Use of Order 18 Rule 17A of CPC is for production of evidence not previously known or which could not be produced despite due diligence

The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

12. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose. [Supreme Court of India in K.K. Velusamy vs N. Palaanisamy, decided on 30 March, 2011]

In exceptional cases even at the stage of argument or closure, evidence can be reopened or witness can be recalled

SUPREME COURT OF INDIA

K.K. Velusamy  Versus  N. Palanisamy

(Before : R. V. Raveendran and A. K. Patnaik, JJ.)

Civil Appeal Nos. 2795-2796 of 2011 (Arising out of SLP (C) Nos. 18211-18212 of 2010) :

Decided On: 30-03-2011

Civil Procedure Code, 1908—Order 18, Rule 17 read with Section 151—Recall of witness—There is no specific provision in CPC enabling parties to re­open evidence for the purpose of further examination-in-chief or cross-examination—In absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by Court, inherent power under Section 151, can be invoked in appropriate cases to re­open evidence and/or recall witnesses for further examination—Inherent power of Court is not affected by express power conferred upon Court under Order 18, Rule 17 to recall any witness.

Civil Procedure Code, 1908—Section 151—Inherent power—Section 151 cannot be routinely invoked for reopening evidence or recalling witnesses—Section 151 is not a substantive provision which creates or confers any power or jurisdiction on Courts—It merely recognizes discretionary power inherent in every Court as a necessary corollary for rendering justice in accordance with law.

Civil Procedure Code, 1908—Order 18, Rule 17 read with Section 151—Recall of witness—Power under Section 151 or Order 18, Rule 17 is not intended to be used routinely, merely for asking—But where application is found to be bona fide and where additional evidence, will assist Court to clarify evidence on the issues and will assist in rendering justice, Court may exercise its discretion to recall witnesses or permit fresh evidence—But if it does so, it should ensure that process does not become a protracting tactic.

 

JUDGMENT

R.V. Raveendran, J—Leave granted.

2. The Respondent herein has filed a suit for specific performance (OS No. 48/2007) alleging that the Appellant-Defendant entered into a registered agreement of sale dated 20.12.2006 agreeing to sell the suit schedule property to him, for a consideration of ` 240,000/-; that he had paid Rs.160,000/- as advance on the date of agreement; that the Appellant agreed to execute a sale deed by receiving the balance of ` 80,000/- within three months from the date of sale; that he was ready and willing to get the sale completed and issued a notice dated 16.3.2007 calling upon the Appellant to execute the sale deed on 20.3.2007; and that he went to the Sub-Registrar’s office on 20.3.2007 and waited, but the Appellant did not turn up to execute the sale deed. On the said averments, the Respondent sought specific performance of the agreement of sale or alternatively refund of the advance of ` 160,000/- with interest at 12% per annum from 20.12.2006.

3. The Appellant resisted the suit. He alleged that he was in need of Rs.150,000 and approached the Respondent who was a money lender, with a request to advance him the said amount as a loan; that the Respondent agreed to advance the loan but insisted that the Appellant should execute and register a sale agreement in his favour and also execute some blank papers and blank stamp-papers, as security for the repayment of the amount to be advanced; and that trusting the Respondent, the Appellant executed the said documents with the understanding that the said documents will be the security for the repayment of the loan with interest. The Appellant therefore contended that the Respondent – Plaintiff was not entitled to specific performance.

4. The suit was filed on 26.3.2007. The written statement was filed on 12.9.2007. Thereafter issues were framed and both parties led evidence. On 11.11.2008 when the arguments were in progress, the Appellant filed two applications (numbered as IA No. 216/2009 and IA No. 217/2009). The first application was filed under Section 151 of the Code of Civil Procedure (‘Code’ for short) with a prayer to reopen the evidence for the purpose of further cross-examination of Plaintiff (PW1) and the attesting witness Eswaramoorthy (PW2). IA No. 217/2009 was filed under Order 18 Rule 17 of the Code for recalling PWs.1 and 2 for further cross examination. The Appellant wanted to cross-examine the witnesses with reference to the admissions made during some conversations, recorded on a compact disc (an electronic record). In the affidavits filed in support of the said applications, the Appellant alleged that during conversations among the Appellant, Respondent and three others (Ponnuswamy alias Krishnamoorthy, Shiva and Saravana Kumar), the Respondent-Plaintiff admitted that Eswaramoorthy (PW2) had lent the amount (shown as advance in the agreement of sale) to the Appellant through the Respondent; and that during another conversation among the Appellant, Eswaramoorthy and Shiva, the said Eswaramoorthy (PW2) also admitted that he had lent the amount (mentioned in the agreement of sale advance) through the Respondent; that both conversations were recorded by a digital voice recorder; that conversation with Plaintiff was recorded on 27.10.2008 between 8 a.m. to 9.45 a.m. and the conversation with Eswaramoorthy was recorded on 31.10.2008 between 7 to 9.50 p.m.; and that it was therefore necessary to reopen the evidence and further cross-examine PW1 and PW2 with reference to the said admissions (electronically recorded evidence) to demonstrate that the agreement of sale was only a security for the loan. It is stated that the Compact Disc containing the recording of the said conversations was produced along with the said applications.

5. The Respondent resisted the said applications. He denied any such conversations or admissions. He alleged that the recordings were created by the Appellant with the help of mimicry specialists and Ponnuswamy, Shiva and Saravana Kumar. He contended that the application was a dilatory tactic to drag on the proceedings.

6. The trial court, by orders dated 9.9.2009, dismissed the said applications. The trial court held that as the evidence of both parties was concluded and the arguments had also been heard in part, the applications were intended only to delay the matter. The revision petitions filed by the Appellant challenging the said orders, were dismissed by the High Court by a common order dated 7.4.2010, reiterating the reasons assigned by the trial court. The said order is challenged in these appeals by special leave. The only question that arises for consideration is whether the applications for reopening/recalling ought to have been allowed.

7. The amended definition of “evidence” in Section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in Section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M. Malkani v. State of Maharastra, AIR 1973 SC 157, this Court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.

8. Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. (Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate, (2009) 4 SCC 410. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in-chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

9. There is no specific provision in the Code enabling the parties to re-open the evidence for the purpose of further examination-in-chief or cross-examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under Section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re-open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

10. The Respondent contended that Section 151 cannot be used for re-opening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that section 151 of the Code cannot be routinely invoked for reopening evidence or recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions (See: Padam Sen v. State of UP, AIR 1961 SC 218; Manoharlal Chopra v. Seth Hiralal, AIR 1962 SC 527; Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993; Ram Chand and Sons Sugar Mills (P) Ltd. v. Kanhay Lal, AIR 1966 SC 1899; Nain Singh v. Koonwarjee, (1970) 1 SCC 732; The Newabganj Sugar Mills Co. Ltd. v. Union of India, AIR 1976 SC 1152; Jaipur Mineral Development Syndicate v. Commissioner of Income Tax, New Delhi, AIR 1977 SC 1348; National Institute of Mental Health and Neuro Sciences v. C Parameshwara, (2005) 2 SCC 256; and Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1. We may summarize them as follows:

(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.

(b) As the provisions of the Code are not exhaustive, Section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.

(c) A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.

(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.

(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.

11. The Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a late stage, after the conclusion of his evidence if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. The deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence.

12. The amended provisions of the Code contemplate and expect a trial court to hear the arguments immediately after the completion of evidence and then proceed to judgment. Therefore, it was unnecessary to have an express provision for re-opening the evidence to examine a fresh witness or for recalling any witness for further examination. But if there is a time gap between the completion of evidence and hearing of the arguments, for whatsoever reason, and if in that interregnum, a party comes across some evidence which he could not lay his hands earlier, or some evidence in regard to the conduct or action of the other party comes into existence, the court may in exercise of its inherent power under Section 151 of the Code, permit the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.

13. The learned Counsel for Respondent contended that once arguments are commenced, there could be no re-opening of evidence or recalling of any witness. This contention is raised by extending the convention that once arguments are concluded and the case is reserved for judgment, the court will not entertain any interlocutory application for any kind of relief. The need for the court to act in a manner to achieve the ends of justice (subject to the need to comply with the law) does not end when arguments are heard and judgment is reserved. If there is abuse of the process of the court, or if interests of justice require the court to do something or take note of something, the discretion to do those things does not disappear merely because the arguments are heard, either fully or partly. The convention that no application should be entertained once the trial or hearing is concluded and the case is reserved for judgment is a sound rule, but not a straitjacket formula. There can always be exceptions in exceptional or extraordinary circumstances, to meet the ends of justice and to prevent abuse of process of Court, subject to the limitation recognized with reference to exercise of power under Section 151 of the Code. Be that as it may. In this case, the applications were made before the conclusion of the arguments.

14. Neither the trial court nor the High court considered the question whether it was a fit case for exercise of discretion under Section 151 or Order 18 Rule 17 of the Code. They have not considered whether the evidence sought to be produced would either assist in clarifying the evidence led on the issues or lead to a just and effective adjudication. Both the courts have mechanically dismissed the application only on the ground that the matter was already at the stage of final arguments and the application would have the effect of delaying the proceedings.

15. The Appellant – Defendant has taken a consistent stand in his reply notice, written statement and evidence that the agreement of sale was executed to secure a loan of ` 150,000, as the Respondent insisted upon execution and registration of such agreement. If after the completion of recording of evidence, PW1 and PW2 had admitted during conversations that the amount paid was not advance towards sale price, but only a loan and the agreement of sale was obtained to secure the loan, that would be material evidence which came into existence subsequent to the recording of the depositions, having a bearing on the decision and will also clarify the evidence already led on the issues. According to the Appellant, the said evidence came into existence only on 27.10.2008 and 31.10.2008, and he prepared the applications and filed them at the earliest, that is on 11.11.2008. As Defendant could not have produced this material earlier and if the said evidence, if found valid and admissible, would assist the court to consider the evidence in the correct perspective or to render justice, it was a fit case for exercising the discretion under Section 151 of the Code. The courts below have not applied their minds to the question whether such evidence will be relevant and whether the ends of justice require permission to let in such evidence. Therefore the order calls for interference.

16. We may add a word of caution. The power under Section 151 or Order 18 Rule 17 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But where the application is found to be bona fide and where the additional evidence, oral or documentary, will assist the court to clarify the evidence on the issues and will assist in rendering justice, and the court is satisfied that non-production earlier was for valid and sufficient reasons, the court may exercise its discretion to recall the witnesses or permit the fresh evidence. But if it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. If the application is allowed and the evidence is permitted and ultimately the court finds that evidence was not genuine or relevant and did not warrant the reopening of the case recalling the witnesses, it can be made a ground for awarding exemplary costs apart from ordering prosecution if it involves fabrication of evidence. If the party had an opportunity to produce such evidence earlier but did not do so or if the evidence already led is clear and unambiguous, or if it comes to the conclusion that the object of the application is merely to protract the proceedings, the court should reject the application. If the evidence sought to be produced is an electronic record, the court may also listen to the recording before granting or rejecting the application.

17. Ideally, the recording of evidence should be continuous, followed by arguments, without any gap. Courts should constantly endeavour to follow such a time schedule. The amended Code expects them to do so. If that is done, applications for adjournments, re-opening, recalling, or interim measures could be avoided. The more the period of pendency, the more the number of interlocutory applications which in turn add to the period of pendency.

18. In this case, we are satisfied that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under Section 151 of the Code. The court ought to have also considered whether it should straightway recall PW1 and PW2 and permit the Appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2).

19. In view of the above, these appeals are allowed in part. The orders of the High Court and Trial Court dismissing IA No. 216/2009 under Section 151 of the Code are set aside. The orders are affirmed in regard to the dismissal of IA No. 217/2009 under Order 18 Rule 17 of the Code. The trial court shall now consider IA No. 216/2009 afresh in accordance with law.


JT 2011 (4) SC 38 : (2011) 4 SCALE 61 : (2011) 11 SCC 275

Non-availability of express provision Civil courts can pass necessary orders for ends of justice, or to prevent abuse of process of Court

The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of Court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible.

Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.

AIR 1962 SC 527 : (1962) 1 Suppl. SCR 450

SUPREME COURT OF INDIA

Manohar Lal Chopra Versus Rai Bahadur Rao Raja Seth Hiralal

(Before : K. N. Wanchoo, K. C. Das Gupta, J. C. Shah And Raghubar Dayal, JJ.)

Civil Appeal No. 846 of 1958, Decided on : 16-11-1961.

Civil Procedure Code, 1908—Section 151—Inherent powers—Temporary injunction—The court has inherent powers to issue order in respect of the case falling under Order 39 of the code.

Judgment

Raghubar Dayal, J— (On Behalf Of Himself And Wanchoo And Das Gupta JJ.)—The appellant and the respondent entered into a partnership at Indore for working coal mines at Kajoragram (District Burdwan) and manufacture of cement etc., in the name and style of ‘Diamond Industries’. The head office of the partnership was at Indore. The partnership was dissolved by a deed of dissolution dated August 22, 1945. Under the terms of this deed, the appellant made himself liable to render full, correct and true account of all the moneys advanced by the respondent and also to render accounts of the said partnership and its business, and was held entitled to 1/4th of ` 4,00,000 solely contributed by the respondent towards the capital of the partnership. He was, however, not entitled to get this amount unless and until he had rendered the accounts and they had been checked and audited.

2. The second proviso at the end of the covenants in the deed of dissolution reads:

“Provided however and it is agreed by and between the parties that as the parties entered into the partnership agreement at Indore (Holkar State) all disputes and differences whether regarding money or as to the relationship or as to their rights and liabilities of the parties hereto in respect of the partnership hereby dissolved or in respect of questions arising by and under this document shall be decided amicably or in court at Indore and at nowhere else.”

3. On September 29, 1945, a registered letter on behalf of the respondent was sent to the appellant. This required the appellant to explain to and satisfy the respondent at Indore as to the accounts of the said colliery within three months of the receipt of the notice. It was said in the notice that the accounts submitted by the appellant had not been properly kept and that many entries appeared to be wilfully falsified, evidently with mala fide intentions and that there appeared in the account books various false and fictitious entries causing wrongful loss to the respondent and wrongful gain to the appellant. The appellant sent a reply to this notice on December 5, 1945, and denied the various allegations, and requested the respondent to meet him at Asansol or Kajoragram on any day suitable to him, within ten days from the receipt of that letter.

4. On August 18, 1948, the appellant instituted Suit M. S. No. 39 of 1948 in the Court of the Subordinate Judge at Asansol against the respondent for the recovery at ` 1,00,000 on account of his share in the capital and assets of the partnership firm ‘Diamond Industries’ and ` 18,000 as interest for detention of the money or as damages or compensation for wrongful withholding of the payment, in the plaint he mentioned about the respondent’s notice and his reply and to a second letter on behalf of the respondent and his own reply thereto. A copy of the deed of dissolution, according to the statement in paragraph 13 of the plaint, was filed along with it.

5. On October 27, 1948, the respondent filed a petition under S. 34 of the Arbitration Act in the Asansol Court praying for the stay of the suit in view of the arbitration agreement in the original deed of partnership. This application was rejected on August 20, 1949.

6. Meanwhile, on January 3, 1949, the respondent filed Civil Original Suit No. 71 of 1949 in the Court of the District Judge, Indore, against the appellant, and prayed for a decree for ` 1,90,519-0-6 against the appellant and further interest on the footing of settled accounts and in the alternative for a direction to the appellant to render true and full accounts of the partnership.

7. On November 28, 1949, the respondent filed his written statement in the Asansol Court. Paragraphs 19 and 21 of the written statement are:

“19. With reference to paragraph 21 of the plaint, the defendant denies that the plaintiff has any cause of action against the defendant or that the alleged cause of action, the existence of which is denied, arose at Kajora Colliery. The defendant craves reference to the said deed of dissolution whereby the plaintiff and the defendant agreed to have disputes, if any, tried in the Court at Indore. In the circumstances, the defendant submits that this Court has no jurisdiction to try and entertain this suit.

21. The suit is vexatious, speculative, oppressive, and is instituted mala fide and should be dismissed with costs.”

Issues were struck on February 4, 1950. The first two issues are:

“1. Has this Court jurisdiction to entertain and try this suit?

2. Has the plaintiff rendered and satisfactorily explained the accounts of the partnership in terms of the deed of dissolution of partnership?”

8. In December 1951, the respondent applied in the Court at Asansol for the stay of that suit in the exercise of its inherent powers. The application was rejected on August 9, 1952. The learned Sub-Judge held:

“No act done or proceedings taken as of right in due course of law is ‘an abuse of the process of the Court’ simply because such proceeding is likely to embarrass the other party.”

He therefore held that there could be no scope for acting under S. 151 C. P. C., as S. 10 of that Code had no application to the suit, it having been instituted earlier than the suit at Indore. The High Court of Calcutta confirmed this order on May 7, 1953, and said:

“We do not think that, in the circumstances of these cases and on the materials on record, those orders ought to be revised. We would not make any other observation lest it might prejudice any of the parties.” The High Court further gave the following direction:

“As the preliminary issues, Issue No. 1 in the two Asansol suits have been pending for over two years, it is only desirable that the said issues should be heard out at once. We would, accordingly, direct that the hearing of the said issues should be taken up by the learned Subordinate Judge as expeditiously as possible and the learned Subordinate Judge will take immediate steps in that direction.”

9. Now we may refer to what took place in the Indore suit till then. On April 28, 1950, the appellant applied to the Indore Court for staying that suit under Ss. 10 and 151 C. P. C. The application was opposed by the respondent on three grounds. The first ground was that according to the term in the deed of dissolution, that Court alone could decide the disputes. The second was that under the provisions of the Civil Procedure Code in force in Madhya Bharat, the Court at Asansol was not an internal Court and that the suit filed in Asansol Court could not have the effect of staying the proceedings of that suit. The third was that the two suits were of different nature, their subject matter and relief claimed being different. The application for stay was rejected on July 5, 1951. The Court mainly relied on the provisions of the second proviso in the deed of dissolution. The High Court of Madhya Bharat confirmed that order on August 20, 1953.

10. The position then, after August 20, 1953, was that the proceedings in both the suits were to continue, and that the Asansol Court had been directed to hear the issue of jurisdiction at an early date.

11. It was in these circumstances that the respondent applied under S. 151, C. P. C., on September 14, 1953, to the Indore Court, for restraining the appellant from continuing the proceedings in the suit filed by him in the Court at Asansol. The respondent alleged that the appellant filed the suit at Asansol in order to put him to trouble, heavy expenses and wastage of time in going to Asansol and that he was taking steps for the continuance of the suit filed in the Court of the Subordinate Judge of Asansol. The appellant contested this application and stated that he was within his rights to institute the suit at Asansol, that that Court was competent to try it and that the point had been decided by over-ruling the objections raised by the respondent and that the respondent’s objection for the stay of proceedings in the Court at Asansol had been rejected by that Court. He denied that his object in instituting the suit was to cause trouble and heavy expenses to the respondent.

12. It may be mentioned that the respondent did not state in his application that his application for the stay of the suit at Asansol had been finally dismissed by the High Court of Calcutta and that that Court had directed the trial Court to decide the issue of jurisdiction at an early date. The appellant, too, in his objections, did not specifically state that the order rejecting the respondent’s stay application had been confirmed by the High Court at Calcutta and that that Court had directed for an early hearing of the issue of jurisdiction.

13. The learned Additional District Judge, Indore, issued interim injunction under Order XXXIX, C. P. C., to the appellant restraining him from proceeding with his Asansol suit pending decision of the Indore suit, as the appellant was proceeding with the suit at Asansol in spite of the rejection of his application for the stay of the suit at Indore, and, as the appellant wanted to violate the provision in the deed of dissolution about the Indore Court being the proper forum for deciding the disputes between the parties. Against this order, the appellant went in appeal to the High Court of Judicature at Madhya Bharat, contending that the Additional District Judge erred in holding that he was competent to issue such an interim injunction to the appellant under Order XXXIX of the Code of Civil Procedure and that it was a fit case for the issue of such an injunction and that, considering the provisions of Order XXXIX, the order was without jurisdiction.

14. The High Court dismissed the appeal by its order dated May 10, 1955. The learned judges agreed with the contention that order XXXIX, rule 1, did not apply to the facts of the case. They, however, held that the order of injunction could be issued in the exercise of the inherent powers of the Court under S. 151, C. P. C. It is against this order that the appellant has preferred this appeal, by special leave.

15. On behalf of the appellant, two main questions have been raised for consideration. The first is that the Court could not exercise its inherent powers when there were specific provisions in the Code of Civil Procedure for the issue of interim injunctions, they being S. 94 and Order XXXIX. The other question is whether the Court, in the exercise of its inherent jurisdiction, exercised its discretion properly, keeping in mind the facts of the case. The third point which came up for discussion at the hearing related to the legal effect of the second proviso in the deed of dissolution on the maintainability of the suit in the Court at Asansol.

16. We do not propose to express any opinion on this question of jurisdiction as it is the subject matter of an issue in the suit at Asansol and also in the suit at Indore and because that issue had not yet been decided in any of the two suits.

17. On the first question it is argued for the appellant that the provisions of cl. (c) of S. 94, C. P. C., make it clear that interim injunctions can be issued only if a provision for their issue is made under the rules, as they provide trial a Court may, if it is so prescribed, grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word ‘prescribed’ according to S. 2, means prescribed by rules’ and that rules 1 and 2 of Order XXXIX lay down certain circumstances in which a temporary injunction may be issued.

18. There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of temporary injunction if the circumstances do not fall within the provisions of Order XXXIX of the Code:Varadacharlu vs. Narsimha Charlu, AIR 1926 Mad 258; Govindarajulu vs. Imperial Bank of India, AIR 1932 Mad 180; Karuppayya vs. Ponnuswami, AIR 1933 Mad 500 (2); Murugesa Mudali vs. Angamuthu Mudali, AIR 1938 Mad 190 and Subramanian vs. Seetarama, AIR 1949 Mad 104. The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order XXXIX of the Code, if the Court is of opinion that the interests of justice require the issue of such interim injunction:Dhaneshwar Nath vs. Ghanshyam Dhar, AIR 1940 All 185; Firm Bichchha Ram Baburam vs. Firm Baldeo Sahai Surajmal, AIR 1940 Al1 24l; Bhagat Singh vs. Jagbir Sawhney, AIR 1941 Cal 670 and Chinese Tannery Owners’ Association vs. Makhan Lal. A.I.R 1952 Cal 560. We are of opinion that the latter view is correct and that the Courts. have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX, C. P. C. There is no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, or the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.

The effect of the expression ‘ if it so prescribed’ is only this that when the rule prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of S. 94 were not there in the Code, the Court’ could still issue temporary injunctions, but. it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court’s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of S. 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

19. There is nothing in order XXXIX rules 1 and 2, which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.

20. Further, the provisions of S,151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads:

“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

21. A similar question about the powers of the Court to issue a commission in the exercise of its powers under S. 151 of the Code in circumstances not covered by S. 75 and Order XXVI, arose in Padam Sen vs. State of Uttar Pradesh, (1961) 1 SCR 884, and this Court held that the Court can issue a commission in such circumstances. It observed at page 887 thus:

“The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.”

These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in S. 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice.

22. In the above case, this Court did not uphold the order of the Civil Court, not coming under the provisions of Order XXVI, appointing a commissioner for seizing the account books of the plaintiff on the application of the defendants. The order was held to be defective not because the Court had no power to appoint a commissioner in circumstances not covered by S. 75 and Order XXVI, but because the power was exercised not with respect to matters of procedure but with respect to a matter affecting the substantive rights of the plaintiff. This is clear from the further observations made at page 887. This Court said:

“The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff’s books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.”

23. The case reported as Maqbul Ahmad vs. Onkar Pratap Narain Singh, 62 Ind App 80, does not lay down that the inherent powers at the Court are controlled by the provisions of the Code. It simply held that the statutory discretion possessed by a Court in some limited respects under an Act does not imply that the Court possesses a general discretion to dispense with the provisions of that Act. In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. It was however contended that the Court possessed some sort of judicial discretion which would enable it to relieve the decree-holder from the operation of the Limitation Act in a case of hardship, To rebut this contention, it was said at page 87 (of IA):

“It is enough to say that there is no authority to support the proposition contended for. In their Lordships’ opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that S. 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings.”

These observations have no bearing on the question of the Court’s exercising its inherent powers under S. 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

24. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

25. We therefore repel the first contention raised for the appellant.

26. On the second question, we are of opinion that, in view of the facts of the case, the Courts below were in error in issuing a temporary injunction to the appellant restraining him from proceeding with the suit in the Asansol Court.

27. The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.

28. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.

29. In this connection, reference may usefully be made to what was said in Cohen vs. Rothfield, 1919-1 KB 410 and which case appears to have influenced the decision of the Courts in this country in the matter of issuing such injunction orders. Scrutton, L. J.; said at page 413:

“Where it is proposed to stay an action on the ground that another is pending, and the action to be stayed is not in the Court asked to make the order, the same result is obtained by restraining the person who is bringing the second action from proceeding with it. But, as the effect is to interfere with proceedings in another jurisdiction, this power should be exercised with great caution to avoid even the appearance of undue interference with another Court.”

And again, at page 415:

“While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised, and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless.”

The principle enunciated for a plaintiff in an earlier instituted suit to successfully urge a restraint order against a subsequent suit instituted by the defendant, is stated thus in this case, at page 415:

“It appears to me that unless the applicant satisfies the Court that no advantage can be gained by the defendant by proceeding with the action in which he is plaintiff in another part of the King’s dominions, the Court should not stop him from proceeding with the only proceedings which he, as plaintiff, can control. The principle has been repeatedly acted upon.”

The injunction order in dispute is not based on any such principle. In fact in the present case, it is the defendant of the previously instituted suit that has obtained the injunction order against the plaintiff of the previously instituted suit.

30. The considerations which would make a suit vexatious are well explained in Hyman vs. Helm, (1883) 24 Ch D 531. In that case, the defendant, in an action before the Chancery Division of the High Court brought an action against the plaintiffs in San Francisco. The plaintiffs, in an action in England, prayed to the Court to restrain the defendants from proceeding further with the action in San Francisco. It was contended that it was vexatious for the defendants to bring the action in San Francisco as the witnesses to the action were residents of England, the contract between the parties was an English contract and that its fulfilment took place in England. In repelling the contention that the defendants’ subsequent action in San Francisco was vexatious, Brett, M. R., said at page 537:

“If that makes an action vexatious it would be a ground for the interference of the Court, although there were no action in England at all, the ground for alleging the action in San Francisco to be vexatious being that it is brought in an inconvenient place. But that is not the sort of vexation on which an English Court can act.

It seems to me that where a party claims this interference of the Court to stop another action between the same parties, it lies upon him to show to the Court that the multiplicity of actions is vexatious, and that the whole burden of proof lies upon him. He does not satisfy that burden of proof by merely shewing that there is a multiplicity of actions, he must go further. If two actions are brought by the same plaintiff against the same defendant in England for the same cause of action, then, as was said in McHenry vs. Lewis, (1882) 22 Ch D 397, and the case of the Peruvian Guano Co. vs. Bockwoldt (1883) 23 Ch D 225, prima facie that is vexatious, and therefore the party who complains of such a multiplicity of actions has made out a prima facie case for the interference of the Court. Where there is an action by a plaintiff in England, and a cross action by a defendant in England, whether the same prima facie case of vexation arises is a much more difficult point to decide, and I am not prepared to say that it does.”

It should be noticed that this question for an action being vexatious was being considered with respect to the subsequent action brought by the defendant in the previously instituted suit and when the restraint order was sought by the plaintiff of the earlier suit. In the case before us, it is the plaintiff of the subsequent suit who seeks to restrain the plaintiff of the earlier suit from proceeding with his suit. This cannot be justified on general principles when the previous suit has been instituted in a competent Court.

31. The reasons which weighed with the Court below for maintaining the order of injunction may be given in its own words as follows:

“In the plaint filed in the Asansol Court the defendant has based his claim on the deed of dissolution dated August 22, 1945, but has avoided all references to the provisions regarding the agreement to place the disputes before the Indore Courts. It was an action taken by the present defendant in anticipation of the present suit and was taken in flagrant breach of the terms of the contract. In my opinion, the defendants action constitutes misuse and abuse of the process of the Court.”

The appellant attached the deed of dissolution to the plaint he filed at Asansol. Of course, he did not state specifically in the plaint about the proviso with respect to the forum for the decision of the dispute. Even if he had mentioned the term, that would have made no difference to the Asansol Court entertaining the suit, as it is not disputed in these proceedings that both the Indore and Asansol Courts could try the suit in spite of the agreement. The appellant’s institution of the suit at Asansol cannot be said to be in anticipation of the suit at Indore, which followed it by a few months. There is nothing on the record to indicate that the appellant knew, at the time of his instituting the suit, that the respondent was contemplating the institution of a suit at Indore. The notices which the respondent gave to the appellant were in December 1945. The suit was, filed at Asansol in August 1948, more than two years and a half after the exchange of correspondence referred to in the plaint filed at Asansol.

32. In fact, it is the conduct of the respondent in applying for the injunction in September 1953, knowing full well of the orders of the Calcutta High Court confirming the order refusing stay of the Asansol suit and directing that Court to proceed with the decision of the issue of jurisdiction at an early date, which can be said to amount to an abuse of the process of the Court. It was really in the respondent’s interest if he was sure of his ground that the issue of jurisdiction be decided by the Asansol Court expeditiously, as ordered by the Calcutta High ‘Court in May 1953. If the Asansol Court had clearly no jurisdiction to try the suit in view of the terms of the deed of dissolution, the decision of that issue would have finished the Asansol suit forever. He, however, appears to have avoided a decision of that issue from that Court and, instead of submitting to the order of the Calcutta High Court, put in this application for injunction. It is not understandable why the appellant did not clearly state in his objection to the application what the High Court of Calcutta had ordered. That might have led the consideration of the question by the Indore Court in a different perspective.

33. It is not right to base an order of injunction, under S. 151 of the Code, restraining the plaintiff from proceeding with his suit at Asansol, on the consideration that the terms of the deed of dissolution between the parties make it a valid contract and the institution of the suit at Asansol is in breach of it. The question of jurisdiction of the Asansol Court over the subject matter of the suit before it will be decided by that Court. The Indore Court cannot decide that question. Further, it is not for the Indore Court to see that the appellant observes the terms of the contract and does not file the suit in any other Court. It is only in proper proceedings when the Court considers alleged breach of contract and gives redress for it.

34. For the purposes of the present appeal, we assume that the jurisdiction at the Asansol Court is not ousted by the provisions of the proviso in the deed of dissolution, even though that proviso expresses the choice of the parties for having their disputes decided in the Court at Indore. The appellant therefore could choose the forum in which to file his suit. He chose the Court at Asansol, for his suit. The mere fact that that Court is situate at a long distance from the place of residence of the respondent is not sufficient to establish that the suit has been filed in that Court in order to put the respondent to trouble and harassment and to unnecessary expense.

35. It cannot be denied that it is for the Court to control the proceedings of the suit before it and not for a party, and that therefore, an injunction to a party with respect to his taking part in the proceedings of the suit would be putting that party in a very inconvenient position.

36. It has been said that the Asansol Court would not act in a way which may put the appellant in a difficult position and will show a spirit of co-operation with the Indore Court. Orders of Court are not ordinarily based on such considerations when there be the least chance for the other Court not to think in that way. The narration of facts will indicate how each Court has been acting on its own view of the legal position and the conduct of the parties.

37. There have been cases in the past, though few, in which the Court took no notice of such injunction orders to the party in a suit before them. They are:T. A. Menon vs. Parvathi Ammal, AIR 1950 Mad 373; Harbhagat Kaur vs. Kirpal Singh, AIR 1951 Pepsu 78 and Shiv Charan Lal vs. Phool Chand, AIR 1952 Punj 247. In the last case, the Agra Court issued an injunction against the plaintiff of a suit at Delhi restraining him from proceeding with that suit. The Delhi Court, holding that the order of the Agra Court did not bind it, decided to proceed with the suit. This action was supported by the High Court, Kapur J., observed at page 248:

“On the facts as have been proved it does appear rather extra-ordinary at a previously instituted suit should be sought to be stayed by adopting this rather extraordinary procedure.”

38. It is admitted that the Indore Court could not have issued an injunction or direction to the Asansol Court not to proceed with the suit. The effect of issuing an injunction to the plaintiff of the suit at Asansol, indirectly achieves the object which an injunction to the Court would have done. A court ought not to achieve indirectly what it cannot do directly. The plaintiff, who has been restrained, is expected to bring the restraint order to the notice of the Court. If that Court, as expected by the Indore Court, respects the injunction order against the appellant and does not proceed with the suit, the injunction order issued to the appellant who is the plaintiff in that suit is as effective an order for arresting the progress of that suit as an injunction order to the Court would have been. If the Court insists on proceeding with the suit, the plaintiff will have either to disobey the restraint order or will run the risk of his suit being dismissed for want of prosecution. Either of these results is a consequence which an order of the Court should not ordinarily lead to.

39. The suit at Indore which had been instituted later, could be stayed in view of S. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under S. 151 is not justified. The provisions of S. 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur Thakur and Co. vs. Devidayal (Sales) Ltd., ILR (1954) Bom 334, that the Legislature did not contemplate the provisions of S. 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of S. 35A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory costs. The Legislature could have therefore provided for the non-application of the provisions of S. 10 in those circumstances, but it did not. Further, S. 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or more Courts is instituted in one of such Courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the Legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court.

40. In view of the various considerations stated above, we are of opinion trial the order under appeal cannot be sustained and cannot be said to be an order necessary in the interests of justice or to prevent the abuse of the process of the Court. We therefore allow the Appeal with costs, and set aside the order restraining the appellant from proceeding with the suit at Asansol.

41. Shah, J—I have perused the judgment delivered by Mr. Justice Dayal, I agree with the conclusion that the appeal must succeed, but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rr. 1 and 2 of O. 39, Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts. The powers of courts, other than the Chartered High Courts, in the exercise of their ordinary original civil jurisdiction to issue temporary injunctions are defined by the norms of S. 94 (1) (c) and O. 39, Civil Procedure Code. A temporary injunction may issue if it is so prescribed by rules in the Code. The provisions relating to the issue of temporary injunctions are to be found in O. 39 Rr. 1 and 2; a temporary injunction may be issued only in those cases which come strictly’ within those rules, and normally the civil courts have no power to issue injunctions by transgressing the limits prescribed by the rules.

42. It is true that the High Courts constituted under Charters and exercising ordinary original jurisdiction do exercise inherent jurisdiction to issue an injunction to restrain parties in a suit before them from proceeding with a suit in another court, but that is because the Chartered High Courts claim to have inherited this jurisdiction from the SUPREME COURTs of which they were successors. This jurisdiction would be saved by S. 9 of the Charter Act (24 and 25 Vict. c. 104) of 1861 and in the Code of Civil Procedure, 1908 it is so expressly provided by S. 4. But the power of the civil courts other than the Chartered High Courts must be found within S. 94 and O. 39 Rr. 1 and 2 of the Civil Procedure Code.

43. The Code of Civil Procedure is undoubtedly not exhaustive:it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in 62 Ind App 80:

“It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act.”

Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by S. 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.

