of the Advocates Act, 1961 it will not debar the Assistant Public Prosecutors to continue and plead in courts as an advocate.”
62. In Biju Babu10 , the question before the Kerala High Court was whether the appellant, who was a Public Prosecutor appointed by the Central Government to conduct cases for the C.B.I., was eligible for appointment to the post of District Judge in the Kerala State Higher Judicial Service by direct recruitment. The High Court answered the question in the negative mainly relying on amended Rule 49 of the BCI Rules and the legal position stated by this Court in Satish Kumar Sharma7.

63. Two more judgments of this Court may be quickly noticed here. In State of U.P. v. Ramesh Chandra Sharma and others[21], this Court stated that the appointment of any legal practitioner as a District Government Counsel is only professional engagement. A two-Judge Bench of this Court in Samarendra Das, Advocate v. State of West Bengal and others[22] was concerned with the question whether the post of Assistant Public Prosecutor was a civil post under the State of West Bengal in terms of Section 15 of the Administrative Tribunals Act 1985. While answering the above question in the affirmative, this Court held that the post of Assistant Public Prosecutor was a civil post. The Court negated the argument that the Assistant Public Prosecutor was an officer of the Court of Judicial Magistrate.

64. After the arguments were concluded in these matters and the judgment was reserved, Respondent No. 1 (original writ petitioner) has circulated a judgment of the Bombay High Court in Sunanda Bhimrao Chaware & Ors. v. The High Court of Judicature at Bombay, delivered on 17.10.2012 by the Full Bench of that Court. We are not inclined to consider this judgment for two reasons. One, the appellants had no occasion to respond to or explain that judgment. Secondly, and equally important, the aggrieved parties by that judgment, who are not before us, may be advised to challenge the judgment. We do not intend to foreclose the rights of the parties one way or the other.

65. Section 24 Cr.P.C. provides that for every High Court the Central Government or the State Government shall appoint a Public Prosecutor. The Central Government or the State Government may also appoint one or more Additional Public Prosecutor for conducting in such court, any prosecution, appeal or other proceedings on their behalf. The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area. Insofar as State Government is concerned it provides that for every district it shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district. There are two modes of appointment of the Public Prosecutors, one, preparation of a panel of names of persons, who in the opinion of the District Magistrate after consultation with the Sessions Judge, are fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. The other, appointment of Public Prosecutor or an Additional Public Prosecutor from amongst the persons in a State where exists regular cadre of prosecuting officers. A person is eligible to be appointed as Public Prosecutor only if he has been in practise as an advocate for not less than seven years. Special Public Prosecutor may also be appointed by the Central or the State Government for the purpose of any case or class of cases but he has to be a person who has been in practise as an advocate for not less than 10 years.

66. Public Prosecutor has a very important role to play in the administration of justice and, particularly, in criminal justice system. Way back on April 15, 1935 in Harry Berger v. United States of America[23] , Mr. Justice Sutherland, who delivered the opinion of the Supreme Court of United States, said about the United States Attorney that he is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. The twofold aim of United States Attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.

67. The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, adopted guidelines on the role of Prosecutors in 1990. Inter-alia, it states that Prosecutors shall perform their duties fairly, consistently and expeditiously and respect and protect human dignity and uphold human rights. He shall take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect.

68. As a follow up action to the above guidelines on the role of Prosecutors, the International Association of Prosecutors adopted Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which, inter-alia, provides that Prosecutors shall strive to be, and to be seen to be, consistent, independent and impartial; Prosecutors shall preserve the requirements of a fair trial and safeguard the rights of the accused in co-operation with the Court.

69. European Guidelines on Ethics and Conduct for Public Prosecutors [The Budapest Guidelines] adopted in the Conference of Prosecutors General of Europe on 31st May, 2005 are on the same lines as above. Under the head “professional conduct in the framework of criminal proceedings”. These guidelines state that when acting within the framework of criminal proceedings, Public Prosecutor should at all times carry out their functions fairly, impartially, objectively and, within the framework of the provisions laid down by law, independently; seek to ensure that the criminal justice system operates as expeditiously as possible, being consistent with the interests of justice; respect the principle of the presumption of innocence and have regard to all relevant circumstances of a case including those affecting the suspect irrespective of whether they are to the latter’s advantage or disadvantage.

70. In India, role of Public Prosecutor is no different. He has at all times to ensure that an accused is tried fairly. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a Prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it is stated that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent; he should scrupulously avoid suppression of material capable of establishing the innocence of the accused.

71. A two Judge Bench of this Court in Mukul Dalal2, while dealing with a question about the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under Sections 24 and 25 Cr.P.C. respectively, observed that in criminal jurisprudence the State was a prosecutor and that is why primary position is assigned to the Public Prosecutor.

72. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)[24], the Court considered role of Public Prosecutor vis-à-vis his duty of disclosure. The Court noted earlier decisions of this Court in Shiv Kumar v. Hukam Chand and Another[25] and Hitendra Vishnu Thakur and Others v. State of Maharashtra and others[26] and in paragraphs 185 and 186 (Pgs. 73-74) of the Report stated as under :

“185. A Public Prosecutor is appointed under Section 24 of the Code of Criminal Procedure. Thus, Public Prosecutor is a statutory office of high regard. This Court has observed the role of a Prosecutor in Shiv Kumar v. Hukam Chand [(1999) 7 SCC 467] as follows: (SCC p. 472, para
13) “13. From the scheme of the Code the legislative intention is manifestly clear that prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness in the trial of an accused in a Sessions Court. A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the force and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the Public Prosecutor.
186. This Court has also held that the Prosecutor does not represent the investigating agencies, but the State. This Court in Hitendra Vishnu Thakur v. State of Maharashtra [(1994) 4 SCC 602] held: (SCC pp. 630-31, para 23) “23. … A Public Prosecutor is an important officer of the State Government and is appointed by the State under the Criminal Procedure Code. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation.” Then in paragraph 187 (Pg. 74) the Court stated as follows :

“187. Therefore, a Public Prosecutor has wider set of duties than to merely ensure that the accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the Prosecutor to be lax in any of his duties as against the accused.”
73. In a recent decision in Centre for Public Interest Litigation and others v. Union of India and others[27], the question before this Court was in respect of the appointment of a Special Public Prosecutor to conduct the prosecution on behalf of CBI and ED in 2G Spectrum case. While dealing with the above question, the Court considered Section 2(u) and Section 24 Cr.P.C. and Section 46 of the Prevention of Money-Laundering Act, 2002 and few earlier decisions of this Court in Manu Sharma24, Sheonandan Paswan v. State of Bihar and Others[28] and Johri Mal15 and it was observed that in an appointment of Public Prosecutor, the principle of master-servant does not apply; such an appointment is not an appointment to a civil post.

74. The mode of appointment of Public Prosecutor (including Additional Public Prosecutor and Special Public Prosecutor) under Section 24 Cr.P.C. and the mode of appointment of Assistant Public Prosecutor under Section 25 Cr.P.C. significantly differ. There is qualitative difference in the role and position of Public Prosecutor and Assistant Public Prosecutor. As a matter of law, Assistant Public Prosecutor is not included in the definition of ‘Public Prosecutor’ under Section 2(u) Cr.P.C. In Samarendra Das22, this Court held that the post of Assistant Public Prosecutor was a civil post. This position was accepted by a three-Judge Bench of this Court in Johri Mal15. It was stated in Johri Mal15, “….a distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on the one hand and Assistant Public Prosecutor on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the State……” As regards ‘Public Prosecutor’, this Court has consistently held that though Public Prosecutor is a holder of ‘public office’ and he holds a ‘post’ yet he is not in government service as the term is usually understood. Despite these differences, for the purposes of Article 233(2) there is not much difference in a Public Prosecutor and an Assistant Public Prosecutor and both of them are covered by the expression ‘advocate’. It is so for more than one reason. In the first place, a Public Prosecutor under Section 24 is appointed by the State Government or the Central Government for conduct of prosecution, appeal or other proceeding on its behalf in the High Court or for a district and Assistant Public Prosecutor is appointed under Section 25 by the State Government or the Central Government to conduct prosecution on its behalf in the courts of Magistrates. So the main function of the Public Prosecutor as well as Assistant Public Prosecutor is to act and/or plead on behalf of the Government in a court; both of them conduct cases on behalf of the government. Secondly and remarkably, for the purposes of counting experience as an advocate as prescribed in sub-sections 24(7) and 24(8), the period, during which a person has rendered service as a Public Prosecutor or as Assistant Public Prosecutor, is treated as being in practice as an advocate under Section 24(9) Cr.P.C. In other words, the rendering of service as a Public Prosecutor or as Assistant Public Prosecutor is deemed to be practice as an advocate.

75. The three appellants namely, Deepak Aggarwal, Chandra Shekhar and Desh Raj Chalia, at the time of their application, were admittedly working as Assistant District Attorney. They were appointed under the Haryana State Prosecution Legal Service (Group C) Rules, 1979 (for short, ‘1979 Rules’). The relevant Rules read as under :

“2. Definitions.—In these rules, unless the context otherwise requires:-
2(a) xxx xxx xxx 2(b) “direct recruitment” means an appointment made otherwise than by promotion or by transfer of an official already in the service of the Government of India or any State Government; xxx xxx xxx
6. Appointing Authority.—Appointment to the posts in the service shall be made by the Director.
xxx xxx xxx
9. Method of Recruitment.-(1) Recruitment to the Service shall be made:-
(i) by direct recruitment; or
(ii) by promotion; or xxx xxx xxx
11. Seniority of Members of the service.-The seniority inter se of members of the Service shall be determined by the length of their continuous service on any post in the Service.
Provided that in the case of members appointed by direct recruitment, the order of merit determined by the Commission or any other recruiting authority shall not be disturbed in fixing the seniority:
Provided further that in the case of two or more members appointed on the same date, their seniority shall be determined as follows:
(a) a member appointed by direct recruitment shall be senior to a member appointed by promotion or by transfer; xxx xxx xxx
12. Liability to serve.-(1) A member of the Service shall be liable to serve at any place whether within or outside the State of Haryana, on being ordered so to do by the appointing authority;
(2) A member of the Service may also be deputed to serve under,-
(i) a company, an association or a body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government, a Municipal Committee or a local authority, within the State of Haryana;
(ii) the Central Government or a company an association or a body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government; or
(iii) any other State Government, an international organisation, an autonomous body not controlled by the Government or a private body;
Provided that no member of the service shall be deputed to the Central or any other State Government or any organisation or body referred to in clause (ii) and clause
(iii) except with his consent.
13. Leave, pension or other matters.-xxx xxx (2) No member of the Service shall have the right of private practice.
14. Discipline, penalties and appeals.—(1) in matters relating to discipline, penalties and appeals, members of the Service shall be governed by the Punjab Civil Services (Punishment and Appeal) Rules, 1952, as amended from time to time:
Provided that the nature of penalties which may be imposed, the authority empowered to impose such penalties and appellate authority shall, subject to the provisions of any law or rules made under Article 309 of the Constitution of India, be such as are specified in Appendix C to these rules.
(2) The authority competent to pass an order under clause
(c) or clause (d) of sub-rule (1) of rule 10 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, as amended from time to time, shall be as specified in Appendix ‘D’ to these rules.” 75.1. Appendix ‘B’ appended to the 1979 Rules provided for qualification and experience for Assistant District Attorney. It reads as follows :
“APPENDIX B” (See Rule 7) Qualifications and Experience Designation of post ……………………………………………………………………………… For Promotion/transfer For direct recruitment Assistant District Attorney (i) Degree of Bachelor of Law of (i) Degree of Bachelor of Law a recognised university; and of recognised university;
and

(ii)who has practiced at
the bar
ii) who has worked – for a period of not
less than
(a) for a period of not less than two
years
five years, as Assistant in any
post in the equivalent or higher
scale in any Government office;
or

(b) for a period of not less than three
years on an assignment
(not less than that of an Assistant;
involving legal work to any
Government office.”
—————————————————————————-
——————————————————-
76. Of the other appellants, Rajesh Malhotra at the time of making application was Public Prosecutor in the office of CBI. His services were governed by the General Rules and CBI (Legal Advisers and Prosecutors) Recruitment Rules, 2002. It is not necessary to refer to these Rules in detail. Suffice it to say that a Public Prosecutor in CBI is appointed by Union Public Service Commission by direct recruitment or by promotion from in-service Assistant Public Prosecutors or by deputation from in-service government servants. Service conditions which are applicable to any government servant or a member of civil service are applicable to such Public Prosecutor. Insofar as Dinesh Kumar Mittal is concerned, admittedly he was working as Deputy Advocate General in the State of Punjab at the time of his application. In the impugned judgment, he has been held to be full-time employee of the Punjab Government.

77. We do not think there is any doubt about the meaning of the expression “advocate or pleader” in Article 233(2) of the Constitution. This should bear the meaning it had in law preceding the Constitution and as the expression was generally understood. The expression “advocate or pleader” refers to legal practitioner and, thus, it means a person who has a right to act and/or plead in court on behalf of his client. There is no indication in the context to the contrary. It refers to the members of the Bar practising law. In other words, the expression “advocate or pleader” in Article 233(2) has been used for a member of the Bar who conducts cases in court or, in other words acts and/or pleads in court on behalf of his client. In Sushma Suri6, a three-Judge Bench of this Court construed the expression “members of the Bar” to mean class of persons who were actually practising in courts of law as pleaders or advocates. A Public Prosecutor or a Government Counsel on the rolls of the State Bar Council and entitled to practice under the 1961 Act was held to be covered by the expression ‘advocate’ under Article 233(2). We respectfully agree.

78. In U.P. State Law Officers Association13, this Court stated that though the lawyers of the Government or a public body on the full-time rolls of the government and the public bodies are described as their law officers, but nevertheless they are professional practitioners. It is for this reason, the Court said that the Bar Council of India in Rule 49 of the BCI Rules (in its original form) in the saving clause waived the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment. In Sushma Suri6, a three-Judge Bench of this Court while considering the meaning of the expression “advocate” in Article 233(2) of the Constitution and unamended Rule 49 of the BCI Rules held that if a person was on the rolls of any Bar Council and is engaged either by employment or otherwise by the Union or State and practises before a court as an advocate for and on behalf of such Government, such person does not cease to be an advocate. This Court went on to say that a Public Prosecutor or a Government Counsel on the rolls of the Bar Council is entitled to practice. It was laid down that test was not whether such person is engaged on terms of salary or by payment of remuneration but whether he is engaged to act or plead on its behalf in a court of law as an advocate. The terms of engagement do not matter at all and what matters is as to what such law officer engaged by the Government does – whether he acts or pleads in court on behalf of his employer or otherwise. If he is not acting or pleading on behalf of his employer then he ceases to be an advocate; if the terms of engagement are such that he does not have to act or plead but does other kinds of work then he becomes a mere employee of the Government or the body corporate. The functions which the law officer discharges on his engagement by the Government were held decisive. We are in full agreement with the above view in Sushma Suri6.

79. While referring to unamended Rule 49, this Court in Sushma Suri6 said that Bar Council of India had understood the expression “advocate” as one who is actually practising before courts which expression would include even those who are law officers employed as such by the Government or a body corporate.

80. Have the two subsequent decisions in Satish Kumar Sharma7 and Mallaraddi H. Itagi18 differed from Sushma Suri6? Is there any conflict or inconsistency in the three decisions? Satish Kumar Sharma7 and Mallaraddi H. Itagi18 are the two decisions on which very heavy reliance has been placed on behalf of the successful writ-petitioners (respondents). In Satish Kumar Sharma7, which has been elaborately noted in the earlier part of the judgment, this Court found from the appointment/promotion orders in respect of the appellant therein that he was required to work in the legal cell of the Secretariat of the Board. Central to the entire reasoning in Satish Kumar Sharma7 is that being a full-time salaried employee he had/has to attend many duties and his work was not mainly and exclusively to act or plead in court. Mere occasional appearances on behalf of the Board in some courts were not held to be sufficient to bring him within the meaning of expression ‘Law Officer’. In the backdrop of nature of the office that the appellant therein held and the duties he was required to perform and in the absence of any rules framed by the State Bar Council with regard to enrolment of a full time salaried Law Officer, he was held to be not entitled for enrolment and the exception set out in paragraphs 2 and 3 of unamended Rule 49 of the BCI Rules was not found to be attracted. In Satish Kumar Sharma7, this Court did apply the test that was enunciated in Sushma Suri6 viz., whether a person is engaged to act and/or plead in a court of law to find out whether he is an advocate. In Satish Kumar Sharma7 when this Court observed with reference to Chapter II of the BCI Rules that an advocate has a duty to the court, duty to the client, duty to the opponent and duty to the colleagues unlike a full time salaried employee whose duties are specific and confined to his employment, the Court had in mind such full-time employment which was inconsistent with practice in law. In para 23 of the judgment in Satish Kumar Sharma7, pertinently this Court observed that the employment of appellant therein as a head of legal cell in the Secretariat of the Board was different from the work of the Prosecutors and Government Pleaders in relation to acting and pleading in Court. On principle of law, thus, it cannot be said that there is any departure in Satish Kumar Sharma7 from Sushma Suri6.

81. In Mallaraddi H. Itagi18, the appellants were actually found to be government servants when they made applications for the post of District Judges. The High Court in its judgment in Mallaraddi H. Itagi17 had noticed that the appellants had surrendered their certificate of practice and suspended their practice on their appointment as Assistant Public Prosecutors/Senior Assistant Public Prosecutors/Public Prosecutors in terms of Karnakata Recruitment Rules. It was on this basis that Karnataka High Court held that Sushma Suri6 was not applicable to the case of the appellants. There is consonancy and congruity with the decisions of this Court in Sushma Suri6, Satish Kumar Sharma7 and Mallaraddi H. Itagi18 and, in our opinion, there is no conflict or inconsistency on the principle of law.

82. In none of the other decisions viz., Mundrika Prasad Sinha1, Mukul Dalal2 and Kumari Shrilekha Vidyarthi3, it has been held that a Government Pleader or a Public Prosecutor or a District Government Counsel, on his appointment as a full-time salaried employee subject to the disciplinary control of the Government, ceases to be a legal practitioner. In Kumari Shrilekha Vidyarthi3 while dealing with the office of District Government Counsel/ Additional District Government Counsel, it was held that the Government Counsel in the district were law officers of the State which were holders of an ‘office’ or ‘post’ but it was clarified that a District Government Counsel was not to be equated with post under the government in strict sense. In Ramesh Chandra Sharma21, this Court reiterated that the appointment of any legal practitioner as a District Government Counsel is only a professional engagement.

83. However, much emphasis was placed on behalf of the contesting respondents on Rule 49 of the BCI Rules which provides that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears, and shall thereupon cease to practice as an advocate so long as he continues in such employment. It was submitted that earlier in Rule 49 an exception was carved out that a ‘Law Officer’ of the Central Government or of a State or of a body corporate who is entitled to be enrolled under the rules of State Bar Council shall not be affected by the main provision of Rule 49 despite his being a full time salaried employee but by Resolution dated 22.6.2001 which was published in the Gazette on 13.10.2001, the Bar Council of India has deleted the said provision and hence on and from that date a full time salaried employee, be he Public Prosecutor or Government Pleader, cannot be an advocate under the 1961 Act.

84. Admittedly, by the above resolution of the Bar Council of India, the second and third para of Rule 49 have been deleted but we have to see the effect of such deletion. What Rule 49 of the BCI Rules provides is that an advocate shall not be a full time salaried employee of any person, government, firm, corporation or concern so long as he continues to practice. The ‘employment’ spoken of in Rule 49 does not cover the employment of an advocate who has been solely or, in any case, predominantly employed to act and/or plead on behalf of his client in courts of law. If a person has been engaged to act and/or plead in court of law as an advocate although by way of employment on terms of salary and other service conditions, such employment is not what is covered by Rule 49 as he continues to practice law but, on the other hand, if he is employed not mainly to act and/or plead in a court of law, but to do other kinds of legal work, the prohibition in Rule 49 immediately comes into play and then he becomes a mere employee and ceases to be an advocate. The bar contained in Rule 49 applies to an employment for work other than conduct of cases in courts as an advocate. In this view of the matter, the deletion of second and third para by the Resolution dated 22.6.2001 has not materially altered the position insofar as advocates who have been employed by the State Government or the Central Government to conduct civil and criminal cases on their behalf in the courts are concerned.

85. What we have said above gets fortified by Rule 43 of the BCI Rules. Rule 43 provides that an advocate, who has taken a full-time service or part-time service inconsistent with his practising as an advocate, shall send a declaration to that effect to the respective State Bar Council within time specified therein and any default in that regard may entail suspension of the right to practice. In other words, if full-time service or part-time service taken by an advocate is consistent with his practising as an advocate, no such declaration is necessary. The factum of employment is not material but the key aspect is whether such employment is consistent with his practising as an advocate or, in other words, whether pursuant to such employment, he continues to act and/or plead in the courts. If the answer is yes, then despite employment he continues to be an advocate. On the other hand, if the answer is in negative, he ceases to be an advocate.

86. An advocate has a two-fold duty: (1) to protect the interest of his client and pursue the case briefed to him with the best of his ability, and (2) as an officer of the Court. Whether full-time employment creates any conflict of duty or interest for a Public Prosecutor/Assistant Public Prosecutor? We do not think so. As noticed above, and that has been consistently stated by this Court, a Public Prosecutor is not a mouth- piece of the investigating agency. In our opinion, even though Public Prosecutor/Assistant Public Prosecutor is in full-time employ with the government and is subject to disciplinary control of the employer, but once he appears in the court for conduct of a case or prosecution, he is guided by the norms consistent with the interest of justice. His acts always remain to serve and protect the public interest. He has to discharge his functions fairly, objectively and within the framework of the legal provisions. It may, therefore, not be correct to say that an Assistant Public Prosecutor is not an officer of the court. The view in Samarendra Das22 to the extent it holds that an Assistant Public Prosecutor is not an officer of the Court is not a correct view.

87. The Division Bench has in respect of all the five private appellants – Assistant District Attorney, Public Prosecutor and Deputy Advocate General – recorded undisputed factual position that they were appearing on behalf of their respective States primarily in criminal/civil cases and their appointments were basically under the C.P.C. or Cr.P.C. That means their job has been to conduct cases on behalf of the State Government/C.B.I. in courts. Each one of them continued to be enrolled with the respective State Bar Council. In view of this factual position and the legal position that we have discussed above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative. The Division Bench committed two fundamental errors, first, the Division Bench erred in holding that since these appellants were in full-time employment of the State Government/Central Government, they ceased to be ‘advocate’ under the 1961 Act and the BCI Rules, and second, that being a member of service, the first essential requirement under Article 233(2) of the Constitution that such person should not be in any service under the Union or the State was attracted. In our view, none of the five private appellants, on their appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each one of them continued to be ‘advocate’, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2). The view of the Division Bench is clearly erroneous and cannot be sustained.

88. As regards construction of the expression, “if he has been for not less than seven years an advocate” in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of ‘has been’. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application.

89. Rule 11 of the HSJS Rules provides for qualifications for direct recruits in Haryana Superior Judicial Service. Clause (b) of this rule provides that the applicant must have been duly enrolled as an advocate and has practised for a period not less than seven years. Since we have already held that these five private appellants did not cease to be advocate while working as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, the period during which they have been working as such has to be considered as the period practising law. Seen thus, all of them have been advocates for not less than seven years and were enrolled as advocates and were continuing as advocates on the date of the application.

90. We, accordingly, hold that the five private appellants (Respondent Nos. 9,12,13,15 and 18 in CWP No. 9157/2008 before the High Court) fulfilled the eligibility under Article 233(2) of the Constitution and Rule 11(b) of the HSJS Rules on the date of application. The impugned judgment as regards them is liable to be set aside and is set aside.

91. Appeals are allowed as above with no order as to costs.

(R.M. Lodha)

(Anil R. Dave)

(Ranjan Gogoi)

NEW DELHI

JANUARY 21, 2013.

———————–

[1] AIR 1979 SC 1871
[2] (1988) 3 SCC 144
[3] (1991) 1 SCC 212
[4] AIR 1966 SC 1987
[5] (1985) 1 SCC 225
[6] (1999) 1 SCC 330
[7] (2001) 2 SCC 365
[8] (2003) 6 SCC 171
[9] AIR 1961 SC 816
[10] (2008) Labour & Industrial Cases 1784
[11] (1986) Labour & Industrial Cases 710
[12] AIR (1995) Allahabad 148
[13] (1994) 2 SCC 204
[14] 1995 Supp (3) SCC 37
[15] (2004) 4 SCC 714
[16] (2009) 8 SCC 273
[17] 2002 (4) Karnataka Law Journal 76
[18] Civil Appeal Nos. 947-956 of 2003, Mallaraddi H. Itagi and Ors. v. High Court of Karnataka and Ors.

[19] 2008 (2) MPLJ 486
[20] 2010-4-L.W.454
[21] (1995) 6 SCC 527
[22] (2004) 2 SCC 274
[23] 295 U.S. 78
[24] (2010) 6 SCC 1
[25] (1999) 7 SCC 467
[26] (1994) 4 SCC 602
[27] (2012) 3 SCC 117
[28] (1987) 1 SCC 288

———————–

 

Law Cell under Home Department , Govt of West Bengal

West Bengal

Law Cell:

  • All Court matters including legal opinion, engagement of State Advocates, Preparation of Statement of Fact etc.,
  • Matters relating to Advocate General/ Legal Remembrance/ Government Pleader/ Public Prosecutor/ Secretary, Law Department/ Secretary, Judicial Department,
  • Police firing cases/ Magisterial Enquiries,
  • Departmental Proceedings /Appeal matters,

Prosecution Code

A. Introduction

Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test , they should swiftly stop cases which do not meet the evidential stage of the testing which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution. Although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help inform the prosecutor’s decision. [see the code for crown prosecutors]


B. CrPC 25A: Section 25A of the Criminal Procedure Code

Directorate of Prosecution
  1. The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
  2. A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court.
  3. The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State.
  4. Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
  5. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-Section (1), or as the case may be, Sub-Section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
  6. Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under Sub-Section (3), or as the case may be, Sub-Section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under Sub-Section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.
  7. The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify.
  8. The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.

 

Bail guidelines for Defendants in UK

England-min

  1. Introduction
  2. Police Bail
    Pre-Charge
    Post Charge
    Variation of police imposed bail conditions
  3. The Right to Bail
    Exclusions to the right to bail
    Exceptions to the right to bail
  4. Opposing Bail: Information for prosecutors
    Victims and Witnesses
    Opposing Bail: Procedure
  5. Conditions of Bail
    General
    Types of Condition
    Credit for period of remand on bail with an electronic tag
    Youths
    Variation/Appeal
  6. Reconsideration of Bail
  7. Breach of Conditions of Bail
  8. Remands into Custody
  9. Length of Remand into Custody
    Appearance by Live Link
    Warrants of further detention – pre charge: s. 43 PACE
    Detention in a police station – post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)
    Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988
    Technical Bail
    Youth Remands
    Mentally Disordered Offenders
  10. Appeals in relation to Grant of Bail
    By the Prosecutor
    By the Defence
    Failure to Surrender
    Commencing a prosecution
    Evidential Considerations
    Reasonable Cause (excuse)
    Public Interest Considerations
    Procedure
  11. Bail Applications involving the Official Solicitor
  12. File Endorsements

Introduction

The decisions on bail, in criminal proceedings, represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for victims of crime and the public in general.

From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time.

It is for these reasons that the Crown Prosecution Service has included the way in which these decisions are made as a benchmark of the quality of our case management and preparation in our Casework Quality Standards.

A benchmark of the quality of CPS case preparation is that we are:

“Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in accordance with the national standard.”

Custody Time Limits are dealt with elsewhere in the Legal Guidance.

A benchmark of the quality of CPS case presentation is that we are:

“Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice.”

It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail. It is also vital that the reasons for opposing bail, representations made by the Defence and the decisions of courts are recorded on the case file or CMS.

These standards and much of the guidance below will apply whether the question of bail is before a magistrates’ court, a Youth Court, a Crown Court or the High Court.

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Police Bail
Pre-Charge
This can be imposed:

Where there is as yet insufficient evidence to charge a suspect and he is released pending further investigation (ss. 37(2), 34(2) and 34(5) of the Police and Criminal Evidence Act 1984 (PACE)).

Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning, yet the police are not in a position to charge, the suspect must be released, but it is open to the police to release him on bail where there is a need for further investigation of any matter for which he was detained.

Where s. 37(2) PACE is cited and the custody officer has authorised the release of the suspect, having determined that there is currently insufficient evidence to charge, he may be released pending the obtaining of further evidence and conditions of bail can be attached where necessary to prevent the suspect from failing to surrender, offending on bail, interfering with prosecution witnesses or otherwise obstructing the course of justice, or for his own protection. Where s. 34 PACE is cited (for example, where detailed and lengthy investigation is required and no assessment of the evidence can be made), no conditions of bail can be imposed – see R (on an application by Torres) v Metropolitan Police Commissioner [2007] EWHC 3212.
Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s. 37(7)(a) PACE).

See s.37B PACE and the Director’s Guidance on Charging for guidance and procedure relating to the provision of charging advice by the CPS.

In order to obtain this advice, the police may release a suspect on bail to return to the police station at a future date and may impose conditions on that bail (s. 47(1A) PACE. Such advice will normally be provided under the Full Code Test of the Code for Crown Prosecutors prior to the suspect’s return.
Under the Code for Crown Prosecutors the Threshold Test may only be applied where the prosecutor is satisfied that all of the following four requirements are met:

there is insufficient evidence currently available to apply the evidential stage of the Full Code Test, and
there are reasonable grounds for believing that further evidence will become available within a reasonable period, and
the seriousness or the circumstances of the case justifies the making of an immediate charging decision, and;
there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and, in all the circumstances of the case, an application to withhold bail may be properly made.
Accordingly the Threshold Test may only be used to charge a suspect who is to be detained in custody to allow evidence to be gathered in order to meet the Full Code Test. Where a suspect is considered eligible for bail pending the obtaining of further evidence, the Threshold Test is not appropriate.

Breach of pre-charge bail conditions

The police have a power of arrest where an officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached (s. 46A(1A) PACE).

Once in detention, the custody officer will determine whether the suspect can be charged (s. 37C(2)(a) PACE). If authorisation to charge has been provided, the arrested person can be charged in accordance with that advice. If authorisation has not been given, then this can be sought whilst the suspect is detained. The breach of bail conditions may necessitate the Threshold Test being applied, where previously, the grounds for applying this test were not met.

If a charge is not authorised, the suspect can be released without charge, either on bail or without bail (s. 37C(2)(b) PACE). Section 37C(4) states that if a person is released on bail under s. 37C(2)(b), then that person shall be subject to whatever conditions applied immediately before his arrest for breach. There is no power to vary the conditions of bail that previously applied.

