1

When does a criminal appeal not abate on the death of an accused ?

Section 394 Cr.P.C. reads as follows :

“394. Abatement of appeals. – (1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant :

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation – In this section, “near relative” means a parent, spouse, lineal descendant, brother or sister.

It is to be noted that Section 394 Cr.P.C. corresponds to Section 431 of the Code of Criminal Procedure, 1898 (in short the ‘Old Code’).

In Bondada Gajapathi Rao vs. State of Andhra Pradesh (AIR 1964 SC 1645) three-judge Bench of this Court was dealing with the situation as to whether appeal by special leave against sentence of imprisonment abates on the death of the accused/appellant. Three separate judgments were rendered by the Hon’ble Judges. The principles as can be culled out from the said decision are as follows: (though rendered in the context of the Old Code are equally applicable under the Cr.P.C.).

(1) Section 431 of the Old Code does not apply proprio vigore to a case of appeal filed with the special leave of the Supreme Court granted under Article 136 of the Constitution of India, 1950 (in short the ‘Constitution’) when the appellant-accused dies pending the appeal.

(2) But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Old Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance.

(3) The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.

(4) But where the sentence is not one of fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused.

(5) In fact that the accused was a government servant and was under suspension during the trial and the fact that if the conviction and sentence were set aside, his estate would be entitled to receive full pay for the period of suspension, cannot be said to affect his estate, because, the setting aside of the sentence would not automatically entitle the legal representatives to the salary. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it appeal against imprisonment is allowed to be continued by the legal representatives after the death of the appellant and for such an extension there is no warrant. Reference was made to Pranab Kumar Mitra vs. State of West Bengal and Anr. (AIR 1959 SC 144).

Again in Harnam Singh vs. The State of Himachal Pradesh (1975) 3 SCC 343) the question was examined, and above principles were re-iterated. It was, inter alia, held as follows :

“6. These contentions require an examination of Section 431 of the Code which reads thus :

“Every appeal under Section 411A, sub-section (2), or Section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.

The appeal  filed by special leave granted under Article 136 of the Constitution and is neither under Section 411A(2) nor under Section 417 nor under any other provision of Chapter XXXI of the Code. Plainly therefore, Section 431 has no application and the question whether the appeal abated on the death of the appellant is not governed strictly by the terms of that Section But, in the interest of uniformity, there is no valid reason for applying to appeals under Article 136 a set of rules different from those which govern appeals under the Code in the matter of abatement. It is, therefore, necessary to find the true meaning and scope of the provision contained in Section 431.

Chapter XXXI of the Code of 1898, called “Of Appeals” contains provisions governing appeals. The chapter opens with Section 404 which provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force and ends with Section 431 which deals with abatement of appeals. Section 411A(2) provides for appeals to the High Court from orders of acquittal passed by the High Court in the exercise of its original criminal jurisdiction. Section 417 deals with appeals to the High Court from original or appellate orders of acquittal passed by courts other than a High Court. By Section 431, appeals against acquittal filed under Section 411A(2) or Section 417 finally abate on the death of the accused. Dead persons are beyond the processes of human tribunal and recognizing this, the first limb of Section 431 provides that appeals against acquittals finally abate on the death of the accused. Where a respondent who has been acquitted by the lower court dies, there is no one to answer the charge of criminality, no one to defend the appeal and no one to receive the sentence. It is of the essence of criminal trials that excepting cases like the release of offenders on probation, the sentence must follow upon a conviction. Section 258(2), Section 306(2) and Section 309(2) of the Code provide, to the extent material, that where the Magistrate or the Sessions Judge finds the accused guilty and convicts him he shall, unless he proceeds in accordance with the provisions of Section 562, pass sentence on the accused according to law.

Every other appeal under Chapter XXXI, except an appeal from a sentence of fine, finally abates on the death of the appellant. By “every other appeal” is meant an appeal other than one against an order of acquittal, that is to say, an appeal against an order of conviction. Every appeal against conviction therefore abates on the death of the accused except an appeal from a sentence of fine. An appeal from a sentence of fine is excepted from the all pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. By Section 70 of the Penal Code the fine can be levied at any time within six years after the passing of the sentence and if the offender has been sentenced for a longer period than six years, then at any time previous to the expiration of that period; “and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts”. The fact that the offender has served the sentence in default of payment of fine is not a complete answer to the right of the Government to realize the fine because under the proviso to Section 386(1)(b) of the Code the court can, for special reasons to be recorded in writing issue a warrant for realizing the fine even if the offender has undergone the whole of the imprisonment in default of payment of fine. The sentence of fine remains outstanding though the right to recover the fine is circumscribed by a sort of a period of limitation prescribed by Section 70, Penal Code.

The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word “only”. To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word “only” which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine”. The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence. 11. It is difficult to discern any principle behind the contrary view. The reason of the rule contained in the exception is that a sentence of fine operates directly against the estate of the deceased and therefore the legal representatives are entitled to clear the estate from that liability. Whether or not the sentence of fine is combined with any other sentence can make no difference to the application of that principle.”


 




Instigating any person- What is instigation ? Explain

To constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by “goading” or “urging forward”.

Section 306 of the IPC reads as under :

“306. abetment of suicide

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

From a bare reading of the provision, it is clear that to constitute an offence under Section 306, IPC, the prosecution has to establish: (i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 would stand only if there is an “abetment” for the commission of the crime. The parameters of “abetment” have been stated in Section 107 of the IPC, which defines abetment of a thing as follows :

“107. abetment of a thing

A person abets the doing of a thing, who-

First- Instigates any person to do that thing; or

Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1- A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”

As per the Section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC.

Therefore, the question for consideration is whether the allegations levelled against the appellant in the FIR and the material collected during the course of investigations, would attract any one of the ingredients of Section 107, IPC?

