Municipal Corporation of Greater Mumbai (MCGM) Vs. Abhilash Lal & Ors-15/11/2019

SUPREME COURT OF INDIA JUDGMENTS

STATUTORY INTERPRETATION-If a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.

The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him.

SUPREME COURT OF INDIA

Municipal Corporation of Greater Mumbai (MCGM) Vs. Abhilash Lal & Ors.

[Civil Appeal No. 6350 of 2019]

ACT: Section 62 of the Insolvency and Bankruptcy Code, 2016

FROM: National Company Law Appellate Tribunal

S. RAVINDRA BHAT, J.

1. The Municipal Corporation of Greater Mumbai (hereafter “MCGM”) appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016 (hereafter “IBC” or “the Code”) against the order of the National Company Law Appellate Tribunal (hereafter variously “NCLAT” and “the Appellate Tribunal”), rejecting its plea with respect to a resolution plan approved by the National Company Law Tribunal (“NCLT”) under the provisions of that Code.

2. MCGM owns inter alia, Plot Nos. 155156, 162 and 168 (all plots hereafter called “the lands”) in village Marol, Andheri (East) Mumbai. By a contract (dated 20th December, 2005) SevenHills Healthcare (P.) Ltd. (the company facing insolvency proceedings, hereafter “SevenHills”) agreed to develop these lands (which were to be leased to it for 30 years) and construct a 1500 bed hospital. MCGM stipulated several conditions, including that 20% of the beds had to be reserved for use by the economically deprived, and that SevenHills had to complete the construction in 60 months (excluding monsoons). The sixtymonth period ended on 24th April, 2013; the project however, was not completed. In terms of Clause 15(g), the lease deed had to be executed within a month after completion. However, the deed was not executed as the project was not completed. Further, SevenHills had to pay lease rent at the annual rate of 10,41,04,000. MGCM alleges that there were defaults in these payments. In these circumstances, MCGM issued a show cause notice on 23rd January, 2018, proposing termination of the contract/agreement. It is submitted that SevenHills owed MCGM an amount of Rs. 76,05,07,780.

3. On the strength of the contract, SevenHills had borrowed from banks and financial institutions. It had created security by way of mortgage of the said lands, citing Clause 5, which enabled the creation of such encumbrances. SevenHills’ inability to repay its debts led to the initiation of insolvency proceedings by Axis Bank. On 13th March, 2018, before the period given by MCGM’s showcause notice ended, the Petition (CP (IB) No. 282/7/HBD/2017) was admitted by the Hyderabad Bench of the NCLT. The first respondent was appointed as the Resolution Professional (hereafter “RP”); this was approved by the Committee of Creditors (“CoC”) as required by the Code, on 12 April, 2018. A publication for expression of interest (“EOP”) was issued on 14 May, 2018; later, on 25th June, 2018 and 16th July, 2018, the terms of the Request for Proposal (RFP) and criteria for evaluation (of RFPs received) were approved. As a result of the RFP published, a resolution plan was submitted by Dr. Shetty’s New Medical Centre (“SNMC”). After discussion with the CoC, a revised RFP was submitted by the RP. The revised resolution plan was approved by the CoC on 4th September, 2018.

4. The resolution plan projected infusion of over Rs.1000 crores by SNMC. That amount was to be borrowed; for this purpose, SevenHills’ properties movable and immovable, were proposed to be secured by hypothecation and mortgage respectively. Operational creditors were to be paid off to the extent of 75%. Further, the plan proposed payout to the tune of Rs.102.3 crores to MCGM as against its total claim of

Rs.140.88 crores, and also committed to honouring the terms of the agreement entered into by SevenHills and providing 20% of the beds (of the hospital to be constructed) to the poor and weaker sections of society. The networth certificate furnished by SNMC indicated that it possessed sufficient funds.

5. MCGM filed an application (I.A. No. 207/ 2018) claiming that it ought to be declared as a Financial Creditor and a Member of the Committee of Creditors. It made several submissions, which indicated that subject to stipulations with respect to completion of the hospital project in a timebound manner, and subject to SNMC providing 20% beds in the completed hospital, for use by the economically weaker sections (and at the disposal of MCGM) and, lastly subject to clearing its (MCGM’s) claims to the tune of Rs.140.88 crores, it was agreeable to the resolution plan.

However, later during the proceedings, it opposed the resolution plan, arguing that being a public body as well as a planning authority, it had to comply with the provisions of the Mumbai Municipal Corporation Act, 1888 (“MMC Act”), which meant that all action and approval had to be taken by the Improvement Committee of the Corporation. It was also stated that the show cause notice (“SCN”) dated 23rd January, 2018 had been already issued by MCGM proposing to terminate the contract (with SevenHills) to which there was no response and that in the absence of a lease, the provisions of Section 14(1)(d) of the Code could not prevent the MCGM from terminating the agreement. Another argument made was that the period of CIRP in the case began on 13th March, 2018 when the petition was admitted and the period of 270 days expired on 8th September, 2018; an extension of 90 days provided in Section 12(3) was granted by the Adjudicating Authority on 4th September, 2018 and the extended period came to an end on 7th December, 2018; thus the CIRP has lapsed by efflux of time.

6. The NCLT, after considering the views of the RP, MCGM, the creditors and SNMC, held that: “29. It may be relevant to note here that the Application for approval of the resolution plan was filed on 07.09.2018. The MCGM at a belated stage has come up with its objections to the Resolution Plan with the contention that it is undisputed owner of the plot on which one of the hospitals of the Corporate Debtor in Mumbai is built. The various objections raised by MCGM as enumerated hereinabove at a belated stage are neither tenable nor acceptable. It is clear from the record that MCGM is taking a stand which is totally contrary to its own decisions and factual submissions.

The final prayer of MCGM is to reject the ‘resolution plan’ and order for liquidation of the Corporate Debtor. The RP in his submissions has clearly pointed out as to why the averments of MCGM are erroneous and incorrect. For the sake of briefness, the submissions made by RP as stated supra are not discussed in detail once again. This Adjudicating Authority is of the view that the contentions raised by MCGM cannot be accepted due to the conflicting and contradictory stands taken by it in the course of hearings. Further, the contention of MCGM relating to expiry of the period of 270 days is untenable and unacceptable for the reason that the Application by the Resolution Professional for the approval of the Resolution Plan has been made well before the expiry of the period of CIRP and the same is in accordance with the provisions of the Code. Therefore, the objections raised by the MCGM are hereby rejected.”

7. The NCLT also held that the plan filed along with the application met the requirements of Section 30(2) of the Code, and Regulations 37, 38, 38(IA) and 39(4) of IBBI (CIRP) Regulations, 2016. It also held that the resolution plan did not contravene any of the provisions of Section 29A and was unanimously approved by that CoC; it provided for 78.07% of payment to financial creditors and 75% of payment to operational creditors including doctors, irrespective of claims in incorrect forms. Further, the resolution applicant is also addressing the dues payable to MCGM as stated in the resolution plan. Further, that NCLT observed that on comparison of the amount offered in the resolution plan with FormH submitted by the RP, it was seen that the amount proposed in the plan was more than that of the value of liquidation of the Corporate Debtor. It accordingly approved the plan.

8. Aggrieved by NCLT’s order, MCGM approached the Appellate Tribunal, before which several grounds were urged, including that since the conditions stipulated in the contract (with SevenHills Healthcare) had not been complied with, there was no lease deed and consequently no interest inured in the land, in favour of the Corporate Debtor. It was also urged that the resolution applicant was aware that the property belonged to MCGM, and had not vested in the Corporate Debtor. Despite these circumstances, the proposal and revised proposal incorporating encumbrances of the lands were made contrary to law. It was also specifically urged that mandatory provisions of the MMC Act requiring express authorization by the corporation for transfer or creation of any interest in land had not been complied with and resultantly, the proposal and revised proposal approved by the NCLT, so far as they dealt with the property and lands, were not enforceable against MCGM.

9. The NCLAT in its impugned order, took note of a memo filed on behalf of the MCGM on 20th April, 2019 (before the NCLT), that the revised resolution plan had been accepted and all terms specified in its written submissions, were to be incorporated. As a result, the NCLAT was of the opinion that there was no scope for interference with the order of the Adjudicating Authority/NCLT.

10. It is argued on behalf of MCGM by its learned senior counsel, Mr. Neeraj Kaul, that no lease deed was executed in favour of SevenHills, the Corporate Debtor. MCGM was the undeniable owner of the land; as there were no assets of the Corporate Debtor, it stated that a duly registered lease deed would be executed. The proposal and revised proposal seeking direction with regard to the lease deed, had to be necessarily dealt with in accordance with law. This meant that unless MCGM, expressly approved the revised plan, whereby a lease deed could be executed in favour of the SevenHills Healthcare Pvt. Ltd. (or in favour of the resolution applicant SNFC), neither the adjudicating authority nor the NCLAT could issue any direction seeking to bind MCGM with respect to the manner it had to deal with properties that belonged to it.

11. It was emphasised that the effect of the impugned order is to prevent MCGM from violating the law. The direction which was highlighted was in violation of Section 92 of the MMC Act. Learned senior counsel underlined that the written submissions filed on behalf of MCGM could not be construed as an admission, or that MCGM was bound to agree to the revised proposal. It was alternatively argued that at best, these submissions could be considered as concessions of law which were never binding on MCGM.

12. It was argued that there was no question of incorporating any direction or approving the revised plan, which in any manner affected MCGM’s properties. In this context, Mr. Neeraj Kaul, learned Senior Counsel, urged that the terms of the original contract (dated 20th December, 2005) had been violated; the 1500 bed hospital had not been completed by the stipulated date. Furthermore, arrears of lease rentals had mounted together every attendant liability. In these circumstances, even before the insolvency proceedings were initiated, MCGM issued a show cause notice proposing to terminate the contract. It was further emphasised that since the terms of the contract were infringed, in fact, there was no subsisting lease which could have been dealt with by the revised proposal and later by the Adjudicating Authority. It was submitted that the impugned order has completely noted these salient aspects.

13. On behalf of the RP (who has been arrayed as the first respondent) it is argued by Mr. C.A. Sundaram, learned senior counsel that MCGM had categorically consented to the resolution plan in writing before the NCLT and the Appellate Tribunal. He points out that in the written submissions dated 28th November, 2018, 29th April, 2019 and 14th May, 2019 MCGM categorically stated that the resolution plan be approved and its application before the NCLT ought to be disposed of in terms of the commitment given by the resolution applicant/SNMC. It is pointed out that the Appellate Tribunal, after hearing the submissions of MCGM that it had no objections to the resolution plan, affirmed it. MCGM, counsel submitted, has not refuted that such a statement was made before the NCLAT. It is therefore the undisputed position that MCGM had no objections to the resolution plan. That being the case, counsel argues that the appeal is not maintainable.

14. Mr. Sundaram argued that MCGM’s contentions that no interest or leasehold rights in the land were created in favour of the Corporate Debtor, flies in the face of its letters and also its application to the NCLT, which in para 4, admitted that the lands were leased to the Corporate Debtor. In fact, MCGM filed the application claiming that the lease was a capital or finance lease and the unpaid lease rentals were a financial debt within the meaning of the Code. Unlike the written submissions, MCGM did not even explain on what basis it had filed the application to the NCLT regarding its position that no leasehold rights subsisted.

15. Learned senior counsel submitted that MCGM was invited to attend and participate in CoC meetings due to its position as owner of the land on which the Mumbai hospital of the Corporate Debtor is located. The issue of whether or not the corporate debtor has any leasehold rights under the contract (of 2005) is a disputed question of fact which can only be adjudicated upon in civil proceedings after conducting a civil trial.

16. It is also argued alternatively, that assuming for the purpose of argument that no leasehold rights were created in favour of the Corporate Debtor, the resolution plan does not create any leasehold rights in favour of the respondent applicant/SNMC. Learned senior counsel argued that the resolution plan merely envisages a change in the shareholding of the Corporate Debtor but does not transfer any of MCGM’s assets to SNMC. Therefore, it is false to suggest that the resolution plan transfers MCGM’s assets to SNMC. It was argued furthermore that though MCGM was not entitled to, nor treated as a financial creditor, it was nevertheless invited to participate in CoC meetings, interact as well as negotiate favourable terms with potential resolution applicants. To further safeguard MCGM’s interests, the RFP also required all prospective resolution applicants to submit their plans to resolve the dispute with MCGM.

17. Mr. Sundaram also submitted that SNMC’s revised proposal to MCGM assured repayment of its entire dues. In light of a proposal of this nature, MCGM’s stand seeking liquidation of the Corporate Debtor appears not only arbitrary but also prima facie vindictive.

18. It is also submitted that the resolution plan is absolutely unconditional in nature and in no manner contingent on the resolution of the dispute with MCGM. It is submitted that such unconditionality is the most fundamental aspect of the resolution plan. This unconditional nature is recorded in the minutes of meetings of the 8th meeting of the CoC held on 20th August 2018. MCGM participated in the meetings of the CoC, including the 8th CoC meeting, and was provided a copy of the minutes contemporaneously. These minutes record SNMC’s categorical statement that the negotiations with MCGM are in progress and that the resolution plan is unconditional and in no manner dependent on the outcome of such negotiations. Further, there is no provision in the resolution plan (and none has been cited by MCGM) which suggests that the plan is conditional on settlement with it (i.e. MCGM).

19. It is also submitted that any dispute with MCGM in relation to the lease of the underlying land has no bearing on the validity of the resolution plan, under Section 31 of the Code. Having been approved by the CoC and the NCLT on merits, the plan attained finality and binds MCGM as a stakeholder in the Corporate Debtor. MCGM therefore, cannot hold the entire CIRP of the Corporate Debtor to ransom despite not even having raised a single objection on the validity of any specific term in the resolution plan under Section 30(2) of the Code.

20. Mr. Ramji Srinivasan, appearing on behalf of the CoC, argued that the financial creditors were interested in ensuring that their dues were paid, preferably in full. SNFC’s resolution plan held out the best assurance toward that end. He also argued that the question of obtaining any approval under Section 92A either for creation of charge, or for any other purpose did not arise, because the terms of the contract, which in fact amounted to a lease (as it was a registered instrument and MCGM had received over Rs. 10 crores as initial lease consideration). Therefore, the resolution plan approved by the NCLT, and later, NCLAT, were sound and did not call for interference.

21. It was argued, furthermore, that the reliance on Section 92 of the MMC Act is misguided as it seeks to superimpose provisions of the MMC Act on the provisions of the Code. This is clearly impermissible in terms of the nonobstante provision contained in Section 238 of the Code.

22. Mr. K.V. Vishwanathan, learned senior counsel for SNFC, argued that the plan approved provided the best solution for the financial woes of the Corporate Debtor. It was argued that SNFC never represented that it would mortgage or obtain any loan on the strength of the lease. Nor did it ever urge that MCGM’s permission was not necessary. He pointed to the terms of the resolution plan and submitted that they were subject to MCGM’s obligations to follow the law.

23. It was submitted that the proposed plan contemplates compliance with the various conditions of the contract agreement including without limitation, 20% reservation of beds for MCGM’s employees and settlement of MCGM’s claimed dues. The resolution plan proposed payment to MCGM (which was enhanced to 100% by a later proposal) at clause 2.2.2(b). Further, clause 2.2.3(f) of the resolution plan again records the proposed payment to MCGM by stating that while the resolution professional has not admitted the claims submitted by MCGM, SNMC recognizes such dues payable to it and shall pay 102 crores in terms of the Rs. offer made to MCGM as recorded.

24. In the present case, Section 92 of the MMC Act has no bearing on the validity of the resolution plan, the approval order or the impugned order. Section 92 of the MMC Act mandates and prescribes the manner in which disposal of land belonging to the appellant would take place. However, the resolution plan does not contemplate any disposal of the said land or creation of any additional rights and obligations of MCGM or the Corporate Debtor in relation to the lands. It is merely the shareholding of the Corporate Debtor which undergoes a change pursuant to the resolution plan. MCGM cannot place any embargo on such shareholding changes by resorting to proceeding under the Code.

25. It was urged that SNMC does not acquire any interest in the said land and only acquires managerial control over the Corporate Debtor by way of holding equity shares in the Corporate Debtor. Therefore, there arises no question of Section 92 of the MMC Act being violated through the resolution plan.

Discussion regarding the insolvency process and relevant provisions of the MMC Act

26. On admission of an insolvency application preferred by a financial creditor/operational creditor, a moratorium is declared on the continuation and initiation of all legal proceedings against the debtor. The NCLT appoints an interim resolution professional (“IRP”). The moratorium operates till the completion of the insolvency resolution process which, by law should be completed within a mandated time frame. During the moratorium period, the debtor cannot transfer, encumber or sell any asset. Upon appointment of an IRP, the board of directors stands suspended and management vests with the IRP. These professionals (IRPs) have to conduct the insolvency resolution process, take over the assets and management of the company, assist creditors in collecting information and manage the insolvency resolution process. The term of the IRP continues until an RP is appointed under Section 22. The IRP has to first determine the debtor’s financial position through information collection regarding assets, finances and operations. Information may include data relating to operations, payments, list of assets and liabilities. The IRP further has to receive and collate claims submitted by creditors.

27. The RP selected by the NCLT has to constitute a committee of creditors (CoC) comprising all the financial creditors of the corporate debtor. This provision is aimed at creditors adopting a collective approach towards insolvency resolution instead of proceeding individually. Key decisions of the process, and the plan to be eventually finalized are to be approved by the CoC upon its satisfaction that the provisions of the most acceptable plan would ensure that their dues are cleared.

28. The Code is principally aimed at aiding a corporate debtor in the resolution of its insolvency condition without approaching liquidation. The key to this process is the finalization of an insolvency resolution plan. A suitably structured plan would provide for repayment of the debtor’s outstanding liabilities after evaluating its financial worth, at the same time ensuring its survival as a going concern. The resolution plan must necessarily provision for repayment of the debt of operational creditors in a manner such that it shall not be lesser than the amounts that would be due, should the debtor be liquidated per Section 30(2) of the Code. Also, the plan should identify the manner of repayment of insolvency resolution costs, the implementation and supervision of the strategy, and should be in compliance with the law. If the terms (including the terms of repayment) under the resolution plan are approved by the committee of creditors, it has to be further approved by the NCLT, which is the adjudicating authority.

29. In this case, it is not the provisions of the IBC which this court has to primarily deal with; it is rather whether the process and procedure adopted by the NCLT and later the NCLAT, in overruling MCGM’s concerns and objections with regard to the treatment of its property (i.e. the lands) is in accordance with law. The relevant provisions of the Municipal Corporation of Greater Mumbai Act, 1888 are extracted below:

Provisions governing the disposal of municipal property:

Section 92. With respect to the disposal of property belonging to the corporation other than property vesting in the corporation for the purposes of the Brihan Mumbai Electric Supply and Transport Undertaking, the following provisions shall have effect, namely: –

(a) the Commissioner may, subject to the regulations made in this behalf, dispose of, by sale or otherwise, any movable property belonging to the corporation not exceeding in value, in each instance, five lakh rupees, of grant a lease of any immovable property belonging to the corporation, including any right of fishing or of gathering and taking fruit and the like, for any period not exceeding twelve months at a time : Provided that every lease of immoveable property granted by the Commissioner (other than a contract for a monthly tenancy) the annual rent where of at a rack rent exceeds 6 [fifty thousand rupees] shall be reported by him, within fifteen days after the same has been granted, to the Improvements Committee;

(b) the Commissioner may, –

(i) with the sanction of the concerned Committee, dispose off, by sale of otherwise any movable property held by the Corporation, the value of which exceeds rupees five lakhs ;

(ii) with the sanction of the 9[Standing Committee], dispose off any moveable property held by the Corporation, the value of which exceeds rupees two crores ;

(iii) with the sanction of the concerned Committee, grant a lease (other than a lease in perpetuity) of any immovable property belonging to the Corporation, including any such right as aforesaid; or sell, or grant a lease in perpetuity of any immovable property, the value of which does not exceed 50,000 rupees or the annual rent of which does not exceed 3,000 rupees ;

(c) with the sanction of the corporation, the Commissioner may lease, sell or otherwise convey any immovable property belonging to the corporation (cc) the consideration for which any immovable property or any right belonging to the corporation may be sold, leased or otherwise transferred shall not be less than market value of such premium, rent or other consideration;

(d) sanction of the corporation under clauses (b) and (c) may be given either generally for any class of cases or specially in any particular case ;

(dd) notwithstanding anything contained in this section, the Commissioner may, with the sanction of the Corporation, and with the approval of the State Government, grant a lease of immovable property belonging to the Corporation to a Cooperative Housing Society formed exclusively by the officers and servants of the Corporation, or to a public trust exclusively for medical and educational purposes registered under the Bombay Public Trust Act, 1950 or to a society registered under the Societies Registration Act, 1860 or the Maharashtra Cooperative Societies Act, 1960, a public trust registered under the Bombay Public Trust Act, 1950, or a company registered under the Companies Act, 1956 3[or any person for the purposes of provision of public latrines, urinals and similar conveniences or construction of a plant for processing excrementitious and other filthy matters of garbages] or to a person who is dishoused as a result of the implementation of any Development Scheme of the Corporation or to a Cooperative Housing Society formed exclusively by the persons who are dishoused as a result of the implementation of any Development Scheme of the Corporation, at such rent, which may be less than the market value of the premium, rent, or other consideration, for the grant of such lease, and subject to such conditions, as may be provided by the byelaws made under section 461;

(ddd) notwithstanding anything contained in this section, the Commissioner may, with the sanction of the Corporation, and with the approval of the State Government, grant a lease for a period not exceeding 60 years, of municipal land which is declared as a slum area under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to a cooperative society of slum dwellers occupying such land, at such rent, which may be less than the market value of the premium, rent, or other consideration, for grant of such lease, and subject to such conditions, as the Corporation may impose. The approval of the State Government under this clause may be given either generally for any class of cases of such lands or specifically in any particular case of such land : Provided that, the Commissioner may in like manner renew, from time to time ; the lease for such period and subject to such conditions as the Corporation may determine and impose ;

(dddd) All leases granted by the corporation of the immovable properties belonging to the corporation for whatever term shall be subject to the following conditions in addition to the conditions stipulated in the Leasedeed or Leaseagreement executed by the corporation, namely: – (i) Leasehold rights in respect of the properties belonging to the corporation and given on lease may be further assigned or transferred only with the prior permission of the Commissioner, on payment of such premium on account of unearned income and transfer fees or charges at such rates as may be specified by the corporation, from time to time.

(ii) In the case of any contravention of the provisions of subclause (i), the lessee or transferor of such leasehold rights, shall be liable to pay penalty in addition to such premium and transfer fees or charges, at such rates as may be specified by the corporation, from time to time.

(e) the aforesaid provisions of this section shall apply, respectively, to every disposal of property belonging to the Corporation made under or for any purpose of this Act; Provided that nothing in this section shall apply Dr. Bhau Daji Lad Museum or to the site thereof referred to in section 89C except with the previous sanction of 5[the 6[State] Government].

Section 92A. Where-

(1) the Commissioner has transferred by way of sale or exchange any immovable property belonging to the Corporation and the terms of such transfer direct that the property shall be applied or enjoyed in a particular manner or the use or enjoyment thereof shall be restricted in a particular manner, or

(2) the owner of any immovable property has entered into an agreement with the Corporation concerning the application, enjoyment or use of the property in a particular manner, such term, condition or obligation shall be held to be annexed to the property which is the subjectmatter of the transfer or agreement and shall be enforced against the transferee or owner and all persons deriving title or interest under or through him, notwithstanding-

(a) any law for the time being in force, and

(b) that the Corporation are not in possession of or interested in any immovable property for the benefit of which, the term, condition or obligation was agreed to, entered into or imposed.”

30. At this stage, it would be relevant to notice certain conditions in the contract.

Clause 2(i) stipulates the minimum lease rent as 10.40 crores for which SHCL agreed Rs. to pay 0.1% over and above the minimum lease rent.

Clause 5 of the agreement permitted SevenHills to mortgage and/or create charge of the schedule property. The conditions read as follows:

“5. The Owner hereby agrees to permit and allow the SHCL on the terms and conditions to be approved by the Owner which permission/approval shall not be unreasonably withheld, to mortgage and/or create charge on the Schedule Property and/or SHCL’s leasehold right thereon with or without the Buildings on the Schedule property during the lease period or prior thereto i.e. during the project period) in any manner whatsoever either in whole or in part as SHCL may require from time to time to the satisfaction of the lenders, for the purpose of raising financial assistance from the Financial Institutions/Banks/NBFOs/Cooperative Societies/ Trust/ UF/ Partnership/Proprietary Firm and any other lending individuals/institutions, whether incorporated or not, for any purpose for and in connection with the said Project including for the purpose of commencing, carrying out and completing the construction of the Buildings, setting up of hospital, Medical Educational institutions commercial and other establishments within the Frame work of Development Control Regulations in force, in such Buildings, their running, maintenance, renovation, reconstruction etc. For this purpose, the SHCL shall have to apply for permission not mortgage and/or create charge to Municipal Commissioner two months in advance and if the approval is not received within two months from the date of receipt of such a request by the Commissioner, it will be deemed as approved and SHCL shall be at liberty to create the mortgage of the Schedule Property in favour of the Lenders without any recourse to the Owner.”

31. Clause 15(a) which stated that the lease deed had to be entered into upon on completion of the project and contained other conditions, pertinently, reads as follows:

“15. LEASE OF PLOT: a) Lease period:

i) The SHCL shall enter into a Lease Deed on completion of project period for leasing the plot to SHCL for the period of 60 years. After 60 years, the lease period will be extended with the mutual consent of Owner and SHCL on the terms that may be mutually agreed upon by both the parties for further period.

ii) The lease period of 60 years shall commence from the date of completion of the Project period.

iii) On completion of the said Project the Owner shall issue to SHCL ‘Project Completion Certificate’. Till the completion and commissioning of the project and running of the Project facilities, till the end of lease period, this Contract Agreement is to be read, in conjunction with the said Lease Deed which both Parties will enter into on completion of the project period. iv) The SHCL shall complete the construction of the hospital building within the project period of 60 months excluding monsoon. the MCGM shall be liable to issue the Project Completion Certificate on written application by SHCL to that effect after completion of the project.

xxxxxx xxxxxx xxxxxx

e) Penalty for delay:

i) SHCL shall complete the entire Project and open the facility to public use within the approved time limit. SHCL shall submit the work programme with defined milestones. the progress of the work shall be strictly as per the programme of construction submitted by SHCL and approved by the Commissioner. In case SHCL fails to complete the Project as aforesaid within the said Project Period of 60 (sixty) months excluding monsoon from issuance of Commencement Certificate, and unless such failure is due to force Majeure conditions, penalty for delay shall be charged for the period of delay which will be equivalent to 25% of Lease Rent which SHCL would have paid to the Owner for that period, had the Project been completed within the Project Period and this shall be in addition to lease rent.

ii) SHCL shall have to separately pay the compensation for delay to the Owner at the end of notice period. iii) However, in case any delay occurs because of circumstances beyond the control of SHCL only suitable extension in the period of the Project without imposing penalty or demand for compensation for delay shall be granted for completing the Project. No other claim or compensation of whatsoever nature shall be entertained.

xxxxxx xxxxxx xxxxxx

g) Lease Deed: A Lease Deed shall be executed as per draft annexed to this Contract Agreement as Annexure’ II’ within one month from the expiry of the Project period or on intimation from the owner whichever is earlier. 17. MORTGAGE OF PLOT AND BUILDINGS a) The SHCL is hereby allowed to sublease; mortgage and create a charge on the said plot and buildings either in part or in total to the satisfaction of lenders for the purpose of raising financial assistance to commence, progress, complete, commission and run the hospital complex and other commercial activities during the Pendency of the lease period, from the financial institutions/ FIIS/Banks/Mutual Funds/Cooperative Societies, Trusts/individuals/HUFs/Partnership Firms, other lending institutions and lenders of any constitution for the said Project with the prior permission of the Commissioner, which permission shall not be unreasonably withheld, during the Project period and/or during the subsistence of the lease and the Owner shall be kept informed of such deals after permission by the Commissioner and SHCL shall file relevant documentary evidence to that effect for record of the owner.

The permission which shall be granted by the Owner to SHCL to mortgage the Schedule Property in favour of the lender (s) for raising finance will remain irrevocable and irreversible during the tenure of the Project period and lease period except when the contact is terminated. In case the contract is terminated for valid reason, the Owner shall not bear any cost and consequences of resultant termination of mortgage by SHCL to any Financial Institution. While the right of ownership will remain with the Owner, the leasehold rights to the property will remain free from encumbrances and dedicated to the lenders during the currency of loan or the lease period whichever is earlier and the lenders shall continue to enjoy the same rights and privileges as that of SHCL. SHCL is also hereby allowed, with prior written permission from Commissioner to sublet the whole or part thereof and/or the buildings on the Schedule Property.