Post Charge

Where there is sufficient evidence and the suspect is charged with an offence (s. 37(7)(d) PACE), the police can keep him in detention or release him on bail to appear at court at a future date and may impose conditions on that bail (s. 47(1A) PACE). It should be noted that (either pre or post charge) the police cannot impose conditions on a suspect:

to reside at a bail hostel;
to attend an interview with a legal adviser;
to make him or herself available for enquiries and reports;
that contain electronic monitoring requirements.
Breach of post charge bail conditions

The procedure for dealing with breach of police imposed bail conditions that are in place prior to the first court appearance matches the procedure for dealing with breaches of court imposed conditions – see below.

Variation of police imposed bail conditions
Conditions imposed by a custody officer may be varied by:

The same custody officer or another custody officer serving at the same police station on receipt of a request from the person to whom bail was granted (s. 3A(4) PACE). There is no stated procedure for this process, but the police will normally require that a request is in writing. More onerous conditions can be imposed.
The magistrates’ court on application by the suspect (s. 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail and the procedure for applying for the variation is set out at: Criminal Procedure Rules, Part 14, bail in the magistrates’ court and the Crown Court – specifically Criminal Procedure Rule (Crim.PR.) 14.6.
Where a defendant applies to the magistrates’ court to vary conditions of bail imposed by the Police, the Court will fix a hearing date and notify the CPS. (Courts must hear the application within 72 hours of its receipt – not counting Christmas Day, Good Friday, Bank Holidays or Sundays).

If the CPS has already received a file from the Police, the prosecutor should ask the Police to give their view of the application.

If the CPS has not already received a file, the prosecutor should request a file from the Police. The Police will supply either the appropriate Manual of Guidance file, or if this is not yet available, sufficient information relating to the circumstances of the case and the suspect’s antecedents to enable an application to be dealt with effectively.

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The Right to Bail
Under s. 4 of the Bail Act 1976, on each occasion that a person is brought before a court accused of an offence, or remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.

Prosecutors must keep the issue of bail under review throughout the life of the case.

Conditions of bail may only be imposed where necessary to ensure that the exceptions to bail are addressed. Only where conditions are not sufficient to address the exceptions to bail should a remand in custody be sought.

Under s. 5 of the Bail Act 1976, the court or officer refusing bail or imposing conditions must give reasons for their decision.

Exclusions to the right to bail
The general right to bail does not apply in the following circumstances:

Murder

The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed by s. 115(1) of the Coroners and Justice Act 2009. This does not apply to attempted murder or conspiracy to murder.

Where a person is charged with an offence of murder or attempted murder, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Section 114 of the Coroners and Justice Act 2009 amends Schedule 1 to the Bail Act 1976. Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is satisfied that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. In coming to that decision, the court must have regard to the nature and seriousness of the offence, the suspect’s character and antecedents and his record in relation to previous grants of bail.

Manslaughter and Serious Sexual Offences

Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Note: Where a person charged with one of the offences referred to above has a previous conviction for manslaughter or culpable homicide in the UK or EU court, he shall only have his right to bail restricted where he received a sentence of imprisonment or detention upon conviction.

Class A Drug Users – Designated areas only

In certain parts of the country, Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act 1976 apply which set out the exception to bail for adult drug users where their offending is drug-related, and where they have been required to undergo drug testing but have failed to comply with that requirement.


Exceptions to the right to bail

The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976.

A person may be denied bail if there are substantial grounds for believing that any of the exceptions in Schedule 1 of the Bail Act 1976 are made out. Different exceptions will apply depending on the category of offence and the flow charts at Annexes One – Six set out the approach to be taken by the court in deciding whether to withhold bail to a person charged with a particular category of offence.

In cases involving criminal damage where the court is clear that the value involved is less than £5000, these offences are treated for the purposes of bail as if they were summary only: see Section 22 of the Magistrates’ Courts Act 1980.
Certain exceptions to bail are subject to the “no real prospect” test where a remand should not be sought for an un-convicted defendant who has no real prospect of receiving a custodial sentence. In less serious cases prosecutors should give careful consideration to the surrounding circumstances of the offence, the defendant’s antecedents and any relevant sentencing guidelines in deciding whether there is a “real prospect” of a custodial sentence. Where this is not clear cut, it may be more appropriate to leave it to the court to decide and to make objections to bail in the usual way.
It is vital that prosecutors note that this is not a consideration in cases involving domestic violence or any other risk of physical or mental injury to persons associated with the defendant.
Post-conviction applications.

Pursuant to section 4(2) of the Bail Act 1976, there is no general right to bail for convicted persons.

However where a person has been convicted and is then brought before either the magistrates’ or Crown Court to be dealt with for breach of the requirements of a community order or breach of certain youth community orders (s. 4(3)); or a court adjourns a case for enquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (s. 4(4)), the right to bail remains. Accordingly, in these circumstances, prosecutors should make appropriate representations (including any objections) as to the grant of bail.

By inference the presumption to bail does not apply to those defendants who appear before a court post-conviction where proceedings are adjourned for any other reason, for example committal for sentence.

In this situation, prosecutors are reminded of their duty to assist the court in providing information that may be relevant to their decision.

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Opposing Bail: Information for prosecutors
Information that prosecutors may need from the police in order to decide whether the exceptions to bail are made out may include:

Any history of offending, absconding or witness interference whilst on bail in the current or in previous proceedings;
Any express or implied intention to continue to offend, abscond or interfere with the course of justice and any apparent motive for doing so (for example, to obtain money for the purpose of drug purchases);
The extent to which the defendant has continued to offend whilst subject to other orders of the Court, such as suspended or deferred sentences and conditional discharge, and any relevant breach proceedings in respect of other sentences as the presence of one or more of the features may demonstrate an unwillingness or inability to comply with other orders of the Court such as bail conditions;
Any previous breaches of bail conditions in earlier or concurrent proceedings or a history of absconding and failing to surrender to custody;
Any evidence of violence or threats towards or undue influence over the victim of the crime, or other vulnerable witnesses;
The degree of temptation to abscond. It should be noted that the risk of failing to surrender owing to the severity of the likely sentence, if convicted was a matter to be assessed in the light of other relevant factors. The likely sentence could not of itself provide grounds for a remand in custody (R (Thompson) v Central Criminal Court [2006] A.C. 9);
Any factors which might affect the defendant’s ability to comply with bail conditions, such as drug or alcohol dependency. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment (for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility); and
The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant. Generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks.
Victims and Witnesses
When dealing with bail hearings in court, prosecutors should ensure that the victim’s views are considered, in deciding whether to seek a remand in custody.

Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving ‘vulnerable’ and ‘intimidated’ victims and witnesses.

See further:

Code of Practice for Victims of Crime
Direct Communication with Victims and Witnesses
Care and Treatment of Victims and Witnesses
Homicide cases – Guidance on CPS service to Bereaved Families
Opposing Bail: Procedure
The procedures governing applications and appeals in relation to bail are set out in Part 14 of the Criminal Procedure Rules.

Under Schedule One, Part IIA of the Bail Act 1976, a person is entitled to be granted bail at the first hearing at which he appears charged with an offence. If a remand in custody is sought, he may apply for bail using any argument of fact or law that he chooses.

If bail is refused, then paragraph 1 of Part IIA applies and the court is under a duty to consider bail at each subsequent hearing at which the defendant appears (Remands in absence under the Magistrates Court Act 1980 are not counted). At the first hearing after which bail is refused, any argument as to fact and law may be advanced and the court must consider it. Thereafter, paragraph 3 of Part IIA states that court need not hear arguments as to fact or law that it has heard previously, unless there has been a change or circumstances that might have affected the earlier decision see R v Dover & East Kent JJ., ex p. Dean [1992] Crim. L. R.33.

In exceptional cases where there is a material change in circumstances, the prosecutor can ask the court to withdraw bail that has previously been granted see s. 5B of the Bail Act 1976 and R (Burns) v Woolwich CC and CPS [2010] EWHC 3273.

Murder Cases – s. 115(1) Coroners and Justice Act 2009

Where a murder case is to be sent to the Crown Court, the magistrates have no jurisdiction to consider bail. The papers will be sent to the Crown Court and will be placed before a Crown Court judge authorised to hear murder trials or preliminary hearings. That judge will decide if there should be a hearing and if the defendant should be produced. If no murder-ticketed judge is available, the list officer will refer the case to the Resident Judge.

The hearing/consideration of bail must be within 48 hours, beginning with the day after the day on which the magistrates send or refer the case (excluding Saturdays, Sundays, Christmas Day, Good Friday and Bank Holidays).

The CPS must be ready to deal with the section 115 hearing in the Crown Court irrespective of whether there is to be a bail application as the prosecutor will need to assist the judge with information to establish a legitimate reason for withholding bail.

In R (on the application of A) v Lewisham Youth Court [2011] EWHC 1193 it was confirmed that the power of the youth court to determine the appropriate form of custody was not displaced by s. 115 of the Coroners and Justice Act 2009. Youths charged with the serious offences listed in s. 115 should be dealt with in accordance with the procedure as set out at Annex Four: Youth Defendant: Indictable Only or Either Way Imprisonable Offence, Annex Five and Annex Six and in the section on Youths below.

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Conditions of Bail
General
Bail conditions should only be imposed in order to address any of the risks that would be inherent in granting unconditional bail. In proposing (or considering) conditions of bail, prosecutors must ensure that that they are necessary, reasonable, proportionate and capable of being enforced. Consideration should also be given to the extent to which they meet the objections to bail. Conditions that are unsuitable may give rise to a continuing risk of further offending, of absconding, or of harm to the victim(s) or public and prosecutors should be prepared to challenge their imposition or seek further evidence from the police before acceding to them, should they have any concerns.

Types of Condition
Reporting to a police station: This must be necessary to avert the risk it is designed to meet. For example, care should be taken to ensure that the interval between reporting times is not so long as to be insufficient to prevent a defendant from absconding.
Doorstep condition: It was held in R (CPS) v Chorley Justices [2002] EWHC 2162 (Admin) that a doorstep condition was not contrary to the ECHR. Where it is proportionate and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes, then such a condition may be appropriate.
Murder cases: Under s.115 of the Coroners and Justice Act 2009, a Crown Court must impose conditions in accordance with s.3(6A) of the Bail Act 1976 providing for the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained.
Not to drive: The court must be satisfied that such a condition is necessary and, in doing so, ought to consider whether its imposition might have unexpected and unjust results: R v Kwame 60 Cr. App. R. 65
Sureties can be expressed as being continuous throughout the court proceedings and if they are taken on these terms, there is no requirement for the surety to attend each hearing. Prosecutors should be prepared to assist the court to explore the status and means of the potential surety, in the interests of justice and the surety. The prosecutor should be prepared to ask for time to make enquiries as to the sufficiency of the surety.
Securities should be lodged with the court or, in exceptional circumstances, with the police, and not with the CPS.
Electronic tagging: Where the court is satisfied that there is local provision for electronic tagging, and but for the tagging of the offender, he would not be granted bail, it may order that this condition be imposed (s. 3AB of the Bail Act 1976).
Credit for period of remand on bail with an electronic tag
Section 240A of the Criminal Justice Act 2003 provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours.

Subsection (4)(a) of section 240A provides that the Secretary of State may make rules to dis-apply the credit provision. The current rules namely the Remand on Bail (Disapplication of Credit Period) Rules 2008 provide that credit is not to be given for:

sentences of imprisonment for consecutive terms;
sentences of imprisonment for terms which are wholly or partly concurrent;
periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State (e.g. a curfew order).
The court may decline to make a credit direction if it is, in the opinion of the court, just in all the circumstances not to give a direction under that subsection. This will enable the court not to give credit to all or part of the credit period when the defendant was in breach of bail. Under subsection (5), a court may nonetheless direct that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.

The court must state in open court:

the number of days on which the offender was subject to the relevant conditions, and
the number of days in relation to which the direction is given.
Where the court does not give a direction that credit is given or directs that reduced credit is given, it must state in open court:

that its decision is in accordance with rules made under subsection (4)(a) or
that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.
Calculating the credit period

The court, which first imposes the electronically monitored curfew, will commence a paper record which documents the conditions imposed and the date on which they are imposed. The document will also carry information about breach of bail and information to do with the dis-application provisions. This form will travel with the defendant’s court file so that it is made available to the sentencing court.

Youths
The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition “for his own welfare or in his own interests” (s. 3(6)(ca) Bail Act 1976).

10 & 11 year olds

Youths aged 10 and 11 may be remanded on unconditional bail, conditional bail, bail supervision and support or bail Intensive Supervision and Surveillance Programme (ISSP). Where a court remands on bail a 10 or 11 year old who is either charged with or has been convicted of a serious offence or, in the opinion of the court, is a persistent offender on bail the court may order a local authority to make an oral or written report specifying where the child is likely to be placed or maintained if he is remanded into local authority accommodation (s. 23B Children and Young Persons Act 1969).

12 – 17 year olds

Youths aged 12 to 17 may be remanded on unconditional bail, conditional bail, conditional bail with electronic monitoring, bail supervision and support, bail supervision and support with electronic monitoring, bail Intensive Support and Surveillance Programme (ISSP), with voice verification and/or with electronic monitoring.

An electronic monitoring requirement may only be imposed on a youth aged 12 to 17 inclusive if the following conditions are satisfied:

the child or young person has been charged with or convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings, amount, or would amount if convicted of the offences with which he is charged, to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; and
the court has been notified by the Secretary of State that electronic monitoring arrangements are available in the area and is satisfied that the necessary provision can be made under those arrangements; and
the youth offender team has informed the court that the electronic monitoring requirement is suitable for that child or young person (s. 3AA of the Bail Act 1976).
Variation/Appeal
Where a court has granted bail, the prosecutor or the Defence may apply to the magistrates’ court (or, where a person has been committed to the Crown Court for trial or sentence, to the committing Court or to the Crown Court) for conditions of bail to be varied or for conditions to be imposed where unconditional bail was granted – s. 3(8) of the Bail Act 1976.

Under s. 16 of the Criminal Justice Act 2003, a person who has been unsuccessful in securing the variation or lifting of a bail condition may appeal that decision to the Crown Court.

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Reconsideration of Bail
The prosecutor may apply under s. 5B of the Bail Act 1976 to have bail reconsidered by the magistrates’ court. This only applies to bail granted by the magistrates’ court or the police, and only in relation to offences triable on indictment or either way. The prosecutor may apply to vary the conditions of bail, impose conditions on bail which had been granted unconditionally, or revoke bail.

The prosecutor may only apply on the basis of information which was not available to the court or the police when the original decision was taken. It is unclear whether information which the custody officer should have known or could reasonably be expected to have known will be treated by the court as not having been available. In the absence of case law, the prosecutor should treat such information as not having been available to the police.

If the information is withheld from the court (for example by the Police or the CPS), then it was not available to the court, unless someone else tells the Court. The prosecutor should not withhold information from the court with a view to using it to support a Section 5B application later.

The new information need not relate directly to the offence but may relate to matters such as the defendant’s criminal record, or his or her address in relation to the complainant’s address.

It is not necessary to use section 5B to ask the magistrates’ court to reconsider bail when the defendant is already present at court in answer to bail. In other words, section 5B is not the only provision available to the court to allow it to reconsider bail. The court still has a duty to consider bail every time the defendant appears before it.

Where the CPS has already received a file from the Police, the Police will supply information on the relevant Manual of Guidance form and suggestion that a Section 5B application be made. Where the CPS has not yet received a file from the Police (for example where the defendant has only recently been charged and bailed), the Police will submit either a custody remand file or the appropriate Manual of Guidance National file Standard, file, together with information supporting a proposed Section 5B application.

Where the CPS receives information from a source other than the Police which may justify a Section 5B application, the prosecutor should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, the prosecutor should request a file. The Manual of Guidance gives details of the forms and procedures to be used.

The prosecutor should consider the following when deciding whether to use section 5B:

The length of time since the original decision and the bail history since that decision;
The length of time before the defendant would next appear in Court if no applications were made;
Whether the original decision would have been different if the new information had been available then (or if the new circumstances had obtained them);
Whether, even if the original decision would have been different, a different decision is likely to be taken now.
If the prosecutor decides to proceed with a Section 5B application, the application must be made in accordance with Rule 93B of the Magistrates’ Courts Rules 1981/552.

The prosecutor must make the application to the magistrates’ court which granted bail or in the case of bail granted by the police, the “appropriate” court. The appropriate court is the one appointed by the Custody Officer as the court before which the person granted bail has a duty to appear, or, if no such court has been appointed, the court acting for the petty sessions area in which the Police Station at which bail was granted is situated.

The application must:

be in writing;
contain a statement of the grounds on which it is made;
specify the offence in respect of which bail was granted;
specify the decision to be reconsidered, including any bail conditions and the reasons for them having been imposed;
specify the name and address of any surety.
The CPS must send the application to the Clerk of the Court. A hearing date will be fixed by the Clerk which must be not later than 72 hours after receipt by the Clerk of the application (not counting Christmas Day, Good Friday, Bank Holidays and Sundays).

Responsibility for service of notice on the defendant lies with the Court.

The application may proceed in the absence of the defendant provided that it is proved (on oath or by certificate of service) that the defendant has been served with notice.

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Breach of Conditions of Bail
Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature (R v Ashley [2004] 1 Cr. App. R. 23).

Section 7(3) of the Bail Act 1976 confers power upon a police officer to arrest a person if he has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.

Under s. 7(4) of the Bail Act 1976, a person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before the magistrates court for the area in which he was arrested. The arrested person must be dealt with within that 24 hour period; bringing him before the court is insufficient – R v Culley [2007] EWHC 109 (Admin). Although a contrary view was expressed by the Divisional Court in the case of McElkerney v Highbury Corner Magistrates’ Court [2009] EWHC 2621 (Admin), it is submitted that prosecutors should take care to ensure that the court is aware of the 24 hour limit and try and have the case disposed of within that time, or risk the defendant’s release.

Under s. 7(5) of the Bail Act 1976, the magistrates’ court before which the defendant is brought may remand him in custody or grant bail subject to the same or to different conditions if it is of the opinion that:

the defendant is not likely to surrender to custody; or
that the defendant has broken or is likely to break any condition of bail.
The effect of s. 7(5) of the Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233, which established five propositions:

That the arresting officer must state his grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of “hearsay evidence”.
Where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or for providing an opportunity to the person arrested, or his legal representatives, to cross-examine witnesses or give evidence. However, there should be some way in which the defendant can respond to the alleged breach.
The magistrates’ court has have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in s. 7(5) and if so, go on to decide whether or not to remand the defendant in custody or on bail on the same or more stringent conditions.
If the court feels unable to form one of the opinions set out in s. 7(5) they must order the person concerned to be released on bail on the same terms as were originally imposed.
Proceedings under s. 7(5) do not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.
The presumption in favour of granting bail under s. 4 of the Bail Act 1976 will be subject not only to the exceptions of the right to bail in part 1, paragraph 2 of schedule 1 to the Bail Act 1976, but also to the exception in paragraph 6 of the Schedule.

It should also be noted that:

The procedures adopted above do not amount to breaches under Article 5 and 6 of the European Convention on Human Rights – R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 2 considered these propositions and whether or not there were any and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.
The issue for the court is whether there has been a breach and, if so, whether the defendant ought to be re-admitted to bail. The words “reasonable excuse” should not be imported into s. 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail – R (Vickers) v West London Magistrates’ Court [2003] EWHC 1809 (Admin). In practice, Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of s. 7 and courts should not withhold bail simply on that ground alone.
Where the defendant is arrested for a new offence and for breach of one or more bail conditions, the police must give consideration as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of the arrest. If this is possible, the suspect should be arrested for breach of bail as well, but must be placed before a magistrates’ court within 24 hours, irrespective of the stage at which the investigation for the new offence has reached.
Where the nature of the investigation of the new offence is such that it is not practicable for the defendant to be placed before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under s. 7 of the Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed.

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Remands into Custody
Length of Remand into Custody
It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits.

In the magistrates’ court, a defendant can only remand a person in custody for a maximum of eight days, except where it has previously remanded him in custody and it has a set a date for the next stage of those proceedings. In those circumstances, having heard representations from the defendant’s representatives, he can be remanded in custody for a period ending in that date or for a period of 28 days, whichever is the less – s. 128A of the Magistrates Courts Act 1980.

There is no maximum period of remand into custody in the Crown Court, where the judge is able to adjourn cases to the next stage in the proceedings.

Appearance by Live Link
Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present – s. 57A(2) of the Crime and Disorder Act 1998 (CDA).

There is no requirement that the defendant be in custody in relation to the offences to which the preliminary hearing relates. As such, prosecutors should consider the savings in time and cost that might result from using the live link where a prisoner serving a sentence in relation to another offence needs to be produced in court. In these circumstances, it is important to liaise with any Defence solicitors, where known.

The court may require an initial hearing to determine whether to make an order for the proceedings to be heard via live link, at which the defendant may be required to attend via live link, and in relation to which he (or those representing him) should be able to make representations – s. 57B(4)(5) CDA.

Warrants of further detention – pre charge: s. 43 PACE
An arrested person must be charged or released within 24 hours of his arrest or arrival at the police station (s. 41 PACE). This can be extended to 36 hours on authorisation of a police superintendent (s. 42 PACE). Thereafter, a police officer may apply on oath (supported by an information) to the magistrates’ court for that period of detention to be extended where the court is satisfied (s. 43(4) PACE) that:

His detention without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning him;
The offence is an indictable one, and;
The investigation is being conducted diligently and expeditiously.
The application must be made before the 36 hour period has expired and the police may apply for the warrant of further detention to be extended up to a period of no more than 96 hours from the time of arrest or arrival at the police station (s. 44 PACE). For the detailed requirements as to the timing of applications, prosecutors should have regard to the provisions of ss. 43 and 44 PACE.

Prosecutors may find that, since it is usually the investigating police officer who makes the application on oath and that these applications are often made outside of normal court sitting hours, the officer will make the application to the court. However, if the court is sitting and, especially if the suspect is represented, the prosecutor may be required to assist the court by questioning the officer to establish that the grounds (see above) are made out.

If so, the prosecutor must ensure that the information in support of the application accords with the requirements of s. 43(14) PACE in that it contains:

The nature of the offence for which the suspect was arrested;
The general nature of the evidence;
What enquiries have been made and what further enquiries are proposed;
The reasons for believing that the suspect’s continued detention is necessary for the purpose of such further enquiries.
Detention in a police station – post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)
Prosecutors may also hear this provision referred to as a “lay down” and it is commonly used where a defendant has been charged for one or more offences and has been remanded in custody by the court for that matter, but the police wish to detain him in police custody for a short period to question him in relation to other offences.

Section 128 (7) MCA states that a magistrates’ court having power to remand a defendant in custody may, if the remand is for no more than three days, commit him to be detained at a police station. He may only be detained at a police station if there is a need for him to be so detained for the purposes of enquiries into other offences and he shall be brought back to court as soon as that need ceases (s.128(8)(a)(b) MCA). His detention will be kept under continuous review, in accordance with PACE, whilst in police detention.

In the case of a person aged less than 18 years, the maximum period of the “lay down” is 24 hours – s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Prosecutors need to approach this application by firstly satisfying themselves that a remand in custody on the offence charged is justified, having regard to whether one or more of the exceptions to bail are made out. Only at this point, will they have to address the necessity for detaining him in the police station for further enquiries to be made.

If so satisfied, the application for a remand in custody will be made by way of a two stage application – for the remand into custody, and, if granted to police custody. Many defendants will be keen to go straight to prison and their advocates may argue that it is open to the police to bail the defendant to be produced at the police station, once the further enquiries are complete.

As such, it is vital that prosecutors are provided with sufficient information to justify the necessity for this type of detention – in addition to the remand file.

Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988
Where a defendant is brought before a magistrates’ court charged with possession of a controlled drug or a drug trafficking offence, the Magistrates have the power to remand the defendant into the custody of a police officer or customs officer for a period not exceeding 192 hours, if the court considers it appropriate to do so.

In practice, this application will only be made in circumstances where the police are in a position to charge the offender and it is anticipated the maximum period of 96 hours under PACE will not be sufficient for the defendant to pass swallowed or concealed drugs from his body.

The prosecutor will first consider and apply for a remand in custody and, thereafter ask the court to remand initially for up to 192 hours into police custody. The police will be expected to provide evidence to support their assertion that the defendant has concealed drugs in his body and this will usually be in the form of an X-ray or other medical opinion, or observations of his conduct both before and after arrest.

Technical Bail
Prosecutors are instructed not to consent to technical bail at magistrates’ court or Crown Court hearings.

Technical bail is where bail is granted to a defendant in circumstances where there are substantial grounds for believing that a remand into custody is justified but the defendant is either serving a custodial sentence, or is remanded in custody for other matters before the same or other courts. Unconditional bail under these circumstances is granted on a technical basis, thereby avoiding the need to bring the defendant back to court unnecessarily for interim remand hearings. It also means that only one set of custody time limits needs to be monitored.

The risks inherent in agreeing to technical bail are:

If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who is likely to re-offend, abscond or present a risk to witnesses is released into the community without even the safeguards offered by conditions of bail being in place.
The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence(s) when technical bail is being considered for the later matters. Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings.
Public safety and public confidence in the criminal justice system must not be compromised by administrative convenience. While the decision to grant bail is ultimately for the court, prosecutors should be prepared to object to technical bail where satisfied that one or more grounds for withholding bail has been made out.

In objecting to bail, prosecutors should point out to the court that:

A defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts (see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 of the Bail Act 1976);
The use of remands by prisoner to court video link (PCVL) will avoid the need to transport the defendant;
There is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.
In a case where he is satisfied that there are no grounds for opposing bail, a prosecutor can still invite the court to impose conditions to take effect, should the defendant be released from custody.

The prosecutor’s reasons for adopting this course of action should be recorded fully on the file.

Given the importance of this advice to maintaining public safety, the Justices’ Clerks’ Society and the office of the Senior Presiding Judge has been made aware of this advice.

Youth Remands
The question of a remand will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. Prosecutors should be aware of the necessity of dealing with youth offenders in an expeditious manner.

The Bail Act 1976 applies to youth offenders and there is a presumption that the defendant has a right to bail.

The court must also have regard to the welfare of the youth (s. 44 of the Children and Young Persons Act 1933). This includes a specific obligation to consider a bail application, even if the court has refused bail twice and there is no change of circumstances nor any considerations which were not before the court when the youth was last remanded (R (on the application of B) v Brent Youth Court [2010] EWHC 1893 Admin.). Prosecutors should be mindful of their corresponding duty to have regard to the interests of the youth and the principal aim of the youth justice system which is to prevent offending (s. 37 CDA), when considering representations in respect of bail.

The best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: Article 3 United Nations Convention on the Rights of the Child 1989 (UNCRC).

In dealing with a person aged under 18 years, prosecutors are reminded that they should first satisfy themselves that the exceptions to the right to bail are made out (see Annex Four, Annex Five and Annex Six) and that conditions of bail will not allay their fears.

If so satisfied, the prosecutor should seek a remand into local authority accommodation (s. 91(3) of the Legal Aid and Punishment of Offenders Act 2012 (LASPO)). A remand into youth detention accommodation should only be sought where one of the sets of conditions set out in ss. 98 and 99 LASPO are met (s. 91(4)(a) LASPO).

Remands to Local Authority Accommodation

If bail is refused to a child the court must remand him or her to local authority accommodation, (s. 91 LASPO).

A remand to local authority accommodation is a remand in custody and custody time limits will apply (s. 23(11)(b) Prosecution of Offences Act 1985).

The remand is for a maximum of eight days as the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.

The Court shall designate the local authority that is to receive the youth offender (s. 92(2) LASPO).

Local Authority Remand with Conditions

The Court may impose any condition on the local authority remand that could be imposed under s. 3(6) of the Bail Act 1976 (s. 93(1) LASPO).

An electronic monitoring requirement may only be imposed if the criteria in s. 94 (2) to (6) LASPO are satisfied, namely:

the child is at least 12 years old;
one or more of the offences for which the child is remanded is imprisonable;
one or more of the offences for which the child is
remanded is a violent or sexual offence (as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003) or
punishable in the case of an adult with imprisonment for a term of 14 years or more or taken together with any other imprisonable offences of which the child has been convicted in any proceedings,
amounts (or would, if the child is convicted of the offence(s) for which he or she is remanded) to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
electronic monitoring is available and the youth offending team have informed the court that electronic monitoring is suitable for the child.
The court may also impose requirements on the authority itself for securing compliance with any conditions imposed on the child or stipulating that the child shall not be placed with a named person (s. 93(3) LASPO).

The authority itself may ask the Court to impose conditions on a remand to local authority accommodation (s. 93(5) LASPO) and both the local authority and the child can apply to the court to vary or revoke any conditions previously imposed (s. 93(6) LASPO).

The court must consult the designated local authority before imposing conditions on the child or the local authority (s. 93(4) LASPO).

“Consultation” with the local authority is defined as such consultation (if any) as is reasonably practicable in all the circumstances of the case (s. 93(9) LASPO).

Prosecutors should know something of the local authority’s arrangements for accommodation of youth offenders on remand. In all applications, it will be advisable to talk to the representative from the youth offending team before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.

Remands to Youth Detention Accommodation

Youths aged 10 and 11 can only be remanded to local authority accommodation.

The Court may remand a youth aged between 12 and 17 to youth detention accommodation, rather than local authority accommodation if the youth satisfies either the first or second set of conditions set out in ss. 98 and 99 LASPO 2012. These provisions are set out in Annex Seven: Youth Defendant Remand Provisions.

Prosecutors are advised to consult the Youth Offending Team to explain the objections to bail and the reasons for seeking a remand to youth detention accommodation and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a remand to youth detention accommodation when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation.

The court no longer has a power to remand a 15 or 16 year old boy to secure accommodation rather than a young offenders’ institution. All children remanded to youth detention accommodation will be placed in a secure children’s home, secure training centre or young offenders’ institution.

Prosecutors should advise the defence solicitor, the Court and the youth offender team and of any information on the CPS file that indicates that a youth remanded to youth detention accommodation has any physical or emotional maturity issues or a propensity to self- harm to enable the child to be placed appropriately.

Secure Accommodation Orders

If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under s. 25 Children Act 1989, where the remand has been made by the Youth Court or magistrates’ court, the authority must apply to that Court and not to the Family Proceedings Court.

The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. If the authority intends to make this application, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at court every seven days.

If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.

Local Remands

A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified in the case of:

a child who is aged 12 to 17 inclusive, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or
any child that, for the reasons specified on the certificate, it is impracticable to make the transfer (s 38(6) PACE).
Although the new sub-section uses the word “impracticable” in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of children under 12 in youth detention accommodation would not be available to the Court, other than at the instigation of the local authority, itself under s. 25 of the Children Act 1989 it would be improper to try and use s. 38(6) PACE to achieve it.