44. Power to issue an injunction is restricted by S. 94 and O. 39, and it is not open to the Civil Court which is not a Chartered High Court to exercise that power ignoring the restrictions imposed thereby, in purported exercise of its inherent jurisdiction. The decision of this Court in (1961) 1 SCR 884, does not assist the case of the appellant. In Padan Sen’s case this Court was called upon in a criminal appeal to consider whether an order of a Munsiff appointing a commissioner for seizing certain account books of the plaintiff in a suit pending before the Munsiff was an order authorised by law. It was the case for the prosecution that the appellants offered a bribe to the commissioner as consideration for being allowed to tamper with entries therein, and thereby the appellants committed an offence punishable under S. 165A of the Indian Penal Code. This Court held that the commissioner appointed by the civil court in exercise of powers under O. 26, C. P. Code did not hold any office as a public servant and the appointment by the Munsiff being without jurisdiction, the commissioner could not be deemed to be a public servant. In dealing with the argument of counsel for the appellants that the civil court had inherent powers to appoint a commissioner in exercise of authority under S. 151 Civil Procedure Code for purposes which do not fall within the provisions of S. 75 and O. 26 Civil Procedure Code, the Court observed:

“‘Section 75 of the Code empowers the court to issue a commission, subject to conditions and limitations which may be prescribed, for four purposes, viz., for examining any person, for making or adjusting accounts and for making a partition. Order XXVI lays down rules relating to the issue of commissions and allied matters. Mr. Chatterjee, learned counsel for the appellants, has submitted that the powers of a Court must be found within the four corners of the Code and that when the Code has expressly dealt within the subject matter of commissions in S. 75 the Court cannot invoke its inherent powers under S. 151 and thereby add to its powers. On the other hand, it is submitted for the State, that the Code is not exhaustive and the Court, in the exercise of its inherent powers, can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court considers it necessary for the ends of justice or to prevent abuse of the process of the Court.

**********

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The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary, to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary or different from the procedure expressly provided in the Code.”

The, Court in that case held that in exercise of the powers under S. 151 of the Code of Civil Procedure, 1908 the Court cannot issue a commission for seizing books of account of the plaintiff-a purpose for which a commission is not authorized to be issued by S. 75.

45. The principle of the case is destructive of the submission of the appellants. Section 75 empowers the Court to issue a commission for purposes specified therein:even though it is not so expressly stated that there is no power to appoint a commissioner for other purposes, a prohibition to that effect is, in the view of the Court in Padam Sen’s case, (supra) implicit in S. 75. By parity of reasoning, if the power to issue injunctions may be exercised, if it is so prescribed by rules in the Orders in Schedule I, it must be deemed to be not exercisable in any other manner or for purposes other than those set out in O. 39 Rr. 1 and 2.

An act of the Court shall prejudice no man

In Rajesh D. Darbar & Others vs. Narasingrao Krishnaji Kulkarni & Ors. 2003 (7) JT 209 ], this Court noticed:

“The courts can take notice of the subsequent events and can mould the relief accordingly. But there is a rider to these well established principles. This can be done only in exceptional circumstances, some of which have been highlighted above. This equitable principles cannot, however, stand on the way of the court adjudicating the rights already vested by a statute. This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the abovesaid maxims has been approved by this Court in Raj Kumar Dey and ors. vs. Tarapada Dey and Ors. 1987 (4) SCC 398, Gursharan Singh vs. New Delhi Municipal Committees 1996 (2) SCC 459 and Mohammed Gazi vs. State of M.P. and Ors. 2000 (4) SCC 342.”

Defacto complainant can file revision once the application for Police Remand has been rejected-Madras HC

MADRAS HIGH COURT

SINGLE BENCH

( Before : P. Devadass, J )

G. PRIYADARSHINI   Vs.  STATE 

Crl. R.C. No. 491 of 2014

Decided on : 20-06-2014

Criminal Procedure Code, 1973 (CrPC) – Section 156, Section 157, Section 167, Section 167(1), Section 167(2), Section 167(3), Section 2(h), Section 397, Section 397(1), Section 397(2), Section 401, Section 482, Section 57

Grant of anticipatory bail. — Magistrate turned down the request of the Investigation Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cell phones police custody could not be given. — Whenever police remand beyond the expiry of first 15 days. — It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.

ORDER

P. Devadass, J.—This revision has been directed by the defacto complainant in Cr. No. 246 of 2012 registered as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai rejecting C.M.P. No. 2097 of 2014 filed by the police (first respondent) seeking police custody of A-1 (2nd respondent) for 7 days.

2. Noticing the following factual matrix is suffice for the disposal of this revision.

(1) A-1 Varun Kumar(second respondent) is the son of A-2 and A-3 viz., Prof. Veerasekaran and Kalpana. A-1 was preparing for Civil Service examination. So also Priyadarshini (defacto complainant). They met at a Training Institute. Friendship developed between them. They become very close. They become lovers. It is expected that A-1 will marry her. A-1 alone became successful in the Civil Service examination. He was selected for I.P.S. (Indian Police Service) and was allotted to Tamilnadu cadre. He became a trainee I.P.S. Officer. There are allegations that he and his parents demanded dowry and harassed the defacto complainant. Thereafter, no love last between A-1 and Priyadarshini. She lodged complaint against A-1 and his parents. A case in Cr. No. 246 of 2012 for the offences u/s 406, 417, 420, 506(i) of I.P.C. and u/s 4 of the Tamil Nadu Prevention of Women Harassment Act and Section 66 of Information Technology Act has been registered. It is being investigated into.

(2) In this Court, in Crl. O.P. No. 11387 & 11108 of 2012, A-1 to A-3 have sought for anticipatory bail. On 4.6.2012, this Court directed A-1 to produce his cell phones and laptop to the Investigation Officer and the Investigation Officer to file his report and also directed the police not to arrest A1 to A3. On 20.7.2012, the Investigation Officer filed status report to the effect that A-2 produced two Cell phones, they did not tally with the I.M.E. number obtained from the service provider and thus, A-1 not obeyed the Court order. On 21.9.2012, after hearing both sides, this Court granted them anticipatory bail.

(3) The said order, dated 21.9.2012 was challenged by the defacto complainant before the Hon’ble Supreme Court in Crl. A. No. 416-417 of 2014. The Investigation Officer filed counter and additional counter before the Hon’ble Supreme Court reiterating the substance of her status report already filed before this Court and also stated that A-1 has not cooperated with the Investigation Officer.

(4) In the circumstances, on 14.2.2014, the Hon’ble Supreme Court set aside the anticipatory bail granted to A-1 and gave him liberty to approach the appropriate Court for regular bail.

(5) Under these circumstances, on 28.4.2014, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai. On the same day, the Investigation Officer filed C.M.P. No. 2097 of 2014 u/s 167(2) of Cr.P.C. seeking his police custody for 7 days. In the affidavit, the Investigation Officer stated that A-1 has not produced the case properties, namely cell phones, in view of its non-production investigation could not be completed and his custodial interrogation is very much required to complete the investigation. When enquired, A-1 told the Magistrate that as he had already appeared before the Investigation Officer for 45 days he is not willing to go to police custody.

(6) On 29.4.2014, the learned Magistrate turned down the request of the Investigation Officer on the ground that it is belated, A-1 is not willing to go to police custody and for the non-production of cell phones police custody could not be given.

(7) The said order was not challenged by the State. It was challenged by the defacto complainant in this revision.

3. According to the learned counsel for the revision petitioner, the revision petitioner is the defacto complainant in this case. She is interested in the collection of required evidence (investigation). A-1 is in possession of certain vital physical evidence. He knows very many things connected with this case. Thus, his custodial interrogation is very much essential. The Investigation officer filed police custody petition before the learned Magistrate well before the expiry of the first 15 days remand. However, it was misunderstood by the learned Magistrate as belated. Custodial interrogation is elicitation oriented. In the interest of investigation, it becomes necessary. Disinclination of the accused to go to police custody is not a ground to deny the genuine request of the police.

4. The learned Public Prosecutor supported the views of the revision petitioner.

5. The learned Public Prosecutor also submitted that the impugned order of the learned Magistrate, dated 29.4.2014 is not in accordance with law. It requires to be set aside. The need for custodial interrogation also has been stated by the Investigation Officer in the counter and additional counter filed before the Hon’ble Supreme Court in the SLP filed by the defacto complainant.

6. According to the learned Senior counsel for A-1 (second respondent), by the impugned order passed by the learned Magistrate, State is the aggrieved party. The defacto complainant has no locus standi to challenge the impugned order. Further, the impugned order is an interlocutory order. Section 397(2) of Cr.P.C. is a bar to prefer a revision as against such an order. When there is express bar in section 397(2) Cr.P.C., the defacto complainant cannot also invoke the inherent jurisdiction of this Court u/s 482 Cr.P.C.

7. The learned Senior Counsel for A-1 further contended that A-1 has nothing to offer. A-1 has nothing to say. He cannot be compelled to incriminate himself. He has fundamental to right keep silence. He cannot be compelled to break his silence. Otherwise, it would be testimonial compulsion. It will militate against his fundamental right. (See Article 20(3) Constitution of India).

8. The learned Senior Counsel for A-1 further contended that as per Section 167(2) Cr.P.C., there is an outer limit of first 15 days remand period within which police custody has to be asked for. Once that period is over, no Court including this Court can go against the said express provision of law and grant police custody. Now, that the said outer period of 15 days prescribed is over, it cannot be extended by the Court.

9. The learned Senior Counsel for A-1 further contended that police custody for recovery of incriminating materials cannot be given. It is against law. In this case, it is nothing but an attempt to humiliate A-1. Whatever he had, had already been produced by him to the Investigation Officer.

10. In support of his submissions, the learned Senior Counsel appearing A-1 cited the following decisions:

(i) Nandini Satpathy Vs. P.L. Dani and Another,

(ii) State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate,

(iii) State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy,

(iv) Devender Kumar and Another etc. Vs. State of Haryana and Others etc.,

(v) The Inspector of Police, D.C.B., Madurai Dist. vs. Thalapathy and 3 Others (2011(2) L.W. (Crl.) 603)

(vi) State Vs. B. Ranganathan and Another,

(vii) K.S. Palanichamy vs. Inspector of Police, Eow II, Dindigul (2012(2) MWN (Cr.) 395)

(viii) Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473)

(ix) Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. (2013(2) MWN (Cr.) 296 (DB)

11. In reply, the learned counsel for the revision petitioner would submit that it is not that only police can go against the order rejecting police custody. The defacto complainant is victim as well affected in this case. As such she can also file revision as against the impugned order. She is very much interested in the successful prosecution of the accused. She is interested in police pursuing all tools of investigation including custodial interrogation. On the rejection of the police custody petition, she cannot be asked to keep mum. Since she felt that police custody petition has not been properly dealt with, she took up the matter to this Court. She cannot be estopped from doing so.

12. The learned counsel for the revision petitioner further contended that in the interest of justice, if the Court finds that the impugned order suffers from any illegality suo moto in exercise of its power of revision u/s 401 Cr.P.C., this court can deal with the matter. Besides that, u/s 482 Cr.P.C. this Court has inherent power to set right any illegality committed by a Subordinate Court. Further, in the interest of justice, at any time, this Court can direct the police to take steps for custodial interrogation of the accused.

13. The learned counsel for the revision petitioner further submitted that immediately, after the dismissal of the police custody petition, she has preferred the revision before this Court. Thereafter, the matter is subjudiced in this court. On account of delay, if any caused in the disposal of the petition, the revision petitioner cannot be penalised, blamed.

14. In support of his submissions, the learned counsel for the revision petitioner cited the following decisions:

(i) Nadir Khan Vs. The State (Delhi Administration),

(ii) Lingala Vijay Kumar and Others Vs. The Public Prosecutor,

(iii) Japani Sahoo Vs. Chandra Sekhar Mohanty,

(iv) Ram Jethmalani and Others Vs. Union of India (UOI) and Others,

(v) Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others,

15. The learned Public Prosecutor submitted that on the dismissal of the police custody petition, a valuable tool of investigation available to police has been sealed. The request for police custody has been dealt with once for all. So far as the subject matter (police custody) is concerned, it has become final. So revision will lie. Further, by the effect of the impugned order, namely, refusing police custody, the ultimate sufferer is defacto complainant. She can also seek redress by filing a revision. Further, u/s 482 of Cr.P.C. this Court has got inherent power to set right any illegality. It can secure justice to parties.

16. The learned Public Prosecutor further submitted that the police custody petition has been filed in time and when it was not properly dealt with by the learned Magistrate, the revision petitioner approached this Court by way of revision. By the time when the 15 days outer limit u/s 167(2) Cr.P.C. is expired. The prosecution cannot be deprived of its opportunity to get police custody. In the facts and circumstances, prosecution cannot be blamed. By the act of a Court, a party should not be made to suffer.

17. The learned Public Prosecutor further submitted that in this case, before the Hon’ble Supreme Court, in the bail cancellation petition, prosecution submitted the need for custodial interrogation of A-1. A-1 has not produced the case-properties, namely, Cell phone as directed by this Court. Custodial interrogation will not be restricted to seizure of the case-properties alone. It will also be for eliciting answers from the accused on certain vital aspects of the case. Such an opportunity cannot be denied to the prosecution.

18. In support of his submissions, the learned Public Prosecutor cited the following decisions:

(i) Amar Nath and Others Vs. State of Haryana and Another,

(ii) Madhu Limaye Vs. The State of Maharashtra,

(iii) Raj Kapoor and Others Vs. State and Others,

(iv) Miss R. Shakuntala Vs. Roshanlal Agarwal and others

(v) Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra,

(vi) State of Maharashtra vs. Miteshmajilal Lodhiya ( CDJ 2010 BHC 1056)

(vii) Kandhal Sarman Jadeja Vs. State of Gujarat,

19. I have given my anxious consideration to the rival submissions, perused the impugned order, dated 29.4.2014, materials on record and also the various decisions cited at the bar.

20. This revision has been filed u/s 397(1) Cr.P.C. as against the order of the learned XI Metropolitan Magistrate, Saidapet, Chennai, dated 29.4.2014 dismissing the police custody petition filed by the Investigation officer. Request for police custody has been turned down.

21. The revisional power u/s 397(1) Cr.P.C. is concurrent. This power can be exercised both by the High Court and by the Sessions Court. There is a bar u/s 397(2) Cr.P.C. to entertain revision as against interlocutory orders passed in any Appeal, inquiry, trial and other proceedings.

22. Referring to this bar in Section 397(2) Cr.P.C. lot of arguments has been advanced on behalf of A-1. It was contended that it is not maintainable, because it is an interlocutory order. However, it was repelled. It was contended that it is a final order.

23. Besides, the revision u/s 397 Cr.P.C., this Court also has extraordinary power to do justice and undo injustice and pass any orders to meet the ends of justice. Such a power of this Court has been saved in the New Code in Section 482 Cr.P.C. Further u/s 401 Cr.P.C., this Court has suo-moto power to set right any order which appears to be not in accordance with law. High Court is endowed with constitutional and statutory power to render justice.

24. Police custody is intended for custodial interrogation. It is provided in Section 167(2) Cr.P.C. Such a request has to be made by the Investigation Officer in the interest of investigation. Custodial interrogation is a tool of investigation. It is elicitation oriented. It is a method of investigation. It has been statutorily recognised. (See Sections 2(h), 156, 157 and 167(2) Cr.P.C., Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, and State Rep. by the C.B.I. Vs. Anil Sharma, .

25. If the request for police custody is turned down, it will affect a party, namely, prosecution. The subject matter covered under the present petition, namely, police custody by the dismissal of the petition is closed. It is over before the Magistrate.

26. Time and again, there was lot of discussion as to whether a particular type of order is a final order or interlocutory order for the purpose of Section 397(2) Cr.P.C. Generally, an interlocutory order is an order, which is not a final order and vice versa. This generalisation is not suffice. It will not serve the purpose. It cannot be an useful formula to decide the matter with regard to Section 397(1) and 397(2) of Cr.P.C.

27. Therefore, certain approach based on content, effect of the order also has been advocated in several cases. Notable among them are Amarnath and Others vs. State of Haryana and Others [(AIR 1997 SC 2185] and [ Madhu Limaye Vs. The State of Maharashtra, . An order which is in the nature of affecting a party to the proceedings is considered to be a final order. When the request for police custody is rejected that will affect the prosecution side. Thus, it becomes final for the purpose of exercise of revisional power u/s 397(1) Cr.P.C.

28. In State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, , question of filing a revision as against granting of police custody u/s 167(2) Cr.P.C. arose before the Hon’ble Apex Court. The Hon’ble Apex Court ruled that such an order is only interlocutory order and not a final order. JOY Immaculate (supra) laid down that there cannot be revision as against an order granting police custody. Because, the bar u/s 397(2) Cr.P.C. will bar filing a revision as against such orders. It is pertinent to note that in Joy Immaculate (supra) whether an order rejecting police remand is a final order or interlocutory order and whether the bar u/s 397(2) Cr.P.C. will operate as against such an order has not been considered. In fact, it did not arose and the Hon’ble Apex Court had no occasion to consider such a question.

29. In Miss R. Shakuntala Vs. Roshanlal Agarwal and others , a learned Single Judge of the Bombay High Court termed the order of the Magistrate rejecting the remand request made by the prosecution as a final order since in that order nothing survives. The learned Single Judge in arriving at such a conclusion based reliance on Amarnath (supra) and Madhu Limaye (supra).

30. In Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, , a learned Single Judge of the Bombay High Court while dealing with a revision filed against the rejection of the application for police custody reviewed the entire case law on the point and noted that once police remand petition has been dismissed by the Magistrate, again and again it cannot be repeated before the learned Magistrate. Thus, the order rejecting police remand becomes final. Thus, it is a final order and not an interlocutory order.

31. A Division Bench of the Gujarat High Court in Kandhal Sarman Jadeja Vs. State of Gujarat, , specifically gone into the question whether an order refusing to grant police remand is an interlocutory order or intermediate order or a final order. The Division Bench referred to all the prior decisions on the subject. The Division Bench was also of the view that once police remand request is rejected, that subject matter before the Magistrate, namely, police custody is finally disposed of. The Division Bench ruled that an order rejecting request for police custody is a final order, so a revision will lie. We are not to deviate from the Bombay and Gujarat view, because, they are also based on Hon’ble Apex Court’s view. (See Amarnath (supra) and Madhu Limaye (supra).

32. There is one more aspect of the matter. Apart from the revisional power, this Court has got inherent power u/s 482 Cr.P.C. to do justice. It is ‘ex debito justitiae’. In the said decisions, the Hon’ble Apex Court also held that the inherent power u/s 482 Cr.P.C. can also be invoked to challenge the order of the Subordinate Court rejecting police remand.

33. Looking from any angle, I am not accepting the view of the learned Senior Counsel for A-1 that the revision as against the order of the learned Magistrate refusing police custody will not lie.

34. This revision has been preferred not by the State, but by the defacto complainant. A criminal act is a reprehensible act. An offence is committed against a member of the society. The society takes up the case. Society is the State. The actual sufferer is individual. He is the victim of the offence. In fact, he is the aggrieved person (defacto complainant). State launches prosecution as against the wrong doers (de jure complainant) on behalf of the victim. Victim is in the rear side. The State is in the forefront. It is not that the real victim is a forgotten element in the administration of criminal justice. The victim is interested in appropriately punishing the wrong doer. The victim cannot be a silent spectator. He is interested in full fledged, unbiased and fair investigation. Investigation is nothing but collection of evidence. (See Section 2(h) Cr.P.C.). Prosecution employs many tools to collect evidence. There are several methods of investigation. One of them is custodial interrogation. It can be done by obtaining police custody of the accused. In a case, effective investigation may demand custodial interrogation and police has to resort to it by invoking Section 167(2) Cr.P.C.

35. As stated already the victim is not a disinterested person for a successful investigation. When the request for police remand/custodial interrogation is rejected, naturally the victim of the offence will be aggrieved. He will be unhappy. Unhappy person can seek redress. Therefore, when the Magistrate rejects the request for police custody, as an aggrieved person, the victim of the offence, who is the defacto complainant in the case can take next step in the higher forum. Thus, the arguments of the learned Senior Counsel appearing for A-1 that this revision by the defacto complainant cannot be sustained is unsustainable.

36. A-1 took up a stand before the learned Magistrate that he has nothing to offer, he is willing to keep silent, he is constitutionally entitled to do so. (See Article 20(3), Constitution of India) and he is disinterested in going to police custody and already 45 times he has appeared before the Investigation Officer. This was accepted by the learned Magistrate. Again, the above views were projected before us by the learned Senior Counsel appearing for A-1.

37. Any enquiry, investigation conducted prior to the arrest/custody of the accused is not custodial interrogation. Custodial interrogation is a technic. It is intended to elicit certain information, explanation, clarification as to certain grey areas in the case from the accused. Sometimes it is also beneficial to the accused to clear the doubts. It will be more useful to the investigation officer to pursue correct line of investigation and avoid wrong tips, clues obtained in the course of investigation.

38. Article 20(3), Constitution of India incorporates ‘Rule Against Testimonial Compulsion’. Every person including an accused has been guaranteed freedom of speech and expression under Article 19(i)(a) of the Constitution of India. Accused is entitled to keep mum. The said constitutional right is subject to custodial interrogation permitted u/s 167(2) Cr.P.C. But the right guaranteed under Article 20(3) of Constitution of India is subject to Section 167 Cr.P.C. Wilfull refusal to the question posed by the investigation officer is punishable. Mere questioning of an accused by an investigation officer during investigation will not amount to testimonial compulsion. (See Nandini Satpathy Vs. P.L. Dani and Another, . Accused cannot claim absolute right to keep silence. He is bound to truly answer all the relevant questions put to him. But, he can refuse to answer the questions if answering them is likely to incriminate him, because, there cannot be testimonial compulsion. [ The State of Bombay Vs. Kathi Kalu Oghad and Others, and The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar . Therefore, the refusal of accused to go to police custody cannot be a ground to refuse police remand.

39. As per Section 167(1) Cr.P.C. when the investigation officer could not complete the investigation within 24 hours, he has to seek remand of the accused by producing him before the nearest Magistrate. (See Section 57 of Cr.P.C.). As per Section 167(2) Cr.P.C., initially the Magistrate can remand the accused upto 15 days. It is not necessary that he should remand him for the whole 15 days. As per Section 167(2) Cr.P.C., the Magistrate can also remand the accused to police custody for custodial interrogation. As per Section 167(3) Cr.P.C., while granting police custody, the learned Magistrate should record his reasons for so doing. Police custody should have been asked for or granted within first 15 days period of remand. After the expiry of the said period, namely, first 15 days, there cannot be police remand/custody. Thereafter, only judicial remand/judicial custody.

40. On this aspect, Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, , is a leading authority. The Hon’ble Apex Court ruled that after the expiry of 15 days initial period of remand, police custody cannot be granted for any reason and if it is for a distinct offence, it would be different. The Hon’ble Apex Court declared the law as it contained in Section 167(2) Cr.P.C.

41. Whenever police remand beyond the expiry of first 15 days was sought for by the police, Courts have negatived it. (See State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, ]., K.S. Palanichamy vs. Inspector of Police, Eow-II, Dindigul ( 2012(2) MWN (Cr.) 395) and Kanagaraj vs. Inspector of Police, Kaliyakkavilai Police Station, K.K. Dist. [2013(2) MWN (Cr.) 296 (DB)].

42. Article 21, Constitution of India guarantees that no one shall be deprived of his life and liberty except by procedure established by law. It guarantees personal freedom. It is the darling of the Indian Constitution. It is the bedrock of the civil liberties. It is more than British ‘Magna Carta’ and American ‘Due Process of Law’. The valuable fundamental right guaranteed in Article 21, Constitution of India cannot be allowed to be abridged. If it is to be done, it must be only by a procedure established by law. But, the procedure must be ‘fair, reasonable and equitable’. (See Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, .

43. Police custody amounts to infringement of right of an individual, more particularly fundamental right guaranteed under Article 21, Constitution of India. (See State Vs. B. Ranganathan and Another, .

44. In D.S.P. ‘Q’ Branch CID, Dharmapuri vs. Sundaramorrthy, [2007(2) MWN (Cr) 414], a Division Bench of this Court held that any application for grant of police custody must be strictly considered on materials as it involves the fundamental right and personal liberty of an individual and the provisions are to be strictly understood and complied with.

45. Thus, there can be police remand only if it is necessary. The Magistrate should be satisfied with the need and necessity for the same by looking into the materials produced, affidavit of the investigation officer and also referring to the case-diary. There shall be no mechanical police remand. No police custody for the mere asking of the police or for their record purpose or for any stage managed show or for giving any legal sanctity or authorisation to any planted recovery.’ (See Section 27 Evidence Act).

46. Police custody must be strictly in accordance with law. There is inbuilt limitation in Section 167(2) Cr.P.C. itself. The Magistrate can exercise his power to grant police remand only before the expiry of the first 15 days of remand. In other words, from the first date of remand before the expiry of 15 days, police custody can be asked for.

47. In this case, A-1 surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. On the same day, the investigation Officer filed petition u/s 167(2) of Cr.P.C. seeking 7 days police custody. On the next day, after hearing both sides, the learned Magistrate refused to grant police custody. The State did not take any further action. The defacto complainant filed revision before this Court on 30.4.2014. It was pending before a learned Single Judge. On 3.6.2014, on the orders of the Hon’ble Acting Chief Justice, this revision was allotted to this Court for disposal. By this time, the 15 days period calculated from 28.4.2014 expired on 12.5.2014.

48. The learned Senior Counsel for A-1 submitted that once the said outer limit of 15 days is over, no Court can grant police custody. It is a valuable safety, safeguard provided to the accused u/s 167(2) Cr.P.C. Going beyond the said 15 days will militate against the constitutional guarantee contained in Article 21, Constitution of India.

49. But the learned counsel for the revision petitioner as well as the learned Public Prosecutor would submit that the revision has been filed well before the expiry of the first 15 days of remand, all these days, the revision is pending in this Court and thus the matter is subjudiced. By the act of Court, a party should not suffer. In such circumstances, expiry of 15 days period for grant of police custody prescribed in section 167(2) Cr.P.C. will not apply.

50. In reply, the learned Senior counsel for A-1 submitted that for any reason whatsoever, a Court cannot extend the period prescribed in section 167(2) Cr.P.C. It is the look out of the revision petitioner to see that the matter has been taken up before the expiry of the first 15 days of remand. She should have taken necessary steps. She cannot blame the court. She cannot ask the Court to break the law. There cannot be judicial legislation. Justice should be administered only as provided, prescribed in the statute.

51. In Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., the Hon’ble Supreme Court in clear cut terms declared the law relating to section 167(2) Cr.P.C. specifically with reference to the period within which the Court can grant police remand, namely, before the expiry of the first 15 days of remand. Thereafter, with reference to the same offence, the learned Magistrate has no power to grant police custody. This will be the law applicable to all the courts.

52. In Budh Singh Vs. State of Punjab, accused surrendered before the learned Magistrate on 20.01.1999 and on 2.1.2000, police custody of the accused was sought for. He was remanded. On 4.1.2000, the investigation officer asked for further police remand. The learned Magistrate rejected it. Because by that time, the first 15 days of remand period was over. The State filed revision as against the refusal to grant police custody. It was dismissed on 17.1.2000 by the learned Sessions Judge, Ludhiana. However, a learned Judge of the Punjab & Haryana High Court set aside the order of dismissal passed by the learned Sessions Judge and directed the Magistrate to grant 7 days police custody. This was challenged by the accused before the Hon’ble Supreme Court.

The Hon’ble Apex Court set aside the High Court’s order as under:-

5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4.1.2000, in our opinion, did not require any interference. The man date of Section 167 Criminal Procedure Code, 1973 postulates that there cannot be any detention in police custody, after the expiry of the first 15 days, so far as an accused is concerned. That period of 15 days had in this case admittedly expired on 4.1.2000. The impugned order of the High Court violates the statutory provisions contained in Section 167 Cr.P.C. Since it authorises police remand for a period of seven days after the expiry of the first fifteen days period. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, this Court considered the ambit and scope of Section 167 Cr.P.C. and held that there cannot be any detention in police custody after the expiry of the first 15 days even in a case where some more offences, either serious or other wise committed by an accused in the same transaction come to light at a later stage. The Bench, however clarified that the bar did not apply if the same arrested accused was involved in some other or different case arising out of a different transaction, in which event the period of remand needs to be considered in respect to each of such cases. The impugned order of the High Court under the circumstances, cannot be sustained. The direction to grant police remand for a period of seven days by the High Court is, accordingly, set aside. The appeal, therefore, succeeds and is allowed to the extent indicated above.’

53. In Devender Kumar and Another etc. Vs. State of Haryana and Others etc., the accused was produced before the learned Judicial Magistrate, Palwal on 8.10.2008. The application for police custody filed by the Assistant Sub Inspector was rejected on 8.10.2008 as it was not filed by the S.I. of Police and the accused was remanded to judicial custody till 22.10.2008. On 9.10.2008, police custody petition filed by the Station House Officer, Hodal was dismissed on 10.10.2008 and the accused was granted bail on the same day. The defacto complainant filed petition in the High Court of Punjab & Haryana for cancellation of the bail and also quash the order dated 10.10.2008 whereunder the request of police remand has been rejected. On 19.3.2010, the High Court set aside the order of the Magistrate and also granted police custody. The accused aggrieved by the said order, appealed to the Hon’ble Supreme Court. It was argued before the Hon’ble Supreme Court that the order of the High Court as against the provisions of Section 167(1) Cr.P.C.

The Hon’ble Apex Court accepted the arguments and held as under:

15. With regard to the second point which was urged by Mr. Luthra, the same was considered in depth and was settled in Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., referred to hereinabove. What is clear is the fact that police remand can only be made during the first period of remand after arrest and production before the Magistrate, but not after the expiry of the said period.

54. In Inspector of Police, Town Police Station, Karaikkal vs. R. Vaithyanathan Iyappan Govindaraj (2013(3) MWN (Cr.) 473), it was held that police custody cannot be granted under any circumstances beyond the first remand period of 15 days.

55. It is incumbent upon the party approaching this court by taking necessary steps for the disposal of the revision before the expiry of the first 15 days period of remand. This has not been done in this case. On account of that the court cannot overstep the mandate prescribed in section 167(2) Cr.P.C.

56. It has been contended by the learned counsel for the petitioner that in the interest of investigation as and when required, custodial interrogation could be considered and for doing justice section 167(2) Cr.P.C. cannot stand in the way.

57. In the presence of Article 21, Constitution of India guaranteeing personal freedom and deprivation of a person’s personal liberty only by a procedure established by law, namely, section 167(2) Cr.P.C. prescribing first 15 days period this argument of the learned counsel for the revision petitioner cannot be accepted and it will also be an affront to constitutional mandate, statutory prohibition and human right of the accused.

58. Now, in this case, A-1 has surrendered before the learned XI Metropolitan Magistrate, Saidapet, Chennai on 28.4.2014. The police custody petition was filed on the same day. It was dismissed by the learned Magistrate on 29.4.2014. Thereafter, revision has been filed before this court on 30.4.2014. The 15 days initial period prescribed in Section 167(2) Cr.P.C. was already over. In the circumstances, question of granting police custody will not arise. In such view of the matter, consideration of the merit aspect as to whether police custody could be granted has become unnecessary.

59. In view of the foregoings, this revision petition is dismissed.


(2014) 2 LW(Cri) 120 : (2014) 3 MLJ(Criminal) 108 : (2014) 21 RCR(Criminal) 50

Cases ReferredMadras High Court

State Vs. B. Ranganathan and Another, (2012) MLJ(Cri) 567
The Inspector of Police, P. Saravanan, Inspector of Police, Vangal Police Station, Karur District Vs. K.C. Palanisamy Chettiar
State by Deputy Supdt. of Police, ‘Q’ Branch CID Vs. Sundaramoorthy, (2008) CriLJ 898
State Rep. by the C.B.I. Vs. Anil Sharma, AIR 1997 SC 3806 : (1997) CriLJ 4414 : (1997) 3 Crimes 252 : (1997) 3 CTC 60 : (1997) 7 JT 651 : (1997) 5 SCALE 689 : (1997) 7 SCC 187 : (1997) 3 SCR 737 Supp : (1997) AIRSCW 3722 : (1997) 7 Supreme 670
Budh Singh Vs. State of Punjab, (2001) CriLJ 2942 : (2000) 8 JT 511 : (2000) 9 SCC 266
Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2007 SC 2762 : (2007) CriLJ 4068 : (2007) 4 CTC 740 : (2007) 9 JT 471 : (2007) 9 SCALE 400 : (2007) 8 SCR 582 : (2007) 2 UJ 941 : (2007) AIRSCW 4998 : (2007) 5 Supreme 604
Ram Jethmalani and Others Vs. Union of India (UOI) and Others, (2011) 10 SCALE 753 : (2011) 9 SCC 751 : (2011) 11 SCR 63 : (2011) 202 TAXMAN 115
Union of India and others, Vs. Chowgule and Co. Pvt. Ltd., etc. etc., AIR 1992 SC 1376 : (1992) 3 JT 169 : (1992) 1 SCALE 989 : (1992) 3 SCC 141 Supp : (1992) 2 SCR 992 : (1992) 2 UJ 370
Lingala Vijay Kumar and Others Vs. The Public Prosecutor, AIR 1978 SC 1485 : (1978) CriLJ 1527 : (1978) 4 SCC 196 : (1978) SCC(Cri) 579 : (1979) 1 SCR 2 : (1978) 10 UJ 788
Assistant Director, Direct of Enforcement Vs. Hassan Ali Khan, (2011) 4 SCALE 53 : (2011) 12 SCC 682
Central Bureau of Investigation, Special Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992) CriLJ 2768 : (1992) 2 Crimes 310 : (1992) 3 JT 366 : (1992) 1 SCALE 1024 : (1992) 3 SCC 141 : (1992) 3 SCR 158
Nadir Khan Vs. The State (Delhi Administration), AIR 1976 SC 2205 : (1976) CriLJ 1721 : (1975) 2 SCC 406 : (1975) SCR 489 Supp : (1975) 7 UJ 549
Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others, (2014) AIRSCW 1722 : (2014) CriLJ 1886 : (2014) 3 JT 313 : (2014) 2 RCR(Criminal) 19 : (2014) 2 SCALE 629 : (2014) 4 SCC 626
The State of Bombay Vs. Kathi Kalu Oghad and Others, AIR 1961 SC 1808 : (1961) CriLJ 856 : (1962) 3 SCR 10
Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621
Madhu Limaye Vs. The State of Maharashtra, AIR 1978 SC 47 : (1978) CriLJ 165 : (1977) 4 SCC 551 : (1978) SCC(Cri) 10 : (1978) 1 SCR 749 : (1977) 9 UJ 733
Amar Nath and Others Vs. State of Haryana and Another, AIR 1977 SC 2185 : (1977) CriLJ 1891 : (1977) 79 PLR 695 : (1977) 4 SCC 137 : (1978) 1 SCR 222
Nandini Satpathy Vs. P.L. Dani and Another, AIR 1978 SC 1025 : (1978) CriLJ 968 : (1978) 2 SCC 424 : (1978) SCC(Cri) 236 : (1978) 3 SCR 608
State Rep. by Inspector of Police and Others Vs. N.M.T. Joy Immaculate, AIR 2004 SC 2282 : (2004) CriLJ 2515 : (2004) 3 CTC 138 : (2004) 5 SCALE 330 : (2004) 5 SCC 729 : (2004) 3 SCR 71 Supp : (2004) AIRSCW 2828 : (2004) 4 Supreme 460
Raj Kapoor and Others Vs. State and Others, AIR 1980 SC 258 : (1980) CriLJ 202 : (1980) 1 SCC 43 : (1980) SCC(Cri) 72 : (1980) 1 SCR 1081
Devender Kumar and Another etc. Vs. State of Haryana and Others etc., (2010) CriLJ 3849 : (2010) 2 DMC 224 : (2010) 4 JT 595 : (2010) 5 SCALE 325 : (2010) 6 SCC 753
Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, (2010) 112 BOMLR 3144 : (2011) CriLJ 515 : (2012) 1 MhLj 900
Miss R. Shakuntala Vs. Roshanlal Agarwal and others
Kandhal Sarman Jadeja Vs. State of Gujarat, (2012) CriLJ 4165 : (2012) 2 GLH 678 : (2012) 2 GLR 1656

Section 167(3) of Cr.PC requires the Magistrate to record reasons for granting remand to police custody

ANDHRA PRADESH HIGH COURT

SINGLE BENCH

( Before : Vaman Rao, J )

MD. JAHANGEER 

Vs.