The SHCL shall be entitled to sublet the Schedule Property and the Building/s thereon from time to time in whole or in part for any duration (not beyond the lease period) to any other Party/ies (sublessee/ s) on such terms and conditions, as may be agreeable to SHCL within the frame work of the tender and this Agreement and for the same or similar purposes for which agreement is intended, by means of duly registered Deed/s. SHCL shall have to apply for permission to Municipal Commissioner two months in advance and if the approval is not received within two months from the date of receipt of such a request by the Commissioner, it shall be deemed as approved.”

32. A cumulative reading of the stipulations reveals that the contract/agreement contemplates that the lease deed was to be executed after the completion of the project. The contract reveals that (a) the project period was for 60 months starting from the date excluding the monsoon period; (b) by Clauses 5 and 17, SevenHills could mortgage the property for securing advances from financial institutions for the construction of the project and thereafter towards its working. Such mortgage/charge or interest was subject to approval by MCGM. In the event the contract was to be terminated, it was agreed that MCGM would not in any manner be liable towards the mortgaged amount and all its rights and ownership would continue to vest in it free from encumbrances (Clause 17).

33. The show cause notice in this case preceded admission of the insolvency resolution process. In view of the clear conditions stipulated in the contract, MCGM reserved all its rights and its properties could not have therefore, in any manner, been affected by the resolution plan. Equally in the opinion of this Court, the adjudicating authority could not have approved the plan which implicates the assets of MCGM especially when SevenHills had not fulfilled its obligations under the contract.

34. The argument of the RP, the financial institutions (CoC), and the SNMC with regard to MCGM’s interest not being affected, in this court’s opinion is insubstantial. SNMC’s proposed insolvency plan on the one hand no doubt provided for the liquidation of MCGM’s liabilities initially to the tune of 102 crores Rs. (later revised to over Rs.140 crores). However, the provisions of the resolution plan clearly contemplated infusion of capital to achieve its objectives. One of the modes spelt out in the plan for securing capital was mortgaging the land. Initially, no doubt, SNMC stepped into the shoes of SevenHills and assumed its control. What is important to notice is that the corporate restructuring was a way of taking over of the company’s liquidation by SNMC as it was not only Seven Hills’ project with shares and liquidation of debts, but also the restructuring of the company’s liabilities if necessary, by creating fresh debts and mortgage of the land which directly affected MCGM.

35. Section 92 unequivocally prescribes the method whereby MCGM’s properties can be dealt with through lease or by way of creation of any other interest. The only mode permitted is through prior permission of the corporation. It is a matter of record that in the present case, the resolution plan was never approved by the corporation and that it was put to vote. The contesting parties, including the RP and CoC were unable to point out to anything on the record to establish that a valid permission contemplated by Section 92 was ever obtained with regard to the proposal in the resolution plan. The proposal was approved by the NCLT and MCGM’s appeal was rejected by NCLAT. The proposal could be approved only to the extent it did not result in encumbering the land belonging to MCGM.

36. It is evident from a plain reading of Section 92(c), that the Commissioner (of MCGM) is empowered to, with the sanction of the corporation, “lease, sell or otherwise convey any immovable property belonging to the corporation.” It is not in dispute that the original contract entered into on 20122005 contemplated the fulfilment of some important conditions, including firstly, the completion of the hospital project within a time frame; and secondly, timely payment of annual lease rentals. It is a matter of record that the hospital project was scheduled to be completed by 24th April, 2013. MCGM cites Clause 15(g) of the contract to urge that within a month of this event, i.e. completion of the hospital, a lease deed had to be executed.

This event never took place. Therefore, the terms of the contract remained, in the opinion of the court, an agreement to enter into a lease; it did not per se confer any right or interest, except that in the event of MCGM’s failure or omission to register the lease (in the event SevenHills had complied with its obligations under the contract), it could be sued for specific performance of the agreement, and compelled to execute a lease deed. That event did not occur; SevenHills did not complete construction of the 1600 bed hospital. Apparently, it did not even fulfill its commitment, or pay annual lease rentals. In these circumstances, MCGM was constrained to issue a show cause notice before the insolvency resolution process began, and before the moratorium was declared by NCLT on 13 th March, 2018. According to MCGM, in terms of Clause 26 (of the contract), even the agreement stood terminated due to default by SevenHills. This court does not propose to comment on that issue, as that is contentious and no finding has been recorded by either the adjudicating authority or the NCLAT.

37. In Ram Singh Vijay Pal Singh & Ors. v. State of U.P. & Ors (2007) 6 SCC 44, this court dealt with a similar provision, requiring prior approval of the statutory authority without which the property could not be disposed of. The court held that: “The proviso to Subsection (1) of Section 12 of the Act would show that the Mandi Samiti (Committee) is not empowered to transfer any immovable property without the previous approval in writing of the State Agricultural Produce Markets Board (Mandi Parishad). Section 26L of the Act deals with the powers and functions of the Board. The Director of Mandi Parishad (Board) has not been conferred any power whereunder he may issue a general direction that the shops, godowns and sheds of the Mandi Parishad shall be transferred or sold to the traders on hirepurchase basis.

Therefore, the appellants can derive no benefit from the letter of the Director dated 4.11.1995, wherein it was mentioned that a decision had been taken to give the shops on hirepurchase basis. In the counter affidavit the respondents have specifically asserted that the Board never took any such decision to sell the property of the Mandi Samiti to the traders either on hirepurchase basis or otherwise. No document has been filed to show that the Board ever took any such decision. It is the case of the respondents that the letter sent by the Director was his own action which had never been authorized by the Board. At any rate the proposal made by the Director never fructified as no such decision was taken by the Board and the Board never authorized the Mandi Samities (Committees) of various districts in the State to transfer the property of the Samiti in favour of the traders of agricultural produce who had been allotted the shops, godowns and sheds by the Mandi Parishad. In this view of the matter, the appellants have no legal right to claim that the property be given to them on hirepurchase basis.”

38. In Essar Bulk Terminal Limited & Anr. v. State of Gujarat & Ors. (2018) 3 SCC 750, again, this court held as follows: “16. Despite this, what is clear from the record is that the Appellants appear to have actually dredged the channel to a depth of 14 meters and appear to have reclaimed an area of 164 hectares plus 170 hectares to the south of the mangroves, without any permission at all. When this was pointed out to Shri Mihir Joshi, the answer given was that when permission is granted Under Section 35(1) of the Gujarat Maritime Board Act, a letter granting such permission specifically says that it is permission that is granted Under Section 35(1) and for this purpose, a letter dated 2nd August, 2008 was referred to. According to him, therefore, the letter dated 14th June, 2007, which referred only to an NOC for reclamation, could not be given the status of permission Under Section 35(1).

According to the learned Counsel, therefore, if Section 35(1) were to be read with Section 35(2), it would be clear that permission for reclamation would only be necessary if a private asset were to be created in the hands of a private person. However, it is clear that the asset to be created belonged only to the Government of Gujarat and it was for the GMB to grant permission to the Appellants to use the same. We are afraid that it is difficult for us to accept this line of argument. Section 35(1) is couched in negative language and does not refer to private rights being created. Section 35(2) cannot be read so as to throw light on Section 35(1), as Under Section 35(2), the GMB is only given a discretionary power to require a person, who has acted in contravention of Section 35(1), to remove the illegal erection.

The wide language of Section 35(1) cannot be whittled down by Section 35(2) in the manner argued by Shri Joshi, as the GMB may or may not utilise the discretionary power granted to it Under Section 35(2). The plain language of Section 35(1) cannot be curtailed by reading by inference, into Subsection (2), the fact that the GMB may, by notice, require a person to remove an erection, only when it has been made without previous permission, so as to create a private asset in the hands of a private person. The wide language of Section 35(1) makes it clear that any reclamation within the limits of the GMB cannot be carried out except with the previous permission in writing of the GMB. It is clear, therefore, that dredging to a depth of below 8 meters and reclamation of any area to the south of the mangroves was done by the Appellants in the teeth of Section 35(1) of the Gujarat Maritime Board Act.

17. Mr. Sibal laid great stress on the letter dated 15th November, 2012 to show that, in point of fact, what the Appellants were really angling for was to conduct commercial operations beyond the captive requirements of the Essar Steel plant at Hazira. This letter, while asking for an addition of 3700 meters in addition to the existing 1100 meters waterfront, also went on to speak of developing a 700 meters berth, along with the GMB, for handling commercial cargo. Apart from this, Essar planned to build a world class container terminal and a dry dock, which would serve the shipping industry generally. It also proposed to reclaim a further 334 hectares land on the southern side with the additional dredged material. A perusal of this letter would leave no doubt about the fact that despite Essar Steel’s production being at much less than what was projected, the Appellants’ continued demands would show that the real motive was to go beyond a captive jetty and to develop a commercial port which, as we have seen, cannot be done without a global tender under the Gujarat Infrastructure Development Act.

18. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated not to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shri Joshi’s contention that any legitimate expectation could be based on any of the aforesaid expired MOUs. The High Court is correct in its conclusion that no such expectation could possibly have arisen out of the aforesaid MOUs or the correspondence between the Appellants and the GMB referred to.

19. It is also important to note from the correspondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would not only belong to the Government of Gujarat, but also that the GMB could utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own cost, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a consequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth could be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB.

In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is constructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the cost, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for the Appellants’ own use, thanks to large amounts being spent, is contrary to the correspondence by the Appellants themselves.” An identical approach was adopted in Saroj Screens Pvt. Ltd. v Ghanshyam & Ors., (2012) 11 SCC 434.

39. The principle that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all, articulated in Nazir Ahmad v. Emperor, AIR 1936 PC 253, has found widespread acceptance. In the context of this case, it means that if alienation or creation of any interest in respect of MCGM’s properties is contemplated in the statute through a particular manner, that end can be achieved only through the prescribed mode, or not at all.

40. This Court also notices that an initial No Objection Certificate was issued by MCGM voluntarily, for creation of interest in respect of its properties. Upon its refusal to grant approval, SevenHills filed proceedings under Article 226 before the Bombay High court (W.P. No 1728 of 2011), in which the Court directed to grant issuance of certificate. At the same time, the High Court observed as follows:

“11. …… It is, however, required to be noted here that the Corporation is nor borrowing any amount for its purpose….If the petitioners want financial assistance from the Bank, naturally, it cannot mortgage only the superstructure but the entire property is required to be mortgaged. Aprart from that even if there is a defect in the title in the matter of creating mortgage, the Corporation is not going to suffer in any manner and it is for the concerned Bank to consider the same while giving financial assistance.

The Corporation is not going to get any financial assistance from the Bank and, therefore, whatever documents which the petitioners may execute in favour of the Bank, the Corporation is not bound by the same….The said NOC can be granted by the Corporation without prejudice to its rights and contentions that the land in question belongs to them and, therefore, no mortgage could have been created for the same. It is always open to the Corporation to ascertains right to the extent that they are not bound by execution of such documents with the Bank….However, such grant of NOC, would be without prejudice to the rights and contentions of the Corporation. The Corporation may also mention such aspect while giving NOC to the petitioners that such NOC is given without prejudice to the rights and contentions that their land could not have been mortgaged by the petitioners with the Bank.

(emphasis supplied)

12. ……Apart from the same, by granting NOC it cannot be construed that the Corporation has also mortgaged its property in favour of Axis Bank in any manner….

15. ….It is clarified that this order is passed without prejudice to the rights and contentions of both the sides and it will have no effect so far as deciding the matter on merit is concerned…..”

*************** *************

41. The material placed on record by MCGM before this Court also reveals that the meeting held by the Corporation on 14th December, 2018, referred back to the resolution proposal given by SNMC. The minutes of the meeting records that three members were unanimous in their view that since SevenHills had not complied with the terms and had even sought to encumber the property by mortgage, SNMC, a UAE based company, ought not be granted approval to take over the plot and proceed with its project.

42. Now, this court proposes to deal with the contention that the provisions of the Code override all other laws and hence, that the resolution plan approved by the NCLT acquires primacy over all other legal provisions. Facially, this argument appears merited. Section 238 enacts that: “238. Provisions of this Code to override other laws. – The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”

43. The scope of this provision has been the subject matter of debate in several judgments of this court. In Jaipur Metals & Electricals Employees Organization v. Jaipur Metals & Electricals Ltd. (2019) 4 SCC 227, the correctness of a High Court’s view which refused to transfer winding up proceedings pending before it and set aside the NCLT’s order admitting an insolvency resolution application at the behest of a financial creditor, was in issue. This court held as follows, setting aside the judgment impugned in that case: “It is clear that Respondent No. 3 has filed a Section 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows:

“238. Provisions of this Code to override other laws. – The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.” 18. Shri Dave’s ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside.”

44. In the recent judgment in Duncans Industries v. A.J. Agrochem 2019 SCC Online (SC) 1319, the issue was that action under Section 16D(4) of the Tea Act, which provides that the Central Government could take such steps as may be necessary for the purpose of efficiently managing the business of the undertaking, had been taken. It was urged that any notification under Section 16D has effect for five years, which could only be extended if the Central Government was of the opinion that it is expedient to do so in public interest, for such period not exceeding one year at a time, and for total period not exceeding six years. It was submitted that Section 16E refers to the power of the Central Government to restart the tea undertaking if it is found necessary in the interest of the general public. The argument was that an insolvency process is also meant to culminate in liquidation, if there is no revival, and that since the Tea Act permits the Central Government to take over the management of a tea estate which is not run properly, prior permission under Section 16G is applicable to such an estate, the management of which has been taken over by the Government. This contention was negatived, by this court, which relied on Section 238 of the Code.

45. In Macquaire Bank Ltd. v. Shilipi Cable Techologies Ltd. (2018) 2 SCC 674, one of the issues was the interplay between Section 9 of the Code and provisions of the Advocates Act. It was argued that a demand notice issued through an advocate was not permissible and that the provisions of the Code overrode all other laws. This court negative the contention, holding that it is only in the case of inconsistency, that by reason of Section 238 of the Code would its provisions prevail. On a harmonious construction of the seemingly inconsistent provisions, if the court could give effect to both, it would do so.

46. Dharani Sugars & Chemicals Ltd. v. Union of India & Ors. (2019) 5 SCC 480 is a relevant recent decision of this court. The question which arose in that case was the legality and constitutionality of directions issued by the Reserve Bank of India, through a circular of 12th February, 2018 regulating resolution of stressed assets of debtors. This court elaborately dealt with provisions of the Banking Regulation Act, 1949 and the Reserve Bank of India Act, 1934 and held that the power to issue directions regarding initiation of insolvency proceedings vested in the RBI, subject to the approval of the Central Government. The court significantly held that the power was contained “within the four corners” of Section 35AA and observed as follows:

“A conspectus of all these provisions shows that the Banking Regulation Act specifies that the Central Government is either to exercise powers along with the RBI or by itself. The role assigned, therefore, by Section 35AA, when it comes to initiating the insolvency resolution process under the Insolvency Code, is thus, important. Without authorisation of the Central Government, obviously, no such directions can be issued.

30. The corollary of this is that prior to the enactment of Section 35AA, it may have been possible to say that when it comes to the RBI issuing directions to a banking company to initiate insolvency resolution process under the Insolvency Code, it could have issued such directions Under Sections 21 and 35A. But after Section 35AA, it may do so only within the four corners of Section 35AA.

31. The matter can be looked at from a slightly different angle. If a statute confers power to do a particular act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any manner other than that which has been prescribed. This is the wellknown Rule in Taylor v. Taylor, [1875] 1 Ch. D. 426, which has been repeatedly followed by this Court. Thus, in State of U.P. v. Singhara Singh, (1964) 4 SCR 485, this Court held: ‘The Rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.

The principle behind the Rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of Accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. (at pp. 490-491).

Following this principle, therefore, it is clear that the RBI can only direct banking institutions to move under the Insolvency Code if two conditions precedent are specified, namely,

(i) that there is a Central Government authorisation to do so; and

(ii) that it should be in respect of specific defaults. The Section, therefore, by necessary implication, prohibits this power from being exercised in any manner other than the manner set out in Section 35AA.”

47. In the opinion of this court, Section 238 cannot be read as overriding the MCGM’s right – indeed its public duty to control and regulate how its properties are to be dealt with. That exists in Sections 92 and 92A of the MMC Act. This court is of opinion that Section 238 could be of importance when the properties and assets are of a debtor and not when a third party like the MCGM is involved. Therefore, in the absence of approval in terms of Section 92 and 92A of the MMC Act, the adjudicating authority could not have overridden MCGM’s objections and enabled the creation of a fresh interest in respect of its properties and lands.

No doubt, the resolution plans talk of seeking MCGM’s approval; they also acknowledge the liabilities of the corporate debtor; equally, however, there are proposals which envision the creation of charge or securities in respect of MCGM’s properties. Nevertheless, the authorities under the Code could not have precluded the control that MCGM undoubtedly has, under law, to deal with its properties and the land in questionwhich undeniably are public properties. The resolution plan therefore, would be a serious impediment to MCGM’s independent plans to ensure that public health amenities are developed in the manner it chooses, and for which fresh approval under the MMC Act may be forthcoming for a separate scheme formulated by that corporation (MCGM).

48. The last contention of the respondents, that MCGM was bound by the statement made by its counsel, in the opinion of this court, cannot prevail. As held earlier, there is no approval for the plan, in accordance with law; in such circumstances, the written plea accepting the plan, by a counsel or other representative who is not demonstrated to possess the power to bind MCGM, is inconclusive. In this regard, the court notices the wellknown principle that there can be no estoppel against the express provisions of law. (Ref. Kasinka Trading v. Union of India (1995) 1 SCC 274, Darshan Oils (P) Ltd. v. Union of India (1995) 1 SCC 345, Shrijee Sales Corporation v. Union of India (1997) 3 SCC 398, Shree Sidhbali Steels Ltd. v. State of U.P. (2011) 3 SCC 193, Pappu Sweets and Biscuits v. Commr. of Trade Tax, U.P. (1998) 7 SCC 228 and Commr. of Customs v. Dilip Kumar & Co. (2018) 9 SCC 1.)

49. In view of the foregoing reasons, this court holds that the impugned order and the order of the NCLT cannot stand; they are hereby set aside. The appeal is accordingly allowed, without orders on costs.

J. [ARUN MISHRA]

J. [VINEET SARAN]

J. [S. RAVINDRA BHAT]

New Delhi,

November 15, 2019.


 

Manju Puri Vs. Rajiv Singh Hanspal & Ors-14/11/2019

SUPREME COURT OF INDIA JUDGMENTS

Revocation of probate- Rule 9 of the High Court Rules, Chapter XXXV is applicable only in case of grant of letters of administration and not applicable to the grant of probate.

“We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant”.

SUPREME COURT OF INDIA

Manju Puri Vs. Rajiv Singh Hanspal & Ors.

[Civil Appeal No.8455 of 2019 arising out of SLP (C) No.20452 of 2017]

ACT: Chapter XXXV of the Rules of the High Court at Calcutta (Original Side), 1914 AND Section 283 of Indian Succession Act, 1925

FROM: Calcutta High Court

ASHOK BHUSHAN, J.

1. This appeal has been filed against the Division Bench judgment dated 13.04.2017 of Calcutta High Court dismissing the appeal filed by the appellant against the judgment and order of learned Single Judge dated 24.08.2015 rejecting the application filed by the appellant for revocation of probate dated 04.06.1982 in relation to Will of one Surjan Singh Randhawa.

2. Brief facts necessary to be noticed for deciding this appeal are:

One, Surjan Singh Randhawa had purchased immovable property which was subsequently numbered as 5/1A Belvedere Road, Kolkata along with his brother, Bachittar Singh Randhawa, in the names of their respective wives, Smt. Harnam Kaur Randhawa and Smt. Celia Mary Randhawa. Surjan Singh Randhawa had two daughters, namely, Smt. Gian Hanspal and Smt. Beena Kumari Mehra. On 15.06.1961, Surjan Singh Randhawa executed a Will bequeathing the above immovable property to his eldest daughter, Smt. Gian Hanspal. Surjan Singh Randhawa died on 28.11.1962.

Registered gift deed dated 25.03.1964 was executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal with regard to above property numbered as 5/1C Belvedere Road, Kolkata on 27.05.1982. Bachittar Singh Randhawa, brother of late Surjan Singh Randhawa filed a probate petition before the Calcutta High Court seeking grant of probate in relation to the Will dated 15.06.1961. Along with probate petition three no objection certificates were attached i.e. certificates of Smt. Gian Hanspal, Smt. Harnam Kaur Randhawa and Smt. Beena Kumari Mehra. Calcutta High Court vide its order dated 04.06.1982 allowed the application and granted probate in favour of Bachittar Singh Randhawa.

3. In April, 1984, Smt. Beena Kumari Mehra filed a suit against Smt. Gian Hanspal for partition of the property including the premises 5/1C Belvedere Road, Kolkata. In the suit Smt.Gian Hanspal was impleaded as defendant. In the suit Smt. Beena Kumari Mehra claimed that after the death of Smt. Harnam Kaur Randhawa, the mother of the plaintiff, she along with her sister, Smt. Gian Hanspal became entitled to share in the property. In the suit written statement was filed by Smt. Gian Hanspal opposing the claim of the plaintiff. It was pleaded in the written statement that Smt. Harnam Kaur Randhawa has gifted the premises 5/1C Belvedere Road, Kolkata by registered Gift Deed dated 25.03.1964, the suit was claimed to be barred by time. Smt. Gian Hanspal died during the pendency of the suit on 24.02.1988 and her heirs were impleaded.

4. Dr. Harbhajan Singh Hanspal, who was substituted in the suit being T.S. No.61 of 1984 filed a written statement reiterating the claim on the basis of the registered gift deed dated 25.03.1964. It was further pleaded that the plaintiff had notice and knowledge of the Will at least from 29.08.1984 when the copy of the written statement was served upon the plaintiff. Smt. Beena Kumari Mehra died on 05.05.2008.

5. The suit filed by Smt. Beena Kumari got dismissed for non-prosecution and application for restoration of the suit also failed. On 28.06.2010, Rajiv Singh Hanspal, son of Smt. Gian Singh and late Dr. Harbhajan Singh Hanspal with two others sold the premises, 5/1C Belvedere Road, Kolkata in favour of one Rungta Mines Limited.

6. The appellant came to know about the conveyance deed and through conveyance deed came to know the probate dated 05.06.1982. The appellant, daughter of Smt. Beena Kumari Mehra, filed an application G.A. No.2441 of 2011 for revocation of the probate granted on 05.06.1982 impleading respondent Nos.1, 2 and 3 as the legal heirs of Gian Hanspal, respondent No.4, the purchasers of the premises in dispute by conveyance deed and respondent Nos.5 and 6 as performa respondents were impleaded. The brothers of the appellant were impleaded as proforma respondents. In the application the case of the appellant was that after coming to know about the conveyance she got inspected the probate application, records of P.L.A. No.90 of 1982 on 19.05.2011 and came to know that on the basis of no objection certificate of the appellant’s mother, late Smt. Beena Kumari Mehra probate was granted. Appellant’s case was that probate was obtained upon false representation, without any notice to the appellant’s mother who was legal heir of the deceased, Surjan Singh Randhawa. It was further pleaded that signatures of the appellant’s mother on the said no objection certificate were forged signatures as the appellant’s mother was shown to have signed as Beena Mehra, whereas she used to sign as Beena Kumari Mehra which is apparent from her signatures in Passport, Will and her PAN Card.

It was further pleaded that purported Will dated 15.06.1981 was not the genuine Will and was created after his death to deprive her mother of her legal entitlement in the suit property as a legal heir of the deceased. The application of the appellant for revocation of the probate was contested by the respondents. Learned Single Judge vide order dated 24.08.2015 rejected the application for revocation of probate. Learned Single Judge held that the appellant under Indian Succession Act, 1925 is not entitled to any citation. The mother of the appellant who could have possibly objected to the said grant had filed an affidavit for consent. Learned Single Judge further held that moreover, there is an inordinate and inexplicable delay in filing the application. The mother of the appellant never objected the grant during her life time. Application was rejected on these observations.

7. The appeal was filed by the appellant before the Division Bench against the judgment of the learned Single Judge dated 24.08.2015 and which appeal also came to be dismissed by the Division Bench by order dated 13.04.2017 impugned in the present appeal. The Division Bench held that the trial court appears to have considered the matter in its proper perspective and the relevant discretion exercised in rejecting the petition for revocation does not appear to be perverse.

8. We have heard Shri Siddharth Luthra, learned senior counsel, appearing for the appellant and Shri Jayant Bhushan, learned senior counsel, appearing for respondent Nos.1, 2 and 3. We have also heard Shri Jishnu Saha, learned senior counsel appearing for respondent No.4.

9. Shri Luthra contended that probate was granted on 04.06.1982 within a week from filing of the application on 27.05.1982 without issuing any citation to mother of the appellant who was younger daughter of Surjan Singh Randhawa, a legal heir. No objection certificate which was appended with the probate application alleged to have been signed by Beena Kumari was a forged no objection certificate. Beena Kumari, the mother of the appellant used to sign as Beena Kumari Mehra.

It is further submitted that a suit was filed for partition of the suit property by Beena Kumari in April, 1984 in which suit written statement was filed by Smt. Gian Hanspal where there was no reference to probate dated 04.06.1982. The claim of the suit premises was on the basis of the gift deed dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal. It is submitted that had Beena Kumari given consent in the probate proceedings there was no question of her filing suit for partition. The factum of filing of suit for partition by appellant’s mother clearly indicates that neither she has filed no objection certificate nor she was aware of such proceedings.

It is submitted that the application filed by the appellant who is daughter of Smt. Beena Kumari Mehra was fully covered under the grounds for revocation under Section 263. The proceeding for obtaining the grant of probate was fraudulent proceeding which ought to have been set aside by the High Court. It is submitted that for grant of probate it is necessary to issue a citation to legal heirs and no citation having been issued in the present case the entire proceeding deserved to be set aside.

10. Shri Siddharth Luthra has also referred to Chapter XXXV of the Rules of the High Court at Calcutta (Original Side), 1914 (hereinafter referred to as “High Court Rules”) dealing with the Testamentary and Intestate Jurisdiction. Shri Luthra submits that Rules contemplate issuance of citation.

11. Shri Jayant Bhushan, learned senior counsel, appearing for respondent Nos.1,2 and 3 submits that for grant of probate it is not mandatory to issue a citation. He submits that use of word ‘may’ in Section 283 of Indian Succession Act, 1925 clearly indicates that it is in the discretion of the District Judge to issue or not to issue citation. Mere non-issuance of citation does not lead to any illegality. Referring to Rule 9 of Chapter 35 of the Rules of the High Court at Calcutta (Original Side), 1914, Shri Jayant Bhushan submits that issuance of citation is contemplated for letters of Administration unless such person signifies consent, which Rules also provide for grant of probate. He submits that there being no objection by Smt. Beena Kumari Mehra there was no occasion of issuance of any citation as well and there is no illegality found in the above probate.

12. He further submits that probate proceedings were initiated by Bachittar Singh Randhawa, brother of deceased. He further submits that the suit for partition filed in April, 1984 was dismissed for non-prosecution and the matter was not further carried by Smt. Beena Kumari Mehra, it is clear that she never wanted to prosecute the matter any further. After the death of Smt. Beena Kumari Mehra it is not open to the appellant to file an application for revocation of probate after 30 years of grant when both Smt. Beena Kumari Mehra and Smt. Gian Hanspal are dead. He further submits that in view of the dismissal of suit for partition any claim for possession of the suit premises is barred and no useful purpose shall be served in exercising jurisdiction under Article 136 in the facts of the present case. Mother’s suit for partition having been dismissed for non-prosecution, suit by daughter is clearly barred.

13. Learned counsel appearing for respondent No.4 submits that respondent No.4 is a bona fide purchaser for value who purchased the property on the strength of probate granted in favour of the vendors. He submits that the rights of respondent No.4 need to be protected and it cannot suffer due to fight between the appellant and respondent No.1,2 and 3. He further submits that in any view of the matter the revocation of probate shall operate prospectively not affecting any of the rights of respondent No.4.

14. Learned counsel for the parties have also referred to and relied on some judgments which we shall notice hereinafter.

15. We have considered the submissions of the learned counsel of the parties and perused the material on record.

16. The main issue needs to be considered and answered in the appeal is as to whether sufficient grounds were made out in the application for revocation of probate filed by the appellant and the High Court committed error in rejecting the application as well as dismissing the appeal.