See also the legal guidance on Youth Offenders.

Mentally Disordered Offenders
A defendant may have been detained in hospital under the Mental Health Act 1983 as a civil patient prior to charge. The court has no power to grant bail on condition that the defendant resides at the hospital and must remand the defendant in custody. However, the Secretary of State for Justice is able to consider a transfer under s. 48 Mental Health Act 1983 and facilitate a remand straight to hospital from the magistrates’ court where:

He is satisfied by reports from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature and degree that makes hospital treatment appropriate and urgent and that such treatment is available for the defendant, and;
That such treatment is expedient in the public interest and in all of the circumstances of the case.
Where the statutory criteria are satisfied, early liaison with the appropriate caseworker at the Mental Health Casework Section (MHCS) of the National Offender Management Service (NOMS) is essential. Cases are allocated according to the surname of the patient so please click on this link to find the correct caseworker. Prosecutors should contact the caseworker in advance of the first appearance to agree the information needed which will include:

Details of the alleged offence, including a case summary and list of antecedents;
Reports from at least two registered medical practitioners;
Details of the hospital where the defendant is being treated so that the MHCS can send the hospital Form H1004 to complete and ensure that they understand the process.
The MHCS will decide whether the hospital offers a sufficient level of security given the nature of the charges and antecedent history and any risk assessment. The fact that the defendant is already being treated at that hospital will be taken into account.

The transfer will be affected by a warrant directing the defendant’s transfer to hospital. The section 48 warrant cannot be issued until the court has remanded the defendant in custody. Therefore the court remand warrant must be faxed or emailed to MHCS as soon as it is issued, and MHCS will send back the section 48 warrant. Warrants cannot be issued at the weekends or on Bank Holidays.

Section 52 of the Mental Health Act 1983 provides that a defendant remanded in hospital under section 48 can be remanded in his absence without the need for him to appear back before the court, provided that he shall not be remanded in his absence, unless he has appeared before the court within the previous six months.

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Appeals in relation to Grant of Bail
By the Prosecutor
From the Magistrates Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the Crown Court, under s. 1 of the Bail Amendment Act 1993 (BAA).

In deciding whether to seek a remand in such a case, the prosecutor should also consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The decision and reasons for it must be clearly endorsed on the file.

Factors to Consider

In considering whether an appeal is appropriate, the key factor to consider is the level of risk posed to a victim, group of victims or the public at large.

The nature and seriousness of the offence which the defendant faces is relevant if it illustrates the risk created by granting bail. Examples might be extreme cases of personal violence such as murder, rape, robbery or aggravated burglary, particularly if it is alleged that weapons have been used in offences of violence or during the commission of sexual offences.

A serious risk of harm to public safety and property might be demonstrated in an offence of arson with intent to endanger life or being reckless as to whether life is endangered, terrorist offences or riot.

The risk to the individual victim or victims may be shown to be greater where there is:

A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics;
Evidence of violence or threats of violence to the victim or his or her family, or;
Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.
A strong indication that the defendant may abscond may be a reason to appeal in circumstances where the defendant has no right to remain in the jurisdiction or has substantial assets or interests abroad. On the other hand the right of appeal should not be used simply because the defendant has no fixed address or settled way of life, particularly where this may be coupled with mental health problems (unless accompanied by genuine indications of danger to the public).

This guidance is not intended to be exhaustive and each case will need to be decided on its merits after consideration of any representations made to the court and any other information which may become available.

Where a prosecutor has decided to exercise a right of appeal, authorisation should be sought from a Level E manager.

Procedure

Oral notice must be given to the court at the conclusion of the bail hearing and before the defendant is released – s. 1(4) BAA. The giving of an oral notice after a short delay of five minutes after the Magistrates had withdrawn and before the defendant was released was held to satisfy s. 1(4) – R v Isleworth CC ex p. Clarke [1998] 1 Cr. App. R. 257. The defendant is remanded in custody and should remain in the cells, pending the giving of the notice.
A written notice must be served on the court and the defendant in person within two hours of the conclusion of the bail hearing – s. 1(5) BAA. If the notice is not served, the appeal is deemed disposed of and the defendant is released. A copy of the written notice is available on CMS. If necessary, the defendant should be produced in court within the two hour time limit in order to effect personal service of the written notice.
The appeal must be heard within 48 hours of the end of the day on which the bail application was heard, excluding weekends and public holidays.
Under CPR 14.9 (9), a prosecutor may abandon the appeal at any time before the hearing begins by serving notice on the Magistrates Court, the Crown Court and the Defence.
The appeal hearing is a complete re-hearing of the application at the Magistrates Court with the judge at liberty to remand the defendant in custody, or grant bail on any conditions he or she deems appropriate.
In the event of a successful appeal to the Crown Court, the Judge should be invited to remand the defendant, where he or she is subject to the magistrates’ court’s jurisdiction, to appear before the Justices on a date which must be no more than eight clear days from the date of his last appearance before them.
Youths

The BAA applies to youth offenders charged with, or convicted of, offences punishable (in case of an adult) with five years or more imprisonment, or offences under ss. 12 and 12A of the Theft Act 1968 and in respect of whom the prosecutor has made representations that he or she should be remanded to local authority accommodation, or youth detention accommodation under the provisions of ss. 98 or 99 LASPO (see above).

In addition to the authorisation referred to above, the decision to appeal the granting of bail should be taken or confirmed by a Youth Offender Specialist and the Area Youth Co-ordinator should be notified of the result of the appeal.

From the Crown Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the High Court, under s. 1(1B) BAA. Authority to appeal to the High Court has to come at the level of Deputy Chief Crown Prosecutor.

The right of appeal to the High Court under this section does not enable a prosecutor to appeal a decision by the Crown Court to uphold the decision of Magistrates to grant bail – s. 1(1C) BAA.

The provisions on factors to consider, authorisation and procedure relating to an appeal from the Crown Court match those on appeal from the magistrates’ court, save that prosecutors should note that:

RSC Order 79, Rule 9(15) states that proceedings on appeal to the High Court can be commenced by lodging the written notice with that court; but,
For precise information as to what documents to lodge and where, prosecutors should have regard to Practice Direction 4, which supplements that rule.
Habeus Corpus/Judicial Review

The High Court no longer has jurisdiction to entertain an application in relation to bail.

The High Court jurisdiction in respect of habeas corpus is unaffected. In Sumpter v Director of Public Prosecutions (6th July 2004, unreported), Treacy J. stated:

“The preservation of the Habeas Corpus remedy in these circumstances is not to be regarded as a substitute route for the now abolished inherent right of the High Court to grant bail after a decision by the Crown Court.

“The intention of Parliament plainly was to achieve a degree of finality in relation to Bail Act applications and decision making and the route which has been adopted today is not one which the court wishes to encourage.”

Prosecutors should be aware however that the possibility of a judicial review of a decision of bail still exists despite these changes, but authority indicates that this should be used sparingly – see R (ex parte R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin).

By the Defence
Under s. 81 of the Senior Courts Act 1981, a defendant may appeal a decision of a Magistrates Court to withhold bail, but only where he or she has obtained a certificate from the Magistrates (under s. 5(6A) of the Bail Act 1976) that they have heard full argument from the defendant before refusing his application.

Rule 14.8 of the Criminal Procedure Rules sets out what the Defence must include in its Notice of Application and how the Crown must respond. The CPS should note that the importance of seeking the views of the police and any identified victims as to any proposed conditions and should ensure that these applications are brought to the attention of the police as soon as possible. Where necessary, prosecutors should be proactive in seeking more time for a response to be received – see Crim. PR 14.8 (6) and (7).

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Failure to Surrender
It is an offence for a suspect released on bail in criminal proceedings, to fail without reasonable cause to surrender to custody – s. 6(1) of the Bail Act 1976.

It is an offence for a suspect released on bail in criminal proceedings, who having reasonable cause for failing to surrender at the appointed place and time, fails to surrender at that place and time as soon as is reasonably practicable thereafter – s. 6(2) of the Bail Act 1976.

It is punishable as a summary only offence (maximum penalty 3 months and/or a level 5 fine), or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months’ imprisonment and/or fine.

Commencing a prosecution
Where bail is granted by the police and the defendant fails to surrender, the police may charge him as long as the charge is laid within six months of him failing to surrender, or three months of him surrendering to custody, being arrested or being brought before the court for the offence for which he is bailed, whichever is sooner – ss. 6(11) – (14) of the Bail Act 1976.

Where a defendant is bailed by the police and fails to surrender at the first hearing, the prosecutor should make an oral application for an information to be laid in relation to both the offence under s. 6(1) and that under s. 6(2), as it cannot be anticipated at that stage when the defendant will surrender and whether he will advance a reasonable cause. Where the defendant is brought before the court, having not been charged by the police and with no information having been laid previously, the prosecutor may ask for an information to be laid at this stage, subject to the time limits as set out above.

Where a defendant has been bailed by the court and fails to surrender, the court may try him for that offence at any point after he has been brought before the court for that offence, irrespective of the length of time since he failed to surrender – s. 6(10) of the Bail Act 1976.

When a defendant fails to appear at Court, the prosecutors should generally apply to the Court for a warrant without bail. In exceptional circumstances, they may use their discretion as to whether a warrant backed for bail may be appropriate.

Evidential Considerations
Prosecutors need to consider whether:

The defendant was bailed in criminal proceedings

There is no need to call formal evidence unless contesting the defence of reasonable cause. The Court’s record of the grant of bail, or the charge sheet, if Police bail was granted, giving details of the time and date the defendant was due to surrender, will be sufficient.

There was a failure to surrender

Whether or not the defendant has failed to surrender to court bail will depend on the arrangements in the particular court to which the defendant is to surrender. The position may differ between the magistrates’ court and the Crown Court.

Magistrates Court – In DPP v Richards (1989) 88 Cr. App. R. 87 the defendant was on bail to appear at the magistrates’ court. The court displayed a notice which required all persons due to appear in court to report to the enquiry counter. The defendant did report and then complied with the instructions to wait in the concourse before becoming tired of waiting and leaving the building. Following conviction for failing to surrender the defendant appealed to the Crown Court, Glidewell LJ stated:

“… what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender … If having done so the person at the Inquiry office said: ‘Go to the cells and surrender to a prison officer’ that would have been the surrender. If the Inquiry officer says: ‘Go and sit in the concourse until your case is called,’ then the court procedure envisages that being the surrender to the court.”

Accordingly, in the magistrates’ court, what constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court. In this instance, by surrendering to the enquiry desk, the defendant could not be said to have failed to surrender.

Even if the circumstances do not amount to a Bail Act offence, the court may still issue a warrant for the defendant’s arrest (s. 7(2)).

In R v Evans (Scott Lennon) [2011] EWCA Crim 2842, the defendant arrived at the Crown Court where he informed his advocate of his arrival. He left before his case was called and was convicted of failing to surrender.

The Court of Appeal did not agree that reporting to the usher amounted to surrendering.

Mere arrival at the Crown Court building does not constitute a surrender, neither did reporting to an advocate. Surrender has to be accomplished personally by the defendant.

“… in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been it is also accomplished by arraignment. Thirdly, the position in the magistrates’ court may be the same, but may easily differ as explained in DPP v Richards.”

Reasonable Cause (excuse)
Under s. 6(3) of the Bail Act 1976, it is for the defendant to prove that he had a reasonable cause for failing to surrender. Error or forgetfulness is unlikely ever to amount to a reasonable excuse, but may be relevant mitigation for the court to consider (Laidlaw v Atkinson The Times (02 August 1986)).

Issuing of Medical Certificates

This guidance clarifies the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings.

Doctors will be aware that medical notes/certificates are normally submitted by defendants in criminal proceedings as justification for not answering bail; they may also be submitted by witnesses who are due to give evidence and jurors.

If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) having to be adjourned rather than the court issuing a warrant for the defendant’s arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail.

However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate, which it finds unsatisfactory – R v Ealing Magistrates Court Ex p. Burgess (2001) 165 J.P. 82.

Circumstances where a court may find a medical certificate to be unsatisfactory include:

Where the certificate indicates that the defendant is unfit to work (rather than to attend court);
Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.
It therefore follows that as a minimum standard a medical certificate should set out:

The date on which the medical practitioner examined the defendant;
The exact nature of the defendant’s ailment;
If it is not self-evident, why the ailment prevents the defendant from attending court;
An indication as to when the defendant is likely to be able to attend court, or a date when the current certificate expires.
Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and may be asked to justify their statements.

This guidance on the issuing of medical certificates, which was originally agreed with the British Medical Association (BMA) after a period of consultation, is now Criminal Practice Directions CPD1 General Matter 5C Issue of Medical Certificates.

Public Interest Considerations
A prosecution will normally be in the public interest where a defendant has deliberately failed to attend with no reasonable cause unless he or she is able to put forward substantial mitigating circumstances.

Where a defendant has surrendered to bail at court later than the appointed time, consideration ought to be given to the following questions in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:

Has the defendant breached his bail before, in this case or in the past?
Has there been any inconvenience to the court generally?
If late on the date for trial, whether any witnesses have been inconvenienced
Has any reason offered by the defendant for his late appearance; and
Has the defendant arrived at court at a time after a warrant for his arrest has been issued?
Procedure
Where the court is looking to proceedings for failure to surrender (separate to consideration as to whether bail should be revoked or amended), it should consider the content of Criminal Practice Direction (Custody and Bail) [2013] 1 W.L.R 3164, the main requirements of which are:

These offences should be dealt with as soon as practicable, and where possible, at the first hearing after arrest, as its outcome will be relevant to the consideration of bail.
Proceedings for failing to surrender ought not to be adjourned, even the proceedings for the offence that led to the grant of bail are adjourned. If an application to adjourn is made, the court will need to consider all of the circumstances including likely length of proceedings and the penalty that might be imposed for failing to surrender
even if the defendant fails to surrender to court bail, it is the prosecutor who conducts proceedings.
Bail should be reconsidered in the light of the failing to surrender.
A separate penalty should be considered for the failing to surrender.
The court should give reasons in open court if it decides not deal with the Bail Act offence at the earliest opportunity.

If proceedings are sent to the Crown Court, then, the defendant can be committed for sentence to the Crown Court, but only if convicted in the magistrates’ court – s. 6(6) of the Bail Act 1976.

If the defendant is sentenced for the Bail Act offence at the same time as for the substantive offences, then any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

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Bail Applications involving the Official Solicitor
The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor – (RSC, Order 79 r 9).

The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendant’s case. The questionnaire requests details of any objections to bail.

In the light of s. 15(3) of the Prosecution of Offences Act 1985, it has been decided (with the concurrence of the Official Solicitor) that responsibility for the content of the completed form should rest with the Crown Prosecution Service rather than the Police.

The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor. Thereafter the Official Solicitor will deal with the CPS Unit Office.

The Official Solicitor’s address is:

81 Chancery Lane,
London
WC2A 1DD

Telephone: General Enquiries – 020 7911 7127
Fax: 020 7911 7105
DX 0012 London Chancery Lane WC2
Email enquiries@offsol.gsi.gov.uk.

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File Endorsements
It is vital that grounds for objecting to bail and the reasons for court decisions are accurately recorded by both the Crown and the Court. This information should be recorded by the prosecutor on the electronic Hearing Record Sheet (HRS).

Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:

The bail or custody representations, including any proposed conditions;
The results of any discussions with the Police concerning bail;
Full reasons for the bail or custody representations referring to the relevant provisions of the Act where conditional bail or a remand in custody is suggested;
Recommendations, applications and decisions resulting from considering the provisions of the Bail (Amendment) Act 1993 (BAA);
A full note of the Court’s decision and the grounds for the decision;
Where appropriate, the oral notice and the time it was given in relation to an appeal under the BAA; and
Any relevant information which would not be readily apparent from the papers on the file.
Given that bail can be re-visited at various stages of a case (including appeals by the prosecution against the granting of bail), it is important that the Crown’s objections to bail and the Court’s decision (including which grounds if any it upholds) are clearly noted by all parties and the Court.


Adopted and Modified from : Crown Prosecution Service

Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra[SC 2017][bail granted ]

Keywords:-bail application-investigational rights  of agency

Criminal Law-min

  • An accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
  • At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra

[Criminal Appeal No. 1448 of 2017 arising out of Special Leave Petition (CRL.) No. 3716 of 2017]

Acts: Section 43(D)(5) of the UAP,

  1. History: appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies
  2. Offences under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.
  3. ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 5 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.
  4. After filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi 6 as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11. The NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein.

Bench:  (R.K. AGRAWAL) (ABHAY MANOHAR SAPRE)

R.K. Agrawal, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 25.04.2017 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 664 of 2016 whereby the Division Bench of the High Court dismissed the bail application filed by the appellant herein.

3. Brief facts:

a. On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at Malegaon, District Nasik, opposite Shakil Goods 2 Transport Company between Anjuman Chowk and Bhiku Chowk. The said blast was caused by explosive device fitted in LML Freedom Motor Cycle bearing Registration No. MH-15-P-4572. As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature. Damage to the property was also caused.

b. The offence came to be registered under CR No. 130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.

c. During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short ‘the UAP Act’) were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 3 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short ‘the MCOC Act) were added.

d. During investigation, it was found that the appellant herein, along with other co-accused in the case, entered into a criminal conspiracy between January, 2008 to October, 2008 with a common object and intention to strike terror in the minds of people caused bomb blast at Malegaon by using explosive substances to cause damage to life and property and to create communal rift. According to ATS, the appellant herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at Malegaon.

e. During investigation, it has been further revealed by the ATS that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). The appellant herein floated ‘Abhinav Bharat’ organization in the year 2007 inspite of being serving as a Commissioned Officer in Armed Forces. The other co-accused in the case were also the members of the said 4 organization. The object of the Organization was to turn India into a Hindu Rashtra called as ‘Aryavrat’. They had planned to train persons for guerrilla war and had also decided to kill the persons opposing their object of formation of a Hindu Rashtra.

As per the investigation, it has also come out that the appellant herein along with other persons had participated in various meetings of the said Organization to discuss various aspects for achieving their goals. Further, it is the case of the ATS that the organization, viz., ‘Abhinav Bharat’ is an Organized Crime Syndicate and its members including the appellant herein were active since 2003. In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was hatched. In the said meeting, the appellant herein took the responsibility of providing explosives for the common object in order to take revenge of ‘Jihadi’ activities by Muslim community.

f. After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 5 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.

g. The appellant came to be arrested on 05.11.2008 in connection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court.

A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi 6 as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11.

h. This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits. On the question of applicability of the MCOC Act, this Court has observed as under:-

“95. In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail.

Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna.

There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.” Vide order dated 12.10.2015, the Special Judge, rejected the bail application of the appellant herein. Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court. During the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein.

In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application.

(i) The appellant herein filed a fresh bail application before the Court of Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai. The Special Judge, vide order dated 26.09.2016, denied the bail to the appellant herein. Being aggrieved by the order dated 26.09.2016, the appellant herein went in appeal before the High Court and filed Criminal Appeal No. 664 of 2016. The NIA resisted the bail application of the appellant herein on various grounds before the High Court. On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein. Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave.


4. Heard Mr. Harish Salve, learned senior counsel for the appellant herein and Mr. Maninder Singh, learned Additional Solicitor General for the respondent-State and Mr. Amarendra Sharan, learned senior counsel for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the deceased.

Point(s) for consideration:-

5. The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case for grant of bail or not?

Rival contentions:-

6. Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appellant herein. Learned senior counsel further contended that earlier, the bail applications were rejected mainly on the basis of the confessional statements of the co-accused under the MCOC Act and now, as the charges under the MCOC Act have been dropped, the confessional statements of the co-accused are required to be excluded from consideration and in their absence thereof, there is no incriminating material against the appellant herein so as to deny him the benefit of bail.

Learned senior counsel further contended that during investigation by NIA, PW-79, PW-112 and PW-55 have retracted their previous statements made before the ATS. The fact that the material witnesses have retracted from their statements while complaining about the harassment and torture meted out by the officers of the ATS, clearly indicate that the investigation carried out by the ATS was not fair but it was tainted. The statements and confessions have been extracted subjecting the witness and co-accused to the torture and duress, under the threats of implicating them falsely. Learned senior counsel contended that in view of the withdrawal of those statements and confessions, there remains nothing on record to implicate the appellant herein with the alleged offence.

7. Learned senior counsel further contended that the appellant was a Military Intelligence Officer at the relevant 10 time and had participated in the meetings held at various places like Faridabad, Bhopal etc. in discharge of his duties as such for collecting intelligence and creating new sources and the said fact has also been revealed in the Report of Court of Inquiry (CoI) conducted by the Army Officers against him as well as in the reply filed by the Ministry of Defence and the documents filed by the said Ministry in the Special Court. Learned senior counsel further contended that there was no sufficient material to show that in the said meetings, any conspiracy was hatched to commit the bomb blast at Malegaon.

8. Learned senior counsel vehemently contended the statement of PW-21 that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence in order to suggest that no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence. Even the appellant herein also informed that it was a ‘covert operation’ of Military Intelligence.

9. Learned senior counsel further contended that the Report of Inquiry (RoI) also reveals that the RDX was planted by the ATS officer in the house of Sudhakarn Chaturvedi (A-11). The statements of PW-180 and PW-183 also indicate the same but the courts below disbelieved the version of NIA in this regard.

10. Further, learned senior counsel strenuously contended that whether the amended provision of Section 43(D)(5) of the UAP Act be applied retrospectively to the appellant herein.

The said provision had been amended on 31.12.2008 while the incident had taken place on 29.09.2008. He further contended that the High Court was not right in holding that the right of bail of the accused is a procedural right and cannot be considered as a substantive right for retrospective applicability of the provision. Further, the sanction granted for prosecution of the appellant under Section 45(1) of the UAP Act was not valid.

He further stressed upon the point that the High Court erred in ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the court has taken into account the changed circumstances in the charge sheet filed by the NIA but the very same facts have been ignored in the case of the appellant herein. Learned senior counsel finally submitted that the appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies and the appellant herein has a good prima facie case to succeed for grant of bail before this Court.

11. Learned Additional Solicitor General (ASG) for the respondent-State strongly controverted the contentions raised by learned senior counsel for the appellant herein by submitting that he was the main conspirator and prima facie there is sufficient material on record to prove his involvement in the alleged offence. Merely because the charges have been dropped under the MCOC Act, it does not mean that there is no material against the appellant herein in respect of other charges. The NIA has given clean chit to Pragya Singh Thakur (A-1) and some other accused person but it has not exonerated the appellant herein from the charges leveled against him which clearly proves that the NIA has also found sufficient material to implicate the appellant.

12. Learned ASG finally submitted that the conclusions about involvement of the appellant herein in the offences alleged against him as drawn by the ATS are supplemented and supported by the NIA officers in their detailed investigation. Having regard to the gravity and seriousness of the offence, which were in the nature of waging war against the unity and integrity of the Nation, and, that too, by violent means, the bail application of the appellant could not have been allowed and it has rightly been rejected by the courts below and no interference is sought for by this Court.

13. Mr. Amarendra Saran, learned senior counsel for the intervenor submitted that there are sufficient material and evidence on record to establish a prima facie case of the involvement of the appellant herein in the criminal offence and the report of the Court of Inquiry (CoI) submitted by the Military authorities cannot be taken into consideration for deciding the question of grant of bail.

Discussion:-

14. In order to prove the prima facie case against the appellant, the prosecution has relied upon the transcription of 14 the conversations of the meetings obtained from the laptop of Swami Amrutanand (A-10), statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short ‘the Code’), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11).

With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation. In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities).

In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence. Even the appellant herein also informed that it was a ‘covert operation’ of Military Intelligence and he attended the said meetings to create the counter intelligence and no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence. Besides this, the documents filed by the Ministry of Defence and the papers of the Court of Inquiry also substantiate the claim of the appellant herein. Similarly, intercepted telephonic conversations between the co-accused and the appellant herein were supported as part of duty.

15. The NIA started the investigation on the basis of the facts stated in the FIR and the evidence collected by the ATS, Mumbai. During investigation, it was found that there were contradictions with regard to the evidence led in the charge sheet by the ATS. On the basis of the specific points covered during the investigation conducted by the NIA, it was concluded that no offence under the MCOC Act was attracted and the confessional statements recorded under the provisions of the said Act by ATS Mumbai were not being relied upon by the NIA in the charge sheet against the accused persons. In fact, on evaluation of the evidence against Pragya Singh 16 Thakur (A-1), the evidence on record were not found sufficient by the NIA to prosecute her as all the witnesses had retracted from their statements and thus no case was made out against her.

16. As regards the other parameters to be considered while deciding the application of bail, like, reasonable apprehension of the witnesses being tampered with and danger, of-course, of justice being thwarted by grant of bail, needless to state that already some of the witnesses have retracted their statements made before the ATS. A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case. In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai.

Even during re-examination of PW-79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of ‘Abhinav Bharat’ held at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009. The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed the same.

17. In view of the above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS. However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA. He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:-

(1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for a month sometime in 2006. The description of the weapons was also dictated to him.

(2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali.

(3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast.

(4) That Lt. Col. Purohit told him in the early 2008 that something was planned to be done soon. He further told him that an action was planned in Nashik District in Oct/Nov. 2008.

(5) That he was asked to say that Lt. Col. Purohit had confessed to him about planning and executing the Malegaon blast along with his accomplices.

18. Apart from the above, during the investigation by the NIA, it was revealed that the Army authorities had conducted a Court of Inquiry (CoI) against the appellant herein. During scrutiny of the proceedings of the CoI, a different story of assembling of IED in the House of Sudhakar Chaturvedi (A-11) came to light. During re-examination of the witnesses by the NIA who deposed before the Court of Inquiry (CoI), it was revealed that they suspiciously found API Bagde of ATS in the house of A-11 when A-11 was not present in the house. On considering the facts narrated by the witnesses, the question arises here as to why API Bagde visited the house of A-11 in his absence. It is also pertinent to mention her that the ATS conducted the search of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses.

Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case.

19. Further, with regard to the contention of learned senior counsel as to the non-applicability of Section 43-D(5) of the UAP Act or want of valid sanction for the prosecution, it was rightly suggested by the learned ASG that it can be considered at the time of trial and not at this stage.

Conclusion:-

20. In our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case.

21. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

22. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

23. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

24. In view of the foregoing discussion, we are of the considered opinion that there are variations in the charge sheets filed by ATS Mumbai and NIA. Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications. As mentioned earlier, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken.

However, keeping in view the fact that NIA has submitted the supplementary charge-sheet which is at variance with the charge-sheet filed by the ATS and that the trial is likely to take a long time and the appellant has been in prison for about 8 years and 8 months, we are of the considered view that the appellant has made out a prima facie case for release on bail and we deem it appropriate to enlarge the appellant herein on bail, subject to the following conditions:

(i) On his furnishing personal security in the sum of Rs 1 (one) lakh with two solvent sureties, each of the like amount, to the satisfaction of the trial court.

(ii) The appellant herein shall appear in court as and when directed by the court.

(iii) The appellant herein shall make himself available for any further investigation/interrogation by NIA as and when required.

(iv) The appellant herein shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer.

(v) The appellant herein shall not leave India without the previous permission of the trial court.

(vi) In case the appellant herein is in possession of a passport, the same shall be deposited with the trial court before being released on bail.

(vii) We reserve liberty to the respondents to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellant herein violates any of the conditions imposed by this Court.

25. It is further made clear that the grant of bail to the appellant herein shall be no consideration for grant of bail to other accused persons in the case and the prayer for bail by other accused persons (not before us) shall be considered on its own merits. We also make it clear that the Special Court shall decide the bail applications, if filed by the other accused persons, uninfluenced by any observation made by this Court. Further, any observations made by us in this order shall not come in the way of deciding the trial on merits.

26. In view of the above, we set aside the judgment passed by the High Court dated 25.04.2017 and grant bail to the appellant herein on the conditions mentioned above. Intervention Application is allowed. The appeal is allowed.

J. (R.K. AGRAWAL)

J. (ABHAY MANOHAR SAPRE)

NEW DELHI;

AUGUST 21, 2017.

Sunaina Sharma & Ors. Vs. The State of Jammu and Kashmir & Ors[SC 2017]-Service

Keywords- Retrospective Promotion-Direct recruitment-Seniority

SC INDEx

  • Seniority should be reckoned from the actual date of appointment.
  • Retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.

SUPREME COURT OF INDIA

Sunaina Sharma & Ors. Vs. State of Jammu and Kashmir & Ors.

[Civil Appeal No(S) 4594-4595 of 2017] [Civil Appeal No(S) 4596-4597 of 2017]

ACT: J & K Excise & Taxation (Gazetted) Recruitment Rules, 1977-Rule 23 of the J & K Civil Service (CCA Rules), 1956

BENCH: Madan B. Lokur and Deepak Gupta

Deepak Gupta, J.

1. The issue that arises for determination in these appeals is whether the private respondents, who are promotee Excise and Taxation Officers (ETOs for short) could be granted retrospective promotion from the dates when the vacancies occurred in the promotion quota.

2. The undisputed facts are that appointment to the post of ETO under the J & K Excise & Taxation (Gazetted) Recruitment Rules, 1977 (for short the ‘Excise Rules’) is made from two sources, promotion and direct recruitment. The appellants are the original writ petitioners. They are direct recruits who were appointed as ETOs on the basis of J & K Combined Competitive Examination. They were issued appointment letters on 23.07.2004. The private respondents are promotees who were promoted to the post of ETOs.

The J & K Public Service Commission proposed and cleared the names of the private respondents for promotion on 05.10.2004 and the private respondents were promoted as ETOs on the recommendation of the Public Service Commission on 06.12.2004. It is not disputed that the direct recruits and promotees have been promoted within their quota and there is no violation of quota. However, the private respondents were given retrospective promotion/appointment in the cadre of ETOs on various dates between 01.05.2002 and 01.01.2004. Resultantly, they were deemed to have been appointed as ETOs prior to the appellants who were appointed on 23.07.2004. As such the private respondents were placed senior to the appellants.

3. A seniority list of ETOs was issued on 03.01.2006 in which the promotee/respondents were shown senior to the appellants. The appellants filed a writ petition before the J & K High Court challenging the grant of retrospective appointment to the private respondents. It was urged by the appellants that the private respondents were not even born in the cadre of ETOs when the appellants were appointed as ETOs on 23.07.2004. It was further averred that the private respondents, i.e., promotees had never worked as ETOs either on officiating or stop-gap basis and, in fact, the promotees had worked under the direct recruits for a few months before their promotion.