As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618. Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

Thus, to constitute “instigation”, a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by “goading” or “urging forward”. The dictionary meaning of the word “goad” is “a thing that stimulates someone into action: provoke to action or reaction” (See: Concise Oxford English Dictionary); “to keep irritating or annoying somebody until he reacts” (See: Oxford Advanced Learner’s Dictionary – 7th Edition). Similarly, “urge” means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to “goad” or “urge forward” the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar’s case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.


Refer: Chitresh Kumar Chopra (SC) -AIR 2010 SC 1446 : (2009) 13 SCR 230 : (2009) 16 SCC 605 : JT 2009 (10) SC 698 : (2009) 11 SCALE 24




Amalendu Pal alias Jhantu Vs State of West Bengal-11/11/2009

Before holding an accused guilty of an offence under Section 306, IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life.

AIR 2010 SC 512 : (2009) 15 SCR 836 : (2010) 1 SCC 707 : JT 2009 (14) SC 195 : (2009) 13 SCALE 663

SUPREME COURT OF INDIA

Amalendu Pal alias Jhantu  Versus  State of West Bengal

(Before : Mukundakam Sharma And R. M. Lodha, JJ.)

Criminal Appeal Nos. 2091 of 2009, (arising out of S.L.P. (Cri) No. 9483 of 2008), Decided on : 11-11-2009.

Penal Code, 1860—Section 306 read with Section 107—abetment of suicide—In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to commission of suicide—Act of abetment by person charged with said offence must be proved and established by prosecution before he could be convicted under Section 306—Merely on allegation of harassment without there being any positive action proximate to time of occurrence on the part of accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. Error! No text of specified style in document. vs. Error! No text of specified style in document.

Counsel for the Parties:

Pradip K. Ghosh, Sr. Advocate, Ms. Soumya Chakraborty, Dharam Bir Raj Vohra, for the Appellant

Tara Chandra Sharma, Ms. Neelam Sharma, Ajay Sharma, for the Respondent.

Judgment

Dr. MUKUNDAKAM SHARMA, J—Leave granted.

2. In the present appeal, the appellant has challenged the legality of the judgment and order dated 24.07.2008 passed by the Calcutta High Court. The appellant is aggrieved by the aforesaid judgment and order as by the said judgment, the High Court has upheld the order of conviction and sentence passed by the trial Court whereby the appellant was sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 498-A of the Indian Penal Code (in short “the IPC”) and for eight years together with a fine of ` 1000/- for the offence punishable under Section 306 of the IPC with a default stipulation. The sentences awarded to the appellant were directed to run concurrently.

3. The facts necessary for the disposal of the present appeal and as presented by the prosecution may be set out at this stage. The appellant-Amalendu Pal @ Jhantu and the deceased-Dipika were married in the year 1977. Out of the said wedlock, two sons were born. The appellant was residing in Calcutta in connection with his work and earning. During his stay in Calcutta, the appellant developed an extra-marital relationship with one Jyotsna @ Anita. The relationship between the appellant and said Anita became known to the deceased and the deceased objected to such illegal relationship. The appellant sought permission of the deceased to marry said Anita, which was also refused by the deceased. Consequently, the appellant started torturing the deceased both physically and mentally.

4. After a few days, the appellant again tried to take the consent of the deceased for marrying said Anita and on refusal of the deceased, physical and mental torture was perpetrated on the deceased. It was alleged that the deceased was provoked by the appellant to end her life by consuming poison or by hanging herself. It was also the case that three months prior to the date of death of the deceased, the appellant brought said Anita to his house. Anita was sporting a vermillion mark on her forehead and was wearing conch bangles on her wrist to indicate that she is married to the accused. It was also stated that in the evening prior to the date of the death of the deceased, the deceased was assaulted by Anita, the appellant and his family members. On the morning of 27.09.1991, the deceased was found hanging from the ceiling of the house of the appellant.

5. Ashoka Kumar Maity (PW-7) intimated Supriyo Das, brother of the deceased (PW-2) about the death of the deceased. Upon receipt of the aforesaid information, PW-2 arrived at the house of the appellant where he learnt about the entire incident from the villagers who had assembled at the scene of occurrence. Thereafter, PW-2 proceeded to the Contai Police Station and got a complaint registered. On the strength of the complaint, First Information Report (in short “the FIR”) under Secs. 498-A and 306 IPC was lodged on 28.09.1991 at 20.30 hrs.

6. After completion of the investigation, the police filed a charge sheet against the appellant and seven other accused persons. On the basis of the aforesaid charge sheet, the trial Court framed charges under Section 498A read with Section 34 IPC and Section 306 read with Section 34 IPC against the appellant and seven other accused persons to which all of them pleaded not guilty and claimed to be tried.

7. During the trial, a number of prosecution witnesses were examined. The defence produced two witnesses in support of its case. On conclusion of the trial, the trial Court by its judgment and order dated 25.11.1997 convicted the appellant under Sections 498A and 306 IPC and sentenced the appellant to undergo rigorous imprisonment for three years and for eight years together with a fine of ` 1000/- respectively. All the other seven accused persons were acquitted of the above stated charges framed against them.

8. Aggrieved by the aforesaid order of conviction and sentence passed by the trial Court, the appellant herein preferred an appeal before the High Court. The State, however, did not prefer any appeal before the High Court against the order of acquittal recorded by the trial Court with regard to the seven accused persons who were also charged with the appellant for the aforesaid offences. The High Court entertained the said appeal and heard the counsel appearing for the parties. On conclusion of the arguments, the High Court passed a judgment and order upholding the order of conviction and affirming the sentence awarded to the appellant by the trial Court. The said order of conviction upheld by the High Court is under challenge in this appeal.