17. There is no dispute regarding relationship of the parties. The appellant is a daughter of Smt. Beena Kumari Mehra who was the youngest daughter of Surjan Singh Randhawa, the deceased whose Will was probated by the High Court. Respondent Nos.1,2 and 3 are legal heirs of eldest daughter of deceased Surjan Singh Randhawa, Smt. Gian Hanspal.

18. Both the learned Single Judge and the High Court in rejecting the application filed by the appellant for revocation had observed that there was inordinate delay in filing the application. The probate of the Will was granted on 04.06.1982 and the application for revocation of probate was filed by the appellant with affidavit which is dated 27.07.2011. From the conveyance deed she claimed to know about the case being No. PLA No.90 of 1982 where the High Court granted probate of the Will of 04.06.1982. In paragraph 15 of the application the details of coming to know about the probate proceedings have been mentioned which are relevant to be reproduced:

“15. After coming to know of the said facts your petitioner instructed her advocate on record to Institute suitable legal proceedings for cancellation of the said Indenture. However, she was advised that before instituting the legal proceedings it was necessary to take inspection of proceedings in which probate to the purported last Will of the said deceased was granted to ascertain whether the petitioner’s mother had consented to grant of the said probate and whether the Will of the said deceased was genuine. As advised your petitioner come down to Kolkata and took inspection of the records of PLA No.90 of 1982 on 19.5.2011. From the records of the said PLA it appears that the same was filed on 27.5.1982 and that a purported no objection certificate of your petitioner’s mother notarised on 19.4.1982 upon identification by one Dilip Kumar Basu said to be practicing as Advocate in the Learned Chief Metropolitan Magistrate’s Court, was filed in order to show as if your petitioner’s mother had given no objection to grant of probate of the said Will.

Your petitioner also inspected the said no objection certificate which your petitioner’s mother is alleged to have signed as “Beena Mehra”. The said signature is not of your petitioner’s mother. Your petitioner’s mother always signed as “Beena Kumari Mehra”. The copies of PAN Card and Passport of your mother issued in July 1982 both bearing her genuine signatures are annexed thereto and collectively marked Annexure “E”. Prior to her death on 5.5.2008 your petitioner’s mother had made her last Will dated 30th June 2005 which was registered. The said Will also bears her genuine signatures. A copy of the said Will is annexed hereto and included in Annexure “E”. The handwriting under which the said words “Beena Mehra” have been written is not of your petitioner’s mother. From the records of the said PLA it further appears that purported no objections of the said Harnam Kaur Randhawa and Gian Hanspal also notarised by the same Notary in April 1982 were filed. Your petitioner’s advocate has obtained, a certified copy of the application in said PLA a copy whereof is annexed hereto and marked Annexure “F”.”

19. In the application also details of Suit No.61 of 1984 filed by Beena Kumari Mehra, mother of the appellant, have been mentioned wherein written statement was filed by Smt. Gian Hanspal. The filing of suit for partition by Smt. Beena Kumari Mehra is not denied nor filing of written statement by Smt. Gian Hanspal is denied. The copy of the plaint of Suit No.61 of 1984 has been brought on record as Annexure ‘P-4’. It is indicated that the appellant’s mother claimed that after the death of her mother on 12.04.1982 she and her elder sister, defendant No.1 became co-sharer to the extent of ½ share each in the property. There was no reference of probate dated 04.06.1982 or no objection given by Beena Mehra in the written statement filed by Smt.Gian Hanspal, the defendant No.1, although in paragraph 1 there is mention of registered gift given by Smt.Harnam Kaur Randhawa in favour of the Smt. Gian Hanspal which is to the following effect:

“1. The allegations of paragraph 1 of the plaint are not correct. Mrs. Harnam Kaur Randhawa long before her death made a gift of the house and premises No.5/1C Belvedere Road by a registered instrument dated 25.03.1960. After that defendant has been the sole and absolute owner of the said premises. The defendant having been in possession of the said property from 1964 March to date on the basis of and on a claim of title, the plaintiff’s claim of succession as an heir of the mother is not tenable in law and fact.”

20. But there was no mention in the entire written statement about the probate dated 04.06.1982. The pleadings in the above proceedings clearly indicate that neither there was knowledge of any probate proceedings nor even claim of probate proceedings was taken by Smt. Gian Hanspal in the written statement which was filed in the year 1984. The suit filed by Smt. Beena Kumari Mehra got dismissed in default on 26.03.1986 and an application for restoration of the suit was also dismissed for default on 19.08.2006. Smt. Beena Kumari Mehra died on 05.05.2008. When the case was set by the appellant in the application for revocation that she came to know about the probate proceedings only through conveyance deed executed by respondent Nos.1,2 and 3 in favour of respondent No.4 dated 28.06.2010 and she got inspection of the records of PLA No.90 of 1982 on 19.05.2011 and came to know about the probate proceedings and alleged no objections by her mother, Smt. Beena Kumari Mehra. Without adverting to these facts, the High Court could not have jumped on the conclusion that there is inordinate delay in filing the revocation application. Neither there is anything brought on record by respondent Nos.1, 2 and 3 to indicate that the appellant or her mother had knowledge of probate proceedings on any prior date nor the High Court has returned any finding that the appellant had knowledge of probate proceedings and she is guilty of filing an application with delay. There being no finding of the Calcutta High Court that on any earlier point of time the appellant had knowledge of the probate proceedings, the observation that the application having been filed with inordinate delay and deserved to be rejected cannot be approved.

21. We, thus, are of the view that in the facts and circumstances of the present case no delay can be imputed on the appellant in filing application for revocation of probate when after getting inspection of the PLA records on 19.05.2011 she immediately filed the application for revocation of the probate in July, 2011 itself. The observation of the High Court that there was inordinate delay is unsustainable.

22. Now, we come to the submission that as to whether issuance of citation to the legal heir is contemplated according to the provisions of the Indian Succession Act, 1925 as well as the High Court Rules. Chapter III of the Succession Act deals with alteration and revocation of grants. Section 263 provides for revocation or annulment for just cause which is to the following effect:

“263. Revocation or annulment for just cause.-The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation.-

……… ……… ………

Illustrations

(i) ……… ……… ………

(ii) The grant was made without citing parties who ought to have been cited.

(iii) The will of which probate was obtained was forged or revoked.

……… ……… ………”

23. Chapter IV of the Succession Act contains a heading “OF THE PRACTICE IN GRANTING AND REVOKING PROBATES AND LETTERS OF ADMINISTRATION”. Section 268 of the Act provides that proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.

24. Section 276 deals with petition for probate. Section 283 deals with the powers of District Judge. Section 283 is as follows:

“283. Powers of District Judge.-

(1) In all cases the District Judge or District Delegate may, if he thinks proper,–

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.”

25. We may revert back to the proceedings which were undertaken in the present case. The Will of Surjan Singh Randhawa which has been probated is unregistered Will dated 15.06.1961. For the probate of the Will the application was filed by the executor on 27.05.1982 and the Will was probated on 04.06.1982. It is admitted case of the parties that no citation was issued by the learned Single Judge to any of the legal heirs of deceased. In the present case counter-affidavit has been filed by respondent Nos.1,2 and 3 where they have taken a specific case that citation was not required to be issued. In the probate proceedings since Smt. Beena Kumari Mehra consented to grant a probate, in paragraph 3(y) of the counter-affidavit following has been stated:

“3(y) The said Smt. Harnam Kaur Randhawa, and Gian Hanspal came to know about the Will in the year 1981. Immediately thereafter, the said Smt. Harnam Kaur Randhawa took steps for obtaining the probate of the Will. Since Beena Kumari Mehra consented to the grant of probate, there was no occasion to serve any citation on her. Under Indian Succession Act, citation is served only upon dissenting heirs of the testator.”

26. Shri Jayant Bhushan, learned senior counsel, appearing for the respondent Nos.1,2 and 3 has submitted that it was not mandatory for District Judge to issue citation where no objection certificate/consent has been filed by the legal heirs of the deceased.

Section 283 as extracted above deals with the power of District Judge. In Section 283(1) the word ‘may’ has been used which as submitted by the learned counsel for the respondents gives discretion to District Judge to issue citation or not. The power given to the District Judge under Section 283 governs both petition for probate which is provided in Section 276 and petition for letters of administration as provided in Section 278. The Calcutta High Court has framed Rules, namely, Rules of the High Court at Calcutta (Original Side), 1914, Chapter XXXV of which relates to Testamentary and Intestate Jurisdiction. Rules 5A, 9 and 12 of the Rules which are relevant are as follows:

“5A. In all applications for probate or for letters of administration with the will annexed the petition shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence.

9. Citation to rightful parties. – On an application for letters of administration, unless otherwise ordered, a citation shall issue to all persons having a right to take the grant prior or equal to that of the applicant, unless such persons have signified their consent to the application.

12. Direction in citation to show cause on a certain day. – All citations shall, unless otherwise ordered, direct the persons cited to show cause on the fourth day from the day of service where the parties to be cited reside within the town of Calcutta, or on such day certain as the Judge shall direct where they reside outside Calcutta; and, where they cannot be served in the manner provided for service of process, may be served by the insertion as an advertisement in such local newspapers as may be directed, of a Notice in Form No. 5.”

27. Rule 5A provides that in all the applications for probate or for letters of administration with the Will annexed the petition shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence. Rule 9 deals with citation to rightful parties which requires issue of citation or an application of letters of administration unless such persons have signified their consent to the application. Rule 9 begins with the words “on an application for letters of administration”. Had Rule making authority wanted to Rule 9 to apply to probate also they ought to have used both the phrases probate or letters of administration.

Rule making authority wherever intended to refer both i.e. applications for probate or for letters of administration, the same has been used like in Rule 4, Rule 4A, Rule 4B, Rule 5A, Rule 6 where both the expressions “probate of a Will” and “letters of administration” have been used whereas Rule 7 uses the expression letters of administration. Rule 9 uses only the expression letters for administration. Rule 12 deals with direction in citation to show cause on a certain day. Rule 12 does not refer to either probate or letters of administration and thus, is equally applicable to both the expressions. The applicability of Rule 12 with regard to both letters of administration and probate which is clear from Form V which uses the expression:

“Petition for probate________________

Letters of Administration”

28. Learned counsel for the respondents has submitted that Rule 9 which provides that in case where persons have signified their consent, no citation needs to be issued also applies to the case of probate. The acceptance of the above argument shall be permitting addition of a word “probate” in Rule 9 whereas Rule 9 only uses expression “letters of administration”.

29. The Calcutta High Court has already taken the view that Rule 9 of the High Court Rules, Chapter XXXV is applicable only in case of grant of letters of administration and not applicable to the grant of probate. In Jyotsana Rajgarhia vs. Dipak Kumar Himatsingka, (2002) ILR 2 Cal 402, the High Court had occasion to consider a case where revocation of a probate was asked for. In the above case also the person seeking for revocation for grant of a probate was claimed to have consented to such grant and it was contended that since the party has consented for grant of probate it was not entitled for issuance of any citation. In paragraphs 1 and 2 of the judgment facts of the case are noted which are to the following effect:

“1. This is an application for revocation of the probate granted by this Court dated February 10, 1987 in No. 17 of 1987 in the Goods of Smt. Usha Devi Himatsingka and further recalling the order dated January 21, 1987 granting probate. The probate was granted without any contest admittedly. The Petitioner and the Respondent No. 2, viz., Anita Fetehpuria are two sisters. The Respondent No. 2 is supporting the Petitioner and also asking for revocation of grant of probate.

2. The short case of the Petitioner is that the probate was obtained fraudulently and without serving any citation and/or notice of filing of such application. Consent which was recorded at the time of grant of probate was fraudulent and no lawyer was engaged either on behalf of the Petitioner or on behalf of the Respondent No. 2 to give consent. She had no knowledge of passing of the impugned order of granting probate until May 1999 when a letter was communicated by M/ s. Sinha and Co. together with copies of the application on which probate was granted to the last Will and testament of her mother dated September 17, 1981. She has also stated that she never engaged any. lawyer nor executed any Vakalatnama in favour of Mr. Pulak Lahiri or any other person. The said Vakalatnama allegedly executed in favour of Pulak Lahiri is forged one. As such Pulak Lahiri did not have any authority either to appear or give consent on behalf of the Petitioner to grant probate.

30. On service of citation it was contended before the High Court that in view of Rule 9 service of citation was not necessary which argument was repelled by the High Court in the following words:

“36………Moreover it is noticed that grant is also defective as no citation either special; or general was served upon the applicant under Section 283(1)C and (2) of Indian Succession Act 1925. It is contended by Mr. A.K. Mitra that, since consent was signified by the applicant under f. 9 of Chapter XXXV of the Original Side Rule, service of citation was not necessary. I am unable to accept this contention, as the above Rule is applicable in case of grant of Letters of Administration, not probate.”

31. A plain reading of Section 283 makes it clear that by the use of word ‘may’ a discretion has been conferred on the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased. Although, it is true that there is discretion vested to issue citation or not but such discretion has to be exercised with proper care. The Calcutta High Court in Kamona Soondury Dassee v. Hurro Lall Shaha, (1882) ILR 8 Cal 570, had occasion to consider pari materia provision of Section 250 of the Succession Act, 1865 where discretion was vested in the District Judge to issue citation or not. Calcutta High Court had observed in the said case that when Will is propounded which alters the devolution of property, a special citation should be directed. Further the discretion vested with the District Judge has to be exercised with proper care. Following observation was made by the Calcutta High Court:

“……Section 250 of the Succession Act vests the District Judge with full discretion, which should be exercised with proper care: and when a will is propounded which alters the devolution of property, a special citation should be directed to be served upon the person or persons who is or are immediately affected by the will. ……”

32. The Calcutta High Court in another judgment in Shyama Charan Baisya vs. Prafull Sundari Gupta, AIR 1916 Cal 623, in a case where provisions of Probate and Administration Act, 1881 came for consideration, held that when a Will is propounded which alters the devolution of property, the District Judge should, in the exercise of the discretion, should direct the special citation. Following was held in the judgment:

“……as observed in the case of Nistariny v. Brahmomyi, (1891) 18 Cal. 45, when a will is propounded which alters the devolution of property, the District Judge should, in the exercise of the discretion vested in him by S.69 of the Probate Act as to the mode of issuing citations, direct special citations to persons whose rights are immediately affected by the will. ……”

33. In the present case although there cannot be any dispute to the legal proposition that discretion is vested under Section 283 to issue citation or not but such discretion has to be judicially exercised with proper care adverting to the facts of each case.

34. In the case before us the Will was dated 15.06.1961, probate application was filed on 27.05.1982, that is almost after 20 years. The application for probating a Will which is claimed to have been executed 20 years before, learned Single Judge ought to have been cautious in proceeding further with the matter.

We notice that along with the application for probating the Will which has been brought on the record as Annexure P-2, the propounder of probate has verified the application along with a consent certificate which was annexed by Smt. Harnam Kaur Randhawa wife of Surjan Singh Randhawa, Smt. Gian Hanspal wife of Dr. Harbhajan Hanspal daughter of Surjan Singh Randhawa and no objection of Smt. Beena Mehra wife of V.K. Mehra another daughter of Surjan Singh Randhawa. Both Smt. Harnam Kaur and Smt. Gian Hanspal were beneficiary of the Will their no objection to the Will had no adverse effect. The no objection given by Smt. Beena Mehra was material since Beena Mehra being second daughter of deceased was being dis-inherited from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama.

35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings.

Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement.

No mention of probate proceedings clearly indicates that neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings. In the said proceedings, when a Will is sought to be probated after 20 years of its execution the High Court ought to have more cautiously proceeded with the probate proceedings. The Calcutta High Court in Harimati Debi and another vs. Anath Nath Roy Choudhury, AIR 1939 Cal 535, in concurring judgment of Latifur Rahman, J. held that where an unregistered Will is sought to be propounded after the lapse of more than 20 years it is required that all manner of doubt and suspicion is removed.

36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant.

37. Learned senior counsel appearing for respondent No.4 who is the purchaser of the property from respondent Nos.1,2 and 3 by conveyance deed dated 28.06.2010 has contended that the rights of respondent No.4 be protected since he is a bona fide purchaser with value. Although, the respondent No.4 was impleaded as one of the parties, we are of the view that at thisstage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings.

38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyance dated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalid.

39. Shri Jayant Bhushan submits that in view of probate proceedings as well as adverse consequences on the appellant with regard to the dismissal of suit for partition filed by the mother for non-prosecution, this Court may not interfere with the proceedings/order passed by the Calcutta High Court. The Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982. We allow this appeal, set aside orders passed by the learned Single Judge as well as Division Bench of the Calcutta High Court, application for revocation of probate is allowed, probate dated 04.06.1982 is revoked. The application PLA No.90 of 1982 is revived before the learned Single Judge of the High Court which may be considered and decided in accordance with law.

40. The case being old one, we request the High Court to expeditiously dispose of the proceedings. Parties shall bear their own costs.

J. (ASHOK BHUSHAN)

J. (NAVIN SINHA)

New Delhi,

November 14, 2019.


 

Commissioner of Central Excise, Haldia Vs. M/s. Krishna Wax Pvt. Ltd-14/11/2019

It has been laid down by Supreme Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person.

SUPREME COURT OF INDIA

Commissioner of Central Excise, Haldia Vs. M/s. Krishna Wax Pvt. Ltd.

[Civil Appeal No. 8609 of 2019]

[Diary No.17005 of 2018]

ACT: Section 35L of the Central Excise Act, 1944

FROM: Customs, Excise and Service Tax Appellate Tribunal, Kolkata

Uday Umesh Lalit, J.

1. This Appeal under Section 35L of the Central Excise Act, 1944 (‘the Act’, for short) arises out of Order dated 31.05.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (‘the Tribunal’, for short) dismissing Appeal No. E/211/07 preferred by the Appellant herein.

2. The facts leading to the filing of this Appeal, in brief, are as under:-

a) On 23.09.2005 a search was conducted at the registered office as well as the factory premises of the Respondent herein by the officers of the Central Excise Commissionerate on the basis that the Respondent manufactured Foots Oil, Pressed Wax, Pressed Paraffin Wax without observing the mandatory procedure and clearing Excise Duty. Soon thereafter, Writ Petition No. 2073 of 2005 was filed by the Respondent before the High Court1 submitting inter alia that the Assistant Commissioner of Central Excise had no authority to proceed in the matter as no manufacturing activity was undertaken by the Respondent. The High Court by Order dated 28.11.2005 directed as under:-

“Having heard the Learned Advocates appearing for the parties and considering the facts and circumstances of the case, I dispose of this petition by directing the respondent No.1 to decide the preliminary objection raised on behalf of the petitioners regarding the jurisdiction of the respondents to proceed in the matter under Central Excise Act before deciding any other issues in this matter on merit. Since no affidavit in opposition has been used on behalf of the respondents, all allegations levelled against the said respondents in this writ petition should not be deemed to be admitted.”

b) On 21.03.2006 a Show Cause Notice was issued by the office of the Commissioner of Central Excise, Haldia, which stated inter alia that in terms of the aforesaid directions of the High Court, the Assistant Commissioner of Central Excise had considered the preliminary objection and decided to proceed in the matter. It further recited that from the facts available on record it appeared that manufacturing activity was being undertaken by the Respondent without following due procedure and without paying any Excise Duty. It was observed:-

“Whereas M/s. Krishna Wax (Pvt.) Ltd., having their Registered Office at Classic Tower, 10A & 11A Floor, 56 Gariahat Road, Kolkata, had filed a writ petition (No.2073 of 2005) in High Court at Calcutta and obtained an order, whereby the respondent, namely, Assistant Commissioner of Central Excise, was to decide preliminary objection regarding jurisdiction to proceed in the matter under Central Excise Act on merit and it appears to the respondent that the matter can be proceeded with under Central Excise Act and whereas it appears from the facts mentioned below that M/s. Krishna Was Private Ltd. having their manufacturing unit at…..” After the aforesaid opening recitals, the facts were considered and finally the Respondent was called upon to show cause :-

“i) Why the Central Excise Duty of Rs.1,56,31,712.00 (rupees one crore fifty six lakhs thirty one thousand seven hundred and twelve only) Education Cess of Rs.2,11,007.00 (rupees two lakhs eleven thousand and seven only as detailed in Annexure-A) should not be demanded and recovered under the extended proviso to Section 11A of the said Act?

ii) Why interest as applicable at the appropriate rate should not charged under Section 11 AB of the said Act?

3.6. The “said party” is directed to produce all the evidence upon which they intend to rely in support of his defense, when the case will be heard before the Adjudicating Authority.

3.7 The “said party” should also inform whether they wish to be heard in person or through authorized representative when the case will be posted for hearing.”

c) The Respondent again approached the High Court by filing Writ Petition No. 1719 of 2006, which was disposed of on 27.11.2006 by the High Court with following observations:-

“The show cause notice has mainly been challenged on the ground that notwithstanding an order dated 28.11.2005 of this Court (P.K. Chattopadhyay, J.) directing the respondent, Commissioner of Central Excise, Anti-Evasion Unit to decide the preliminary objection raised by the petitioners regarding jurisdiction of the respondents to proceed against the petitioners under the Central Excise Act, 1944, he said respondent had not done so. It was alleged that the Show Cause Notice had been issued without deciding the preliminary objection of the petitioner.

Mr. Tarafdar has produced the records pertaining to the case. It appears that the preliminary objection of the petitioners was decided by an order dated 15th March, 2006. A copy of the said order shall immediately be furnished to the petitioner and in any case within a week from date. … … … The petitioners shall submit their reply to the Show Cause Notice impugned within four weeks from date. It will be open to the petitioners to take objection to the jurisdiction of the concerned Respondents to proceed against the petitioner under the Central Excise Act, 1944. The adjudication proceedings shall be conducted strictly in accordance with law and in compliance with principles of natural justice. The writ application is disposed of accordingly.”

d) Consequently, a copy of the Internal Order dated 15.03.2006 was furnished to the Respondent. Without filing any reply to the Show Cause Notice and, adopting the course in tune with the observations of the High Court in its Order dated 27.11.2006, the Respondent chose to file Appeal No.01/HAL/07 before the Commissioner of Central Excise (Appeals-I) Kolkata challenging the aforementioned Internal Order dated 15.03.2006. It was submitted that no manufacturing process was being undertaken by the Respondent. An objection was taken on behalf of the Appellant that the Appeal was completely premature as the matter was not yet gone into; no reply to the Show Cause Notice was filed by the Respondent and there was, as a matter of fact, no adjudication by the concerned authority. The objections were rejected by the Appellate Authority observing that an appeal could lie against any order passed under the Act by a Central Excise Officer lower in rank to the Commissioner. It was further concluded that the process undertaken by the Respondent did not amount to manufacture as under:-

“I, therefore, find that no new produce has emerged. The names are used interchangeably in literature, character is not changed; only by a mechanical process oil has been separated, but still a high oil content has remained in the wax. Both the raw materials and end products are sold to grease manufacturers and lubricant manufacturers. From tariff also no new entry can be cited for the product. The process involved as such cannot be called incidental to manufacture. Department has failed to discharge the burden to prove manufacture.” The appeal was thus allowed by the Appellate Authority vide order dated 10.01.2007.

e) The Appellant, being aggrieved, filed Appeal No. E/211/07 before the Tribunal, which came to be dismissed by order dated 31.05.2017. The Tribunal concluded that the decision dated 15.03.2006 was appealable before the Commissioner (Appeals) under Section 35 of the Act as it entailed civil consequences. It observed:-

“12. On perusal of the process as stated hereinabove, we find that the Respondent imported the materials under CTH 27129090 & 27129090 amongst others and the Revenue also classified the processed material under the same tariff item. We find that the entire process undertaken by the Respondent-assessee is mainly a manual process and there is a marginal use of hydraulic pressure in the process. … … …

15. In the present case, we find that the imported Slack Wax, Residue Wax is in semi-solid form in drums. Foots Oil is part of Residue Wax or Slack Wax being lighter comes up on surface and siphoned by tilting the drums. The thinner Slack Wax called Foots Oil is thus separated. The pressure created by liquid through orifice for the purpose of exit is known as the hydraulic pressure. Basically, processed materials are emerging from the imported materials and the Revenue classified the processed material under the same Tariff Heading & CTH. The Hon’ble Supreme Court and the Tribunal in various decisions held that such process cannot be treated as manufacture under Section 2(f) of the Central Excise Act, 1944. Thus, we find force in the findings of the ld. Commissioner (Appeals).”

3. We heard Ms. Nisha Bagchi, learned Advocate, in support of this Appeal and Ms. Christi Jain, learned Advocate, for the Respondent. Ms. Bagchi, learned Advocate submitted that the process of adjudication had never taken place in the matter; there was no response to the Show Cause Notice; nothing was submitted by the Respondent denying or disputing the assertions made in the Show Cause Notice and the matter was considered by the Appellate Authority and the Tribunal from completely incorrect perspective.

According to her, in cases such as the present one, where the manufacturing process was undertaken and the goods were cleared without payment of any Excise Duty, the Show Cause Notice itself would cover not only the basic issue whether the process so undertaken amounted to manufacture or not but also the resultant liability, in case the process in question amounted to manufacture; and it would always be open to the assessee to make such submissions touching upon both the issues; and the proper course was to let the proceedings pursuant to the Show Cause Notice, be taken to a logical conclusion.

Ms. Christi Jain, learned Advocate for the Respondent submitted that the Internal Order dated 15.03.2006 had taken a view that the process amounted to manufacture and such assessment was arrived at without affording any hearing to the Respondent. Said order affected the interest of the Respondent adversely and the Respondent was therefore entitled to challenge the Order dated 15.03.2006. According to her, after due service of said Order dated 15.03.2006, the Respondent was well within its rights to challenge said Order. In support of her submission, reliance was placed on the decision of this Court in GKN Driveshafts (India) Ltd. v. Income Tax Officers and others2 and of the decision of the Tribunal in Reliance Industries Ltd. v. Collector of Central Excise3.

4. The Act was enacted to consolidate and amend the law relating to Central Duties of Excise. Section 3 of the Act provides that duty of excise as prescribed shall be levied and collected on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the Fourth Schedule to the Act. Section 4 deals with the subject of valuation of excisable goods for purposes of charging of duties of excise and Section 6 obliges a person who is engaged inter alia in the production or manufacture of any specified goods to get himself registered in such manner as may be prescribed. Section 11A of the Act deals with recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded and is to the following effect:-

“Section 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded.-

(1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty,-

(a) the Central Excise Officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so shortlevied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of,- (i) his own ascertainment of such duty; or (ii)the duty ascertained by the Central Excise Officer the amount of duty along with interest payable thereon under section 11AA.

(2) The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receipt of such information, shall not serve any notice under clause (a) of that sub-section in respect of the duty so paid or any penalty leviable under the provisions of this Act or the rules made thereunder.

(3) Where the Central Excise Officer is of the opinion that the amount paid under clause (b) of sub-section (1) falls short of the amount actually payable, then, he shall proceed to issue the notice as provided for in clause (a) of that sub-section in respect of such amount which falls short of the amount actually payable in the manner specified under that sub-section and the period of one year shall be computed from the date of receipt of information under sub-section (2).

(4) Where any duty of excise has not been levied or paid or has been shortlevied or short-paid or erroneously refunded, by the reason of-

(a) fraud; or

(b) collusion; or

(c) any wilful mis-statement; or (d) suppression of facts; or

(e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice.

(5) to (7) Omitted4 (7A) Notwithstanding anything contained in subsection (1) or sub-section (3) or sub-section (4), the Central Excise Officer may, serve, subsequent to any notice or notices served under any of those subsections, as the case may be, a statement, containing the details of duty of central excise not levied or paid or short-levied or short-paid or erroneously refunded for the subsequent period, on the person chargeable to duty of central excise, then, service of such statement shall be deemed to be service of notice on such person under the aforesaid sub-section (1) or subsection (3) or sub-section (4) or sub-section (5), subject to the condition that the grounds relied upon for the subsequent period are the same as are mentioned in the earlier notice or notices.

(8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of one year referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), as the case may be.

(9) Where any appellate authority or Tribunal or court concludes that the notice issued under sub-section (4) is not sustainable for the reason that the charges of fraud or collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty has not been established against the person to whom the notice was issued, the Central Excise Officer shall determine the duty of excise payable by such person for the period of one year, deeming as if the notice were issued under clause (a) of sub-section (1).

(10) The Central Excise Officer shall, after allowing the concerned person an opportunity of being heard, and after considering the representation, if any, made by such person, determine the amount of duty of excise due from such person not being in excess of the amount specified in the notice.

(11) The Central Excise Officer shall determine the amount of duty of excise under sub-section (10)- (a) within six months from the date of notice in respect of cases falling under subsection (1);

(b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section (4)

(12) Where the appellate authority or tribunal or court modifies the amount of duty of excise determined by the Central Excise Officer under sub-section (10), then the amount of penalties and interest under this section shall stand modified accordingly, taking into account the amount of duty of excise so modified.