It was further submitted that the post of ETO was in a separate service being a gazetted service and, therefore, the service rendered in the lower post could not be equated with the service rendered in the higher post. The stand of the contesting respondents was that in terms of Rule 23 of the J & K Civil Service (CCA Rules), 1956 (hereinafter referred to as Civil Service Rules), seniority could be assigned to the promotees from the date the vacancy occurred in the quota of promotees. The learned Single Judge held that retrospective promotions could not be granted, and allowed the writ petition.

Two Letters Patent Appeals were filed which were disposed of by a common judgment of 06.03.2014 and the Division Bench held that in terms of Rules 23 and 24 of the Civil Service Rules the promotees were entitled to get retrospective promotion. The Division Bench placed reliance on the judgment of this Court in Suraj Prakash Gupta and Others vs. State of J & K and Others1 to come to the conclusion that promotees were entitled to promotion from a date anterior to their appointment. This judgment is under challenge in these appeals.

4. It may not be necessary to refer to the J & K Excise Rules in detail. Rule 9 of the Excise Rules provides that a person appointed to the service whether by direct recruitment or by selection shall be placed on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation will be made against substantive vacancies only. All other appointments will be on trial. It has been further provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is formally appointed to the service.

The explanation reads as under :-

“Explanation -Appointments on probation will be made against substantive vacancies only. All other appointments will be on trial; Provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is formally appointed to the service.”

Rule 13 of the Excise Rules provides that seniority of members of the service shall be regulated under the Civil Service Rules.

Rule 23 of the Civil Service Rules, reads as follows :-

“23. Appointments of members

(1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to the service at the earliest possible opportunity in order of seniority, and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed from the date of retrospective effect from such date or, as the case may be, from such subsequent date from which he was continuously on duty as a member of the service.

(2) Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion, the provision of sub rule (1) shall apply separately as regards :

(a) vacancies against which person have recruited direct; and

(b) other vacancies.

(3) No probationer shall be required to produce a medical certificate of physical fitness before appointment as member of service: Provided that in case of a probationer who is not a member of any other service, the appointing authority may, if it has reason to believe that the probationers physical fitness has seriously deteriorated since he satisfied the authority under clause (c) of rule 17 require him to undergo a fresh medical examination. If on such examination he is found to be physically unfit for the service for which he was selected the appointing authority shall discharge him from the service.

(4) No person shall at the same time be a member of more than one service.” Rule 24 lays down that seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be and reads as follows :-

“24. Seniority –

(1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class category or grade as the case may be.

Note:- The rule in this clause will not affect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.

Interpretation – The words ‘date of first appointment’ occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:

Provided that the inter se-seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different 8 dates by reason of being posted to different stations, be determined:

(a) In the case of those promoted by their relative seniority in the lower service, class, category or grade;

(b) In the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit ability and physical fitness etc. in case no such examination is held for the purpose of making selections;

(c) As between those promoted and recruited direct by order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the rules.” The interpretation of these Rules is the subject matter of this case.

5. The judgment in Suraj Prakash Gupta (supra) has been relied upon by both the sides and has been referred to by both the learned Single Judge and the Division Bench of the High Court. In this case also, Rule 23 and 24 of the Civil Services Rules were in consideration. Therefore, it is necessary to refer to this case in detail. The facts of Suraj Prakash Gupta (supra) case are that as per the then existing rules 20% of the posts of Assistant Engineers had to be filled by direct recruitment, 60% by promotion from Junior Engineers having degree in Engineering or equivalent qualification and 20% from diploma holders with 10 years’ service.

The Government of Jammu and Kashmir upgraded a large number of posts of Assistant Engineers and redesignated them as Assistant Executive Engineers. Therefore, a large number of promotions were made on ad hoc basis, initially for a period of six months. As per the rules, the stop gap/ad hoc arrangement could be made by the State only for six months without consulting the Commission and if such arrangement was to continue beyond six months, it was necessary to consult the Commission. The State, in violation of the rules, continued the ad hoc promotions for a long time. Direct recruitment to the post of A.E. prior to 1997 was done in the year 1984.

Thereafter, no direct recruitment was done. As a result, the promotees worked on ad hoc basis against a large number of higher posts in excess of their quota. The State after a gap of almost 4 years made a reference to the Commission to fill up 10% of the posts by direct recruitment [as against 20% provided in the rules]. The Commission issued advertisements in this regard on 03.12.1987. The finally selected direct recruits applied for the posts and appeared in the test. However, the Commission did not make any recommendations for almost 4 years.

Thereafter, the candidates who were successful in the written test were interviewed during 1993-94 and the list of selected candidates of 10% of the posts was sent by the Commission to the State Government. Even then, the appointments were not made and some persons had to approach the High Court of Jammu and Kashmir, which gave directions on 22.02.1994. It was only after issuance of such directions that some of the direct recruits were offered appointment on different dates in the year 1994 and some direct recruits were offered appointment much later. The direct recruits filed writ petitions challenging the ad hoc promotion of Assistant Engineers, made by the Government without consulting the Commission and continued for a period of six months.

According to the direct recruits, the service rendered by the promotees became non11 est and void and could not be recognised. They sought quashing of the seniority list and also contended that the seniority was in breach of the quota. The promotee officers filed writ petitions and contended that they should be granted promotion from the date when they were working irrespective of the quota. The J & K Government constituted a high level committee to look into the matter and the committee recommended that the seniority of both the direct recruits and the promotees were to be granted by placing them in the vacancies reserved for them in their respective quotas.

The committee also recommended that the ad hoc stop-gap appointees, who had continued in violation of the rules, could not be granted any benefit. Despite this recommendation of the committee, the State Government in relaxation of the rules, regularised the promotees from anterior dates. The direct recruits challenged this order. The High Court held that the appointment could not be made to the promotional posts without consulting the Commission. The High Court also held that the promotees whose promotions were in excess of the quota had to be pushed down and those promotees had to be fitted in the subsequent vacancies in their quota in the later years.

The High Court also held that the ad hoc appointment can only be made initially for 6 months and where the ad hoc service had continued beyond this period without consultation with the Commission, the promotees were not entitled to seniority. It was held that an ad hoc promotee could not be treated to be a member of the service. The High Court also held that according to rule 24 of the Civil Service Rules, the seniority will have to be reckoned from the first appointment and, therefore, the order of the Government regularising ad hoc promotions was illegal and was accordingly set aside.

6. Thereafter, the matter came to this Court and this Court framed 4 issues. We are concerned with issue nos. 3 and 4, which read as under:

“……. (3) Whether the ad hoc/stopgap promotion of Assistant Engineers (and Assistant Executive Engineers) could be made beyond six months and till regularization, by the Government without consulting the Public Service Commission?

Whether the Government could have regularized the ad hoc service by executive order dated 2.1.1998?

Whether the direct recruits’ contention that retrospective regularization could not be made in respect of the ad hoc/ stopgap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was “in accordance with rules”, was correct?

(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter? …….”

Dealing with Rule 23, this Court held as follows :-

“52. Under Rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the service with retrospective effect from such date from which the person was “continuously on duty as a member of the service”. Read with Rule 2(e) which defines ‘member of service’ it means the time from which he was “continuously holding the pensionable post”. Rule 23 does not make any distinction between different modes of recruitment.

It is well settled that in the case of a direct recruit, the probation can commence only from a date after his selection and he can hold a permanent vacancy only after such selection. According to service jurisprudence (see in fact, discussion under Point 4), a direct recruit cannot claim appointment from a date much before his selection. So far as a promotee and also one who is recruited by transfer, are concerned, before such persons are appointed as members of the service under Rule 23, first 14 their probation must commence.

Then such person becomes a probationer for purposes of Rule 23. Once he is on probation, and if a substantive vacancy in the permanent cadre existed in which the promotee or a recruitee by transfer can be accommodated, and if such a vacancy has arisen from a date previous to the issue of the order of appointment (i.e. appointment by promotion or transfer) then under Rule 23 he may be appointed to the service (i.e. regularly) with retrospective effect from such anterior date (or, as the case may be, from such subsequent date) from which (he has been continuing on duty on a non-pensionable post (see 2(e) defining ‘member of service’].

This period can certainly be one that a person holds in a stop gap or ad hoc manner. The order of ‘promoting a person in the service’ regularly from an anterior date and the order of probation from an anterior date can be simultaneously passed. That is how under Rule 23, a person holding a temporary, stopgap or ad hoc appointment beyond three months can become a probationer and get appointed regularly to the service with retrospective effect.

xxx xxx xxx

56. It is true that while Rule 15 permits probation to be commenced from an anterior date in the case of one “appointed” temporarily there is no such clause in rule 25 dealing with “promotions”. That does not, in our opinion, mean that in respect of a person temporarily promoted or a person temporarily appointed by transfer, probation cannot be commenced from an anterior date. In our view, this power is implicit in Rule 23 itself when it speaks of a probationer being appointed as a member of a service with retrospective effect.

Once a promotee or recruitee by transfer is appointed on probation, it is permissible to appoint him under Rule 23 as a member of the service from an anterior date when a substantive vacancy existed in his quota. It is then obvious that such power to make a retrospective appointment of a member implies a power to commence probation of such person from an anterior date when a clear vacancy existed in his quota. We cannot imagine that the rulemaking authority did not visualize delays in regularization of ad hoc or stopgap or temporary service rendered by the promotees or those recruited by transfer and kept in mind delay only in cases of appointments under Rule 14.

57. Thus, the stopgap/ad hoc or temporary service of a person appointed by transfer as an Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularized through PSC/DPC from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and his seniority will count from that date.”

7. Since judgment in Suraj Prakash Gupta’s case (supra) deals with very same Rules which fall for consideration in the present case, it is relevant for decision of our case. There is however, one marked difference between this case and the case of Suraj Prakash Gupta (supra). In Suraj Prakash Gupta (supra) all the promotees had actually worked in the higher posts and the challenge was that they could not get the benefit of the higher posts since they had not worked as per the rules. In the present case, the promotees have not worked even for a day in the higher post before being regularly promoted. In the present case, the learned Single Judge relied upon this judgment to hold that the promotees could not get benefit of anterior appointment under Rule 23.

The Division Bench held otherwise. The difference of opinion is only because of one factor. According to the learned Single Judge, the promotees should have actually worked either on ad hoc basis or officiating basis on the promotional post, whereas according to the Division Bench, regardless of the fact whether the employee had actually worked on the promotional post or not, he is entitled to claim promotion from the date the vacancy arises in the promotional cadre, as long as he was working on a pensionable post and is a member of the service.

8. At this stage, it would be pertinent to mention that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not born in the cadre. Seniority has to be reckoned only from the date the person entered into that service. In this behalf reference may be made to the judgment of this Court in State of Bihar Vs. Akhouri Sachindra Nath & Ors. where this Court held as follows :-

“12. …..It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into service…..” Thereafter, in Kaushal Kishore Singh vs. Dy. Director of Education3 this Court held as follows :-

“5. The claim of seniority of the employee is always determined in any particular grade or cadre and it is not the law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre……” In State of Uttaranchal vs. Dinesh Kr. Sharma4 this Court held as follows :-

“34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent’s contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik vs. State of Orissa.” This principle was followed in Sheikh Abdul Rashid & Ors. vs. State of J & K & Ors. again dealing with J & K Civil Service Rules. Again in State of Uttar Pradesh and Others vs. Ashok Kumar Srivastava and Another this Court held that the normal rule is that seniority should be reckoned from the actual date of appointment.

It was held thus:-

“25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do.”

9. The respondents have relied upon two judgments in U.D. Lama and Others vs. State of Sikkim and Others7 and Asis Kumar Samanta and Others vs. State of West Bengal and Others8. In both the cases this Court upheld the grant of promotion from a retrospective date. The facts in U.D. Lama and Others case (supra) are very peculiar.

The State of Sikkim was formed on 26th April, 1975. The Sikkim State Civil Service Rules, 1977 came into force on 01.07.1977 which provided for consultation with the State Public Service Commission. Surprisingly however, there was no Public Service Commission in the State and Chairman to the Public Service Commission was appointed for the first time on 20th November, 1981 and he assumed office on 11.01.1982. Prior to the constitution of the Commission, the State Government took a decision to induct officers into the State Public Service on the basis of a written examination and interview. Certain officers were selected and so appointed. The second set of officers were those who had been selected by the Sikkim Public Service Commission.

The first set of officers were appointed in 1982 whereas the second set of officers were appointed in 1990 but the officers who were appointed in 1990 were given retrospective appointment from the date of vacancy. This Court held that the appointment of the first batch of officers though upheld by this Court in another case, having been made without consultation with the Commission, these officers appointed in violation of the Rules cannot claim seniority over those who had been appointed strictly in accordance with the Rules and in consultation with the Commission. In Asis Kumar Samanta and Others case (supra) also the situation was very unusual.

Vacancies in the promotion quota occurred in 01.01.1989 but the promotions could not be made because of interim stay granted by the High Court. The stay order was vacated on 11.12.1990 and the selection process for promotions commenced only thereafter. In these circumstances the Public Service Commission recommended that the promotees be given retrospective seniority with effect from 31.12.1990 because for almost two years the promotion process had been stalled. It would be pertinent to mention that in both these cases normal principle that seniority should be considered from the date of appointment has not been overruled but these judgments have been rendered in the peculiar facts and circumstances of these cases.

10. On behalf of the private respondents-promotees, it was urged that the promotees had passed the departmental exam many years back and became eligible to be promoted much earlier. It is submitted that in view of these peculiar facts, the State was justified in granting permission to the promotees retrospectively. We are not impressed with these arguments because even the direct recruitment process took an inordinately long time. The vacancies in the quota of direct recruits also occurred much earlier. The combined competitive examination was held in the year 2002 and it took more than 2 years to finalise the process of direct recruitment. Therefore, the delay has affected both the promotees and the direct recruits.

11. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes “in service” candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules.

12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.

13. In Suraj Prakash Gupta’s case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years.

The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person 24 is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.

14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12.

Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.

15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.

16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the 26 service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority.

Note-1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.

17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.

18. The Division Bench relied upon the definition of the ‘member of service’ as defined in Section 2(e) of the Civil Service Rules, according to which the ‘member of service’ is a person who holds a pensionable post. According to the Division Bench, since the promotees were working against pensionable posts in the feeder category they were members of the Service and thus they satisfied the conditions of Rule 23. We cannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs.

The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules.

19. In view of the above discussion we set aside the judgment of the Division Bench dated 06.03.2014 and restore the judgment of the learned Single Judge dated 07.05.2013 in S.W.P. No.2356 of 2009. 20. The appeals are accordingly allowed.

………………………………J. (Madan B. Lokur)

………………………………J. (Deepak Gupta)

New Delhi

October 26, 2017

State of Punjab Versus Davinder Pal Singh Bhullar and Others[SC 2011] murder

Keywords-                                                                                                                                    [2]

Criminal Law-min

whether the High Court can pass an order on an application entertained after final disposal of the criminal appeal or even suo motu particularly, in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter called Code of Criminal Procedure.) and as to whether in exercise of its inherent jurisdiction under Section 482 Code of Criminal Procedure. the High Court can ask a particular investigating agency to investigate a case following a particular procedure through an exceptionally unusual method which is not in consonance with the statutory provisions of Code of Criminal Procedure.

160621 : (2011) 13 SCALE 394

(SUPREME COURT OF INDIA)
State of Punjab
Appellant

Versus

Davinder Pal Singh Bhullar and Others
Respondent

(Before : B.S. Chauhan and A.K. Patnaik, JJ.)

Criminal Appeal Nos. 753-755 of 2009 : Decided On: 07-12-2011

Criminal Procedure Code, 1973—Sections 362 and 482—Penal Code, 1860—Sections 302, 307, 323, 437 and 120B—Explosive Substances Act, 1908—Sections 3 and 4.

Counsel for the Parties:

Ram Jethmalani, Ranjit Kumar, Sr. Advs., R.S. Khosla, Sr. AAG, K.K. Khanna, AAG, Aprajita Singh, Meenakshi Grover, Saurabh Ajay Gupta, Pranav Dish, Karan Kalia, A.S. Virk, Kuldip Singh, J.K. Sud, A.K. Mehtra and Manoj Prasad, Advs.

P.P. Malhotra, ASG, K.N. Balgopal, Colin Gonsalves, Sr. Advs., G.K. Bharti, A.P. Mukundan, Nitya Nambiar, T. Koza, Rajesh Dhawan, Madhumita Bora, Balaji Srinivasan, Jayshree Satpute, Jyoti Mendiratta, Navkiran Singh, P.K. Dey, Shamsudin Khan, A.K. Sharma, Daobia, S.S. Rawat, B. Krishna Prasad, Kamini Jaiswal, Sanjay Jain and Jaspreet Gogia, Advs.

JUDGMENT

B.S. Chauhan, J—Leave granted in the Special Leave Petitions filed by Shri Sumedh Singh Saini.

2. These appeals have been preferred against the orders dated 30.5.2007, 22.8.2007, 5.10.2007 and 4.7.2008 in Crl. Misc. No. 152-MA of 2007; order dated 19.9.2007 in Crl. Misc. No. 86286 of 2007 in Crl. Misc. No. 152-MA of 2007; and orders dated 2.11.2007 and 6.11.2007 in Crl. Misc. No. 93535 of 2007 in Crl. Misc. No. 152-MA of 2007 passed by the High Court of Punjab and Haryana at Chandigarh. For the sake of convenience of disposal of the appeals, we would refer only to the criminal appeals filed by the State.

3. The Appeals herein raise peculiar substantial questions of law as to whether the High Court can pass an order on an application entertained after final disposal of the criminal appeal or even suo motu particularly, in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter called Code of Criminal Procedure.) and as to whether in exercise of its inherent jurisdiction under Section 482 Code of Criminal Procedure. the High Court can ask a particular investigating agency to investigate a case following a particular procedure through an exceptionally unusual method which is not in consonance with the statutory provisions of Code of Criminal Procedure.

4. FACTS:

(A) An FIR No. 334/91 under Sections 302, 307, 323, 437 and 120B of the Indian Penal Code, 1860 (hereinafter called the ‘Indian Penal Code’) and Sections 3 and 4 of Explosive Substances Act, 1908 was registered at Police Station, Sector 17, Chandigarh. In connection with an FIR dated 13.12.1991, one Balwant Singh Multani was arrested in a case in respect of the FIR No. 440 registered under Sections 212 and 216 Indian Penal Code, Sections 25/54/69 of Arms Act 1959, and Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called as ‘TADA Act’) at Police Station, Sector-17, Chandigarh. On 19.12.1991, the said accused Balwant Singh Multani escaped from the custody of the police from Police Station Qadian (Punjab) for which FIR No. 112 dated 19.12.1991 under Sections 223 and 224 Indian Penal Code was registered at Police Station Qadian (Punjab). Shri Darshan Singh Multani, father of Balwant Singh Multani filed Criminal Writ Petition No. 1188 of 1991 before the High Court of Punjab and Haryana under Article 226 of the Constitution of India, 1950, (hereinafter called ‘Constitution’), for production of the said accused Balwant Singh Multani. The State Government filed a reply to the same, explaining that the said accused had escaped from police custody and after considering the case, the High Court dismissed the Habeas Corpus Petition. After completion of the investigation in respect of FIR No. 112 of 1991 regarding the escape of Balwant Singh Multani, a challan was filed before the competent court wherein he was declared a proclaimed offender vide order dated 12.5.1993. After completion of the investigation in FIR No. 334 of 1991 dated 29.8.1991, the Police chargesheeted eight persons. The charge sheet revealed that an attempt was made by terrorists on the life of the then SSP, Chandigarh, by using explosives. In a thunderous explosion that followed, the Ambassador Car of the SSP, Chandigarh, was blown high into the air where after it fell down ahead at some distance completely shattered. HC Amin Chand, the driver of the car and ASI Lalu Ram, PSO, died on the spot. ASI Ramesh Lal, PSO, and CRPF jawans in the Escort vehicle were grievously injured. The bomb explosion was carried out by the terrorists from a parked car in order to kill the SSP, UT, Chandigarh, and other police personnel and this explosion was conducted with explosives operated with a remote control, because of which, two police personnel died on the spot and many others were grievously injured. Three of the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan and Gursharan Kaur Maan were subjected to trial. The other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant Singh were not traceable. They were declared proclaimed offenders.

(B) On conclusion of the trial, the Court vide judgment and order dated 1.12.2006 acquitted the three accused giving them benefit of doubt.

(C) Aggrieved, the State (U.T., Chandigarh) preferred Criminal Miscellaneous No. 152-MA of 2007 before the High Court challenging the said acquittal. However, the appeal was dismissed vide judgment and order dated 11.5.2007.

(D) After 20 days of the disposal of the said Crl. Misc. No. 152-MA of 2007, i.e., appeal against acquittal, the High Court again took up the case suo motu on 30.5.2007 and directed the authorities to furnish full details of the proclaimed offenders in respect of the FIR No. 334/91 dated 29.8.1991 and the Bench marked the matter ‘Part Heard’.

(E) Shri Dinesh Bhatt, SSP, Chandigarh submitted an affidavit dated 4.8.2007, giving information regarding all the proclaimed offenders in that case. One of them was Davinder Pal Singh Bhullar, who had initially been declared as a proclaimed offender in the said case on 2.3.1993. However, he had subsequently been arrested in a case relating to FIR No. 316 of 1993, Police Station, Parliament Street, Delhi and FIR No. 150 of 1993, Police Station, Srinivas Puri, New Delhi and had been sentenced to death in a case in which an assassination attempt was made on the life of Shri M.S. Bitta, the then President, All India Youth Congress, in which several persons were killed and Shri Bitta’s legs were amputated. It was also mentioned therein that Balwant Singh Multani escaped from police custody and his whereabouts were not known. One proclaimed offender, Navneet Singh had been killed in a police encounter in Rajasthan on 26.2.1995.

(F) After considering the said affidavit filed by Shri Dinesh Bhatt, SSP, the High Court vide order dated 22.8.2007 directed the Chandigarh Administration to constitute a Special Investigation Team to enquire into all aspects of the proclaimed offenders and submit a status report. The High Court also issued notice to the Central Bureau of Investigation (hereinafter called the ‘CBI’).

(G) It was during the pendency of these proceedings that Shri Darshan Singh Multani, father of Balwant Singh Multani, whose habeas corpus writ petition had already been dismissed by the High Court in the year 1991, approached the Court by filing a miscellaneous application on 16.9.2007, for issuance of directions to find out the where about of his son Balwant Singh Multani.

(H) In response to the show cause notice dated 22.8.2007, the CBI submitted its reply on 3.10.2007 requesting the High Court not to handover the enquiry to the CBI, as it was already overburdened with the investigation of cases referred to it by various courts; suffered from a shortage of manpower and resources; and the case did not have any inter-state ramifications.

(I) The High Court vide order dated 19.9.2007 took note of the fact that Manmohan Jit Singh, an employee of IBM, was reported by the US Department of Justice, Federal Bureau of Investigation, to be one of the proclaimed offenders. In view thereof, an affidavit was filed by Chandigarh Administration dated 5.10.2007 submitting that the proclaimed offender Manmohan Jit Singh had left for abroad.

(J) However, the High Court vide order dated 5.10.2007, directed the CBI to investigate the allegations of Darshan Singh Multani regarding his missing son and further directed the CBI not to disclose the identity of any of the witnesses to anyone except the High Court and to code the names of witnesses as witness A, B and C and further to submit periodical status reports. The order further reads:

However, Shri Sumedh Singh Saini, Director, Vigilance Bureau, Punjab, who at that time, i.e., on 11.2.1991 was posted as Senior Supdt. of Police was at helm of affairs of Chandigarh Police and was serving as the Sr. Supdt. of Police, UT. As of date, he is holding a very important post and is in a position to influence the investigating officer if it is handed over to the Punjab Police or even for that matter to the Chandigarh Police.

(K) In the same matter, the Bench entertained another Criminal Miscellaneous Application on 30.10.2007 filed by Davinder Pal Singh Bhullar, (a convict in another case and lodged in Tihar Jail) regarding allegations that his father Shri Balwant Singh Bhullar and maternal uncle Shri Manjit Singh had been abducted in the year 1991. The High Court vide order dated 6.11.2007 directed the CBI to investigate the allegations made in the complaint filed by Davinder Pal Singh Bhullar and further to get his statement recorded under Section 164 Code of Criminal Procedure., so that the witness may not resile under duress or be won over by any kind of inducement. An order was passed rejecting the submission made on behalf of the CBI that the alleged kidnapping of Shri Balwant Singh Bhullar and Shri Manjit Singh had no connection with the said case arising out of FIR No. 334 dated 29.8.1991.

(L) The CBI after making a preliminary investigation/enquiry on the application, registered an FIR on 2.7.2008 under Sections 120B, 364, 343, 330, 167 and 193 Indian Penal Code against Shri S.S. Saini, the then SSP, UT, Chandigarh, Shri Baldev Singh Saini, the then DSP, UT, Chandigarh, Shri Harsahay Sharma, the then SI, P.S. Central, Chandigarh, Shri Jagir Singh, the then SI, P.S. Central, Chandigarh and other unknown police officials of UT Police, Chandigarh, and P.S. Qadian. The CBI further submitted a status report on 4.7.2008 and after considering the same, the High Court issued further directions to complete the investigation within the stipulated period and submit a further report.

5. The State of Punjab, being aggrieved, approached this Court submitting that it has to espouse the cause of its officers who fought war against terrorism, putting themselves at risk during the troublesome period in the early 1990s. That Shri S.S. Saini, SSP, has been one of the most decorated officers of the State having outstanding entries in his Service Book. He is an honest and hardworking officer and has taken drastic steps to curb terrorism in the State in early 1990s. The terrorists had planned a diabolical act and an attempt was made on his life, wherein his three bodyguards were killed and three others were seriously injured. The officer himself suffered grievous injuries. The terrorists had also even chased him up to England when he went there for a social visit. They had planned to attack the said officer. They were arrested by the police and put to trial and also stood convicted. A sentence of four years had been imposed. These appeals have been filed on various grounds, including: the judicial bias of the Judge presiding over the Bench by making specific allegations that the officer named in the order i.e. Shri S.S. Saini had conducted an enquiry against the Presiding Judge (hereinafter called ‘Mr. Justice X’) on the direction of the Chief Justice of Punjab and Haryana High Court and, thus, the said Judge ought not to have proceeded with the matter, rather should have recused himself from the case. More so, as the judgment in appeal against acquittal had been passed by the Court on 11.5.2007 upholding the judgment of acquittal, the Court has become functus officio and it had no competence to reopen the case vide order dated 30.5.2007.

6. This Court vide order dated 11.7.2008 stayed the investigation until further orders.

7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit Kumar, learned senior counsel appearing for the Appellants, have submitted that once the judgment in appeal against acquittal has been rendered by the High Court on 11.5.2007, in view of the complete embargo of the provisions of Section 362 Code of Criminal Procedure., the Court having become functus officio was not competent to reopen the case and, thus, proceedings subsequent to 11.5.2007 are a nullity for want of competence/jurisdiction. More so, the proceedings that continued after the said judgment, by illegally reopening the case, were a result of judicial bias of Mr. Justice X, which was just to take revenge against Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and thus, all such proceedings are liable to be quashed. None of the parties had ever named Mr. S.S. Saini in connection with any of the cases. It was Mr. Justice X, who, on his personal knowledge, mentioned his name in court order dated 5.10.2007. Such a course is not permissible in law. More so, so far as Balwant Singh Multani’s case is concerned, his father Darshan Singh Multani (at the relevant time an officer of Indian Administrative Service) had approached the High Court for the same relief and the case stood dismissed in the year 1991 and he had not taken up the matter any further. Thus, the proceedings attained finality. Application of Mr. Multani could not have been entertained after the expiry of 16 years. The same position existed in respect of the application filed by Davinder Pal Singh Bhullar (who had been convicted and awarded a death sentence in another case and the same stood confirmed by this Court) in respect of abduction of his father Balwant Singh Bhullar and uncle Manjit Singh in the year 1991 without furnishing any explanation for delay of 16 years. More so, Mrs. Jagir Kaur, sister of Balwant Singh Bhullar, had filed Crl. W.P. No. 1062 of 1997 for production of Balwant Singh Bhullar, which stood dismissed vide order dated 15.7.1997 only on the ground of delay. A second writ petition for habeas corpus is not maintainable and is barred by the principles of res judicata. The CBI submitted that investigation of the said alleged abduction be not tagged with that of the involvement of the officer and disappearance of Balwant Singh Multani, as both the incidents were separate and independent and had no connection with each other. The High Court after taking note of the said submissions in its order dated 6.11.2007 illegally clubbed both the said applications. The applications filed by Davinder Pal Singh Bhullar and Darshan Singh Multani could not be filed/entertained in the disposed of criminal appeal. Had the said applications been filed independently, the same could be rejected as being filed at a much belated stage. Even otherwise, the said applications could have gone to a different Bench. Thus, by entertaining those applications in a disposed of criminal appeal, the Bench presided over by Mr. Justice X violated the roster fixed by the Chief Justice. Thus, the proceedings are liable to be quashed.

8. On the other hand, S/Shri K.N. Balgopal and Colin Gonsalves, learned senior counsel appearing for Respondents – private parties and Shri P.K. Dey, Learned Counsel appearing for the CBI, have submitted that in order to do complete justice in the case, the High Court has exercised its power under Section 482 Code of Criminal Procedure., no interference is required by this Court on such technical grounds. The provisions of Section 362 Code of Criminal Procedure. are not to be construed in a rigid and technical manner as it would defeat the ends of justice. The two-fold aim of criminal justice is that ‘guilt shall not escape nor innocence suffer.’ Allegations made against the Presiding Judge are scandalous and false and do not require any consideration whatsoever. The name of Mr. S.S. Saini, SSP stood mentioned in the record of the case before the Bench. The charge sheet filed after investigation of allegations in the FIR dated 19.8.1991 and in the judgment of the Trial Court dated 1.12.2006 speak that the attack was made on him. It is wrong that his name has been added by the Presiding Judge in the Bench for his personal revenge on his personal knowledge. So far as names of two proclaimed offenders, who had been killed in an encounter are concerned, it has been mentioned in the charge sheet itself that Navneet Singh and Gurjant Singh, proclaimed offenders, had been killed in encounters. However, such fact could not be brought to the notice of the High Court by the public prosecutor. The State of Punjab filed an application for intervention but did not raise any issue of bias or prejudice against the Presiding Judge of the Bench. The Union Territory of Chandigarh has approached this Court against the same impugned judgment and order and special leave petition has been dismissed in limine. More so, after conducting a preliminary enquiry, the CBI has registered a First Information Report (hereinafter called the ‘FIR’) on 2.7.2008 which should not be quashed. The CBI be permitted to investigate the cases. Thus, the appeals are liable to be dismissed.