9. Mr. Pradip K. Ghosh, learned senior counsel appearing on behalf of the appellant, very painstakingly argued the appeal before us. He submitted that in the absence of cogent and reliable evidence to establish abetment of suicide by the appellant, the conviction of the appellant under Section 306 could not be sustained and was bad in law. He further submitted that the High Court erred in convicting the appellant under Section 306 IPC as the High Court failed to properly appreciate the evidence on record. He further strenuously submitted before us that there was no evidence of infliction of torture upon the deceased by the appellant immediately prior to the incident of suicide by the deceased and as such it could not be said that the appellant had incited the deceased to commit suicide.

10. On the other hand, the learned counsel appearing on behalf of the respondent State supported the judgments of the courts below.

11. We have carefully considered the submissions made before us by the learned counsel appearing for the parties and perused the evidence available on record before us. On a close and careful scrutiny of the oral evidence of the prosecution witnesses namely, PW-2, PW-4, PW-6, PW-7 and PW-9, we find that the appellant and the deceased had got married in the year 1977 and they had enjoyed a happy married life for 5-6 years from the date of their marriage. The aforesaid prosecution witnesses have also categorically stated in their testimony before the trial Court that the problems between the appellant and the deceased cropped up and their matrimonial life got strained only after the appellant developed an extra-marital relationship with one Jyotsna @ Anita during his stay in Calcutta and the said liaison between the appellant and the said Anita became known to the deceased. It was only when the appellant was denied permission by the deceased to marry said Anita that the appellant started torturing the deceased both mentally as well as physically.

12. At the outset, we intend to address the issue regarding the applicability of Section 306 IPC in the facts of the present case. Section 306 deals with abetment of suicide and Section 107 deals with abetment of a thing. They read as follows :

“306. abetment of suicide. – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

* * *

107. abetment of a thing. – A person abets the doing of a thing, who –

First. – Instigates any person to do that thing; or

Secondly. – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing;

or

Thirdly. – Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. – A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

* * *

Explanation 2. – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

13. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh vs. State of Punjab (2004) 13 SCC 129 as follows :

“12. abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306, IPC.

13. In State of W.B. vs. Orilal Jaiswal (supra), this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

14. Further in the case of Kishori Lal vs. State of M.P. (2007) 10 SCC 797, this Court gave a clear exposition of Section 107, IPC when it observed as follows in para 6 :

“6. Section 107, IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. “Abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.”

(See also Kishangiri Mangalgiri Swami vs. State of Gujarat (2009) 4 SCC 52).

15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306, IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306, IPC is not sustainable.

16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306, IPC.

17. The expression ‘abetment’ has been defined under Section 107, IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107, IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence.

18. Learned counsel for the respondent-State, however, clearly stated before us that it would be a case where clause ‘thirdly’ of Section 107, IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107, IPC.

19. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows :

**********

“Explanation 2. – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

20. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly along with Explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306, IPC.

21. We have already considered a number of decisions of this Court on the aforesaid aspect and having done so we revert back to the factual position of the present case. The prosecution has specifically alleged that on 26.09.1991, the day prior to the date of commission of suicide by the deceased, the deceased was tortured by the appellant, Anita and the other accused persons present in the house of the appellant, as a result of which the deceased committed suicide on the next day. On a perusal of the record of the present case, we find that both the trial Court as well as the High Court have disbelieved the said incident as, according to them, the statement of the witnesses to establish the said fact are not reliable and trustworthy. Those findings recorded by the trial Court and the High Court have not been challenged before us. It is not the case of the prosecution that the case in hand would fall within the ambit of clause firstly of Explanation 1 to Section 107, IPC.

22. The prosecution, however, heavily relies on the clause thirdly of Section 107, IPC because, according to the prosecution, the appellant by way of harassment and torturing the deceased at various point of time and by marrying said Anita for the second time without the permission and against the will of the deceased, intentionally aided the commission of suicide by the deceased.

23. In support of the aforesaid contention, learned counsel for the prosecution relied upon Explanation 2 to Section 107. He submitted that prior to the commission of suicide by the deceased, the appellant had, by bringing said Anita as his second wife to his house facilitated the commission of suicide by the deceased and thus, the appellant intentionally aided the commission of suicide by the deceased. The evidence on record, however, does not support such a case. It is pertinent to note that the appellant had brought Anita to stay with him at his house three months prior to the date of the death of the deceased. If the deceased had been so perturbed by the act of the appellant in marrying the said Anita and in bringing her to his house that she felt impelled to commit suicide then she could have done so on the very day when Anita had come to stay with the appellant in his house as naturally at that point of time her annoyance or dismay with life would have been at its pinnacle. From the period of three months which elapsed in between the incidents of the appellant bringing Anita to his house and the deceased committing suicide, it can be clearly inferred that it was not the act of the appellant which instigated or provoked the deceased to commit suicide.

24. The perpetration of physical torture on the deceased on the day prior to the date of the incident which led the deceased to commit suicide is the prosecution case all throughout. It is nowhere the case of the prosecution that the appellant had played any active role either in instigating or aiding the commission of suicide by the deceased for denying to accept Anita as the wife of the appellant. Anita, the second wife of the appellant was brought by the appellant to his house about three months prior to the date of the incident of suicide by the deceased and, therefore, bringing of the second wife to the house by the appellant cannot be said to have either incited or facilitated the commission of suicide by the deceased. It is also not the case of the prosecution as disclosed from the evidence led which we have scrutinised very minutely. The aforesaid contention, in our considered opinion, is far-fetched and is not established by the facts of the present case. After carefully assessing the evidence on record we find that there is no direct evidence to show that the appellant had by his acts instigated or provoked the deceased to commit suicide and has not done any act which could be said to have facilitated the commission of suicide by the deceased.

25. We now intend to proceed to find out whether a case under Section 498-A, IPC is made out against the appellant or not. In the case of Girdhar Shankar Tawade vs. State of Maharashtra (2002) 5 SCC 177, this Court gave a succinct enumeration of the object and ingredients of Section 498-A, IPC, when it observed as follows in paras 3 and 17 :

“3. The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures : whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide, or (ii) to cause grave injury, or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury : whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.