(13) Where the amount as modified by the appellate authority or tribunal or court is more than the amount determined under sub-section (10) by the Central Excise Officer, the time within which the interest or penalty is payable under this Act shall be counted from the date of the order of the appellate authority or tribunal or court in respect of such increased amount. (14) Where an order determining the duty of excise is passed by the Central Excise Officer under this section, the person liable to pay the said duty of excise shall pay the amount so determined along with the interest due on such amount whether or not the amount of interest is specified separately.

(15) The provisions of sub-section (1) to 14 shall apply, mutatis mutandis, to the recovery of interest where interest payable has not been paid or part paid or erroneously refunded.

(16) The provisions of this section shall not apply to a case where the liability of duty not paid or short-paid is self-assessed and declared as duty payable by the assessee in the periodic returns filed by him, and in such case, recovery of non-payment or short-payment of duty shall be made in such manner as may be prescribed.

Explanation 1.- For the purposes of this section and section 11AC,-

(a) “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;

(b) “relevant date” means,-

(i) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid, and no periodical return as required by the provisions of this Act has been filed, the last date on which such return is required to be filed under this Act and the rules made thereunder;

(ii) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid and the return has been filed, the date on which such return has been filed;

(iii) in any other case, the date on which duty of excise is required to be paid under this Act or the rules made thereunder;

(iv) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;

(v) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund;

(vi) in the case where only interest is to be recovered, the date of payment of duty to which such interest relates. (c) Omitted.

Explanation 2:- For the removal of doubts, it is hereby declared that any non-levy, short levy, nonpayment, short-payment or erroneous refund where no show cause notice has been issued before the date on which the Finance Bill, 2015 receives the assent of the President, shall be governed by the provisions of section 11A as amended by the Finance Act, 2015.”

5. Section 11A thus deals with various facets including non-levy and non-payment of excise duty and contemplates issuance of a show cause notice by the Central Excise Officer requiring the “person chargeable with duty” to show cause why “he should not pay the amount specified in the notice.” In terms of sub-section 10 of said Section 11A, the concerned person has to be afforded opportunity of being heard and after considering his representation, if any, the amount of duty of excise due from such person has to be determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show cause notice can be issued, the crux of the matter is that such determination is after the issuance of show cause notice followed by affording of opportunity and consideration of representation, if any, made by the concerned person.

6. If the process or activity undertaken does not amount to manufacture or if no duty is payable for any reason including the benefit under any scheme of exemption holding the field, it shall always be open to the concerned person to project such view point while making any representation in response to the show cause notice. There can be variety of cases namely that the process in question does not amount to manufacture; and if it does, the goods would be entitled to avail benefit of any prevalent exemption; or that the duty would be chargeable at a rate lesser than the rate at which it was set out in the show cause notice or that the quantity of goods manufactured by the concerned person was in any way lesser than what was attributed in the show cause notice, or that the benefit of any remission has to be made available etc. All such possible submissions can always be advanced and considered during the course of hearing pursuant to issuance of show cause notice.

7. However, the scheme of Section 11A does not contemplate that before issuance of any show cause notice, there must, prima facie, be:

(a) a preliminary determination that the process or activity undertaken in the matter amounts to manufacture; and

(b) before arriving at such preliminary determination, any hearing to the concerned person is contemplated. In other words, there is no segregation of the matter at different stages and all the possible contours of the matter including whether the process in question amounts to manufacture or not are to be gone into while considering the response to the show cause notice itself. It is only after considering all the relevant aspects of the matter that the final determination under sub-section 10 of Section 11A is to be arrived at.

8. The issuance of show cause notice under Section 11A also has some significance in the eyes of law. The day the show cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11A of the Act including periods of limitation. It will be difficult to reckon as to from which date the limitation has to be counted.

9. In the present case, the respondent had not registered itself and was not paying any excise duty on the products that it was manufacturing. The search conducted by the Department at the registered office and the factory premises of the respondent led to the recovery of certain material on the basis of which the Department was considering the matter. At that stage, a writ petition was filed in which an order was passed by the High Court on 28.11.2005 directing the appellant to decide whether the Department had jurisdiction to proceed in the matter before deciding any other issues on merits. As stated above, the provisions of the Act do not contemplate any such prima facie determination to be arrived at and requiring that a copy of such determination to be submitted to the concerned person and only thereafter to proceed in the matter.

Nonetheless, since a direction was issued by the High Court, the Department in deference to such direction did consider the matter and by an Internal Order dated 15.03.2006 prima facie recorded an opinion that the authorities under the Act had jurisdiction to proceed in the matter. Since the provisions of the Act do not contemplate any prima facie determination which must be communicated to the concerned person, the Department was justified in not communicating the Internal Order on its own. The matter was correctly assessed by the High Court on the next occasion when in spite of having directed that a copy of the Internal Order be supplied, it acknowledged that the remedy of the respondent lied in submitting reply to the show cause notice, in which reply it would be open to the respondent to take objections to the jurisdiction of the appellant to proceed against the respondent under the provisions of the Act.

10. The communication of the Internal Order dated 15.03.2006 was only in deference to the order passed by the High Court. At the cost of repetition, it must be stated that neither the Act contemplates any such prima facie determination which must be communicated only whereafter the proceedings could be initiated nor was such course undertaken by the Department on its own. Therefore, merely because the Internal Order was communicated to the respondent, it would not afford the respondent a cause of action to file an appeal against said Internal Order. The communication of said Internal Order was only in obedience of the directions issued by the High Court. It was not a decision or determination which was arrived at in terms of sub-section 10 of Section 11A. The respondent therefore could not have preferred any appeal against said Internal Order dated 15.03.2006. The Appellate Authority as well as the Tribunal, in our view, completely failed to appreciate this basic distinction.

11. It must be noted that while issuing a show cause notice under Section 11A of the Act, what is entertained by the Department is only a prima facie view, on the basis of which the show cause notice is issued. The determination comes only after a response or representation is preferred by the person to whom the show cause notice is addressed. As a part of his response, the concerned person may present his view point on all possible issues and only thereafter the determination or decision is arrived at. In the present case even before the response could be made by the respondent and the determination could be arrived at, the matter was carried in appeal against said Internal Order. The appellant was therefore, justified in submitting that the appeal itself was pre-mature.

12. It has been laid down by this Court that the excise law is a complete code in itself and it would normally not be appropriate for a Writ Court to entertain a petition under Article 226 of the Constitution and that the concerned person must first raise all the objections before the authority who had issued a show cause notice and the redressal in terms of the existing provisions of the law could be taken resort to if an adverse order was passed against such person. For example in Union of India and another vs. Guwahati Carbon Limited5, it was concluded;

“The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution”, while in Malladi Drugs and Pharma Ltd. vs. Union of India6, it was observed:-

“…The High Court, has, by the impugned judgment held that the Appellant should first raise all the objections before the Authority who have issued the show cause notice and in case any adverse order is passed against the Appellant, then liberty has been granted to approach the High Court… …in our view, the High Court was absolutely right in dismissing the writ petition against a mere show cause notice.” It is thus well settled that writ petition should normally not be entertained against mere issuance of show cause notice. In the present case no show cause notice was even issued when the High Court had initially entertained the petition and directed the Department toprima facie consider whether there was material to proceed with the matter.

13. We now deal with the decisions relied upon by Ms. Jain, learned counsel for the appellant. The decision of this Court in GKN Driveshafts (India) Ltd. 2was in the context of Section 148 of the Income Tax Act. Said Section 148 itself contemplates that the Assessing Officer shall, before issuing any notice under said Section 148, record his reasons for issuing such notice. In the backdrop of such requirement, this Court had observed:-

“5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.”

The decision of the Tribunal in the case of Reliance Industries Ltd.3 was also in a completely different context. The order of the Collector dated 03.03.1986 which was subject matter of appeal in that case, was a record of a personal hearing in the course of the adjudication proceeding that was communicated to the assessee. It was therefore concluded that an appeal against such order would be maintainable. The point of distinction is that it was communicated by the Department during the course of adjudication proceedings whereas in the present matter there was no such communication by the Department on its own and the order dated 19.03.2016 was not a part of any adjudication proceedings. The proceedings would have begun only after the issuance of show cause notice under Section 11A of the Act.

14. We must at this stage refer to an aspect which was projected after the judgment was reserved in the matter. By filing an application for directions, attention of the Court was invited to Circular dated 22.08.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell), the relevant portion of which is to the following effect:- “In exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 and made applicable to Service Tax vide Section 83 of the Finance Act, 1994, the Central Board of indirect Taxes and Customs fixes the following monetary limits below which appeal shall not be filed in the CESTAT, High Courts and Supreme Court.

S. No.

Appellate Forum

Monetary Limit

1.

CESTAT

Rs.50,00,000/-

2.

High Courts

Rs.1,00,00,000/-

3.

Supreme Court

Rs.2,00,00,000/-

2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well.

3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the Supreme Court, High Courts and CESTAT. All other terms and conditions of concerned earlier instructions will continue to apply.

4. It may be noted that issues involving substantial questions of law as described in para1.3 of the instruction dt 17.08.2011 from F.No.390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits.”

15. In the present case, there was no assessment and computation of any duty element. The matter had not gone beyond the Show Cause Notice. The questions in the matter pertained to the correctness of the view whether there was any adjudication in the matter and whether the appeal at the instance of the Respondent was maintainable. In our view the issues involved in the matter do not strictly come within the confines of the aforesaid Circular.

16. We therefore allow this appeal, set aside the appellate order dated 10.01.2007 and the order under appeal and direct that the proceedings pursuant to show cause notice dated 21.03.2006 be taken to logical conclusion. The respondent shall be entitled to put in its response to said show cause notice within three weeks from the date of this judgment and shall also be entitled to place such material on which it seeks to place reliance, in support of its case. The matter shall thereafter be proceeded with in accordance with law.

17. The appeal stands allowed in aforesaid items.

No costs.

J. [Uday Umesh Lalit]

J. [Vineet Saran]

New Delhi;

November 14, 2019.


1 High Court of Judicature at Calcutta

2 (2003) 1 SCC 72

3 1987(11) ECR287 (Tri.-Mumbai)

4 By Act 20 of 2015.

5 (2012) 11 SCC 651

6 2004 (166) ELT 153 (S.C.)


 

Yashwant Sinha & Ors. Vs. The Central Bureau of Investigation through its Director & ANR-14/11/2019

SUPREME COURT OF INDIA JUDGMENTS

“We cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained. We may also note that the application under Section 340 of the Code of Criminal Procedure, 1973 partly emanates from an aspect which has been dealt with in our order passed today on the application for correction of the order filed by the Union of India”.

“It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process”.

SUPREME COURT OF INDIA

Yashwant Sinha & Ors. Vs. The Central Bureau of Investigation through its Director & ANR.

[Review Petition (CRL.) No.46 of 2019 In Writ Petition (CRL.) No.298 of 2018]

[I.A. No. 69008/2019 – Clarification/Direction, I.A. No. 69006/2019 – Intervention Application, I.A. No. 71047/2019 – Production of Records And I.A. No. 69009/2019 – Stay Application]

[Ma 58/2019 In W.P.(CRL.) No. 225/2018 (PIL-W)]

[I.A. No. 182576/2018 – Correction of Mistakes In The Judgment]

[R.P.(CRL.) No. 122/2019 In W.P.(CRL.) No. 297/2018 (PIL-W)]

[Ma 403/2019 In W.P. (CRL.) No. 298/2018 (PIL-W)]

[I.A. No. 29248/2019 – Initiating Criminal Proceedings U/S 340 of CRPC]

[R.P.(C) No. 719/2019 In W.P.(C) No. 1205/2018 (PIL-W)]

[Conmt.Pet. (CRL.) No. 3/2019 In R.P.(CRL.) No. 46/2019 In W.P.(CRL.) No. 298/2018 (PIL-W)]

[I.A. No. 63168/2019 – Exemption from Filing O.T., I.A. No.71678/2019 – Exemption from Filing O.T. and I.A. No. 66253/2019 – Exemption from Filing O.T.]

SANJAY KISHAN KAUL, J.

[I.A. No. 63168/2019 – Exemption from Filing O.T., I.A. No.71678/2019 – Exemption from Filing O.T. And I.A. No. 66253/2019 – Exemption from Filing O.T.]

1. Allowed Subject To Just Exception.

[Ma 58/2019 In W.P.(CRL.) No. 225/2018 (PIL-W)]

[I.A. No. 182576/2018 – Correction of Mistakes in the Judgment]

2. The Union of India has filed the present application seeking correction of what they claim to be an error, in two sentences in para 25 of the judgment delivered by this Court on 14.12.2018. This error is stated to be on account of a misinterpretation of some sentences in a note handed over to this Court in a sealed cover.

3. The Court had asked vide order dated 31.10.2018 to be apprised of the details/cost as also any advantage, which may have accrued on that account, in the procurement of the 36 Rafale fighter jets. The confidential note in the relevant portions stated as under: “The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC. Only a redacted version of the report is placed before the Parliament and in public domain.”

4. It is the submission of the learned Attorney General that the first sentence referred to the sharing of the price details with the CAG. But the second sentence qua the PAC referred to the process and not what had already transpired. However, in the judgment this portion had been understood as if it was already so done.

5. On hearing learned counsel for the parties, we are of the view that the confusion arose on account of two portions of the paragraph referring to both what had been and what was proposed to be done. Regardless, what we noted was to complete the sequence of facts and was not the rationale for our conclusion.

6. We are, thus, inclined to accept the prayer and the sentence in para 25 to the following effect – “The pricing details have, however, been shared with the Comptroller and Auditor General (hereinafter referred to as “CAG”), and the report of the CAG has been examined by the Public Accounts Committee (hereafter referred to as “PAC”). Only a redacted portion of the report was placed before the Parliament and is in public domain” should be replaced by what we have set out hereinafter: “The Government has already shared the pricing details with the CAG. The report of the CAG is examined by the PAC in the usual course of business. Only a redacted version of the report is placed before the Parliament and in public domain.”

7. The prayer is accordingly allowed.

8. The application stands disposed of. R.P. (CRL.) No.46/2019 in WP (CRL.) No.298/2018 R.P.(CRL.) No. 122/2019 in W.P.(CRL.) No. 297/2018 (PIL-W) MA 403/2019 in W.P.(CRL.) No. 298/2018 (PIL-W) (I.A. No. 29248/2019 – INITIATING CRIMINAL PROCEEDINGS U/S 340 of CRPC) R.P.(C) No. 719/2019 in W.P.(C) No. 1205/2018 (PIL-W)

9. The review petitions were listed for hearing in Court and elaborate submissions were made by learned counsel for the parties.

10. We may note that insofar as the preliminary objection raised by the Attorney General is concerned qua certain documents sought to be produced by the petitioners, that aspect was dealt with by our order dated 10.4.2019 and the said preliminary objection was overruled.

11. We cannot lose sight of the fact that unless there is an error apparent on the face of the record, these review applications are not required to be entertained. We may also note that the application under Section 340 of the Code of Criminal Procedure, 1973 partly emanates from an aspect which has been dealt with in our order passed today on the application for correction of the order filed by the Union of India.

12. We have elaborately dealt with the pleas of the learned counsel for the parties in our order dated 14.12.2018 under the heads of ‘Decision Making Process’, ‘Pricing’ and ‘Offsets’. However, before proceeding to deal with these aspects we had set out the contours of the scrutiny in matters of such a nature. It is in that context we had opined that the extent of permissible judicial review in matters of contract, procurement, etc. would vary with the subject matter of the contract and that there cannot be a uniform standard of depth of judicial review which could be understood as an across the board principle to apply to all cases of award of work or procurement of goods/material. In fact, when two of these writ petitions were listed before the Court on 10.10.2018, we had embarked on a limited enquiry despite the fact that we were not satisfied with the adequacy of the averments and the material in the writ petitions. It was the object of the Court to satisfy itself with the correctness of the decision making process.

13. We cannot lose sight of the fact that we are dealing with a contract for aircrafts, which was pending before different Governments for quite some time and the necessity for those aircrafts has never been in dispute. We had, thus, concluded in para 34 noticing that other than the aforesaid three aspects, that too to a limited extent, this Court did not consider it appropriate to embark on a roving and fishing enquiry. We were, however, cautious to note that this was in the context of the writ petition filed under Article 32 of the Constitution of India, the jurisdiction invoked.

14. In the course of the review petitions, it was canvased before us that reliance had been placed by the Government on patently false documents. One of the aspects is the same as has been dealt with by our order passed today on the application for correction and, thus, does not call for any further discussion.

15. The other aspect sought to be raised specifically in Review Petition No.46/2019 is that the prayer made by the petitioner was for registration of an F.I.R. and investigation by the C.B.I., which has not been dealt with and the contract has been reviewed prematurely by the Judiciary without the benefit of investigation and inquiry into the disputed questions of facts.

16. We do not consider this to be a fair submission for the reason that all counsels, including counsel representing the petitioners in this matter addressed elaborate submissions on all the aforesaid three aspects. No doubt that there was a prayer made for registration of F.I.R. and further investigation but then once we had examined the three aspects on merits we did not consider it appropriate to issue any directions, as prayed for by the petitioners which automatically covered the direction for registration of FIR, prayed for.

17. Insofar as the aspect of pricing is concerned, the Court satisfied itself with the material made available. It is not the function of this Court to determine the prices nor for that matter can such aspects be dealt with on mere suspicion of persons who decide to approach the Court. The internal mechanism of such pricing would take care of the situation. On the perusal of documents we had found that one cannot compare apples and oranges. Thus, the pricing of the basic aircraft had to be compared which was competitively marginally lower. As to what should be loaded on the aircraft or not and what further pricing should be added has to be left to the best judgment of the competent authorities.

18. We have noted aforesaid that a plea was also raised about the “non-existent CAG report” but then at the cost of repetition we state that this formed part of the order for correction we have passed aforesaid.

19. It was the petitioners’ decision to have invoked the jurisdiction of this Court under Article 32 of the Constitution of India fully conscious of the limitation of the contours of the scrutiny and not to take recourse to other remedies as may be available. The petitioners cannot be permitted to state that having so taken recourse to this remedy, they want an adjudication process which is really different from what is envisaged under the provisions invoked by them.

20. Insofar as the decision making process is concerned, on the basis of certain documents obtained, the petitioners sought to contend that there was contradictory material. We, however, found that there were undoubtedly opinions expressed in the course of the decision making process, which may be different from the decision taken, but then any decision making process envisages debates and expert opinion and the final call is with the competent authority, which so exercised it. In this context reference was made to

(a) Acceptance of Necessity (‘AON’) granted by the Defence Acquisition Council (‘DAC’) not being available prior to the contract which would have determined the necessity and quantity of aircrafts;

(b) absence of Sovereign Guarantee granted by France despite requirement of the Defence Procurement Procedure (‘DPP’);

(c) the oversight of objections of three expert members of the Indian Negotiating Team (‘INT’) regarding certain increase in the benchmark price; and (d) the induction of Reliance Aerostructure Limited (‘RAL’) as an offset partner.

21. It does appear that the endeavour of the petitioners is to construe themselves as an appellate authority to determine each aspect of the contract and call upon the Court to do the same. We do not believe this to be the jurisdiction to be exercised. All aspects were considered by the competent authority and the different views expressed considered and dealt with. It would well nigh become impossible for different opinions to be set out in the record if each opinion was to be construed as to be complied with before the contract was entered into. It would defeat the very purpose of debate in the decision making process.

22. Insofar as the aforesaid pleas are concerned, it has also been contended that some aspects were not available to the petitioner at the time of the decision and had come to light subsequently by their “sourcing” information. We decline to, once again, embark on an elaborate exercise of analyzing each clause, perusing what may be the different opinions, then taking a call whether a final decision should or should not have been taken in such technical matters.

23. An aspect also sought to be emphasized was that this Court had misconstrued that all the Reliance Industries were of one group since the two brothers held two different groups and the earlier arrangement was with the Company of the other brother. That may be so, but in our observation this aspect was referred to in a generic sense more so as the decision of whom to engage as the offset partner was a matter left to the suppliers and we do not think that much can be made out of it.

24. It is for the aforesaid reasons also that we find that there was no ground made out for initiating prosecution under Section 340 Cr.P.C.

25. We are, thus, of the view that the review petitions are without any merit and are accordingly dismissed, once again, re-emphasising that our original decision was based within the contours of Article 32 of the Constitution of India. CONMT.PET.(CRL.) No. 3/2019 in R.P.(CRL.) No. 46/2019 in W.P.(CRL.) No. 298/2018 (PIL-W)

CONTEMPT PETITION

26. The contempt petition emanates from an allegation against Mr. Rahul Gandhi, the then President of the Indian National Congress, on account of utterances made in the presence of several media persons on 10.4.2019 by him alleging that the Supreme Court had held that “Chowkidar (Mr. Narendra Modi, Prime Minister) is a thief.” The Supreme Court was also attributed to having held in consonance with what his discourse was, i.e., that the Prime Minister of India stole money from the Air Force and gave it to Mr. Anil Ambani and that the Supreme Court had admitted that Mr. Modi had indulged in corruption. It was stated that the Supreme Court had said that the Chowkidar is a thief.

27. On notice being issued, reply affidavit dated 22.4.2019 was filed averring that the comments were made on the basis of a bona fide belief and general understanding of the order even though the contemnor had not himself had the opportunity to see, read or analyse the order at that stage. It was further averred that there had not been the slightest intention to insinuate anything regarding the Supreme Court proceedings in any manner as the statements had been made by the contemnor in a “rhetorical flourish in the heat of the moment” and that his statement has been used and misused by his political opponents to project that he had deliberately attributed the utterances to the Supreme Court. In that context, it was averred that “nothing could be farther from my mind. It is also clear that no Court would ever do that and hence the unfortunate references (for which I express regret) to the Court order and to the political slogan in juxtaposition the same breath in the heat of political campaigning ought not to be construed as suggesting that the Court had given any finding or conclusion on that issue.”

28. The acceptance of such an affidavit was opposed by the petitioner, a BJP Member of Parliament, in the contempt petition. It was stated that instead of expression of any remorse or apology, attempt was made to justify the contemptuous statement as having been made in the heat of the moment.

29. On arguments having taken place in this context, and realizing the seriousness of the matter and the inadequacy of the affidavit, learned counsel for the contemnor took liberty to file an additional affidavit. Vide order dated 30.4.2019, this Court left the admissibility and acceptance of such an affidavit to be considered on the subsequent date. An additional affidavit was filed on 8.5.2019 stating that the contemnor held this Court in the highest esteem and respect and never intended to interfere with the process of administration of justice. An unconditional apology was tendered by him by stating that the attributions were entirely unintentional, non-willful and inadvertent.

30. The matter was, once again, addressed by the learned counsel. We have given our thoughtful consideration to this issue.

31. We must note that it is unfortunate that without verification or even perusing as to what is the order passed, the contemnor deemed it appropriate to make statements as if this Court had given an imprimatur to his allegations against the Prime Minister, which was far from the truth. This was not one sentence or a one off observation but a repeated statement in different manners conveying the same. No doubt the contemnor should have been far more careful.

32. The matter was compounded by filing a 20 page affidavit with a large number of documents annexed rather than simply accepting the mistake and giving an unconditional apology. Better wisdom dawned on the counsel only during the course of arguments thereafter when a subsequent affidavit dated 8.5.2019 was filed. We do believe that persons holding such important positions in the political spectrum must be more careful. As to what should be his campaign line is for a political person to consider. However, this Court or for that matter no court should be dragged into this political discourse valid or invalid, while attributing aspects to the Court which had never been held by the Court. Certainly Mr. Gandhi needs to be more careful in future.

33. However, in view of the subsequent affidavit, better sense having prevailed, we would not like to continue these proceedings further and, thus, close the contempt proceedings with a word of caution for the contemnor to be more careful in future.

[I.A. No. 69008/2019 – CLARIFICATION/DIRECTION, I.A. No. 69006/2019 – INTERVENTION APPLICATION, I.A. No. 71047/2019 – PRODUCTION of RECORDS and I.A. No. 69009/2019 – STAY APPLICATION]

34. In view of the orders passed above, these applications do not survive for consideration and the same are disposed of. Any other pending applications also stands disposed.

C.J.I. [Ranjan Gogoi]

J. [Sanjay Kishan Kaul]

New Delhi.

November 14, 2019.


SUPREME COURT OF INDIA

Yashwant Sinha and Others Vs. Central Bureau of Investigation Through Its Director and another

[Review Petition (Criminal) No. 46 of 2019 in Writ Petition (Criminal) No. 298 of 2018]

CONNECTED MATTERS

K.M. JOSEPH, J.

1. I have perused the Order proposed by my learned Brother, Justice Sanjay Kishan Kaul. While I agree with the final decision subject to certain aspects considered by me, I would, by my separate opinion, give my reasons, which are as hereunder.

2. The common judgment in four Writ Petitions has generated three Review Petitions, a Contempt Petition and a Petition under Section 340 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC’ for short) and an application seeking correction.

3. Review Petition (Criminal) No. 46 of 2019 is filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018. In the said Writ Petition, relief sought, inter alia, was to register an FIR and to investigate the complaint which was made by the petitioners and to submit periodic status reports. The reliefs, as are made in the clauses ‘a’ to ‘e’ of the prayer, read as follows:

“a. Issue writ of mandamus or any other appropriate writ directing Respondent No.1 to register an F.I.R. on the complaint that was made by the Petitioners on the 04th of October, 2018.

b. Issue writ of mandamus or any other appropriate writ directing the Respondent No.1 to investigate the offences disclosed in the said complaint in a time bound manner and to submit periodic status reports to the Court.

c. Issue writ of mandamus or any other appropriate writ directing the Respondent No.2 to cease and desist from influencing or intimidating in any way the officials that would investigate the offences disclosed in the complaint.

d. Issue writ of mandamus or any other appropriate writ directing the Respondent No.1 and Respondent No.2 to not transfer the C.B.I. officials tasked with investigation of the offences mentioned in the complaint. e. Issue writ of mandamus or any other appropriate writ to ensure that the relevant records are not destroyed or tampered with and are transferred to the CBI.”

4. Review Petition (Criminal) No. 122 of 2019 is filed by the petitioner in Writ Petition (Criminal) No. 297 of 2018.

The reliefs sought in the said Writ Petition is as follows:

“(a) to constitute a Special Investigating Team (SIT) under the supervision of the Hon’ble Supreme Court with following mandate:

i. to investigate the reasons for cancellation of earlier deal for the purchase of 126 Rafale Fighter Jets.

ii. As to how the figure of 36 Fighter Jets was arrived at without the formalities associated with such a highly sensitive defence procurement.

iii. to look into the alterations made by the Respondent No.2 about the pricing of the Rafale Fighter Jets in view of the earlier price of Rs.526 crores per Fighter Jets alongwith requisite equipments, services and weapons and Rs.670 crores without associated equipments, weapons, India specific enhancements, maintenance support and services; which resulted into the escalation of price of each Fighter Jets from Rs.526 crores to more than 1500 crores;

iv. to investigate as to how a novice company viz. Reliance Defence came in picture of this highly sensitive defence deal involving Rs.59,000 crores without having any kind of experience and expertise in making of Fighter Jets.

v. As to why name of ‘Hindustan Aeronautics Limited’ was removed from the deal?

vi. As to whether the decision of purchase of only 36 Rafale Fighter Jets instead of 126 was a compromise with the security of the Country or not?

vii. Whether the Reliance Defence or it’s sister concern or any other individual or intermediary company has/have influenced the decision making of the purchase of Rafale Fighter Jets at substantially higher prices in the backdrop of the statement given by the then President of French Republic and the investment made by the Reliance Entertainment into the Julie Gayet’s Firm Rouge International was made with a purpose to influence the decision of removal of the HAL and induction of Reliance Defence as partner of the Dassault;

(b) to terminate/cancel the inter-governmental agreement with the Govt. of French Republic signed on 23-09-2016 for the purchase of 36 Rafale Fighter Jets and to give direction to the Respondent No.3 to lodge an FIR and to report the progress of investigation to this Hon’ble Court;

(c) to restore the earlier deal for the purchase of 126 Rafale Fighter Jets which was cancelled on 24.06.2015 by the Govt. of India.