9. We have considered the rival submissions made by Learned Counsel for the parties and perused the record.

LEGAL ISSUES:

I. JUDICIAL BIAS

10. There may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy.

11. In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting:

If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions ”. Much harm is done by the myth that, merely by”. taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.

(In re: Linahan 138 F. 2nd 650 (1943))

(See also: State of West Bengal and Ors. v. Shivananda Pathak and Ors., AIR 1998 SC 2050).

12. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak 343 US 451 (1952) 466: The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.

13. In Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. and Ors., (1994) 6 SCC 19, this Court observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice. The Court held as under:

Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as ‘sua causa’, whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

14. The principle in these cases is derived from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar and Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy Mudaliar and Ors., AIR 1988 SC 2232).

The failure to adhere to this principle creates an apprehension of bias on the part of the Judge. The question is not whether the Judge is actually biased or, in fact, has really not decided the matter impartially, but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. (Vide: A.U. Kureshi v. High Court of Gujarat and Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State of U.P. and Ors., (2010) 10 SCC 539).

15. In Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Ors., AIR 1957 SC 425, this Court while dealing with the issue of bias held as under:

Actual proof of prejudice in such cases may make the Appellant’s case stronger but such proof is not necessary’. What is relevant is the reasonableness of the apprehension in that regard in the mind of the Appellant.

16. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the adjudicator was likely to be disposed to decide the matter only in a particular way. Public policy requires that there should be no doubt about the purity of the adjudication process/administration of justice. The Court has to proceed observing the minimal requirements of natural justice, i.e., the Judge has to act fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality, is a nullity and the trial ‘coram non judice’. Therefore, the consequential order, if any, is liable to be quashed. (Vide: Vassiliades v. Vassiliades AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; and Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386).

17. In Rupa Ashok Hurra v. Ashok Hurra and Anr., (2002) 4 SCC 388, this Court observed that public confidence in the judiciary is said to be the basic criterion of judging the justice delivery system. If any act or action, even if it is a passive one, erodes or is even likely to erode the ethics of judiciary, the matter needs a further look. In the event, there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice ‘ the same being the true effect of the doctrine of ex debito justitiae. It is enough if there is a ground of an appearance of bias.

While deciding the said case, this Court placed reliance upon the judgment of the House of Lords in Ex Parte Pinochet Ugarte (No. 2) 1999 All ER 577, in which the House of Lords on 25.11.1998, restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had links with Amnesty International (AI) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of the House of Lords on the ground of appearance of bias and not actual bias. On the principle of disqualification of a Judge to hear a matter on the ground of appearance of bias, it was pointed out:

An appeal to the House of Lords will only be reopened where a party though no fault of its own, has been subjected to an unfair procedure. A decision of the House of Lords will not be varied or rescinded merely because it is subsequently thought to be wrong.

18. In Locabail (UK) Ltd. v. Bayfield Properties Ltd. and Anr. (2000) 1 All ER 65, the House of Lords considered the issue of disqualification of a Judge on the ground of bias and held that in applying the real danger or possibility of bias test, it is often appropriate to inquire whether the Judge knew of the matter in question. To that end, a reviewing court may receive a written statement from the Judge. A Judge must recuse himself from a case before any objection is made or if the circumstances give rise to automatic disqualification or he feels personally embarrassed in hearing the case. If, in any other case, the Judge becomes aware of any matter which can arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. Where objection is then made, it will be as wrong for the Judge to yield to a tenuous or frivolous objection as it will be to ignore an objection of substance. However, if there is real ground for doubt, that doubt must be resolved in favour of recusal. Where, following appropriate disclosure by the Judge, a party raises no objection to the Judge hearing or continuing to hear a case, that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias.

19. In Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee (2011) 8 SCC 380, this Court has held that in India the courts have held that, to disqualify a person as a Judge, the test of real likelihood of bias, i.e., real danger is to be applied, considering whether a fair minded and informed person, apprised of all the facts, would have a serious apprehension of bias. In other words, the courts give effect to the maxim that ‘justice must not only be done but be seen to be done’, by examining not actual bias but real possibility of bias based on facts and materials.

The Court further held:

The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision- making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially.’

20. Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial ‘coram non-judice.

II. DOCTRINE of WAIVER:

21. In Manak Lal (Supra), this Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. ‘Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.

Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest.

(See: M/s. Pannalal Binjraj and Ors. v. Union of India and Ors., AIR 1957 SC 397; and Justice P.D. Dinakaran (Supra))

22. In M/s. Power Control Appliances and Ors. v. Sumeet Machines Pvt. Ltd., (1994) 2 SCC 448 this Court held as under:

Acquiescence is sitting by, when another is invading the rights. It is a course of conduct inconsistent with the claim… It implies positive acts; not merely silence or inaction such as involved in laches… The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the Defendant….

Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy and Company (P) Ltd. v. John P. Thomas, AIR 2002 SC 2057. Thus, the Court has to examine the facts and circumstances in an individual case.

23. Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish, AIR 1935 PC 79; Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan and Anr., AIR 1959 SC 149; Mademsetty Satyanarayana v. G. Yelloji Rao and Ors., AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh, AIR 1968 SC 933; Jaswantsingh Mathurasingh and Anr. v. Ahmedabad Municipal Corporation and Ors., (1992) 1 Suppl. SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062; and Krishna Bahadur v. Purna Theatre and Ors., AIR 2004 SC 4282).

24. This Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and Ors., AIR 1988 SC 233 considered the issue of waiver/acquiescence by the non-parties to the proceedings and held:

In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case….

There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights, by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.

25. Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias etc., surrenders to the authority of the Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party. Needless to say that question of waiver/acquiescence would arise in a case provided the person apprehending the bias/prejudice is a party to the case. The question of waiver would not arise against a person who is not a party to the case as such person has no opportunity to raise the issue of bias.

III. BAR TO REVIEW/ALTER- JUDGMENT

26. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Code of Criminal Procedure. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051)

Moreover, the prohibition contained in Section 362 Code of Criminal Procedure. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Code of Criminal Procedure. has no authority or jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).

27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Code of Criminal Procedure. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi, 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors., (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr., AIR 2011 SC 1232).

28. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and Ors., AIR 2009 SC 46).

29. In Smt. Sooraj Devi v. Pyare Lal and Anr., AIR 1981 SC 736, this Court held that the prohibition in Section 362 Code of Criminal Procedure. against the Court altering or reviewing its judgment, is subject to what is ‘otherwise provided by this Code or by any other law for the time being in force’. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Code of Criminal Procedure. and, therefore, the attempt to invoke that power can be of no avail.

30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

IV. Inherent Powers Under Section 482 Code of Criminal Procedure.

31. The inherent power under Section 482 Code of Criminal Procedure. is intended to prevent the abuse of the process of the Court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code of Criminal Procedure. If any consideration of the facts by way of review is not permissible under the Code of Criminal Procedure. and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there are no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362 Code of Criminal Procedure. (See: Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr. (1990) 2 SCC 437)

32. The inherent power of the court under Section 482 Code of Criminal Procedure. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the Code of Criminal Procedure. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide: Kurukshetra University and Anr. v. State of Haryana and Anr., AIR 1977 SC 2229; and State of W.B. and Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129).

33. The power under Section 482 Code of Criminal Procedure. cannot be resorted to if there is a specific provision in the Code of Criminal Procedure. for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the Code of Criminal Procedure. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the ‘ends of justice’ and ‘abuse of the process of the court’ have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim ‘quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest’. However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. (Vide: Lalit Mohan Mondal and Ors. v. Benoyendra Nath Chatterjee, AIR 1982 SC 785; Rameshchandra Nandlal Parikh v. State of Gujarat and Anr., AIR 2006 SC 915; Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and Anr., AIR 2006 SC 2872; Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., AIR 2008 SC 251; and Pankaj Kumar v. State of Maharashtra and Ors., AIR 2008 SC 3077).

34. The High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an Investigating Officer malafide or the matter is not investigated at all. Even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of process as provided for in the Code of Criminal Procedure. Another remedy available to such an aggrieved person may be to file a complaint under Section 200 Code of Criminal Procedure. and the court concerned will proceed as provided in Chapter XV of the Code of Criminal Procedure. (See: Gangadhar Janardan Mhatre v. State of Maharashtra and Ors., (2004) 7 SCC 768; and Divine Retreat Centre v. State of Kerala and Ors., AIR 2008 SC 1614).

35. The provisions of Section 482 Code of Criminal Procedure. closely resemble Section 151 of Code of Civil Procedure, 1908, (hereinafter called the `Code of Code of Civil Procedure’), and, therefore, the restrictions which are there to use the inherent powers under Section 151 Code of Civil Procedure are applicable in exercise of powers under Section 482 Code of Criminal Procedure. and one such restriction is that there exists no other provision of law by which the party aggrieved could have sought relief. (Vide: The Janata Dal v. H.S. Chowdhary and Ors., AIR 1993 SC 892).

36. In Divisional Forest Officer and Anr. v. G.V. Sudhakar Rao and Ors., AIR 1986 SC 328, this Court held that High Court was not competent under Section 482 Code of Criminal Procedure. to stay the operation of an order of confiscation under Section 44(IIA) of the Andhra Pradesh Forest Act as it is distinct from a trial before a court for the commission of an offence.

37. In Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296, explaining the scope of Section 482 Code of Criminal Procedure., this Court held:

The High Court cannot issue directions to investigate the case from a particular angle or by a particular agency.

(Emphasis added)

Thus, in case, the High Court in exercise of its inherent powers, issues directions contravening the statutory provisions laying down the procedure of investigation, it would be unwarranted in law.

38. In Rajan Kumar Machananda v. State of Karnataka, (1990) suppl. SCC 132, this Court examined a case as to whether the bar under Section 397(3) Code of Criminal Procedure. can be circumvented by invoking inherent jurisdiction under Section 482 Code of Criminal Procedure. by the High Court. The Court came to the conclusion that if such a course was permissible it would be possible that every application facing the bar of Section 397(3) Code of Criminal Procedure. would be labelled as one under Section 482 Code of Criminal Procedure. Thus, the statutory bar cannot be circumvented.

39. This Court has consistently emphasised that judges must enforce laws whatever they may be and decide the cases strictly in accordance with the law. ‘The laws are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice’. But the courts ‘are bound by the Penal Code and Code of Criminal Procedure’ by the very ‘oath’ of the office.

(See: Joseph Peter v. State of Goa, Daman and Diu AIR 1977 SC 1812).

40. It is evident from the above that inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice. However, powers can be used provided there is no prohibition for passing such an order under the provisions of Code of Criminal Procedure. and there is no provision under which the party can seek redressal of its grievance. Under the garb of exercising inherent powers, the Criminal Court cannot review its judgment. Such powers are analogous to the provisions of Section 151 Code of Civil Procedure and can be exercised only to do real and substantial justice. The rule of inherent powers has its source in the maxim ‘Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest’ which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The order cannot be passed by-passing the procedure prescribed by law. The court in exercise of its power under Section 482 Code of Criminal Procedure. cannot direct a particular agency to investigate the matter or to investigate a case from a particular angle or by a procedure not prescribed in Code of Criminal Procedure. Such powers should be exercised very sparingly to prevent abuse of process of any court. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

To inhere means that it forms a necessary part and belongs as an attribute in the nature of things. The High Court under Section 482 Code of Criminal Procedure. is crowned with a statutory power to exercise control over the administration of justice in criminal proceedings within its territorial jurisdiction. This is to ensure that proceedings undertaken under the Code of Criminal Procedure. are executed to secure the ends of justice. For this, the Legislature has empowered the High Court with an inherent authority which is repository under the Statute. The Legislature therefore clearly intended the existence of such power in the High Court to control proceedings initiated under the Code of Criminal Procedure. Conferment of such inherent power might be necessary to prevent the miscarriage of justice and to prevent any form of injustice. However, it is to be understood that it is neither divine nor limitless. It is not to generate unnecessary indulgence. The power is to protect the system of justice from being polluted during the administration of justice under the Code. The High Court can intervene where it finds the abuse of the process of any court which means, that wherever an attempt to secure something by abusing the process is located, the same can be rectified by invoking such power. There has to be a nexus and a direct co-relation to any existing proceeding, not foreclosed by any other form under the Code, to the subject matter for which such power is to be exercised.

Application under Section 482 Code of Criminal Procedure. lies before the High Court against an order passed by the court subordinate to it in a pending case/proceedings. Generally, such powers are used for quashing criminal proceedings in appropriate cases. Such an application does not lie to initiate criminal proceedings or set the criminal law in motion. Inherent jurisdiction can be exercised if the order of the Subordinate Court results in the abuse of the ‘process’ of the court and/or calls for interference to secure the ends of justice. The use of word ‘process’ implies that the proceedings are pending before the Subordinate Court. When reference is made to the phrase ‘to secure the ends of justice’, it is in fact in relation to the order passed by the Subordinate Court and it cannot be understood in a general connotation of the phrase. More so, while entertaining such application the proceedings should be pending in the Subordinate Court. In case it attained finality, the inherent powers cannot be exercised. Party aggrieved may approach the appellate/revisional forum. Inherent jurisdiction can be exercised if injustice done to a party, e.g., a clear mandatory provision of law is overlooked or where different accused in the same case are being treated differently by the Subordinate Court.

An inherent power is not an omnibus for opening a pandorabox, that too for issues that are foreign to the main context. The invoking of the power has to be for a purpose that is connected to a proceeding and not for sprouting an altogether new issue. A power cannot exceed its own authority beyond its own creation. It is not that a person is remediless. On the contrary, the constitutional remedy of writs are available. Here, the High Court enjoys wide powers of prerogative writs as compared to that under Section 482 Code of Criminal Procedure. To secure the corpus of an individual, remedy by way of habeas corpus is available. For that the High Court should not resort to inherent powers under Section 482 Code of Criminal Procedure. as the Legislature has conferred separate powers for the same. Needless to mention that Section 97 Code of Criminal Procedure. empowers Magistrates to order the search of a person wrongfully confined. It is something different that the same court exercising authority can, in relation to the same subject matter, invoke its writ jurisdiction as well. Nevertheless, the inherent powers are not to provide universal remedies. The power cannot be and should not be used to belittle its own existence. One cannot concede anarchy to an inherent power for that was never the wisdom of the Legislature. To confer un-briddled inherent power would itself be trenching upon the authority of the Legislature.

V. JURISDICTION of THE BENCH:

41. The court is ‘not to yield to spasmodic sentiments to vague and unregulated benevolence’. The court ‘is to exercise discretion informed by tradition, methodized by analogy, disciplined by system’. This Court in State of Rajasthan v. Prakash Chand and Ors., AIR 1998 SC 1344 observed as under:

Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions”It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we ‘suffer from self-inflicted mortal wounds’. We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable.

42. This Court in State of U.P. and Ors. v. Neeraj Chaubey and Ors., (2010) 10 SCC 320, had taken note of various judgments of this Court including State of Maharashtra v. Narayan Shamrao Puranik, AIR 1982 SC 1198; Inder Mani v. Matheshwari Prasad, (1996) 6 SCC 587; Prakash Chand (Supra); R. Rathinam v. State (2002) 2 SCC 391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, and came to the conclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in Sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible.

In Prakash Chand (Supra), this Court dealt with a case wherein the Chief Justice of Rajasthan High Court had withdrawn a part-heard matter from one Bench and directed it to be listed before another Bench. However, the earlier Bench still made certain observations. While dealing with the issue, this Court held that it was the exclusive prerogative of the Chief Justice to withdraw even a partheard matter from one Bench and to assign it to any other Bench. Therefore, the observations made by the Bench subsequent to withdrawal of the case from that Bench and disposal of the same by another Bench were not only unjustified and unwarranted but also without jurisdiction and made the Judge coram non-judice.

It is a settled legal proposition that no Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice.

It has rightly been pointed out by the Full Bench of Allahabad High Court in Sanjay Kumar Srivastava v. Acting Chief Justice 1996 AWC 644, that if the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they would like to hear and decide, the machinery of the court could have collapsed and judicial functioning of the court could have ceased by generation of internal strife on account of hankering for a particular jurisdiction or a particular case.

43. In view of the above, the legal regime, in this respect emerges to the effect that the Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non-judice.

VI. WHEN CBI ENQUIRY CAN BE DIRECTED:

44. In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr., AIR 2002 SC 2225, this Court placed reliance on its earlier judgment in Common Cause, A Registered Society v. Union of India and Ors., (1999) 6 SCC 667 and held that before directing CBI to investigate, the court must reach a conclusion on the basis of pleadings and material on record that a prima facie case is made out against the accused. The court cannot direct CBI to investigate as to whether a person committed an offence as alleged or not. The court cannot merely proceed on the basis of `ifs’ and `buts’ and think it appropriate that inquiry should be made by the CBI.

45. In Divine Retreat Centre (Supra), this Court held that the High Court could have passed a judicial order directing investigation against a person and his activities only after giving him an opportunity of being heard. It is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person in violation of principles of natural justice. A person against whom an inquiry is directed must have a reasonable opportunity of being heard as he is likely to be adversely affected by such order and, particularly, when such an order results in drastic consequence of affecting his reputation.

46. In D. Venkatasubramaniam and Ors. v. M.K. Mohan Krishnamachari and Anr., (2009) 10 SCC 488, this Court held that an order passed behind the back of a party is a nullity and liable to be set aside only on this score. Therefore, a person against whom an order is passed on the basis of a criminal petition filed against him, he should be impleaded as a Respondent being a necessary party.

47. This Court in Disha v. State of Gujarat and Ors. AIR 2011 SC 3168, after considering the various judgments of this Court, particularly, in Vineet Narain and Ors. v. Union of India and Anr., AIR 1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661; Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India, (2006) 6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat and Ors., AIR 2010 SC 3175; and Ashok Kumar Todi v. Kishwar Jahan and Ors., (2011) 3 SCC 758; held that the court can transfer the matter to the CBI or any other special agency only when it is satisfied that the accused is a very powerful and influential person or the State Authorities like high police officials are involved in the offence and the investigation has not been proceeded with in proper direction or the investigation had been conducted in a biased manner. In such a case, in order to do complete justice and having belief that it would lend credibility to the final outcome of the investigation, such directions may be issued.

48. Thus, in view of the above, it is evident that a constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused. However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard. CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities. The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible.

INSTANT CASES:

49. The present appeals are required to be decided in the light of the aforesaid settled legal propositions.

50. It is evident from the judgment and order dated 11.5.2007 that Criminal Misc. No. 152-MA of 2007 stood dismissed. The order sheet dated 30.5.2007 reveals that in spite of the disposal of the said criminal appeal it had been marked therein as ‘put up for further hearing’ and the order dated 30.5.2007 reveals the directions given to the Trial Court to furnish a detailed report as to the measures taken by it to bring the proclaimed offenders, namely Navneet Singh, Manjit Singh, Manmohan Singh, Gurjant Singh and Balwant Singh before the Court and the case was adjourned for 2nd July, 2007.

51. Two different orders are available on the record of this case. The aforesaid marking ‘put up for further hearing’ had been shown in the order sheet dated 11.5.2007, i.e., the date of disposal of criminal appeal against acquittal. While in another copy, it is not in the order sheet dated 11.5.2007 but on the order sheet dated 30.5.2007. In view of this confusion, this Court vide order dated 17.3.2011 has called for the original record. It appears from the original record that no such order had been passed on 11.5.2007. More so, there is nothing on record to show as under what circumstances the file was put up before the Court on 30.5.2007 as no order had ever been passed by the court in this regard.

The proceedings dated 10.7.2007, 25.7.2007, 31.7.2007, 6.8.2007 and 9.8.2007 show that the case has been adjourned for short dates. The order dated 5.9.2007 shows that the Bench headed by Mr. Justice X was furnished with full information regarding proclaimed offenders by the authorities. However, the case was adjourned for 19.9.2007. The order dated 19.9.2007 reveals that the Bench not only entertained the application filed by Darshan Singh Multani, IAS (Retd.), but also expressed its anguish that nothing could be done since the year 1993 by the Chandigarh Police to procure the presence of the proclaimed offenders. The Police by filing the replies had adopted the delaying tactics only to derail the process of the court without bringing the proclaimed offenders to justice. The application filed by the U.T., Chandigarh to file a reply to the application filed by Darshan Singh Multani was rejected. The CBI was further directed to investigate the case properly, as no worthwhile steps were being taken by the Chandigarh Police.

The order dated 5.10.2007 passed by the Bench shows that the CBI had been impleaded as Respondent in the petition suo motu by the court. The CBI submitted its reply to the Crl.Misc. Application No. 86287 of 2007 opposing the said application and further submitted that the matter be not entrusted to the CBI and petition be dismissed being devoid of any merit.

The order dated 6.11.2007 reveals that the Court enlarged the scope of investigation by the CBI by including investigations qua Balwant Singh Bhullar and Manjit Singh.

Relevant part of the order dated 4.7.2008 reads as under:

After going through the status report, it comes out that the encounter of Navneet Singh son of late Tirath Singh of Qadian was a genuine encounter with the Rajasthan police. We feel that there is no need to further investigate the matter in the case of Navneet Singh son of late Tirath Singh. In the case of Manjit Singh son of late Rattan Singh, no evidence is coming forth and the CBI is at liberty to drop the investigation of Manjit Singh son of late Rattan Singh, if it so desires.

Thus, it is clear that the Bench was aware of the fact that two proclaimed offenders had been killed in encounters. Thus, the CBI was given liberty not to further investigate the matter in case of Navneet Singh and Manjit Singh, if it so desired.

52. The record reveals that Davinder Pal Singh Bhullar was involved in M.S. Bitta’s assassination attempt and had absconded to Germany on a fake passport. He was arrested there and was extradited to India and arrested on 18.1.1995. He was tried for the said offence, convicted in the year 2001 and given the death sentence. It was confirmed by the High Court as well as by this Court and the review petition also stood rejected in January 2003. Ever since 2003, he remained silent regarding the investigation of the alleged disappearances of his father and uncle and suddenly woke up in the year 2007 when the Bench presided by Mr. Justice X started suo motu hearing various other matters after the disposal of the criminal appeal against acquittal. The Court was fully aware that another relative of Bhullar i.e. his father’s sister had filed a case before the High Court in the year 1997, for production of Balwant Singh Bhullar, the father of Davinder Pal Singh Bhullar above and not for his uncle Manjit Singh. The High Court had rejected the said petition vide order dated 15.7.1997 and the matter was not agitated further. Thus, it attained finality.

53. The application of the Punjab Government dated 19.5.2008 bearing Crl. Misc. No. 23084 of 2008 to get itself impleaded in the matter is still pending consideration, though order dated 23.5.2008 gives a different impression altogether.

54. Admittedly, the application for Leave to Appeal stood disposed of vide judgment and order dated 11.5.2007. The matter suddenly appeared before the Bench on 30.5.2007 and the Court directed the Police to furnish information regarding the proclaimed offenders and a detailed report as to the measures taken to procure the presence of the said proclaimed offenders, namely, Navneet Singh, Manjit Singh, Manmohan Singh, Gurjant Singh and Balwant Singh so that they may face trial. However, after hearing the matter on few dates, the Court vide order dated 5.10.2007 closed the chapter of proclaimed offenders observing as under:

Since the police of U.T. Chandigarh has now woken up, that the proclaimed offenders have to be brought to justice and are making efforts to procure their presence, we feel that there is no need for the Special Investigation Team (S.I.T.) The Inspector General of Police, Union Territory, Chandigarh had been directed by this Court vide order dated 5.9.2007 to set up a Special Investigation Team (S.I.T.) for this purpose. At this stage, now, there is no need for this Special Investigation Team. The Inspector General of Police, UT, Chandigarh is directed to disband the Special Investigation Team and proceed as per law in the normal course to procure the presence of the proclaimed offenders, who are allegedly in foreign countries.

(Emphasis added)

Therefore, it is evident that the court was very much anxious to know about the proclaimed offenders, however, after getting certain information, the Court stopped monitoring the progress in procuring the presence of any of those proclaimed offenders. By this time, the Court also came to know that applicant Darshan Singh Multani’s son had also been killed. Therefore, the chapter regarding the proclaimed offenders was closed. There was no occasion for the Court to proceed further with the matter and entertain the applications under Section 482 Code of Criminal Procedure., filed by Darshan Singh Multani and Davinder Pal Singh Bhullar. At this stage, the Court started probing regarding missing persons. The question does arise as to whether applications under Section 482 Code of Criminal Procedure. could be entertained in a disposed of appeal or could be heard by a Bench to which the roster has not been assigned by Hon’ble the Chief Justice.

In view of the law referred to hereinabove, the Bench was not competent to entertain the said applications and even if the same had been filed in the disposed of appeal, the court could have directed to place the said applications before the Bench dealing with similar petitions.

55. It is evident from the order dated 30.5.2007 that in spite of the fact that the appeal stood disposed of vide judgment and order dated 11.5.2007, there appears an order in the file: ‘put up for further hearing’. That means the matter is to be heard by the same Bench consisting of Judges ‘X’ and ‘A’. However, the matter was listed before another Bench on 2.7.2007 and the said Bench directed to list the matter before DB-IV after taking the appropriate order from the Chief Justice. In absence of the Chief Justice, the senior most Judge passed the order on 5.7.2007 to list the matter before the DB-IV. The matter remained with the Presiding Judge, though the other Judge changed most of the time, as is evident from the subsequent order sheets. Order sheet dated 30.5.2007 reveals that it was directed to put up the case for further hearing. Thus, it should have been heard by the Bench as it was on 30.5.2007.

56. In the counter affidavit filed by Davinder Pal Singh Bhullar, Respondent No. 1 before this Court, it has been stated as under:

W,X, YandZ That in reply to these grounds, it is submitted that the answering Respondent being behind the bars awaiting his death sentence moved an application through his counsel in the Hon’ble High Court, when he came to know from the news item published in the news paper regarding marking of CBI enquiry in the case of abduction of Balwant Singh Multani an Engineer, son of Mr. Darshan Singh Multani a retired IAS Officer, who was then a serving officer. When the answering Respondent found that Mr. Sumedh Singh Saini has now been taken to task by the Hon’ble Division Bench of Punjab and Haryana High Court, the answering Respondent also moved the Hon’ble High Court for seeking enquiry regarding the abduction and murder of his father and his maternal uncle who were abducted by the lawless police officials headed by Mr. Sumedh Singh Saini the then SSP of Chandigarh and the Hon’ble Bench extended the scope of the enquiry vide order dated 6.11.2007. So the delay is not worthy to be taken note of as the past record of the Mr. Sumedh Singh Saini which has been mentioned in preliminary submissions clearly shows that he was able to threaten and overawe an Hon’ble Punjab and Haryana High Court Judge in year 1995 and even though he has been charged by a court for abduction for murder of three individuals in year 1995, but the trial of the case is still pending in the year 2008. So throughout this period the manner in which Mr. Sumedh Singh Saini has been able to subvert judicial processes did not allow the Respondent to move a court of law and now when an Hon’ble Division Bench has shown courage to uphold the majesty of law, that the Respondent also gathered his courage to move the Hon’ble High Court, with the hope that at some time justice would prevail.

(Emphasis added)

57. So far as the issue in respect of the proclaimed complainants/offenders is concerned, the document was before the High Court to show that a letter had been sent by the U.S Department of Justice Federal Wing of Investigation to the CBI disclosing that Manmohan Jit Singh had died on December 2006. Thus, information in respect of one of the proclaimed offenders was with the court. The judgment of the Trial Court was before the High Court under challenge. Thus, the High Court could have taken note of the proclaimed offender and there was no new material that came before the High Court on the basis of which proceedings could be revived. The charge sheet in the Trial Court itself revealed that two persons had died. It appears that the State counsel also failed to bring these facts to the notice of the court.

58. The impugned order dated 5.10.2007 though gives an impression that the High Court was trying to procure the presence of the proclaimed offenders but, in fact, it was to target the police officers, who had conducted the inquiry against Mr. Justice X. The order reads that particular persons were eliminated in a false encounter by the police and it was to be ascertained as to who were the police officers responsible for it, so that they could be brought to justice.

59. There could be no justification for the Bench concerned to entertain applications filed under Section 482 Code of Criminal Procedure. as miscellaneous applications in a disposed of appeal. The law requires that the Bench could have passed an appropriate order to place those applications before the Bench hearing 482 Code of Criminal Procedure. petitions or place the matters before the Chief Justice for appropriate orders.

60. As the High Court after rejecting the applications for leave to appeal had passed several orders to procure the presence of the proclaimed offenders so that they could be brought to justice, neither the State of Punjab nor Mr. S.S. Saini could be held to be the persons aggrieved by such orders and therefore, there could be no question of raising any protest on their behalf for passing such orders even after disposal of the application for leave to appeal as such orders were rather in their favour. The Appellants became aggrieved only and only when the High Court entertained the applications filed under Section 482 Code of Criminal Procedure. for tracing out the whereabouts of certain persons allegedly missing for the past 20 years. Such orders did not have any connection with the incident in respect of which the application for leave to appeal had been entertained and rejected. An application for leave to appeal that has been dismissed against an order of acquittal cannot provide a platform for an investigation in a subject matter that is alien and not directly concerned with the subject matter of appeal.

Mr. K.N. Balgopal, learned Senior counsel appearing for the Respondents has submitted that the issue of bias must be agitated by a party concerned at the earliest and it is not permissible to raise it at such a belated stage. The legal proposition in this regard is clear that if a person has an opportunity to raise objections and fails to do so, it would amount to waiver on his part. However, such person can raise objections only if he is impleaded as a party-Respondent in the case and has an opportunity to raise an objection on the ground of bias. In the instant case, neither the State of Punjab nor Mr. S.S. Saini have been impleaded as Respondents. Thus, the question of waiver on the ground of bias by either of them does not arise.

61. Undoubtedly, in respect of such missing persons earlier habeas corpus petitions had been filed by the persons concerned in 1991 and 1997 which had been dealt with by the courts in accordance with law. The writ petition for habeas corpus filed by Mrs. Jagir Kaur in respect of Balwant Singh Bhullar had been dismissed in 1997 only on the ground of delay. We fail to understand how a fresh petition in respect of the same subject matter could be entertained after 10 years of dismissal of the said writ petition.

62. A second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata. The doctrine of res judicata may not apply in case a writ petition under Article 32 of the Constitution is filed before this Court after disposal of a habeas corpus writ petition under Article 226 of the Constitution by the High Court. However, it is not possible to re-approach the High Court for the same relief by filing a fresh writ petition for the reason that it would be difficult for the High Court to set aside the order made by another Bench of the same court. In case, a petition by issuing Writ of Habeas Corpus is dismissed by the High Court and Special Leave Petition against the same is also dismissed, a petition under Article 32 of the Constitution, seeking the same relief would not be maintainable.