STATE OF A.P. 

Criminal RC No. 123 of 2000

Decided on : 08-02-2000

Criminal Procedure Code, 1973 (CrPC) – Section 167(3), Section 3, Section 376, Section 397, Section 435, Section 561

Cases Referred

State of Gujarat Vs. Swami Amar Jyoti Shyam, (1989) CriLJ 501 : (1989) 1 GLR 217
Counsel for Appearing Parties

Mr. Prabhakar Reddy, for the Appellant; Public Prosecutor, for the Respondent

ORDER

1. This revision case purported to have been filed u/s 397 read with Section 401 Cr.PC challenges the order dated 5-2-2000 passed by the Sub Divisional Magistrate, Bhadrachalam in Criminal MP No. 10 of 2000 in Crime No.2 of 2000 of PS Chinthoor. It is however pointed out by the learned Public Prosecutor that as the matter arises from agency area, it is the Criminal Procedure Code, 1898 that is applicable and not the new Criminal Procedure Code of 1973. The learned Counsel for the petitioner requests this Court to treat this case as a revision u/s 435 of Cr.PC 1898 or in the alternative as a petition u/s 561-A of Cr.PC 1898 for invoking the inherent powers of this Court for challenging the order of the Sub Divisional Magistrate. It appears that the petitioner was involved in an offence punishable u/s 376-G IPC and Section 3(1)(xii) of SCs and STs (PA) Act in Crime No.2 of 2000 on the the of PS Chinthoor, Khammam District. It aiso appears that having come to know of the registration of FIR against the petitioner, he has surrendered before the Chief Judicial Magistrate, Khammam on 31-1-2000, who directed him to be remanded to the judicial custody. The petitioner was accordingly lodged In judicial custody in Sub Jail Khammam. Thereafter, on 4-2-2000 the Assistant Superintendent of Police, Bhadrachalam moved an application before the Sub Divisional Magistrate, Bhadrachalam u/s 167(3) of Cr.PC seeking police remand in respect of the petitioner. The learned Sub-Divisional Magistrate accordingly granted police remand for three days commencing from 10.30 a.m., on 9-2-2000. The learned Magistrate also directed some safe guards against using of third degree methods on the petitioner. The learned Counsel for the petitioner contends that neither the application filed by the Assistant Superintendent of Police contains any reasons or any purpose for which police remand is sought, nor the order passed by the learned Magistrate records any reasons to justify the grant of police remand in respect of the petitioner. The learned Public Prosecutor however contends that there is no need for giving any specific reasons for granting of police remand and if the facts and circumstances justify, the Magistrate has powers to grant police remand in respect of an accused. To appreciate the rival contentions, it will be convenient to extract the provisions of Section 167(3) of Cr.PC, 1973 as under:

“167. Procedure when investigation cannot be completed in twentyfour hours:

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.”

2. Thus it is apparent from subsection (3) of Section 167 that a Magistrate shall record reasons while authorising the detention of the accused in the custody of police. The learned Counsel for the petitioner relied on a judgment of the Gujarat High Court reported in State of Gujarat Vs. Swami Amar Jyoti Shyam, , wherein it is held that remand to police custody of an accused cannot be granted as a matter of course. In the said judgment it was further observed that Section 167(3) of Cr.PC requires the Magistrate to record reasons for granting remand to police custody. The learned Counsel for the petitioner also relied on a judgment of this Court reported in Yelamanchili Mahesh Babu v. State of A.P. 1993 (2) ALT (Crl.) 464, wherein the learned Judge emphasised on the fact that in the instant case the police gave specific reasons for which remand to police custody of the accused was sought. The learned Judge further observed that the Magistrate has also recorded cogent reasons justifying the order of remand passed by him and it is in these circumstances, the learned Judge in that case, refused to interfere with the order of granting remand to police custody. In this case, as stated above, the application filed by the Assistant Superintendent of Police omits to mentions any reasons or purpose for which police custody is sought, except a bald statement that such a remand is required for further investigation in the case. The learned Sub Divisional Magistrate has also failed to record his reasons for remanding the petitioner to the police custody. Thus the requirement of Section 167(3) of Cr.PC does not seem to have been complied with in this case. In these circumstances, the order dated 5-2-2000 passed by the Sub Divisional Magistrate, Bhadrachalam in Criminal MP No. 10 of 2000 in Crime No.2 of 2000 is set aside. However this does not preclude the police from filing a fresh application for such remand giving reasons. In that case, the learned Sub Divisional Magistrate, Bhadrachalam shall pass orders basing on facts and circumstances of the case, recording his reasons for granting or for refusing the remand to police custody as required u/s 167(3) of Cr.PC. Accordingly this case is disposed of.

No costs.


(2000) 1 ALT(Crl) 445 : (2000) 2 AndhLD 831 : (2000) 1 AndhLD(Criminal) 639 : (2000) CriLJ 2188 : (2000) 3 RCR(Criminal) 296

Police remand can be sought U/S 167(2) of Code in respect of an accused arrested at the stage of further investigation if interrogation is needed by investigating agency.

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : Dipak Misra, J; Prafulla C. Pant, J )

CENTRAL BUREAU OF INVESTIGATION — Appellant

Vs.

RATHIN DANDAPAT AND OTHERS — Respondent

Criminal Appeal No. 1081 of 2015 (Arising out of S.L.P. (Criminal) No. 3611 of 2015), Criminal Appeal No. 1082 of 2015 (Arising out of S.L.P. (Criminal) No. 3612 of 2015) and Criminal Appeal No. 1083 of 2015 (Arising out of S.L.P. (Criminal) No. 4241 of 2015)

Decided on : 21-08-2015

Arms Act, 1959 – Section 25, Section 27
Criminal Procedure Code, 1973 (CrPC) – Section 167, Section 167(2), Section 173(2), Section 173(3), Section 173(4), Section 173(5), Section 173(6), Section 173(8), Section 207, Section 309, Section 309(2)
Penal Code, 1860 (IPC) – Section 148, Section 149, Section 302, Section 307, Section 326
Criminal Procedure Code, 1973—Sections 167(2), 173(8) and 309

JUDGMENT

Prafulla C. Pant, J—A common question of law is involved in these three appeals as to whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet.

2. We have heard learned Counsel for the parties and perused the papers on record.

3. The instant case from which these appeals have arisen, relates to killing of nine persons and injuring large number of villagers of Village Netai of District Paschim Medinipore in West Bengal. It is alleged that the Respondents in the present appeals and other accused, on 07.01.2011, after forming an unlawful assembly in the rooftop of Respondent No. 1, Rathin Dandapat, committed the crime. First Information Report was lodged on the same day at Police Station Lalgarh in respect of offences punishable Under Sections 148, 149, 326, 307, 302 of Indian Penal Code (Indian Penal Code), and also in respect of offences punishable Under Section 25/27 of Arms Act. The investigation of the case was initially done by regular police, but later transferred to Criminal Investigation Department (CID) of the State. Vide order dated 18.2.2011, passed by the High Court of Judicature at Calcutta in Writ Petition Nos. 1170(W) of 2011, 1172(W) of 2011 and 1181(W) of 2011, the investigation was transferred to Central Bureau of Investigation (for short “the CBI”), the Appellant before us.

4. During investigation accused, namely Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy were arrested. On completion of investigation, the CBI submitted charge sheet dated 4.4.2011 against 21 accused, including the arrested ones and the absconders. It was mentioned in the charge sheet that further investigation of the case was kept open for the purposes of collection of further evidence and the arrest of the absconders. It was also mentioned that further collected evidence during investigation would be forwarded by filing supplementary charge sheet.

5. The Respondents, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri, Tapan Dey (all Respondents in Criminal Appeal arising out of S.L.P. (Crl.) No. 3611 of 2015), Chandi Karan (Respondent in Criminal Appeal arising out of S.L.P. (Crl.) No. 3612 of 2015), Anuj Pandey (Respondent in Criminal Appeal arising out of S.L.P. (Crl.) No. 4241 of 2011), and one Kanai Dey, were declared proclaimed offenders. Meanwhile, the trial proceeded and, after providing necessary copies to the accused, as required Under Section 207 of the Code of Criminal Procedure, 1973 (for short “Code of Criminal Procedure”), the Additional Chief Judicial Magistrate, Jhargram, on 9.8.2011, committed the case to the Court of Sessions, Paschim Medinipore. The Court of Sessions on 10.12.2011 framed charge against accused Abhani Bhusan Singha, Subhendu Mondal, Aswani Chalak, Nabagopal Sanki, Pintu Roy, Gandib Ban Roy, Lob Duley, Banamali Duley, Niranjan Kotal, Rupchand Ahir, Raju Roy and Swapan Roy. The last two accused, namely, Raju Roy and Swapan Roy were later declared juveniles and their cases were sent to Juvenile Justice Board, Paschim Medinipore. The present case, as against said two juveniles, is said to be lying stayed vide order dated 8.9.2014, passed by this Court in S.L.P. No. 5699 of 2014. In respect of other accused against whom charge was framed, trial further proceeded and ten Prosecution Witnesses were examined. However, their cross-examination was deferred at the instance of arrested accused persons, other than the juveniles.

6. Out of eight proclaimed offenders, five, namely, Rathin Dandapat, Md. Khaliluddin, Dalim Pandey, Joydeb Giri and Tapan Dey, were arrested on 29.4.2014, whereafter on 30.4.2014 the CBI sought their remand in police custody. The Additional Chief Judicial Magistrate, Jhargram rejected the prayer of the CBI, aggrieved by which said investigating agency submitted Revisional Application (C.R.R. No. 1510 of 2014) before the Calcutta High Court. Absconder-accused Chandi Karan was arrested on 9.5.2014 by CID of the State, which informed the CBI about his arrest and meanwhile vacation Magistrate remanded judicial custody of said accused up to 12.5.2014. The CBI on 12.5.2014 sought remand in police custody in respect of Chandi Karan, but the same was also rejected by the Additional Chief Judicial Magistrate, Jhargram, against which Revisional Application (C.R.R. No. 1641 of 2014) was filed before the High Court. As to the absconder-accused Anuj Pandey too, CID, West Bengal, on 7.5.2014 informed the CBI about his arrest from Chandrapura in Jharkhand, and he was produced on 8.5.2014 before the Additional Chief Judicial Magistrate, Jhargram where CBI sought remand in police custody but the same was also refused. Aggrieved by said order dated 8.5.2014, passed by the Additional Chief Judicial Magistrate, Revisional Application (C.R.R. No. 1640 of 2014) was filed before the High Court. All the three Criminal Revisions were disposed of by the High Court by separate orders of the same date, i.e., 15.10.2014, against which these criminal appeals are filed through special leave.

7. Before further discussion, we think it just and proper to quote the relevant provisions of law.

8. Proviso to Sub-section (2) of Section 167 Code of Criminal Procedure, which empowers a Magistrate to authorize detention of an accused in the custody of police, reads as under:

Provided that,-

(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) No Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(c) No Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police.

9. Sub-section (8) of Section 173, under which investigating agency has power to further investigate the matter in which the report/charge sheet has already been filed, is reproduced hereunder:

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report Under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded Under Sub-section (2).

10. Relevant provision of Sub-section (2) of Section 309 Code of Criminal Procedure, empowering remand of an accused, provides as under:

(2) If the Court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

xxx xxx xxx

Explanation 1.-If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.

11. In State through C.B.I. Vs. Dawood Ibrahim Kaskar and others, AIR 1997 SC 2494 : (1997) CriLJ 2989 : (1997) 2 Crimes 92 : (1997) 5 JT 651 : (1997) 4 SCALE 156 : (2000) 10 SCC 438 : (1997) 1 SCR 212 Supp : (1997) AIRSCW 2434 : (1997) 4 Supreme 490 , a three judge bench of this Court has laid down the law on the issue relating to grant of police custody of a person arrested during further investigation. In paragraph 11 of said case, this Court has held as follows:

11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above Sub-section are different from detention in custody Under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted–as has been interpreted by the Bombay High Court in Mohd. Ahmed Yasin Mansuri v. State of Maharashtra 1994 Cri.LJ 1854 (Bom),–to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody Under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. We are, therefore, of the opinion that the words “accused if in custody” appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its power to detain him in police custody, subject to the fulfilment of the requirements and the limitation of Section 167.

12. The case of Dinesh Dalmia Vs. C.B.I., AIR 2008 SC 78 : (2008) CriLJ 337 : (2007) 7 JT 164 : (2007) 11 SCALE 228 : (2007) 8 SCC 770 : (2007) 9 SCR 1124 : (2007) AIRSCW 6112 : (2007) 6 Supreme 417 , which is relied upon by the High Court, relates to granting of bail Under Section 167(2) Code of Criminal Procedure. In said case, the accused/absconder (Dinesh Dalmia) after his arrest was produced before the Magistrate, and on the request of CBI police custody was granted on 14.2.2006 till 24.2.2006, whereafter on another application further police custody was granted till 8.3.2006. Said accused was remanded to judicial custody, and the accused sought statutory bail Under Sub-section (2) of Section 167 Code of Criminal Procedure as no charge sheet was filed against him by CBI within sixty days of his arrest. The Magistrate rejected the application for statutory bail on the ground that it was a case of further investigation after filing of the charge sheet, and the remand of the accused to judicial custody was Under Section 309 Code of Criminal Procedure, after police remand came to an end, granted Under Section 167(2) Code of Criminal Procedure. The High Court upheld said order and this Court also affirmed the view taken by the High Court.

13. In view of the above facts, in the present case, in our opinion, the High Court is not justified on the basis of Dinesh Dalmia (supra) in upholding refusal of remand in police custody by the Magistrate, on the ground that accused stood in custody after his arrest Under Section 309 Code of Criminal Procedure. We have already noted above the principle of law laid down by the three judge bench of this Court in State v. Dawood Ibrahim Kaskar (supra) that police remand can be sought Under Section 167(2) Code of Criminal Procedure in respect of an accused arrested at the stage of further investigation, if the interrogation is needed by the investigating agency. This Court has further clarified in said case that expression ‘accused if in custody’ in Section 309(2) Code of Criminal Procedure does not include the accused who is arrested on further investigation before supplementary charge sheet is filed.

14. For the reasons, as discussed above, we find that the refusal of police remand in the present case is against the settled principle of law laid down by this Court. Therefore, the impugned orders passed by the High Court, affirming the orders of the Additional Chief Judicial Magistrate, Jhargram, are liable to be set aside. Accordingly, the impugned orders passed by the High Court and the orders passed by the Magistrate, declining the police remand, are set aside. The Magistrate is directed to pass fresh orders on the applications made by the Appellant before it relating to granting of police remand of the Respondents in accordance with law.

15. All the three appeals stand allowed.


(2015) 91 ACrC 231 : (2015) 9 AD(SC) 472 : (2015) 154 AIC 97 : (2016) 1 AICLR 596 : (2015) AIR(SCW) 4820 : (2016) 1 AIRBomR(Cri) 474 : (2015) AIR(SC) 3285 : (2015) 3 AllCrlRulings 3323 : (2015) ALLMR(Cri) 3678 : (2015) 3 ApexCourtJudgments(SC) 264 : (2015) 3 CalLJ 43 : (2015) 3 CCR 386 : (2015) 4 CriCC 154 : (2015) CriLJ 4488 : (2015) CriLR 1133 : (2015) 4 Crimes 347 : (2015) 4 ECrC 182 : (2015) 4 JBCJ 138 : (2015) 4 JCC 2631 : (2015) 4 JLJR 119 : (2015) 7 JT 396 : (2015) 3 KLT 122 : (2015) 4 LawHerald(SC) 2656 : (2015) 3 NCC 264 : (2015) 4 PLJR 274 : (2015) RajCriC 869 : (2015) 3 RCR(Criminal) 1019 : (2015) 4 RecentApexJudgments(RAJ) 416 : (2015) 9 SCALE 120 : (2016) 1 SCC 507 : (2016) 1 SCC(Cri) 373 : (2015) 3 UC 1726

No detention in police custody after expiry of first 15 days even in a case where some more serious offences, committed by an accused in same transaction come to light at a later stage

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : K. Jayachandra Reddy, J; A. M. Ahmadi, J )

CENTRAL BUREAU OF INVESTIGATION, SPECIAL INVESTIGATION CELL-I, NEW DELHI —

Vs.

ANUPAM J. KULKARNI

Decided on : 08-05-1992

Constitution of India, 1950 – Article 22(2)
Criminal Procedure Code, 1973 (CrPC) – Section 167(2), Section 309, Section 344, Section 57
Arrest – Procedure – Accused must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody.

Criminal Procedure Code, 1973 (CrPC) – Section 167(2) – Remand – Permissible period – Remand of accused – To custody after arrest – Custody initially can not exceed 15 days on the whole – It can be either police or judicial custody.

Where the Magistrate thinks fit that further detention beyond the period of fifteen days in necessary and it lays down that the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days. The words “otherwise than in the custody of the police beyond the period of fifteen days” are again very significant. Criminal Procedure Code, 1973 (CrPC) – Section 167(2) – Remand – Police custody – Limitation of fifteen days – It during investigation his compicity in more serious offences disclosed during same occurrence, it does not athorise the police to ask for further custody after expiry of fifteen days – This limitation does not apply to different occurrence in which complicity of arrested accused disclosed.

Criminal Procedure Code, 1973 (CrPC) – Section 167(2) Proviso (a) – Remand – Permissible period – Computation of – Executive Magistrate empowered to order detention only for seven days – Judicial Magistrate to whom the executive Magistrate has forwarded the arrested accused can order detention under Section 162(2) for rest of the fifteen days deducting the period of detention ordered by Executive Magistrate.

Cases Referred

Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, AIR 1986 SC 2130 : (1986) 2 Crimes 678 : (1986) 1 SCALE 1037 : (1986) 3 SCC 141 : (1986) 2 SCR 1128
Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, AIR 1975 SC 1465 : (1975) 77 PLR 569 : (1975) 2 SCC 220 : (1975) SCR 137 Supp : (1975) 7 UJ 553
S. Harsimran Singh Vs. State of Punjab, (1984) CriLJ 253 : (1984) 2 ILR (P&H) 42
Mohinder Singh Vs. Iqbal Singh, (1981) CriLJ 1773 : (1981) 20 DLT 20 : (1981) 2 DRJ 155 : (1981) RLR 407
State Vs. Mehar Chand, (1969) 5 DLT 179
State (Delhi Administration) Vs. Ravinder Kumar Bhatnagar, (1982) 21 DLT 442 : (1982) 3 DRJ 205

ORDER

K. Jeyachandra Reddy, J.—Leave granted.

2. An important question that arises for consideration is whether a person arrested and produced before the nearest Magistrate as required u/s 167(1) CrPC can still be remanded to police custody after the expiry of the initial period of 15 days. We propose to consider the issue elaborately as there is no judgment of this Court on this point. The facts giving rise to this question may briefly be stated. A case relating to abduction of four Bombay based diamond merchants and one Shri Kulkarni was registered at Police Station, Tughlak Road, New Delhi on 16.9.91 and the investigation was entrusted to C.B.I. During investigation it was disclosed that not only the four diamond merchants but also Shri Kulkarni, who is the respondent before us and one driver Babulal were kidnapped between 14th and 15th September, 1991 from two Hotels at Delhi. It emerged during investigation that the said Shri Kulkarni was one of the associates of the accused one Shri R. Chaudhary responsible for the said kidnapping of the diamond merchants. On the basis of some available material Shri Kulkarni was arrested on 4.10.91 and was produced before the Chief Metropolitan Magistrate, Delhi on 5.10.91. On the request of the C.B.I. Shri Kulkarni was remanded to judicial custody till 11.10.91. On 10.10.91 a test identification parade was arranged but Shri Kulkarni refused to cooperate and his refusal was recorded by the concerned Munsif Magistrate. On 11.10.91 an application was moved by the investigating officer seeking police custody of Shri Kulkarni which was allowed. When he was being taken on the way Shri Kulkarni pretended to be indisposed and he was taken to the Hospital the same evening where he remained confined on the ground of illness upto 21.10.91 and then he was referred to Cardiac Out-patient Department of G.B.Pant Hospital. Upto 29.10.91 Shri Kulkarni was again remanded to judicial custody by the Magistrate and thereafter was sent to Jail. In view of the fact that the Police could not take him into police custody all these days the investigating officer again applied to the court of Chief Metropolitan Magistrate for police custody of Shri Kulkarni. The Chief Metropolitan Magistrate relying on a judgment of the Delhi High Court in State (Delhi Admn.) v. Dharam Pal and Ors. 1982 Cri L.J. 1103 refused police remand. Questioning the same a revision was filed before the High Court of Delhi. The learned Single Judge in the first instance considered whether there was material to make out a case of kidnapping or abduction against Shri Kulkarni and observed that even the abducted persons namely the four diamond merchants do not point an accusing finger against Shri Kulkarni and that at any rate Shri Kulkarni himself has been interrogated in jail for almost seven days by the C.B.I. and nothing has been divulged by him, therefore, it is not desirable to confine him in jail and in that view of the matter he granted him bail. The High Court, however, did not decide the question whether or not after the expiry of the initial period of 15 days a person can still be remanded to police custody by the magistrate before whom he was produced. The said order is challenged in these appeals.

3. The learned Additional Solicitor General appearing for the C.B.I. the appellant contended that the Chief Metropolitan Magistrate erred in not granting police custody and that Dharam Pal’s case on which he placed reliance has been wrongly decided. The further contention is that the High Court has erred in granting bail to Shri Kulkarni without deciding the question whether he can be remanded to police custody as prayed for by the C.B.I. Shri Ram Jethmalani, learned Counsel for the respondent accused submitted that the language of Section 167 Cr. PC is clear and that the police custody if at all be granted by the Magistrate should be only during the period of first 15 days from the date of production of the accused before the magistrate and not later and that subsequent custody if any should only be judicial custody and the question of granting police custody after the expiry of first 15 days remand does not arise.

4. Section 167 Cr. PC 1973 after some changes reads as under:

167. Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the police officer making the investigation, he if is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence., And, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.

Explanation 1 – For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be so detained in custody so long as he does not furnish bail.

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

(2A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody, as he may think for a term not exceeding seven days in the aggregate, and, on the expiry of the period of the detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph 2(a) of the proviso to Sub-section (2);

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify.

Before proceeding further it may be necessary to advert to the legislative history of this section. The old Section 167 of 1898 Code provided for the detention of an accused in custody for a term not exceeding 15 days on the whole. It was noted that this was honoured more in the breach than in the observance and that a practice of doubtful legality grew up namely the police used to file an incomplete preliminary charge-sheet and move the court for remand u/s 344 corresponding to the present Section 309 which was not meant for during investigation. Having regard to the fact that there may be genuine cases where investigation might not be completed in 15 days, the Law Commission made certain recommendations to confer power on the Magistrate to extend the period of 15 days detention. These recommendations are noticed in the objects and reasons of the Bill thus:

…At present, Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. A practice of doubtful legality has grown whereby the police file a “preliminary” or incomplete chargesheet and move the court for remand u/s 344 which is not intended to apply to the stage of investigation. While in some cases the delay in investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete the investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue. It is considered that the most satisfactory solution of the problem would be to confer on the Magistrate the power to extend the period of extension beyond 15 days, whenever he is satisfied that adequate grounds exist for granting such extension….

The Joint Committee, however, with a view to have the desired effect made provision for the release of the accused if investigation is not duly completed in case where accused has been in custody for some period. Sub-sections (5) and (6) relating to offences punishable for imprisonment for two years were inserted and the Magistrate was authorised to stop further investigation and discharge the accused if the investigation could not be completed within six months. By the Cr.PC Amendment Act 1978 proviso (a) to Sub-section (2) of Section 167 has been further amended and the Magistrate is empowered to authorise the detention of accused in custody during investigation for an aggregate period of 90 days in cases relating to major offences and in other cases 60 days. This provision for custody for 90 days intended to remove difficulties which actually arise in completion of the investigation of offences of serious nature. A new Sub-section (2A) also has been inserted empowering the Executive Magistrate to make an order for remand but only for a period not exceeding seven days in the aggregate and in cases where Judicial Magistrate is not available. This provision further lays down that period of detention ordered by such Executive Magistrate should be taken into account in computing the total period specified in Clause (a) of Sub-section (2) of Section 167. Now coming to the object and scope of Section 167 it is well-settled that it is supplementary to Section 57. It is clear from Section 57 that the investigation should be completed in the first instance within 24 hours if not the arrested person should be brought by the police before a magistrate as provided u/s 167. The law does not authorise a police officer to detain an arrested person for more than 24 hours exclusive of the time necessary for the journey from the place of arrest to the magistrate court. Sub-section (1) of Section 167 covers all this procedure and also lays down that the police officer while forwarding the accused to the nearest magistrate should also transmit a copy of the entries in the diary relating to the case. The entries in the diary are meant to afford to the magistrate the necessary information upon which he can take the decision whether the accused should be detained in the custody further or not. It may be noted even at this stage the magistrate can release him on bail if an application is made and if he is satisfied that there are no grounds to remand him to custody but if he is satisfied that further remand is necessary then he should act as provided u/s 167. It is at this stage Sub-section (2) comes into operation which is very much relevant for our purpose. It lays down that the magistrate to whom the accused person is thus forwarded may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole. If such magistrate has no jurisdiction to try the case or commit it for trial and if he considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having such jurisdiction. The section is clear in its terms. The magistrate under this section can authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words “such custody” and “for a term not exceeding fifteen days in the whole” are very significant. It is also well-settled now that the period of fifteen days starts running as soon as the accused is produced before the Magistrate.

5. Now comes the proviso inserted by Act no. 45 of 1978 which is of vital importance in deciding the question before us. This proviso comes into operation where the magistrate thinks fit that further detention beyond the period of fifteen days is necessary and it lays down that the magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days. The words “otherwise than in the custody of the police beyond the period of fifteen days” are again very significant.

6. The learned Additional Solicitor General appearing for the C.B.I. contended that a combined reading of Section 167(2) and the proviso therein would make it clear that if for any reason the police custody cannot be obtained during the period of first fifteen days yet a remand to the police custody even later is not precluded and what all that is required is that such police custody in the whole should not exceed fifteen days. According to him there could be cases where a remand to police custody would become absolutely necessary at a later stage even though such an accused is under judicial custody as per the orders of the magistrate passed under the proviso. The learned Additional Solicitor General gave some instances like holding an identification parade or interrogation on the basis of the new material discovered during the investigation. He also submitted that some of the judgments of the High Courts particularly that of the Delhi High Court relied upon by the Chief Metropolitan Magistrate do not lay down the correct position of law in this regard. In State (Delhi Administration) Vs. Ravinder Kumar Bhatnagar, a learned Single Judge of the High Court held that once the accused is remanded to judicial custody he cannot be sent back again to police custody in connection with or in continuation of the same investigation even though the first period of fifteen days has not exhausted. Again the same learned Judge Justice M.L. Jain in Mohinder Singh Vs. Iqbal Singh, took the same view. In State (Delhi Administration) v. Dharam Pal and Ors. 1982 Cri.L.J. 1103 a Division Bench of the Delhi High Court overruled the learned Single Judge’s judgments in Gian Singh’s case and Trilochan Singh’s case. The Division Bench held that the words “from time to time” occurring in the Section show that several orders can be passed u/s 167(2) and that the nature of the custody can be altered from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in Section 167(2) of the Code and that after fifteen days the accused could only be kept in judicial custody or any other custody as ordered by the magistrate but not in the custody of the police. In arriving at this conclusion the Division Bench sought support on an earlier decision in State Vs. Mehar Chand, . In that case the accused had been arrested for an offence of kidnapping and after the expiry of the first period of fifteen days the accused was in judicial custody u/s 344 Cr. PC (old code). At that stage the police found on investigation that an offence of murder also was prima facie made out against the said accused. Then the question arose whether the said accused who was in judicial custody should be sent to the police custody on the basis of the discovery that there was aggravated offence. The magistrate refused to permit the accused to be put in police custody. The same was questioned before the High Court. Hardy, J. held that an accused who is in magisterial custody in one case can be allowed to be remanded to police custody in other case and on the same rule he can be remanded to police custody at a subsequent stage of investigation in the same case when the information discloses his complicity in more serious offences and that on principle, there is no difference at all between the two types of cases. The learned Judge further stated as under:

I see no insuperable difficulty in the way of the police arresting the accused for the second time for the offence for which he is now wanted by them. The accused being already in magisterial custody it is open to the learned Magistrate u/s 167(2) to take the accused out of jail or judicial custody and hand him over to the police for the maximum period of 15 days provided in that Section. All that he is required to do is to satisfy himself that a good case is made out for detaining the accused in police custody in connection with investigation of the case. It may be that the offences for which the accused is now wanted by the police relate to the same case but these are altogether different offences and in a way therefore it is quite legitimate to say that it is a different case in which the complicity of the accused has been discovered and police in order to complete their investigation of that case require that the accused should be associated with that investigation in some way.

The Division Bench in Dharam Pal’s case referring to these observations of Hardy, J. observed that “We completely agree with Hardy, J. in coming to the conclusion that the Magistrate has to find out whether there is a good case for grant of police custody,” A perusal of the later part of the judgment in Dharam Pal’s case would show that the Division Bench referred to these observations in support of the view that the nature of the custody can be altered from judicial custody to police custody or vice-versa during the first period of fifteen days mentioned in Section 167(2) of the Code, but however firmly concluded that after fifteen days the accused could only be in judicial custody or any other custody as ordered by the magistrate but not in police custody. Then there is one more decision of the Delhi High Court in State (Delhi Administration) Vs. Ravinder Kumar Bhatnagar, where a Single Judge after relying on the judgment of the Division Bench in Dharam Pal’s case held that the language of Section 167(2) is plain and that words “for a term not exceeding fifteen days in the whole” would clearly indicate that those fifteen days begin to run immediately after the accused is produced before the magistrate in accordance with Sub-section (1) and the police custody cannot be granted after the lapse of the “first fifteen days”. In State of Kerala v. Sadanandan 1984 K.L.T. 747 a Single Judge of the Kerala High Court held that the initial detention of the accused by the magistrate can be only for fifteen days in the whole and it may be either police custody or judicial custody and during the period the magistrate has jurisdiction to convert judicial custody to police custody and vice-versa and the maximum period under which the accused can be so detained is only fifteen days and that after the expiry of fifteen days the proviso comes into operation which expressly refers to police custody and enjoins that there shall be no police custody and judicial custody alone is possible when power is exercised under the proviso. The learned Single Judge stated that in the case before him the accused has already been in police custody for fifteen days and therefore he could not be remanded to police custody either u/s 167 or Section 309 Cr.PC

7. The learned Additional Solicitor General submitted that the observations made by Hardy, J. in Mehar Chand’s case would indicate that during the investigation of the same case in which the accused is arrested and is already in custody if more offences committed in the same case come to light there should be no bar to turn over the accused to police custody even after the first period of fifteen days and during the period of ninety days or sixty days in respect of the investigation of the cases mentioned in provisos (a)(i) and (ii) respectively. It may be noted firstly that the Mehar Chand’s case was decided in respect of a case arising under the old Code. If we examine the background in enacting the new Section 167(2) and the proviso (a) as well as Section 309 of the new Code it becomes clear that the legislature recognised that such custody namely police, judicial or any other custody like detaining the arrested person in Nari Sadans etc. should be in the whole for fifteen days and the further custody under the proviso to Section 167 or u/s 309 should only be judicial. In Chaganti Satyanarayana and Others Vs. State of Andhra Pradesh, this Court examined the scope of Section 167(2) provisos (a)(i) and (ii) and held that the period of fifteen days, ninety days or sixty days prescribed therein are to be computed from the date of remand of the accused and not from the date of his arrest u/s 57 and that remand to police custody cannot be beyond the period of fifteen days and the further remand must be to judicial custody. Though the point that precisely arose before this Court was whether the period of remand prescribed should be computed from the date of remand or from the date of arrest u/s 57, there are certain observations throwing some light on the scope of the nature of custody after the expiry of the first remand of fifteen days and when the proviso comes into operation. It was observed thus:

As Sub-section (2) of Section 167 as well as proviso (1) of Sub-section (2) of Section 309 relate to the powers of remand of a magistrate, though under different situations, the two provisions call for a harmonious reading insofar as the periods of remand are concerned. It would, therefore, follow that the words “15 days in the while’ occurring in Sub-section (2) of Section 167 would be tantamount to a period of “15 days at a time” but subject to the condition that if the accused is to be remanded to police custody the remand should be for such period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed under law either pursuant to a single order of remand or to more than one order, when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted, has to be necessarily to judicial custody and not otherwise. The legislature having provided for an accused being placed under police custody under orders of remand for effective investigation of cases has at the same time taken care to see that the interests of the accused are not jeopardised by his being placed under police custody beyond a total period of 15 days, under any circumstances, irrespective of the gravity of the offence or the serious nature of the case.

(emphasis supplied)

These observations make it clear that if an accused is detained in police custody the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody.

8. Having regard to the words ‘ ‘in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole” occurring in Sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the number of days of police custody in the first fifteen days are less whether the police can ask subsequently for police custody for full period of fifteen days not availed earlier or for the remaining days during the rest of the periods of ninety days or sixty days covered by the proviso. The decisions mentioned above do not deal with this uestion precisely except the judgment of the Delhi High Court in Dharam Pal’s case. Taking the plain language into consideration particularly the words otherwise than in the custody of the police beyond the period of fifteen days” in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal’s case is correct.

9. At this juncture we want to make another aspect clear namely the computation of period of remand. The proviso to Section 167(2) clearly lays down that the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. In Chaganti Satyanarayana’s case it was held that “It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order of remand.” Therefore the first period of detention should be computed from the date of order of remand. Section 167(2A) which has been introduced for pragmatic reasons states that if an arrested person is produced before an Executive Magistrate for remand the said Magistrate may authorise the detention of the accused not exceeding seven days in aggregate. It further provides that the period of remand by the Executive Magistrate should also be taken into account for computing the period specified in the proviso i.e., aggregate periods of ninety days or sixty days. Since the Executive Magistrate is empowered to order detention only for seven days in such custody as he thinks fit, he should therefore either release the accused or transmit him to the nearest Judicial Magistrate together with the entries in the diary before the expiry of seven days. The Section also lays down that the Judicial Magistrate who is competent to make further orders of detention, for the purpose of computing the period of detention has to take into consideration the period of detention ordered by the Executive Magistrate. Therefore on a combined reading of Sections 167(2) and (2A) it emerges that the Judicial Magistrate to whom the Executive Magistrate has forwarded the arrested accused can order detention in such custody namely police custody or judicial custody u/s 167(2) for the rest of the first fifteen days after deducting the period of detention ordered by the Executive Magistrate. The detention thereafter could only be in judicial custody. Likewise the remand u/s 309 Cr.PC can be only to judicial custody in terms mentioned therein. This has been concluded by this Court and the language of the section also is clear. Section 309 comes into operation after taking cognizance and not during the period of investigation and the remand under this provision can only be to judicial custody and there cannot be any controversy about the same. (vide Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa,

10. The learned Additional Solicitor General however submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the materials within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure of justice. There may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. The proviso to Section 167 is explicit on this aspect. The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22(2) of the Constitution of India and Section 57 of Cr. PC give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. If as contended by the learned Additional Solicitor General a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. We are therefore unable to accept this contention.