(d) to bar the Dassault Reliance Aerospace Limited (DRAL) from handling/manufacturing the Rafale Fighter Jets;

(e) to direct the Respondent 1 & 2 to propose the Public Sector Company Hindustan Aeronautics Limited as the Indian Offset Partner of Dassault;”

5. Review Petition (Criminal) No. 719 of 2019 has been filed again by a sole petitioner in Writ Petition (Criminal) No. 1205 of 2018. The reliefs sought in the said Writ Petition is as follows:

“a) Issue an appropriate writ or order or direction directing the respondents to file the details of the agreement entered into between the Union of India and Government of France with regard to the purchase of 36 Rafale Fighter Jets in a sealed envelope.

b) Issue an appropriate writ or order or direction directing the respondents to furnish in a sealed envelope the information with regard to the present cost of Rafale Fighter Jets and also the earlier cost of the Rafale Fighter Jets during the regime of UPA Government;

c) Issue an appropriate writ or order or direction directing the respondents to furnish any other information in sealed envelope before the Hon’ble Supreme Court with regard to the controversy erupted in the purchase of Rafale Fighter Jets;”

THE IMPUGNED JUDGMENT

6. The three Writ Petitions, as also Writ Petition in which no Review is filed, came to be dismissed. This Court has referred to the reliefs which have been sought in the four Writ Petitions. This Court referred to the parameters of judicial review. The extent of permissible judicial review of contracts, procurement, etc., was found to vary with the subject matter of the contract. It was further observed that the scrutiny of the challenges before the Court, will have to be made keeping in mind the confines of national security, the subject of procurement being crucial to the nation’s sovereignty.

7. The findings of this Court in paragraph 15 throws light on the controversy as was understood by the Court. Paragraph 15 reads as follows:

“15. It is in the backdrop of the above facts and the somewhat constricted power of judicial review that, we have held, would be available in the present matter that we now proceed to scrutinise the controversy raised in the writ petitions which raise three broad areas of concern, namely,

(i) the decision-making process;

(ii) difference in pricing; and

(iii) the choice of IOP.”

(Emphasis supplied)

8. Thereafter, this Court had proceeded to consider the decision-making process, pricing and offsets and did not find in favour of the petitioners. It is after the discussion, as aforesaid, it is to be noted that this Court finally concluded as follows:

“33. Once again, it is neither appropriate nor within the experience of this Court to step into this arena of what is technically feasible or not. The point remains that DPP 2013 envisages that the vendor/OEM will choose its own IOPs. In this process, the role of the Government is not envisaged and, thus, mere press interviews or suggestions cannot form the basis for judicial review by this Court, especially when there is categorical denial of the statements made in the Press, by both the sides. We do not find any substantial material on record to show that this is a case of commercial favouritism to any party by the Indian Government, as the option to choose IOP does not rest with the Indian Government.

Conclusion

34. In view of our findings on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. We, thus, dismiss all the writ petitions, leaving it to the parties to bear their own costs. We, however, make it clear that our views as above are primarily from the standpoint of the exercise of the jurisdiction under Article 32 of the Constitution of India which has been invoked in the present group of cases.”

(Emphasis supplied)

9. Upon consideration of the Review Petitions and Applications, by Order dated 26.02.2019, prayer for hearing in the open court was allowed. We have heard learned counsel. We heard parties in Review Petition (Criminal) No. 46 of 2019, the learned Attorney General and learned Solicitor General.

10. As far as petitioners in Review Petition (Criminal) No. 46 of 2019 is concerned, the complaint appears to be that this Court has totally overlooked the relief sought in Writ Petition (Criminal) No. 298 of 2018.

11. The first respondent is the Central Bureau of Investigation (CBI) and the second respondent is the Union of India in Writ Petition (Criminal) No. 298 of 2018. The substance of the Writ Petition is that after following the due process under the Defence Procurement Procedure (DPP), to procure Advanced Fighter Aircrafts, and as per the authority under the DPP, the IAF Service Headquarters, after a widely consultative process with multiple Institutions, prepared Services Qualitative Requirements (SQR), specifying the number of aircrafts required as 126.

There was the recommendation of the Committee that Make in India by Hindustan Aeronautics Limited (HAL), a Public Sector Enterprise, under a Transfer Technology Agreement, should be the mode of procurement. The Defence Acquisition Council granted the mandatory Acceptance of Necessity (AON). A Request for Proposal (RFP) was, accordingly, issued. There were six vendors. In 2011, it was announced that Dassault’s Rafale and Eurofighter GmbH Typhoon met the IAF requirements. In March of 2014, a Work Share Agreement was entered into between Dassault Aviation and HAL. Accordingly, HAL would do 70 per cent of the work on 108 planes. On 25.03.2015, it is alleged that Dassault was in the final stages of negotiations with India for 126 aircrafts and HAL was to be the partner of Dassault.

12. It was the further case of the petitioners that a new deal was, however, inexplicably negotiated and announced by the Prime Minister without following the due procedure. Number of aircrafts were reduced to 36. This involved complete violation of all laid down Defence Procurement Procedure. There are various allegations made against the deal to purchase 36 planes in place of 126. In particular, there is reference to Mr. Anil Ambani not owning any company engaged in manufacture of products and services mentioned in the list of products and services eligible for discharge of offset obligations.

A company was incorporated as Reliance Defence Limited on 28.03.2015, just twelve days before the new deal was suddenly announced on 10.04.2015. There is also the case that DPP was bypassed for collateral considerations. In the complaint lodged with CBI, there is reference to the Prevention of Corruption Act, 1988, as it stood prior to amendment. Their request is to register an FIR under the provisions which are mentioned therein which fall under the Prevention of Corruption Act, 1988 and to investigate the matter. Other reliefs are already referred to.

13. The petitioners in the said case, premise their case on the judgment of this Court in Lalita Kumari v. Government of Uttar Pradesh and others1. It is their case that though reference was made to the relief at the beginning of the judgment, thereafter, this Court focused only on the merits of the matter in terms of the powers available to it under judicial review. Reliefs sought in other Writ Petitions were focused upon. The only prayers of the petitioners in Writ Petition (Criminal) No. 298 of 2018, as noticed, was a direction to follow the command of Lalita Kumari (supra) and to register an FIR as they have filed a complaint which is produced along with Writ Petition and as no action was taken as mandated by the Constitution Bench of this Court, they have approached this Court.

The error is apparent in not even considering the impact of the Constitution Bench and requires to be redressed through the Review Petition. The petitioners also, undoubtedly, point out that there was suppression of facts by the respondents. This Court was sought to be misled. There is also a case that the petitioners have obtained documents which suggest that there were parallel negotiations being undertaken by the Prime Minister’s Office (PMO) which was strenuously objected to by the Indian Negotiating Team (INT).

The statement in the judgment that the pricing details have been shared with the Comptroller and Auditor General of India (CAG) and the Report of the CAG has been examined by the Public Accounts Committee (PAC) and that only a redacted portion of the Report was placed before the Parliament, are pointed out to be patently false. It is primarily in regard to the same that an Application is filed purporting to be under Section 340 of the Cr.PC. There is an Application for Correction and there is complaint of wholesale suppression of facts. Errors are also referred to.

14. The stand of the Government of India is that the Review Petitions are meritless. This Court has elaborately considered the matter and found that there was nothing wrong. It is the case of the Government that the impugned judgement addresses contentions of the petitioners on compelling principles with regard to the scope of the judicial inquiry in cases involving the security and defence of the nation and it lays down the correct law. It is pointed out that there is no grave error apparent on the face of record. Reliance is placed on judgment of this Court in Mukesh v. State (NCT of Delhi)2. A fishing inquiry is impermissible. There was additional benefit to the country as a result of the deal which is sought to be questioned. Reliance is placed on the findings of the CAG. It is contended that the CAG has conclusively held that the basis of the benchmark by the INT was unrealistic.

15. The CAG has held that 36 Rafale aircrafts deal was 2.86 per cent lower than the audit aligned price. Regarding the offset guidelines being amended initially to benefit an industrial group, it is stoutly denied. The waiver of sovereignty/bank guarantee in Government to Government agreements is pointed out to be not unusual. Support is sought to be drawn from the Report of the CAG, inter alia, finding that the French Government was made equally responsible to fulfil its obligations. The production and delivery schedule are monitored by high-level Committee with representatives of both Governments of France and India.

16. As far as mandate of Lalita Kumari (supra), not being followed, it is stated that disclosing prima facie that a cognizable offence is committed is mandatory, which is lacking in the present case especially once this Court has concluded that on decision-making process, pricing and Indian Offset Partners, there was no reason to intervene. Once this Court has held that perception of individuals cannot be the basis for a fishing and roving inquiry, no cognizable offence is made out prima facie so as to order registration of an FIR. There is no concealment of facts or false presentation of facts.

CONTOURS of REVIEW JURISDICTOIN

17. Article 137 of the Constitution confers jurisdiction on the Supreme Court of India to exercise power of review. It reads as follows:

“137. Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”

18. Rules have been made known as The Supreme Court Rules, 2013. Order XLVII of the said Rules, deals with review (In The Supreme Court Rules, 1966, it was contained in Order XL) and it reads as follows:

“ORDER XLVII REVIEW

1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule I of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules.

2. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review.

3. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.

4. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the court-fee paid on the application in whole or in part, as it may think fit. 5. Where an application for review of any judgment and order has been made and disposed of, no further application for review shall be entertained in the same matter.”

19. Thus, a perusal of the same would show that the jurisdiction of this Court, to entertain a review petition in a civil matter, is patterned on the power of the Court under Order XLVII Rule 1 of The Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for short).

20. Order XLVII Rule 1 of the CPC, reads as follows:

“ORDER XLVII : REVIEW

1. Application for review of judgement

(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgement of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgement.”

21. It will be noticed that in criminal matters, review lies on an error apparent on the face of record being established. However, it is necessary to notice what a Constitution Bench of this Court laid down in P.N. Eswara Iyer And Others v. Registrar, Supreme Court of India3:

“34. The rule [Ed.:Order 40, Rule 1 of the Supreme Court Rules] , on its face, affords a wider set of grounds for review for orders in civil proceedings, but limits the ground vis-a-vis criminal proceedings to “errors apparent on the face of the record”. If at all, the concern of the law to avoid judicial error should be heightened when life or liberty is in peril since civil penalties are often less traumatic. So, it is reasonable to assume that the framers of the rules could not have intended a restrictive review over criminal orders or judgments. It is likely to be the other way about. Supposing an accused is sentenced to death by the Supreme Court and the “deceased” shows up in court and the court discovers the tragic treachery of the recorded testimony. Is the court helpless to review and set aside the sentence of hanging? We think not. The power to review is in Article 137 and it is equally wide in all proceedings.

The rule merely canalises the flow from the reservoir of power. The stream cannot stifle the source. Moreover, the dynamics of interpretation depend on the demand of the context and the lexical limits of the test. Here “record” means any material which is already on record or may, with the permission of the court, be brought on record. If justice summons the Judges to allow a vital material in, it becomes part of the record; and if apparent error is there, correction becomes necessitous.

35. The purpose is plain, the language is elastic and interpretation of a necessary power must naturally be expansive. The substantive power is derived from Article 137 and is as wide for criminal as for civil proceedings. Even the difference in phraseology in the rule (Order 40 Rule 2) must, therefore, be read to encompass the same area and not to engraft an artificial divergence productive of anomaly. If the expression “record” is read to mean, in its semantic sweep, any material even later brought on record, with the leave of the court, it will embrace subsequent events, new light and other grounds which we find in Order 47 Rule 1, CPC. We see no insuperable difficulty in equating the area in civil and criminal proceedings when review power is invoked from the same source.”

(Emphasis supplied)

22. In Suthendraraja Alias Suthenthira Raja Alias Santhan and others v. State Through DSP/CBI, SIT, Chennai 4 , referring to the judgement in P.N. Eswara Iyer (supra), it was, inter alia, held that the scope of review was widened considerably by the pronouncement.

23. In Haridas Das v. Usha Rani Banik (Smt.) and others5, the question arose out of an appeal in the High Court, wherein the High Court accepted the prayer for review. This Court held as follows:

“13. … The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. …”

(Emphasis supplied)

24. Jain Studios Ltd. Through Its President v. Shin Satellite Public Co. Ltd.6 involved an order passed by Judge in Chambers. It was sought to review the order passed which is reported in Shin Satellite Public Co. Ltd. v. Jain Studios Ltd.7. In the Arbitration Petition which was the main matter, there was a prayer to appoint an Arbitrator by the review petitioner. The same was heard and rejected. The learned Judge, in the said circumstances, held as follows:

“11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases.”

(Emphasis supplied)

25. In State of West Bengal and others v. Kamal Sengupta and another8, this Court, inter alia, held as follows: “

21. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.”

(Emphasis supplied)

26. In Moran Mar Basselios Catholicos and another v. Most Rev. Mar Poulose Athanasius and others9, the question, which fell for consideration was, whether misconception of the court about a concession by counsel, furnished a ground for review. A court may pronounce a judgement on the basis that a concession had been made by the counsel when none had been made. The court may also misapprehend the terms of the concession or the scope of a concession. When such misconception underscores a judgment, whether review would lie? Answering the said question, this Court proceeded to hold as follows:

“36. … Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiar [AIR 1940 Mad. 17] that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of “the record” within the meaning of Order 47 Rule 1.

We see no reason to construe the word “record” in the very restricted sense as was done by Denning, L.J., in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw [(1952) 2 KB 338 at pp. 351-52] which, was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the court assumed that a concession had been made when none had in fact been made or that the court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the court by way of an affidavit as suggested by the Privy Council as well as by this Court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.”

(Emphasis supplied)

27. It is pertinent to notice that this Court did not confine the word “record” in the narrow sense in which it was interpreted as in the case of an application of Writ of Certiorari. This Court also sanctioned support being drawn from an affidavit by the counsel in this regard, as additional ground for review. Misconception by a court, was found embraced within the scope of the expression “sufficient reasons”.

28. Non-advertence to the particular provision of the Statute, which was pertinent and relevant to the lis, was held to be a ground to seek review. In Girdhari Lal Gupta v. D.N. Mehta and another10, this Court held as follows:

“16. The learned counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn specifically to sub-section 23-C(2) and the light it throws on the interpretation of sub-section (1).”

(Emphasis supplied)

29. Also, see in this regard, judgment in Deo Narain Singh v. Daddan Singh and others11 where finding that this Court had decided the case on the basis of a Statute, which was inapplicable in the facts, review was granted.

30. In Sow Chandra Kante and another v. Sheikh Habib12, the judgment involved a request to review the decision of this Court refusing special leave to appeal in a matter, this Court held as follows: “… A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. …”

(Emphasis supplied)

31. Two documents, which were part of the record, were considered by the Judicial Commissioner to allow review by the High Court. This Court, in appeal, in the judgement in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and others13, found as follows:

“4. In the present case both the grounds on which the review was allowed were hardly grounds for review. That the two documents which were part of the record were not considered by the Court at the time of issue of a writ under Article 226 cannot be a ground for review especially when the two documents were not even relied upon by the parties in the affidavits filed before the Court in the proceedings under Article 226. Again that several instead of one writ petition should have been filed is a mere question of procedure which certainly would not justify a review. We are, therefore, of the view that the Judicial Commissioner acted without jurisdiction in allowing the review. The order of the Judicial Commissioner dated December 7, 1967 is accordingly set aside and the order dated May 25, 1965, is restored. The appeal is allowed but without costs.”

(Emphasis supplied)

32. M/s. Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi14 was a case which fell to be considered under Article 137 of the Constitution of India. The relevant discussion is found in paragraphs 8 and 9. They read as follows:

“8. It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan [AIR 1965 SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] . For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta [(1971) 3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR 748, 750].

The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2 SCR 11, 27] . Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966).

But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”:

Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674 : 1975 SCC (Tax) 200 : (1975) 3 SCR 933]. 9. Now, besides the fact that most of the legal material so assiduously collected and placed before us by the learned Additional Solicitor General, who has now been entrusted to appear for the respondent, was never brought to our attention when the appeals were heard, we may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record.”

33. Question in the said case arose under the Bengal Finance (Sales Tax) Act, 1941. The case was based on new material sought to be adduced by the Revenue to establish that the transaction amounted to a sale.

34. The foundations, which underlie the review jurisdiction, has been examined by this Court at some length in the judgment in S. Nagaraj and others v. State of Karnataka and another15:

“18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law.

But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. Here as explained, the Bench of which one of us (Sahai, J.) was a member did commit an error in placing all the stipendiary graduates in the scale of First Division Assistants due to State’s failure to bring correct facts on record. But that obviously cannot stand in the way of the Court correcting its mistake. Such inequitable consequences as have surfaced now due to vague affidavit filed by the State cannot be permitted to continue.

19. Review literally and even judicially means re-examination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai [AIR 1941 FC 1, 2 : 1940 FCR 78 : (1941) 1 MLJ Supp 45] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords.

The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh [(1836) 1 Moo PC 117 : 2 MIA 181 : 1 Sar 175] that an order made by the Court was final and could not be altered: “… nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in …. The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.” Basis for exercise of the power was stated in the same decision as under:

“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.” Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution.

And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, ‘for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice.”

(Emphasis supplied)

35. The decision in S. Nagaraj(supra), has been followed in various judgements of this Court (See Lily Thomas and others v. Union of India and others 16 ; Haryana State Industrial Development Corporation Limited. v. Mawasi and others17; Kamlesh Verma v. Mayawati and others18; Usha Bharti v. State of Uttar Pradesh and others19 and Vikram Singh Alias Vicky Walia and another v. State of Punjab and another20).

36. In Kamlesh Verma (supra), this Court in paragraph 20, laid down its conclusions, which reads as follows: “Summary of the principles 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337: JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

37. In a very recent judgment, in fact, relied upon by the Union of India, viz., Mukesh (supra), in a review petition in a criminal appeal, this Court reiterated that a review is not rehearing of an original matter. Even establishing another possible view would not suffice [See Vikram Singh (supra), which was relied upon].

38. The anxiety of this Court that the consideration of rendering justice remain uppermost in the mind of the Court, has led to the Constitution Bench judgement in Rupa Ashok Hurra v. Ashok Hurra and another21. It is in the said case that the concept of a curative petition was devised to empower a litigant to seek a reconsideration of a matter wherein the review petition also is unsuccessful. Certain steps have been laid down in this regard which stand incorporated in The Supreme Court Rules, 2013 [in Part IV Order XLVIII thereof].

39. Undoubtedly, any error to be an error on the face of the record, cannot be one which has to be established by a long drawn out process of reasoning on points where there may conceivably be two opinions or if the error requires lengthy and complicated arguments to establish it, a Writ of Certiorari would not lie (See Satyanarayan Laxminarayan Hegde and others v. Mallikarjun Bhavanappa Tirumale22). This principle is equally applicable to a review petition also.

40. On a conspectus of the above decisions, the following conclusions appeared to be inevitable and they also provide the premise for review: Justice above all. While a review petition has not been understood as an appeal in disguise and a mere erroneous decision may not justify a review, a decision which betrays an error which is apparent, does entitle the court to exercise its jurisdiction under Article 137 of the Constitution.

The founding fathers were conscious that this Court was the final Court. There are two values, which in any system of law, may collide. On the one hand, recognizing that men are not infallible and the courts are manned by men, who are prone to err, there must be a safety valve to check the possibility of grave injustice being reached to a litigant, consequent upon an error, which is palpable or as a result of relevant material despite due diligence by a litigant not being made available or other sufficient reason. The other value which is ever-present in the mind of the law giver, is, there must be finality to litigation. Be it judgments of a final court, if it becomes vulnerable to indiscriminate reopening, unless a strong ground exists, which itself is based on manifest error disclosed by the judgment or the other two grounds mentioned in Order XLVII of the CPC in a civil matter, it would spawn considerable inequity.

41. It must be noticed that the principle well-settled in regard to jurisdiction in review, is that a review is not an appeal in disguise. The applicant, in a review, is, on most occasions, told off the gates, by pointing out that his remedy lay in pursuing an appeal. In the case of a decision rendered by this Court, it is to be noticed that the underpinning based on availability of an appeal, is not available as this Court is the final Court and no appeal lies.

42. It is no doubt true that the Supreme Court Rules, 2013, certain powers are conferred on the Registrar as also on the Judge holding Court in Chambers and appeals, indeed, are provided in respect of certain orders passed by the Registrar.

43. The fact that no appeal lies from the judgment of this Court may not, however, result in the jurisdiction of this Court under Article 137 of the Constitution being enlarged. However, when the Court is invited to exercise its power of review, this aspect may also be borne in mind, viz., that unlike the other courts from which an appeal may be provided either under the Constitution or other laws, or by special leave under Article 136 of the Constitution, no appeal lies from the judgment of this Court, and it is in that sense, the final Court. The underlying assumption for the principle that a review is not an appeal in disguise, being that the decision is appealable, is really not available in regard to a decision rendered by this Court, is all that is being pointed out.

44. A review petition is maintainable if the impugned judgment discloses an error apparent on the face of the record. Unlike a proceeding in Certiorari jurisdiction, wherein the error must not only be apparent on the face of the record, it must be an error of law, which must be apparent on the face of the record, for granting review under Article 137 of the Constitution read with Order XLVII Rule 1 of the CPC, the error can be an error of fact or of law. No doubt, it must be apparent on the face of record. Such an error has been described as a palpable error or glaring omission. As to what constitutes an error apparent on the face of record, is a matter to be found in context of the facts of each case. It is worthwhile to refer to the following discussion in this regard by this Court in Hari Vishnu Kamath v. Ahmad Ishaque and Others23, wherein, this Court held as follows:

“23. It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Municipality [AIR 1953 Bom 133] that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it.

This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

(Emphasis supplied)

45. The view of this Court, in the decision in Girdhari Lal Gupta (supra) as also in Deo Narain Singh (supra), has been noticed to be that if the relevant law is ignored or an inapplicable law forms the foundation for the judgement, it would provide a ground for review. If a court is oblivious to the relevant statutory provisions, the judgment would, in fact, be per incuriam.

No doubt, the concept of per incuriam is apposite in the context of its value as the precedent but as between the parties, certainly it would be open to urge that a judgment rendered, in ignorance of the applicable law, must be reviewed. The judgment, in such a case, becomes open to review as it would betray a clear error in the decision.

46. As regards fresh material forming basis for review, it must be of such nature that it is relevant and it undermines the verdict. This is apart from the requirement that it could not be produced despite due diligence.

47. The dismissal of a special leave petition takes place at two levels. In the first place, the Court may dismiss or reject a special leave petition at the admission stage. Ordinarily, no reasons accompany such a decision. In matters where a special leave petition is dismissed after notice is issued, also reasons may not be given ordinarily. Several elements enter into the consideration of this Court where a special leave petition is dismissed. The task for a review applicant becomes formidable as reasons are not given. An error apparent on the face of the record becomes difficult to establish. In a writ petition where pleadings are exchanged and reasons are given in support of the verdict, a self-evident error is detected without much argument. No doubt, a Court, in review, does not reappreciate and correct a mere erroneous decision. That reappreciation is tabooed, is not the same as holding that a Court will not appreciate the case as reflected in the pleadings and the law by which the Court is governed.

48. In this case, the short point, which this Court is called upon to consider, is the effect of the impugned judgment not dealing with a binding decision rendered by a Constitution Bench which was relied upon by the petitioners in Writ Petition (Criminal) No. 298 of 2018 and rendered in Lalita Kumari (supra). It is apposite that I set out what this Court, speaking through the aforesaid Constitution Bench judgment, has laid down in paragraph 120:

“Conclusion/Directions

120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

(Emphasis supplied)

49. It is their contention, therefore, that the writ petition came to be clubbed along with other writ petitions. This Court proceeded to undertake judicial review of the processes which led to the decision to purchase 36 planes going back on the earlier decision which was to purchase 136 planes.

50. According to the petitioners, therefore, this Court committed a clear error in not focusing on the relief sought in their writ petition which was based on the Constitution Bench of this Court which was binding on a Bench of lesser strength (three). All this Court is being asked to do, according to the petitioners, having regard to the law binding on it, is to direct the registration of the FIR. There is also relief sought to submit reports in the same.

51. The procedure, which is to be adopted by the authorities, has been elaborated upon. There can be no escape from the mandatory procedure laid down by this Court.

52. Where a party institutes a proceeding, if the proceeding is of a civil nature, there would be a cause of action. There would be reliefs sought on the basis of the cause of action. Materials are produced both in support and against the claim. The Court thereafter renders a judgement either accepting the case or rejecting the case. When the Court rejects the case, it necessarily involves refusing to grant the relief sought for by the plaintiff/petitioner. It may transpire that the petitioner may not press for certain reliefs. The Court may, after applying its mind to the case, find that the petitioner is not entitled to the relief and decline the prayers sought. It may also happen that the court does refer to the reliefs sought but thereafter does not undertake any discussion regarding the case for the relief sought and proceeds to non-suit the party. It is clear that in this case, it is the last aspect which is revealed by the judgment sought to be reviewed.

53. A judgment may be silent in regard to a relief which is sought by a party. It is apposite, in this regard, to notice Section 11 of the CPC. If a decree is silent, as regards any relief which is claimed by the plaintiff, Explanation V to Section 11 declares that the relief must be treated as declined. The Explanation reads as follows: “Section 11, Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.”

54. No doubt, if the relief is expressly refused, then also, the matter would become res judicata. It is, therefore, of vital importance that when a case is decided, the Court considers the claim and the relief sought, applies the Statute which is applicable and the law which is laid down particularly when it is by a Constitution Bench in deciding the case. Just as, in the case of a judgement, where the applicable Statute, not being applied, would result in a judgment which becomes amenable to be corrected in review, there can be no reason why when a binding judgment of this Court, which is enlisted by the party, is ignored, it should have a different consequence. In fact, since a review under Article 137 of the Constitution, in a civil matter, is to be exercised, based on what is contained in Order XLVII Rule 1 of the CPC, the Explanation therein, may shed some light. The Explanation which was inserted by the Act of 1976, following the recommendations of the Law Commission of India, in its 54th Report, declares that the law is laid down by a superior court reversing an earlier decision, on a question of law, will not be a ground for the review of a judgment.

55. The Law Commission, in fact, in the said Report reasoned that adopting the view taken by the Kerala High Court in the decision in Thadikulangara Pylee’s son Pathrose v. Ayyazhiveettil Lakshmi Amma’s son Kuttan and others24 that a later judgment would amount to discovery of new and important matter, and in any case an error on the face of the record, would keep alive the possibility of review indefinitely. This impliedly would mean that when a court decides a case, it must follow judgments which are binding on it. This is not to say that a smaller Bench of this Court, if it entertains serious doubts about the correctness of an earlier judgment, may not consider referring the matter to a larger Bench. However, as long as it does not undertake any such exercise, it cannot refuse to follow the judgment and that too of a Constitution Bench. Any such refusal to follow the decision binding on it, would undoubtedly disclose an error which would be palpable being self-evident.

56. In this case, when this Court rendered the judgment, sought to be reviewed, the judgment of the Constitution Bench in Lalita Kumari (supra), undoubtedly, held the field having been rendered on 12.11.2013. The said judgement was, indeed, pressed before the Court.

57. To put it in other words, having regard to the relief sought by the petitioners, the dismissal of the writ petition would be, according to petitioners, in the teeth of a binding judgment of this Court. Just as in the case of a binding Statute being ignored and giving rise to the right to file a review, neither on logic nor in law would the refusal to follow a binding judgement, qualify for a different treatment if a review is filed. Be it a civil or a criminal matter, an error apparent on the face of the record, furnishes a ground for review.

58. This is not a case where an old argument is being repeated in the sense that after it has been considered and rejected, it is re-echoed in review. It is an argument which was undoubtedly pressed in the original innings. It is not the fault of the party if the court chose not even to touch upon it. No doubt, it may be different in a case where a ground or relief sought is ignored and it is found justified otherwise. But where a ground, which is based on principles laid down by a Constitution Bench of this Court, is not dealt with at all and it is complained of in review, it will rob the review jurisdiction of the very purpose it is intended to serve, if the complaint otherwise meritorious, is not heeded to.

59. A learned Single Judge, in an arbitration request, turned down a plea to appoint a person as Arbitrator. In review, the request was sought to be resurrected. It was in this context that a learned Single Judge of this Court, sitting in Chambers, in the decision reported in Jain Studios Ltd. (supra), laid down that once such a relief was refused in the main matter, no review petition would lie. However, following the said judgment, this Court, in the decision reported in Kamlesh Verma (supra), summarising the principle, came to declare in paragraph 20.2(ix), that review is not maintainable when the same relief sought at the time of arguing the main matter, has been negatived.

60. With regard to the said principle, the context in which it was laid down in the decision by a learned Single Judge in Jain Studios Ltd. (supra), has already been noted. The said principle, as stated, cannot be treated as one that is cast in stone to apply irrespective of facts. Illustrations come to the fore where it is better related to the factual context and not as an immutable axiom not admitting of exceptions. Take a case where a Writ of Mandamus is sought for after a demand is made. The demand is placed on record and is not even controverted. In the main proceeding, Mandamus is refused on the ground that there is no demand. It amounts to denial of relief. But the verdict is clearly afflicted with palpable error, and if the complaint is made in a review about the denial of relief on a ground which is patently untenable, certainly, a review would lie.