(See: Ghulam Sarwar v. Union of India and Ors., AIR 1967 SC 1335; Nazul Ali Molla, etc. v. State of West Bengal, (1969) 3 SCC 698; Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2215; Har Swarup v. The General Manager, Central Railway and Ors., AIR 1975 SC 202; T.P. Moideen Koya v. Government of Kerala and Ors. AIR 2004 SC 4733; and K. Vidya Sagar v. State of Uttar Pradesh and Ors., AIR 2005 SC 2911).

63. There may be certain exceptions to the rule that a person was not aware of the correct facts while filing the first petition or the events have arisen subsequent to making of the first application. The Court must bear in mind that doctrine of res judicata is confined generally to civil action but inapplicable to illegal action and fundamentally lawless order. A subsequent petition of habeas corpus on fresh grounds which were not taken in the earlier petition for the same relief may be permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India and Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum and Anr., AIR 1974 SC 1917; and Sunil Dutt v. Union of India and Ors., AIR 1982 SC 53).

64. While dealing with a similar issue, this Court in Srikant v. District Magistrate, Bijapur and Ors., (2007) 1 SCC 486 observed as under:

Whether any new ground has been taken, has to be decided by the court dealing with the application and no hard-and-fast rule can be laid down in that regard. But one thing is clear, it is the substance and not the form which is relevant. If some surgical changes are made with the context, substance and essence remaining the same, it cannot be said that challenge is on new or fresh grounds.

65. Thus, in view of the above, the law in the issue emerges that a case is to be decided on its facts taking into consideration whether really new issues have been agitated or the facts raised in subsequent writ petition could not be known to the writ Petitioner while filing the earlier writ petition.

Be that as it may, the parties concerned had not filed fresh writ petitions, rather chosen, for reasons best known to them applications under Section 482 Code of Criminal Procedure., which could not have been entertained.

66. A large number of documents have been submitted to the court under sealed cover by the State of Punjab on the direction of this Court. We have gone through the said documents and suffice is to mention here that Shri Sumedh Singh Saini, IPS had conducted the enquiry in 2002 against Mr. Justice X on the direction of the Chief Justice of the Punjab and Haryana High Court on the alleged appointment of certain judicial/executive officers in Punjab through Shri Ravi Sandhu, Chairman of the Public Service Commission. Shri S.S. Saini had filed reports against Mr. Justice X. The Chief Justice of Punjab and Haryana High Court confronted Mr. Justice X with the said reports. On the basis of the said reports, the Chief Justice of the High Court submitted his report to the Chief Justice of India, on the basis of which a Committee to investigate the matter further was appointed. This Committee even examined one Superintendent of Police of the intelligence wing who had worked directly under Shri S.S. Saini while conducting the enquiry.

67. The High Court has adopted an unusual and unwarranted procedure, not known in law, while issuing certain directions. The court not only entertained the applications filed by Shri Davinder Pal Singh Bhullar and Darshan Singh Multani in a disposed of appeal but enlarged the scope of CBI investigation from proclaimed offenders to other missing persons. The court directed the CBI to treat affidavits handed over by the applicant Shri Bhullar who admittedly had inimical relation with Shri S.S. Saini, as statement of eye-witnesses. The court further directed the CBI to change the names of witnesses to witness (A), (B) or (C) and record their statements under Section 164 Code of Criminal Procedure. so that they could not resile at a later stage. We fail to understand how the court could direct the CBI to adopt such an unwarranted course.

68. The High Court accepted certain documents submitted by Shri R.S. Bains, advocate, as is evident from the order dated 22.8.2007 and it was made a part of the record though Shri Bains had not been a counsel engaged in the case nor he had been representing any of the parties in the case.

69. When the matter came up for hearing on 2.4.2008, in spite of the fact that the matter was heard throughout by a particular Division Bench, Mr. Justice X alone held the proceedings, and accepted the status report of the CBI sitting singly, as the proceedings reveal that the other Judge was not holding court on that day. The order sheet dated 2.4.2008 reads as under:

Status report, which has been presented by the CBI in Court in a sealed cover, is taken in custody.

Hon’ble Mr. Justice Harbans Lal, who has to hear the case along with me, as it is a part-heard case, is not holding court today.

To come up on 4.4.2008.

Sd/-

Judge

70. The FIR unquestionably is an inseparable corollary to the impugned orders which are a nullity. Therefore, the very birth of the FIR, which is a direct consequence of the impugned orders cannot have any lawful existence. The FIR itself is based on a preliminary enquiry which in turn is based on the affidavits submitted by the applicants who had filed the petitions under Section 482 Code of Criminal Procedure.

71. The order impugned has rightly been challenged to be a nullity at least on three grounds, namely, judicial bias; want of jurisdiction by virtue of application of the provisions of Section 362 Code of Criminal Procedure. coupled with the principles of constructive res judicata; and the Bench had not been assigned the roster to entertain petitions under Section 482 Code of Criminal Procedure. The entire judicial process appears to have been drowned to achieve a motivated result which we are unable to approve of.

72. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact-situation, the legal maxim ‘sublato fundamento cadit opus’ meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.

73. In Badrinath v. State of Tamil Nadu and Ors., AIR 2000 SC 3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam and Anr., (2001) 10 SCC 191, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally.

74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra (dead) by Lrs. and Ors., (2005) 3 SCC 422, this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside.

75. In C. Albert Morris v. K. Chandrasekaran and Ors., (2006) 1 SCC 228, this Court held that a right in law exists only and only when it has a lawful origin.

(See also: Upen Chandra Gogoi v. State of Assam and Ors., (1998) 3 SCC 381; Satchidananda Misra v. State of Orissa and Ors., (2004) 8 SCC 599; Regional Manager, SBI v. Rakesh Kumar Tewari, (2006) 1 SCC 530; and Ritesh Tewari and Anr. v. State of U.P. and Ors., AIR 2010 SC 3823).

76. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est.

77. The submission advanced on behalf of the Respondents that as the Special Leave Petition filed against the impugned judgment by some other party, stood dismissed by this Court, these matters also have to be dismissed at the threshold without entering into merit, is not worth acceptance.

The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra.

A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent.

The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties. No inference can be drawn that by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected. So it has no precedential value.

(See: The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and Anr., AIR 1978 SC 1283; Ahmedabad Manufacturing and Calico Printing Company Ltd. v. The Workmen and Anr., AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of Bihar and Ors. AIR 1986 SC 1780; Yogendra Narayan Chowdhury and Ors. v. Union of India and Ors. AIR 1996 SC 751; Union of India and Anr. v. Sher Singh and Ors., AIR 1997 SC 1796; M/s Sun Export Corporation, Bombay v. Collector of Customs, Bombay and Anr., AIR 1997 SC 2658; Kunhayammed and Ors. v. State of Kerala and Anr., AIR 2000 SC 2587; Saurashtra Oil Mills Association, Gujarat v. State of Gujarat and Anr., AIR 2002 SC 1130; Union of India and Ors. v. Jaipal Singh AIR 2004 SC 1005; and Delhi Development Authority v. Bhola Nath Sharma (dead) by L.Rs. and Ors., AIR 2011 SC 428).

CONCLUSIONS:

78. The error in the impugned orders of the High Court transgresses judicious discretion. The process adopted by the High Court led to greater injustice than securing the ends of justice. The path charted by the High Court inevitably reflects a biased approach. It was a misplaced sympathy for a cause that can be termed as being inconsistent to the legal framework. Law is an endless process of testing and retesting as said by Justice Cardozo in his conclusion of the Judicial Process, ending in a constant rejection of the dross and retention of whatever is pure and sound. The multi-dimensional defective legal process adopted by the court below cannot be justified on any rational legal principle. The High Court was swayed away by considerations that are legally impermissible and unsustainable.

79. In view of the above, the appeals succeed and are accordingly allowed. The impugned orders challenged herein are declared to be nullity and as a consequence, the FIR registered by the CBI is also quashed.

80. However, it is open to the applicants who had filed the petitions under Section 482 Code of Criminal Procedure. to take recourse to fresh proceedings, if permissible in law.

Kailash Gour and Others Vs State of Assam [SC 2011 December]

KEYWORDS : Communal disturbance-Delay- murder acquittal

Criminal Law-min

DATE:- 15-12-2011-

  • Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India.
  • there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases
  • In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.

ACTS:- Sections 448, 324 and 302 read with Section 34 Indian Penal Code-

(2011) 13 SCALE 549

(SUPREME COURT OF INDIA)

Kailash Gour and Others Versus State of Assam

(Before : Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.)

Criminal Appeal No. 1068 of 2006 : Decided On: 15-12-2011

Penal Code, 1860—Sections 448, 324 and 302 read with Section 34—Murder—Common intention—Conviction—Communal disturbance—Victims had fallen prey to mob violence—Major lapses in investigation of case—Evidence of eye-witnesses not inspiring confidence—Unless proved to be perpetrators of crime beyond reasonable doubt, appellants cannot be convicted and sentenced for the same—Appellants acquitted by extending benefit of doubt—Appeal allowed.

JUDGMENT

T.S. Thakur, J—This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No. 133 of 2005 filed by the Appellants has been dismissed and the conviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 Indian Penal Code upheld.

2. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the Appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict.

3. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Hazera Khatoon, Jahanara Begum, Samana Khatoon and Bimala were sleeping in another room. A mob allegedly comprising nearly twenty people entered the house of Mohd. Taheruddin and forcibly opened the door. Around the same time another house belonging to one Nandu situate at some distance from Mohd. Taheruddin?s house was on fire. The prosecution case is that Md. Mustafa Ahmed (PW3) heard accused Gopal Ghose calling for ?Munshi? which ostensibly is also how Mohd. Taheruddin was known. Md. Mustafa Ahmed (PW3) is said to have replied that Taheruddin was not at home. Apprehending danger, Md. Mustafa Ahmed escaped from the house but not before Gopal Ghose had injured him with the help of a spear. On his way out Md. Mustafa Ahmed is said to have recognised two persons standing outside the house allegedly armed with dao, dagger etc. Out of the house and in the field, he saw his father Mohd. Taheruddin coming homeward. Md. Mustafa Ahmed told him not to do so for he may be killed by the mob that had attacked the house. Taheruddin paid heed to the advice and watched the incident from a distance. According to his version Rahna Gour, one of the members of the mob, shot an arrow at him which hit his right hand. After the crowd had left the place he shouted to attract the attention of an army vehicle that was passing by and reached the spot only to find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon lying injured in the middle of a paddy field near the house. He carried her home where she died after some time. Zakir Hussain who was sleeping along with Md. Hanif Ahmed (PW4) in the kitchen was also injured by the mob. According to the version of Md. Hanif Ahmed (PW4) three accused persons, namely, Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Hanif is said to have stepped out of his house to take shelter behind the banana trees growing near the house and witnessed the entire incident from there. According to his version Gopal Ghose, Kailash Gour, Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted his mother while his sister Hazera Khatoon was attacked by Budhuram Timang, Hari Singh and Rahna. Bimala, the other sister, was similarly assaulted by Gopal, Ratan Das and Harendra Sarkar. The rest of the sisters, however, managed to escape unhurt.

4. The injured were then taken to Nagaon Civil Hospital by the police who had also arrived at the place of occurrence on receipt of intimation about a house having been put on fire in the neighbourhood. The dead bodies were removed in the army vehicle, while Zakir Hussain and Md. Mustafa Ahmed were medically examined by the medical officer who found the following injuries on them:

Zakir Hussain

1) There was vertical cut injury over the lip. Size 2′ x «’.

2) There are six cut injuries over the scalp each about 2′ x«’.

3) Left little finger was severed at the bone of the proximal phalange.

4) There is swelling and tenderness over the right hand.

5) There were two cut injuries over the back, on each side.

There was multiple cut injury with blunt injury of the right hand with sharp cutting. Wounds were dangerous in nature. Md. Mustafa Ahmed

1) Penetrating injury of the right leg with sharp pointed weapon. Size 1/3′ x «’.

The injury is fresh and margins were irregular.

2) Simply cut injury by sharp pointed object.

5. The post-mortem examination on the dead bodies was conducted by Dr. Madhusudhan Dev Goswami (PW1) who reported incised wound on the right upper neck of Hazera Khatoon and two incised wounds one on the neck and other on left upper neck of Bimala Khatoon. Similarly, injuries were also noticed by the doctor on the dead body of Sahera Khatoon. After completion of the investigation the police filed a charge sheet against 14 persons out of whom 13 were named in the First Information Report. The accused persons were charged with offences punishable under Sections 302, 326, 324, 323, and 448 read with Section 34, Indian Penal Code. The accused pleaded not guilty to the charges and claimed a trial. Accused Gopal Ghose, it is noteworthy, passed away during the trial.

6. By its judgment and order dated 18th June, 2005, the trial Court convicted 8 out of 14 persons for the offence of murder and sentenced them to undergo imprisonment for life and a fine of ` 2,000/-, and in default of payment to suffer rigorous imprisonment for six months. The High Court has, as seen earlier, upheld the conviction of the Appellants while acquitting Ratan Das, Gundulu Gour and Budhu Timang giving them benefit of doubt. Two appeals were filed against the said judgment and order, out of which viz. Crl. Appeal No. 907 of 2006 filed by Harendra Sarkar has since been dismissed as abated upon the death of the Appellant in that appeal. The present criminal appeal is, therefore, relevant only to Appellants Kailash Gour, Krishna Gour, Hari Singh Gour and Rahna Gour.

7. We have heard Learned Counsel for the parties at considerable length. The prosecution has examined 7 witnesses in all. These are Dr. Madhusudhan Dev Goswami (PW1), Mohd. Taheruddin (PW2), Md. Mustafa Ahmed (PW3), Md. Hanif Ahmed (PW4), Abdul Jabbar (PW5), Dr. Jiauddin Ahmed (PW6) and B.N. Kalita (PW7).

8. The deposition of Dr. Madhusudhan Dev Goswami (PW1) who conducted the post-mortem on the dead bodies of the three unfortunate victims leaves no manner of doubt that they suffered a homicidal death. The nature of the injuries found on the dead body of the deceased Smt. Sahera Khatoon and her two minor daughters Hazera Khatoon aged 7 years and Bimala Khatoon aged 3 years manifestly show that they suffered a homicidal death. To that extent we see no reason to interfere with the findings recorded by the trial Court and the High Court in appeal. It is noteworthy that even in the dissenting judgments delivered by S.B. Sinha and H.S. Bedi, JJ., their Lordships are unanimous on the cause of death of the three victims. The question, however, is whether the prosecution has established beyond a reasonable doubt that the Appellants were the perpetrators of the crime. The prosecution has, in that regard, placed reliance upon the deposition of Mohd. Taheruddin (PW2) and his two sons named Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4). We shall refer in some detail to the depositions of these three witnesses especially because while Sinha J. has held that only Md. Hanif Ahmed (PW4) claims to be an eye witness to the occurrence, Bedi J. has taken the view that all the three witnesses were eye witnesses to the incident.

9. Mohd. Taheruddin (PW2) has in his deposition stated that the accused persons were known to him as they live within one mile from his village. On the date of occurrence he was guarding harvested paddy in the field to the West of his house. In his house his sons Md. Mustafa Ahmed and Md. Hanif and Zakir Hussain, a young boy, were sleeping. In another room of the house were his wife Sahera Khatoon and daughters Hazera Khatoon, Jahanara, Bimala and Samana Khatoon. He also used to sleep in that very room but on the date of occurrence he was in the field. He saw a group of 10-12 men coming from the North of his homestead and another group of 10-12 men coming from the South. They assembled in front of his house and entered the premises. Accused Gopal Ghose called out his name and asked if ?Munshi? was at home. Hearing this, the witness started moving towards his house as there was a commotion. In the meantime his eldest son Mustafa Ahmed came and advised him not to do so as people were being attacked there. The boy ran towards the West through the paddy fields out of fear. The witness came close to the house to have a look and saw the mob striking the walls of his house with dao and lathi. A couple of youth were running away towards the West. Rahna Gour shot an arrow at the witness which hit the witness on his right hand. The accused came out from the house on the road, blew whistles and went away. The witness then reached his house and raised an alarm. An army vehicle also arrived. He saw the injured Bimala who had died. He also saw Hazera lying dead besides the road to the house. He took Bimala on his shoulder and stood on the road. He then found his wife Sahera Khatoon lying injured in the paddy field near the house and carried her home. She died immediately after being given water. His son Mustafa and Zakir sustained cut injuries. The Army personnel saw all this. Police was also with them. The Army sent the injured to Nagaon Civil hospital and took the dead bodies to Doboka Police Station.

10. There were disturbances over demolition of a mosque in the year 1992. He got his statement (ejahar) written by Abdul Jabbar and lodged the same under his signature in the police station. In cross-examination the witness stated that ejahar was written at his house on the 3rd day in the evening and that Investigating Officer Shri Kalita was present at that time. Other police personnel were also with him. The dead bodies were buried before the ejahar was written. Police, Army and the Magistrate were present there. While ejahar was being written at the house of the witness, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the Investigating Officer, Gaji Saheb also came. At the time of writing the ejahar his injured sons were at Nagaon Civil Hospital. Witness further stated that before the ejahar had been written, the Daroga had interrogated the prominent persons. But the witness did not discuss anything with the prominent persons. He told them about his recognising a couple of the accused persons. After Jabbar had written the ejahar, he had read it out to the witness. Witness further stated that he and his son together named 13 persons in the ejahar out of whom he knew only 4 who had come to his house and called him.

11. In the ejahar he had written that apart from the 13 people named by him there were 30-35 other people. Rahna Gour?s name was also written in the ejahar. The house of the witness is in the middle of a field and there are no houses nearby. The occurrence had taken place one week after the demolition of the mosque. He also had a case concerning a land dispute against accused Hari Singh and Kailash but did not know whether Gopal had got them out on bail in that case. He had also been arrested in connection with a case the year before. He denied having been arrested by the police on a number of other occasions.

12. The witness did not see whether the people who had assembled there were carrying anything in their hands. The rest of the people were in the courtyard when Gopal shouted and asked whether Munshi was at home. Till before hearing Mustafa?s shout the witness had not moved. After being cautioned by Mustafa, the witness went back towards West and then stopped. Witness further stated that Nandu?s brother?s house was burnt when the Army personnel arrived. His house was 40-50 nals (70 ft.) away from that of Nandu. Before the Army vehicle had returned for the second time, Jabbar Bari, Gaji Sahah, Noor Islam, Hamid and Ors. had arrived at his house.

13. None of the 30-35 people had chased the witness. Witness also stated that till before filing the ejahar he had not told the Investigating Officer about the occurrence. The next day the Daroga asked him to go gather a few people so that he could interrogate them. When the Investigating Officer came next day, he called the people. They were all muslims. He did not remember whether he had mentioned the moonlight in the ejahar. The witness was confronted with certain omissions in the statement recorded under Section 161 Code of Criminal Procedure.

14. On a careful reading of the statement of Md. Taheruddin (PW2) we are of the view that he is not an eyewitness to the killing of the victims as such. All that the witness saw from a distance was that 30-40 people had gathered in front of his house and there was a commotion including the shouts of his son Mustafa, who ran towards him to tell him not to go home because people were being attacked there. The witness does not accuse any particular individual of assaulting or killing of the three victims. Even regarding identification of those persons he claimed to know only four who had come to his house and had called him. What is interesting is that an injury said to have been received by him from an arrow shot by Rahna Gour was not mentioned in the First Information Report or medico-legally examined by the doctor. The deposition of the witness suggests that a mob had entered his house and attacked the inmates. Besides, who committed what act resulting in what injury to either the prosecution witnesses or any one out of the dead is not evident from the deposition of the witness. We shall presently revert back to the deposition of this witness when we examine credibility of the First Information Report. We may for the present simply state that we agree with Sinha, J. that this witness is not a witness for the murder of any one of the three victims.

15. We may for now take up the deposition of Md. Mustafa Ahmed (PW3). In his deposition this witness stated that his family consisted of 9 persons including his father Taheruddin, mother Sahera Khatoon. On the fateful day of 14th December, 1992 he was at home while his father was guarding paddy in the field, 50 meters away. Accused Gopal came to the house calling for his father. The witness could recognise him by his voice and responded that he was not at home. He then asked where he had gone, the witness said that he had been guarding paddy in the field. Gopal and 12-14 people who had come with him then started thrusting daggers, spears etc. into the walls. They opened the bamboo door of his house. Gopal, Hari Singh and Kailash stood in front of the door. Gopal started poking him with a spear which injured him. He pulled the spear out and ran out of the room along with the spear. He recognised two more men Haren Sarkar and Rahna Gour who were armed with dao, dagger, arrows etc. He knew them as they were from the same village. Thereafter the witness ran towards the field. His father was also coming towards the house but the witness stopped him and told him not to go home as he would be killed. The witness stated that he did not recognise the man who had hacked his two sisters Bimala Khatoon and Hazera Khatoon and his mother. He returned after 15 minutes and found his mother lying in a critical condition but had not died till then. He called the villagers and with their help got his mother home. His sisters were lying dead. Their bodies were also taken home. By the time his mother also died. Police also arrived within five minutes and took the witness and Zakir to the Civil Hospital. Both the witness and Zakir had sustained injuries.

16. In cross-examination the witness said that Zakir was not his consanguine brother but is distantly related to him. Within five minutes of the occurrence, officer in charge of Doboka P.S. arrived there with five policemen. But the witness did not know who had informed them about the incident. The witness did not tell the officer in charge about the occurrence. The officer in charge stayed back and the policemen and the driver took the witness to the police station from where they were taken to the hospital. The witness and Zakir stayed at the police station for half an hour. Police did not ask the witness about the occurrence. He was interrogated in the hospital two or three days after the incident. It is not known who lodged the ejahar and when. Disturbance over the demolition of the mosque were going on. People whose houses had been burnt or whose family members had died had taken shelter in the camp out of fear. He was terribly afraid when spears were being thrust into his room. While coming out he saw 15-20 men outside. But while inside he recognised three men and two more when coming out. Witness deposed:

I had not seen who had killed my two sisters and where. A lot of people were there when I came out of the house. I did not notice who had been assaulting whom and where.

17. When his father and he had been discussing the names of the assailants or the probable assailants, the men whom he had called were also with them.

18. From the above it is clear that the witness does not claim to have seen the act of violence against the victims. The witness simply says that Gopal and three Ors. had entered the house and injured him with a spear whereupon he made good his escape, recognising two intruders on his way out. As to when and where and by whom were his mother and sisters hacked to death is something on which the witness pleads complete ignorance. In that view we respectfully agree with the opinion expressed by Sinha, J. that Md. Mustafa Ahmed (PW3) is not an eye-witness to the occurrence although he may have observed certain incidents that preceded the actual act of killing of the victims. It was also relevant that the witness did not make any disclosure to the police, who was on the spot within five minutes of the occurrence, about the assailants nor did he do so till 2-3 days after the incident when the Investigating Officer interrogated him in the hospital. He also did not know about the lodging of the FIR nor did he know as to who had lodged the same and when.

19. That brings us to the deposition of the only other witness who is said to be a witness to the occurrence. Md. Hanif Ahmed (PW4) was also like Md. Mustafa Ahmed at home when the mob attacked their house. The witness has stated that accused Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Out of fear the witness ran out of the house and took shelter under the banana trees growing near his house and observed the incident from there. The witness claimed to have seen accused Gopal, Kailash, Gundulu, Krishna and Haren Doctor giving blows on the person of his mother. Similarly, he also claimed to have seen Budhuram Timang, Hari Singh and Rahna hacking his sister Hazera. Bimala who was 4-5 years old was also similarly assaulted by accused Gopal, Ratan and Haren Doctor according to the witness. After the incident accused persons left by which time his father had come to the house from the paddy field. The Army personnel who had come there sent Zakir and Mustafa to the Civil Hospital Nagaon for treatment.

20. The incident, according to the witness, happened on a moonlit night which enabled him to identify the assailants. The witness claimed that the police arrived at the place of occurrence in the meantime. The witness and his father searched for his mother and sisters with the help of a torch in the field and discovered their bodies within 3-4 minutes. While both the sisters had died, his mother died 10 minutes later. Police, according to the witness, came on the following day and interrogated them. FIR was written at the police station on the dictation of the witness and was signed by him. Witness further stated that he did not know whether his father had lodged any FIR to the police. Finally the police took a written report from him and his father. The witness was confronted with certain significant omissions in the statement made under Section 161 Code of Criminal Procedure.

21. Abdul Jabbar (PW5) is a witness who had scribed Ext. 1. According to the witness ejahar was written at the house of Taher Ali whose house is 2 Kms. from that of this witness. He went to Taher?s house where 100-200 people had gathered. Taher had discussed the things that should be mentioned in the ejahar and had given the names of the accused persons himself.

22. Dr. Ziauddin Ahmed (PW6) is a witness to the medical examination of the injured witnesses Mustafa Ahmed and Zakir and has proved the injury report.

23. Shri B.N. Kalita (PW7) is the Investigating Officer. In his statement this witness deposed that he was attached to the Doboka Police Station and received message from Biresh Dutta that a fire had occurred at the place of occurrence which information was entered in General Diary under Entry No. 532 dated 14th December, 1992. He led the police staff to Mikir Gaon. Taheruddin lodged a formal ejahar there. The case was registered and investigation taken up. He drew sketch of the place and conducted inquest and post-mortem on the dead-bodies and arrested the accused persons. The charge sheet was finally submitted by S.I. Dharma Kanta Talukdar.

24. In cross-examination this witness has stated that a large number of police had been deployed in the area for maintenance of law and order on account of disturbances arising out of the dispute over the demolition of the mosque. He received a written ejahar at the police station on 15th December, 1992 from Taheruddin at 12.10 p.m. He proved the omissions in the very statements of Mohd. Taheruddin (PW2), Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4) recorded under Section 161 Code of Criminal Procedure.

25. That being the state of evidence adduced in the case, the question is whether the deposition of Md. Hanif, the solitary eye witness, is reliable, having regard to the attendant circumstances. The prosecution witnesses except the two doctors examined at the trial have all deposed that the communal atmosphere in the area was surcharged as an aftermath of the demolition of the mosque, an event that took place just about a week before the occurrence in this case. Those affected by the disturbances were shifted to camps established by the administration. Deployment of a large police force in the area to which the Investigation Officer has referred in his deposition also was clear indicator of the atmosphere being surcharged and tense. That a house was set afire in the neighbourhood of the place of occurrence is also amply proved by the evidence on record. As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house having been set on fire. Once on the spot the police and the Army realised that there was much more at their hands than just an incident of fire. A mob comprising 35- 40 people had intruded in the homestead of Taheruddin and committed cold blooded murder of three innocent persons, two of whom were female children of tender age. If the prosecution version were to be believed, the Investigating Officer had the opportunity of getting an eye witness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye witness account of the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any explanation for his failure to ascertain from the alleged eye witness the sequence of events and the names and particulars of those who were responsible for the same. Instead, without the registration of the First Information Report, the Investigating Officer completes the inquest, prepares a site plan and gets the post mortem of the dead conducted on 15th December, 1992, long before the First Information Report was registered at 11.00 p.m. late in the evening on that date.

26. There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, ill-trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two. We say so for reasons that may be summarised as under:

(i) The Investigating Officer was a Sub Inspector of Police and the Station House Officer of Police Station Doboka. It follows that he had sufficient experience in conducting investigations especially in cases involving heinous crimes like murder. We also assume that the incident having taken place in an area which was apparently susceptible to communal violence and widespread disturbances as a result of the dispute over the demolition of the mosque, the same would have been reported to the higher officers in the police administration who would in turn ensure appropriate action being taken with suitable care in the matter.

(ii) The least which the Investigating Officer would do was to record the statement of the eye witnesses or send the eye witnesses to the police station for getting the First Information Report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one?s imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the Investigating Officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eye witness was injured, there is no reason why his statement could not be recorded in the hospital to ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book. Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an FIR registered immediately. This Court in State of H.P. v. Gian Chand, (2001) 6 SCC 71 dealt with the effect of failure of prosecution to satisfactorily explain the delay in the lodging of the FIR and declared that if the delay is not satisfactorily explained the same is fatal to the prosecution. This Court observed:

If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.

To the said effect is the decision of this Court in Dilawar Singh v. State of Delhi (2007) 12 SCC 641, where this Court observed:

In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.

Reference may also be made to the decisions of this Court in State of Punjab v. Daljit Singh (2004) 10 SCC 141 and State of Punjab v. Ramdev Singh, (2004) 1 SCC 421 which also reiterated the legal position stated in the earlier mentioned decisions.

(iii) From the deposition of Mohd. Taheruddin (PW2), it is clear that the FIR was drawn only after the Investigating Officer had through this witness got the people from the locality gathered. The officer then interrogated them and after deliberations with the elders of the community got a report scribed by Abdul Jabbar (PW5) naming as many as 13 persons as accused. PW5 has in his deposition clearly admitted that Mohd. Taheruddin had discussed in the gathering of the prominent people of the area the facts to be mentioned in the ejahar. There was nearly 100/200 people who had assembled when the ejahar was written by him. It is difficult to appreciate how a report prepared after such wide consultation and deliberations could carry a semblance of spontaneity to be credible in a criminal trial of such a serious nature. Even the Investigating Officer was contributing to the creation of a report after confabulations with elders of the area. Mohd. Taheruddin has in this regard deposed:

While ejahar was being written at his house, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the I.O. Gaji Sahab also came. xxxxx The Daroga had interrogated prominent persons before the writing of ejahar.

(iv) According to Mohd. Taheruddin (PW2) he had recognised only four of the accused who had come looking for him. There is no explanation as to how were the remaining accused named when he had not identified them at the time of the occurrence and at whose instance especially when according to the witness his sons were in the hospital when the ejahar was scribed.

(v) The Investigating Officer having prepared a site plan of the place of occurrence before the registration of the case and even before the statements of the witnesses were recorded under Section 161 Code of Criminal Procedure., did not make any mention about the banana trees behind which Md. Hanif (PW4) is said to have hidden himself. If the story regarding PW4 having had observed the occurrence from behind the banana trees was correct, the trees ought to appear in the site plan which is not the case. Absence of any banana trees in the area around the house is an indication of the fact that no implicit reliance can be placed upon the version of Md. Hanif (PW4).

(vi)According to PW3 and PW4, after they emerged from their hideouts and after their father returned to the spot they started looking for the dead bodies with the help of a torch. If PW4 was right in his version, then the victims were hacked in front of the door of the house, there was no question of searching for the dead bodies with the help of torch light.

(vii)The use of torch light to look for bodies shows that there was no source of light. The night was a foggy, cold December night. The presence of fog is admitted by PW4 in his deposition. Assuming that there was moonlight, the presence of fog was a disabling factor that made visibility poor for any one to observe the occurrence from a distance when a huge mob of 30-40 people was on the rampage.