**********

17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon – the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: Even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl’s in-laws’ place and requests the husband to treat her well – at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day.”

26. From the evidence on record available before us, we find that the prosecution witnesses have in their testimonies stated that the deceased was tortured both physically and mentally by the appellant for the first time after his marriage with the deceased when he was refused permission for marriage with said Anita by the deceased. On having been refused the permission for his second marriage with Anita, the appellant again, after a few days requested the deceased to accede to his request for marriage with Anita, which request was again refused by the deceased. Consequent to the said position and due to the adamant position taken by the deceased, cruelty was meted out to her by the accused which fact is sufficiently proved from the evidence on record. Therefore, we find no reason to take a different view than what has been taken by the trial Court and the High Court as far as Section 498-A, IPC is concerned.

27. Accordingly, the present appeal is hereby partly allowed. We hereby set aside the conviction of the appellant under Section 306 but uphold the conviction of the appellant under Section 498-A. As the appellant is on bail, his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities within 15 days from today to serve out the remaining sentence under Section 498-A, failing which the concerned authority shall proceed against the appellant in accordance with law.




What is failure of justice in reference with criminal cases ?

A conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

 

(2011) 1 SCALE 114 : (2011) 2 SCC 47 : (2011) 1 SCR 110 : AIR 2011 SC 686 : JT 2011 (1) SC 89 : (2011) 1 SCC (Cri) 601

SUPREME COURT OF INDIA

Narwinder Singh

Versus

State of Punjab

(Before : B. Sudershan Reddy and S. S. Nijjar, JJ.)

Criminal Appeal No. 590 of 2005 : Decided On: 05-01-2011

Penal Code, 1860—Section 306—abetment of suicide—Conviction and sentence—Ill-treatment of deceased-wife escalated after murder of her father by extremist—Husband started demanding that deceased should claim one of the two houses left behind by her father—High Court concluded that wife committed suicide due to harassment of appellant—High Court was fully justified in convicting appellant under Section 306 IPC—Appeal dismissed.

Counsel for the Parties:

V.C. Mahajan, Sr. Adv., and Sarwa Mitter, Adv. for Mitter and Mitter Co.

Kuldip Singh, R.K. Pandey, H.S. Sandhu and Ajay Pal, Advs.

JUDGMENT

Surinder Singh Nijjar, J—This appeal has been filed against the judgment and order dated 6th October, 2004 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 406-SB of 1992 wherein the Appellant has been convicted under Section 306 Indian Penal Code (‘IPC’ for short) and sentenced to rigorous imprisonment for two years and to pay a fine of ` 1,000/-and in default of payment thereof to undergo further rigorous imprisonment for one month.

2. We may briefly notice the facts. Sukhjit Kaur, alias Rani was married to Narwinder Singh of Village Mehdipur on 30th September, 1984. A male child had first been born to the couple and at the time of the incident, the wife was pregnant a second time. According to the in-laws of the Appellant, they had given sufficient dowry at the marriage of their daughter to the Appellant. It appears that the Appellant and his parents Daljit Singh and Joginder Kaur remained dissatisfied. About two months after the marriage, Sukhjit Kaur informed her mother Gursharan Kaur that her in-laws were asking her to bring valuable articles such as a scooter from her parents. It is also the case of the prosecution that an additional demand of ` 5,000/- was made by Narwinder Singh, in the year 1986, which amount too was paid by his mother-in-law Gursharan Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder Singh, father of Sukhjit Kaur was murdered by extremists. After the death of Bhai Davinder Singh, there was sea-change in the attitude of the Appellant and her parents, and they started maltreating her. About six months prior to the fatal incident, there had been a quarrel between the husband and wife, which was settled with the intervention of several relatives including Kulbir Singh and Onkar Singh, PW-5. About ten days prior to the incident, Sukhjit Kaur went to Onkar Singh’s house in Village Nabipur and informed him that the accused were demanding ` 50,000/-. They were saying that her late father had left enough money for the family and that she should get her share. Onkar Singh told her that he would inform Gursharan Kaur, who was then living in England about the demand and seek instructions from her. Unfortunately, on 30th May, 1988, Onkar Singh came to know about the death of his niece Sukhjit Kaur (hereinafter referred to as ‘the deceased’). He Alongwith Gurjit Kaur, sister of the deceased, Hanwant Singh, Darshan Singh and Mohan Singh went to village Mehdipur and saw the dead body of Sukhjit Kaur alias Rani lying in the house. Blood was oozing from her nose. Onkar Singh, thereafter, lodged a FIR naming the accused as having been responsible for her death. Initially, a case under Section 306 IPC was registered against the accused but, a charge under Section 304B of the IPC was ultimately framed by the Court.

3. In support of its case, the prosecution relied inter-alia on the evidence of Kulbir Singh (PW-2) and Onkar Singh (PW-5), both uncles of the deceased, Gursharan Kaur (PW-6) the mother and Gurjit Kaur (PW-7). The sister of Sukhjit Kaur stated that the demands made by the accused had been satisfied off and on and that the behaviour of the accused had compelled Sukhjit Kaur to commit suicide. The prosecution also relied upon the evidence of Dr. H.S. Bajwa (PW-3), who on the basis of the report of the Forensic Science Laboratory opined that she had died of Organo Phosphorus poisoning. A large number of documents including some letters allegedly written by the deceased to her family members and by them to her were also produced in evidence.

4. The prosecution case was then put to the accused and their statements recorded under Section 313 of Code of Criminal Procedure. They denied the allegations levelled against them and pleaded that as a matter of fact Sukhjit Kaur had fallen ill as she was pregnant and depressed after the murder of her father (to whom she had been deeply attached) and that she had been taken to Oberoi Hospital by her father-in-law on seeing her condition deteriorating, and that despite all efforts on the part of the accused to save her, she had died. The accused also produced three witnesses in defence, namely Hardev Singh (DW-1), Jarnail Singh (DW-2) and Pritam Singh (DW-3), as also certain letters written inter-se the parties.