There can be many other examples where the denial of relief is palpably wrong and self-evident. It is different, if on an appreciation of evidence or applying the law, and where two views are possible, relief is refused. In fact, broadly, denial of relief can occur in two situations. There are situations where the grant of relief itself is discretionary. There are other situations where if a certain set of facts are established, the plaintiff/appellant cannot be told off the gates. A defendant, who appeals against a time-barred suit being decreed, establishes that a suit is time-barred, and the facts, as stated in the judgment itself, unerringly point to such premise. If still, the Appellate Court decrees the suit and denies relief to the defendant/appellant, can it be said that a review will not lie? The answer can only be that a review will lie.

61. To test the hypothesis that on the facts this Court was wrong and manifestly so in declining in not following the dicta of the Constitution Bench in Lalita Kumari (supra), a reverse process of reasoning can be employed to appreciate the matter further. Can it be said that refusing to follow a Constitution Bench, laying down the response of the Officers to a complaint alleging the commission of a cognizable offence, has not been observed in its breach? If the review petition, in other words, is rejected, in substance this Court would be upholding its judgment which when placed side-by-side with the pronouncement of the Constitution Bench in Lalita Kumari (supra), the two judgments cannot be squared. It must co-exist despite the patent departure, the impugned judgment manifests from the law laid down by the Constitution Bench. But that being impossible, the Constitution Bench must prevail and the impugned judgment stand overwhelmed to the extent it is inconsistent.

It may be true that in view of the fact that four writ petitions were heard together, this Court has proceeded to focus on the merits of the matters itself undoubtedly from the standpoint of the limited judicial review which it could undertake in a matter of the nature in question. On the basis of the said exercise, the Court has concluded that there were no materials for the Court to interfere. But this is a far cry from holding that it will not follow the mandate of the Constitution Bench of this Court in regard to the steps to be undertaken by the Officer on receipt of a complaint purporting to make out the commission of a cognizable offence.

This Court may declare that it was non-suiting the petitioners seeking judicial review, having regard to the absence of materials which would have justified holding the award of the contract in question vulnerable. It would not mean that it is either precluded or that it was not duty-bound to still direct that the law laid down by the Constitution Bench in Lalita Kumari (supra) be conformed to.

62. If the complaint of the petitioner does make out the commission of the cognizable offence and FIR is to be registered and matter investigated, it will be no answer to suggest that this Court, has approved of the matter in judicial review proceedings under Article 32 of the Constitution and making it clear that entire exercise must be viewed from the prism of the limited judicial review the Court undertakes in such proceedings and this Court would end up paying less than lip service to the law laid down by the Constitution Bench in Lalita Kumari (supra).

63. As far as the judicial review of the award of the contract is concerned, apart from the fact that a review does not permit reappreciation of the materials, there is the aspect of the petitioner seeking judicial review approaching the court late in the day. There is also the aspect relating to the court’s jurisdiction not extending to permit it to sit in judgment over the wisdom of the Government of the day, particularly in matters relating to purchase of the goods involved in this case. Therefore, in regard to review, sought in relation to the findings relating to the judicial review, they cannot be found to be suffering from palpable errors.

64. Though, the stand of the Government of India has been noticed, which is the second respondent in Writ Petition (Criminal) No. 298 of 2018, the party, which has a say in the matter or rather a duty in the matter in terms of the law laid down by this Court in Lalita Kumari (supra), is the first respondent, viz., Central Bureau of Investigation (CBI) before which petitioners have moved the Exhibit P1-complaint. It is quite clear that the first respondent, the premiere investigating agency in the country, is expected to act completely independent of the Government of the day. The Government of India cannot speak on behalf of the first respondent. Whatever that be, the fact remains that a decision in terms of what is laid down in Lalita Kumari (supra), is to be taken.

65. One objection, which has apparently weighed with my learned and noble Brother, is that, this Court, having dealt with the merits of the case, there could be no occasion for directing the compliance in terms of Lalita Kumari (supra) by the first respondent. Reasoning of the Court has been noticed. This Court has approached the matter proclaiming that it was doing so in the context of somewhat constricted power of judicial review. It is further made clear that the Court found that it is neither appropriate nor is it within the experience of this Court to step into the arena of what is technically feasible. This Court also did not find any substantial material on record to show it to be a case of commercial favouritism to any party by the Indian Government as the option to choose the IOP did not rest with the Indian Government. In the concluding paragraph, it was clearly mentioned that the Court’s views were primarily from the standpoint of exercise of jurisdiction under Article 32 of the Constitution, which was invoked in this case.

66. The question would, therefore arise, whether in such circumstances, the relief sought in Writ Petition (Criminal) No. 298 of 2018, seeking compliance with Lalita Kumari (supra), was wrongly declined. Differently put, the question would arise whether the petitioners, having participated in the proceedings and inviting the Court to pronounce on the merits as well and cannot persuade the Court to take a different view on the merits, could still ask the Court to find an error and that too a grave error in not heeding to the prayer in Writ Petition (Criminal) No. 298 of 2018.

67. As noticed earlier, it is one thing to say that with the limited judicial review, available to the Court, it did not find merit in the case of the petitioners regarding failure to follow the DPP, presence of over-pricing, violation of Offset Guidelines to favour a party, and another thing to direct action on a complaint in terms of the law laid down by this Court. It is obvious that this Court was not satisfied with the material which was placed to justify a decision in favour of the petitioners. It is also apparent that the Court has reminded itself of the fact that it was neither appropriate nor within the experience of the Court to step into the arena. It is equally indisputable that the entire findings are to be viewed from the standpoint of the nature of the jurisdiction it exercised. There are no such restrictions and limitations on an Officer investigating a case under the law. Present a case, making out the commission of cognizable offence, starting with the lodging of the FIR after, no doubt, making a preliminary inquiry where it is necessary, the fullest of amplitude of powers under the law, no doubt, are available to the Officer. The discovery of facts by Officer carrying out an investigation, is completely different from findings of facts given in judicial review by a Court. The entire proceedings are completely different.

68. In the impugned judgment, under the heading “Offsets”, there is, at paragraph 28, reference to the complaint that favouring the Indian Business Group, has resulted in an offence being committed under the Prevention of Corruption Act. This Court extracted Clause (4.3) of the Offset Clause which provides that OEM/Vendor, Tier-1 Sub-Vendor will be free to select the Indian Offset Partner for implementing the offset obligation provided it has not been barred from doing business with the Ministry of Defence. This Court dealt with the same contentions in paragraph 32 of the impugned judgment, which reads as follows:

“32. It is no doubt true that the company, Reliance Aerostructure Ltd., has come into being in the recent past, but the press release suggests that there was possibly an arrangement between the parent Reliance Company and Dassault starting from the year 2012.

As to what transpired between the two corporates would be a matter best left to them, being matters of their commercial interests, as perceived by them. There has been a categorical denial, from every side, of the interview given by the former French President seeking to suggest that it is the Indian Government which had given no option to the French Government in the matter. On the basis of materials available before us, this appears contrary to the clause in DPP 2013 dealing with IOPs which has been extracted above. Thus, the commercial arrangement, in our view, itself does not assign any role to the Indian Government, at this stage, with respect to the engagement of IOP. Such matter is seemingly left to the commercial decision of Dassault.

That is the reason why it has been stated that the role of the Indian Government would start only when the vendor/OEM submits a formal proposal, in the prescribed manner, indicating details of IOPs and products for offset discharge. As far as the role of HAL, insofar as the procurement of 36 aircrafts is concerned, there is no specific role envisaged. In fact, the suggestion of the Government seems to be that there were some contractual problems and Dassault was circumspect about HAL carrying out the contractual obligation, which is also stated to be responsible for the non-conclusion of the earlier contract.”

69. The very first statement in paragraph 32 would appear to point to the Court taking into account Press Release suggesting that there was possibly an arrangement between the parent Reliance Company and Dassault starting from the year 2012. It is stated as to what transpired between the two Corporates would be best left to them. In this regard, in the Review Petition, it is pointed out that this Court has grossly erred in confusing Reliance Industries of which Mr. Mukesh Ambani is the Chairman with that of Reliance Infrastructure of which Mr. Anil Ambani is the Chairman. It is further contended that Mr. Anil Ambani’s Reliance Infrastructure is the parent company of Reliance Aerostructure Limited (RAL), which is the beneficiary of the Offset Contract, and there is no possibility of any arrangement between Reliance Infrastructure Limited with Dassault Aviation in 2012.

There appears to be considerable merit in the case of the petitioners that in this regard, this Court had fallen into clear error that there was possibly an arrangement between the parent Reliance Company and Dassault dated back to the year 2012. The parent Reliance Company which was referred in the judgment is Reliance Industries which is a completely different corporate body from Reliance Infrastructure which appears, according to the petitioners, to be the parent company of RAL. Thereafter, there is reference to the denial of the interview by the Former French President. It is further noted that on the basis of the materials, the commercial arrangement does not assign any role to the Indian Government at this stage with reference to the arrangement of the IOP.

After making certain observations about HAL and role of the Indian Government starting only when the Vendor/OEM submitted a formal proposal, this Court went on to make the observation contained in paragraph 33 which has already been extracted.

70. From the standpoint of the jurisdiction in judicial review proceedings and under Article 32 of the Constitution, as also absence of any substantial material to show to be a case of commercial favouritism, it may be true that the findings other than which has been referred to may not disclose a palpable error. This Court’s lack of experience of what is technically feasible, as noted by the Court, has weighed with it.

POWERS of POLICE OFFICER WIDER AND DIFFERENT FROM THAT of WRIT COURT

71. The ‘statutory right of the police to investigate about a cognizable offence’ is well settled. In King-Emperor v. Nazir Ahmad Khwaja25, the Privy Council has, inter alia, held as follows: “In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under S. 491 of the C.P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Courts functions begin when a charge is preferred before it and not until then. …”

72. Following the same, this Court in M.C. Abraham and another v. State of Maharashtra and others 26 , held as follows:

“13. This Court held in the case of J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272] that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved by the executive through the police department, the superintendence over which vests in the State Government. It is the bounden duty of the executive to investigate, if an offence is alleged, and bring the offender to book. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. …”

73. The Police Officer is endowed with wide powers. Nothing that constricted or limited this Court in the impugned judgment, applies to an Officer who has undertaken an investigation into the commission of a cognizable offence. In fact, in this case, the first respondent-CBI is the premiere investigation agency of the country. It is equipped to undertake all forms of investigations, be it technical or otherwise. The factors which concerned this Court can be recapitulated to bring out the true role of an Investigator. This Court held, it is neither appropriate nor within the Court’s experience to step into what is technical feasible or not. No such limitation applies to an Investigator of a cognizable offence. What is important is that it is the duty of the Investigating Officer to collect all material, be it technical or otherwise, and thereafter, submit an appropriate report to the court concerned, be it a final report or challan depending upon the materials unearthed. This Court relied on absence of substantial material.

This is not a restriction on the Investigating Officer. Far from it, the very purpose of conducting an investigation on a complaint of a cognizable offence being committed, is to find material. There can be no dispute that the first respondent is the premiere investigating agency in the country which assumedly employs state of the art techniques of investigation. Professionalism of the highest quality, which embraces within it, uncompromising independence and neutrality, is expected of it. Again, the restriction which underlies the impugned judgment is the limited scope of judicial review and also the writ jurisdiction under Article 32 of the Constitution. It is clear as a mountain stream that both these considerations are totally irrelevant for an Officer who has before him a complaint making out the commission of a cognizable offence.

74. However, the directions contained in paragraph 120 of the Constitution Bench decision in Lalita Kumari (supra) must be further appreciated. In this case, the petitioners in Writ Petition (Criminal) No. 298 of 2018, have indeed moved an elaborate written complaint before the first respondent-CBI. The complaint that is made, attempts to make out the commission of a cognizable offences under the Prevention of Corruption Act. Paragraph 120.1 of Lalita Kumari (supra), declares registration of FIR is mandatory if information discloses commission of a cognizable offence. The Constitution Bench debarred any preliminary inquiry in such a situation. It is apposite that paragraph 120.5 is noticed at this stage.

This Court held that the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received but it is only to ascertain whether the information reveals any cognizable offence. Coming back to paragraph 120.2, it is laid down by this Court that if the information does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It is beyond dispute that the offences which are mentioned in the complaint filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018 are cognizable offences. Again, coming back to paragraph 120.3 in Lalita Kumari (supra) read with paragraphs 120.2 and 120.5, if the inquiry discloses commission of a cognizable offence, the FIR must be registered. Where, however, the preliminary inquiry ends in closing the complaint, the first informant must be informed in writing forthwith and not later than a week. That apart, reasons, in brief, must also be disclosed.

75. Paragraph 120.6 deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted. Also, cases where there is abnormal delay or laches in initiating criminal prosecution, for example over three months delay in reporting the matter without satisfactorily explaining the reasons for the delay. As can be noticed from paragraph 120.6, medical negligence cases, matrimonial disputes, commercial offences are also cases in which a preliminary inquiry may be made. In order to appreciate the scope of paragraph 120.6, it is necessary to advert to paragraphs 115 to 119, which read as follows:

“Exceptions 115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. 116. In the context of medical negligence cases, in Jacob Mathew [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1: 2005 SCC (Cri) 1369], it was held by this Court as under: (SCC p. 35, paras 51-52)

“51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurising the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam [Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 : (1957) 2 All ER 118] test to the facts collected in the investigation.

A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.” 117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants.

118. Similarly, in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.

119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith.

Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.”

(Emphasis supplied)

76. As can be noticed that medical negligence cases constitute an exception to the general rule which provides for mandatory registration of FIR in respect of all cognizable offences. The Court, in clear terms, held that it will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint. It relied on a decision of this Court in Jacob Mathew v. State of Punjab and another27.

77. In paragraph 117 of Lalita Kumar (Supra), this Court referred to the decision in P. Sirajuddin, Etc. v. State of Madras, Etc.28 and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants.

78. In P. Sirajuddin (supra), relied upon by the Constitution Bench in Lalita Kumari (supra), what this Court has held, and which has apparently been relied upon by the Constitution Bench though not expressly referred to is the following statement contained in paragraph 17:

“17. … Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. …”

(Emphasis supplied)

79. In Lalita Kumari (supra), one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual. The following paragraphs of the Lalita Kumari (supra) may be noticed, which read as follows:

“89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of “preliminary inquiry” is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.

90. It may be submitted that Sections 4(2) and 5 of the Code permit special procedures to be followed for special Acts. Section 4 of the Code lays down as under:

“4.Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” It is thus clear that for the offences under the laws other than IPC, different provisions can be laid down under a special Act to regulate the investigation, inquiry, trial, etc. of those offences. Section 4(2) of the Code protects such special provisions.

91. Moreover, Section 5 of the Code lays down as under:

“5.Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” Thus, special provisions contained in the DSPE Act relating to the powers of CBI are protected also by Section 5 of the Code.

92. In view of the above specific provisions in the Code, the powers of CBI under the DSPE Act, cannot be equated with the powers of the regular State Police under the Code.”

80. It is thereafter that under the caption “Exceptions”, the Constitution Bench has proceeded to deal with offences relating to corruption as already noted and contained in paragraph 117 of Lalita Kumari (supra), which has already been extracted. Chapter 8 of the CBI Crime Manual deals with complaints and source of information. Chapter 9 deals with preliminary enquiries. Clause (8.6) of Chapter 8 provides for the categories of complaints which are to be considered fit for verification. It provides, inter alia, complaints pertaining to subject matters which fall within the purview of the CBI, either received from official channels or from well-established and recognized organizations or from individuals who are known and who can be traced and examined. Undoubtedly, petitioners are known and can be traced and examined. A complaint against a Minister or a Former Minister of the Union Government is to be put up before the Director of the CBI.

The complaints which are registered for verification, with the approval of the competent authority, would only be subjected to secret verification. Clause (9.1) of Chapter 9 contemplates that when a complaint is received, inter alia, after verification and which may after verification indicates serious misconduct on the part of the public servant but is not adequate to justify registration of a regular case, under the provisions of Section 154 of the Cr.PC, a preliminary inquiry may be registered after obtaining approval of the competent authority. Clause (9.1) also, no doubt, deals with cases entrusted by this Court and the High Courts. The Manual further contemplates that the preliminary inquiry will result either in registration of regular cases or departmental action inter alia.

81. The Constitution Bench in Lalita Kumari(supra), had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin (supra) which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in paragraph 120.7, is to be completed within seven days.

82. The petitioners have not sought the relief of a preliminary inquiry being conducted. Even assuming that a smaller relief than one sought could be granted, there is yet another seemingly insuperable obstacle.

83. In the year 2018, the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as ‘2018 Act’ for short) was brought into force on 26.07.2018. Thereunder, Section 17A, a new Section was inserted, which reads as follows:

“17A. (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.-.

(Emphasis supplied)

84. In terms of Section 17A, no Police Officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his Office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation.

It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent-CBI, is done after Section 17A was inserted. The complaint is dated 04.10.2018. Paragraph 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paragraphs 6 and 7 of the complaint are relevant in the context of Section 17A, which reads as follows:

“6. We are also aware that recently, Section 17(A) of the act has been brought in by way of an amendment to introduce the requirement of prior permission of the government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the government under Section 17(A) of the Prevention of Corruption Act for investigating this offence and under which, “the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month”.”

85. Therefore, petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24.10.2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A continues to be on the Statute Book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17A but when it comes to the relief sought in the Writ Petition, there was no relief claimed in this behalf.

86. Even proceeding on the basis that on petitioners complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act.

87. Subject as hereinbefore stated, in regard to the other Petitions and Applications, I agree with the proposed Order of Brother Justice Sanjay Kishan Kaul.

J. (K.M. JOSEPH)

New Delhi,

November 14, 2019.


1 (2014) 2 SCC 1

2 (2018) 8 SCC 149

3 (1980) 4 SCC 680

4 (1999) 9 SCC 323

5 (2006) 4 SCC 78

6(2006) 5 SCC 501

7(2006) 2 SCC 628

8 (2008) 8 SCC 612

9 AIR 1954 SC 526

10 AIR 1971 SC 2162

11 1986 (Supp) SCC 530

12(1975) 1 SCC 674

13 (1979) 4 SCC 389

14(1980) 2 SCC 167

15 1993 Supp (4) SCC 595

16 (2000) 6 SCC 224

17 (2012) 7 SCC 200

18 (2013) 8 SCC 320

19 (2014) 7 SCC 663

20 (2017) 8 SCC 518.

21 (2002) 4 SCC 388

22 AIR 1960 SC 137

23 AIR 1955 SC 233

24 AIR 1969 KER 186

25 AIR 1945 PC 18

26 (2003) 2 SCC 649

27 (2005) 6 SCC 1

28 (1970) 1 SCC 595


 

Ravi S/o. Ashok Ghumare Vs. State of Maharashtra – 03/10/2019

SUPREME COURT OF INDIA JUDGMENTS

MurderDeath sentence confirmed-The victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

ACT: Sections 302, 363, 376 and 377 of the Indian Penal Code

SUPREME COURT OF INDIA

Ravi S/o. Ashok Ghumare Vs. State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

BENCH:

J. ROHINTON FALI NARIMAN

J. SURYA KANT

J R.Subhash Reddy

SURYA KANT, J.

These appeals assail the judgment dated 20th January, 2016 passed by the High Court of Judicature at Bombay, Bench at Aurangabad, confirming the death reference in the Sessions Case No. 127 of 2012 decided by the Additional Sessions Judge, Jalna, in which the appellant having been found guilty of committing offences punishable under Sections 302, 363, 376 and 377 of the Indian Penal Code (for short, “the IPC”), has been awarded the sentence of death under Section 302, IPC along with the sentence of rigorous imprisonment(s) of different durations with fine for the rest of offences. The Trial Court as well as the High Court have concurrently held that the case falls within the exceptional category of ‘rarest of the rare’ cases where all other alternative options but to award death sentence, are foreclosed.

2. The facts leading to the aforestated conclusion are to the following effect:-

3. The informant Iliyas Mohinuddin (P.W.9) had been a fruitseller based in Jalna. On 06.03.2012 at about 5.00 p.m. while he was as usual busy in selling fruits, his wife informed him that their daughter (in short, ‘the victim child’) who was 2 years old, was missing. He along with his relatives started looking for the child. During their search, the informant came to know from Azbar (P.W.2) that the appellant had been spotted drunk and was distributing chocolates to small children in the lane near the Maroti Temple. The appellant was also a resident of the same lane. The informant went to the appellant’s house which was found locked. As the whereabouts of the missing child were still not known, the informant lodged a formal missing report to the police.

He also passed on the information to the police as received from Azbar (P.W.2) regarding the distribution of chocolates amongst small children by the appellant. The police, therefore, came to the appellant’s house which had two doors. One was found locked from outside while the other was locked from inside. Police broke open the door and entered the house along with the informant, his brother and a few other persons. They found the appellant in the house; deceased-victim was lying under the bed in a naked and unconscious condition. Blood was oozing out from her private parts and had multiple injuries on her body. She was covered in a blanket and taken to the hospital where the doctor declared her brought dead. Inquest panchnama was prepared and the body was sent for post mortem.

A panel of doctors, including Dr. B.L. Survase and Dr. Bedarkar (P.W. 7 and P.W.8 respectively) performed the post mortem and found multiple injuries on the person of the victim. They opined that the death was caused due to throttling. The informant – father of the victim lodged the report at 12.30 a.m. on 07.03.2012 on the basis of which Crime No. 56 of 2012 was registered. The appellant was arrested at about 1.00 a.m. on the same day by the Investigating Officer Rajinder Singh Gaur (P.W.12). The clothes worn by the appellant were seized and the seizure panchnama was drawn in the presence of panchnama witnesses – Sheikh Arshad and Sheikh Nayeem.

4. Iliyas (P.W.9), the father of the deceased-victim also produced the clothes worn by her which too were duly seized in the presence of Syed Muzeeb (P.W.1) and Mohd. Akbar Khan. The scene of crime panchnama was drawn and articles found on the spot were also seized. The appellant was referred for medical examination to Ghati Hospital, Aurangabad. The appellant’s blood samples were taken on 11.3.2012 and sent to Mumbai for DNA examination along with the seized muddemal. The blood samples of the appellant were taken again on 13.03.2012 and were sent for the DNA test.

5. On filing of the chargesheet, charges under Sections 363, 376 and 302, IPC were framed to which the appellant did not plead guilty and claimed trial. Thereafter, prosecution moved an application for framing an additional charge under Section 377, IPC. The said application was allowed and charge under Section 377 was framed to which also the appellant did not plead guilty. His defence was of total denial and that he was falsely implicated.

6. The prosecution examined 12 witnesses in all. The following points thus arose for consideration of the Trial Court:-

“1. Whether the prosecution proves that accused on 6.3.2012 at about 16.00 Hrs. in the vicinity of Indira Nagar, old Jalna, Taluka and District : Jalna, kidnapped xxx.. d/o Iliyas Pathan a minor girl under 16 years of age from her lawful guardianship & without his consent, and thereby committed an offence punishable u/s 363 of I.P.C.?

2. Whether the prosecution further proves that accused on above date, time and place of offence, committed rape on xxx.. and thereby committed an offence punishable u/s 376 of IPC?

3. Whether the prosecution further proves that accused on above date, time and place of offence, committed carnal intercourse against the order of nature with minor girl xxx.. and thereby committed an offence punishable u/s 377 of IPC?

4. Whether the prosecution further proves that accused on above date, time and place of offence, committed murder intentionally or knowingly causing death of xxx.., and thereby committed an offence punishable u/s 302 of IPC?”

7. The Trial Court discussed the evidence at length in the context of each point and answered them in the affirmative. It held the appellant guilty of the offences referred to above. The Trial Court thereafter compared the ‘aggravating circumstances’ vis-a-vis the ‘mitigating circumstances’ and having found that the crime was committed in a most brutal, diabolical and revolting manner which shook the collective conscience of the society, it found that the R.R. Test (rarest of the rare cases) is fully attracted, hence capital punishment was imposed on the appellant under Section 302, IPC.

8. The High Court considered the death reference as well as the appeal preferred by the appellant against the trial Court judgment and after scrutinising the prosecution evidence, reached the following factual issues:-

“A. Accused was found with victim girl in a house one door of which was locked from outside and another door closed from inside,

B. Multiple injuries found on the person of victim,

C. Medical evidence showing that the girl was forcibly raped and done to death,

D. Recovery of blood stained jeans pant and full bush shirt (torn) from the accused,

E. Motive,

F. Failure of accused to offer plausible explanation to the incriminating circumstances against him.”

9. The High Court held that the circumstances conclusively prove that all the pieces of the puzzle fit so perfectly that they leave no reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant, rather the same leads to the irrefutable conclusion that it is the appellant who took away the victim child to his house, sexually assaulted her, committed unnatural intercourse and throttled her to death. Consequently, the conviction of the appellant under Sections 302, 376, 377 and 363 of the IPC. was upheld.

10. The High Court thereafter engaged itself on the question of quantum of sentence and as to whether the R.R. Test was attracted to the facts and circumstances of this case. The High Court drew up the balance sheet of the ‘aggravating’ and ‘mitigating’ circumstances and after their comparative analysis, it concurred with the extreme penalty awarded by the trial Court and confirmed the death sentence.

11. We have heard Ms. Nitya Ramkrishnan, Learned Counsel for the appellant and Mr. Nishant R. Katneshwarkar, Learned Counsel for the State of Maharashtra on merits as well as on the contentious issue re: quantum of sentence and have minutely perused the relevant record.

12. Learned Counsel for the appellant argued that there are chinks in the culpability calculus that have a direct bearing on the quantum of sentence as well. She urged that according to Azbar (P.W.2), the appellant was distributing chocolates to children near Maroti Temple around 3.30 to 4.00 p.m. and that the mother of the victim called her husband Iliyas (P.W.9) around 5.00 p.m. to inform that the deceased-victim had been missing since 4.00 p.m. There is no evidence that she was one amongst the children to whom the appellant was distributing chocolates; where had the victim been until 4.00 p.m. and where and when was she last seen and in whose company? The argument is that the victim was not lastly seen in the company of the appellant. It was then urged that the appellant’s house is four houses away from that of the victim; there are other houses next and opposite to that of the appellant, therefore, it is unbelievable that nobody saw the victim child being taken away by the appellant. She pointed out that five policemen entered the house of the appellant and the informant (P.W.9) also statedly accompanied them but the police officials in their depositions have not made any such reference.

13. According to Learned Counsel for the appellant, Azbar (P.W.2) also went to the house of the appellant only after learning that the victim had been traced in the house of the appellant, yet he claims to have seen the appellant under the cot while the victim was on the cot inside the house. It was unbelievable that even after the police had entered the 10×10 room and had hunted him out, the appellant would still remain under the cot until P.W.2 reached the spot. Similarly, Aslam (P.W.5) who is the maternal uncle of the victim, also went to the appellant’s house only after the victim had been found there. Yet, he too found the appellant under the cot.

According to the Learned Counsel, all these witnesses, namely, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.9 have been set out after learning that the child had been found purportedly to describe a scene immediately upon entering the house, which naturally cannot be the case. It was strongly urged that most of these persons did not witness the crime or scene of the crime as they have deposed that the child and the appellant were found in a state of undress, only Dilip Pralhadrao Tejan (P.W.3), who is a police official, says that the appellant was found outraging the modesty of the child. It thus suggests that the testimony of all these witnesses is not accurate and at best it leads to an inference that the child was found in the same house as was the appellant. It was pointed out that the testimony of P.W.3, P.W.4 and P.W.9 varies at the point as to what they saw on entering the house. However, P.W.3’s statement claiming that the appellant was found outraging the modesty of the child under the bed, is different from the version of others who found a cloth around the bed and could see the appellant and the victim only when the cloth was removed. P.W.9 (father of the victim child) does not state the same facts as have been described by P.W.3 or P.W.4 and thus there is inconsistent version on what was seen inside the appellant’s house upon entering.

14. It was then urged that the houses in the area were in a close cluster and it would have been difficult for the appellant to take the child away without being noticed by anyone. Further, prosecution has failed to establish two crucial facts, namely, the place where the victim child was last seen and the estimated time of her death. In the absence of surety of these two facts as to when was the victim child last seen alive and her approximate time of death, the recovery of her dead body between 9.30-10.00 p.m. in the house of the appellant per se is insufficient to establish the charge beyond reasonable doubt.

15. It was contended that even as per P.W.9 (the informant) the appellant along with his family had been residing in that very house since the past 7-10 years, but the prosecution has failed to explain as to where had the other members of the family been during those six hours, between 4.00 p.m. to 10.00 p.m. on that fateful day. This assumes significance in view of the DNA report which merely indicates that they are from the same paternal progeny.