11. A question may then arise whether a person arrested in respect of an offence alleged to have been committed by him during an occurrence can be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after the expiry of the period of first fifteen days of his arrest. The learned Additional Solicitor General submitted that as a result of the investigation carried on and the evidence collected by the police the arrested accused may be found to be involved in more serious offences than the one for which he was originally arrested and that in such a case there is no reason as to why the accused who is in magisterial custody should not be turned over to police custody at a subsequent stage of investigation when the information discloses his complicity in more serious offences. We are unable to agree. In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more sessions offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted than the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused in disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be for formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. The learned Additional Solicitor General however strongly relied on some of the observations made by Hardy, J. in Mehar Chand’s case extracted above in support of his contention namely that an arrested accused who is in judicial custody can be turned over to police custody even after the expiry of first fifteen days at a subsequent stage of the investigation in the same case if the information discloses his complicity in more serious offences. We are unable to agree that the mere fact that some more offences alleged to have been committed by the arrested accused in the same case are discovered in the same case would by itself render it to be a different case. All these offences including the so-called serious offences discovered at a later stage arise out of the same-transaction in connection with which the accused was arrested. Therefore there is a marked difference between the two situations. The occurrences constituting two different transactions give rise to two different cases and the exercise of power under Sections 167(1) and (2) should be in consonance with the object underlying the said provision in respect of each of those occurrences which constitute two different cases. Investigation in one specific case cannot be the same as in the other. Arrest and detention in custody in the context of Sections 167(1) and (2) of the Code has to be truly viewed with regard to the investigation of that specific case in which the accused person has been taken into custody. In S. Harsimran Singh Vs. State of Punjab, a Division Bench of the Punjab and Haryana High Court considered the question whether the limit of police custody exceeding fifteen days as prescribed by Section 167(2) is applicable only to a single case or is attracted to a series of different cases requiring investigation against the same accused and held thus:

We see no inflexible bar against a person in custody with regard to the investigation of a particular offence being either re-arrested for the purpose of the investigation of an altogether different offence. To put it in other words, there is no insurmountable hurdle in the conversion of judicial custody into police custody by an order of the Magistrate u/s 167(2) of the Code for investigating another offence. Therefore, a re-arrest or second arrest in a different case is not necessarily beyond the ken of law.

This view of the Division Bench of the Punjab & Haryana High Court appears to be practicable and also conforms to Section 167. We may, however, like to make it explicit that such re-arrest or second arrest and seeking police custody after the expiry of the period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. A literal construction of Section 167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot under any circumstances be issued, would seriously hamper the very investigation of the other case the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same. It is an accepted rule that an interpretation which furthers the ends of justice should be preferred. It is true that the police custody is not the be-all and end-all of the whole investigation but yet it is one of its primary requisites particularly in the investigation of serious and henious crimes. The legislature also noticed this and permitted limited police custody. The period of first fifteen days should naturally apply in respect of the investigation of that specific case for which the accused is held in custody. But such custody cannot further held to be a bar for invoking a fresh remand to such custody like police custody in respect of an altogether different case involving the same accused.

12. As the points considered above have an important bearing in discharge of the day-to-day magisterial powers contemplated u/s 167(2), we think it appropriate to sum up briefly our conclusions as under:

13. Whenever any person is arrested u/s 57 Cr. PC he should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e., either police or judicial from time time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate alongwith the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation – can only be in judicial custody. There can not be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier – case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case and the Magistrate can act as provided u/s 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above. If the investigation is not completed within the period of ninety days or sixty days then the accused has to be released on bail as provided under the proviso to Section 167(2). The period of ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody.

14. We may, however, in the end clarify that the position of law stated above applies to Section 167 as it stands in the Code. If there are any State amendments enlarging the periods of detention, different considerations may arise on the basis of the language employed in those amendments.

15. The appeals are accordingly dismissed.


(1992) 2 AICLR 780 : (1992) AIR(SCW) 1976 : (1992) AIR(SC) 1768 : (1992) AllCrlRulings 498 : (1992) 3 AllWC 1781 : (1992) 2 AnWR 15 : (1992) 3 BCR 562 : (1993) 1 BLJR 1 : (1992) 94 BomLR 770 : (1992) CriLJ 2768 : (1992) CriLR 533 : (1992) 2 Crimes 310 : (1992) ECrC 707 : (1992) 3 JT 366 : (1992) 2 OriLawRev 36 : (1992) 2 OriLR 36 : (1992) 2 RCR(Criminal) 147 : (1992) 1 SCALE 1024 : (1992) 3 SCC 141 : (1992) SCC(Cri) 554 : (1992) 3 SCR 158

Whether refusal to have sexual intercourse for a long time without sufficient reason itself amounts to mental cruelty? SC Yes

Supreme court explained mental cruelty

Supreme Court of India

Samar Ghosh vs Jaya Ghosh

Dated: 26 March, 2007

CASE NO.: Appeal (civil) 151 of 2004

BENCH: B.N. Agrawal, P.P. Naolekar & Dalveer Bhandari

JUDGMENT:

 Dalveer Bhandari, J.

This is yet another unfortunate matrimonial dispute which has shattered the twenty two year old matrimonial bond between the parties. The appellant and the respondent are senior officials of the Indian Administrative Service, for short ‘IAS’. The appellant and the respondent were married on 13.12.1984 at Calcutta under the Special Marriage Act, 1954. The respondent was a divorcee and had a female child from her first marriage. The custody of the said child was given to her by the District Court of Patna where the respondent had obtained a decree of divorce against her first husband, Debashish Gupta, who was also an I.A.S. officer.

The appellant and the respondent knew each other since 1983. The respondent, when she was serving as the Deputy Secretary in the Department of Finance, Government of West Bengal, used to meet the appellant between November 1983 and June 1984. They cultivated close friendship which later developed into courtship.

The respondent’s first husband, Debashish Gupta filed a belated appeal against the decree of divorce obtained by her from the District Court of Patna. Therefore, during the pendency of the appeal, she literally persuaded the appellant to agree to the marriage immediately so that the appeal of Debashish Gupta may become infructuous. The marriage between the parties was solemnized on 13.12.1984. According to the appellant, soon after the marriage, the respondent asked the appellant not to interfere with her career. She had also unilaterally declared her decision not to give birth to a child for two years and the appellant should not be inquisitive about her child and he should try to keep himself aloof from her as far as possible. According to the appellant, there was imposition of rationing in emotions in the arena of love, affection, future planning and normal human relations though he tried hard to reconcile himself to the situation created by the respondent.

The appellant asserted that the apathy of the respondent and her inhuman conduct towards him became apparent in no time. In February 1985, the appellant suffered prolonged illness. The respondent’s brother was working in Bareilly. Her parents along with her daughter went there for sojourn. The appellant could not go because of high temperature and indifferent health. She left him and went to Bareilly even when there was no one to look after him during his illness. On her return, the respondent remained in Calcutta for about four days, but she did not care to meet the appellant or enquire about his health. According to the appellant, he made all efforts to make adjustments and to build a normal family life. He even used to go to Chinsurah every weekend where the respondent was posted but she showed no interest and was overtly indifferent to him. The appellant usually returned from Chinsurah totally dejected. According to the appellant, he felt like a stranger in his own family. The respondent unilaterally declared that she would not have any child and it was her firm decision. The appellant felt that his marriage with the respondent was merely an eye-wash because immediately after the marriage, serious matrimonial problems developed between them which kept growing.

The respondent was transferred to Calcutta in May 1985. Their residential flat at the Minto Park Housing Estate stood allotted to the appellant. The respondent used to come to their flat intermittently. One Prabir Malik, a domestic servant-cum-cook also used to live in the said flat. He used to cook food and carry out household work for the appellant. According to the appellant, the respondent used to say that her daughter was being neglected and that she might even be harmed. The indication was towards Prabir Malik. The appellant and the respondent virtually began to live separately from September, 1985.

The appellant was transferred to Murshidabad in May 1986 but the respondent continued to stay in Calcutta. The appellant stayed in Murshidabad up to April 1988 and thereafter he went on deputation on an assignment of the Government of India but there he developed some health problem and, therefore, he sought a transfer to Calcutta and came back there in September 1988. On transfer of the appellant to Murshidabad, the flat in which they were staying in Minto Park was allotted to the respondent as per the standard convention. The appellant and the respondent again began living together in Calcutta from September 1988. The appellant again tried to establish his home with the respondent after forgetting the entire past.

According to the appellant, the respondent never treated the house to be her family home. The respondent and her mother taught respondent’s daughter that the appellant was not her father. The child, because of instigation of the respondent and her mother, gradually began to avoid the appellant. The respondent in no uncertain terms used to tell the appellant that he was not her father and that he should not talk to the child or love her. The appellant obviously used to feel very offended.

The appellant also learnt that the respondent used to tell her mother that she was contemplating divorce to the appellant. The respondent’s daughter had also disclosed to the appellant that her mother had decided to divorce him. According to the appellant, though they lived under the same roof for some time but the respondent virtually began to live separately from April, 1989 at her parent’s house. In April 1990 the appellant’s servant Prabir Malik had left for Burdwan on getting a job. The respondent used to come from her parents house to drop her daughter to her school La Martinere. She used to come to the flat at Minto Park from the school to cook food only for herself and leave for the office. The appellant began to take his meals outside as he had no other alternative.

According to the appellant, the said Prabir Malik came to the flat on 24th August, 1990 and stayed there at the night. The next two days were holidays. The respondent and her father also came there on 27th August, 1990. On seeing Prabir, the respondent lost her mental equanimity. She took strong exception to Prabir’s presence in her flat and started shouting that the appellant had no self-respect and as such was staying in her flat without any right. According to the appellant, he was literally asked to get out of that flat. The respondent’s father was also there and it appeared that the act was pre-conceived. The appellant felt extremely insulted and humiliated and immediately thereafter he left the flat and approached his friend to find a temporary shelter and stayed with him till he got a government flat allotted in his name on 13.9.1990.

Admittedly, the appellant and the respondent have been living separately since 27th August, 1990. The appellant further stated that the respondent refused cohabitation and also stopped sharing bed with him without any justification. Her unilateral decision not to have any child also caused mental cruelty on the appellant. The appellant was not permitted to even show his normal affection to the daughter of the respondent although he was a loving father to the child. The appellant also asserted that the respondent desired sadistic pleasure at the discomfiture and plight of the appellant which eventually affected his health and mental peace. In these circumstances, the appellant has prayed that it would not be possible to continue the marriage with the respondent and he eventually filed a suit for the grant of divorce.

In the suit for divorce filed by the appellant in Alipur, Calcutta, the respondent filed her written statement and denied the averments. According to the version of the respondent, Prabir Malik, the domestic servant did not look after the welfare and well-being of the child. The respondent was apprehensive that Prabir Malik may not develop any affection towards the respondent’s daughter.

According to the version of the respondent, the appellant used to work under the instructions and guidance of his relations, who were not very happy with the respondent and they were interfering with their family affairs. The respondent stated that the appellant has filed the suit for divorce at the behest of his brothers and sisters. The respondent has not denied this fact that from 27th August, 1990 they have been continuously living separately and thereafter there has been no interaction whatsoever between them.

The appellant, in support of his case, has examined himself as witness no.1. He has also examined Debabrata Ghosh as witness no.2, N. K. Raghupatty as witness no.3, Prabir Malik as witness no.4 and Sikhabilas Barman as witness no.5.

Debabrata Ghosh, witness no.2 is the younger brother of the appellant. He has stated that he did not attend the marriage ceremony of the appellant and the respondent. He seldom visited his brother and sister-in- law at their Minto Park flat and he did not take any financial assistance from his brother to maintain his family. He mentioned that he noticed some rift between the appellant and the respondent.

The appellant also examined N. K. Raghupatty, witness no.3, who was working as the General Secretary at that time. He stated that he knew both the appellant and the respondent because both of them were his colleagues. He was occupying a suite in the Circuit House at Calcutta. He stated that two weeks before the Puja vacation in 1990, the appellant wanted permission to stay with him because he had some altercation with the respondent. According to this witness, the appellant was his close friend, therefore, he permitted him to stay with him. He further stated that the appellant after a few days moved to the official flat allotted to him.

Prabir Malik was examined as witness no.4. He narrated that he had known the appellant for the last 8/9 years. He was working as his servant-cum-cook. He also stated that since April 1990 he was serving at the Burdwan Collectorate. He stated that after getting the job at Burdwan Collectorate, he used to visit the Minto Park flat of the appellant on 2nd and 4th Saturdays. He stated that the relationship between the appellant and the respondent was not cordial. He also stated that the appellant told him that the respondent cooks only for herself but does not cook for the appellant and he used to eat out and sometimes cooked food for himself. He stated that the brothers and sisters of the appellant did not visit Minto Park flat. He also stated that the daughter of the respondent at times used to say that the appellant was not her father and that she had no blood relationship with him. He stated that on 4th Saturday, in the month of August, 1990, he came to the flat of the appellant. On seeing him the respondent got furious and asked him for what purpose he had come to the flat? She further stated that the appellant had no residence, therefore, she had allowed him to stay in her flat. She also said that it was her flat and she was paying rent for it. According to the witness, she further stated that even the people living on streets and street beggars have some prestige, but these people had no prestige at all. At that time, the father of the respondent was also present. According to Prabir Malik, immediately after the incident, the appellant left the flat.

The appellant also examined Sikhabilas Barman as witness no.5, who was also an IAS Officer. He stated that he had known the appellant and his wife and that they did not have cordial relations. He further stated that the appellant told him that the respondent cooks for herself and leaves for office and that she does not cook for the appellant and he had to take meals outside and sometimes cooked food for himself. He also stated that the respondent had driven the appellant out of the said flat.

The respondent has examined herself. According to her statement, she indicated that she and the appellant were staying together as normal husband and wife. She denied that she ill-treated Prabir Malik. She further stated that the brothers and sisters of the appellant used to stay at Minto Park flat whenever they used to visit Calcutta. She stated that they were interfering in the private affairs, which was the cause of annoyance of the respondent. She denied the incident which took place after 24.8. 1990. However, she stated that the appellant had left the apartment on 27.8.1990. In the cross- examination, she stated that the appellant appeared to be a fine gentleman. She admitted that the relations between the appellant and the respondent were not so cordial. She denied that she ever mentioned to the appellant that she did not want a child for two years and refused cohabitation.

The respondent also examined R. M. Jamir as witness no. 2. He stated that he had known both of them and in the years 1989-90 he visited their residence and he found them quite happy. He stated that in 1993 the respondent enquired about the heart problem of the appellant.

The respondent also examined her father A. K. Dasgupta as witness no. 3. He stated that his daughter neither insulted nor humiliated her husband in presence of Prabir Malik nor asked him to leave the apartment. He stated that the appellant and the respondent were living separately since 1990 and he never enquired in detail about this matter. He stated that the appellant had a lot of affection for the respondent’s daughter. He stated that he did not know about the heart trouble of the appellant. He stated that he was also unaware of appellant’s bye- pass surgery.

The learned Additional District Judge, 4th Court, Alipur, after examining the plaint, written statements and evidence on record, framed the follows issues: “1. Is the suit maintainable?

2. Is the respondent guilty of cruelty as alleged?

3. Is the petitioner entitled to decree of divorce as claimed?

4. To what other relief or reliefs the petitioner is entitled?”

Issue no. 1 regarding maintainability of the suit was not pressed, so this issue was decided in favour of the appellant.

The trial court, after analyzing the entire pleadings and evidence on record, came to the conclusion that the following facts led to mental cruelty:

1. Respondent’s refusal to cohabit with the appellant.

2. Respondent’s unilateral decision not to have children after the marriage.

3. Respondent’s act of humiliating the appellant and virtually turning him out of the Minto Park apartment. The appellant in fact had taken shelter with his friend and he stayed there till official accommodation was allotted to him.

4. Respondent’s going to the flat and cooking only for herself and the appellant was forced to either eat out or cook his own meals.

5. The respondent did not take care of the appellant during his prolonged illness in 1985 and never enquired about his health even when he underwent the bye-pass surgery in 1993.

6. The respondent also humiliated and had driven out the loyal servant-cum-cook of the appellant, Prabir Malik.

The learned Additional District Judge came to the finding that the appellant has succeeded in proving the case of mental cruelty against the respondent, therefore, the decree was granted by the order dated 19.12.1996 and the marriage between the parties was dissolved.

The respondent, aggrieved by the said judgment of the learned Additional District Judge, filed an appeal before the High Court. The Division Bench of the High Court vide judgment dated 20.5.2003 reversed the judgment of the Additional District Judge on the ground that the appellant has not been able to prove the allegation of mental cruelty. The findings of the High Court, in brief, are recapitulated as under: I. The High Court arrived at the finding that it was certainly within the right of the respondent-wife having such a high status in life to decide when she would like to have a child after marriage.

II. The High Court also held that the appellant has failed to disclose in the pleadings when the respondent took the final decision of not having a child.

III. The High Court held that the appellant also failed to give the approximate date when the respondent conveyed this decision to the appellant.

IV. The High Court held that the appellant started living with the respondent, therefore, that amounted to condonation of the acts of cruelty.

V. The High Court disbelieved the appellant on the issue of respondent’s refusing to cohabit with him, because he failed to give the date, month or the year when the respondent conveyed this decision to him.

VI. The High Court held that the appellant’s and the respondent’s sleeping in separate rooms did not lead to the conclusion that they did not cohabit.

VII. The High Court also observed that it was quite proper for the respondent with such high status and having one daughter by her previous husband, not to sleep in the same bed with the appellant.

VIII. The High Court observed that refusal to cook in such a context when the parties belonged to high strata of society and the wife also has to go to office, cannot amount to mental cruelty.

IX. The High Court’s findings that during illness of the husband, wife’s not meeting the husband to know about his health did not amount to mental cruelty.

The High Court was unnecessarily obsessed by the fact that the respondent was also an IAS Officer. Even if the appellant had married an IAS Officer that does not mean that the normal human emotions and feelings would be entirely different.

The finding of the Division Bench of the High Court that, considering the position and status of the respondent, it was within the right of the respondent to decide when she would have the child after the marriage. Such a vital decision cannot be taken unilaterally after marriage by the respondent and if taken unilaterally, it may amount to mental cruelty to the appellant.

The finding of the High Court that the appellant started living with the respondent amounted to condonation of the act of cruelty is unsustainable in law.

The finding of the High Court that the respondent’s refusal to cook food for the appellant could not amount to mental cruelty as she had to go to office, is not sustainable. The High Court did not appreciate the evidence and findings of the learned Additional District Judge in the correct perspective. The question was not of cooking food, but wife’s cooking food only for herself and not for the husband would be a clear instance of causing annoyance which may lead to mental cruelty.

The High Court has seriously erred in not appreciating the evidence on record in a proper perspective. The respondent’s refusal to cohabit has been proved beyond doubt. The High Court’s finding that the husband and wife might be sleeping in separate rooms did not lead to a conclusion that they did not cohabit and to justify this by saying that the respondent was highly educated and holding a high post was entirely unsustainable. Once the respondent accepted to become the wife of the appellant, she had to respect the marital bond and discharge obligations of marital life.

The finding of the High Court that if the ailment of the husband was not very serious and he was not even confined to bed for his illness and even assuming the wife under such circumstances did not meet the husband, such behaviour can hardly amount to cruelty, cannot be sustained. During illness, particularly in a nuclear family, the husband normally looks after and supports his wife and similarly, he would expect the same from her. The respondent’s total indifference and neglect of the appellant during his illness would certainly lead to great annoyance leading to mental cruelty.

It may be pertinent to mention that in 1993, the appellant had a heart problem leading to bye-pass surgery, even at that juncture, the respondent did not bother to enquire about his health even on telephone and when she was confronted in the cross-examination, she falsely stated that she did not know about it.

Mr. A. K. Dasgupta, father of the respondent and father-in-law of the appellant, was examined by the respondent. In the cross-examination, he stated that his daughter and son-in-law were living separately and he never enquired about this. He further said that the appellant left the apartment, but he never enquired from anybody about the cause of leaving the apartment. He also stated that he did not know about the heart trouble and bye-pass surgery of the appellant. In the impugned judgment, the High Court has erroneously placed reliance on the evidence submitted by the respondent and discarded the evidence of the appellant. The evidence of this witness is wholly unbelievable and cannot stand the scrutiny of law.

The High Court did not take into consideration the evidence of Prabir Malik primarily because of his low status in life. The High Court, in the impugned judgment, erroneously observed that the appellant did not hesitate to take help from his servant in the matrimonial dispute though he was highly educated and placed in high position. The credibility of the witness does not depend upon his financial standing or social status only. A witness which is natural and truthful should be accepted irrespective of his/her financial standing or social status. In the impugned judgment, testimony of witness no.4 (Prabir Malik) is extremely important being a natural witness to the incident. He graphically described the incident of 27.8.1990. He also stated that in his presence in the apartment at Minto Park, the respondent stated that the appellant had no place of residence, therefore, she allowed him to stay in her flat, but she did not like any other man of the appellant staying in the flat. According to this witness, she said that the flat was hers and she was paying rent for it. According to this witness, the respondent further said that even people living on streets and street beggars have some prestige, but these people have no prestige at all. This witness also stated that immediately thereafter the appellant had left the flat and admittedly since 27.8.1990, both the appellant and the respondent are living separately. This was a serious incident and the trial court was justified in placing reliance on this evidence and to come to a definite conclusion that this instance coupled with many other instances led to grave mental cruelty to the appellant. The trial Court rightly decreed the suit of the appellant. The High Court was not justified in reversing the judgment of the trial Court.

The High Court also failed to take into consideration the most important aspect of the case that admittedly the appellant and the respondent have been living separately for more than sixteen and half years (since 27.8.1990). The entire substratum of the marriage has already disappeared. During this long period, the parties did not spend a single minute together. The appellant had undergone bye-pass surgery even then the respondent did not bother to enquire about his health even on telephone. Now the parties have no feelings and emotions towards each other.

The respondent appeared in person. Even before this Court, we had indicated to the parties that irrespective of whatever has happened, even now, if they want to reconcile their differences then the case be deferred and they should talk to each other. The appellant was not even prepared to speak with the respondent despite request from the Court. In this view of the matter, the parties cannot be compelled to live together.

The learned Additional District Judge decreed the appellant’s suit on the ground of mental cruelty. We deem it appropriate to analyze whether the High Court was justified in reversing the judgment of the learned Additional District Judge in view of the law declared by a catena of cases. We deem it appropriate to deal with the decided cases.

Before we critically examine both the judgments in the light of settled law, it has become imperative to understand and comprehend the concept of cruelty.

The Shorter Oxford Dictionary defines ‘cruelty’ as ‘the quality of being cruel; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness’. The term “mental cruelty” has been defined in the Black’s Law Dictionary [8th Edition, 2004] as under: “Mental Cruelty – As a ground for divorce, one spouse’s course of conduct (not involving actual violence) that creates such anguish that it endangers the life, physical health, or mental health of the other spouse.”

The concept of cruelty has been summarized in Halsbury’s Laws of England [Vol.13, 4th Edition Para 1269] as under:

“The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.”

In 24 American Jurisprudence 2d, the term “mental cruelty” has been defined as under:

“Mental Cruelty as a course of unprovoked conduct toward one’s spouse which causes embarrassment, humiliation, and anguish so as to render the spouse’s life miserable and unendurable. The plaintiff must show a course of conduct on the part of the defendant which so endangers the physical or mental health of the plaintiff as to render continued cohabitation unsafe or improper, although the plaintiff need not establish actual instances of physical abuse.”

In the instant case, our main endeavour would be to define broad parameters of the concept of ‘mental cruelty’. Thereafter, we would strive to determine whether the instances of mental cruelty enumerated in this case by the appellant would cumulatively be adequate to grant a decree of divorce on the ground of mental cruelty according to the settled legal position as crystallized by a number of cases of this Court and other Courts.

This Court has had an occasion to examine in detail the position of mental cruelty in N.G. Dastane v. S. Dastane reported in (1975) 2 SCC 326 at page 337, para 30 observed as under :-

“The enquiry therefore has to be whether the conduct charges as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for him to live with the respondent.”

In the case of Sirajmohmedkhan Janmohamadkhan v. Haizunnisa Yasinkhan & Anr. reported in (1981) 4 SCC 250, this Court stated that the concept of legal cruelty changes according to the changes and advancement of social concept and standards of living. With the advancement of our social conceptions, this feature has obtained legislative recognition, that a second marriage is a sufficient ground for separate residence and maintenance. Moreover, to establish legal cruelty, it is not necessary that physical violence should be used. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the husband, and an assertion on the part of the husband that the wife is unchaste are all factors which lead to mental or legal cruelty.

In the case of Shobha Rani v. Madhukar Reddi reported in (1988) 1 SCC 105, this Court had an occasion to examine the concept of cruelty. The word ‘cruelty’ has not been defined in the Hindu Marriage Act. It has been used in Section 13(1)(i)(a) of the Act in the context of human conduct or behaviour in relation to or in respect of matrimonial duties or obligations. It is a course of conduct of one which is adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional. If it is physical, it is a question of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the impact of such treatment on the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, ultimately, is a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. There may, however, be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted. The absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty. Intention is not a necessary element in cruelty. The relief to the party cannot be denied on the ground that there has been no deliberate or wilful ill-treatment.

In Rajani v. Subramonian AIR 1990 Ker. 1 the Court aptly observed that the concept of cruelty depends upon the type of life the parties are accustomed to or their economic and social conditions, their culture and human values to which they attach importance, judged by standard of modern civilization in the background of the cultural heritage and traditions of our society.

Again, this Court had an occasion to examine in great detail the concept of mental cruelty. In the case of V. Bhagat v. D. Bhagat (Mrs.) reported in (1994) 1 SCC 337, the Court observed, in para 16 at page 347, as under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.”

This Court aptly observed in Chetan Dass v. Kamla Devi reported in (2001) 4 SCC 250, para 14 at pp.258-259, as under:

“Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in broader perspective, for regulating matrimonial norms for making of a well-knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in the society, in general. Therefore, it would not be appropriate to apply any submission of “irretrievably broken marriage” as a straitjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case.”

In Savitri Pandey v. Prem Chandra Pandey reported in (2002) 2 SCC 73, the Court stated as under: “Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.”

This Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC 619 observed as under:

“The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs. “Cruelty” for the purposes of constituting the offence under the aforesaid section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty and harassment in a given case.”

The mental cruelty has also been examined by this Court in Parveen Mehta v. Inderjit Mehta reported in (2002) 5 SCC 706 at pp.716-17 [para 21] which reads as under:

“Cruelty for the purpose of Section 13(1)(i-a) is to be taken as a behaviour by one spouse towards the other, which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other. Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehaviour in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.”

In this case the Court also stated that so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably.

In A. Jayachandra v. Aneel Kaur reported in (2005) 2 SCC 22, the Court observed as under: “The expression “cruelty” has not been defined in the Act. Cruelty can be physical or mental. Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society to which the parties belong, their social values, status, environment in which they live. Cruelty, as noted above, includes mental cruelty, which falls within the purview of a matrimonial wrong. Cruelty need not be physical. If from the conduct of the spouse, same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty. In a delicate human relationship like matrimony, one has to see the probabilities of the case. The concept proof beyond the shadow of doubt, is to be applied to criminal trials and not to civil matters and certainly not to matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. Cruelty may be physical or corporeal or may be mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. In cases where there is no direct evidence, Courts are required to probe into the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes.

To constitute cruelty, the conduct complained of should be “grave and weighty” so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than “ordinary wear and tear of married life”. The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty within the meaning of Section 10 of the Act. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party.

The Court dealing with the petition for divorce on the ground of cruelty has to bear in mind that the problems before it are those of human beings and the psychological changes in a spouse’s conduct have to be borne in mind before disposing of the petition for divorce. However, insignificant or trifling, such conduct may cause pain in the mind of another. But before the conduct can be called cruelty, it must touch a certain pitch of severity. It is for the Court to weigh the gravity. It has to be seen whether the conduct was such that no reasonable person would tolerate it. It has to be considered whether the complainant should be called upon to endure as a part of normal human life. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent.”

This Court in Vinita Saxena v. Pankaj Pandit reported in (2006) 3 SCC 778 aptly observed as under: “As to what constitutes the required mental cruelty for the purposes of the said provision, will not depend upon the numerical count of such incidents or only on the continuous course of such conduct but really go by the intensity, gravity and stigmatic impact of it when meted out even once and the deleterious effect of it on the mental attitude, necessary for maintaining a conducive matrimonial home.

If the taunts, complaints and reproaches are of ordinary nature only, the court perhaps need consider the further question as to whether their continuance or persistence over a period of time render, what normally would, otherwise, not be so serious an act to be so injurious and painful as to make the spouse charged with them genuinely and reasonably conclude that the maintenance of matrimonial home is not possible any longer.”

In Shobha Rani’s case (supra) at pp.108-09, para 5, the Court observed as under:

“5. Each case may be different. We deal with the conduct of human beings who are no generally similar. Among the human beings there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained of. Such is the wonderful (sic) realm of cruelty.”

In this case, the Court cautioned the lawyers and judges not to import their own notions of life in dealing with matrimonial problems. The judges should not evaluate the case from their own standards. There may be a generation gap between the judges and the parties. It is always prudent if the judges keep aside their customs and manners in deciding matrimonial cases in particular.

In a recent decision of this Court in the case of Rishikesh Sharma v. Saroj Sharma reported in 2006 (12) Scale 282, this Court observed that the respondent wife was living separately from the year 1981 and the marriage has broken down irretrievably with no possibility of the parties living together again. The Court further observed that it will not be possible for the parties to live together and therefore there was no purpose in compelling both the parties to live together. Therefore the best course was to dissolve the marriage by passing a decree of divorce so that the parties who were litigating since 1981 and had lost valuable part of life could live peacefully in remaining part of their life. The Court further observed that her desire to live with her husband at that stage and at that distance of time was not genuine.

This Court observed that under such circumstances, the High Court was not justified in refusing to exercise its jurisdiction in favour of the appellant who sought divorce from the Court. “Mental cruelty” is a problem of human behaviour. This human problem unfortunately exists all over the world. Existence of similar problem and its adjudication by different courts of other countries would be of great relevance, therefore, we deem it appropriate to examine similar cases decided by the Courts of other jurisdictions. We must try to derive benefit of wisdom and light received from any quarter.

ENGLISH CASES:

William Latey, in his celebrated book ‘The Law and Practice in Divorce and Matrimonial Causes’ (15th Edition) has stated that there is no essential difference between the definitions of the ecclesiastical courts and the post- 1857 matrimonial courts of legal cruelty in the marital sense. The authorities were fully considered by the Court of Appeal and the House of Lords in Russell v. Russell (1897) AC 395 and the principle prevailing in the Divorce Court (until the Divorce Reform Act, 1969 came in force), was as follows:

Conduct of such a character as to have caused danger to life, limb, or health, bodily or mental, or as to give rise to a reasonable apprehension of such danger. {see: Russell v. Russell (1895) P. 315 (CA)}.

In England, the Divorce Reform Act, 1969 came into operation on January 1, 1971. Thereafter the distinction between the sexes is abolished, and there is only one ground of divorce, namely that the marriage has broken down irretrievably. The Divorce Reform Act, 1969 was repealed by the Matrimonial Causes Act, 1973, which came into force on January 1, 1974. The sole ground on which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably.

Lord Stowell’s proposition in Evans v. Evans (1790) 1 Hagg Con 35 was approved by the House of Lords and may be put thus: before the court can find a husband guilty of legal cruelty towards his wife, it is necessary to show that he has either inflicted bodily injury upon her, or has so conducted himself towards her as to render future cohabitation more or less dangerous to life, or limb, or mental or bodily health. He was careful to avoid any definition of cruelty, but he did add: ‘The causes must be grave and weighty, and such as to show an absolute impossibility that the duties of married life can be discharged’. But the majority of their Lordships in Russell v. Russell (1897) (supra) declined to go beyond the definition set out above. In this case, Lord Herschell observed as under:

“It was conceded by the learned counsel for the appellant, and is, indeed, beyond controversy, that it is not every act of cruelty in the ordinary and popular sense of that word which amounted to saevitia, entitling the party aggrieved to a divorce; that there might be many wilful and unjustifiable acts inflicting pain and misery in respect of which that relief could not be obtained.”

Lord Merriman, in Waters v. Waters (1956) 1 All. E.R. 432 observed that intention to injure was not necessary ingredient of cruelty.

Sherman, J. in Hadden v. Hadden, The Times, December 5, 1919, (also reported in Modern Law Review Vol.12, 1949 at p.332) very aptly mentioned that he had no intention of being cruel but his intentional acts amounted to cruelty. In this case, it was observed as under:

‘It is impossible to give a comprehensive definition of cruelty, but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is cruelty if a reasonable person, after taking due account of the temperament and all the other particular circumstances would consider that the conduct complained of is such that this spouse should not be called upon to endure it.’ Lord Simon in Watt (or Thomas) v. Thomas [(1947) 1 All E.R. 582 at p. 585] observed as under: ” the leading judicial authorities in both countries who have dealt with this subject are careful not to speak in too precise and absolute terms, for the circumstances which might conceivably arise in an unhappy married life are infinitely various.

Lord Stowell in Evans v. Evans 1790 (1) Hagg Con 35 avoids giving a “direct definition”. While insisting that “mere austerity of temper, petulance of manners, rudeness of language, want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty.”

In Simpson v. Simpson (1951) 1 All E.R. 955, the Court observed that:

“When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus, it is inaccurate, and liable to lead to confusion, if the word “cruelty” is used as descriptive only of the conduct complained of, apart from its effect on the victim.

Lord Reid, concurring, reserved opinion as to cases of alleged cruelty in which the defender had shown deliberate intention, though he did not doubt that there were many cases where cruelty could be established without its being necessary to be satisfied by evidence that the defender had such an intention. Lord Tucker, also concurring, said:

‘Every act must be judged in relation to its attendant circumstances, and the physical or mental condition or susceptibilities of the innocent spouse, the intention of the offending spouse and the offender’s knowledge of the actual or probable effect of his conduct on the other’s health are all matters which may be decisive in determining on which side of the line a particular act or course of conduct lies.’ In Prichard v. Pritchard (1864) 3 S&T 523, the Court observed that repeated acts of unprovoked violence by the wife were regarded as cruelty, although they might not inflict serious bodily injury on the husband. Wilde, J.O. in Power v. Power (1865) 4 SW & Tr. 173 aptly observed that cruelty lies in the cumulative ill conduct which the history of marriage discloses. In Bravery v. Bravery (1954) 1 WLR 1169, by majority, the Court held as under:

‘If a husband submitted himself to an operation for sterilization without a medical reason and without his wife’s knowledge or consent it could constitute cruelty to his wife. But where such an operation was performed to the wife’s knowledge, though without her consent and she continued to live with him for thirteen years, it was held that the operation did not amount to cruelty.’ Lord Tucker in Jamieson v. Jamieson (1952) I All E.R. 875 aptly observed that “Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suits, and experience has shown the wisdom of this course”.