(viii)According to Shri B.N. Kalita (PW7) the Investigating Officer in the case a written ejahar was presented to him by Taheruddin when the former reached the spot on 14th December, 1992. If that were so, the least which the officer would have done was to take that ejahar as the first information report regarding the occurrence and register a case of murder against those named in it. This admittedly was not done. In cross- examination the witness said that a written ejahar was presented to him by Taheruddin on 15th December, 1992 at 12.10 p.m. Now, even if that were true, there is no explanation why the officer delayed registration of the FIR till 11.00 p.m. on that day. The delay in the lodging of the FIR and the circumstances in which the ejahar was written, cast a serious doubt about the whole prosecution case especially when there is no explanation whatsoever for the failure of the Investigating Officer to record the report based on the alleged eye witness account immediately after he reached the spot.

(ix) The non-examination of Zakir, injured witness at the trial is also inexplicable. Zakir was allegedly taken out of the house by the accused persons and assaulted. The best person to say who the persons responsible were for the assault was this witness himself. The failure of the prosecution to put him in the witness box, in support of its version is also an important circumstance that cannot be legally brushed aside. The prosecution has failed to examine other inmates who were inside the house and who had escaped unhurt in the occurrence.

(x) The medical evidence adduced in the case also does not support the prosecution version. According to Dr. Madhusudhan Dev Goswami (PW1), who conducted the post-mortem examination on the dead bodies of the victims had deposed that the death had occurred 48 to 72 hours prior to the examination. If the prosecution version as given by alleged eye witnesses is accepted the victims had died within 12 hours of the post- mortem examination. This inconsistency in the medical evidence and the ocular evidence assumes importance rendering the version given by the prosecution witnesses suspicious.

(xi) According to Mohd. Taheruddin (PW2) the Appellant had shot an arrow towards him which missed the target but hurt the witness in his hand. There is no corroborative medical evidence to suggest that Taheruddin has sustained any injury on the hand or any other part of his body.

(xii) Even regarding the motive for commission of the crime the prosecution case is that the incident had its genesis in the demolition of the mosque and the large scale disturbances that followed. While it is evident that large scale disturbances had indeed taken place in the area including an incident of a house being set on fire in the neighbourhood of the place of occurrence, the previous enmity between some of the Appellants and Taheruddin on account of a land dispute between them could be a possible reason for Taheruddin naming Appellants and Ors. close to him as assailants. Enmity between complainant party and the accused being a double-edged weapon there could be motive on either side for the commission of offence as also for false implication.

27. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused may have committed the offence and must have committed the offence which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh and Anr. v. State of M.P., (2004) 10 SCC 699 and Ranjitsingh Brahmajeetsingh Sharma v. State of Mahsrashtra and Ors., (2005) 5 SCC 294. To the same effect is the decision of this Court in Ganesan v. Rama SRaghuraman and Ors., (2011) 2 SCC 83 where this Court observed:

Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India.

28. The above views were reiterated by this Court in State of U.P. v. Naresh and Ors., (2011) 4 SCC 324.

29. In his dissenting judgment our esteemed Brother, Bedi, J. has referred to as many as five different Reports of Commissions of Enquiry set up over the past five decades or so to point out that the findings recorded in the reports submitted by the Commissions indicate an anti-minority bias among the police force in communal riot situations and investigations. Copious extracts from the reports reproduced in the judgment no doubt suggest that in situations when the police ought to protect the citizens against acts of communal violence, it has at times failed to do so giving rise to the perception that the police force as a whole is insensitive to the fears, concerns, safety and security of the minority communities. Whether these reports have been accepted by the governments concerned and if so how far have they contributed to the reform of the force is a matter with which we are not directly concerned in this case. All that we need to say is that sooner such reforms are brought the better it would be for an inclusive society like ours where every citizen regardless of his caste or creed is entitled to protection of his life, limb and property. It will indeed be a sad day for the secular credentials of this country if the perception of the minority communities about the fairness and impartiality of the police force were to be what the reports are suggestive of. and yet it may not be wholly correct to say that the police deliberately make no attempt to prevent incidents of communal violence or that efforts to protect the life and property of the minorities is invariably half hearted or that instead of assailants the victims themselves are picked up by the police. So also there is no reason for us to generalise and say that there is an attempt not to register cases against assailants and when such cases are registered loopholes are intentionally left to facilitate acquittals or that the evidence led in the Courts is deliberately distorted. No one can perhaps dispute that in certain cases such aberrations may have taken place. But we do not think that such instances are enough to denounce or condemn the entire force for ought we know that for every life lost in a violent incident the force may have saved ten, who may have but for timely intervention been similarly lost to mindless violence. Suffice it to say that while the police force may have much to be sorry about and while there is always room for improvement in terms of infusing spirit of commitment, sincerity and selfless service towards the citizens it cannot be said that the entire force stands discredited. At any rate the legal proposition formulated by Bedi J. based on the past failures do not appear to us to be the solution to the problem. We say with utmost respect to the erudition of our Brother that we do not share his view that the reports of the Commissions of Enquiry set up in the past can justify a departure from the rules of evidence or the fundamental tenets of the criminal justice system. That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arsing from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-…-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. The prosecution it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything.

30. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the Appellants cannot be convicted and sentenced for the same. We accordingly allow this appeal and acquit the Appellants giving them the benefit of doubt. They shall be set free forthwith unless required in connection with any other case.