5. The trial court held that from the evidence of Kulbir Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur (PWs) and the letter Ex.P.1, it appeared that demands for dowry had been made by the accused from Sukhjit Kaur time and again and that she had been harassed and thus compelled to commit suicide. It further held that the ingredients of Section 304B IPC were satisfied on the presumptions raised under Section 113B of the Evidence Act with regard to dowry deaths and that the letters Exs. PA, PB, PC, PD and PE did not in any way show that the relation between the parties had been cordial. The trial court accordingly convicted the accused for an offence punishable under Section 304B IPC, and sentenced them to undergo rigorous imprisonment for seven years and to fine and in default of payment of fine to undergo further rigorous imprisonment for a specified period.

6. Aggrieved, against the aforesaid conviction and sentence, the Appellant and his parents filed an appeal before the Punjab and Haryana High Court. Upon reconsideration of the entire evidence, the High Court concluded that the deceased had not committed suicide on account of demands for dowry but due to harassment caused by the husband, in particular. The appeal was, therefore, partly allowed. The High Court acquitted the parents of the Appellant. However, the conviction of the Appellant was converted from one under Section 304B IPC to Section 306 IPC. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of ` 1,000/- and in default of payment, he has to undergo further rigorous imprisonment for one month. The aforesaid judgment is challenged in the present appeal.

7. Mr. Vikram Mahajan, learned senior counsel appearing for the Appellant submitted that there is no distinction between the case of the Appellant and that of his parents, who have been acquitted. The High Court having acquitted the parents, the Appellant also could not have been convicted. He further submitted that this was a plain and simple case of suicide due to the mental state of the deceased. He submits that since the murder of her father by extremists, the deceased had been under acute depression and she, therefore, had suicidal tendencies. Learned senior counsel further submitted that there is no evidence on the record to show that the victim had died an unnatural death. Lastly, it is submitted that the High Court committed a grave error in convicting the Appellant under Section 306 IPC. It is submitted by Mr. Mahajan that the nature of offence under Section 304B IPC is distinct and different from the offence under Section 306 IPC. The basic constituent of an offence under Section 304B IPC is homicidal death (dowry death) and those of Section 306 IPC is suicidal death and abetment thereof. Furthermore, according to the learned senior counsel, the nature of evidence required under both the categories of offences are totally different. The Appellant was never charged under Section 306 IPC, nor is there any evidence on the record to sustain the conviction under Section 306 IPC.

8. Mr. Kuldip Singh, learned Counsel, appearing for the State of Punjab submits that the Appellant is in fact fortunate being convicted only under Section 306 IPC. There is overwhelming evidence to prove that the Appellant and his parents had been harassing the deceased to bring more dowry. He submits that there is evidence that the wife had been subjected to harassment on account of dowry immediately after the marriage. The death occurred within seven years of marriage, therefore, by virtue of Section 113B of the Evidence Act, the trial court had rightly presumed that the Appellant and his parents had committed the offence under Section 304B IPC.

9. We have considered the submissions made by the learned Counsel. The High Court, upon close scrutiny of the evidence, concluded that there was evidence of a quarrel between the husband and wife about six months prior to the occurrence, which had been settled with the intervention of the eldest. There were complaints that the deceased did not know how to do any household work. The in-laws had also complained that she was not well mannered. Their ill-treatment of the wife escalated after the murder of her father by extremists. It was at that stage the husband had started demanding that the deceased should claim one of the two houses left behind by her father in Village Nabipur. About ten months prior to her death, she was actually sent by the Appellants to demand possession of the house. The Appellant and his parents were suspecting that the sister of the deceased, Gurjit Kaur had taken everything after the death of the father of the deceased. The Appellant and his parents were insisting that the house be legally conveyed in the name of the deceased. However, mother of the deceased left for England after the first death anniversary of her husband in May, 1988. The High Court, on examination of the entire evidence, concluded that the deceased had not committed suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The deceased had committed suicide by drinking Organo Phosphorus poison. In view of the findings recorded, the High Court converted the conviction of the Appellant from one under Section 304B IPC to one under Section 306 IPC.

10. We do not find much substance in the submission of Mr. Mahajan that the High Court could not have convicted the Appellant under Section 306 IPC as the charge had been framed under Section 304B IPC. On scrutiny of the entire evidence, the High Court has come to the conclusion that the deceased had not committed suicide on account of demands for dowry but due to harassment caused by her husband, in particular. The harassment by the Appellant had compounded the acute depression from which the deceased was suffering after the murder of her father. There was no evidence of any demand for dowry soon before the death, and there was no demand whatsoever that the house in question should be transferred to either of the accused. Under Section 304B IPC, the cruelty or harassment by her husband or any relative of her husband “for, or in connection with, any demand for dowry” is a prelude to the suicidal death of the wife. Such suicidal death is defined as ‘dowry death’. The High Court has recorded a firm finding that the harassment was not for or in connection with any demands for dowry. But, at the same time, the High Court has concluded that the wife committed suicide due to the harassment of the Appellant, in particular. In such circumstances, the High Court was, therefore, fully justified in convicting the Appellant under Section 306 IPC.

11. We also do not find any substance in the submission of Mr. Mahajan that the Appellant could not have been convicted under Section 306 IPC in the absence of a charge being framed against him under the aforesaid section. The learned Counsel had relied upon the judgments of this Court in the case of Sangaraboina Sreenu v. State of A.P., (1997) 5 SCC 348 and Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577. We are of the opinion that the aforesaid judgments are of no assistance to the Appellant, in the facts and circumstances of the present case. We may, however, notice the observations made therein. In the case of Sangaraboina Sreenu (supra), it was observed as follows:

This appeal must succeed for the simple reason that having acquitted the Appellant of the charge under Section 302 IPC –which was the only charge framed against him — the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 Code of Criminal Procedure entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Code of Criminal Procedure for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof.