16. Learned Counsel lastly urged that since the basis for the match in DNA report is the comparison with the blood sample of the appellant, it was imperative upon the prosecution to establish that the sample indeed was that of the appellant only. The person, who drew the blood sample has not been examined as a witness nor the contemporary record of the procedure for taking blood sample has been explained. There is only a bald statement of the Investigating Officer that the appellant was referred to Ghati hospital, Aurangabad. There is no memo or material to show as to who collected the blood sample of the appellant, when was the sample collected and where and how was it preserved. As against it, the medical examination reports and sample collection reports of the appellant (Exbts. 21, 21A and 22) indicate that no blood sample was taken which shows the incorrectness of the Investigating Officer’s testimony.

The chemical lab at Mumbai also does not mention any receipt of a blood sample of the appellant. She argued that the prosecution has strongly relied on the D.N.A. evidence despite the fact that the method of analysis used, i.e., Y-Chromosome Short Tandem Repeat Polymorphism (Y-STR) has certain inherent limitations due to which accurate identification of the accused cannot be established beyond a reasonable doubt. Unlike other processes like autosomal STR analysis, Y-STR analysis does not allow for individual identification in the same male lineage. It was thus contended that the prosecution has failed to bring the guilty at home, hence the appellant deserves the benefit of doubt.

17. Learned State Counsel, however, refuted all the appellant’s contentions and took us through the ocular and medical evidence, especially the eye-witness’s account to urge that there is no error or lapse worth whispering committed by the prosecution in establishing the appellant’s guilt. He extensively referred to the relevant parts of the impugned judgments to explain as to how the ‘aggravating’ and ‘mitigating’ circumstances have been drawn up and weighed before awarding or confirming the death sentence.

18. Before entering the hassled arena of sentencing, it is apropos to recapitulate the facts and evidence on record to find out whether the prosecution has been able to prove the charges against the appellant beyond any reasonable doubt.

19. The victim was not even 2-year old when she died an unnatural death. The post mortem was conducted on 07.03.2012 by a panel of doctors, which included Dr. B.L. Survesh (P.W.7) and Dr. Bedarkar (P.W.8). According to Dr. B.L. Survesh, the external injuries corresponded to the internal injuries and were sufficient in the ordinary course of nature to cause death. All the injuries were ante-mortem and the cause of death was throttling. The Medical Board found following injuries on external examination on the body of the deceasedvictim:-

1. Linear abrasion on right side of chest 2 cm, oblique, reddish in colour.

2. Abrasion over left zygomatic area, 5 x 2 cm.

3. Linear abrasion, left side of neck, above clavicle reddish, about 1 cm in length and 2 in number.

4. Linear abrasion, left scapular region, two in number, one below other 21/2 cm. reddish in colour.

5. Abrasion, 5 in number, at the centre over lower back, 1/2 x 1 cm each in size.

6. Contrusion over vault 1/2 x 1/2 cm.

7. Abrasion over right sub mandibular region, 1 cm reddish.

8. Abrasion, right supra clavicular region, 2 in number, 1/2 cm each, over above other.

20. The panel of doctors further found following injuries on the internal examination of the body:-

1. Neck dissection under the skin, contusion to muscle and subcutaneous tissues corresponding to abrasions on skin.

2. Right and left lungs congested.

3. Heart was found congested. 13

4. Right side of the heart was full of blood and left side was empty.

5. Tongue was inside the mouth between the teeth.

6. Stomach was congested and was containing semidigested food.

21. On the vaginal examination of the victim, evidence of tear at posterior vaginal wall and triangular shape tear 2x1x1/2 cm. was noticed and hymen was found ruptured. Dr.Survase (P.W.7) has deposed that “on perusal of report as to examination of anal swab in DNA report, and, considering observation in clause 15 of the post mortem report, I opine that there was unnatural sex.” Similarly, Dr.Bedarkar (P.W.8) after perusing the same DNA report and post mortem report has stated that, ” I opine that vaginal and anal intercourse was performed.”

22. It, therefore, stands established beyond any pale of doubt that the victim child was subjected to forcible vaginal and anal/unnatural intercourse and she died of asphyxia due to throttling.

Connection between the appellant and the crime

23. Azbar (P.W.2) had known the appellant since their childhood as both of them had been residing in the same lane. On 06.03.2012, while going towards his house at about 3.30 to 4.00 p.m. he met the appellant who was drunk and was distributing chocolates to children near Maroti Temple. His friend Gayas called him [Azbar (P.W.2)] at 5.00 p.m. to inform that the victim, daughter of Iliyas, was missing. They started looking for the child near Bhagya Nagar Railway Station, Mhada Colony, Aurangabad Chouphuly, Sanjay Nagar, etc. Then he got to know that the victim had been traced in the house of the appellant. P.W.2 then went to the appellant’s house at Indira Nagar.

There was a crowd of people there and police was already present when he entered the house and saw that the child was lying on a cot and a blanket was put on her body. The appellant was under the said bed. The witness also slapped the appellant 2-3 times before the police took the later. P.W.2 was called on the next day on 07.03.2012 for spot panchnama. One white paper, a pencil, blue broken bangle, one pass book carrying names of Reena and Lakshmi Bai Ghumare and one piece of a saree was found and seized by the police and kept in an envelope. The panchnama bears his signatures. In his cross-examination, P.W.2 has categorically stated that though the parents of the appellant are alive but they were not present at his house at the time of occurrence. He has explained in detail as to how the panchnama was prepared.

24. Dilip Pralhadrao Tejan (P.W.3) the police official, had been attached to Kadim Jalna police station on 06.03.2012. The missing report lodged by Ilias (P.W.9) about his 2-year old daughter was handed over to P.W.3 for inquiry. P.W. 3 along with policemen Katake, Jawale, Rathod and Chavan was in Indira Nagar area of Jalna where he got to know that the appellant was seen distributing chocolates and icecream/fruits to minor children. P.W.3 along with other police officials, therefore, went to the house of the appellant between 9.30 to 9.45 p.m. and found that there were two doors, one was locked from outside and the other from inside. P.W.3 peeped through the gap in the door and noticed some cloth around the bed. He called the appellant by name but nobody responded.

The witness then broke open the door and entered the house and found the appellant outraging the modesty of the victim child under the bed. The police-party covered the baby with a quilt and placed her on the bed. Meanwhile about 20 persons followed them including Aslam, the maternal uncle of the missing child. The victim child was sent along with Aslam for medical treatment. Since several more agitated persons gathered at the scene, the police rescued the appellant and took him to the police station. The peole were demanding that the appellant be handed over to them. On a specific court question as to in which manner and in what circumstances P.W.3 saw the accused and the deceased, he had answered in no uncertain terms that the “deceased kid was found naked and blood was oozing from her mouth and private parts. There was no shirt on the person of the accused, his jean and trouser was found on his knee. Accused was also found naked.”

25. Constable Sanjay Katake (P.W.4) was also a member of the police team led by API Dilip Pralhadrai Tejan which was looking for the missing child in Indira Nagar area of Jalna. P.W.4 has also unequivocally deposed that they were informed by the people in the vicinity that the appellant ‘used’ to distribute icecream and chocolates among the children and on that day also he was seen doing so. The police team, therefore, went to the house of the appellant which had two doors. One of the door was locked from outside whereas the other was from inside. The police party called the appellant by name, but he did not respond. Then, they peeped through the slit of the door and noticed a bed and some piece of cloth around it and got suspicious that there was somebody under the bed. They broke open the door and entered the house. A.S.I. Tejankar removed the cloth around the bed and the police team found the appellant and the victim child under the bed in naked condition.

Tejankar placed the child over the bed. “Blood was found oozing from mouth and private part of that kid”. The victim was wrapped in a blanket and rushed to the hospital through her maternal uncle. 4-5 persons who had entered the house along with the police team insisted on having the custody of the appellant. Meanwhile, 150-200 more persons gathered at the spot. The appellant was rescued from the mob and taken to the police station. The mob became aggressive and started pelting stones on the police vehicles and the policemen. Some loss was also caused to the house of the appellant. P.W.4 is the same police official who lodged the report at Kadim Jalna Police Station (Exbt. 45). In his cross-examination, it was suggested to P.W.4 that there is a population of about 5000 in the vicinity and that he never accompanied Mr. Tejankar, ASI and he knew nothing about the incident.

26. Aslam (P.W.5) has deposed that deceased was daughter of his sister. The husband of his sister, Iliyas informed him on 06.03.2012 on telephone that deceased was missing and he asked him to bring a photograph of the victim to the police station. Aslam brought one photograph of the child to Kadim Jalna police station and lodged the missing report. The witness thereafter went to look for the missing child in Ambad Chouphuly Railway Station and Moti Bagh area. While he was still looking for her, one Hussain Pathan informed him on phone that the child had been found so he immediately went to the Indira Nagar area, Jalna to the house of the appellant. He noticed that the appellant was under the bed while the victim was lying on the bed. There were no clothes on the person of the child; she was wrapped in a blanket. He then took the victim to Deepak Hospital, Jalna, then to the Civil Hospital, Jalna where the doctors declared her brought dead. The witness has denied in the cross-examination that there was any quarrel between Ilias (P.W.9), father of the victim and the appellant.

27. Nand Kumar Vinayakrao Tope (P.W.6) is a police head constable, who was on duty at Kadim Jalna police station on 12.03.2012. He has deposed that on 11.03.2012 he was asked to carry muddemal along with a covering letter which he deposited on 12.03.2012 in C.A. Office, Mumbai. The covering letter is Exbt. P-51. He also carried the blood sample of the appellant to C.A. Office, Mumbai and deposited the same on 14.03.2012. He has categorically stated in his crossexamination that the blood sample of the appellant bore signatures of the doctors and panches.

28. We may now briefly refer to the statement of Ilias (P.W.9) – father of the victim girl. He has deposed that the child was about two years old; he resides in Indira Nagar, Jalna along with his family, including his wife Aysha; the appellant was also residing in the same lane. On the date of occurrence, i.e, 06.03.2012 he was selling fruits in Nutan Vasahat area of Jalna when his wife informed him on phone at about 5.00 p.m. that their daughter had been missing since 4.00 p.m. He immediately went home where his father and brother had already reached. They started looking for the child in the adjoining localities.

The witness informed the police about his missing daughter who also started searching for her. Azhar Usman meanwhile informed him that the appellant while under the ‘influence of liquor’ was distributing chocolates to children. P.W.9 then went to the house of appellant which was found locked from outside. The missing report of the child was lodged around 8.00-8.30 p.m. The witness also passed on the information to the police that he had gathered from Azhar. The Police party too, therefore, reached at the house of appellant and they broke open one of the doors. The witness and his brother entered the house along with the police and found that his daughter was lying under the bed and the appellant was also lying under the bed. His daughter was naked and there were injuries on her person aw well as private parts.

Police laid the child on the bed and after covering her with a cloth she was taken to Deepak Hospital, Jalna where doctors informed that the victim was already dead. The appellant killed her by pressing her throat. The witness also identified his signatures on the report lodged by him Exbt. P- 67. The witness in his cross-examination denied any dispute with the father of the appellant in connection with the purchase of the premises.

29. The other witness whose statement has a direct bearing on connecting the appellant with the crime is API Rajendrasingh Prabhusingh Gaur (P.W.12), who was attached to Kadim JalnaPolice Station on 06.03.2012. He arrested the appellant at 1.00 a.m. on 07.03.2012. The appellant was brought to the police station by ASI Tejankar. He has further stated that “blue jeans and green shirt on the person of accused was seized. There were blood-stains and semen stains on it. The seizure panchnama Exbt. P-19 bears my signature and also of the accused.” He has further deposed that the father of the victim produced knicker and frock worn by the deceased victim and also the blanket in which she was wrapped. Blue bangle, painjan were also seized under panchnama Exbt. P-32, which bears his signatures along with those of the panches. Muddemal articles shown at S.No. 125 in the chargesheet were the same. Muddemal article Nos. 6 and 7 in the chargesheet were the clothes of the appellant.

The police officer (P.W.12) went to the spot and also collected a paper having blood-stains, piece of blue bangle, a passbook of post office and yellow piece of a saree having blood-stains. All these articles were seized under his signatures and of the panches. P.W.12 has further stated that the appellant was referred to Ghati Hospital, Aurangabad for his medical examination and report Nos. 21 and 21A were obtained. Appellant’s blood sample was taken on 11.03.2012 from S.D.H. Ambad and all the blood samples were sent to Mumbai for DNA examination along with a forwarding letter Exbt. P-51. Since the said blood sample was not sent as per the prescribed format, another blood sample of the appellant was taken by the Medical Officer at S.D.H. Ambad on 13.03.2012 and it was sent along with the covering letter Exbt. P-52. P.W.12 also sent viscera of the victim on 12.03.2012 along with letters which bear his signatures.

The report of the viscera Exbt. P-81 was also obtained. P.W.12 had further identified the reports regarding clothes on the person of the victim and the appellant Exbt. P-82. P.W.12 has been subjected to a fairly long cross-examination but no discrepancy, having bearing on the merits of the case, has been extracted.

30. After a tenacious analysis of the testimonies of the witnesses with respect to the facts seen by each one of them, there remains no room to doubt that on 06.03.2012 the appellant after taking liquor was seen distributing chocolates to children sometime around 3.30/4.00 p.m. The victim child went missing around 4.00 p.m. as was informed to Ilias (P.W.9) by his wife at about 5.00 p.m.

The information of her missing was immediately circulated amongst the family members/relatives and all of them desparately started searching for her. Meanwhile, the missing report was lodged with police as well. During such search operations by the police and also the family members of the missing child, it surfaced that the appellant was distributing chocolates to allure children near Maroti Temple on that day and around that time the child went missing. The police-team, Iliyas – the father of the victim and his brother, genuinely apprehensive and smelling something foul, reached the house of the appellant and nabbed him red-handed under the bed with the victim in naked condition. It further stands established conclusively that deceased had been brutally assaulted and subjected to vaginal and unnatural intercourse.

The victim had been inflicted multiple injuries on face, head, neck, external genetalia as well as inside the uterus and urethra. We may in this regard refer to, in particular, the deposition of Dilip Pralhadrai Tejan (P.W.3), who after making forceful entry inside the appellant’s house, found him outraging the modesty of the child. The appellant had the special knowlege as to in what circumstances the victim child suffered those multiple injuries. The burden to prove that those injuries were not caused by him was on the appellant alone in view of Section 106 of the Evidence Act, which he has miserably failed to discharge though the evidence on record proves beyond doubt that the victim child was in unlawful custody of the appellant from about 4.00 p.m. till she breathed her last breath due to the beastly attack on her.

Scientific Evidence connecting the appellant with the Crime:

31. Dr. Bhanu Das Survase (P.W.7) was a member of the panel of doctors, who conducted post mortem on the dead body of the victim. He has testified that samples of swabs, blood sample and nails sample of the victim were taken by them. So is the statement of Dr. Bedarkar (P.W.8) who has stated that “various types of swabs, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails and blood samples of xxx.. were taken.” He has further deposed that all samples were seized and handed over to the police. Police Inspector Rajendrasingh Prabhusingh Guar (P.W.12) has stated on oath that after arresting the appellant, the blue jeans and green shirt on his person were seized and that there were blood-stains and semen stains on it. The knicker and frock of the victim along with blanket in which she was wrapped as well as various articles collected from the scene of crime including a piece of saree having blood-stains, were seized. The blood sample of the appellant was also taken and all the seized articles/samples were sent to Mumbai for examination.

32. Shrikant Hanamant Lade (P.W.11) Assistant Director in Forensic Science Laboratory, Mumbai, who got training in CDFD Institute, Hyderabad also, has authored about 30 papers on DNA, besides a well known book ‘Forensic Biology’. He has testified that they conducted the DNA test as per the guidelines issued by the Director of Forensic Science, Ministry of Home Affairs, New Delhi. Their office received the sealed muddemal from Kadim, Jalna Police Station sent vide letter dated 11.03.2012 as also the blood sample of the appellant sent vide letter dated 13.03.2012 (Exbt. P-52).

The blood sample of the victim was received on 12.03.2012 along with samples of oral swabs and other articles. P.W.11 analysed the oral swabs and other articles of the victim, nasal swabs, superficial vaginal swab, deep vaginal smear on slide, superficial vaginal smear on slide, anus swab, skin scraping of blood on thigh and abdomen, nails as also other blood samples. P.W.11 has further deposed that, “I have extracted DNA from blood sample of Accused Ravi Ghumare, Superficial vaginal swab on Exhibit No.3, deep vaginal swab Exhibit No.4, Deep vaginal swab on slide Exhibit No.5 superficial vaginal swab on slide Exhibit No.6, anal swab Exhibit No.7, skin scrapping of blood on thigh and abdomen Exhibit No.8, blood & semen detected on Exhibit No.3 Jeans pant.

This DNA was amplified by using Y-chromosome specific marker, Y-chromosome short tandem repeat polymorphism [YSTR] and by using Polymerase Change Reaction [for short PCR] amplification technique. DNA profile was generated. I analyzed all these DNA profiles. My interpretation is male haplotypes of semen detected on Exhibit No.3 Superficial vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.3 Superfinal vaginal swab Exhibit No.4 deep vaginal sway Exhibit No.5 deep vaginal smear on slide, Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8 skin scrapings of blood on thigh and abdomen and blood and semen detected on Exhibit No.3, jeans pant of F.S X. ML Case No.DNA 951/12 matched with the male haplotypes of blood sample of Exhibit No.1, Ravi Ashok Ghumare of F.S.L. ML Case No.DNA-209/12.

My opinion is DNA profile of semen detected on Exhibit No.3 superficial vaginal swab, Exhibit 4 deep vaginal swab, Exhibit No.5 deep vaginal smear on slid Exhibit No.6 superficial vaginal smear on slide, Exhibit No.7 anal swab, Exhibit No.8, skin scrapings of blood on thigh and abdomen, blood and semen detected on Exhibit No.3 jeans pant of F.S.L ML Case No.DNA- 951/112 and blood sample of Exhibit No.1 Ravi Ashok Ghumare of F.S.LML Case No.DNA-209/12 is from the same paternal progeny. Accordingly, I prepared examination report filed with list Exhibit No.71 bear my signature, Contents are correct. It is at Exhibit No.75. Analysis of all above DNA profiles is shorn in table in the same report. Blue jeans pant and shirt of Accused Exhibit No.3 & 4 were referred by biological section of our office. I extracted DNA from blood and semen detected Exhibit No.3, full jeans pant, blood detected on Exhibit No.4 full bush shirt, and sample of Ravi Ghumare.

Then this DNA was amplified by using 15 STR Loci using PCR amplification technique. My interpretation is DNA profile of blood and semen detected on Exhibit No.3 full jeans pant, blood detected on Exhibit No.4 full bush shirt [torn] of F.S.l. ML. Case No.DNA-951/12 and blood sample of Ravi Ashok Ghumare is identical and from one and same source of male origin. DNA profiles match with the maternal and paternal alleles in the source of blood.”

33. Shrikant Lade (P.W.11) accordingly prepared the DNA report which is duly attested by the Assistant Chemical Analyser also. On seeing the contents of his report, P.W.11 has pertinently deposed that “I can opine on going through the reports Exbts. 75-76 that there were sexual intercourse and unnatural intercourse on the victim by the accused Ravi.”

[emphasis applied].

34. The unshakable scientific evidence which nails the appellant from all sides, is sought to be impeached on the premise that the method of DNA analysis “Y-STR” followed in the instant case is unreliable. It is suggested that the said method does not accurately identify the accused as the perpetrator; and unlike other methods say autosomal-STR analysis, it cannot distinguish between male members in the same lineage.

35. We are, however, not swayed by the submission. The globally acknowledged medical literature coupled with the statement of P.W.11 – Assistant Director, Forensic Science Laboratory leaves nothing mootable that in cases of sexual assualt, DNA of the victim and the perpetrator are often mixed. Traditional DNA analysis techniques like “autosomal- STR” are not possible in such cases. Y-STR method provides a unique way of isolating only the male DNA by comparing the YChromosome which is found only in males. It is no longer a matter of scientific debate that Y-STR screening is manifestly useful for corroboration in sexual assault cases and it can be well used as excalpatory evidence and is extensively relied upon in various jurisdictions throughout the world.1 & 2. Science and Researches have emphatically established that chances of degradation of the ‘Loci’ in samples are lesser by this method and it can be more effective than other traditional methods of DNA analysis.

Although Y-STR does not distinguish between the males of same lineage, it can, nevertheless, may be used as a strong circumstantial evidence to support the prosecution case. Y-STR techniques of DNA analysis are both regularly used in various jurisdictions for identification of offender in cases of sexual assault and also as a method to identify suspects in unsolved cases. Considering the perfect match of the samples and there being nothing to discredit the DNA analysis process, the probative value of the forensic report as well as the statement of P.W.11 are very high. Still further, it is not the case of the appellant that crime was committed by some other close relative of him. Importantly, no other person was found present in the house except the appellant.

36. There is thus overwhelming eye-witness account, circumstantial evidence, medical evidence and DNA analysis on record which conclusively proves that it is the appellant and he alone, who is guilty of committing the horrendous crime in this case. We, therefore, unhesitatingly uphold the conviction of the appellant.

Motive

37. Though the High Court has observed that ‘satisfaction of lust’ and ‘removal of trace’ was the appellant’s motive but motive is not an explicit requirement under the Indian Penal Code, though ‘motive’ may be helpful in proving the case of the prosecution in a case of circumstantial evidence. This Court has held in a catena of decisions that lack of motive would not be fatal to the case of prosecution as sometimes human beings act irrationally and at the spur of the moment. The case in hand is not entirely based on circumstantial evidence as there are reliable eye-witness depositions who have seen the appellant committing the crime, may be in part. Such an unshakable evidence with dense support of DNA test does not require the definite determination of the motive of the appellant behind the gruesome crime.

Sentencing:

38. On the question of sentence, Learned Counsel for the appellant vehemently urged that the Courts below have been largely influenced by the ‘nature’ and ‘brutality’ of the crime while awarding the extreme sentence of death penalty. She referred to a list of as many as 35 decisions rendered by this Court in the cases of rape and murder of a child-victim in which the death sentences were commuted to life imprisonment. It was urged that brutality of the crime alone is not sufficient to impose the sentence of death; it is imperative on the State to establish that the convict is beyond reform and to this end it is relevant to see whether this is the first conviction or there has been previous crimes. The socioeconomic conditions of the convict and the state of mind must be assessed by the Court before awarding such a penalty; the death penalty must not be awarded in a case of circumstantial evidence as any chink in the culpability calculus would interdict the extreme penalty.

Learned Counsel heavily relied upon

(i) Kalu Khan v. State of Rajasthan (2015) 16 SCC 492 in which a three-Judge Bench of this Court commuted the death sentence in murder, abduction and rape, holding that the life imprisonment would serve the object of reformation, retribution and prevention and that giving and taking life is divine, which cannot be done by Courts unless alternatives are foreclosed. Another three-Judge Bench decision in Sunil v. State of Madhya Pradesh (2017) 4 SCC 393 where a 25- year old was held guilty of murder and rape of a 4-year old child, but not sent to gallows on the parameters that he could be reformed and rehabilitated, has been pressed into aid. She, in specific, cited several three-Judge Bench judgments where the young age of the accused was taken as a mitigating circumstance and in the absence of previous criminal history, the conduct of the accused while in custody and keeping in view the socio-economic strata to which he belonged, the possibility of reform was not ruled out and death penalty was commuted.

39. Learned Counsel for the appellant placed great reliance on a three-Judge Bench decision of this Court dated December 12, 2018 rendered in Rajindra Pralhadrao Wasnik v. State of Maharashtra in Review Petition(Crl.) Nos. 306-307/2013 in which the appellant was held guilty of rape and murder of a 3- year old child and the death sentence was substituted by the life imprisonment with a rider, “that the convict shall not be released for the rest of his life”. This Court viewed in that case that

(a) the case was solely based on circumstantial evidence,

(b) probability of reformation and rehabilitation could not be ruled out,

(c) DNA sample of the accused was taken, but not submitted in the Trial Court, and

(d) the factum of pendency of two similar cases against the accused reflecting on his bad character was not admissible. Yet another three-Judge Bench decision of this Court in Parsuram v. State of Madhya Pradesh (Criminal Appeal Nos. 314-315 of 2013), decided on 19th February, 2019 where also death sentence awarded to a 22-year old who was found guilty of rape and murder of a minor girl, was commuted on the principles quoted above, has been relied upon.

40. The appellant’s Counsel urged that the High Court ought not to have followed

(i) Dhanjoy Chaterjee v. State of West Bengal (1994) 2 SCC 220, which was later on doubted by this Court in Shankar Kishanrao Khade v. State of Maharashtra (2013) 5 SCC 546 and

(ii) Shivaji v. State of Maharashtra (2008) 3 SCC 269 which too was held to be per curian in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498. She very passionately urged that neither the High Court nor the Trial Court have given reasons for imposition of death penalty as both the Courts have been influenced by the nature of the crime. The mitigating circumstances of the appellant were inadequately represented. The brutality of the crime is the pre-dominant ground for imposition of death penalty though this Court has cautioned contrarily in a catena of decisions. Both the Courts have failed in recording a finding that the appellant was beyond reform and unless it was so found, the case cannot belong to the ‘rarest of the rare’ category.

41. Relying upon the facts like

(i) lack of criminal antecedents;

(ii) no record of anti-social conduct prior to the crime;

(iii) appellant being 25-30 years of age;

(iv) brutality of crime cannot be a ground to award death sentence; and

(v) the appellant belongs to poor section of society, his learned Counsel urged that this is not a fit case for imposition of death penalty.

42. Learned State Counsel, contrarily, maintained that the instant case satisfies the principle of ‘rarest of the rare cases’ and the appellant who committed the crime of rape and murder of a barely 2-year old innocent toddler in the most dastardly manner, does not deserve any liniency. According to him, the appellant is a menace to the society and to deter such like crimes against mankind, this Court should show no misplaced sympathy.

43. The question which eventually falls for consideration is whether the instant case satisfies the test of ‘rarest of the rare cases’ and falls in such exceptional category where all other alternatives except death sentence, are foreclosed and whether this Court should explore the award of actual life imprisonment as prescribed by this Court in Swamy Shraddananda @ Murli Manohar Mishra v. State of Karnataka (2008) 13 SCC 767 which has got seal of approval of the Constitution Bench in Union of India v. V. Sriharan @ Murugan & Ors. (2016) 7 SCC 1.

44. The Constitution Bench of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684, while upholding the constitutionality of death penalty under Section 302 IPC and the sentencing procedure embodied in Section 354(3) of the Code of Criminal Procedure, struck a balance between the protagonists of the deterrent punishment on one hand and the humanity crying against death penalty on the other and elucidated the strict parameters to be adhered to by the Courts for awarding death sentence. While emphasising that for persons convicted of murder, life imprisonment is the ‘rule’ and death setnence an ‘exception’, this Court viewed that a rule abiding concern for the dignity of the human life postulates resistance in taking the life through laws instrumentality and that the death sentence be not awarded “save in the rarest of the rare cases” when the alternative option is foreclosed.

45. In Machhi Singh v. State of Punjab (1983) 3 SCC 470, this Court formulated the following two questions to be considered as a test to determine the rarest of the rare cases in which the death sentence can be inflicted:

“(a) Is there something uncommon, which renders sentence for imprisonment for life inadequate calls for death sentence?

(b) Rather the circumstances of the crime such that there is no alternative, but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speaks in favour of the offender?”

46. Machhi Singh then proceeded to lay down the circumstances in which death sentence may be imposed for the crime of murder and held as follows:-

“32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it.

The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when

(a) a hired assassin commits murder for the sake of money or reward

(b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or

(c) a murder is committed in the course for betrayal of the motherland.

III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of “bride burning” and what are known as “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is

(a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder

(b) a helpless woman or a person rendered helpless by old age or infirmity

(c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust

(d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons …..”

47. It thus spells out from Machhi Singh (supra) that extreme penalty of death sentence need not be inflicted except in gravest cases of extreme culpability and where the victim of a murder is … (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder…”, such abhorent nature of the crime will certainly fall in the exceptional category of gravest cases of extreme culpability.

48. This Court in Machhi Singh’s case confirmed the death sentence awarded to Kashmir Singh – one of the appellants as he was found guilty of causing death to a poor defenceless child (Balbir Singh) aged 6 years. The appellant Kashmir Singh was categorised as a person of depraved mind with grave propensity to commit murder.