In Le Brocq v. Le Brockq [1964] 3 All E.R. 464, at p. 465, the court held as under:

“I think . that ‘cruel’ is not used in any esoteric or ‘divorce court’ sense of that word, but that the conduct complained of must be something which an ordinary man or a jury .. would describe as ‘cruel’ if the story were fully told.”

In Ward v. Ward [(1958) 2 All E.R. 217, a refusal to bear children followed by a refusal of intercourse and frigidity, so that the husband’s health suffered, was held to be cruelty; so also the practice by the husband of coitus interruptus against the wish of his wife though she desired to have a child. (Also see: White (otherwise Berry) v. White [1948] 2 All E.R. 151; Walsham v. Walsham, [1949] I All E.R. 774; Cackett (otherwise Trice) v. Cackett, [1950] I All E.R. 677; Knott v. Knott [1955] 2 All E.R. 305. Cases involving the refusal of sexual intercourse may vary considerably and in consequence may or may not amount to cruelty, dependent on the facts and circumstances of the parties. In Sheldon v. Sheldon, [1966] 2 All E.R. 257, Lord Denning, M.R. stated at p. 259:

“The persistent refusal of sexual intercourse may amount to cruelty, at any rate when it extends over a long period and causes grave injury to the health of the other. One must of course, make allowances for any excuses that may account for it, such as ill-health, or time of life, or age, or even psychological infirmity. These excuses may so mitigate the conduct that the other party ought to put up with it. It after making all allowances however, the conduct is such that the other party should not be called upon to endure it, then it is cruelty.”

Later, Lord Denning, at p. 261, said that the refusal would usually need to be corroborated by the evidence of a medical man who had seen both parties and could speak to the grave injury to health consequent thereon. In the same case, Salmon, L. J. stated at p. 263: “For my part, I am quite satisfied that if the husband’s failure to have sexual intercourse had been due to impotence, whether from some psychological or physical cause, this petition would be hopeless. No doubt the lack of sexual intercourse might in such a case equally have resulted in a breakdown in his wife’s health. I would however regard the husband’s impotence as a great misfortune which has befallen both of them.”

There can be cruelty without any physical violence, and there is abundant authority for recognizing mental or moral cruelty, and not infrequently the worst cases supply evidence of both. It is for the judges to review the married life of the parties in all its aspects. The several acts of alleged cruelty, physical or mental, should not be taken separately. Several acts considered separately in isolation may be trivial and not hurtful but when considered cumulatively they might well come within the description of cruelty. (see: Jamieson v. Jamieson, [1952] I All E.R. 875; Waters v. Waters, [1956] I All E.R. 432. “The general rule in all questions of cruelty is that the whole matrimonial relations must be considered.” (per Lord Normand in King v. King [1952] 2 All E.R. 584).

In Warr v. Warr [1975] I All ER 85), the Court observed that “Section 1(2)(c) of the Matrimonial Causes Act, 1973 provides that irretrievable breakdown may be proved by satisfying the court that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition.”

AMERICAN CASES:

In Jem v. Jem [(1937) 34 Haw. 312], the Supreme Court of Hawaii aptly mentioned that cruel treatment not amounting to physical cruelty is mental cruelty.

While dealing with the matter of extreme cruelty, the Supreme Court of South Dakota in the case of Hybertson v. Hybertson (1998) 582 N.W. 2d 402 held as under:

“Any definition of extreme cruelty in a marital setting must necessarily differ according to the personalities of the parties involved. What might be acceptable and even common place in the relationship between rather stolid individuals could well be extraordinary and highly unacceptable in the lives of more sensitive or high-strung husbands and wives. Family traditions, ethnic and religious backgrounds, local customs and standards and other cultural differences all come into play when trying to determine what should fall within the parameters of a workable marital relationship and what will not.”

In Rosenbaum v. Rosenbaum [(1976) 38 Ill.App.3d. 1] the Appellate Court of Illinois held as under: “To prove a case entitling a spouse to divorce on the ground of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that actually affects the physical or mental health of the other spouse, making the life of the complaining spouse miserable, or endangering his or her life, person or health.”

In the case of Fleck v. Fleck 79 N.D. 561, the Supreme Court of North Dakota dealt with the concept of cruelty in the following words:

“The decisions defining mental cruelty employ such a variety of phraseology that it would be next to impossible to reproduce any generally accepted form. Very often, they do not purport to define it as distinct from physical cruelty, but combine both elements in a general definition of ‘cruelty,’ physical and mental. The generally recognized elements are:

(1) A course of abusive and humiliating treatment;

(2) Calculated or obviously of a nature to torture, discommode, or render miserable the life of the opposite spouse; and (3) Actually affecting the physical or mental health of such spouse.”

In Donaldson v. Donaldson [(1917) 31 Idaho 180, 170 P. 94], the Supreme Court of Idaho also came to the conclusion that no exact and exclusive definition of legal cruelty is possible. The Court referred to 9 RCL p. 335 and quoted as under:

“It is well recognized that no exact inclusive and exclusive definition of legal cruelty can be given, and the courts have not attempted to do so, but generally content themselves with determining whether the facts in the particular case in question constitute cruelty or not. Especially, according to the modern view, is the question whether the defending spouse has been guilty of legal cruelty a pure question of fact to be resolved upon all the circumstances of the case.”

CANADIAN CASES:

In a number of cases, the Canadian Courts had occasions to examine the concept of ‘cruelty’. In Chouinard v. Chouinard 10 D.L.R. (3d) 263], the Supreme Court of New Brunswick held as under: “Cruelty which constitutes a ground for divorce under the Divorce Act, whether it be mental or physical in nature, is a question of fact. Determination of such a fact must depend on the evidence in the individual case being considered by the court. No uniform standard can be laid down for guidance; behaviour which may constitute cruelty in one case may not be cruelty in another. There must be to a large extent a subjective as well as an objective aspect involved; one person may be able to tolerate conduct on the part of his or her spouse which would be intolerable to another. Separation is usually preceded by marital dispute and unpleasantness. The court should not grant a decree of divorce on evidence of merely distasteful or irritating conduct on the part of the offending spouse. The word ‘cruelty’ denotes excessive suffering, severity of pain, mercilessness; not mere displeasure, irritation, anger or dissatisfaction; furthermore, the Act requires that cruelty must be of such a kind as to render intolerable continued cohabitation.”

In Knoll v. Knoll 10 D.L.R. (3d) 199, the Ontario Court of Appeal examined this matter. The relevant portion reads as under:

“Over the years the courts have steadfastly refrained from attempting to formulate a general definition of cruelty. As used in ordinary parlance “cruelty” signifies a disposition to inflict suffering; to delight in or exhibit indifference to the pain or misery of others; mercilessness or hard-heartedness as exhibited in action. If in the marriage relationship one spouse by his conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other, his conduct may well constitute cruelty which will entitle a petitioner to dissolution of the marriage if, in the court’s opinion, it amounts to physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses.”

In Luther v. Luther [(1978) 5 R.F.L. (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R. 232], the Supreme Court of Nova Scotia held as under:

“7. The test of cruelty is in one sense a subjective one, namely, as has been said many times, is this conduct by this man to this woman, or vice versa, cruelty? But that does not mean that what one spouse may consider cruel is necessarily so. Cruelty must involve serious and weighty matters, which, reasonably considered, may cause physical or mental suffering. It must furthermore — an important additional requirement — be of such a nature and kind as to render such conduct intolerable to a reasonable person.”

The Supreme Court further held as under:

“9. To constitute mental cruelty, conduct must be much more than jealousy, selfishness or possessiveness which causes unhappiness, dissatisfaction or emotional upset. Even less can mere incompatibility or differences in temperament, personality or opinion be elevated to grounds for divorce.”

In another case Zalesky v. Zalesky 1 D.L.R. (3d) 471, the Manitoba Court of Queen’s Bench observed that where cohabitation of the spouses become intolerable that would be another ground of divorce. The Court held as under:

“There is now no need to consider whether conduct complained of caused ‘danger to life, limb, or health, bodily or mentally, or a reasonable apprehension of it’ or any of the variations of that definition to be found in the Russell case.

In choosing the words ‘physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses’ Parliament gave its own fresh complete statutory definition of the conduct which is a ground for divorce under s. 3(d) of the Act.”

AUSTRALIAN CASES:

In Dunkley v. Dunkley (1938) SASR 325, the Court examined the term “legal cruelty” in the following words: “‘Legal cruelty’, means conduct of such a character as to have caused injury or danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of danger. Personal violence, actual or threatened, may alone be sufficient; on the other hand, mere vulgar abuse or false accusations of adultery are ordinarily not enough; but, if the evidence shows that conduct of this nature had been persisted in until the health of the party subjected to it breaks down, or is likely to break down, under the strain, a finding of cruelty is justified.”

In La Rovere v. La Rovere [4 FLR 1], the Supreme Court of Tasmania held as under:

“When the legal conception of cruelty is described as being conduct of such a character as to cause danger to life, limb or health, bodily or mental, or to give rise to a reasonable apprehension of such danger, it is vital to bear in mind that it comprises two distinct elements: first, the ill-treatment complained of, and, secondly, the resultant danger or the apprehension thereof. Thus it is inaccurate and liable to lead to confusion, if the word ‘cruelty’ is used as descriptive only of the conduct complained of, apart from its effect on the victim.”

We have examined and referred to the cases from the various countries. We find strong basic similarity in adjudication of cases relating to mental cruelty in matrimonial matters. Now, we deem it appropriate to deal with the 71st report of the Law Commission of India on “Irretrievable Breakdown of Marriage”.

The 71st Report of the Law Commission of India briefly dealt with the concept of irretrievable breakdown of marriage. This Report was submitted to the Government on 7th April, 1978. In this Report, it is mentioned that during last 20 years or so, and now it would be around 50 years, a very important question has engaged the attention of lawyers, social scientists and men of affairs, should the grant of divorce be based on the fault of the party, or should it be based on the breakdown of the marriage? The former is known as the matrimonial offence theory or fault theory. The latter has come to be known as the breakdown theory. It would be relevant to recapitulate recommendation of the said Report.

In the Report, it is mentioned that the germ of the breakdown theory, so far as Commonwealth countries are concerned, may be found in the legislative and judicial developments during a much earlier period. The (New Zealand) Divorce and Matrimonial Causes Amendment Act, 1920, included for the first time the provision that a separation agreement for three years or more was a ground for making a petition to the court for divorce and the court was given a discretion (without guidelines) whether to grant the divorce or not. The discretion conferred by this statute was exercised in a case Lodder v. Lodder 1921 New Zealand Law Reports

786. Salmond J., in a passage which has now become classic, enunciated the breakdown principle in these words:

“The Legislature must, I think, be taken to have intended that separation for three years is to be accepted by this court, as prima facie a good ground for divorce. When the matrimonial relation has for that period ceased to exist de facto, it should, unless there are special reasons to the contrary, cease to exist de jure also. In general, it is not in the interests of the parties or in the interest of the public that a man and woman should remain bound together as husband and wife in law when for a lengthy period they have ceased to be such in fact. In the case of such a separation the essential purposes of marriage have been frustrated, and its further continuance is in general not merely useless but mischievous.”

In the said Report, it is mentioned that restricting the ground of divorce to a particular offence or matrimonial disability, causes injustice in those cases where the situation is such that although none of the parties is at fault, or the fault is of such a nature that the parties to the marriage do not want to divulge it, yet such a situation has arisen in which the marriage cannot survive. The marriage has all the external appearances of marriage, but none in reality. As is often put pithily, the marriage is merely a shell out of which the substance is gone. In such circumstances, it is stated, there is hardly any utility in maintaining the marriage as a fagade, when the emotional and other bonds which are of the essence of marriage have disappeared.

It is also mentioned in the Report that in case the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce, then the parties alone can decide whether their mutual relationship provides the fulfilment which they seek. Divorce should be seen as a solution and an escape route out of a difficult situation. Such divorce is unconcerned with the wrongs of the past, but is concerned with bringing the parties and the children to terms with the new situation and developments by working out the most satisfactory basis upon which they may regulate their relationship in the changed circumstances.

Once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be a source of greater misery for the parties.

Law of divorce based mainly on fault is inadequate to deal with a broken marriage. Under the fault theory, guilt has to be proved; divorce courts are presented concrete instances of human behaviour as bring the institution of marriage into disrepute.

This Court in Naveen Kohli v. Neelu Kohli reported in (2006) 4 SCC 558 dealt with the similar issues in detail. Those observations incorporated in paragraphs 74 to 79 are reiterated in the succeeding paragraphs.

“74. We have been principally impressed by the consideration that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuous separation, it may fairly be surmised that the matrimonial bond is beyond repair. The marriage becomes a fiction, though supported by a legal tie. By refusing to sever that tie the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties.

75. Public interest demands not only that the married status should, as far as possible, as long as possible, and whenever possible, be maintained, but where a marriage has been wrecked beyond the hope of salvage, public interest lies in the recognition of that fact.

76. Since there is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to exist.”

77. Some jurists have also expressed their apprehension for introduction of irretrievable breakdown of marriage as a ground for grant of the decree of divorce. In their opinion, such an amendment in the Act would put human ingenuity at a premium and throw wide open the doors to litigation, and will create more problems then are sought to be solved.

78. The other majority view, which is shared by most jurists, according to the Law Commission Report, is that human life has a short span and situations causing misery cannot be allowed to continue indefinitely. A halt has to be called at some stage. Law cannot turn a blind eye to such situations, nor can it decline to give adequate response to the necessities arising therefrom.

79. When we carefully evaluate the judgment of the High Court and scrutinize its findings in the background of the facts and circumstances of this case, it becomes obvious that the approach adopted by the High Court in deciding this matter is far from satisfactory.”

On proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of ‘mental cruelty’ within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.

Human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound, therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any strait-jacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances while taking aforementioned factors in consideration.

No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of ‘mental cruelty’. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive.

(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty.

(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.

(iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable.

(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.

(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.

(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.

(vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty.

(viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty.

(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill-conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.

(xi) If a husband submits himself for an operation of sterilization without medical reasons and without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty.

(xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty.

(xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty.

(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.

When we take into consideration aforementioned factors along with an important circumstance that the parties are admittedly living separately for more than sixteen and half years (since 27.8.1990) the irresistible conclusion would be that matrimonial bond has been ruptured beyond repair because of the mental cruelty caused by the respondent.

The High Court in the impugned judgment seriously erred in reversing the judgment of the learned Additional Sessions Judge. The High Court in the impugned judgment ought to have considered the most important and vital circumstance of the case in proper perspective that the parties have been living separately since 27th August, 1990 and thereafter, the parties did not have any interaction with each other. When the appellant was seriously ill and the surgical intervention of bye-pass surgery had to be restored to, even on that occasion, neither the respondent nor her father or any member of her family bothered to enquire about the health of the appellant even on telephone. This instance is clearly illustrative of the fact that now the parties have no emotions, sentiments or feelings for each other at least since 27.8.1990. This is a clear case of irretrievable breakdown of marriage. In our considered view, it is impossible to preserve or save the marriage. Any further effort to keep it alive would prove to be totally counter- productive.

In the backdrop of the spirit of a number of decided cases, the learned Additional District Judge was fully justified in decreeing the appellant’s suit for divorce. In our view, in a case of this nature, no other logical view is possible.

On proper consideration of cumulative facts and circumstances of this case, in our view, the High Court seriously erred in reversing the judgment of the learned Additional District Judge which is based on carefully watching the demeanour of the parties and their respective witnesses and the ratio and spirit of the judgments of this Court and other Courts. The High Court erred in setting aside a well-reasoned judgment of the trial court based on the correct analysis of the concept of mental cruelty. Consequently, the impugned judgment of the High Court is set aside and the judgment of the learned Additional District Judge granting the decree of divorce is restored.

This appeal is accordingly disposed of but, in the facts and circumstances of the case, we direct the parties to bear their own costs.

Dated: 26 March, 2007


 

EVIDENCE CANNOT BE TAKEN ON AFFIDAVIT IN MAINTENANCE PROCEEDING OR UNDER DV ACT-MP HIGH COURT

Madhya Pradesh High Court

Rama Prasanna Tiwari vs Smt. Ashima And Anr.

Dated : 24 February, 2005

Equivalent citations: 2005 (2) MPHT 192

Author: K Lahoti

ORDER K.K. Lahoti, J.

1. Petitioner has challenged order dated 30-10-2004 passed by the Family Court, Rewa in Case No. 1/2004 by which the Family Court has rejected the application filed by the petitioner under Section 126 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’).

2. Before the Family Court, an application under Section 125, Cr.PC has been filed by the respondents for maintenance. In the said proceedings, the respondents filed their affidavit in evidence and petitioner has been directed to cross-examine on the affidavit. At this stage, petitioner raised an objection in writing that in the proceedings, evidence can not be taken on affidavit, but the respondent should be examined in the Court in the presence of petitioner or his Counsel. Family Court relying on Section 10(3) of the Family Court Act found that the Family Court is having jurisdiction to adopt its own procedure for recording evidence and relying on provisions of Code of Civil Procedure held that the affidavit can be received in evidence and rejected the application of the petitioner. This order is under challenge in this petition.

3. Learned Counsel for petitioner submits that under Sub-section (2) of Section 10 there is specific provision that subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before the Family Court. Section 125 falls under Chapter IX of the Cr.PC and the procedure envisaged under Section 126, Cr.PC shall apply in the proceedings and not the provisions of Code of Civil Procedure. It is submitted that order passed by the Family Court be set aside and the matter be remitted back to the Family Court to decide the matter in accordance with law.

4. Learned Counsel appearing for respondents supported the order and submitted that in view of Sub-section (3) of Section 10 of the Family Courts Act, the Family Court has rightly adopted the procedure and there is no fault in the procedure. Petitioner shall get the opportunity to cross-examine on the affidavit. This will save the time of the Trial Court and no prejudice shall be caused to the petitioner.

5. To consider the rival contentions of the parties, Section 10 of the Family Courts Act, 1984 may be seen :

“Section 10. Procedure generally.– (1) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the rules, the provision of the Code of Criminal Procedure, 1973 or the Rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.”

Aforesaid provisions specifically provide that in the proceedings under Chapter IX of Cr.PC before a Family Court, provisions of Code of Criminal Procedure and the rules made thereunder shall apply. This is specific provision under the Act which provides the procedure for the proceedings under Chapter IX of the Cr.PC. Though Family Courts are vested with the powers to decide the matter under Hindu Marriage Act and other Acts, but so far as proceedings under Chapter IX of the Cr.PC are concerned, there is specific provision to adopt same procedure as envisaged in the Cr.PC. For the proceedings under Section 125 of the Cr.PC, procedure is envisaged under Section 126 of the Cr.PC. For ready reference, Section 126, Cr.PC reads as under :–

“Section 126. Procedure.– (1) Proceedings under Section 125 may be taken against any person in any district–

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-case : Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate m ay think just and proper.

(3) The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

Sub-section (2) of Section 126, Cr.PC specifically provides that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. In the present case, respondents have sought an order against the petitioner for their maintenance. In these circumstances, evidence has to be recorded in the presence of the petitioner. Affidavit evidence as has been produced by the respondents can not be said to be evidence recorded in the presence of the petitioner. Provisions of Code of Civil Procedure are not applicable for the proceedings under Chapter IX of the Cr.PC. In the circumstances, Family Court ought to have adopted the procedure envisaged under Section 126 of the Cr.PC. In view of the aforesaid provision, until and unless provision is made, the Family Court has to follow the procedure as envisaged under Section 126, Cr.PC for the proceedings under Chapter IX, Cr.PC. The Family Court has committed an error in directing the parties to file affidavit in evidence and further in permitting the other party to cross-examine on affidavit. According to provisions under Section 126, Cr.PC, evidence has to be recorded in the presence of the person against whom an order of maintenance is proposed to be made. Consequently, impugned order passed by the Family Court, Rewa is, hereby, set aside and the Family Court, Rewa is directed to record the evidence as envisaged under Section 126 of the Cr.PC.

No order as to costs.

C.C. as per rules.

K.K. Lahoti, J.

24 February, 2005


 

Origin of Parliamentary privilege

Halsbury’s Laws of England, Simonds Edition, Volume 28, Articles 894 and 895:

The privileges of Parliament are based partly upon custom and precedents which are to be found in the Rolls of Parliament and the journals of the two Houses and partly upon certain statutes which have been passed from time to time for the purpose of making char particular matter wherein the privileges claimed by either House of Parliament have come in conflict either with the prerogatives of the Crown or with the rights of individuals.

* * * *
Privileges claimed by both Houses.

895. Freedom from arrest. It is claimed by resolutions of both houses that no lord of Parliament or member of the House of Commons may be imprisoned or restrained without the order or sentence of the House of Lords or House of Commons except upon a criminal charge. In order to claim privilege of Parliament a lord of Parliament must first take the oath but a person under arrest at the time he succeeds to a peerage may claim his discharge on the plea of privilege. In the case of members of the House of Commons, privilege of Parliament is of affected by the fact that a member has not yet taken the oath; and a member who is in custody on civil process may be liberated upon his election in virtue of his privilege.

The House of Commons during the last War had to consider whether detention under orders made under powers given by the Defence of the Realm Act constituted a breach of privileges and whether a member of Parliament detained under such order could not be released at the instance of Parliament. The matter was referred to a Committee of Privileges which reported that the arrest and detention of such member, namely, one Capt. Ramsay, did not amount to a breach of Parliamentary Privilege. The conclusions of the Committee of Privileges are summed up in these words

Your Committee’s conclusions are as follows:

The precedents lend no support to the view that Members of Parliament are exempted by privilege of Parliament from detention under Regulation 18B of the Defence (General) Regulations, 1939. Preventive arrest under statutory authority by executive order is not within the principle of the cases to which the privilege from arrest has been decided to extend. To claim that the privilege extends to such cases would be either the assertion of a new Parliamentary privilege or an unjustified extension of an existing one.

It is to be observed that Parliament took no action in respect of the detention of Capt. Ramsay which continued for many years. It seems to follow therefore that the English Parliament claims no privilege for its members against preventive detention or against executive order made under legislative authority. If no such privilege exists or is claimed in the United Kingdom then it follows that no such privilege exists at the present moment in India.

Whether High Court has any jurisdiction to issue a mandamus upon the Legislature

(1966) AIR(Calcutta) 363 : 69 CalWN 484

CALCUTTA HIGH COURT

SINGLE BENCH

( Before : B.N. Banerjee, J )

SYED ABDUL MANSUR HABIBULLAH — Appellant

Vs.

THE SPEAKER, WEST BENGAL LEGISLATIVE ASSEMBLY AND OTHERS — Respondent

Matter No. 79 of 1965

Decided on : 26-02-1965

Constitution of India, 1950 – Article 154, Article 160, Article 176, Article 176(1), Article 194(3), Article 208(1), Article 212, Article 212(1), Article 226
Procedure and Conduct of Business (West Bengal Legislative Assembly) Rules – Rule 16, Rule 16(1), Rule 16(2)

Cases Referred

In the matter of: Under Article 143 of the Constitution of India, AIR 1965 SC 745
Counsel for Appearing Parties

A.P. Chatterjee, N. Gupta and A.P. Sirkar, for the Appellant; A.G., S.M. Bose and A.C. Mittra, for the Respondent

JUDGMENT

B.N. Banerjee, J.—The petitioner, a member of the West Bengal Legislative Assembly, feels that the first session of the West Bengal Legislature, in the year 1965-66, has not legally begun and has moved this Court, under Article 226 of the Constitution, for a Writ of Mandamus upon respondents Speaker and Deputy Speaker of the West Bengal Legislative Assembly directing them to forbear and refrain from presiding over or guiding or conducting the business of the said Assembly and also for a Writ of Mandamus upon the respondent Assembly directing it to refrain from conducting any business until such time as the Assembly be properly begun and also for a declaration that the proceedings of the respondent Assembly, in so far pretended to be held from February 8, 1965, be declared to be void, illegal and of no effect.

2. The circumstances, in the background of which the petitioner has moved this Court, are hereinafter recounted in brief. The State of West Bengal has two Houses of Legislature, namely, the Legislative Council and the Legislative Assembly. Article 176 of the Constitution provides:

“(1) At the commencement of the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.

(2) Provision shall be made by the rules regulating the procedure of the House or either House for the allotment of time for discussion of the matter referred to in such address.”

Chapter V of the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly (hereinafter referred to as the Rules of Procedure), framed under Clause (1) of Article 208 of the Constitution, contains rules for Governor’s address and messages to the Legislature, from which I need notice Rules 16, 17, 18, 19(2) and (3), 20, 22 and 23.

“16. (1) On the day and the hour appointed for the commencement and holding of the first session of the Assembly in each year not being the first meeting after a dissolution, or as soon thereafter as may be and in the case of a session after a dissolution on the first sitting of the Assembly after the election of the Speaker, the Governor will address the Assembly as required by Article 176 of the Constitution.

(2) After the delivery of the speech by the Governor, the Speaker shall report to the Assembly that the Governor had been pleased to make a speech and shall lay a copy of the speech on the Table.

3. On such report being made notice may he given of a motion that a respectful Address be presented to the Governor in reply to his speech expressing the thanks of the Assembly for the speech delivered by him.

4. The Speaker shall, in consultation with (he leader of the House, allot time for the discussion of the matters referred to 111 Governor’s Address.

17. On such day or days or part of any day, the House shall be at liberty to discuss the matters referred to in such Address on a Motion of Thanks moved by a member and seconded by another member

18. Amendment may be moved to such motion by way of adding additional words at the end but not otherwise, on such notice being given as the Speaker may determine.

19. (2) The discussion on the Address may be postponed in favour of a Government Bill or other Government business on a motion being made that the discussion on the Address be adjourned to a subsequent day to be appointed by the Speaker. The Speaker shall forthwith put the question, no amendment or debate being allowed,

(3) The discussion on the Address shall be interrupted in the course of a sitting by an adjournment motion under Rule 64.

20. The Chief Minister or any other Minister, whether he has previously taken part in the discussion or not, shall on behalf of the Government, have a general right of explaining the position of the Government at the end of the discussion.

22. The Address having been adopted with or without amendment shall be presented to the Governor by the Speaker in such manner as may be prescribed.

23. The Speaker shall report to the Assembly the Governor’s reply to the Address, if any.”

The two Houses of the West Bengal Legislature were summoned to meet at 3 P. M., on February 8, 1965, for the first session in the year 1965-66. That was the day for the address by the Governor under Article 176(1) of the Constitution. In paragraph 8 of the petition, it is alleged:

“That the said Governor did not address the Houses, and she left the said Assembly without her address being delivered to the said Houses as required under the provisions of Article 176(1) of the said Constitution. The Governor uttered only the words ‘Permit me to address the House”, ‘Silence. Please’.”

The circumstances under which the Governor left are not stated in the paragraph quoted above, but Mr. Arun Prokash Chatterjee, learned advocate for the petitioner, admitted, in his fairness, that there was some noisy disturbance created by some members of the Legislature, which made the Governor call for silence. He did not, however, admit that the disturbance was so great as to make it wholly impossible for the Governor to complete her address. What happened after the Governor had left is stated in paragraph 11 of the petition, which I set out below:

“That in spite of the fact that the said Governor did not deliver her address to the Houses at the commencement of the First Session on 8th February, 1965, the Speaker of the said Assembly took his chair after the said Governor had left the House without delivering her address, and reported that the said Governor had been pleased to make her speech and lay a copy of the alleged speech on the Table of the House.

3. According to the petitioner there was no address actually delivered by the Governor and the Houses were not informed of the cause of the summons by herself. There was, according to the petitioner, no opening of the Legislature for its first session in the year 1965-66 and there was no warrant for the said Assembly to proceed with any business. The Speaker of the Assembly had, as such, no power to take the chair and conduct the business. In paragraph 13 of the petition, it is stated:

“‘That the said Speaker insists on occupying the Chair in the said Assembly, and holding the Session and conducting the business of the House though he is debarred from doing so in view of the fact that until the Session is opened by the Governor with her delivered speech and until the causes of summons arc declared by the Governor, (which have not been done by the Governor), the House cannot proceed with any business.”

4. The circumstances alleged in the petition have the colour fullness of an unprecedented situation attached to them. Therefore, when Mr. Chatterjee moved the application on the first day, 1 adjourned the hearing and suggested to him that he should give notice of the” application to the Advocate-General, so that, if necessary, I may count upon his assistance as amicus curiae. Mr. Chatterjee gave such notice and the learned Advocate-General appeared as amicus curiae and greatly assisted me in making up my mind.

5. The first question that I need consider in this matter is whether this Court has any jurisdiction to issue a mandate upon the Legislature of the nature prayed for. Powers and privileges of the Parliament, of the Houses of Legislature and of the members and committees thereof are largely modelled on those of the House of Commons of the Parliament ol the United Kingdom. This appears from Clause (3) of the Articles 105 and 194 of the Constitution. In England, during certain periods of the English history, the Parliament and the judiciary became jealous of their respective spheres of power and on occasions joined issue in pitched combat. In his book on Law and Orders. (2nd Ed. pp. 168-169) Alien describes this hostility, in his usual pithy style, in the following language:

“In the old, unregenerate days the royal prerogative was the battle ground; the lion and the unicorn were lighting for the Crown, and it needed a Glorious Revolution to make peace between them. In more recent times the great contests have been fought over Parliamentary privilege, and it is little more than century since the issue was reduced to absurdity by an unedifying spectacle when the Courts denied an alleged privilege of the House of Commons, and the Legislature retorted by committing for Contempt the Patroclean Sheriff who was merely executing the judgment of the Court. Stockdale v. Hansard (1839) 9 AdE 1 and the Sheriff of Middlesex’s Case (1840) 11 Ad & E 273. There has been no such head-on collision since then, and every right minded person hopes that there never will be, but it is always possible, for our courts have never recognised Parliamentary proceedings as being wholly beyond judicial review. They have, for example, held themselves free to declare what is legislation and what is not and, while acknowledging that Parliament is absolute master of its own privileges, they have reserved the right to say whether an alleged privilege exists in fact and in law or merely in pretention.”

The importation of the privileges of the House of Commons to this country, under Arts. 105 and 194 of the Constitution, has not been without side-effects. Tt has enkindled in certain quarters a sort of enthusiasm for exercise of such privileges, without restrain or interference from authorities outside the Legislature. This type o� enthusiasm, in very recent times, resulted in a “head-on collision” between the Uttar Pradesh Legislative Assembly and the Allahabad High Court and the President of India had to refer the dispute between the two august bodies to the Supreme Court for opinion, in exercise of his powers under Article 1413 of the Constitution. In that Reference (being Reference No. 1 of 1964 unreported): (since reported in In the matter of: Under Article 143 of the Constitution of India, ). the Supreme Court pronounced the following majority opinion:

“(a) Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Be sides, the legislative supremacy of our Legislature including the Parliament is normally control led by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting with in their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution ****

(b) There is another aspect of this matter which must also be mentioned; whether or not there is distinct and rigid separation of powers under the Indian Constitution there is no doubt that the Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it Is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and their functions are normally confined to legislative function, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If tie validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the Legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country and so, we feel no difficulty in holding that the decision about the construction of Article 194(3) must ultimately rest exclusively with the judicature of this country.

(c) In coming to the conclusion that the content of Article 194(3) must ultimately be determined by courts and not by the legislatures, we arc not unmindful of the grandeur and majesty of the task which has been assigned to the legislatures under the Constitution. Speaking broadly, all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chamber a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive, which is another constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country.

(d) The next question which we ought to consider is was it the intention of the Constitution to perpetuate the dualism which rudely disturbed public life in England in the 17th, 18th and 19th Centuries? The Constitution makers were aware of several unhappy situations which arose as a result of the conflict between the Judicature and the Houses of Parliament and they knew that these situations threatened to create a deadlock in the public life of England. When they enacted Article 194(3), was it their intention to leave this conflict at large, or have they adopted a scheme of constitutional provisions to resolve that conflict ? The answer to this question would obviously depend upon a harmonious construction of the relevant provisions of the Constitution itself.

Let us first take Article 226. This Article confers very wide powers on every High Court “throughout the territories in relation to which it exercises Jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.” It is hardly necessary to emphasise that the language used by Article 226 in conferring power on the High Courts is very wide, Article 12 defines the “State” as including the Legislature of such State, and so, prima facie the power conferred on the High Court under Article 226(1) can. in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226(1) read by itself, does not seem to permit such a plea to be raised. Article 32 which deals with the power of this Court puts the matter on a still higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of the fundamental rights is itself a guaranteed fundamental right, and so, what we nave said about Article 226(1) is still more true about Article 32(1).

* * * * * * * *
(e) There are two other articles to which reference must be made, Article 208(1) provides that a House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. This provision makes il perfectly clear that if the House were to make any rules as prescribed by it, those rules would be subject to the fundamental rights guaranteed by Part III. In other words, where the House makes rules for exercising its powers under the falter part of Article 194(3), those rules must be Subject to the fundamental rights of the citizens.

Similarly, Article 212(1) makes a provision which is relevant, It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Article 212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality, if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”

6. I need not quote more from the above opinion. I have to hold, in respectful agreement with the majority opinion delivered by the Supreme Court, that it it can be established that the proceedings inside the Legislative chamber have become illegal or unconstitutional, by reason of the happenings stated in the petition, this Court is competent to issue the mandate as prayed for.

7. I now turn to examine the effect of what happened on February 8, 1965. How a new session of the Parliament in the United Kingdom is to be opened is described in May’s book on Parliamentary Practice (17th Ed, pp. 289-291) in the following language:

“In every session but the first of a Parliament, as there is no election of a Speaker, nor any general swearing of Members, the session is opened at once by the Queen’s speech, without Liny preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by commission, neither House can proceed with any public business: but the causes of summons, as declared from the Throne, do not bind Parliament to consider them alone, or to proceed at once to the consideration of any of them.

Both Houses assemble on the day and immediately before the hour appointed for the delivery of the Queen’s Speech. In the Commons prayers are said before the Queen’s speech, but in the Lords usually not until their second meeting, later in the day. The Speaker, after prayers, sits in the Clerk’s chair until Black Rod approaches the door, when he proceeds to his own chair lo receive him. This form is observed, because no business can be transacted until Parliament has been opened by the Crown.***** When the Queen meets Parliament in person, she proceeds in stale to the House of Lords, where, seated on the Throne, adorned with her Crown and regal ornaments, and attended by her officers of state (all the lords, being in their robes, and standing until Her Majesty Commands them to be seated), she commands the gentleman usher of the Black Rod, through the Lord Great Chamberlain, to let the Commons know it is Her Majesty’s pleasure they attend her immediately in this House. “The usher of the Black Rod goes at once to the door of the House of Commons which he strikes three times with his rod; and, on being admitted, he advances up the middle of the House towards the table, making three obeisance’s to the chair, and says” Mr. Speaker, The Queen Commands this honourable House to attend Her Majesty immediately in the House of Peers.” The Speaker, with the House, immediately goes up to the bar of the house of Peers; upon which the Queen reads her speech to both Houses of Parliament, from a printed copy, which is delivered into her hands by the Lord Chancellor, kneeling upon one knee** *********

When the Queen is not personally present, the causes of summons are declared by the lords commissioners. The usher of the Black Rod is sent, in the same manner, to the Commons, and acquaints the Speaker that “the lords commissioners desire the immediate attendance of this honourable House in the House of Peers, to hear the commission read” and when the Speaker and the House have reached the bar of the House of Peers, the Lord Chancellor reads the royal speech to both Houses.****** *******

When the speech has been delivered the House of Lords is adjourned during pleasure. The Commons retire from the bar and, returning to their own House, pass through it, the mace being placed upon the table by the Sergeant and the House reassembles at halt-past two. When the Houses are resumed in the afternoon, the main business is for the Lord Chancellor in the Lords, and the Speaker in the Commons, to report the Queen’s Speech. In the former House, the speech is read by the Lord Chancellor, and in the latter by the Speaker, who states that, for greater accuracy, he has obtained a copy.”