In the present case, both the trial court and the High Court have held that the deceased had committed suicide. Therefore, the nature of the offence under Sections 304B and 306 IPC are not distinct and different categories.

Again in the case of Shamnsaheb M. Multtani (supra), this Court observed:

18. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

19. A two-Judge Bench of this Court (K. Jayachandra Reddy and G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab that if a prosecution failed to establish the offence under Section 302 IPC, which alone was included in the charge, but if the offence under Section 306 IPC was made out in the evidence it is permissible for the court to convict the accused of the latter offence.

20. But without reference to the above decision, another two-Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar, JJ.) has held in Sangaraboina Sreenu v. State of A.P. that it is impermissible to do so. The rationale advanced by the Bench for the above position is this:(SCC p.348, para 2) “It is true that Section 222 Code of Criminal Procedure entitles a court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Code of Criminal Procedure for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death, those of Section 306 IPC are suicidal death and abetment thereof.”

21. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

464. (1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(Emphasis supplied)

22. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

23. We often hear about “failure of justice” and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression “failure of justice” would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

We are of the considered opinion that the aforesaid observations do not apply to the facts of the present case. The High Court upon meticulous scrutiny of the entire evidence on record rightly concluded that there was no evidence to indicate the commission of offence under Section 304B IPC. It was also observed that the deceased had committed suicide due to harassment meted out to her by the Appellant but there was no evidence on record to suggest that such harassment or cruelty was made in connection to any dowry demands. Thus, cruelty or harassment sans any dowry demands which drives the wife to commit suicide attracts the offence of ‘abetment of suicide’ under Section 306 IPC and not Section 304B IPC which defines the offence and punishment for ‘dowry death’.

12. It is a settled proposition of law that mere omission or defect in framing charge would not disable the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221(1) and (2) of the Code of Criminal Procedure In the facts of the present case, the High Court very appropriately converted the conviction under Section 304B to one under Section 306 IPC.

13. In our opinion, there has been no failure of justice in the conviction of the Appellant under Section 306 IPC by the High Court, even though the specific charge had not been framed.

14. Therefore, we see no reason to interfere with the judgment of the High Court. The appeal is accordingly dismissed.




If a party in Trial or appeal or revision dies and right to sue survives the L.Rs must be substituted otherwise suit shall be abated-SC

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : D. A. Desai, J; Baharul Islam, J )

BIBI RAHMANI KHATOON AND OTHERS — Appellant

Vs.

HARKOO GOPE AND OTHERS — Respondent

Civil Appeal No. 1359 of 1981.

Decided on : 22-04-1981

Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 – Section 4
Civil Procedure Code, 1908 (CPC) – Order 22 Rule 4

Cases Referred

Ram Adhar Singh Vs. Ramroop Singh and Others, AIR 1968 SC 714 : (1968) 2 SCR 95
Satyanarayan Prasad Sah and Others Vs. State of Bihar and Another, AIR 1980 SC 2051 : (1980) 12 UJ 799
Counsel for Appearing Parties

B.P. Singh, for the Appellant; S. K. Mehta, for the Respondent

JUDGMENT

1. Mst. Bibi Rahmani Khatoon and others filed Title Suit No. 3/70 in the Court of the Additional Subordinate Judge I, Gaya for declaration of their title and for recovery of possession of agricultural lands admeasuring 4 acres 29 gunthas comprised in two holdings bearing khata nos. 458 (nakdi) and 459 (Bhouli) in Touzi No. 7535 situated in village Parsain. The defendants in the suit were the present respondents and three others defendants Nos. 5, 6 and 7. One Brahmadeo was defendant 7 claiming an interest in khata No. 458 on the basis of a sale deed executed on March 31, 1959, by one Deonandan Singh who was defendant 5 in the trial court. It must be made distinctly clear that Brahmadeo claimed interest in khata No. 458 while the present respondents claimed interest in khata No. 459 only. The trial court decreed the suit declaring that the plaintiffs were the owners of both the khatas and were entitled to recover possession of the same.

2. Title Appeal No. 7/74 was preferred in the court of the Distt. Judge, Gaya, and it was heard by the learned Fourth Addl. District Judge as per his judgment and decree dated July 12, 1974. The learned Addl. District Judge dismissed the appeal and affirmed the decree of the trial court.

3. Present respondents alone preferred Second Appeal No. 691/74 in the High Court of Judicature at Patna. It must be specifically mentioned that neither defendant 7 Brahmadeo who died pending the appeal before the District Court and whose legal representatives were not impleaded, nor anyone claiming under him either came to be substituted in the appeal pending in the District Court nor any of them preferred appeal to the High Court. This has some relevance to the disposal of the appeal before us and, therefore, it has been categorically set out.

4. Harkoo Gope and three others who claimed interest in khata No. 459 only, preferred second appeal against the dismissal of their appeal by the learned Distt. Judge. When the Second Appeal No. 697/74 was pending in the High Court, an affidavit was filed on behalf of the appellants (respondents in this Court) on November 16, 1978, drawing attention of the Court to a notification u/s 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (‘Act’ for short) and further intimating to the Court that the village in which the disputed khatas were situated was taken up for consolidation of holdings and, therefore, the appeal pending in the High Court would abate in view of the provision contained in Section 4 of the Act. The High Court accepted the submission and disposed of the appeal by its order dated August 18, 1979, the operative portion of which reads as under :

The appeal abates and the judgments and decrees of both the courts below are hereby set aside as having abated.