Acts of Parliament relating to children, schools and education of United Kingdom

England-min
GEORGE I
8 Geo. 1 c. 31 Sevenoaks Grammar School and Charity Act 1721
GEORGE II
17 Geo. 2 c. 40 Universities (Wine Licences) Act 1743
20 Geo. 2 c. 32 University of St Andrews Act 1746
GEORGE III
8 Geo. 3 c. 32 Gresham College etc Act 1768
11 Geo. 3 c. 10 Morden College Kent Act 1771
14 Geo. 3 c. 51 Macclesfield Grammar School Act 1774
16 Geo. 3 c. 52 Natural-born Children of Aliens Act 1776
17 Geo. 3 c. 71 Rugby School and Alms-houses Act 1777
18 Geo. 3 c. 41 Henley Grammar School Act 1778
20 Geo. 3 c. 36 Poor Apprentices Act 1780
28 Geo. 3 c. 81 Bolton Grammar School Act 1788
43 Geo. 3 c. 73 Factory Act 1802
43 Geo. 3 c. 54 *Parochial Schools (Scotland) Act 1803
45 Geo. 3 c. 101 Purchase of Advowsons by Colleges Act 1805
48 Geo. 3 c. 77 Londonderry School Act 1808
50 Geo. 3 c. 33 School Sites (Ireland) Act 1810
53 Geo. 3 c. 107 Endowed Schools Act 1813
54 Geo. 3 c. 101 Child Stealing Act 1814
56 Geo. 3 c.95 Transfer of Stock of Hertford College Act 1816
56 Geo. 3 c.136 Lands of Hertford College Act 1816
GEORGE IV
3 Geo. 4 c. 1822 Endowed Schools Act 1822
5 Geo. 4 c. 101 St David’s College Act 1824
6 Geo. 4 c. 97 Universities Act 1825: behaviour of Oxbridge students.
6 Geo. 4 c. 102 Deserted Children (Ireland) Act 1825
9 Geo. 4 c. 36 Deserted Children (Ireland) Act 1827
9 Geo. 4 c. 87 Deserted Children (Ireland) Act 1828
11 Geo. 4 &
1 Will. 4 c. 56
Endowed Schools (Ireland) Act 1830
WILLIAM IV
3 & 4 Will. 4 c. 103 *Factories Act 1833
4 & 5 Will. 4 c. 76 *Poor Law (Amendment) Act 1834
6 & 7 Will. 4 c. 70 Sites for Schoolrooms Act 1836
VICTORIA
1 & 2 Vict c. 22 Haileybury College Act 1838
1 & 2 Vict c. 87 Highland Schools Act 1838
2 & 3 Vict c. 85 Bastard Children Act 1839
3 & 4 Vict c. 77 Grammar Schools Act 1840: allowed endowment funds to be spent on modern and commercial subjects.
3 & 4 Vict c. 85 *Chimney Sweepers Regulation Act 1840
4 & 5 Vict c. 38 School Sites Act 1841 (pdf 324kb): the five School Sites Acts passed between 1841 and 1852 facilitated the purchase of land for school buildings and allowed for ‘Parliamentary Grants for the Education of the Poor’
5 & 6 Vict c. 78 Exchange, Crown and Eton College Act 1842
7 & 8 Vict c. 8 Teachers of Schools (Ireland) Act 1844
7 & 8 Vict c. 37 School Sites Act 1844 (pdf 136kb)
8 & 9 Vict c. 25 Maynooth College Act 1845
8 & 9 Vict c. 40 Parish Schoolmasters (Scotland) Act 1845
8 & 9 Vict c. 66 Queen’s College (Ireland) Act 1845
11 & 12 Vict c. 82 Poor Law (Schools) Act 1848
12 & 13 Vict c. 49 School Sites Act 1849 (pdf 128kb)
13 & 14 Vict c. 11 School Districts Act 1850
14 & 15 Vict c. 24 School Sites Act 1851 (pdf 60kb)
15 & 16 Vict c. 49 School Sites Act 1852 (pdf 72kb)
16 & 17 Vict c. 82 Christ College of Brecknock Act 1853
17 & 18 Vict c. 74 *Reformatory Schools (Scotland) Act 1854
17 & 18 Vict c. 81 *Oxford University Act 1854
17 & 18 Vict c. 86 *Youthful Offenders Act 1854
17 & 18 Vict c. 98 Parochial Schoolmaster (Scotland) Act 1854
17 & 18 Vict c. 112 Literary and Scientific Institutions Act 1854 (pdf 487kb): facilitated the establishment of institutions for the promotion of literature, science and the arts.
18 & 19 Vict c. 34 Education of Pauper Children Act 1855
18 & 19 Vict c. 53 Haileybury College Act 1855
18 & 19 Vict c. 59 Endowed Schools Inquiries (Ireland) Act 1855
18 & 19 Vict c. 82 Trinity College Dublin Act 1855
18 & 19 Vict c. 131 School Grants Act 1855 (pdf 76kb): laid down stricter conditions relating to Parliamentary grants for education.
19 & 20 Vict c. 28 Reformatory Schools (Scotland) Act 1856
19 & 20 Vict c. 53 Moulton Endowed School Act 1856
19 & 20 Vict c. 88 *Cambridge University Act 1856
19 & 20 Vict c. 95 Oxford Colleges etc Estates Act 1856
19 & 20 Vict c. 109 Reformatory etc Schools Act 1856
19 & 20 Vict c. 116 Education Department Act 1856: single-paragraph Act which created the post of Vice-President of the Committee of Council on Education.
20 & 21 Vict c. 25 Oxford University Act 1857 (pdf 115kb): extended the powers of the Commissioners for Oxford University and St Mary’s College Winchester.
20 & 21 Vict c. 48 Industrial Schools Act 1857
20 & 21 Vict c. 55 Reformatory Schools (England) Act 1857
20 & 21 Vict c. 59 Parochial Schoolmasters (Scotland) Act 1857
20 & 21 Vict c. 84 Dulwich College Act 1857
21 & 22 Vict c. 44 Universities and College Estates Act 1858
21 & 22 Vict c. 83 Universities (Scotland) Act 1858
21 & 22 Vict c. 103 Reformatory Schools (Ireland) Act 1858
22 & 23 Vict c. 19 Universities of Oxford and Cambridge Act 1859(pdf 135kb): amended previous Acts relating to Oxford and Cambridge.
23 & 24 Vict c. 11 Endowed Schools Act 1860
23 & 24 Vict c. 59 Universities and College Estates Act Extension 1860
23 & 24 Vict c. 91 Oxford University Act 1860 (pdf 106kb): matters relating to Craven scholarships and testamentary documents.
23 & 24 Vict c. 104 Maynooth College Act 1860
23 & 24 Vict c. 108 Industrial Schools Act 1860
24 & 25 Vict c. 107 Parochial and Burgh Schoolmasters (Scotland) Act 1861
24 & 25 Vict c. 113 Industrial Schools Act 1861
24 & 25 Vict c. 132 Industrial Schools (Scotland) Act 1861
25 & 26 Vict c. 10 Industrial Schools 1861 Acts Continuance Act 1862
25 & 26 Vict c. 26 Oxford University Act 1862 (pdf 132kb): extended the university’s power to make statutes.
25 & 26 Vict c. 43 Poor Law (Certified Schools) Act 1862
27 & 28 Vict c. 37 *Chimney Sweepers Regulation Act 1864
27 & 28 Vict c. 41 Coventry Garmmar School Act 1864
27 & 28 Vict c. 92 Public Schools Act 1864
28 & 29 Vict c. 55 Oxford University, Vinerian Foundation, Act 1865 (pdf 78kb): empowered the university to make statutes relating to the Vinerian Foundation.
29 & 30 Vict c. 117 Reformatory Schools Act 1866
29 & 30 Vict c. 118 Industrial Schools Act 1866
30 & 31 Vict c. 6. Metropolitan Poor Act 1867
31 & 32 Vict c. 25 Industrial Schools (Ireland) Act 1868
31 & 32 Vict c. 32 Endowed Schools Act 1868: paved the way for the 1869 Endowed Schools Act.
31 & 32 Vict c. 59 Irish Reformatory Schools Act 1868
31 & 32 Vict c. 118 Public Schools Act 1868: made various changes at Eton, Harrow, Winchester etc as recommended by the 1864 Clarendon Report.
32 & 33 Vict c. 20 University of Oxford Act 1869
32 & 33 Vict c. 25 Orphan and Desrted Children (Ireland) Act 1869
32 & 33 Vict c. 56 Endowed Schools Act 1869: made changes to endowed schools as recommended by the 1868 Taunton Report.
32 & 33 Vict c. 58 Public Schools Act 1869
33 & 34 Vict c. 75 Elementary Education Act 1870: the ‘Forster Act’ introduced compulsory universal education for children aged 5-13 but left enforcement of attendance to school boards.
33 & 34 Vict c. 84 Public School Act 1870
33 & 34 Vict c. 63 College Charter Act 1871 (pdf 29kb): amended the law relating to the granting of charters.
34 & 35 Vict c. 13 Public Parks, Schools, and Museums Act 1871
34 & 35 Vict c. 26 Universities Tests Act 1871: removed certain religious requirements.
34 & 35 Vict c. 60 Public Schools Act 1871
34 & 35 Vict c. 94 Elementary Education (Election) Act 1871
35 & 36 Vict c. 21 Reformatory and Industrial Schools Acts Amendment Act 1872
35 & 36 Vict c. 27 Elementary Education Act Amendment Act 1872
35 & 36 Vict c. 54 Public Schools Act 1872
35 & 36 Vict c. 59 Elementary Education (Elections) Act 1872
35 & 36 Vict c. 62 *Education (Scotland) Act 1872: created school boards to oversee both secondary and elementary education, and made attendance compulsory.
36 & 37 Vict c. 7 Endowed Schools (Time of Address) Act 1873
36 & 37 Vict c. 41 Public Schools (Shrewsbury and Harrow Schools Property) Act 1873
36 & 37 Vict c. 53 Highland Schools Act 1873
36 & 37 Vict c. 62 Public Schools (Eton College Property) Act 1873
36 & 37 Vict c. 67 *Employment of Children in Agriculture Act 1873
36 & 37 Vict c. 86 Elementary Education Act 1873: amended various provisions of the 1870 Elementary Education Act.
36 & 37 Vict c. 87 Endowed Schools Act 1873: extended and amended the 1869 Endowed Schools Act.
37 & 38 Vict c. 9 Public Works Loan (School Loans) Act 1874
37 & 38 Vict c. 39 Elementary Education (Wenlock) Act 1874
37 & 38 Vict c. 55 Hertford College Act 1874
37 & 38 Vict c. 62 Infants Relief Act 1874 (pdf 53kb): made contracts entered into by infants unenforceable.
37 & 38 Vict c. 79 Foyle College Act 1874
37 & 38 Vict c. 87 Endowed Schools Act 1874: made further amendments to the previous Endowed Schools Acts.
37 & 38 Vict c. 90 Elementary Education (Orders) Act 1874
38 & 39 Vict c. 29 Endowed Schools (Vested Interests) Act Continuance Act 1875
38 & 39 Vict c. 41 Intestate Widows and Children (Scotland) Act 1875
38 & 39 Vict c. 70 *Chimney Sweepers Act 1875: prohibited the use of boys to clean chimneys and provided the first workable enforcement machinery.
38 & 39 Vict c. 82 National School Teachers Residences (Ireland) Act 1875
38 & 39 Vict c. 96 National School Teachers (Ireland) Act 1875
39 & 40 Vict c. 38 Pauper Children (Ireland) Act 1876
39 & 40 Vict c. 79 Elementary Education Act 1876: made further provisions regarding elementary education, including new rules on child employment.
40 & 41 Vict c. 38 Board of Education (Scotland) Act 1877
41 & 42 Vict c. 16 *Factory and Workshop Act 1878
41 & 42 Vict c. 66 Intermediate Education (Ireland) Act 1878
41 & 42 Vict c. 78 Education (Scotland) Act 1878
42 & 43 Vict c. 34 Children’s Dangerous Performances Act 1879
42 & 43 Vict c. 48 Elementary Education (Industrial Schools) Act 1879: a brief Act extending the powers of school boards in relation to the establishment and extension of industrial schools.
42 & 43 Vict c. 49 *Summary Jurisdiction Act 1879: child offenders to appear before magistrates rather than the assizes or quarter-sessions.
42 & 43 Vict c. 65 University Education (Ireland) Act 1879
42 & 43 Vict c. 66 Endowed School Acts Continuance Act 1879
42 & 43 Vict c. 74 National School Teachers (Ireland) Act 1879
43 & 44 Vict c. 11 Universities of Oxford and Cambridge (Limited Tenures) Act 1880
43 & 44 Vict c. 15 Industrial Schools Act Amendment Act 1880
43 & 44 Vict c. 23 Elementary Education Act 1880 (the ‘Mundella Act’): tightened up school attendance laws.
43 & 44 Vict c. 46 Universities and College Estates Amendment Act 1880
44 & 45 Vict c. 65 Leases for Schools (Ireland) Act 1881
45 & 46 Vict c. 18 Public Schools (Scotland) Teachers Act 1882
45 & 46 Vict c. 69 Intermediate Education (Ireland) Act 1882
46 & 47 Vict c. 56 Education (Scotland) Act 1883
47 & 48 Vict c. 19 Summary Jurisdiction over Children (Ireland) Act 1884
47 & 48 Vict c. 22 Loans for Schools and Training Colleges (Ireland) Act 1884
47 & 48 Vict c. 40 Reformatory and Industrial Schools (Manx Children) Act 1884
47 & 48 Vict c. 45 National School Teachers Amendment (Ireland) Act 1884
47 & 48 Vict c. 75 Canal Boats Act 1884
48 & 49 Vict c. 19 Industrial Schools (Ireland) Act 1885
48 & 49 Vict c. 38 School Boards Act 1885
48 & 49 Vict c. 78 Educational Endowments (Ireland) Act 1885
49 & 50 Vict c. 56 Intoxicating Liquors (Sale to Children) Act 1886
50 & 51 Vict c. 64 *Technical Schools (Scotland) Act 1887: empowered school boards to set up technical schools, but few were opened.
51 & 52 Vict c. 41 Local Government Act 1888 : created county councils and county borough councils which later became the framework for educational administration.
51 & 52 Vict c. 45 Victoria University Act 1888 (pdf 29kb): extended employment rights to graduates of Victoria University (Manchester).
52 & 53 Vict c. 35 Prince of Wales’s Children Act 1889
52 & 53 Vict c. 40 Welsh Intermediate Education Act 1889: made further provision for the intermediate and technical education of the inhabitants of Wales and the county of Monmouth.
52 & 53 Vict c. 44 Prevention of Cruelty to, and Protection of, Children Act 1889 (pdf 291kb): wide-ranging Act including restrictions on the employment of children.
52 & 53 Vict c. 76 Technical Instruction Act 1889: sought to improve the provision of technical and industrial training.
53 & 54 Vict c. 22 Education Code (1890) Act 1890
53 & 54 Vict. c. 43 Education of Blind and Deaf-Mute Children (Scotland) Act 1890
54 & 55 Vict c. 3 Custody of Children Act 1891 (pdf 45kb): included a section on religious education.
54 & 55 Vict c. 16 Army Schools Act 1891 (pdf 29kb): a brief Act extending certain endowments to army schools.
54 & 55 Vict c. 23 Reformatory and Industrial Schools Act 1891
54 & 55 Vict c. 56 Elementary Education Act 1891: elementary education to be provided free.
54 & 55 Vict c. 61 *Schools for Science and Art Act 1891: made government funds available to local authorities for technical education.
55 & 56 Vict c. 4 Betting and Loans (Infants) Act 1892 (pdf 82kb): made it illegal to encourage children to bet or borrow money.
55 & 56 Vict c. 29 Technical and Industrial Institutions Act 1892(pdf 60kb): new rules to facilitate the expansion of technical and industrial training.
55 & 56 Vict c. 41 Boards of Management of Poor Law District Schools (Ireland) Act 1892
55 & 56 Vict c. 42 Irish Education Act 1892
55 & 56 Vict c. 51 Education and Local Taxation Account (Scotland) Act 1892
55 & 56 Vict c. 63 *Technical Instruction Amendment (Scotland) Act 1892
56 & 57 Vict c. 12 Day Industrial Schools (Scotland) Act 1893
56 & 57 Vict c. 15 Reformatory Schools (Scotland) Act 1893
56 & 57 Vict c. 41 Irish Education Act 1893
56 & 57 Vict c. 42 Elementary Education (Blind and Deaf Children) Act 1893: required school authorities to make better educational provision for blind and deaf children.
56 & 57 Vict c. 48 Reformatory Schools Act 1893
56 & 57 Vict c. 51 Elementary Education (School Attendance) Act 1893
57 & 58 Vict c. 27 Prevention of Cruelty to Children (Amendment) Act 1894
57 & 58 Vict c. 33 Industrial Schools Acts Amendment Act 1894
57 & 58 Vict c. 41 Prevention of Cruelty to Children Act 1894
57 & 58 Vict Ch. ciii Cheltenham College Act 1894
58 & 59 Vict c. 17 Reformatory and Industrial Schools (Channel Islands Children) Act 1895
60 & 61 Vict c. 5 *Voluntary Schools Act 1897
60 & 61 Vict c. 16 *Elementary Education Act 1897
60 & 61 Vict c. 32 School Board Conference Act 1897
60 & 61 Vict c. 62 Education (Scotland) Act 1897
61 & 62 Vict c. 30 Pauper Children (Ireland) Act 1898
61 & 62 Vict c. 53 Libraries Offences Act 1898 (pdf 37kb): a brief Act concerning behaviour in public libraries.
61 & 62 Vict c. 55 Universities and College Estates Act 1898
61 & 62 Vict c. 57 Elementary School Teachers (Superannuation) Act 1898 (pdf 4.4mb)
61 & 62 Vict c. 62 University of London Act 1898
62 & 63 Vict c. 12 Reformatory Schools Act 1899
62 & 63 Vict c. 13 Elementary Education (School Attendance) Act 1893 Amendment Act 1899
62 & 63 Vict c. 32 Elementary Education (Defective and Epileptic Children) Act 1899: empowered school authorities to make better educational provision for ‘defective’ and epileptic children.
62 & 63 Vict c. 33 Board of Education Act 1899: established the Board of Education and provided for a Consultative Committee.
62 & 63 Vict
Sess. 2 c. 21
Mines (Prohibition of Child Labour Underground) Act 1900
62 & 63 Vict
Sess. 2 c. 38
Elementary School Teachers Superannuation (Isle of Man) Act 1900
62 & 63 Vict
Sess. 2 c. 40
Elementary School Teachers Superannuation (Jersey) Act 1900
63 & 64 Vict
Sess. 2 c. 43
Intermediate Education (Ireland) Act 1900
63 & 64 Vict
Sess. 2 c. 53
*Elementary Education Act 1900
EDWARD VII
2 Edw. 7 c. 14 University of Wales Act 1902 (pdf 29kb): extended employment rights to graduates of the University of Wales.
2 Edw. 7 c. 42 Education Act 1902: the ‘Balfour Act’ established a system of secondary education integrating higher grade elementary schools and fee-paying secondary schools; abolished school boards and established local education authorities (LEAs).
3 Edw. 7 c. 10 Education (Provision of Working Balances) Act 1903
3 Edw. 7 c. 13 Elementary Education Amendment Act 1903
a minor amendment to the 1899 Elementary Education (Defective and Epileptic Children) Act.
3 Edw. 7 c. 19 Poor Law (Dissolution of School Districts and Adjustments) Act 1903
3 Edw. 7 c. 24 Education (London) Act 1903
extended and adapted the 1902 Education Act to London.
3 Edw. 7 c. 45 Employment of Children Act 1903
4 Edw. 7 c. 11 University of Liverpool Act 1904 (pdf 29kb)
extended employment rights to graduates of the University of Liverpool.
4 Edw. 7 c. 12 Leeds University Act 1904 (pdf 33kb)
extended employment rights to graduates of the University of Leeds.
4 Edw. 7 c. 15 Prevention of Cruelty to Children Act 1904
4 Edw. 7 c. 18 Education (Local Authority Default) Act 1904
6 Edw. 7 c. 10 Education of Defective Children (Scotland) Act 1906
6 Edw. 7 c. 57 Education (Provision of Meals) Act 1906: allowed LEAs to provide meals for undernourished elementary school children.
7 Edw. 7 c. 43 Education (Administrative Provisions) Act 1907: among other things, this Act introduced a scholarship/free place system for secondary education and required LEAs to provide medical inspections of elementary school children.
8 Edw. 7 c. 39 Endowed Schools (Masters) Act 1908
8 Edw. 7 c. 63 Education (Scotland) Act 1908
8 Edw. 7 c. 67 Children Act 1908
9 Edw. 7 c. 13 Local Education Authorities (Medical Treatment) Act 1909
9 Edw. 7 c. 29 Education (Administrative Provisions) Act 1909
10 Edw. 7 &
1 Geo 5 c. 16
Duke of York’s School (Chapel) Act 1910
10 Edw. 7 &
1 Geo 5 c. 25
Children Act 1908 Amendment Act 1910
10 Edw. 7 &
1 Geo 5 c. 37
Education (Choice of Employment) Act 1910
GEORGE V
1 & 2 Geo. 5 c. 32 Education (Administrative Provisions) Act 1911
2 & 3 Geo. 5 c. 12 Elementary School Teachers (Superannuation) Act 1912
3 & 4 Geo. 5 c. 7 Children (Employment Abroad) Act 1913
sought to prevent children being taken abroad for ‘singing, playing, performing, or being exhibited, for profit’.
3 & 4 Geo. 5 c. 12 Education (Scotland) Act 1913
3 & 4 Geo. 5 c. 13 Education (Scotland) (Glasgow Electoral Divisions) Act 1913
3 & 4 Geo. 5 c. 28 Mental Deficiency Act 1913
made better provision for the care of ‘Feeble-minded and other Mentally Defective Persons’ and amended the Lunacy Acts. Required local education authorities to ascertain and certify which children aged 7 to 16 in their area were defective.
3 & 4 Geo. 5 c. 29 *Intermediate Education (Ireland) Act 1913
4 & 5 Geo. 5 c. 4 Sheffield University Act 1914 (pdf 33kb)
extended employment rights to graduates of the University of Sheffield.
4 & 5 Geo. 5 c. 20 Education (Provision of Meals) Act 1914: extended the powers of local education authorities to provide meals for undernourished elementary school children.
4 & 5 Geo. 5 c. 35 Education (Scotland) (Provision of Meals) Act 1914
4 & 5 Geo. 5 c. 41 Intermediate Education (Ireland) Act 1914
4 & 5 Geo. 5 c. 45 Elementary Education (Defective and Epileptic Children) Act 1914
required local authorities to make provision.
4 & 5 Geo. 5 c. 66 Elementary School Teachers (War Service Superannuation) Act 1914
4 & 5 Geo. 5 c. 67 Education (Scotland) (War Service Superannuation) Act 1914
5 & 6 Geo. 5 c. 22 Universities and Colleges (Emergency Powers) Act 1915
5 & 6 Geo. 5 c. 95 Education (Small Population Grants) Act 1915
6 & 7 Geo. 5 c. 10 Education (Provision of Meals) (Ireland) Act 1916
6 & 7 Geo. 5 c. 35 Elementary Education (Fee Grant) Act 1916
7 & 8 Geo. 5 c. 53 Education (Provision of Meals) (Ireland) Act 1917
8 & 9 Geo. 5 c. 29 Maternity and Child Welfare Act 1918
8 & 9 Geo. 5 c. 39 Education Act 1918 (Fisher) (pdf 748kb)
wide-ranging Act extending education provision in line with recommendations of 1917 Lewis Report.
8 & 9 Geo. 5 c. 48 Education (Scotland) Act 1918
8 & 9 Geo. 5 c. 55 School Teachers’ (Superannuation) Act 1918
amended the Elementary School Teachers’ (Superannuation) Acts 1898-1912.
9 & 10 Geo. 5 c. 16 Public Health (Medical Treatment of Children) (Ireland) Act 1919
9 & 10 Geo. 5 c. 17 Education (Scotland) (Superannuation) Act 1919
9 & 10 Geo. 5 c. 21 Ministry of Health Act 1919 (pdf 205kb)
created the Ministry of Health and transferred to it some of the powers of the Board of Education.
9 & 10 Geo. 5 c. 41 Education (Compliance with Conditions of Grants) Act 1919
10 & 11 Geo. 5 c. 65 Employment of Women, Young Persons, and Children Act 1920 (pdf 220kb)
enacted the conventions agreed at the 1919 meeting of the International Labour Organisation of the League of Nations.
11 & 12 Geo. 5 c. 4 Children Act 1921
11 & 12 Geo. 5 c. 51 Education Act 1921: consolidated all previous laws relating to education and raised school leaving age to 14.
12 & 13 Geo. 5 c. 31 Universities (Scotland) Act 1922 (pdf 57kb)
extended the powers of the Courts of Scottish universities.
12 & 13 Geo. 5 c. 48 School Teachers (Superannuation) Act 1922
13 & 14 Geo. 5 c. 33 Universities of Oxford and Cambridge Act 1923
established Commissions for the two universities.
13 & 14 Geo. 5 c. 38 Education (Institution Children) Act 1923
14 & 15 Geo. 5 c. 12 School Teachers (Superannuation) Act 1924
14 & 15 Geo. 5 c. 13 Education (Scotland) (Superannuation) Act 1924
15 & 16 Geo. 5 c. 24 Universities and College Estates Act 1925 (pdf 651kb)
updated property rules relating to Oxford, Cambridge and Durham universities, Eton and St Mary’s Winchester.
15 & 16 Geo. 5 c. 55 Education (Scotland) (Superannuation) Act 1925
15 & 16 Geo. 5 c. 89 Education (Scotland) Act 1925
16 & 17 Geo. 5 c. 29 Adoption of Children Act 1926
16 & 17 Geo. 5 c. 46 University of London Act 1926
gave London University a new administrative structure.
18 & 19 Geo. 5 c. 28 Education (Scotland) Act 1928
18 & 19 Geo. 5 c. 30 Educational Endowments (Scotland) Act 1928
19 & 20 Geo. 5 c. 17 Local Government Act 1929 (pdf 4.6mb)
wide-ranging Act including the provision of education.
19 & 20 Geo. 5 c. 25 Local Government (Scotland) Act 1929 (pdf 2.0mb)
wide-ranging Act including the provision of education.
20 & 21 Geo. 5 c. 21 Children (Employment Abroad) Act 1930
20 & 21 Geo. 5 c. 33 Illegitimate Children (Scotland) Act 1930
20 & 21 Geo. 5 c. 36 Education (Scotland) Act 1930
20 & 21 Geo. 5 c. 37 Adoption of Children (Scotland) Act 1930
21 & 22 Geo. 5 c. 5 Educational Endowments (Scotland) Act 1931
21 & 22 Geo. 5 c. 37 Adoption of Children (Scotland) Act 1931
22 & 23 Geo. 5 c. 26 Universities (Scotland) Act 1932 (pdf 143kb)
extended the powers of the Courts of Scottish universities.
22 & 23 Geo. 5 c. 47 Children and Young Persons Act 1932
23 & 24 Geo. 5 c. 12 Children and Young Persons Act 1933
23 & 24 Geo. 5 c. 29 Education (Necessity of Schools) Act 1933
24 & 25 Geo. 5 c. 34 Adoption of Children (Workmen’s Compensation) Act 1934
25 & 26 Geo. 5 c. 5 Educational Endowments (Scotland) Act 1935
26 Geo. 5 &
1 Edw. 8 c. 41
Education Act 1936: raised school leaving age to 15 and authorised building grants of up to 75 per cent for new denominational ‘Special Agreement’ senior schools.
26 Geo. 5 &
1 Edw. 8 c. 42
Education (Scotland) Act 1936
GEORGE VI
1 Edw. 8 &
1 Geo. 6 c. 25
Education (Deaf Children) Act 1937
lowered the school starting age for deaf children.
1 Edw. 8 &
1 Geo. 6 c. 37
Children and Young Persons (Scotland) Act 1937(pdf 1.6mb)
wide-ranging Act covering child protection, employment, criminal proceedings and children in care.
1 Edw. 8 &
1 Geo. 6 c. 46
Physical Training and Recreation Act 1937 (pdf 250kb)
provided for National Advisory Councils and a National College of Physical Training.
1 Edw. 8 &
1 Geo. 6 c. 67
Factories Act 1937 (pdf 22.8mb)
wide-ranging Act including limitations on the employment of young people in hazardous environments.
1 & 2 Geo. 6 c. 40 Children and Young Persons Act 1938
2 & 3 Geo. 6 c. 4 Custody of Children (Scotland) Act 1939
2 & 3 Geo. 6 c. 27 Adoption of Children (Regulation) Act 1939
2 & 3 Geo. 6 c. 60 Senior Public Elementary Schools (Liverpool) Act 1939
2 & 3 Geo. 6 c. 96 Education (Scotland) (War Service Superannuation) Act 1939 (pdf 102kb)
teachers’ war service to be reckoned for superannuation.
2 & 3 Geo. 6 c. 106 Universities and Colleges (Emergency Provisions) Act 1939
4 & 5 Geo. 6 c. 20 Public and Other Schools (War Conditions) Act 1941
4 & 5 Geo. 6 c. 23 Temporary Migration of Children (Guardianship) Act 1941
5 & 6 Geo. 6 c. 5 Education (Scotland) Act 1942
6 & 7 Geo. 6 c. 9 Universities and Colleges (Trusts) Act 1943 (pdf 131kb)
provisions regarding trust property at Oxford, Cambridge and St Mary’s College Winchester.
7 & 8 Geo. 6 c. 8 Guardianship (Refugee Children) Act 1944
7 & 8 Geo. 6 c. 31 Education Act 1944 (pdf 1.8mb)
the ‘Butler Act’ set the structure of the post-war system of state education.
8 & 9 Geo. 6 c. 37 Education (Scotland) Act 1945 (pdf 1.5mb)
the Scottish version of the 1944 Act.
9 & 10 Geo. 6 c. 50 Education Act 1946 (pdf 280kb)
set out arrangements for the management of voluntary and controlled schools.
9 & 10 Geo. 6 c. 72 Education (Scotland) Act 1946
further enactments building on the Education (Scotland) Act 1945.
10 & 11 Geo. 6 c. 36 Education (Exemptions) (Scotland) Act 1947
made temporary provision for children to miss school to help with harvesting the potato crop.
10 & 11 Geo. 6 c. 43 Local Government (Scotland) Act 1947 (pdf 5.9mb)
wide-ranging Act (including provisions relating to education) consolidating previous Acts and amendments.
NI 1947 c. 3 Education Act (Northern Ireland) 1947
a major Act of the Northern Ireland Parliament setting out arrangements for the education system.
11 & 12 Geo. 6 c. 26 Local Government Act 1948 (pdf 1.9mb)
wide-ranging Act (including provisions relating to education) consolidating previous Acts and amendments.
11 & 12 Geo. 6 c. 40 Education (Miscellaneous Provisions) Act 1948(pdf 292kb)
laid down new rules on various administrative matters.
11 & 12 Geo. 6 c. 43 Children Act 1948
made provision for the care and welfare of children without parents or whose parents were unfit or unable to take care of them.
11 & 12 Geo. 6 c. 46 *Employment and Training Act 1948
established the Youth Employment Service.
11 & 12 Geo. 6 c. 53 Nurseries and Child-Minders Regulation Act 1948 (pdf 200kb)
laid down rules for the regulation and inspection of child minders.
12 & 13 Geo. 6 c. 19 Education (Scotland) Act 1949
made various amendments to the Education (Scotland) Act, 1946.
12, 13 & 14 Geo. 6 c. 98 Adoption of Children Act 1949 (pdf 295kb)
made amendments to the Adoption of Children Act 1926.
NI 1950 c. 1 Education (Miscellaneous Provisions) Act (Northern Ireland) 1950
NI 1950 c. 20 Education (Extension of Benefits) Act (Northern Ireland) 1950
NI 1951 c. 10 Education (Amendment) Act (Northern Ireland) 1951
15 & 16 Geo. 6 & 1 Eliz. 2 c. 50 Children and Young Persons (Amendment) Act 1952 (pdf 209kb)
made amendments to the Children and Young Persons Act 1933 and the Criminal Justice Act 1948.
ELIZABETH II
NI 1952 c. 17 Education (Miscellaneous Provisions) Act (Northern Ireland) 1952
1 & 2 Eliz. 2 c. 33 Education (Miscellaneous Provisions) Act 1953(pdf 424kb)
amendments to the 1944 Education Act relating to displaced pupils, controlled schools, dental treatment etc.
1 & 2 Eliz. 2 c. 40 University of St Andrews Act 1953
provided for the re-organisation of University education in St. Andrews and Dundee.
1 & 2 Eliz. 2 c. 45 School Crossing Patrols Act 1953
allowed school crossing patrols to control traffic.
NI 1953 c. 11 Education (Amendment) Act (Northern Ireland) 1953
3 & 4 Eliz. 2 c. 28 Children And Young Persons (Harmful Publications) Act 1955 (pdf 94kb)
banned the publication and sale of ‘horror comics’ etc.
4 & 5 Eliz. 2 c. 24 Children and Young Persons Act 1956
dealt with escapes from approved schools and remand homes etc.
4 & 5 Eliz. 2 c. 53 Teachers (Superannuation) Act 1956 (pdf 572kb)
amended previous legislation relating to teachers’ pensions in England and Wales and in Scotland.
4 & 5 Eliz. 2 c. 75 Education (Scotland) Act 1956
made various amendments to the Education (Scotland) Act, 1946.
NI 1956 c. 15 Educational Endowments (Confirmation of Schemes) Act (Northern Ireland) 1956
NI 1956 c. 24 Education (Amendment) Act (Northern Ireland) 1956
6 & 7 Eliz. 2 c. 40 Matrimonial Proceedings (Children) Act 1958
sought to protect the interests of children in divorce cases.
6 & 7 Eliz. 2 c. 55 Local Government Act 1958 (pdf 1.9mb)
wide-ranging Act including provisions relating to education.
6 & 7 Eliz. 2 c. 65 Children Act 1958
made new provisions for the protection of children living away from their parents and amended the law relating to adoption.
NI 1958 c. 28 Education (Amendment) Act (Northern Ireland) 1958
7 & 8 Eliz. 2 c. 60 Education Act 1959
gave the Minister greater powers relating to grants and loans to aided schools and special agreement schools.
7 & 8 Eliz. 2 c. 72 Mental Health Act 1959 (pdf 2.9mb)
wide-ranging Act including provisions relating to children.
8 & 9 Eliz. 2 c. 33 Indecency with Children Act 1960 (pdf 61kb)
strengthened the law relating to sexual offences against children, especially young girls.
NI 1960 c. 9 Education (Amendment) Act (Northern Ireland) 1960
10 & 11 Eliz. 2 c. 12 Education Act 1962 (pdf 240kb)
required LEAs to provide students with grants for living costs and tuition fees; placed legal obligation on parents to ensure that children received a suitable education at school or otherwise – failure to comply could result in prosecution; made LEAs legally responsible for ensuring that pupils attended school.
10 & 11 Eliz. 2 c. 33 *Health Visiting and Social Work (Training) Act 1962 (pdf 5.1mb)
10 & 11 Eliz. 2 c. 47 Education (Scotland) Act 1962 (pdf 2.6mb)
major Act consolidating previous legislation relating to education in Scotland.
NI 1962 c. 11 Education (Amendment) Act (Northern Ireland) 1962
1963 c. 20 Remuneration of Teachers Act 1963
gave the Minister powers relating to the remuneration of teachers.
1963 c. 21 Education (Scotland) Act 1963
miscellaneous provisions relating to examinations and teachers’ salaries and pensions.
1963 c. 33 London Government Act 1963
abolished London County Council (LCC) and replaced it with the Greater London Council (GLC).
1963 c. 37 Children and Young Persons Act 1963 (pdf 1020kb)
extended LEAs’ responsibilities for the welfare of children.
NI 1963 c. 27 Education (Amendment) Act (Northern Ireland) 1963
1964 c. 16 Industrial Training Act
made further provision for industrial and commercial training.
1964 c. 51 Universities and College Estates Act 1964 (pdf 164kb)
amended the law relating to university and college property.
1964 c. 75 Public Libraries and Museums Act
made provision for improvements in the public library service.
1964 c. 82 Education Act 1964 (pdf 64kb)
the ‘Boyle Act’ allowed the creation of middle schools.
1965 c. 3 Remuneration of Teachers Act 1965
set out new provisions for determining the remuneration of teachers.
1965 c. 7 Education (Scotland) Act 1965
amended the Education (Scotland) Act 1963.
1965 c. 19 Teaching Council (Scotland) Act 1965 (pdf 336kb)
provided for the establishment of a General Teaching Council for Scotland.
1966 c. 13 Universities (Scotland) Act 1966 (pdf 356kb)
provided for the reconstitution of the universities of St Andrew’s, Glasgow, Aberdeen and Edinburgh and for the foundation of the University of Dundee.
1966 c. 42 Local Government Act 1966 (pdf 880kb)
made various changes in funding between central government and LEAs. Section 11 dealt with the funding of education for immigrant children.
NI 1966 c. 18 Education (Amendment) Act (Northern Ireland) 1966
1967 c. 3 Education Act 1967 (pdf 68kb)
gave the Secretary of State greater powers in relation to grants and loans to aided and special agreement schools etc.
1968 c. 12 Teachers Superannuation (Scotland) Act 1968(pdf 262kb)
amended teachers’ superannuation arrangements.
1968 c. 17 Education Act 1968 (pdf 180kb)
laid down rules about changing the character of a school (eg to comprehensive).
1968 c. 37 Education (No. 2) Act 1968
made further provision for the government of colleges of education, other further education institutions and special schools maintained by local education authorities.
1969 c. 49 Education (Scotland) Act 1969
amended various laws relating to education in Scotland, especially the 1962 Education (Scotland) Act.
1969 c. 54 Children and Young Persons Act 1969 (pdf 2.2mb)
gave LEAs responsibilities for children not receiving education or in need of care and control.
1970 c. 14 Education (School Milk) Act 1970
extended the provision of free school milk to junior pupils in middle schools.
1970 c. 52 Education (Handicapped Children) Act 1970 (pdf 60kb)
transferred responsibility for education of severely handicapped children from health authorities to LEAs.
1971 c. 2 Teaching Council (Scotland) Act 1971 (pdf 64kb)
allowed General Teaching Council for Scotland fees to be deducted from salaries.
1971 c. 42 Education (Scotland) Act 1971
amended the law relating to free education and the charging of fees in Scotland.
1971 c. 74 Education (Milk) Act 1971
limited the provision of free milk in schools (and led to the jibe ‘Thatcher, Thatcher, milk snatcher’).
1972 c. 44 Children Act 1972
the minimum age at which children could be employed was not to be affected by changes in the school leaving age.
1972 c. 70 Local Government Act 1972
a wide-ranging Act which reduced the number of LEAs from 146 to 104 (implemented on 1 April 1974).
1973 c. 16 Education Act 1973 (pdf 296kb)
provisions relating to certain educational trusts and local education authority awards.
1973 c. 23 Education (Work Experience) Act 1973 (pdf 52kb)
allowed LEAs to organise work experience for final year school students.
1973 c. 24 Employment of Children Act 1973 (pdf 144kb)
new regulations and supervision by local authorities.
1973 c. 32 National Health Service Reorganisation Act 1973
transferred the school health service from LEAs to Area Health Authorities, but LEAs still responsible for dental and medical inspections.
1973 c. 50 Employment and Training Act 1973 (pdf 1.5mb)
required LEAs to set up careers services; established the Manpower Services Commission (MSC) under the Department of Employment, the Employment Service Agency and the Training Services Agency.
1973 c. 59 Education (Scotland) Act 1973
increased the powers of the Secretary of State in relation to the employment of teachers.
1974 c. 7 Local Government Act 1974 (pdf 2.2mb)
wide-ranging Act including some provisions relating to education.
1974 c. 27 Education (Mentally Handicapped Children) (Scotland) Act 1974 (pdf 123kb)
required Scottish education authorities to provide for the education of mentally handicapped children.
1975 c. 2 Education Act 1975
amended the law relating to local education authority grants, awards to students at adult education colleges, and increased central government funding for aided and special agreement schools.
1975 c. 61 Child Benefit Act 1975
replaced family allowances with child benefit.
1975 c. 65 Sex Discrimination Act 1975 (pdf 1.8mb)
had effects on school admissions, appointments and curricula.
1975 c. 72 Children Act 1975 (pdf 1.8mb)
wide-ranging Act relating to the adoption, custody and care of children.
1976 c. 5 Education (School-leaving Dates) Act 1976 (pdf 56kb)
a minor amendment to section 9 of the 1962 Education Act.
1976 c. 20 Education (Scotland) Act 1976
miscellaneous provisions relating to school starting and leaving dates, supply of milk etc.
1976 c. 74 Race Relations Act 1976 (pdf 1.3mb)
new laws relating to discrimination and race relations with implications for schools and education authorities.
1976 c. 81 Education Act 1976 (pdf 148kb)
gave the Secretary of State the power to ask LEAs to plan for non-selective (ie comprehensive) secondary education (repealed by the Conservatives in 1979).
1978 c. 13 Education (Northern Ireland) Act 1978
facilitated the establishment in Northern Ireland of integrated schools for pupils of different religious affiliations.
1978 c. 37 Protection of Children Act 1978 (pdf 115kb)
made illegal the making and distribution of indecent photographs of children.
1979 c. 49 Education Act 1979 (pdf 40kb)
repealed Labour’s 1976 Act – allowed LEAs to retain selective secondary schools.
1980 c. 5 Child Care Act 1980 (pdf 1.6mb)
wide-ranging Act largely consolidating previous legislation relating to the role of local authorities and voluntary organisations.
1980 c. 6 Foster Children Act 1980
consolidated previous legislation relating to foster children.
1980 c. 20 Education Act 1980
instituted the assisted places scheme (public money for children to go to private schools), gave parents greater powers on governing bodies and over admissions, and removed LEAs’ obligation to provide school milk and meals.
1980 c. 44 Education (Scotland) Act 1980 (pdf 2.1mb)
wide-ranging Act largely consolidating previous legislation.
1980 c. 65 Local Government, Planning and Land Act 1980(pdf 6.4mb)
wide-ranging Act involving changes to the block grant.
1981 c. 58 Education (Scotland) Act 1981 (pdf 1.3mb)
wide-ranging Act including the provision of assisted places at private schools.
1981 c. 60 Education Act 1981 (pdf 496kb)
based on the 1978 Warnock Report, gave parents new rights in relation to special needs.
1982 c. 20 Children’s Homes Act 1982 (pdf 250kb)
provided for the registration, inspection and conduct of homes for children in local authority care.
1983 c. 40 Education (Fees and Awards) Act 1983
provisions relating to university fees and grants for non-UK students.
1984 c. 6 Education (Amendment) (Scotland) Act 1984 (pdf 37kb)
gave the Secretary of State power to control the use of dangerous materials or apparatus in Scottish schools.
1984 c. 11 Education (Grants and Awards) Act 1984 (pdf 88kb)
introduced Education Support Grants (ESGs) – central government funds given to LEAs for specific purposes.
1984 c. 33 Rates Act 1984 (pdf 782kb)
set limits on local authority expenditure by ‘rate-capping’.
1984 c. 37 Child Abduction Act 1984 (pdf 258kb)
amended the criminal law relating to the abduction of children.
1984 c. 56 Foster Children (Scotland) Act 1984 (pdf 549kb)
consolidated previous legislation.
1985 c. 47 Further Education Act 1985 (pdf 193kb)
empowered local authorities to supply goods and services through further education establishments; amended sex discrimination rules relating to PE teachers.
1985 c. 60 Child Abduction and Custody Act 1985 (pdf 623kb)
enabled the UK to ratify international Conventions relating to child abduction and custody decisions.
1986 c. 1 Education (Amendment) Act 1986 (pdf 37kb)
brief Act increasing education support grant limits and removing payment for lunch duties from the 1965 Remuneration of Teachers Act.
1986 c. 9 Law Reform (Parent and Child) (Scotland) Act 1986 (pdf 561kb)
provisions relating to ‘birth out of wedlock’, parental rights and duties etc.
1986 c. 10 Local Government Act 1986 (pdf 438kb)
Section 2 prevented local authorities from publishing political material.
1986 c. 28 Children and Young Persons (Amendment) Act 1986 (pdf 115kb)
amended the law relating to children and young people in care.
1986 c. 40 Education Act 1986 (pdf 92kb)
required LEAs to give governors information on funding.
1986 c. 61 Education (No. 2) Act 1986 (pdf 1.6mb)
required LEAs to state policies, governors to publish annual reports and hold parents’ meetings; laid down rules on admissions, political indoctrination and sex education; abolished corporal punishment; ended Secretary of State’s duty to make annual reports.
1987 c. 1 Teachers’ Pay and Conditions Act 1987
abolished the negotiating procedures set up by the 1965 Act – Secretary of State imposed teachers’ pay and conditions until 1991.
1988 c. 9 Local Government Act 1988
included the notoriously homophobic Section 28 (which was repealed by New Labour in November 2003).
1988 c. 19 Employment Act 1988 introduced bridging allowance for young people waiting to take up YTS place. MSC renamed the Training Commission.
1988 c. 40 Education Reform Act 1988 (pdf 45.9mb)
major act establishing the National Curriculum, testing regime, Local Management of Schools (LMS) etc.
1988 c. 47 School Boards (Scotland) Act 1988
required Scottish local authorities to establish School Boards.
1989 c. 38 Employment Act 1989 (pdf 352kb)
abolished the Training Commission.
1989 c. 39 Self-Governing Schools etc. (Scotland) Act 1989(pdf 1.4mb)
the Tories’ failed attempt to get Scottish schools to opt out of local authority control: only two did so and they both later reversed their decision.
1989 c. 41 Children Act 1989 (pdf 6.0mb)
wide-ranging Act covering local authority services, children’s homes, fostering, child minding and adoption.
1990 c. 6 Education (Student Loans) Act 1990 (pdf 116kb)
introduced ‘top-up’ loans for higher education students and so began the diminution of student grants.
1991 c. 14 Motor Vehicles (Safety Equipment for Children) Act 1991 (pdf 61kb)
an amendment to the Road Traffic Act 1988.
1991 c. 48 Child Support Act 1991 (pdf 823kb)
tightened up the law on maintenance payments.
1991 c. 49 School Teachers’ Pay and Conditions Act 1991(pdf 172kb)
established a review body but gave the Secretary of State the final say.
1992 c. 13 Further and Higher Education Act 1992 (pdf 1.6mb)
removed further education and sixth form colleges from LEA control and established Further Education Funding Councils (FEFCs), unified the funding of higher education under the Higher Education Funding Councils (HEFCs), introduced competition for funding between institutions, abolished the Council for National Academic Awards.
1992 c. 37 Further and Higher Education (Scotland) Act 1992 (pdf 1.7mb)
new arrangements for the funding and management of colleges in Scotland.
1992 c. 38 Education (Schools) Act 1992 (pdf 4.2mb)
new arrangements for the inspection of schools led to the creation of Ofsted (Office for Standards in Education).
1993 c. 35 Education Act 1993 (pdf 19.1mb)
changed the funding of GM schools, laid down rules for pupil exclusions and for ‘failing’ schools, abolished NCC and SEAC and replaced them with the School Curriculum and Assessment Authority (SCAA), defined special educational needs.
1994 c. 16 University of London Act 1994 (pdf 61kb)
made new provision for the making of statutes for the University.
1994 c. 30 Education Act 1994 (pdf 3.7mb)
established the Teacher Training Authority (TTA) and laid down new regulations relating to student unions.
1995 c. 34 Child Support Act 1995 (pdf 459kb)
made provisions relating to child support maintenance and other maintenance.
1995 c. 36 Children (Scotland) Act 1995 (pdf 3.4mb)
wide-ranging Act covering adoption, relationships between parents/guardians and children and children’s homes.
1996 c. 9 Education (Student Loans) Act 1996 (pdf 56kb)
extended the provision of student loans.
1996 c. 43 Education (Scotland) Act 1996 (pdf 901kb)
established the Scottish Qualifications Authority, enabled grants for nursery providers etc.
1996 c. 50 Nursery Education and Grant-Maintained Schools Act 1996 (pdf 2.1mb)
introduced unsuccessful voucher scheme for nursery education (later withdrawn by Labour), and allowed governors of GM schools to borrow money.
1996 c. 56 Education Act 1996 (pdf 1.6mb)
huge act mainly consolidating all education acts since 1944.
1996 c. 57 School Inspections Act 1996 (pdf 8.0mb)
consolidated previous legislation on school inspections.
1997 c. 44 Education Act 1997 (pdf 996kb)
wide-ranging but much watered down because of the forthcoming general election. Abolished NCVQ and SCAA and replaced them with the Qualifications and Curriculum Authority (QCA).
1997 c. 59 Education (Schools) Act 1997 (pdf 92kb)
New Labour’s first education act abolished the assisted places scheme and proposed binding home-school agreements (the latter not implemented).
1998 c. 1 Education (Student Loans) Act 1998 (pdf 88kb)
transferred provision of student loans to the private sector.
1998 c. 30 Teaching and Higher Education Act 1998 (pdf 836kb)
established the General Teaching Council (GTC), abolished student maintenance grants and required students to contribute towards tuition fees.
1998 c. 31 School Standards and Framework Act 1998 (pdf 940kb)
encouraged selection by specialisation, changed the names of types of schools, limited infant class sizes, established Education Action Zones etc.
1999 c. 14 Protection of Children Act 1999 (pdf 86kb)
provided for a list to be kept of persons considered unsuitable to work with children.
2000 c. 14 Care Standards Act 2000 (pdf 430kb)
wide-ranging Act including provisions relating to children; created the post of Children’s Commissioner for Wales.
2000 c. 16 Carers and Disabled Children Act 2000 (pdf 66kb)
made provisions about the assessment of carers’ needs and services to help carers etc.
2000 c. 19 Child Support, Pensions and Social Security Act 2000 (pdf 594kb)
wide-ranging Act amending various laws.
2000 c. 21 Learning and Skills Act 2000 (pdf 484kb)
established the Learning and Skills Councils for England and Wales, allowed city technology colleges to be renamed city academies.
2000 c. 35 Children (Leaving Care) Act 2000 (pdf 78kb)
more duties for local authorities, replacing section 24 of the 1989 Children Act.
2001 c. 10 Special Educational Needs and Disability Act 2001 (pdf 799kb)
amended Part 4 of the 1996 Education Act – made further provision against discrimination on grounds of disability.
2001 c. 18 Children’s Commissioner for Wales Act 2001 (pdf 123kb)
made further provisions relating to the role of the Commissioner.
2002 c. 32 Education Act 2002 (pdf 6.4mb)
wide-ranging Act which implemented the proposals in the 2001 white paper.
2002 c. 38 Adoption and Children Act 2002 (pdf 3.8mb)
wide-ranging Act restating and amending the law relating to the adoption of children.
2004 c. 6 Child Trust Funds Act 2004 (pdf 119kb)
made provisions regarding child trust funds and related matters.
2004 c. 8 Higher Education Act 2004 (pdf 196kb)
based on the 2004 white paper, it allowed universities to charge variable top-up fees.
2004 c. 31 Children Act 2004 (pdf 280kb)
based on the 2003 green paper Every Child Matters.
2005 c. 6 Child Benefit Act 2005 (pdf 147kb)
redefined those entitled to child benefit.
2005 c. 18 Education Act 2005 (pdf 648kb)
mostly concerned with changes to the inspection regime.
2006 c. 3 Equality Act 2006 (pdf 406kb)
established the Commission for Equality and Human Rights with implications for schools.
2006 c. 20 Children and Adoption Act 2006 (pdf 201kb)
made provisions regarding contact with children, family assistance orders, risk assessments etc.
2006 c. 21 Childcare Act 2006 (pdf 381kb)
new rules relating to the provision, regulation and inspection of childcare.
2006 c. 40 Education and Inspections Act 2006 (pdf 1.0mb)
very controversial – passed only with Tory support.
2007 c. 25 Further Education and Training Act 2007 (pdf 196kb)
new arrangements relating to further education and the Learning and Skills Council for England.
2008 c. 6 Child Maintenance and Other Payments Act 2008
established the Child Maintenance and Enforcement Commission.
2008 c. 10 Sale of Student Loans Act 2008 (pdf 86kb)
allowed the government to sell off student loans.
2008 c. 11 Special Educational Needs (Information) Act 2008 (pdf 61kb)
amended the 1996 Education Act in relation to the provision and publication of information about children with special educational needs.
2008 c. 23 Children and Young Persons Act 2008
new arrangements for the provision of social work services.
2008 c. 25 Education and Skills Act 2008 (pdf 672kb)
raised the education leaving age to 18; Key Stage 3 SATs effectively abolished.
2009 c. 22 Apprenticeships, Skills, Children and Learning Act 2009 (pdf 1.0mb)
created a statutory framework for apprenticeships.
2010 c. 9 Child Poverty Act 2010 (pdf 140kb)
set targets relating to the eradication of child poverty.
2010 c. 15 Equality Act 2010 (pdf 745kb)
wide-ranging Act which replaced nine major Acts of Parliament and almost a hundred sets of regulations which had been introduced over several decades.
2010 c. 26 Children, Schools and Families Act 2010 (pdf 124kb)
based on the 2009 white paper but much reduced because of the impending election.
2010 c. 32 Academies Act 2010
coalition government’s first education act provided for massive and rapid expansion of academies.
2011 c. 21 Education Act 2011
increased schools’ powers relating to pupil behaviour and exclusions, further diminished the role of local authorities, further expansion of academies etc.
2014 c. 6 Children and Families Act 2014 (pdf 1.5mb)
wide-ranging Act covering adoption, family justice, special educational needs and disabilities, childcare, welfare of children, the Children’s Commissioner, statutory rights to leave and pay, time off work and ante-natal care, flexible working rights.

Plagiarism- an act of fraud

Plagiarism is a specific and serious form of academic misconduct, and includes:

  1. direct copying of the work of other persons, from one or more sources, without clearly indicating the origin. This includes both paper-based and electronic sources of material from websites, books, articles, theses, working papers, seminar and conference papers, internal reports, lecture notes or tapes, and visual materials such as photographs, drawings and designs
  2. using very close paraphrasing of sentences or whole passages without due acknowledgment in the form of referencing the original work
  3. submitting another student’s work in whole or in part, where such assistance is not expressly permitted in the course outline
  4. use of another person’s ideas, work or research data without acknowledgment
  5. submitting work that has been written by someone else on the student’s behalf
  6. copying computer files, algorithms or computer code without clearly indicating their origin
  7. submitting work that has been derived, in whole or in part, from another student’s work by a process of mechanical transformation (e.g. changing variable names in computer programs)
  8. in any way appropriating or imitating another’s ideas and manner of expressing them where such assistance is not expressly permitted in the course outline

(Source: University of South Australia – Glossary of University terms – University Website)

Departments under Faculty of Medicine, Banaras Hindu University

Departments of:-

  1. Anatomy
  2. Biochemistry
  3. Forensic Medicine
  4. Medicine
  5. Microbiology.
  6. Obstetrics and Gynaecology
  7. Ophthalmology
  8. Physiology
  9. Pharmacology
  10. Pathology
  11. Preventive and Social Medicine
  12. Paediatrics
  13. Radiology
  14. Surgery
  15. Anaesthesiology
  16. Biophysics
  17. Dentistry
  18. Orthopaedics
  19. (xix) Otorhinolaryngology
  20. (xx) Psychiatry
  21. (xxi) Radiotherapy and Radiation Medicine
  22. (xxii) Dermetology and Venereology
  23. (xxiii) Tuberculosis and Chest Diseases
  24. (xxiv)Neuro-surgery
  25. (xxv) Plastic Surgery
  26. (xxvi) Urology
  27. (xxvii) Paediatrics Surgery
  28. (xxviii) Neurology
  29. (xxix) Nephrology
  30. (xxx) Gastroenterology
  31. (xxxi) Endocrinology
  32. (xxxii) Cardiothoracic Surgery
  33. (xxxiii) Cardiology