8. According to the view expressed by May, in the quotation above, no business can be transacted until the Parliament has been opened by the Crown. A similar view is to be found in Halsbury’s Laws of England (3rd Ed. Vol. 7 Article 511 page 238) from which I quote the relevant extract;

“On the assembling of a new Parliament in pursuance of the royal writs, or at the commencement of a new session of an already existing Parliament after prorogation, the sovereign must meet the two Houses either in person or by representatives; otherwise there can be no legal beginning of a new Parliament, or session of an an existing Parliament, except in case of the demise of the Crown.”

The procedure (o be followed in this country in summoning Slate Legislatures appears in clause (1) of Article 174 which reads as follows:

“174 (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.”

The manner in which summoning shall be made is provided for in Rule 3 of the Rules of Procedure, which is set out below;

“Whenever it appears to the Governor that the Assembly should be summoned-

(a) he shall cause a notification to be published in the Gazette, appointing the day, hour and place for a meeting of the Assembly, and

(b) the Secretary shall send to each member a summons to attend the meeting.”

After the two Houses of West Bengal Legislature assemble together on the date, time and place fixed by the summons, for its first session each year, the Governor shall address the members so assembled and inform them of the causes of the summoning. This is what Article 176 of the Constitution envisages.

9. It is not disputed, in the present case, that the West Bengal Legislature was duly summoned to meet on February 8, 1965. It is not disputed that the Governor came to address the joint session of the two Houses of the West Bengal Legislature, It is admitted that the Governor began her address with the words “Permit me to address the House”. Thereafter, Mr. Chatterjee admits, there was some disturbance, and the Governor called for silence. Unable to obtain the desired silence the Governor left the House without completing her address. The questions for my consideration are-

(a) Whether under Article 176, the Governor shall orally address the Legislature arid inform the members of the causes of the summons or whether the causes of the summons may be made known to them by publication of a written address?

(b) Is the delivery of such an address merely directory or absolutely mandatory?

(c) Whether failure on the part of the Governor to deliver or to complete delivery of the address contemplated under Article 176 invalidates the subsequent sitting of the Legislature?

(d) Whether the laying of the undelivered or partly delivered written address on the table may cure the defect?

(e) What is constitutional significance of the Governor leaving the Legislature being unable or unwilling to deliver the address.

An address may, without more, be an oral address or a written address. But reading Article 176 of the Constitution with Sub-rules (1) and (2) of Rule 16 of the Rules of Procedure, hereinbefore set out, I have little doubt that the address by the Governor, under Article 176, shall be by delivery of a speech, may be by reading out from a prepared text. Rule 16(2) specifically states that after the address the Speaker shall report “that the Governor has been pleased to make a speech”. A speech means that which is spoken, that is to say an oration. I, therefore, hold that under Article 176, the constitutional procedure is that the Governor shall deliver an oral address, may be from a prepared text, informing the members of the Legislature of the causes of the summoning of the first session of the year.

10. While I express the above view, I am not unmindful of the difficulties that such an interpretation may entail. The first session of the Legislature in each year, is an important session, being usually the budget session. If such a session does not start well ahead of the beginning of the next financial year, great administrative difficulties may follow. Now, a Governor, after all a human being, may become ill or may be incapacitated by other causes from delivering the address verbally under the provisions of Article 176. In order to safeguard against such contingencies, in so far as the President of India is concerned (who also is to address the first “session of the Parliament each year, under Article 57), Article 65(2) of the Constitution makes the following provision:

“When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice President shall discharge his functions until the date on which the President resumes his duties,”

There is no Deputy-Governor to discharge the functions of the Governor, if the Governor becomes unable to do so owing to absence, illness or other causes. Therefore an interpretation of Article 176, to the effect that the Governor shall personally deliver an oral address to the Legislature, at its first session every year, might create a constitutional deadlock but for the provision contained in Article 160, which is couched in the following language:

“The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Constitution.”

Therefore, if the Governor becomes unable to deliver the address, as required under Article 176, the President may make some other provision for the discharge of the aforesaid functions of the Governor.

11. I have to consider, in the next place, whether the address contemplated under Art, 176 is an idle or ceremonial formality or whether the provision for address is mandatory in character and not merely directory. The address cannot be an idle or a ceremonial formality, because the Constitution lays down the purpose for the address, namely, informing “the Legislature of the causes of its summons”. The speech is to announce the executive policies and the legislative programme and since the first session every year is also the budget session, the speech is expected to call attention of the members to the requirements of the Government for supplies to carry on the administration. Clause (2) of Article 176 which I have already set out, provides for discussion of the matters referred to in such address. So also do Rules 16, 17, 18, 19(2), 20 21, 22 and 23 of the Rules of Procedure. Such an informative speech, which serves as the spring board for discussion in the legislature, either for approval or disapproval of administrative policies cannot be an idle formality or a mere ceremony But even then the question remains whether the provision in Article 176, as to delivery of address by Governor, is to be treated as directory 01 mandatory. The language employed in Article 176 no doubt is “The Governor shall address”. But the use of the word ‘shall’ does not by itself lead to the inevitable conclusion that the provision is mandatory in character. In the case of Montreal Street Rly. Co. v. Normandin 1917 AC 170: (AIR 1917 PC 142) the Privy Council observed:

“The question whether the provisions in a Statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and in every case the object of the statute must be looked into.”

12. Also in Grawford on Statutory Construction the following passage appears:

“the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these arc to be ascertained not from the phraseology of the provision, but also by considering its nature, its design and its consequences, which would follow by construing it one way or the other”.

Now, the nature and purpose of the address I have hereinbefore indicated and need not repeat. Under Article 168, the Legislature in West Bengal is to consist of the Governor and two Houses of Legislature, namely, the Assembly and the Council. Article 176 requires that the Governor, who is the repository or the executive power of the State, shall address both the Houses and keep the members informed about the executive policies and legislative programme of State administration. The consequence of non-delivery of such an address is that the members of the Legislature remain uninformed and not knowing the administrative policies and programmes may be considerably hampered in their legislative debates and budgetary criticisms. Article 178 therefore casts upon the Governor the Constitutional duty of delivering a special address at the annual opening session of the Legislature and the provisions for such address, in Article 176, should not be interpreted as merely directory. The purpose of such an address might have been more or less served by the distribution, to the members of the Legislature, of copies of printed address by the Governor, But the Constitution, in its wisdom, has provided for delivery of a speech by the Governor in person, so that the informative speech may be discussed on a motion of ‘respectful address’ to the Governor, expressing the views of the Legislature on the address. I am not prepared to minimise the value of such a constitutional procedure and to characterise it us merely directory.

13. I have already quoted a passage from May on Parliamentary Practice (pp. 289-90) which goes to indicate that no business can be transacted until Parliament has been opened by the Crown with a speech. Article 511 in Halsbury’s Laws of England (Third Edition) Vol 7 also expresses the view that there can be no legal beginning of a new Parliament until sovereign meets the two Houses either in person or by representative. In my opinion, the Legislature in this Country cannot ordinarily be said to have met until the mandatory preliminaries under Article 176 have been gone through. This is also the view of the Orissa High Court expressed in Saradhakar v. Speaker, Orissa Legislative Assembly AIR 1952 Ori 234 If the Legislature has not met that is to say legally assembled for the purpose of transacting business, no business can be transacted and sittings of the Legislature before it has legally met, are invalid sittings. H that was not so, the members might as well them selves meet in the session of the Legislature-without being at all summoned by the Governor, and pass laws Articles 174 to 176 prescribe the constitutional procedure by which the Legislature is to meet and to transact business. II cannot otherwise meet, continue to sit and transact legislative business,

14. But in the present context much of the above discussion is of academic interest aS I have already stated, in the instant case, the Legislature was duly summoned and the two Houses of Legislature assembled in a joint session on 8-2-1965. The Governor came to deliver her address, as required under Art 176 She began her address, felt disturbed by noises, asked for silence and then left the Assembly Hall, possibly under the impression that no useful purpose would be served by speaking where she cannot be heard. I say ‘possibly’ because it doss not appear under what circumstances she left, apart from what I have stated. After the Governor left, the speaker laid a copy of her address on the table of the House as required by Rule 16(2) of the Rules of Procedure. The question is whether the provisions of Article 176 were substantially complied with in the aforesaid circumstances.

15. Now laying on the table is a well-known device for calling attention of the Legislature. Some statutes provide that subordinate legislation, namely rules, schemes or orders made under the statute, shall be laid before the Parliament or State Legislatures as the case may be and may require affirmative or negative resolution on such subordinate legislation. In many cases there is no provision for having any resolution at all and the statute is content by merely providing that the subordinate legislation shall be laid on the table of the House concerned. There are other statutes which provide for a formal resolution. Rules of Procedure of the West Bengal Legislative Assembly provide for a respectful address” or resolution on the Governor s address. Thus laying on the table is a technique for producing awareness of Parliament or Legislatures of States on subordinate Legislation, Governor’s address and other legislative papers.

16. By laying a copy of the Governor’s address on the table, the object of the address was substantially served and the members could become aware of the contents of the address. But can laying on the table be a substitute for delivery of the address by the Governor? The answer should ordinarily be in the negative. But the negative answer admits of an exception. Where the Constitution casts a duly upon the Governor and where the Governor makes attempt to perform that duty but fails to do so, in the prescribed manner, although does so in substance (in the instant case the written text of address being laid on the table of the Assembly), the procedural failure should not be over-emphasised and the duly should not be treated as wholly unperformed with consequences of non-performance following it. Tn the facts of the instant case. I hold that the constitutional duty of the Governor was substantially performed, although the performance was attended by a good deal of irregularity in procedure. The consequence of non-delivery of the whole of the address, by word of the mouth, was not such as rendered the subsequent proceedings inside the Legislative Chamber illegal but merely resulted in procedural irregularity. Such an irregularity cannot be called in question under Clause (2) of Article 212, which is couched in the following language:

“No officer or member of the Legislature of A State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.”

So that this judgment may not be misunderstood, I desire to make the position clear- The provisions of Article 176 are mandatory. Unless the provisions are complied with, that is to say, unless the Governor delivers a speech informing the Legislature of the causes of the summons, the Legislature cannot meet to transact legislative business. A Governor cannot decline to deliver a speech and thus refuse to perform a constitutional duty. If a Governor is incapacitated from delivering a speech himself, the President may make other provisions, under Article 160 of the Constitution, for performance of that constitutional function of the Governor. But when the Governor makes due attempt to perform the duty under Article 176 but fails and makes up the failure by publication of the address to the members of the Legislature by a well-known method, namely, by laying the address on the table or the House, the duty is merely irregularly performed and the validity of such performance shall not be called in question by reason of such irregularity alone. But if a Legislature meets and transacts legislative business, without the preliminary of an address by the Governor, when required tinder Article 176, its proceedings are illegal and invalid and may be questioned in a Court of Law.

17. There is one reason, which has induced me not to place much emphasis on the irregularity. Unless there grows a constitutional convention that the Governor’s address shall be heard with attention, respect and ceremony due to the constitutional head of the State, there may be occasions when members of the Legislature may indulge in loud shoutings and unruly behaviour, when the Governor conies to address. If the shoutings be loud enough or the behaviour sufficiently unruly, a Governor may not be able to begin or to finish the address, due to human limitations, and may have to think of other modes of publication of the address. To hold that Legislature must not be deemed to have met when a (Governor is unable to begin or to finish the address, under Article 176, and is compelled otherwise to publish the address, is to put a value on such disturbances which they do not deserve. In that event, a sufficiently noisy opposition may prevent the Governor from addressing the Legislature, under Article 176, by loud shoutings and thus make it impossible for the Legislature to meet for the budget Session. I am unwilling to reward disturbances with such a premium. In the facts of the instant case (and I confine my sell to the facts of this case only), the Governor must be deemed to have delivered her address by making a beginning, by trying to go on and, therein failing, by making the text of her speech otherwise made known to the members of the Legislature under the provisions of Rule 16(2) of the Rules of Procedure. This was irregular but no more than that, 1 hold that her constitutional duty, under Article 176, was substantially though irregularly performed.

18. Lastly, I need notice that it is not the grievance of the petitioner that he does not know or has no means of knowing the purpose of the summoning of the Legislature. He has no substantial grievance himself and has no reason to wonder at the contents of the address by the Governor. His only desire appears to me to be to uphold the majesty of the Constitution by emphasising upon constitutional procedure. In the view already expressed by me, I am unable to aid him.

19. Before I finish, I desire to take note of another aspect of the matter. Members of the Legislature sometimes walk out of the I legislative Chamber during the Legislative session. They do so to register some sort of Parliamentary protest against something happening within the Chamber. A Governor leaving the Legislative Chamber, as was done in the present case, is, so far as I have come to know, unprecedented. The constitutional significance of such an unceremonial departure is difficult to imagine. In the Governor is vested the executive power of the State (Article 154). The Legislature of West Bengal consists of the Governor and two Houses (Article 160). For her to leave a joint assemblage of the two Houses, summoned by herself, in the manner and in the circumstances alleged, may not be without significance over her constitutional responsibilities and her constitutional control over the Legislature of the State. Generally speaking if the Governor, in whom the executive power of the State is vested becomes unable to control disturbances inside the legislature and has either in despair or in displeasure to resort to irregularities in the matter of discharge of constitutional duties and responsibilities, I shudder to think of the fate of the constitutional Government in this country. This is not the occasion for speaking at length on the significance of such an unprecedented state of affairs. In this case T can only hope that what has happened will never happen again.

20. The learned Advocate General, appealing as amicus curiae, pointed out several defects 11 the application, namely, (1) the West Bengal Council was not made a party to the application and as such the application was bad for nonjoinder of a necessary party, (2) West Bengal Legislative Assembly, was not an incorporation is an Assembly and could not be sued as such and (3) the State of West Bengal was unnecessarily impleaded and the application was bad For misjoinder of party. Were I inclined to issue 1 Rule in this matter, I might have given an opportunity to the petitioner to mend the defects. if they were defects at all.

21. Since I am of the opinion that the West Bengal Legislative Assembly has not been illegally functioning, I decline to issue a Rule as prayed for. This application stands dismissed.

22. I express my appreciation of the able assistance rendered by Mr. Arun Prakash Chatterjee, learned Advocate for the petitioner, and thank the learned Advocate General for helping me as amicus curiae.

Decided on : 26-02-1965


How a new session of the Parliament in the United Kingdom is to be opened

In every session but the first of a Parliament, as there is no election of a Speaker, nor any general swearing of Members, the session is opened at once by the Queen’s speech, without Liny preliminary proceedings in either House. Until the causes of summons are declared by the Queen, either in person, or by commission, neither House can proceed with any public business: but the causes of summons, as declared from the Throne, do not bind Parliament to consider them alone, or to proceed at once to the consideration of any of them.

Both Houses assemble on the day and immediately before the hour appointed for the delivery of the Queen’s Speech. In the Commons prayers are said before the Queen’s speech, but in the Lords usually not until their second meeting, later in the day. The Speaker, after prayers, sits in the Clerk’s chair until Black Rod approaches the door, when he proceeds to his own chair lo receive him. This form is observed, because no business can be transacted until Parliament has been opened by the Crown.***** When the Queen meets Parliament in person, she proceeds in stale to the House of Lords, where, seated on the Throne, adorned with her Crown and regal ornaments, and attended by her officers of state (all the lords, being in their robes, and standing until Her Majesty Commands them to be seated), she commands the gentleman usher of the Black Rod, through the Lord Great Chamberlain, to let the Commons know it is Her Majesty’s pleasure they attend her immediately in this House. “The usher of the Black Rod goes at once to the door of the House of Commons which he strikes three times with his rod; and, on being admitted, he advances up the middle of the House towards the table, making three obeisance’s to the chair, and says” Mr. Speaker, The Queen Commands this honourable House to attend Her Majesty immediately in the House of Peers.” The Speaker, with the House, immediately goes up to the bar of the house of Peers; upon which the Queen reads her speech to both Houses of Parliament, from a printed copy, which is delivered into her hands by the Lord Chancellor, kneeling upon one knee.

When the Queen is not personally present, the causes of summons are declared by the lords commissioners. The usher of the Black Rod is sent, in the same manner, to the Commons, and acquaints the Speaker that “the lords commissioners desire the immediate attendance of this honourable House in the House of Peers, to hear the commission read” and when the Speaker and the House have reached the bar of the House of Peers, the Lord Chancellor reads the royal speech to both Houses.

When the speech has been delivered the House of Lords is adjourned during pleasure. The Commons retire from the bar and, returning to their own House, pass through it, the mace being placed upon the table by the Sergeant and the House reassembles at halt-past two. When the Houses are resumed in the afternoon, the main business is for the Lord Chancellor in the Lords, and the Speaker in the Commons, to report the Queen’s Speech. In the former House, the speech is read by the Lord Chancellor, and in the latter by the Speaker, who states that, for greater accuracy, he has obtained a copy.”

 No business can be transacted until the Parliament has been opened by the Crown. A similar view is to be found in Halsbury’s Laws of England (3rd Ed. Vol. 7 Article 511 page 238) from which I quote the relevant extract;

“On the assembling of a new Parliament in pursuance of the royal writs, or at the commencement of a new session of an already existing Parliament after prorogation, the sovereign must meet the two Houses either in person or by representatives; otherwise there can be no legal beginning of a new Parliament, or session of an an existing Parliament, except in case of the demise of the Crown.”

In India

The procedure (o be followed in this country in summoning Slate Legislatures appears in clause (1) of Article 174 which reads as follows:

“174 (1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.”

The manner in which summoning shall be made is provided for in Rule 3 of the Rules of Procedure, which is set out below;

“Whenever it appears to the Governor that the Assembly should be summoned-

(a) he shall cause a notification to be published in the Gazette, appointing the day, hour and place for a meeting of the Assembly, and

(b) the Secretary shall send to each member a summons to attend the meeting.”


 

History of Article 3 of the Constitution of India

 Section 290, Government of India Act, 1935, ran as follows:

“290(11 subject to the provisions of this Section, His Majesty may by order in Council–

(a) create a new province;

(b) increase the area of any province;

(c) diminish the area of any province;

(d) alter the boundaries of any province.

Provided that, before the draft of any such order is laid before Parliament, the Secretary of State shall take such steps as His Majesty may direct for ascertaining the views of the Federal Government and the Chambers of the Federal Legislature and the views of the Government and the Chamber or Chambers of the Legislature of any province which will be affected by the Order, both with respect to the proposal to make the order and with respect to the provisions to be inserted therein.”

After the Independence Act of 1947, and under the Section as adapted by the India Provisional Constitution Order 1947, the above power was vested in the Governor-General, and now under the Constitution it is vested in Parliament.

12. Article 4, Section 3(1) of the American Constitution lays down:

“But no new State shall be formed or erected within the jurisdiction of any other State; nor any ‘ State be formed by the junction of two or more States, or part of States, without the consent of the Legislatures of the States concerned as well as the Congress.”

13. Section 123-4 of the Australian Constitution states as follows:

“The parliament of the Commonwealth may with the consent of the Parliament of a State and the approval of the majority of the electors of the State voting upon the question, increase, diminish or otherwise alter the limits of the State, upon such, terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

A new State may be formed by separation of territory from a State but only with the consent of the Parliament thereof, and a new State may be formed by the Union of two or more States or part of States, but only with the consent of the Parliaments of the States affected”.

It will thus be seen that the provisions in Article 3 of the Constitution, confer wider powers upon Parliament than either under the American or the Australian Constitution. In the latter, the consent of the Component States or a majority of its electors must be obtained. Thus there must be either consent or a referendum. In India it is sufficient if the view of the State is ascertained.

In other words, the powers under Article 3 may be enforced upon an unwilling component State. It, therefore, approximates more to the Government of India Act, 1935 than its foreign counterparts. Under Article 3, Parliament may by law form a new State by uniting two or more States. For this purpose, a Bill must be introduced in Parliament.

But before the introduction of such a Bill, the recommendation of the President must be obtained. In the case of a Part A or Part B State, if the boundaries or names are affected, the President must obtain the views of the legislature of each of the States concerned.

Difference between prorogation of the Legislature and an adjournment of a meeting of the Legislature

It is a well-established constitutional principle that there is a clear difference between prorogation of the Legislature and an adjournment of a meeting of the Legislature, The power of proroguing a session of the Legislative is exclusively that of the Governor in whom rests the power to summon the same. Between the summoning of a session and its prorogation, the Legislature itself has the power to adjourn from time to time. The Advocate-General has cited a ruling of a Special Bench of the Madras High Court in Narayanaswami v. Inspector of Police AIR 1949 Mad 307, in para. 6 of which, the following passage from the 14th Edition of May’s Parliamentary Practice is extracted:–

“A session is the period of time between the meeting of a Parliament, whether after, a prorogation or dissolution, and its prorogation. …. During the course of a session, either House may adjourn itself of its own motion to such date as it pleases. The period between the prorogation of Parliament and its re-assembly in a new session is termed a ‘recess’; while the period between the adjournment of either house and the resumption of its sitting is generally called as ‘adjourned’.

A prorogation terminates a session; an adjournment is an interruption in the course of one and the same session.” The fourth chapter of Rules of Procedure and Conduct of Business in the Mysore Legislative Assembly also gives effect to the same principle namely, that the Speaker shall determine the time when a sitting of the Assembly shall be adjourned sine die or to a day or hour or part of the same day, but a session of the Assembly is terminated by prorogation.

No court passes any Interim order which would be contrary to or inconsistent with another interim order which has been passed by a court of competent jurisdiction

CALCUTTA HIGH COURT

DIVISION BENCH

( Before : Satyabrata Sinha, J; Basudeva Panigrahi, J )

MAHANANDA BANERJEE — Appellant

Vs.

HASIM ABDUL HALIM, WEST BENGAL LEGISTATIVE ASSEMBLY, CONTEMNER — Respondent

Contempt Application C.R. No. 2031 of 1996 with F.MA. No. 197 of 1990

Decided on : 20-05-1997

Contempt of Courts Act, 1971 – Section 12, Section 2

West Bengal Legislative Assembly Secretariat Rules, 1953 – Rule 7(1)
West Bengal Services Rules – Rule 55(4)

JUDGMENT

S.B. Sinha, J.—The contempt application arises out of a judgment of a Division Bench comprising of G.N. Roy, J. (As His Lordship then was) and S.K. Hazari, J. passed in F.M.A. No. 197 of 1990.

2. The said appeal was directed against the judgment dated 4th April, 1984 passed by a learned single Judge of this court in C.R. No. 6164(W) of 1981 dismissing the writ application of the petitioner.

3. The fact of the matter is not much in dispute.

4. The appellant was Assistant Secretary in the Secretariat of the West Bengal Legislative Assembly. According to him, he was superseded in violation of the conditions of service, as a result whereof he was deprived of successive promotion to a higher post. The petitioner questioned a notification whereby the Hon’ble Speaker of the Legislative Assembly was given the exclusive power to select any one from amongst his personal assistants or stenographers or Upper Division or Lower Division Assistant to act as his Private Secretary.

5. The learned trial Judge dismissed the writ application. The appeal court also held that there is no illegality in the amendments effected on the Recruitment Rules of the Assembly Secretariat laying down essential qualification for the post of Deputy Secretary.

6. The petitioner appearing in person before the appeal court very fairly stated that he is not interested in demotion or cancellation of appointments made in the post of Deputy Secretary and upward though made illegally superseding him but a proper proforma fixation and his appointment to promotional post should be made. The appeal court held that the amendments effected in Recruitment Rules of the Assembly Secretariat cannot be held to be illegal and invalid. It, therefor, can not be held that the appellant was Improperly by passed by such appointments to the post of Deputy Secretary and other superior post for which any direction for proforma fixation of seniority, scales of pay etc. and for appointment to promotional post by creating a supernumerary post, if necessary, need be made. The appellant had contended that he has also been deprived of the proper scale of pay, increments etc. in his post of Assistant Secretary which he was thence holding.

7. It was observed:–

“There is no manner of doubt that the appellant is entitled to all the benefit in the post of Assistant Secretary including Increments etc. It appears to us that the appellant is a very senior employee in the Assembly Secretariat and has rendered long useful service in the secretariat. It is only desirable that no injustice is noted out to him in the post of Assistant Secretary since held by him. We reasonably expect that the Hon’ble Speaker of the Assembly will review the case of the appellant, if necessary, by giving him a personal hearing and try to redress the grievances of the appellant as far as practicable because we are confident that if proper attention of the Hon’ble Speaker is drawn to any Secretariat or unmerited hardship is suffered by such officer, the Hon’ble Speaker will explore ways and means to give appropriate relief to such officer of his Secretariat. This appeal is accordingly disposed of. There will be no order as to costs”.

8. A review application was filed before S.K. Hazari, J. as in the meantime G.N. Roy, J. was elevated. When the effect of the judgment was explained, the petitioner submitted that he may be allowed to withdraw the said application for the present as he expected that the hearing before the Hon’ble Speaker will be made at an early date. Mr. Kundu, the learned counsel appearing on behalf of the respondents therein submitted that the Hon’ble Speaker is also ready and willing to dispose of the matter at an early date in terms of the order passed by the Division Bench and his client had the least intention to harass the petitioner in any manner whatsoever. In that view of the matter the prayer of the petitioner was allowed and the review application was directed to be withdrawn.

9. The alleged contemnor thereafter was given an opportunity of hearing whereafter by reason of an order dated 4.3.1992 passed by the alleged contemnor it was held:-

“Sri Banerjee contended that, unlike his colleagues, he was promoted directly to the post of Assistant Secretary from that of Section Officer without being routed through the post of Registrar and as a result his pay in the post of Assistant Secretary was fixed at a stage lowern than those of his juniors who were first promoted to the Post of Registrar and then to the Post of Assistant Secretary and thus he was made to suffer financial loss.

It is a fact that Sri Banerjee was promoted to the post of Assistant Secretary directly from the post of Section Officer. The Secretary, West Bengal Legislative Assembly is hereby directed to examine whether Juniors to Sri Banerjee in the post of Section Officer now working as Assistant Secretary are getting more pay than Sri Banerjee In the post of Assistant Secretary and if it is found that juniors are getting more pay, then Sri Banerjee’s pay scale should be refixed in terms of Rules 55(4), W.B.S.R. Part-I and Sri Banerjee should also be paid the additional amount that may be admissible to him in consequence of such refixation of pay. The Secretary, West Bengal Legislative Assembly is further directed to carry out and Implement this order within 7 days from the date of this order. No other benefit is legally admissible to him. Review application preferred by Sri Banerjee is disposed of accordingly”.

10. From a bare perusal of the aforementioned order, It would appear that the Secretary of Legislative Assembly was delegated with the power to consider as to whether the juniors to the petitioner to the post of Section Officer were getting more pay than the petitioner in the post of Assistant Secretary and if it is found that the Juniors are getting more pay, the petitioner’s pay scale should be refixed in terms of Rule 55(4) of the WBSR, Part-I.

11. However, on facts, the petitioner’s grievance was found to have no justification.

12. The contempt rule had been Issued by this court pursuant whereto one Md. Nesar Khan affirmed an affidavit on behalf of the alleged contemnor. An objection to the said affidavit was taken by the petitioner whereafter the alleged contemnor himself has affirmed an affidavit.

13. The petitioner, who has appeared in person and argued his case very ably, inter alia, submitted that fixation of pay in terms of rule 55 (4) of the West Bengal Service Rule, Part-I was not the only matter which fell for consideration before the Hon’ble Speaker. Accordingly to the petitioner, the alleged contemnor was required to find out if the petitioner was entitled to get any higher scale of pay In the post of Assistant Secretary as ft stands admitted that Illegality of appointments of the candidates in different posts in Assembly Secretariat and the claim of seniority of the petitioner were the main grievance of the petitioner. It has been pointed out that as the Division Bench had directed that there should not be any injustice to the petitioner in the post of Assistant Secretary which obviously included proper placement and other benefit of service in the said appointment. It has been pointed out that the words ‘Injustice’ and ‘unmerited hardship’ had been used in many places which clearly show the Intention of the Division Bench. It has further been pointed out that In terms of the order dated 9th January, 1991 (in the review application) it has been clarified that all grievances of the petitioner in the matter of service was to be considered.

14. On the other hand, the learned Advocate General submitted that keeping in view the order passed by the Appeal Court as also the fact that the Review Application was permitted to be withdrawn, the alleged contemnor cannot be said to have committed any contempt of this court. Our attention was drawn to ajudgment dated 23.2.94 passed by S.K. Sen, J. in Civil order No. 18624(W) of 1992 wherein the learned Judge, Inter alia, observed:-

“It appears that the petitioner moved several applications from time to time and also went on appeal before the Division Bench more than once. Pursuant to the order passed by the Division Bench dated 27th August, 1990 the Speaker, West Bengal Legislative Assembly has passed an order. The said order is being challenged in the Instant writ application”.

15. It was further held:-

“The Secretary, West Bengal Legislative Assembly thereafter pursuant to my direction has considered and examined the case of the petitioner and refixed the pay scale of the petitioner and granted the benefit accordingly. In my view there is no infirmity in the order of the learned Speaker, West Bengal Legislative Assembly. In the event the petitioner is aggrieved by the refixation made by the Secretary, West Bengal Legislative Assembly, it will be open to the petitioner to take appropriate steps in accordance with law.

It is stated that the Service Book of the petitioner has been sent to the Finance Department pursuant to my direction dated 2.4.93 directing reconstruction and the same has been done accordingly.

The writ application is thus disposed of without any order as to costs.”

16. However, from a perusal of the Judgment of the Division Bench dated 22.9.1994 in F.M.A. No. 22 of 1994 and F.M.A.T. No. 841 of 1994 it appears that two appeals were filed, one against the order dated 1st October 1991 in C.O. No. 16567[W) of 1991 passed by Monoranjan Mallick, J. and another against the order dated 23rd February, 1994 passed by S.K. Sen, J. in C.O. No. 18624(W) of 1992. Before the Division Bench the argument advanced on behalf of the petitioner was that in view of pendency of a departmental proceedings, his case had not been considered for promotion from the post of Assistant Secretary to the Deputy Secretary despite the fact that even before the Division Bench comprising of G.N. Roy, and S.K. Hazarl, JJ. the court was assured that the case of the appellant was considered on each occasion for promotion of Deputy Secretary as and when its incumbent were promoted. The Division Bench considered the records and found that the said statements were untrue and in fact the case of the petitioner was not considered as a departmental proceeding had been pending. The Division Bench took into consideration the entire records which were produced before M.G. Mukherjee, J (As His Lordship then was) and Tarun Cnatterjee, J. and it was found that as the petitioner has retired, he was entitled to a notional promotion to the post of Deputy Secretary with effect from 1.10.90 when Gadadhar Banerjee was promoted as Deputy Secretary.

17. It was held:-

“We thing that the only relief that the writ petitioner /appellant is now entitled to is a notional promotion to the post of Deputy Secretary with effect from 1.10.90 when Gadadhar Banerjee was promoted as Deputy Secretary. We direct the respondents accordingly to calculate the salary and emoluments which are due to the petitioner from 1.10.90 till the date of retirement in the grade of Deputy Secretary and after deducting the emoluments drawn by him for the post of Assistant Secretary which purpose he was holding till retirement on 31-3.1991 he may be paid off the difference in salary and emoluments within a period of three months from today.

We, however, direct the respondents to grant pension and retiring benefits to the appellant calculating the same on the basis of his deemed promotion from 1.10.90 as a Deputy Secretary to the Speaker’s establishment.

We think that the writ petitioner/appellant is not entitled to any further relief except as indicated above. The pay and allowances of the writ petitioner/appellant be determined by the Speaker in accordance with law keeping in view the case of other promotees who were given similar promotion to the post of Deputy Secretary. Such determination be made by the speaker within a period of three months from today.”

18. The decision of S.K. Sen. J. was not reversed nor the point urged before the said learned Judge was questioned by the appellant.

19. In that view of the matter the said judgment attained finality and cannot be directed to be re-opened in this proceedings. The Judgment of the Division Bench in the aforementioned judgment having become final, the petitioner cannot be granted any other relief In this proceedings.

20. The petitioner in his contempt application at page 41 stated that not a single question which had been raised before the alleged contemnor at the time of personal hearing had been actually considered and found places in the order dated 4.3.92. It was further submitted that in the contempt application itself the question relating to interpretation of this court’s order should be determined.

21. In paragraph 24 of the Affidavit-in-Reply the petitioner stated:-

(a) the authorities had not allowed the petitioner any service benefit available on the basis of seniority laid down In G.O. No. 568-F dated 20.2.68 and in the W.B. Services (determination of seniority) Rules, 1981 inspite of specific observations of the Finance Department;

(b) the authorities had not allowed the petitioner any service benefit available on the basis of seniority laid down in G.O. No. 556-F dated 20.2.68 and inspite of repeated prayers did not refer the matter to the Finance Department;

(c) there had been several cases of appointments, made inspite of any provision of the recruitment rules/infringing the recruitment rules and/or well accepted norms wherein the petitioner, very much eligible under the rules/accepted norms were not considered at all. The said Incumbents appointed irregularly was subsequently promoted to higher posts to the detriment of the petitioner:

(d) the authorities did not take into consideration the alleged Infirmities in the recruitment rules prescribed did not refer them to the Finance Department in spite of repeated prayers and appointments continued to be made under them to the detriment of the petitioner;

(e) One Shri K.L. Mukherjee, admittedly junior to the petitioner was arbitrarily promoted to the post of Section Officer in 1973 in reference to the petitioner although no reason for this was adduced in the office files. This has been inspite of the fact that the post of Section Officer was definitely not a selection post within the accepted meaning of the term. Subsequently on the strength of the said appointment the said incumbent was promoted to the posts of Editor of Debates, and Register to the detriment of the petitioner. The same treatment was meted to the petitioner in respect of appointments of one Shri G. Banerjee in the post of Section Officer and Editor of Debates.

(f) Hon’ble Speaker S.A.M. Hablbullah after assumption of office, after a very careful consideration passed orders for promotion of the petitioner to the higher post of Assistant Secretary. The said Shrl Mukherjee and Shrl Banerjee were promoted to the post of Assistant Secretary long afterwards. The prayers of the petitioner for notional promotion to the posts of Section Officer and Registrar, fixation of pay in the post of Registrar at the stage that would have been available had it on promotion from the post of Editor of Debates and notional appointment in the new Intermediate selection Grade post of Officer, which was well available under the existing norms under such circumstances could reach the table of the Speaker only after Hon’ble Mr. S.A.M. Hablbullah had relinquished his officer and or the best of the knowledge of the petitioner the file was never sent to the Finance Department (subsequently a new file was sent to the Finance Department where the aforesaid background had been suppressed resulting in nugatlon by the Finance Department. Repeated prayers to sent the file once again with the above mentioned details fell in bad cars).

(g) By two Govt. orders issued in 1977-78 and 1978-79, the scale of pay and special pay of the post of accountant was upgraded to those in the post of Section Officer with retrospective effect from 1974. Consequently an incumbent, admittedly Junior to the petitioner holding the post of accountant, got the benefit of this higher scale of pay and special pay which had been higher than of the petitioner at the material time. No action was taken In respect of the querry of the Finance Department as to If the petitioner had actually been considered at the time of appointment of the said incumbent in the post of accountant. Consequently the petitioner suffered great recurring financial loss.