Original plaintiffs having been dissatisfied by the order of the High Court not only abating the second appeal preferred by the respondents but also setting aside the judgments and decrees of the trial court and the first appellate court as having abated, have preferred this appeal by special leave.

5. Shri B.P. Singh, learned Counsel who appeared for the appellants contended that even if the Second Appeal abates by virtue of the provision contained in Section 4, on issue of a notification u/s 3 of the Act, the High Court cannot set aside the judgments and decrees of the trial court and the first appellate court as according to him when an appeal abates the judgment and decree of the court against which the appeal is preferred becomes final. The second contention of the learned Counsel is that in any view of the matter as the present respondents had no interest in khata No. 458 and as Brahmadeo on sale to him by Deonandan Singh alone claimed interest in khata No. 458 and since the death of Brahmadeo when the first appeal was pending and his heirs and legal representatives having not been substituted, the appeal qua him in respect of khata No. 458 had abated and the present respondents could not have preferred appeal in respect of khata No. 458 and, therefore, the High Court could not have set aside the decree in respect of khata No. 458.

6. Section 3 of the Act confers power on the State Government to make a declaration of its intention to frame a scheme for consolidation of holdings. When the State Government entertains an intention to make a scheme for consolidation of holdings in a given village, it has to issue a notification declaring its intention to make a scheme for the consolidation of holdings in the specified area. Section 4 provides that upon the publication of a notification under Sub-section (1) of Section 3, the consequences enumerated in Section 4 shall ensue. One such consequence is as set out in Sub-clause (c) which reads as under:

4. Effect of notification u/s 3(1) of the Act-

Upon the publication of the notification under Sub-section (1) of Section 3 in the official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operations ensue in the area to which the notification relates, namely :

… … … …
(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights of interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending, stand abated.

There are as many as 5 provisos to Clause (c) of Section 4 but only one is material which reads as under :

Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.

7. Present appeal arises out of a suit filed by the present appellants, who were plaintiffs, for a declaration of their title and consequential relief of possession meaning that it was a suit concerning agricultural land to which title was claimed and disputed. This suit was pending in Second Appeal at the instance of the respondents when the notification u/s 3(1) came to be issued. Accordingly, Section 4(c) would be attracted and the necessary consequence statutorily prescribed, must ensue. Therefore, it is incontrovertible that the second appeal would abate. Shri Singh, learned Counsel for the appellants does not dispute this legal consequence.

8. The grievance of Shri Singh is that the High Court while making an order declaring that the second appeal has abated, was in error in setting aside the judgments and decrees of the trial court as well as of the first appellate court which were in favour of the present appellants on the ground that those proceedings have also abated. At first blush this argument is very attractive but if accepted it has a potentiality of doing irreparable harm.

9. When a scheme of consolidation is undertaken, the Act provides for adjudication of various claims to land involved in consolidation by the authorities set up under the Act. In order to permit the authorities to pursue adjudication of rival claims to land unhampered by any proceedings in civil courts, a wholesome provision was made that the pending proceedings involving claims to land in the hierarchy of civil courts, may be in the trial court, appeal or revision, should abate. This provision was made with a view to ensuring unhampered adjudication of claims to land before the authorities under the Consolidation Act without being obstructed by proceedings in civil courts or without being hampered or impeded by decisions of the civil courts in the course of consolidation of holdings. In order to avoid conflict consequent upon rival jurisdictions the legislature provided that the proceedings involving the claims to land put in consolidation should be exclusively examined by the authorities under the Consolidation Act and all rival jurisdiction would be closed. Simultaneously it was necessary to deal with the pending proceedings and that is why the provision for abatement of such proceedings.

10. The concept of abatement is known to civil law. If a party to a proceeding either in the trial court or any appeal or revision dies and the right to sue survives or a claim has to be answered, the heirs and legal representatives of the deceased party would have to be substituted and failure to do so would result in abatement of proceedings. Now, if the party to a suit dies and the abatement takes place, the suit would abate. If a party to an appeal or revision dies and either the appeal or revision abates, it will have no impact on the judgment, decree or order against which the appeal or revision is preferred. In fact, such judgment, decree or order under appeal or revision would become final. Such is not the scheme of abatement as conceived by Section 4 of the Act. Here, if the abatement as is conceptually understood in the CPC is imported, it will do irreparable harm. To illustrate, if an appeal abates rendering either the trial court judgment or the judgment in first appeal final and binding, the consolidation authorities would also be bound by it and the party whose appeal or revision abated would lose its chance of persuading the appellate or revisional authority to accept its case which may result in interfering with or setting aside the judgment, order or decree in appeal. Such was not and could not be the intention of Section 4. This becomes manifestly clear from the proviso to Clause (c) of Section 4 extracted hereinabove which shows that such abatement shall be without prejudice to the rights of the person affected to agitate the rights or interest in dispute in the suit or proceeding before the appropriate consolidation authorities under and in accordance with the provisions of the Act. No one would, therefore, stand to suffer on account of the abatement because there is a special forum carved out for adjudication of the rights which were involved in proceedings which would abate as a consequence of the notification u/s 3. If the construction, as canvassed for were to be adopted it would result in irreparable harm and would be counter-productive. The consolidation work would be wholly hampered and a party whose appeal is pending would lose the chance of convincing the appellate court which, if successful, would turn the tables against the other party in whose favour the judgment, decree or order would become final on abatement of the appeal. Therefore, the legislature intended that not only the appeal or revision would abate but the judgment, order or decree against which the appeal is pending would also become non-est as they would also abate and this would leave consolidation authority free to adjudicate the claims of title or other rights or interest in land involved in consolidation. In our opinion, therefore, the High Court was right in not only holding that the second appeal pending before it abated but also the judgment and decree of the trial court and first appellate court would stand abated along with those proceedings. We reach this conclusion on the language of Sections 3 and 4 and the scheme of the Act but the view which we are taking is also borne out by some decisions though in none of them this position was directly canvassed.

11. In Ram Adhar Singh Vs. Ramroop Singh and Others, this Court examined the effect of a provision in pari materia in a parallel statute, namely, Section 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (‘U. P. Act’ for short). Section 5 provided for the consequences of a declaration of intention to prepare a scheme for consolidation of holdings made u/s 4. As the section stood prior to its amendment in 1966, it did not provide for abatement of proceedings pending in civil courts at the commencement of consolidation proceedings. By the Amending Act 21 of 1966, Section 5 was amended introducing Sub-section (2)(a) to provide for abatement of pending proceedings. This section is in pari materia with Section 4(c) of Act. At the time of the issue of the notification an appeal by special leave was pending in this Court and a notice of motion was taken out requesting the Court to pass an order abating the appeal after taking note of Sub-section (2)(a) introduced by the Amending Act of 1966. After negativing the contention challenging the constitutional validity of the Amending Act, this Court held that the suit out of which the appeal came to the Court would stand abated in view of Sub-section (2)(a) introduced in Section 5. The emphasis is that not only would the appeal pending in this Court abate but the suit as a whole abated. True it is that no contention was taken whether only the appeal would abate keeping the judgment under appeal intact or the suit as a whole would abate, but the observation of this Court will clearly indicate that in the opinion of this Court the suit as such would abate rendering the appeal pending before this Court infructuous. This decision in Ram Adhar Singh’s case supra was in terms followed in AIR 1975 1499 (SC) . The appeal in Chattar Singh’s case related to a suit which had a reference to a claim to the land in respect of which a notification was issued under the U P. Act as amended by Act 21 of 1966. The notification was issued when the appeal was pending before this Court. The appellants moved for passing an order of abatement. Granting the motion, this Court held that the suit and the appeals stood abated, leaving it open to the parties to work out the rights before the appropriate authorities under the U. P. Act. Both the aforementioned decisions were noticed in Satyanarayan Prasad Sah and Others Vs. State of Bihar and Another, . In that case upon the issue of a notification u/s 3 of the Act at a time when the matter was pending in the High Court an order was made u/s 4(c) abating the proceeding as also the suit from which the proceeding arose. Writ Petitions were filed in this Court under Article 32 of the Constitution questioning the constitutional validity of Section 4 of the Act as being violative of Articles 14 and 19 of the Constitution. After repelling the challenge to the vires of Section 4, this Court affirming the decisions in Ram Adhar Singh and Chattar Singh’s case (supra) held that maybe that the High Court should not have nullified the decree of the trial court but should have merely declared that the proceeding stood abated which this Court understood to mean that the civil proceeding comes to a naught. In other words, the proceedings from its commencement abate and no decision in the proceeding at any stage would have any impact on the adjudication of claims by the parties under the Act.

12. Accordingly, both on principle and precedent it is crystal clear that where a notification is issued bringing the land involved in a dispute in the civil proceeding under a scheme of consolidation the proceedings pending in the civil court either in the trial court, appeal or revision, shall abate as a consequence ensuing upon the issue of a notification and the effect of abatement would be that the civil proceeding as a whole would come to a naught. Therefore, the order of the High Court impugned in this appeal is legal and valid so far as it not only directed abatement of the appeal pending before the High Court but also abating the judgments and decrees of the trial court and the first appellate court because the entire civil proceeding came to naught.

13. The next contention of Shri Singh was that the Hight Court ought not to have nullified the decree with regard to khata No. 458 in which Brahmadeo and Deonandan Singh, defendants 7 and 5 respectively, alone were interested and the present respondents had no interest in khata No. 458. Learned Counsel who appeared for the respondents conceded that the present respondents have no interest in khata No. 458. It also transpires that Brahmadeo claimed interest in khata No. 458 alleging that he had purchased the land involved in the khata from Deonandan Singh, defendant 5. The suit proceeded ex-parte against defendants 5 and 6 and Brahmadeo, defendant 7 contested the suit in respect of khata No. 458. The trial court negatived the contention of defendant 7 Brahmadeo and accepted plaintiff’s title. Defendant 7 Brahmadeo along with other defendants preferred an appeal to the District Court. When the appeal was pending in the District Court, Brabmadeo, the appellant died. His legal representatives were not substituted. Since defendant 7 Brahmadeo as appellant claimed separate, specific and exclusive right to khata No. 458, on his death his legal representatives ought to have been substituted. He was the appellant. No one was substituted on his behalf. Obviously, therefore, the appeal preferred by Brahmadeo abated. It may also be made clear that legal representatives of Brahmadeo have not preferred second appeal. Second Appeal was preferred by the present respondents who claimed interest in khata No. 459 only. Accordingly, when the appeal preferred by the present respondents abated, it only abated with reference to khata No. 459 and in no case it would have any impact on the title of present appellants which became established under a decree of the trial court which became final on the appeal of Brahmadeo having abated before the notification u/s 3, and it could not at all be dealt with by the High Court. To that extent this appeal will have to be allowed and an appropriate modification would have to be made.

14. Accordingly, this appeal succeeds in part. Proceedings with regard to khata No. 459 (Bhouli) in Touzi 7535, village Parsain were rightly abated by the High Court and the civil proceeding with regard to khata No. 459 as a whole would abate leaving the parties to get their rights adjudicated before the authorities under the Act. The title of the appellants declared by the trial court in respect of khata No. 458 (nakdi) has become unchallengeable at the hands of Brahmadeo or anyone claiming through him and the abatement of the second appeal will have no impact on the title of the appellants to khata No. 458. The declaration made by the trial court in respect of khata No. 458 is restored. In the circumstances of the case there will be no order as to costs.


1981) AIR(SC) 1450 : (1982) PLJR 59 : (1981) 1 SCALE 739 : (1981) 3 SCC 173 : (1981) 3 SCR 553 : (1981) 13 UJ(SC) 572