(h) By careful and calculated fraud upon the Hon’ble Court the respondent had obtained an order In the appeal case FMA 197 of 1990 in the matter of requirement of a degree in law for promotion to the post of Deputy Secretary and Secretary. Their Lordships had based their decision on the rules for direct recruitment which, in its totality, had no application for promotion which had been the case of the petitioner. And in view of the said nugation the Hon’ble Court did not pass any order in respect of some other points of law. The rule regarding the requirement of a degree in law in respect of promotion to the post of Deputy Secretary had been amended as far back as 1974. Even prior to 1974, the rule was never applied. The order dated January 9, 1991 inter alia required consideration of this grievance but the grievances of the petition In this regard were not considered on the other hand the reviewing authority utilised the original decision of the Hon’ble Court of deny the entitlement which was nevertheless allowed to Juniors to him.”

22. It has further been submitted that the order dated 27th August, 1991 in respect of the post of Deputy Secretary was obtained by fraud and/or mis-representation as the rule quoted therein never came up for consideration before this court and probably the said fact was considered keeping in view the written notes submitted before the Lordships after completion of hearing and, thus, in the Interest of justice as also case laws, the said decision requires re-opening.

23. The learned Advocate General appearing on behalf of the alleged contemnor, on the other hand, submitted that as the alleged contemnor has complied with the order of the court, he cannot be said to have committed comtempt of this courts. It was pointed out that in view of the judgment of S.K. Sen, J. the contempt application must be held to be barred by the principles of res Judicata.

24. It may be true that in view of the recent decision of the Supreme Court of V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh and others, followed in V.P. Shrtuastava & Ors. v. The State of M.P. & Ors. reported in J.T. 1996(2) 374, P. Ravindran and Others Vs. Union Territory of Pondicherry and Others, , Ram Ganesh Tripathi and others Vs. State of U.P. and others, and as this aspect of the matter has recently been considered in G.A. No. 788 of 1997 with W.P. No. 119 of 1997 (Ketakt S. Adhikaiiv. The State of West Bengal & Ors.) disposed of on 24-4-97, the persons who were appointed directly would become senior to those persons who were appointed/promoted without following the rules and whose services had been regularised later on. But from the records it does not appear that the said question was ever raised. The petitioner questioned the vires Rules 7(1) of the West Bengal Legislative Assembly Secretariat Rules, 1953 (hereinafter referred to the said rules). In terms of the said rules consultation with the Public Service Commission in terms of Legislative Council (Consultation by Governor) Regulation, 1955 was not necessary. Both the learned single Judge as also the Division Bench upheld the vires of the said rules. The said question raised in this application to the effect that the petitioner was entitled to be promoted to the post of Deputy Secretary as the qualification of a Law Degree was not necessary at the relevant time had been taken into consideration by the Division Bench and has been rejected. This court while considering a contempt matter also cannot go into the question as to whether a fraud had been practised In the court of G.N. Roy, and S.K. Hazari, JJ. If the petitioner thought that some fraud has been practised; he ought to have pressed his review application. Instead he withdrew his review application.

25. There cannot, however, be any doubt that the petitioner questioned the order passed by the alleged contemnor before S.K. Sen, J as is evident from the order dated 23.02.1992. The learned Judge considered the findings of the learned Speaker and found no infirmity therein which according to the learned Judge was passed as per the direction of the Division Bench dated 27.8.90. The Division Bench presided over by M.G. Mukherjee, J might have held that the petitioner was entitled to be promoted to the post of Deputy Secretary but there cannot be any doubt whatsoever that this court cannot go beyond the orders passed in the aforementioned writ application and re-open the entire matter. The Jurisdiction of this court in a contempt matter is very limited. Civil contempt has been defined in section 2(b) of the Contempt of Courts Act to mean :-

” ” In this Act, unless the context otherwise requires-

(b) ‘Civil Contempt’ means wilful disobedience to any Judgment, decree, direction, order, writ or other process of a court or wilful breach or an undertaking given to a court”.

26. Thus, there cannot be any doubt whatsoever that this court can take necessary action only when there is a wilful disobedience of the court’s order.

In Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, . it was held :-

“The court while considering the issue as to whether the alleged contemner should be punished for not having complied with carried out the direction of the court, has to take into consideration all facts and circumstances of a particular case. That is why the framers of the Act while defining civil contempt, have said that it must be wilful disobedience to any Judgment, decree, direction, order, writ or other process of a court Before a contemner is punished for non-compliance of the direction of a court, the court must not only be satisfied about the disobedience of any Judgment, decree, direction or writ but should also be satisfied that such disobedience was wilful and intentional”.

27. In Manish Gupta and others Vs. Gurudas Roy, , it has been held :-

“We do not propose to go into the question of interpretation of Rule 55(4) of the Rules. But, at the same time, we cannot say that there is no merit In the submission of Shrl Sanghi that in view of the proviso to Rule 55(4) the respondent cannot claim the fixation of his basic pay on the same level as the basic pay drawn by Hrlshlkesh Roy. In our view that appellants could reasonable proceed on the basis that in view of the proviso contained in Rule 55(4) of the Rules the pay of the respondent cannot be fixed at the same level as that the Hrishikesh Roy, and, therefore, in fixing the basic pay of the respondent it cannot be said that the appellants had wilfully and deliberately disobeyed the directions given by the appellate bench in its order dated September 20, 1989. On that view of the matter the learned Judges of the High Court were, in our opinion, not justified in holding the appellants guilty of contempt of court for not complying with the directions of the Appellate Bench regarding fixation of basic pay of the respondent If the respondent feels that the re fixation of his pay has not been made in accordance with the relevant rules, he may, if so advised, prusue the remedy available to him in law for enforcing his rights.”

28. In V. Kanakarajan Vs. General Manager, South Eastern Railway and others, , the apex court also upheld a division bench Judgment of this court wherein a Division Bench refused to give any remedy in a contempt proceedings wherein in compliance of the order passed by the said court the petitioners case for promotion was considered saying that the remedy of the petitioner was to file a separate writ against the order passed by the concerned authority.

29. In J. Parihar Vs. Ganpat Duggar and others, it has been held :-

“The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings a fresh direction by the learned single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the Jurisdiction to consider the matter on merits In the contempt proceedings. It would not be permissible u/s 12 of the Act”.

30. It is now well settled that the High Court while exercising its contempt Jurisdiction cannot decide a question as to whether a fraud was practised upon the Division Bench or not. It is also not within the province of this court to consider as the whether the petitioner questioned only a part of the order of the alleged contemner. This court is bound by the statement made In the judgments. If any wrong statement of fact has been made in the Judgment, in view of the settled position in law, the only remedy of the contemner would have been to file a review application but the statement of fact made in ajudgment cannot be questioned In a co-lateral proceedings far less in a contempt proceeding.

31. There cannot be any doubt that in a given case where bona fide mistake has been committed by the alleged contemner, the matter can be remitted to him for a fresh decision but as noticed hereinbefore in the instant case the petitioner has already questioned the said decision by filing a separate writ application and, thus, if any order is passed at this juncture by this court in exercise of its contempt jurisdiction, the same will offend the principles of comity of decision.

32. In Smith Stainstreet Pharmaceuticals Ltd. v. Probir Kumar Sengupta, reported in ILR 1995(2) Cal 389, this Bench held :-

“Thus, conflicting orders had been passed. It is now well-known that no court passes any Interim order which would be contrary to or inconsis- tent with another interim order which has been passed by a court of competent jurisdiction.

33. In Law of Injunctions by Lewis & Spelling, the law has been stated in the following terms :

Conflict and Loss of Jurisdiction.

Where a court having general Jurisdiction and having acquired Jurisdiction of the subject-matter has Issued an Injunction, a court of concurrent Jurisdiction will usually refuse to interfere by issuance of a second Injunction. There is no established rule of exclusion which would deprive a court of jurisdiction to issue an injunction because of the issuance of an injunction between the same parties appertaining to the same subject matter but there is what may properly be termed a Judicial comity on the subject. And even where it is a case of one court having refused to grant an injunction, while such refusal does not exclude another coordinate court of Judge from jurisdiction, yet the granting of the injunction by a second Judge may lead to complications and retaliatory action. The Jurisdiction to afford the relief is not lost by the fact that during the pendency of the suit the act which it was sought to enjoin, has been done. In such case the court may require restoration by the defendant of the status existing at the time Jurisdiction was acquired, even through no preliminary injunction or restraining order had been Issued. And speaking generally, it may be said that though a parly filing a bill for an Injunction may fail to procure a preliminary injunction, yet any act after the court has acquired Jurisdiction will be subject to the power of the court to compel restoration of the former condition or to enforce some other proper relief. On the same principle the jurisdiction once acquired is not ousted by the fact that pending the suit the right to a permanent injunction is lost by something, transpiring beyond control of the court and parties to the litigation.

Keeping in view of the fact that a court has to maintain a judicial comity, In our opinion, the order impugned in this appeal cannot be sustained.”

34. In any event, even if it is accepted that the petitioner merely questioned a part of the order whereby he was not promoted to the post of the Deputy Secretary, the application filed by the petitioner will be barred under the principles of resjudlcata Inasmuch as in the said writ application he could have and ought to have challenged the entire order passed by the alleged contemnor. It may be as was pointed out by Mr. Banerjee who appeared in person and argued his case verlably that he would suffer a great pecuniary loss but unfortunately he is to be blamed therefore Inasmuch as before the Division Bench he confined his case only to the benefits to which he was entitled to as an Assistant Secretary and furthermore, he also withdrew the review application.

35. For the reasons aforementioned, there is no merit in this application which is accordingly dismissed but in the facts and circumstances of this case there will be no order as to costs.

36. Application dismissed.


Cases Referred

V. Kanakarajan Vs. General Manager, South Eastern Railway and others, AIR 1996 SC 2758 : (1996) CriLJ 3997 : (1996) 7 JT 517 : (1996) 5 SCALE 822 : (1996) 10 SCC 102
Niaz Mohammad and others, etc. etc. Vs. State of Haryana and others, AIR 1995 SC 308 : (1994) 6 JT 260 : (1994) 4 SCALE 292 : (1994) 6 SCC 332 : (1994) 3 SCR 720 Supp : (1995) 1 UJ 124
J. Parihar Vs. Ganpat Duggar and others, AIR 1997 SC 113 : (1996) 9 JT 608 : (1996) 7 SCALE 351 : (1996) 6 SCC 291 : (1996) 6 SCR 110 Supp : (1996) AIRSCW 4272 : (1997) 6 Supreme 133
V. Sreenivasa Reddy and others Vs. Govt. of Andhara Pradesh and others, AIR 1995 SC 586 : (1994) 6 JT 461 : (1994) 4 SCALE 469 : (1995) 1 SCC 572 Supp : (1994) 4 SCR 233 Supp : (1995) 1 SLJ 99
Ram Ganesh Tripathi and others Vs. State of U.P. and others, (1997) 7 AD 260 : AIR 1997 SC 1446 : (1997) 87 CompCas 792 : (1997) 75 FLR 554 : (1997) 8 JT 205 : (1996) 9 SCALE 381 : (1997) 1 SCC 621 : (1997) SCC(L&S) 186 : (1996) 10 SCR 250 Supp : (1997) 1 UJ 558 : (1997) AIRSCW 126 : (1997) 4 Supreme 293
Manish Gupta and others Vs. Gurudas Roy, AIR 1995 SC 1359 : (1995) LabIC 1611 : (1995) 1 SCALE 664 : (1995) 3 SCC 559 : (1995) 1 UJ 500
P. Ravindran and Others Vs. Union Territory of Pondicherry and Others, (1996) 9 AD 91 : (1996) 7 SCALE 728 : (1997) 1 SCC 350 : (1997) SCC(L&S) 731 : (1996) 7 SCR 158 Supp

Counsel for Appearing Parties

Mahananda Banerjee, for the Appellant; Mr. Naranarayan Gooptu and Mr. Suman Ghosh, for the Respondent

What is a Gotra

According to Mitakshara on Yajnavalkya, i, 53, ” “, ‘Gotra is that which is known from tradition handed down in the family’. The Baudhayanasrauta says:-

(Visvamitra, Jamadagni, Bharadvaja, Gautam, Aur, Vasistha and Kashyapa are the seven sapes and Agastya is the eighth; the progeny of these eight sages is declared to be gotra).

It appears that these eight were supposed to be the male founders and the general conception about gotra thus is that it denotes all persons who trace descent in an unbroken male line from a common male ancestor. According to Golapchandra Sarkar, Shastri, Gotra of a person is the name of the sage from whom he or his agnate is supposed to have descended in the mile line.

Regarding the ‘gotra’ of a woman on marriage P. V. Kane in the History of Dharmasastra says at pages 466-467:-

“There is a great deal of discussion in the Smritis and nibandhas on the gotra of a woman. Asv, gr. S. I. 8. 12 is interpreted by some as laying down that husband and wife become of one gotra one year after marriage Laghu Harita appears to refer to this and also proposes an option that she takes up the husband’s gotra immediately after marriage. Yama 86 and Likhita 25 say that after marriage on the 4th night a bride becomes one with her husband as to gotra, pind and asauca, while Yama 78 and Likhita 26 state that she loses her father’s gotra on taking the seventh step. The Mit. on Yaj I. 254 has a long note on this subject, states that there are two views and finally reaches the conclusion that a woman retains her father’s gotra even after marriage for pindadana, if she was a puthika or was married in the asura and the following forms, but if she was married in the brahma and other approved forms, there was an option viz, pinda may be offered to one’s mother by one’s father’s gotra or by her father’s gotra according to family usage. Vide also Apararka pp. 432, 542, Sm C. I. p. 69.”

Jamna therefore on her marriage with Kodusingh acquired her husband’s gotra.

Similary, ‘Pinda’ has several meanings but so far as the Hindu Law is concerned, it has been used in two senses; (a) a relation connected with the same body and (b) a relation connected through funeral oblations of food. In the Mitakshara, however, it is used in the first sense viz meaning one of the same body i.e. a blood relation. Literally, it would thus include all blood relations howsoever distant but the stages have curtailed their meaning by technical limitation and when used without qualification it signifies agnatic relations only i. e. blood relations of the same Gotra ” ” being excluded from this category as these are classed as ‘Bandhus.’ According to Mitakshara, ‘Sapinda’ relationship arises from connection with parts of the body so that a son’s Sapinda relationship with the father arises by reason of connection with the parts of the father’s body. As regards the wives, Mitakshara says that they become Sapindas of their husbands by reason of their forming one body with those of their husbands:

” “

“similarly (arises the Sapinda relationship) of the husband with the (Patni) lawfully wedded wise; by reason of (they together) forming one body, (i e. one person hence the wife is called half the body of the husband); similarly also (arises the Sapind relationship) of the wives of brothers (with each other), by reason of (the wives forming one body reciprocally with those (i.e. their husbands) formed from one body (of their father); thus wherever the term Sapinda is used, there directly or mediately connection with parts of one body is to be understood.”

(Gopalchandra Sarkar, Sastri’s Hindu Law, sixth Edition, pages 68-79).

The Judicial Committee of the Privy Council in Lallubhai Bapubhai vs. Gassibai I. L. R. 5 Bom. 110 at p. 118 speaking on this topic said:

“It is not disputed that on her marriage the wife enters the gotra of her husband, and it can scarcely be doubted that in some sense she becomes a Sapinda of his family. It is not necessary to cite authorities on this point. But a statement of the doctrine in a note by Mr. Borradaile to his reports may be referred to. He says; ‘Because a woman on her marriage enters the gotra of her husband, so respondents, being sagotra of Pitambar, are sagotras of his wife also.’ (1 Bom. 70. n. 2)”

and which shows that she (Jamna) became a ‘Sapinda’ of her husband in some sense only and not in its fullest sense by which probably was meant Sapindaship arising out of consanguinity.

Kane in the History of Dharmasastra at page 614 says:-

“One question raised by Dr. Banerjee is: What is to be regarded as the gotra of a widow when she is to be remarried (is it to be her father’s gotra or of the first husband’s ?). There are hardly any indications in the ancient Smritis or commentaries on this point. V. svarupa commenting on Yaj. I. 63 (on the word ‘Kanyaprada’) observed that according to so e the father gives away the bride even if she is not a virgin So it appears that the father’s gotra should be looked to in the remarriage of a widow. Vidyasagar, whom Dr. Banerjee follows, held the same opinion.

Dr. Banerjee in ‘The Hindu Law of Marriage and Stridhana’, 5th Edition, pp. 309-310, says:-

“…one of these rules of selection requires that the parties to marriage should be of different gotras; but what is to be regarded as the gotra of a widow the gotra of her father, in which she was born, or that of her deceased husband, to which she has been transferred by marriage ? Vidyasagar maintains (Marriage of Hindu Widows, pp. 165-172) that her father’s gotra is to he deemed the gotra of a widow for the purposes of her remarriage; and, considering that her father or some other paternal relation is still her guardian in marriage. I think that view is in accordance with the intention of the Act.”

 In the absence of any direct shastric authority contrary to the aforesaid opinion of Vidyasagar, Banerjee and Kane based on the text dealing with the right of a father to give his daughter in marriage, I am also of opinion that for the purpose of her remarriage, the widow should be taken to be of the gotra of her father. It has to be remembered that the gotra of her husband was acquired by her constructively on her marriage with him. If the marriage was to be an indissoluble tie. the constructive relationship or the relationship by affinity as it is sometimes called still continues to operate for the rest of the natural life of the widow because qua widow the fiction that the husband is alive in her would operate. But if for some reason, what was under the orthodox Hindu law an indissoluble tie is made a dissoluble union. I see no reason to make the fiction or constructive relationship continue to operate when the necessity for it has ceased. It may be that as long as she continues a widow, the fiction would operate and she would be a Sagotra of her husband by affinity but for the purpose of her remarriage, the fiction that the widow represented her husband’s half, would cease. A fiction that came into existence by a marriage would disappear for her remarriage and as the father has been given the right to marry his ‘non-virgin daughter’ which expression may well embrace the case of a widow, it seems quite logical to assume that the widow for her remarriage reverted to the gotra of her father. She marries as the daughter of her father and not as a wife of her husband.

This difficulty is, however, of no practical importance now because of section 29 (1) of the Hindu Marriage Act, 1955, which inter alia provides that no marriage solemnized between Hindus before the commencement of the Act, which is otherwise valid, shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra.

Now I shall consider the question of her Sapinda relationship. Applying the same reasoning for the determination of Sapinda relationship for the remarriage of a widow, which Sapinda relationship constructively arose due to the first marriage as in the case of Sagotra relationship, I see no reason why Jamna who is not taken to be of her husband’s ‘ ‘ for the purpose of her remarriage should continue to be counted or classed as her husband’s ‘ ‘ for the purpose of first place by reversion to her father’s ‘gotra’ for her remarriage she would become ‘ ‘ to Kanhaisingh and consequently taken out of the prohibited degrees. Secondly, if she remarries as the non-virgin daughter ( ) of her father and because of it relinquishes her husband’s ‘Gotra’ there is no reason why she should yet continue to be his ‘ ‘. Thirdly, she was not a direct or consanguinuous ‘Sapinda’ but a ‘Sapinda’ due to marriage when according to marriage sacrament (Sanskar) she became united to her husband ‘bones with bones, flesh with flesh and skin with skin’. Now if this indissoluble tie, which would have united them for ever, for a widow is to be artificially snapped, there was no reason to keep the fiction alive. The fiction operated as long as she was his wife or his widow i. e, till she wanted her marriage tie to subsist. But the moment she came under her father’s protection for her remarriage or left her late husband’s protection to get herself remarried, her ‘ ‘ relationship like her ‘ ‘ relationship with her late husband came to an end. Fourthly, the text which made her, her husband’s ‘ ‘ expressly said that she became his ‘ ‘ by reason of his fictionally forming ‘one body’ with him. This fiction continued even after her husband’s death because fictionally her husband was alive in her. But this fiction could not continue once the widow decided to get herself remarried Mayne’s Treatise on Hindu Law and Usage, 11th Edition, dealing with the topic therefore rightly states at p, 160:-

“The question has arisen whether a Hindu widow can validly re-marry a person belonging to her father’s gotra. The Allahabad High Court has held that she can, on the ground that she retains her husband’s gotra. This appears to be an error. According to the relevant text of Yajnavalkya, the bride must not be descended from one whose gotra and pravara are the same as the bridegroom’s The Sanskrit expression makes it conclusive that it is the gotra of a woman’s birth that counts in marriage. When a woman enters into her husband’s gotra on her marriage, the gotra consanguinity is constructive and not physical. She retains the husband’s gotra only in her character as ‘wife’ during her widowhood, and she cannot retain it for purposes of remarriage. When she is given in marriage, the formula requires that she should be given as the daughter of say, Devadatta, belonging to Bharadwaja gotra. The legislature has expressly recognised that a minor widow reverts to her father’s family for purposes of guardianship in remarriage. For the same reason, she could, under the ancient Hindu law, as she can now, where there is a custom, marry her husband’s brother; it is also the explanation for the Ni yoga, for a husband’s brother or agnate being authorised to raise up the issue.

Accordingly, a Hindu widow can marry a person belonging to her husband’s gotra. Similarly, the prohibited degrees applicable to the case of a remarrying widow are the prohibited degrees based on her sapinda relation in the family of her birth and not those applicable to a girl born in her husband’s family.”

In my opinion, this passage summarizes the law correctly. The proposition to the contrary laid down in Radha Nath Mukerjee vs. Shaktipada Mukerjee I. L. R. 58. All. 1053 is in try opinion not correct.


Source : REWA  Vs. GALHAR SINGH (1961) AIR(MP) 164 : (1960) ILR(MP) 490 : (1961) JabLJ 204 : (1960) MPLJ 1389

HINDUISM.JPG

Whether the inherent powers vested in High Court U/S 482 of Criminal Procedure could be exercised to quash non-compoundable offenses

The inherent powers of the High Court under Section 482 Code of Criminal Procedure. are not for that purpose controlled by Section 320 Code of Criminal Procedure. Having said so, we must hasten to add that the plenitude of the power under Section 482 Code of Criminal Procedure. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified.

SUPREME COURT OF INDIA

Shiji @ Pappu and Others  Versus  Radhika and Another

(Before : Cyriac Joseph and T.S. Thakur, JJ.)

Criminal Appeal No. 2094 of 2011 (Arising out of SLP (Crl.) No. 9919 of 2010) : Decided On: 14-11-2011

JUDGMENT

T.S. Thakur, J—Leave granted.

2. This appeal arises out of an order passed by the High Court of Kerala at Ernakulam, whereby Criminal M.C. No. 3715 of 2010 filed under Section 482 of the Code of Criminal Procedure, 1973, with a prayer for quashing criminal proceedings in FIR No. 6/2010 alleging commission of offences punishable under Sections 354 and 394 of the IPC, has been dismissed. The High Court has taken the view that the offences with which the Appellants stand charged, are not ‘personal in nature’ so as to justify quashing the pending criminal proceedings on the basis of a compromise arrived at between the first informant-complainant and the Appellants. The only question that, therefore, arises for consideration is whether the criminal proceedings in question could be quashed in the facts and circumstances of the case having regard to the settlement that the parties had arrived at.

3. Respondent-Radhika filed an oral complaint in the Police Station at Nemom in the State of Kerala, stating that she had accompanied her husband to see a site which the latter had acquired at Punjakari. Upon arrival at the site, her husband and brother Rajesh went inside the plot while she waited for them near the car parked close by. Three youngsters at this stage appeared on a motorbike, one of whom snatched the purse and mobile phone from her hands while the other hit her on the cheek and hand. She raised an alarm that brought her husband and brother rushing to the car by which time the offenders escaped towards Karumam on a motorcycle. The complainant gave the registration number of the motorbike to the police and sought action against the Appellants who were named by her in the statement made before the Additional Police Sub-Inspector attached to the Nemom Police Station. FIR No. 6/2010 was, on the basis of that statement, registered in the police station and investigation started. A charge sheet was, in due course, filed against the Appellants before the Judicial Magistrate First Class, Neyyattinkara, eventually numbered CC 183/2010.

4. During the pendency of the criminal proceedings aforementioned, the parties appear to have amicably settled the matter among themselves. Criminal M.C. No. 3715 of 2010 under Section 482 Code of Criminal Procedure. was on that basis filed before the High Court of Kerala at Ernakulam for quashing of the complaint pending before the Judicial Magistrate First Class, Neyyattinkara. That prayer was made primarily on the premise that Appellant No. 1 Shiji @ Pappu who also owns a parcel of land adjacent to the property purchased by the Respondent-Radhika, had some dispute in regard to the road leading to the two properties. An altercation had in that connection taken place between the Appellants on the one hand and the husband and brother of the Respondent on the other, culminating in the registration of the FIR mentioned above. The petition further stated that all disputes civil and criminal between the parties had been settled amicably and that the Respondent had no grievance against the Appellants in relation to the access to the plots in question and that the Respondent had no objection to the criminal proceedings against the Appellants being quashed by the High Court in exercise of its power under Section 482 Code of Criminal Procedure. The petition further stated that the disputes between the parties being personal in nature the same could be taken as settled and the proceedings put to an end relying upon the decision of this Court in Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582. An affidavit sworn by the Respondent stating that the matter stood settled between the parties was also filed by the Appellants before the High Court. The High Court has upon consideration declined the prayer made by the Appellants holding that the offences committed by the Appellants were not of a personal nature so as to justify quashing of the proceedings in exercise of its extra-ordinary jurisdiction under Section 482 Code of Criminal Procedure.

5. We have heard learned Counsel for the parties and perused the impugned order. Section 320 of the Code of Criminal Procedure. enlists offences that are compoundable with the permission of the Court before whom the prosecution is pending and those that can be compounded even without such permission. An offence punishable under Section 354 of the IPC is in terms of Section 320(2) of the Code compoundable at the instance of the woman against whom the offence is committed. To that extent, therefore, there is no difficulty in either quashing the proceedings or compounding the offence under Section 354, of which the Appellants are accused, having regard to the fact that the alleged victim of the offence has settled the matter with the alleged assailants. An offence punishable under Section 394 IPC is not, however, compoundable with or without the permission of the Court concerned. The question is whether the High Court could and ought to have exercised its power under Section 482 Code of Criminal Procedure. for quashing the prosecution under the said provision in the light of the compromise that the parties have arrived at.

6. Learned Counsel for the Appellants submitted that the first informant-complainant had, in the affidavit filed before this Court, clearly admitted that the complaint in question was lodged by her on account of a misunderstanding and misconception about the facts and that the offences of which the Appellants stand accused are purely personal in nature arising out of personal disputes between the parties. It was also evident that the complainant was no longer supporting the version on which the prosecution rested its case against the Appellants. According to the learned Counsel there was no question of the Trial Court recording a conviction against the Appellants in the light of what the complainant had stated on affidavit. That was all the more so, when the other two prosecution witnesses were none other than the husband and the brother of the complainant who too were not supporting the charges against the Appellants. Such being the case, continuance of criminal trial against the Appellants was nothing but an abuse of the process of law and waste of valuable time of the Courts below. Exercise of power by the High Court under Section 482 Code of Criminal Procedure. to prevent such abuse is perfectly justified, contended the Learned Counsel. Reliance in support was placed by the learned Counsel upon the decision of this Court in Madan Mohan Abbot’s case (supra).

7. This Court has, in several decisions, declared that offences under Section 320 Code of Criminal Procedure. which are not compoundable with or without the permission of the Court cannot be allowed to be compounded. In Ram Lal and Anr. v. State of J and K, (1999) 2 SCC 213, this Court referred to Section 320(9) of the Code of Criminal Procedure. to declare that such offences as are made compoundable under Section 320 can alone be compounded and none else. This Court declared two earlier decisions rendered in Y. Suresh Babu v. State of Andhra Pradesh, JT 1987 (2) SC 361 and Mahesh Chand v. State of Rajasthan, (1990) Suppl. SCC 681, to be per incuriam in as much as the same permitted composition of offences not otherwise compoundable under Section 320 of the Code of Criminal Procedure. What is important, however, is that in Ram Lal’s case (supra) the parties had settled the dispute among themselves after the Appellants stood convicted under Section 326 IPC. The mutual settlement was then sought to be made a basis for compounding of the offence in appeal arising out of the order of conviction and sentence imposed upon the accused. This Court observed that since the offence was non-compoundable, the court could not permit the same to be compounded, in the teeth of Section 320. Even so, the compromise was taken as an extenuating circumstance which the court took into consideration to reduce the punishment awarded to the Appellant to the period already undergone. To the same effect is the decision of this Court in Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667; where this Court said:

14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned Counsel for the Appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.

8. There is another line of decisions in which this Court has taken note of the compromise arrived at between the parties and quashed the prosecution in exercise of powers vested in the High Court under Section 482 Code of Criminal Procedure. In State of Karnataka v. L. Muniswamy and Ors., (1977) 2 SCC 699 this Court held that the High Court was entitled to quash the proceedings if it came to the conclusion that the ends of justice so required. This Court observed:

…Section 482 of the new Code, which corresponds to Section 561-A o the Code of 1898, provides that:

Nothing in this Code shall be deemed to limit, or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.

9. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors., (1988) 1 SCC 692, this Court held that the High Court should take into account any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue or quash the prosecution where in its opinion the chances of an ultimate conviction are bleak. This Court observed:

7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

10. In B.S Joshi and Ors. v. State of Haryana, (2003) 4 SCC 675, the question that fell for consideration before this Court was whether the inherent powers vested in the High Court under Section 482 Code of Criminal Procedure. could be exercised to quash non-compoundable offences. The High Court had, in that case relying upon the decision of this Court in Madhu Limaye v. The State of Maharashtra (1977) 4 SC 551, held that since offences under Sections 498A and 406 IPC were not compoundable, it was not permissible in law to quash the FIR on the ground that there has been a settlement between the parties. This Court declared that the decisions in Madhu Limaye’s case (supra) had been misread and misapplied by the High Court and that the judgment of this Court in Madhu Limaye’s case (supra) clearly supported the view that nothing contained in Section 320(2) can limit or affect the exercise of inherent power of the High Court if interference by the High Court was considered necessary for the parties to secure the ends of justice. This Court observed:

8. It is, thus, clear that Madhu Limaye case, (1977) 4 SCC 551 does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section 482 of the Code or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power.

15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.

11. That brings to the decision of this Court in Madan Mohan Abbot’ case (supra) whereby the High Court had declined the prayer for quashing of the prosecution for offences punishable under Sections 379, 406, 409, 418, 506/34 IPC despite a compromise entered into between the complainant and the accused. The High Court had taken the view that since the offence punishable under Section 406 was not compoundable the settlement between the parties could not be recognized nor the pending proceedings quashed. This Court summed up the approach to be adopted in such cases in the following words:

6. We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.

7. We see from the impugned order that the learned Judge has confused compounding of an offence with the quashing of proceedings. The outer limit of Rs 250 which has led to the dismissal of the application is an irrelevant factor in the later case. We, accordingly, allow the appeal and in the peculiar facts of the case direct that FIR No. 155 dated 17-11-2001 PS Kotwali, Amritsar and all proceedings connected therewith shall be deemed to be quashed.

12. To the same effect is the decision of this Court in Nikhil Merchant v. CBI, (2008) 9 SCC 677 where relying upon the decision in B.S. Joshi (supra), this Court took note of the settlement arrived at between the parties and quashed the criminal proceedings for offences punishable under Sections 420, 467, 468 and 471 read with Section 120B of IPC and held that since the criminal proceedings had the overtone of a civil dispute which had been amicably settled between the parties it was a fit case where technicality should not be allowed to stand in the way of quashing of the criminal proceedings since the continuance of the same after the compromise arrived at between the parties would be a futile exercise. We may also at this stage refer to the decision of this Court in Manoj Sharma v. State and Ors. (2008) 16 SCC 1. This Court observed:

8. In our view, the High Court’s refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The first information report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the first information report was the basis of the investigation by the police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter.

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9. As we have indicated hereinbefore, the exercise of power under Section 482 Code of Criminal Procedure of Article 226 of the Constitution is discretionary to be exercised in the facts of each case. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility….

13. It is manifest that simply because an offence is not compoundable under Section 320 IPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 Code of Criminal Procedure. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial Court or in appeal on one hand and the exercise of power by the High Court to quash the prosecution under Section 482 Code of Criminal Procedure. on the other. While a Court trying an accused or Hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 Code of Criminal Procedure. are not for that purpose controlled by Section 320 Code of Criminal Procedure. Having said so, we must hasten to add that the plenitude of the power under Section 482 Code of Criminal Procedure. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Code of Criminal Procedure. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.

14. Coming to the case at hand we are of the view that the incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other. It was not a case of broad day light robbery for gain. It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some “misunderstanding and misconception” will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eyewitnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 Code of Criminal Procedure. could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the Courts below.

15. We accordingly allow this appeal, set aside the impugned order passed by the High Court and quash the prosecution in CC 183/2010 pending in the Court of Judicial Magistrate, First Class, Neyyattinkara.


JT 2011 (13) SC 180 : (2011) 12 SCALE 588

Hearing of appeal under procedural law of India is in the nature of re-hearing

In Lachmeshwar v. Keshwar Lal, A.I.R. 1941 F.C. 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower court’s decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes e.g., execution, the decree was regarded as final and the courts below retained jurisdiction in that regard. This was followed in Shyabuddinsab v. The Gadag-Betgeri Municipal Borough, [1955] 1 S.C.R. 1268 where after the judgment of the High Court and after grant of special leave by this court the legislation was passed, and it was applied by this Court. Their lordships, referring to The King v. The General Com- missioner of Income Tax, [1916] 2 K.B. 249 and Mukharjee Official Receiver v. Ramratan Kaur, [1935] L.R. 63 I.A. 47 rejected the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings, it cannot affect the proceedings. In Dayawati v. Inderjit, [1966] 3 S.C.R. 275 it has been held that the word ‘suit’ includes an appeal from the judgment in the suit. The only difference between a suit and an appeal is that an appeal only reviews and corrects and proceedings in a cause already constituted but does not create the cause. In Mohanlal Jain v. His Highness Maharaja Shri Man Singh, [1962] 1 S.C.R. 702 it was observed that “A person is “sued” not only when the plaint is filed against him, but is “sued” also when the suit remained pending against him. The word “sued” covers the entire proceeding, in an action.” In Amerjit Kaur v. Pritam Singh, [1975] 1 S.C.R. 605 it has been held that an appeal is a reheating and in moulding relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against. [Mithilesh Kumari & Anr vs Prem Behari Khare] [All SC 1989 February] 1989 AIR 1247

A joint Hindu family under Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate-SC

The differences between the Mitakshara and Dayabhaga schools on the birth-right of coparceners and the rules of inheritance have no bearing on the issues arising in this appeal, particularly on the question whether a single male can constitute a joint or undivided family with his wife and unmarried daughter. A joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship, and estate. In both systems, the property of joint family may consist of ancestral property, joint acquisitions and of self-acquisitions thrown into the common stock. Mayne’s Hindu Law and Usage, Eleventh Ed., p.277 paragraph 227(3) pp, 364-365, paragraph 297; Mulla’s Hindu Law Fourteenth In fact, whatever be the school of Hindu law by which a person is governed, the basic concept of a Hindu undivided family in the sense of who can be its members is just the same.

SUPREME COURT OF INDIA

FULL BENCH

( Before : Y. V. Chandrachud, J; R. S. Sarkaria, J; A. C. Gupta, J )

SURJIT LAL CHHABDA — Appellant

Vs.

THE COMMISSIONER OF INCOME TAX, BOMBAY — Respondent

Civil Appeal No’s. 1819-1821 of 1970

Decided on : 06-10-1975

Income Tax Act, 1922 – Section 2(9), Section 3, Section 55, Section 66(1)
Hindu Law – Joint family – Distinction with coparcenary. A Hindu undivided family is a taxable unit for the purposes of income-tax and super-tax. The expression ‘Hindu undivided family’ finds reference in these and other provisions of the Act but that expression is not defined in the Act. The reason of the omission evidently is that the expression has a well-known connotation under the Hindu law and being aware of it, the legislature did not want to define the expression separately in the Act. Therefore, the expression ‘Hindu undivided family’ must be construed in the sense in which it is understood under the Hindu Law.

A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha day), cannot be coparceners. But we are concerned under the Income-tax Act with the question whether the appellant’s wife and unmarried daughter can with him be members of a Hindu undivided family and not of a coparcenary.

Cases Referred

N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, AIR 1970 SC 14 : (1969) 74 ITR 190 : (1969) 1 SCC 748 : (1969) 3 SCR 882
Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, AIR 1966 SC 1523 : (1966) 60 ITR 293 : (1966) 3 SCR 224
The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, AIR 1935 Bom 412 : (1935) 37 BOMLR 692 : 159 Ind. Cas. 424 : (1935) 3 ITR 367
Surjitlal Chhabda Vs. Commissioner of Income Tax, Bombay City-I, (1970) 75 ITR 458

JUDGMENT

Y.V. Chandrachud, J.—The appellant, Surjit Lal Chhabda, had three sources of income. He had a share in the profits of two partnership firms, he received interest from Bank accounts and he received rent from an immovable property palled “Kathoke Lodge”. These were his self-acquired properties and until the assessment year 1956-57, he used to 1956 he assessed as an individual in respect of the Income thereof On January 26, he made a sworn declaration before a presidency Magistrate in Bombay that he had thrown the property Kathote Lodge into the ‘family hotchpotch’ in order to’ impress that property with the character of joint family property, and that he would be holding that property as the Karta of fee joint Hindu family consisting of himself, his wife and one child. That child was an unmarried daughter.

2. In the assessment, proceedings for 1957-58, the appellant contended that since he had abandoned all separate claims to Kathoke Lodge, the income which he received from that property should be assessed in the status of a Hindu Undivided family. The income tax authorities and the income tax Appellate Tribunal rejected that contention for varying reasons. The income tax Officer held that in the absence of a nucleus of joint family property, there was nothing with which the appellant could mingle his separate property and secondary, that there could not be a Hindu undivided family without there being undivided family property. The appellant carried the matter in appeal to the Appellate Assistant. Commissioner who differed from the income tax officer on both the points but dismissed the appeal on two other grounds. The A.A.C. held that even after the declaration the appellant was dealing with the income of Kathoke Lodgein the same way as before which. showed that the declaration WISH Not acted upon and Secondly, that even assuming that He property was thrown into the common stock and was there fore joint family property; the income from that property should still be taxed in the appellant’s hand as he was the sole male member of the family The Tribunal accepted the as genuine and differed A.C’s finding that it was upon. The appellent, Tribunal, was the Hindu family and :as to how he with the joints family Income. The how ever held that appellant had invest his separate property with the character of joint family property, he being a sole surviving| co-parcener continued to have the some absolute and unrestricted interest in the property as before and therefore in law the property had to be trussed as separate property.

3.The appellant moved the Tribunal for referring five questions to the High Court while the respondent applied for the reference of one other question. The Tribunal referred the following question only for the opinion of the Bombay High Courts u/s 66(1) of the income tax Act.1922:

Whether, on the facts and in the circumstances of the ease, the income from property known as Kathoke Lodge was to be assessed separately as the income of the Hindu. undivided family of which the assessee see was the karta?

4. In the High Court it warn contended on behalf of the appellant that it is open to a male member of & joint Hindu family to convert his self-acquired property into joint family property by throwing it into the common hotchpotch; that for effectuating this purpose it is neither necessary that there should be an ancestral or joint family nucleus nor there; there should be more; than one make in the joint family and since kathoke Lodge was Impressed with the character of joint family property, is income belonged to the joint Hindu family of which the appellant was the Karta the other members being his wife and unmarried daughter.

5. On the other hand, the Department contended that “it was contrary to the basic concept of a Hindu Undivided Family that a single male along with females could form a joint Hindu family; that though a joint Hindu family could include a wife and unmarried daughters; a sole male member could not constitute a joint Hindu family along with females; that it t was necessary for the for section of a joint Hindu family that should be more than one mate capable of claiming’ partition of the faint family property. In the after-.native, it was urged by the Department that a single male could form a joint Hindu family along with a co-parcener’s widow who is capable of making an adoption to her deceased husband but not with his own wife and unmarried daughter. The argument that the existence of ancestral or joint family property was an essential pre-requite to throwing the self-acquired property into the common stock WAS raised but was not pressed in the High Court.

6. On these contentions, the real controversy before the High Court was whether a single male can form a joint Hindu family with Ms wife and unmarried daughter; if yes; whether the Karta of such a family can impress Ms self-acquired property with the character of .joint family property by throwing it into the family hotchpotch and, lastly, whether the income of such property cam be assessed as the income of the joint family. The High Court did not enter into these questions and made its task simple by saying:

Several authorities were referred to on either side in support of their respective contentions. We do not, however, propose in deciding’ this reference to go into the larger question as to whether the property of the assessee, which was originality self-acquired property, assumed the character of a Hindu undivided family property, as to what are the incidents of a Hindu undivided family property and under what circumstances can separate property become Hindu undivided family property. Some of these questions have been directly answered in the authorities which were cited before us.

The question referred is confined to the ‘income’ from Kathoke Lodge. We would, therefore with-out going into these larger questions, prefer to rest our decision on the short point whether the income from the property known as Kathoke Lodge after the declaration was the income of a Hindu undivided family and in this respect whether the principle laid down by the Privy Council in AIR 1937 36 (Privy Council) was correctly applied.

The High Court assumed for the purposes of argument that there need not be more than one male member for forming a joint Hindu family as a taxable unit and that a joint Hindu family could lawfully consist of single male member, his wife and unmarried daughter on these assumptions the High Court concluded that Kathoke Lodge, from the date of the declaration by which it was thrown into the common stock, was the property of the Hindu undivided family. It, however, held:

But the assessee has no son and therefore no undivided family. His ownership of the property and its income in fact remains the same as before. The fact, of, the existence of a wife or of a wife; and daughter would make no difference to his ownership of that property…His position as a member of the joint family after the declaration would be the same as that of a sole surviving coparcener, but it is now settled law that a person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property…That is the position which the assessee held so far as this property is concerned. So far as the income is concerned, he has the complete power of disposal over the income and, even assuming that he is the karta of a joint Hindu family, there is no one who can question his spending, i.e. , whether or not it is for legal necessity other justifiable purpose. If then, his right to the income remains under his personal law the same as it was before he made the declaration, the question arises whether under the income tax Act it must be held to be the income of the karta of the Hindu undivided family. That is precisely the question which the Privy Council answered” against the assessee in AIR 1937 36 (Privy Council) .. In our opinion, therefore, the assessee’s case would fall squarely within the principle enunciated by their Lordships of the Privy Council in AIR 1937 36 (Privy Council) and upon that view the income in the hands of the assessee would be liable to be assessed as his individual in come.

The Privy Council decision on which the High Court relies is AIR 1937 36 (Privy Council) The judgment of the High Court is reported in Surjitlal Chhabda Vs. Commissioner of Income Tax, Bombay City-I,

7. Before examining the validity of the High Court’s reliance on AIR 1937 36 (Privy Council) and the correctness of its conclusion that the instant case falls within the ratio of that, decision, it is necessary to have regard to the principles of Hindu Law governing joint families.The High Court did not examine those principles calling them “larger questions”, and preferred wholly to rely on, so to say, the magic touch of AIR 1937 36 (Privy Council) It assumed that a, joint family may consist of a single male, a wife and daughter which means that it assumed that the appellant was a member of a joint Hindu family consisting of himself, his wife and daughter. However, in the very next breath the High Court concluded: “But the assessee has no son and therefore no undivided family.” An examination of fundamentals might have saved the High Court from the inconsistency that a single male can constitute a “joint family” with his wife and daughter but if that male has no son, there can be no “undivided family”. In the first place, joint family and undivided family are synonymous terms. Secondly, when one says that a joint Hindu family consists of a single male, his wife and daughter, one implies necessarily that there is no son. If there were a son, there would he two males.

8. For our limited purpose, fundamentals do not any more require a study of Sastric texts, digests and commentaries because judicial decisions rendered over the last century and more have given a legalistic form to what was in a large measure a mingling of religious and moral edicts with rules of positive laws. Hindu law today, apart from the piecemeal codification of some of its branches like the laws of marriage, succession, minority, guardianship, adoption and maintenance is Judge made law, though that does not detract from the juristic weight of Smritis like the Yajnavalkya Smriti nor from the profundity of Viviane shwara’s Commentary on it, the critique bearing the humble title of ‘Mitakshara’.

9. The appellant is governed by the Mitakshara school of Hindu law but that is not of any particular consequence for the purposes of this appeal. The differences between the Mitakshara and Dayabhaga schools on the birth-right of coparceners and the rules of inheritance have no bearing on the issues arising in this appeal, particularly on the question whether a single male can constitute a joint or undivided family with his wife and unmarried daughter. A joint Hindu family under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate. In both systems, the property of joint family may consist of ancestral property, joint acquisitions and of self acquisitions thrown into the common stock. Mayne’s Hindu Law and Usage, Eleventh Ed., p.277 paragraph 227(3) pp, 364-365, paragraph 297; Mulla’s Hindu Law Fourteenth In fact, whatever be the school of Hindu law by which a per son is governed, the basic concept of a Hindu undivided family in the sense of who can be its members is just the same.

10. Section 2(9) of the In come-tax Act, 1922 defines a “person” to include inter alia a “Hindu undivided family”. Under Sections 3 and 5 of that Act, a Hindu undivided family is a taxable unit for the purpose of income tax and super-tax. The expression ‘Hindu undivided family’ finds reference in these and other provisions of the Act but that expression is not defined in the Act. The reason of the omission evidently is that the expression has a well-know connotation under the Hindu law an being aware of it, the legislature did not want to define the expression separately in the Act. Therefore, the expression ‘Hindu undivided family must be construed in the sense in which it is understood under the Hindu Law. The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan,

11. There is no substance in the contention of the respondent that in the absence of an antecedent his history of jointness, the appellant car not constitute a joint Hindu family with his wife and unmarried daughter. The lack of such history was never before pleaded and not only does it find no support from the re cord but such an assumption ignore the plain truth that the joint and un divided family is the normal condition of Hindu society. The presumption therefore is that the members of Hindu family are living in a state union, unless the contrary is established. Mayne’s Hindu Law and Usage, Eleventh Ed., p. 323; Mulla’s Hindu Law, Fourteenth Ed., p. 284. The strength of the presumption may vary from case to case depending upon the degree of relationship of the members and the far there one goes from the founder of the family, the weaker may be the pre sumption. But, generally speaking the normal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption. Thus, a man who separates from his father or brothers may nevertheless continue to be joint with the members of his own branch. He becomes the head of a new join family, if he has a family and if he obtains property on partition with his , father and brothers, that property becomes the ancestral property of his branch qua him and his male issue.

12. It is true that the appellant cannot constitute a coparcenary with his wife and unmarried daughter but under the income tax Act a Hindu undivided family, not a coparcenary is a taxable Unit. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons, who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say the three, generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only females who come in only as heirs to obstructed heritage (sapratibandha daya) cannot be coparceners. But we are concerned under the income tax Act with the question whether the appellant’s wife and unmarried daughter can with him be members of a Hindu undivided family and not of a coparcenary. In the words of Sir George Rankin who delivered the opinion of the Judicial Committee in AIR 1937 36 (Privy Council)

The phrase ‘Hindu undivided family’ is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by passing over the wider phrase of the Act the words ‘Hindu coparcenary’, all the more that it is not possible to say on the face of the Act that no female can be a member.

p. 95 of ITR : at p. 38 of AIR.

12A. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters.The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption.

The fundamental principle of the Hindu joint family is the sapindaship. Without that-it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family Relation, the sapinda relation, which distinguishes the joint family, and is of its very essence. Per Beamen J. in Karsondas v. Gangabai ILR (1908) Bom 479; See also Hindu Law in British India by S.V. Gupte, Second Ed, p. 59.

13. The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But the absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the appellant, his wife and unmarried daughter forming a joint Hindu family. The appellant’s wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth. As said by Golapchandra Sarkar Sastri in his.”Hindu Law” (Eighth Ed., p. 240), “Those that are called by nature to live together, continue to do so” and form a joint Hindu family. The appellant is not by contract seeking to introduce in his family strangers not bound to the family by the tie of sapindaship. The wife and unmarried daughter are members of his family. He is not by agreement making them so. And as a Hindu male, he himself can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter.

14. That it does not take more than one male to form a joint Hindu family with females is well established. In Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, one Buddappa. his wife, his two unmarried daughters and his adopted son Buddanna were members of a Hindu undivided family, On Buddappa’s death a question arose whether the adopted son who was the sole surviving coparcener could form a joint Hindu family with his mother and sisters and could accordingly be assessed in the status of a manager of the Hindu undivided family. Speaking for the Court, Shah J. observed:

The plea that there must be at least two male members to form a Hindu undivided family as a taxable entity also has no force. The expression ‘Hindu undivided family’ in the income tax Act is used in the sense in which a Hindu joint family is understood under the personal law of Hindus. Under the Hindu system of law a joint family may consist of a single male member and widows of deceased male .members, and apparently the income tax Act does not indicate that a Hindu undivided family as an assessable entity must consist of at least two mala members.

N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, he appellant filed returns for Wealth Tax in the status of a Hindu undivided family which at the material time consisted of himself, his wife and two minor daughters. The claim to be assessed in the status of ” a Hindu undivided family rested on the circumstance that the wealth returned consisted of ancestral property received or deemed to have been received by the appellant on partition with his father and brothers. The High Court held that as the appellant’s family did not have any other male coparcener, the assets must be held to belong to him as an individual and not to the Hindu undivided family. That decision was set aside by this Court on the ground that a joint Hindu family could consist under the Hindu law of a single male member, his wife and daughters and that it was not necessary that the assessable unit should consist of at least two male members.

15. In both of these cases, Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, and N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, the assessee was a member of a preexisting joint family and had, in one case on the death of his father and in the other on partition, become the sole surviving coparcener. But the decision in those cases did not rest on the consideration that there was an antecedent history of jointness. The alternative argument Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, was an independent argument uncorrelated to the pre-existence of a joint family. The passage which we have extracted from the judgment of Sharh J. in that case shows that the decision of this Court did not proceed from any such consideration. The Court held in terms categorical that the Hindu undivided family as an assessable, entity need not consist of at least two male members. The same is true of the decision in N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh,

16. Thus the contention of the Department that in the absence of a pre-existing joint family the appellant cannot constitute a Hindu undivided family with his wife and unmarried daughter must fail. The view of the High Court that the appellant has “no son and therefore no undivided family” is plainly unsound and must also be rejected. Accordingly, the question whether the income of the Kathoke Lodge can be assessed in the hands of the appellant as a Karta or manager of the joint. Family must be decided on the basis that the appellant, his wife and unmarried daughter or members of a Hindu undivided family.

17. By the declaration of January 26, 1956, the appellant threw Kathoke Lodge into the family hotchpotch abandoning all separate claims to that property. The genuineness of that declaration was accepted by the Tri-bunal. The High Court too decided the reference on the footing that the appellant had thrown the property into the common hotchpotch and that “after the declaration, the property…would be property of a Hindu undivided family in the hands of the assessee” (at p. 471). Learned Counsel for the Department attempted to raise a new contention before us that there is no such thing under the Hindu law as impressing separate property with the character of joint family property, that the only doctrine known in this behalf to Hindu law is the doctrine of blending and since, prior to the declaration the family hotchpotch in the instant case was empty, there was nothing with which the Kathoke Lodge or its income could be blended and therefore, the declaration is ineffective to convert that property into joint family property. Learned Counsel for the appellant cited several decisions of the High Courts to controvert the Department’s contention. But apart from the merits of the point we ruled that the contention was not open to the Department. The statement of case framed by the Tribunal shows that such a contention was not raised before the Tribunal. The Commissioner of income tax himself asked for the reference of a question to the High Court for its opinion. That question concerns the point whether having regard to the conduct of the appellant his self-acquired property could be said to be impressed with the character of joint family property. The question did not cover the contention raised before us on behalf of the Department. But above all, though an argument was raised in the High Court on behalf of the Department that for the operation of the doctrine of blending it was essential that there should exist not only a coparcenary but also a coparcenary property, learned Counsel who appeared for the Department in the High Court “did not, after some discussion, press that there should necessarily be coparcenary property” This was not a concession on a question of law in the sense as to what the true legal position was. What the Department’s counsel stated in the High Court was that he did not want to press the particular point. In our opinion, it is not open to the Department to take before us a contention which in the first place does not arise out of the reference and which the Department’s counsel in the High Court raised but did not press.

18. Having examined the true nature of an undivided family under the Hindu law and in view of the findings of the Tribunal and the High Court on the second aspect, two points emerge clear: Firstly that the appellant constituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellant’s separate property was thrown by him in the family hotchpotch. It remains now to consider whether the income of Kathoke Lodge must be assessed in the hands of the appellant as an individual or whether it can be assessed in his status as manager of the Hindu undivided family.

19. Since the conclusion reached by the High Court that the income of Kathoke Lodge cannot be assessed in the appellant’s status as a manager of the Hindu undivided family is based wholly on the decision in AIR 1937 36 (Privy Council) and since that decision also loomed large in the arguments before us, it is necessary to examine it closely.

20. The relevant facts of that case are these: One Sicka had two sons, Moolji and Purshottom. From his first wife, Moolji had two sons, Kanji and Sewdas both of whom were married but neither of whom had a son. From his second wife, Moolji had a son Mohan Das. Kanji had a wife and a daughter while Sewdas had a wife but no issue. Moolji, Kanji and Sewdas separated from one another in about 1919. In the same year Moolji made gifts of capital to Kanji and Sewdas. Moolji continued to live jointly with his second wife and the son Mohan Das born of her. Purshottom had a wife, a son and a daughter.

21. There was another family of which the head was one Vithaldas. He had three sons, Kalyanji. Chaturbhuj and Champsi. Kalyanji had a wife, three sons and a daughter while Chaturbhuj had a wife and daughters.

22. Moolji and Purshottom. The two sons of Sicka, who had already separated from each other started in 1912 a business called Moolji Sicka and Company in partnership with Kalyanji, the son. of Vithaldas. The three partners employed their self-acquired properties for the purpose of that business. In course of time, Moolji’s sons Kanji and Sewdas, and Vithaldas’s sons Chaturbhui and Champsi were taken into the partnership with the result that by 1930 the partnership came to consist of seven partners: Moolji, his sons Kanji and Sewdas, Moolji’s brother Purshottom; and Vithaldas’s sons Kalyanji, Chaturbhuj and Champsi. The interest of Kanji and Sewdas in the firm was a gift from their father Moolji and that of Chaturbhuj a gift from his brother Kalyanji. Those of the partners whose interest in the firm was separate property were not shown to have thrown that property or the receipts there from into the common stock.

23. The Privy Council had six appeals before it which were filed by the partners of the firm except Champsi. The appeals related to the assessment year 1931-32. The controversy was whether the partners should each be assessed to super-tax upon his share of the profits as an individual or whether the six shares should each be assessed as income of a Hindu undivided family.

24. Three partners out of the six, namely, Moolji, Purshottom and Kalyanji, were each members of a Hindu undivided family. Each of these three partners had a son or sons from whom he was not divided. But the income which these partners received from the firm was their separate and self-acquired property. Since the income was not thrown in to the common stock, the Privy Council held that it could not be regarded as the income of the respective joint families.

25. The fourth partner Chaturbhuj had no son. His interest in the firm was obtained from his brother Kalyanji and therefore the income which he received from his share in the profits of the firm was a self-acquired and not ancestral property. The Privy Council observed that even if Chaturbhui were to have a son, that son would have taken by birth no interest in the income which fell to Chaturbhuj’s share and therefore the income was assessable in the hands of Chaturbhuj as his separate income and not that of the joint Hindu family.

26. According to the Privy Council, in none of the cases of these four partners was the result affected by the fact that any partner had a wife and a daughter or a wife and more than one daughter. If the mere existence of a son did not make’ a father’s self-acquired property joint family property, it was untenable that the existence of a wife or a daughter could do so.

27. In the case of the remaining two partners, Kanji and Sewdas, their interest in the firm was obtained under a gift from their father. The Privy Council assumed, without deciding the question, that such an interest was ancestral property in the hands of the sons so that if either Kanji or Sewdas had a son, the son would have taken interest in the property by birth. But neither Kanii nor Sewdas had a son. Kanji’s family consisted of himself, his wife and daughter while Sewdas’s family consisted of himself and his wife. The Privy Council held that the wife and daughter may be entitled to be maintained out of a person’s separate as well as joint family property but the mere existence of a wife or daughter did not make ancestral property joint.

28. The crucial facts in AIR 1937 36 (Privy Council) on which the ultimate decision rested are these: (i) In regard to three partners, Moolji, Purshottom and Kalyanji, though each of them was the head of his joint family which included in every case a son or sons, the income which each received from the firm was his separate and self-acquired property which was not thrown into the common stock, (ii) In regard to Chaturbhuj, though he had no son, that fact was irrelevant because his interest in the firm was his self-acquired or separate property in which the son could have taken no interest by birth, (iii) And in regard to Kanji and Sewdas, even if their interest in the firm was assumed to be ancestral property, the income which they received from the firm was their separate property as neither of them had a son who could take interest in the ancestral property by birth.

29. The appeals of the six partners before the Privy Council fall into two classes. Those of Moilji, Purshottom, Kalyanji and Chaturbhuj fall in one class while those of Kanji and Sewdas fall in another class. There is a point of distinction between the cases of the four partners falling within the first class on one hand and that of the appellant on the other But the point of distinction is not that Moolji Purshotom and Kalyanji had a son or sons and the appellant has none, because though the three partners were heads of their respective joint families which included in every case a son or sons, the income which each received from the firm was his separate and. self-acquired property which was not thrown into the common stock. The mere existence of a son or sons in a joint Hindu family does not make the father’s separate or self-acquired property joint family property. Though Chaturbhuj had no son that fact would not by itself bring his case on par with the appellant’s because Chaturbhuj’s interest in the firm was his separate property which also was not thrown in the common stock. If the mere fact that Moolji, Purshottom and Kalyanji had each a son or sons did not make their separate property joint family property, the mere existence of a wife or daughter could not bring about that result in Chaturbhuj’s case.

30. As contrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown. by him in the common stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellant’s status as the manager of the joint family. On this point the cases, of Kanji and Sewdas furnish a near parallel. They did not have to throw their .interest in the firm in the common stock because that interest was, on assumption, their ancestral property. But-even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who could take interest in the ancestral property by birth. Applying, that analogy, even if Kathoke” Lodge were. To be an ancestral asset, its income would still have to be treated as the appellant’s separate property as he has no son who could take interest in that property by birth. On this reasoning the effect of the appellant throwing Kathoke Lodge into the family hotchpotch could not be more telling than if that property was his ancestral property.

31. But then it is urged by the learned Counsel for the appellant that the Privy Council was in error in its decision on the nature of income received by Kanji and Sewdas from what was assumed to be ancestral property and therefore the decision on that aspect of the matter ought not to be followed in determining the true nature of the income received by the appellant from Kathoke Lodge. This submission is founded on the disapproval by this Court of certain observations made by the Privy Council in AIR 1937 36 (Privy Council)

32.The Privy Council, in its judgment in AIR 1937 36 (Privy Council) referred in passing to The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, and observed that:

The Bombay High’ Court on the, other hand, in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, having held that. the assessee, his wife and mother were a, Hindu undivided family, arrived too readily at the conclusion that the income was the income of the family.

The decision of the Bombay High Court, which the Privy Council had in mind is The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, There is a fundamental distinction, between The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, and AIR 1937 36 (Privy Council) which with respect the Privy Council failed to notice. In Lakshminarayan’s case AIR 1935 Born 412 the joint Hindu family consisted of a father, his wife, their son and the son’s wife. The property of the joint family was ancestral in the hands of the father and the son had acquired by birth an interest there in. (See the judgment of Rangnekar J. at p. 369 of ITR : at p. 414 of AlR) There was a subsisting undivided family during the father’s lifetime and that undivided family, did not come to an end on the father’s death. The same undivided family continued after the death of the father, with the son, his mother and his wife as its members. The effect of the father’s death was moraly this that the son, instead of the father, became the manager of the joint family. The income from ancestral property was the income of the joint family, during the father’s lifetime and after his death it continued to be the income of the self same joint family. The only change that had come about was that one link in the chain was snapped by death. But the death of a member of a joint Hindu family does not ordinarily disrupt the joint family. The Bombay High Court therefore held that the income of the ancestral property should be assessed in the son’s status as a manager of the undivided family and not in his individual capacity. When The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, came up before the Privy Council in appeal it regarded itself as bound by the interpretation put in AIR 1937 36 (Privy Council) on the expression “Hindu undivided family” as employed in Section 55 of the Indian income tax Act and observed that the facts of the case were not materially different from the facts of AIR 1937 36 (Privy Council) The Privy Council therefore answered the question by holding that

the income received by right of survivorship by the sole surviving male member of a Hindu undivided family can be taxed in the hands of such male members as his own individual income for the purposes of assessment to super-tax u/s 55 of the Indian Income Tax Act, 1922.

33. The decision of the Privy Council in AIR 1937 239 (Privy Council) and the observations made by it in AIR 1937 36 (Privy Council) regarding the view taken by the Bombay’ High Court in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, were expressly disapproved by this. Court at least in two cases. In Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, after discussing the decisions’ in AIR 1937 36 (Privy Council) end The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, this Court observed:

It may however be recalled that in AIR 1937 36 (Privy Council) income assesses to tax belonged separately to four out of six partners of the remaining two it was from an ancestral source but the fact that each such partner had a wife or daughter did not make that income from an ancestral source income of the undivided family of the partner, his wife and daughter. In The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, the property from which income accrued belonged to a Hindu undivided family and the effect of the death of the father who was a manager, was merely to invest the rights of a manager upon the son. The income from the property was and continued to remain the income of the undivided family. This distinction which had a vital bearing on the issue falling to be determined was not given effect to by the Judicial Committee in AIR 1937 239 (Privy Council)

In N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, too this Court disapproved of the Privy Council decision in AIR 1937 239 (Privy Council) and pointed out that the Privy Council had failed to notice the distinction between the facts of AIR 1937 36 (Privy Council) and those of The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, in observing that the Bombay High Court “arrived too readily at the conclusion that the income was the income of the family.

34. The appellant’s counsel is thus right in his submission that the observations made by the Privy Council in AIR 1937 36 (Privy Council) as regards the correctness of the Bombay view in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, is not good law. In fact, the decision of the Privy Council in appeal from the judgment of the Bombay High’ Court in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, has itself been disapproved, by this Court. But that does not affect the correctness of the Privy Council decision in AIR 1937 36 (Privy Council) itself as regards the nature of the income received by the six partners from the That, part of the judgment in AIR 1937 36 (Privy Council) has never been doubted and is open to no exception. For the matter of that, the error of the Privy Council’s decision in AIR 1937 239 (Privy Council) consisted in overlooking the factual distinction between that case and AIR 1937 36 (Privy Council) as a result of which the ratio of AIR 1937 36 (Privy Council) came to be wrongly, applied to The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan,

35. The ratio of AIR 1937 36 (Privy Council) would therefore apply to the instant case, the parallel being furnished by the cases of Kanji and Sevadas. But a word of explanation is necessary in the interests of clarity. The reason why the cases of Kanji and Sewdas furnish a close parallel is the very reason for which their cases were held by this Court to be distinguishable from AIR 1937 239 (Privy Council) In The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, he property was ancestral in the hands of the father, the son had acquired an interest by birth there in, there was a subsisting Hindu undivided family during the lifetime of the father and since that family did not come to an end on the death of the father, the Bombay High Court had rightly held that the income continued to be income of the joint family and was liable to super-tax as such income. In regard to Moolji, Purshottom, Kalyanji and Chaturbhuj no such question arose as their interest in the firm was their separate property which was not thrown into the common stock. As regards Kanji and Sewdas, they were divided from their father Moolji at least since 1919 in which year Moolji made gifts of capital to them. Kanji joined the firm in 1919 and Sewdas in 1930. The assessment year in reference to which the dispute arose was 1931-32. Thus the gifted property of which the income was to be charged to super-tax was not the ancestral or joint family property of a subsisting Hindu undivided family consisting of Moolji, .Kanji and Sewdas. Were it so, the case would have fallen within the ratio of the judgment of the Bombay High Court in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, As in the cases of Kanji and Sewdas, so here, the property of which the income is to be brought to tax was not the joint family property of a subsisting Hindu undivided family which had devolved on a sole surviving coparcener. In that latte class of cases the view has been consistently taken, except for the decision of the Privy Council in AIR 1937 239 (Privy Council) that property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener when possesses rights which an owner o property may possess. The decision of the Privy Council in Attorney General of Ceylon v. A.R. Arunachalam Chettiar (1958) 34 ITR Supp 4. the decisions of this Court in the cases of Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, and N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, and the decision o the Bombay High Court in The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, fall within that class and are not to be confused with cases like the on one hand, which fall within the rule in AIR 1937 36 (Privy Council)

36. In Arunachalam Chettiar case (1958) 34 ITR Supp 42 a father and son constituted a join Hindu family along with females including the widow of a pre-deceased son. On the death of the son in 1934 the father became the sole surviving coparcener. By a Ceylonese Ordinance, property passing on the death of a member of a Hindu undivided family was exempt from payment of Estate Duty. On the death of the father a question arose whether, in view of the ordinance, his estate was liable to Estate Duty. The Privy Council held that the father was at his death a member of a Hindu undivided family, the same undivided family of which his son when alive was a member, and of which the continuity was preserved after the father’s death by adoptions made by the widows who were members of the family. In Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, there was a subsisting Hindu undivided family between a father, his wife, two unmarried daughters and an adopted son In respect of the income from dealings of the family, the father was assessed during his lifetime in the status of a manager of the Hindu undivided family. After the death of the father the adopted son contended that he should be assessed as an individual. This contention was rejected uniformly at all stages. After examining various authorities including AIR 1937 36 (Privy Council) The Commissioner of Income Tax Vs. Gomedalli Lakshminarayan, and Arunachalam’s case (1958) 34 ITR Supp 42 this Court held that property which belongs to a Hindu undivided family does not cease to belong to it because of the temporary reduction of the coparcenary unit to a single individual, who possesses rights which an owner of property may possess. A similar view was taken by this Court in N.V. Narendranath Vs. Commissioner of Wealth-tax, Andhra Pradesh, which raised a question under the Wealth Tax Act. Narendranath’s family consisted, at the material time, of his wife and two minor daughters. Since the wealth returned consisted of ancestral property received by him on partition with his father and brothers, it was held by this Court that his status was that of a Hindu undivided family and not that of an individual.

37. While dealing with the question whether the assets which came to Narendranath’s share on partition ceased to bear the character, of joint family properties and became his individual property, this Court observed:

In this connection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee.

After referring to AIR 1937 36 (Privy Council) and notice the observation of the Judicial Committee that income from an ancestral source does not necessarily become the income of the undivided family consisting of a man, his wife and daughter, this Court held:

Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case is whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener.

In the result the Court concluded that the case fell within the rule in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore,

38. There are thus two classes of cases, each requiring a different approach. In cases falling within the rule in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, the question to ask is whether property which belonged to a subsisting undivided family ceases to have that character merely because the family is represented by a sole surviving coparcener who possesses rights which an owner of property may possess. For the matter of that, the same question has to be asked in cases where the family, for the time being, consists of widows of deceased coparceners as in Commr. of income tax, Madras v. Rm. Ar. Ar. Veerappa Chettiar (1970) 6 ITR 467 so long as the property which was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided amongst them. In cases falling within the rule in AIR 1937 36 (Privy Council) the Question to ask is whether property which did not belong to a subsisting undivided family has truly acquired the character of joint family property in the hands of the assessee. In thus class of cases, the composition of the family is a matter of great relevance for, though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellant’s case falls within the rule in AIR 1937 36 (Privy Council) since the property, before it came into his hands, was not impressed with the character of joint family property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife and daughter.

39. Once it is realised that there are two distinct classes of cases which require a different approach, there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes of cases. In AIR 1937 36 (Privy Council) the Privy Council observed:

In an extra legal sense, and even for some purposes of legal theory ancestral property may perhaps be described and usefully described as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a man’s property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his-death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income there from as his income, it is chargeable to income tax as his, i.e., as the income of an individual. In their Lordships’ view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters.

On the other hand, in Arunachalam’s. case (1958) 34 ITR Supp 42 which falls within the rule in Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, the Privy Council observed:

But though it may be correct to speak of him (the sole surviving coparcener) as the ‘owner’ yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property…it would not appear reasonable to impart to the legislature the intention discriminate, so long as the fan itself it self subsists, between property in the hands of a single, coparcener and that in the hands of two or more coparceners.

Holding that it was an irrelevant consideration that a single coparcener could alienate the property in a manner not open to one of several coparceners, the Privy Council, said:

Let it be assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it and he does not alienate it that is what is remains. The fatal flaw in the argument of the appellant appeared to be that having labelled the surviving coparcener ‘owner’ he then attributed to his ownership such a congeries of rights that the property could no longer be called ‘joint family property’. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be rained by the use of the word ‘owner’ in this connexion. It is only by analysing the nature of the rights of the members of the undivided family; both those in being and those yet to be born, that it can be determined whether the family property can properly be described as ‘joint property’ of the undivided family.

40. These two sets of tests both evolved by the Privy Council govern two distinct sets of cases and there is no inconsistency between the two tests. The test evolved in AIR 1937 36 (Privy Council) or, Gowli Buddanna Vs. Commissioner of Income Tax, Mysore, Bangalore, has to be applied to the instant case.

41. Kathoke Lodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpotch. The appellant has no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of. Kathoke Lodge while it was his separate property Their rights in that property are not enlarged for the reason that the property was thrown into the family hotchpotch. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for. any purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains that it was even after the property as thrown into the family hotchpotch the. right of maintenance, neither more, nor less. Thus, Kathoke Lodge may be usefully described as. the property of the family after it was thrown into the common stock but it does not. follow that in the eye of Hindu Law is belongs to the family, as it would have, if the property were to devolve on the appellant as a sole surviving coparcener.

42. The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity” or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpotch as he finds it. A son born, begotten of adopted after the alienation has no right to challenge! the alienation.

43. Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income there from as his income even after the property was thrown into the family hotchpotch, the income would be chargeable to income-take as his individual income and not that of the family.

44. For these reasons, we dismiss the appeal but there will be no order as to costs.


(1976) AIR(SC) 109 : (1976) CurTR 140 : (1976) HLR 144 : (1975) 101 ITR 776 : (1976) 3 SCC 142 : (1976) SCC(Tax) 252 : (1976) 2 SCR 164 : (1976) 23 TaxAffairs 10 : (1975) 41 Taxation 33 : (1976) TaxLR 108 : (1976) UPTC 60