49. Bachan Singh and Machhi Singh, the Constitution Bench and the Three-Judge Bench decisions respectively, continue to serve as the foundation-stone of contemporary sentencing jurisprudence though they have been expounded or distinguished for the purpose of commuting death sentence, mostly in the cases of

(i) conviction based on circumstantial evidence alone;

(ii) failure of the prosecution to discharge its onus re: reformation;

(iii) a case of residual doubts; and

(iv) where the other peculiar ‘mitigating’ circumstances outweighed the ‘aggravating’ circumstances.

50. It is noteworthy that the object and purpose of determining quantum of sentence has to be ‘society centric’ without being influenced by a ‘judge’s’ own views, for society is the biggest stake holder in the administration of criminal justice system. A civic society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat, danger or insecurity at the hands of anti-social elements. The society legitimately expects the Courts to apply doctrine of proportionality and impose suitable and deterent punishment that commensurate(s) with the gravity of offence.

51. Equally important is the stand-point of a ‘victim’ which includes his/her guardian or legal heirs as defined in Section 2(wa), Cr.P.C. For long, the criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The ‘victim’- the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as a mute spectator. The ethos of criminal justice dispensation to prevent and punish ‘crime’ would surreptitiously turn its back on the ‘victim’ of such crime whose cries went unheard for centuries in the long corridors of the conventional apparatus. A few limited rights, including to participate in the trial have now been bestowed on a ‘victim’ in India by the Act No. 5 of 2009 whereby some pragmatic changes in Cr.P.C. have been made.

52. The Sentencing Policy, therefore, needs to strike a balance between the two sides and count upon the twin test of

(i) deterrent effect, or

(ii) complete reformation for integration of the offender in civil society. Where the Court is satisfied that there is no possibility of reforming the offender, the punishments before all things, must be befitting the nature of crime and deterrent with an explicit aim to make an example out of the evil-doer and a warning to those who are still innocent. There is no gainsaying that the punishment is a reflection of societal morals. The subsistence of capital punishment proves that there are certain acts which the society so essentially abhores that they justify the taking of most crucial of the rights – the right to life.

53. If the case-law cited on behalf of the appellant where this Court commuted death sentence into life imprisonment for the ‘rest of the life’ or so is appreciated within these contours, it won’t need an elaborate discussion that the peculiarity of the facts and circumstances of each case prompted this Court to invoke leniency and substitute the death sentence with a lesser punishment. The three-Judge Bench decision in Rajendra Pralhadrai Washnik (supra) is clearly distinguisahable on this very premise as that was a case, not only based on circumstantial evidence but where even the DNA sample of the accused though taken was not submitted in the trial Court.

It was thus a case of “residuary doubts” as explained by this Court in Ashok Debbarma v. State of Tripura (2014) 4 SCC 747. The same analogy takes away the persuvasive force in Parsuram (supra), for that too was a case where the guilt was established only on the basis of circumstantial evidence.

54. Contrary to it, a Three-Judge Bench of this Court in Vsanta Sampat Dupare v. State of Maharashtra (2017) 6 SCC 631, which is very close on facts to this case, found the convict guilty of raping and battering to death a little girl of 4 years after luring her by giving chocolates. The prosecution established its case by relying upon the ‘last seen theory’ as the appellant was seen taking away the victim on a bicycle on the fateful day. The eye-witness account, the disclosure statement made by the accused coupled with the other circumstantial evidence nailed him. The death setence was confirmed by this Court on 26th November, 2014.

He, thereafter filed a Review Petition after about three years, claiming that post-confirmation of his death sentence, he had improved his academic qualification, completed the Gandhi Vichar Pariksha and had also participated in the Drawing Competition organised sometime in January, 2016. It was also asserted that his jail record was without any blemish and there was a possibility of the accused being reformed and rehabilitated. This Court dismissed the Review Petition by way of a self-speaking judgment, holding that the aggravating circumstances, namely, the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless child of four years clearly outweigh the mitigating circumstances now brought on record.

55. In Khushwinder Singh v. State of Punjab, (2019) 4 SCC 415, this Court affirmed the death sentence of an accused who had killed six innocent persons, out of which two were minors, by kidnapping three persons, drugging them with sleeping tablets, and then pushing them into a canal. Thereafter, three other members of the same family were also done away with. This Court upheld the award of capital punishment observing as follows:-

“14. Now, so far as the capital punishment imposed by the learned Sessions Court and confirmed by the High Court is concerned, at the outset, it is required to be noted that, as such, the learned counsel appearing on behalf of the accused is not in a position to point out any mitigating circumstance which warrants commutation of death sentence to the life imprisonment. In the present case, the accused has killed six innocent persons, out of which two were minors – below 10 years of age. Almost, all the family members of PW 5 were done to death in a diabolical and dastardly manner. Fortunately, or unfortunately, only one person of the family of PW 5 could survive. In the present case, the accused has killed six innocent persons in a pre-planned manner.

The convict meticulously planned the time. He first kidnapped three persons by way of deception and took them to the canal and after drugging them with sleeping tablets, pushed them in the canal at midnight to ensure that the crime is not detected. That, thereafter he killed another three persons in the second stage/instalment. Therefore, considering the law laid down by this Court in Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 : (2017) 2 SCC (Cri) 673] , the case would fall in the category of the “rarest of rare case” warranting death sentence/capital punishment. The aggravating circumstances are in favour of the prosecution and against the accused. Therefore, striking a balance between the aggravating and mitigating circumstances, we are of the opinion that the aggravating circumstance would tilt the balance in favour of capital punishment. In the facts and circumstances of the case, we are of the opinion that there is no alternative punishment suitable, except the death sentence.

The crime is committed with extremist brutality and the collective conscience of the society would be shocked. Therefore, we are of the opinion that the capital punishment/death sentence imposed by the learned Sessions Court and confirmed by the High Court does not warrant any interference by this Court. Therefore, we confirm the death sentence of the accused imposed by the learned Sessions Court and confirmed by the High Court while convicting the appellant for the offence punishable under Section 302 IPC.”

56. In a recent Three-Judge Bench decision of this Court in Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore, (2019) SCC Online 951, the appellant’s capital punishment was confirmed by the High Court in a case in which he along with his co-accused was held guilty of kidnapping a 10-year old girl and her 7-year old brother. After committing gang rape of the minor girl, both the victims were done away with by throwing them into a canal which caused their death by drowning. This Court (by majority) upheld the death sentence, concluding as follows:-

“41. In the circumstances, we have no doubt that the trial court and High Court have correctly applied and balanced aggravating circumstances with mitigating circumstances to find that the crime committed was cold blooded and involves the rape of a minor girl and murder of two children in the most heinous fashion possible. No remorse has been shown by the Appellant at all and given the nature of the crime as stated in paragraph 84 of the High Court’s judgment it is unlikely that the Appellant, if set free, would not be capable of committing such a crime yet again. The fact that the Appellant made a confessional statement would not, on the facts of this case, mean that he showed remorse for committing such a heinous crime. He did not stand by this confessional statement, but falsely retracted only those parts of the statement which implicated him of both the rape of the young girl and the murder of both her and her little brother. Consequently, we confirm the death sentence and dismiss the appeals.”

57. It is equally apt at this stage to refer the recent amendments carried out by Parliament in the Protection of Children from Sexual Offences Act, 2012 by way of The Protection of Children from Sexual Offences (Amendment) Act, 2019 as notified on 6th August, 2019. The unamended Act defines “Aggravated Penetrative Sexual Assault” in Section 5, which included, “whoever commits aggravated penetrative sexual assault on a child below the age of 12 years.” Originally, the punishment for an aggravated sexual assault was rigorous imprisonment for a term not less than 10-years but which may extend for imprisonment for life with fine.

58. The recent amendment in Section 6 of 2012 Act has substituted the punishment as follows:-

“Post the Amendment, Section 6 has been substituted as follows:-

“6. (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.

(2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.”

[Emphasis applied]

59. The minimum sentence for an aggravated penetrative sexual assault has been thus increased from 10 years to 20 years and imprisonment for life has now been expressly stated to be imprisonment for natural life of the person. Significantly, ‘death sentence’ has also been introduced as a penalty for the offence of aggravated penetrative sexualt assault on a child below 12 years.

60. The Legislature has impliedly distanced itself from the propounders of “No-Death Setence” in “No Circumstances” theory and has re-stated the will of the people that in the cases of brutal rape of minor children below the age of 12 years without murder of the victim, ‘death penalty’ can also be imposed. In the Statement of Objects and Reasons of amendment, Parliament has shown its concern of the fact that “in recent past incidents of child sexual abuse cases administering the inhuman mindset of the accused, who have been barbaric in their approach to young victim, is rising in the country.”

If the Parliament, armed with adequate facts and figures, has decided to introduce capital punishment for the offence of sexual abuse of a child, the Court hitherto will bear in mind the latest Legislative Policy even though it has no applicability in a case where the offence was committed prior thereto. The judicial precedents rendered before the recent amendment came into force, therefore, ought to be viewed with a purposive approach so that the legislative and judicial approaches are well harmonised.

61. In the light of above discussion, we are of the considered opinion that sentencing in this case has to be judged keeping in view the parameters originating from Bachan Singh and Machhi Singh cases and which have since been strengthened, explained, distinguished or followed in a catena of subsequent decisions, some of which have been cited above. Having said that, it may be seen that the victim was barely a two-year old baby whom the appellant kidnapped and apparently kept on assaulting over 4-5 hours till she breathed her last. The appellant who had no control over his carnal desires surpassed all natural, social and legal limits just to satiate his sexual hunger. He ruthlessly finished a life which was yet to bloom. The appellant instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.

It’s a case where trust has been betrayed and social values are impaired. The unnatural sex with a two-year old toddler exhibits a dirty and perverted mind, showcasing a horrifying tale of brutality. The appellant meticulously executed his nefarious design by locking one door of his house from the outside and bolting the other one from the inside so as to deceive people into believing that nobody was inside. The appellant was thus in his full senses while he indulged in this senseless act. Appellant has not shown any remorse or repentance for the gory crime, rather he opted to remain silent in his 313 Cr.P.C. statement. His deliberate, well-designed silence with a standard defence of ‘false’ accusation reveals his lack of kindness or compassion and leads to believe that he can never be reformed. That being so, this Court cannot write off the capital punishment so long as it is inscribed in the statute book.

62. All that is needed to be followed by us is what O’ Conner J. very aptly observed in California v. Ramos, 463 U.S. 992 that the “qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination” and in order to ensure that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has to be with the procedure by which the death sentence is imposed than with the substantive factors laid before it.

63. For the reasons aforestated, we dismiss the appeals and affirm the death sentence.

J. (ROHINTON FALI NARIMAN)

J. (SURYA KANT)

NEW DELHI

03.10.2019


SUPREME COURT OF INDIA

Ravi S/o Ashok Ghumare Vs. The State of Maharashtra

[Criminal Appeal Nos. 1488-1489 of 2018]

R. Subhash Reddy, J.

1. I have gone through the opinion of my learned Brother, Surya Kant, J. I am in agreement with the view expressed in the said judgment, to the extent of confirming the conviction recorded against the appellant, for the offence under Sections 363, 376, 377 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’). However, as I am of the view that, this is not a fit case where the appellant is to be awarded capital punishment, i.e, death penalty, as such, I wish to share my view separately, in this judgment.

2. The appellant was tried for committing the rape and murder on the minor girl child “Zoyabano” and he was charged for offence punishable under Sections 363, 376, 377 and 302 IPC. After the trial, learned Additional Sessions Judge at Jalna, by judgment dated 16.09.2015, has held that appellant is guilty for the charges framed against him.

3. By order dated 18.09.2015, the trial court, by recording a finding that crime committed by the appellant is heinous, brutal and inhuman, convicted and sentenced the appellant to death for the offence punishable under Section 302 IPC and ordered that he shall be hanged by neck till he is dead, subject to confirmation by the High Court as per Section 366 of Code of Criminal Procedure and also imposed a fine of Rs.500/- (Rupees Five Hundred Only). Similarly, learned Additional Sessions Judge has convicted the appellant for offence punishable under Section 376 of IPC and ordered sentence to suffer life imprisonment and a fine of Rs. 500/-(Rupees Five Hundred Only) and a sentence of rigorous imprisonment for 10 years for the offence punishable under Section 377 IPC with a fine of Rs.500/-(Rupees Five Hundred Only) and a sentence of R.I. for one year for the offence punishable under Section 363 with a fine of Rs.500/- (Rupees Five Hundred Only). Further, it was ordered that all the sentences of imprisonment shall run concurrently.

4. The reference which was made to the High Court under Section 366 was numbered as Confirmation Case No.1 of 2015 and the appeal preferred by the appellant was numbered as criminal appeal No. 783 of 2015. The High Court by the Common Judgment and Order dated 20.01.2016, while dismissing the criminal appeal preferred by the appellant, has confirmed the death sentence imposed under Section 302 IPC. Hence, these appeals.

5. I am in agreement with the view expressed by my learned Brother, to the extent of upholding conviction, as such, there is no need to appreciate the evidence on-record in detail. As such, I confine consideration of such evidence on-record to the extent to modify the sentence on the appellant. 6. For the conviction recorded against the appellant for the offences alleged against him, by balancing the aggravated and mitigated circumstances, I am of the view that the death sentence imposed on the appellant requires modification to that of the life imprisonment, without any remission, for the following reasons.

7. For the offence under Section 302 of IPC the punishment prescribed for committing murder is death or imprisonment for life. At first instance, challenge to Section 302 of IPC was turned down by this Court in the case of Jagmohan Singh v. State of Uttar Pradesh3. Further, in Constitution Bench, this Court in the case of Bachan Singh v. State of Punjab4, ,concluded that Section 302, providing death penalty for offence of murder is constitutional. In the aforesaid judgment, this Court has indicated the standards and norms, restricting the area for imposition of death penalty. Further, for considering the imposition of sentence of death, aggravating and mitigating circumstances were also broadly indicated.

In the aforesaid judgment, while considering the scope of Section 235(2) read with Section 354(3) of the Code of Criminal Procedure, this Court has held that, in fixing the degree of punishment or in making the choice of sentence for various offences, including one under Section 302, IPC, the Court should not confine its consideration “principally or merely” to the circumstances connected with the particular crime, but also due consideration to the circumstances of the criminal. However, it is observed that, what is the relative weight to be given to the aggravating and mitigating factors, depends on facts and circumstances of each case. The aggravating and mitigating circumstances, as suggested by Dr.Chitale were mentioned in the Judgment. Paragraphs 202 to 207 of the judgment reads as under:

“202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these “aggravating circumstances”:

“Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.”

203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

204. In Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] , the majority said: “It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and Society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)”. Our objection is only to the word “only”. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide “special reasons” to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible.

We have discussed and held above that the impugned provisions in Section 302 of the Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its “ethos” nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302 of the Penal Code, fully apply to the case of Section 354(3), Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of W.B. [(1979) 3 SCC 714 : 1979 SCC (Cri) 817] which follows the dictum in Rajendra Prasad [(1979) 3 SCC 646 : 1979 SCC (Cri) 749] .

205. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first-degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of ‘murder’ or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of “aggravating circumstances” which may form the basis of “special reasons” in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.

206. Dr Chitale has suggested these mitigating factors:

“Mitigating circumstances- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

207. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a “child”, that is, “a person who at the date of murder was less than 16 years of age”, cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.”

8. Further in the three Judge Bench Judgment of this Court, in the case of Machhi Singh and Ors. v.State of Punjab5, this Court has considered tests to determine “rarest of rare” case, to impose death sentence under Section 302 IPC.

9. In the aforesaid judgment, this Court has held that the following questions may be asked and answered, in order to apply the guidelines indicated in Bachan Singhcase2, where the question of imposing the death sentence arises.

(a) Is there something uncommon about the crime which renders sentence for imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender?

10. In this judgment, it is held by this Court that the guidelines indicated in Bachan Singhcase2, will have to be culled out and applied to the facts of each individual case, where the question of imposing death sentence arises. Paragraph 38 of the said judgment reads as under:

“38. In this background the guidelines indicated in Bachan Singh case2 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following prepositions emerge from Bachan Singh case2 :

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

11. In this judgment, on facts, by holding that it is a cold-blooded, calculated and gruesome multiple murders, as a reprisal in a family feud and 17 helpless, defenceless, innocent men, women and children were gunned down while asleep on the same night in quick succession in different neighbouring villages, confirmed the death sentence imposed on Machhi Singh and two others.

12. In this case, learned counsel for the appellant has contended that the Trial Court as well as the High Court, fell in error in confining nature and brutality of crime alone, to award the sentence of death. It is submitted that nature of crime alone is not sufficient to impose the sentence of death, unless State proves by leading cogent evidence that the convict is beyond reform and rehabilitation. It is submitted that the socio-economic conditions of the convict and the circumstances under which crime is committed are equally relevant for the purpose of considering whether a death penalty is to be imposed or not. It is submitted that as the case on hand, rests on circumstantial evidence, same is also the ground not to impose capital punishment, of death.

13. In support of his argument, learned counsel for the appellant has relied on the three Judge Bench Judgment of this Court, in the case of Kalu Khan v. State of Rajasthan6, wherein the accused was charged for offence of abduction, rape and murder of 4 year old girl child, death sentence was commuted to life imprisonment. Paragraphs 32 and 33 of the said judgment reads as under:

“32. In our considered view, in the impugned judgment and order, the High Court has rightly noticed that life and death are acts of the divine and the divine’s authority has been delegated to the human courts of law to be only exercised in exceptional circumstances with utmost caution. Further, that the first and foremost effort of the Court should be to continue the life till its natural end and the delegated divine authority should be exercised only after arriving at a conclusion that no other punishment but for death will serve the ends of justice. We have critically appreciated the entire evidence in its minutest detail and are of the considered opinion that the present case does not warrant award of the extreme sentence of death to the appellant-accused and the sentence of life imprisonment would be adequate and meet the ends of justice. We are of the opinion that the four main objectives which the State intends to achieve, namely, deterrence, prevention, retribution and reformation can be achieved by sentencing the appellant-accused for life. 33. Before parting, we would reiterate the sentiment reflected in the following lines by this Court in Shailesh Jasvantbhai case [Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499] : (SCC pp. 361-62, para 7)

“7. … Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in a Changing Society stated that: ‘State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.”

14. In the case of Lehna v. State of Haryana7,it was held that the special reasons for awarding the death sentence must be such that compel the court to conclude that it is not possible to reform and rehabilitate the offender. Paragraph 14 of the said judgment reads as under: “……Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898, (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever itis possible to do so and to state “special reasons” if it does not do so.

In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.”

15. Learned counsel for the appellant has also relied on the three Judge Bench Judgment of this Court, in the case of Sunil v. State of Madhya Pradesh8,wherein the accused, aged about 25 years at the relevant time, was charged for offence of rape and murder of 4 year old child, death sentence was commuted to that of life imprisonment. In the said judgment, this Court has held that one of the compelling/mitigating circumstances that must be acknowledged in favour of the appellant is his young age at which he had committed the crime and further that the accused can be reformed and rehabilitated, are the other circumstances which could not but have been ignored by courts below.

16. Reliance is also placed by learned counsel for the appellant, on the three Judge Bench Judgment of this Court, in the case of Rajendra Pralhaderao Wasnik v. State of Maharashtra9, where accused was found guilty of rape and murder of 3 year old child, death sentence was substituted by life imprisonment, with a rider that the convict shall not be released from custody for the rest of his normal life.

17. The aforesaid three judgments relied on by the learned counsel for the appellant, supports the case of the appellant, when we consider to balance the aggravating and mitigating circumstances of this case on hand.

18. From the deposition of PW-9, it is clear that he is a fruit vendor, residing in Nutan Vasahat area, Jalna and the appellant also resides in the same lane. Further, it is also clear from his deposition that accused was under influence of liquor, on the day of occurrence of crime. As such, it is clear that on the day of occurrence, he was under influence of liquor and he is aged about 25 years and he had no previous history of any crimes and in absence of any evidence from the side of the prosecution to show that he cannot be reformed and rehabilitated to bring in to the main stream of the society, the judgments relied on by learned counsel for the appellant, fully support the case of the appellant, to modify the sentence.

19. In the case of Machhi Singh and Ors. v. State of Punjab3,this Court has confirmed that the death sentence to Machhi Singh and two others, mainly by recording a finding that it was a cold-blooded, calculated and gruesome murders, as a reprisal in a family feud, in which, 17 helpless, defenceless, innocent men, women and children were gunned down, as such, same can be termed as “rarest of rare” case. In the case on hand, it cannot be said to be a preplanned and pre-meditated one. To record a finding that a particular crime committed is a pre-planned and pre-meditated one, something more is required of planning to commit a murder on a day earlier to the date of occurrence. In the case on hand, where it is clear from the evidence on-record that the appellant was under influence of liquor and committed the offence, cannot be termed as a pre-planned one, to count the same as an aggravating circumstance, for balancing aggravating and mitigating circumstances.

20. In the case of Sandesh v. State of Maharashtra10, this Court, once again, acknowledged the principle that it is for the prosecution to lead evidence, to show that there is no possibility that the convict cannot be reformed. Similarly, in Mohinder Singh v. State of Punjab11,it was held in Paragraph 23 of the judgment as under: “……As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the “rarest of rare” doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.”

21. In the case of Sushil Sharma v. State (NCT of Delhi)12,this Court acknowledged that among various factors, one of the factors required to be taken into consideration, for awarding or not awarding capital punishment, is the possibility of reformation and rehabilitation of the convict. This acknowledgment was made in paragraph 103 of the judgment, which reads as under:

“103. In the nature of things, there can be no hard-and-fast rules which the court can follow while considering whether an accused should be awarded death sentence or not. The core of a criminal case is its facts and, the facts differ from case to case. Therefore, the various factors like the age of the criminal, his social status, his background, whether he is a confirmed criminal or not, whether he had any antecedents, whether there is any possibility of his reformation and rehabilitation or whether it is a case where the reformation is impossible and the accused is likely to revert to such crimes in future and become a threat to the society are factors which the criminal court will have to examine independently in each case. Decision whether to impose death penalty or not must be taken in the light of guiding principles laid down in several authoritative pronouncements of this Court in the facts and attendant circumstances of each case.”

22. In the case of Amit v. State of Maharashtra13, this Court adverted to the prior history of the accused and noted that there is no record of any previous heinous crime and also there is no evidence that he would be a danger to the society if the death penalty is not awarded to him. Paragraph 10 of the said judgment reads as under:

“10. The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases…….”

23. In the case of Surendra Pal Shivbalakpal v. State of Gujarat14, this Court has held that the involvement in any previous criminal case by the accused, was considered to be a factor, to be taken into consideration, for the purpose of awarding death sentence. Paragraph 13 of the said judgment reads as under:

“13. The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment.”

24. Further, this case on hand, rests solely on the circumstantial evidence.

25. In the case of Bishnu Prasad Sinha v. State of Assam15,this Court has held that ordinarily, death penalty would not be awarded, if the guilt of the accused is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. Paragraph 55 of the said judgment reads as under:

“55. The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”

26. Further, in the case of Aloke Nath Dutta v. State of West Bengal16,the principle that death penalty should ordinarily not to be awarded, in a case arising out of circumstantial evidence, was broadly accepted with the rider that there should be some “special reason” for awarding death penalty. Paragraph 174 of the said judgment reads as under:

“174. There are some precedents of this Court e.g. Sahdeo v. State of U.P.[(2004) 10 SCC 682] and Sk. Ishaque v. State of Bihar[(1995) 3 SCC 392] which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do not find any special reason for awarding death penalty which is imperative.”

27. In the case of Swamy Shraddananda v. State of Karnataka17,this Court has held that the convictions based on seemingly conclusive circumstantial evidence, should not be presumed to be fool-proof. Paragraph 87 of the said judgment reads as under:

“87. It has been a fundamental point in numerous studies in the field of death penalty jurisprudence that cases where the sole basis of conviction is circumstantial evidence, have far greater chances of turning out to be wrongful convictions, later on, in comparison to ones which are based on fitter sources of proof. Convictions based on seemingly conclusive circumstantial evidence should not be presumed as foolproof incidences and the fact that the same are based on circumstantial evidence must be a definite factor at the sentencing stage deliberations, considering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as conviction solely resting on circumstantial evidence, which contributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder.”

28. From the above judgments referred, it is clear that in a case of conviction based on circumstantial evidence, ordinarily the extreme punishment of death penalty should not be imposed. In a given case, guilt of the accused is proved beyond reasonable doubt, by establishing chain of circumstances, resulting in conviction, such cases, by considering balancing aspects of aggravating and mitigating circumstances, in appropriate cases, death penalty can be imposed. But, at the same time ordinarily, if no special reasons exist, in a case of conviction based on circumstantial evidence, death penalty should not be imposed. In this case on hand, the conviction of the appellant is mainly based on circumstantial evidence. On this ground also, I am of the view that the death sentence, imposed on him, is to be modified.

29. From the materials placed on record, it is clear that accused is a permanent resident of Indira Nagar, Jalna. The father of the deceased, PW-9, himself has stated that he is a fruit vendor in Nutan Vasahat area, Jalna, and accused also resides in the same lane, nearby his residence. It is also clear from the evidence of PW-9, to the East and West side of the house of the appellant, a person having buffaloes used to reside at the relevant time. From such evidence onrecord, it is easy to assess the socio-economic condition of the appellant and it can certainly be said that he is a person below poverty line.

30. In a judgment of this Court, in the case of Sunil Damodar Gaikwad v. State of Maharashtra18,while holding that court must not only look at the crime but also offender and to give due consideration to circumstances of offender, has further held that in imposing penalty, socio-economic condition can be considered as one of the mitigating factors, in addition to those indicated in Bachan Singh2 and MachhiSingh3. Para 20 of the said judgment reads as under:

“20. When there are binding decisions, judicial comity expects and requires the same to be followed. Judicial comity is an integral part of judicial discipline and judicial discipline the cornerstone of judicial integrity. No doubt, in case there are newer dimensions not in conflict with the ratio of the larger Bench decisions or where there is anything to be added to and explained, it is always permissible to introduce the same. Poverty, socioeconomic, psychic compulsions, undeserved adversities in life are thus some of the mitigating factors to be considered, in addition to those indicated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] cases. Thus, we are bound to analyse the facts in the light of the aggravating and mitigating factors indicated in the binding decisions which have influenced the commission of the crime, the criminal, and his circumstances, while considering the sentence.

31. In view of the aforesaid judgments of this Court and evidence on record in this case, which establishes the socio-economic condition of the appellant, as a person below poverty line, can also be considered as one of the mitigating factors, while balancing the aggravating and mitigating factors.

32. I am conscious of recent amendments carried out to the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’), by way of Protection of Children from Sexual Offences Amendment Act, 2019. By virtue of the said amendments, taking note of increasing trend of crimes against the children, minimum sentence is increased for various offences and for offence under Section 6 of the Act i.e aggravated penetrative sexual assault, minimum imprisonment, which shall not be less than 20 years, which may extend to natural life or penalty of death. Prior to the amendments made by recent amending Act of 2019, for offence under POCSO, death penalty was not provided. By virtue of the amendments made in appropriate cases, for offences falling under provisions of the POCSO Act alone, a penalty of death sentence can be imposed. In the case on hand, the offence was committed prior to coming into force, of the Act.

33. Even then, we cannot forget the legislative intent which resulted in amendments to POCSO, while dealing with the offences against the children. At the same time, even for imposing the death sentence, for cases arising out of the provisions under POCSO Act, 2012, it is the duty of the courts to balance the aggravating and mitigating circumstances. To balance such aspects, the guidelines in Bachan Singh v. State of Punjab2 and further reiterated in the case of Machhi Singh and Ors. v. State of Punjab3 and in the case of Sushil Murmu v. State of Jharkhand19,will continue to apply. Further, repeatedly, it is said by this Court, in the various judgments that the aggravating and mitigating factors are to be considered with reference to the facts of each case and there cannot be any hard and fast rule for balancing such aspects.

34. I am clear in my mind that in this case on hand, the mitigating circumstances of the appellant, dominate over the aggravating circumstances, to modify the death sentence to that of life imprisonment. Even as per the case of prosecution, the appellant was under influence of liquor at the time of committing the offence, and there is no evidence on record from the side of prosecution, to show that there is no possibility of reformation and rehabilitation of the appellant. Further, age of the appellant was 25 years at the relevant time and conviction is solely based on circumstantial evidence. Taking all such aspects into consideration, the death penalty imposed on the appellant is to be modified to that of life imprisonment, for the offence under Section 302 IPC.

35. Long line of cases decided by this Court are cited by learned counsel for the appellant, in similar set of facts and circumstances, this Court has modified the death sentence to that of imprisonment for life, without any remission. Few recent decisions of this Court are:

36. In a three Judge Bench Judgments of this Court, in the case of Nand Kishore v. State of Madhya Pradesh20dated 18.01.2019 and in the case of Raju Jagdish Paswan v State of Maharashtra21dated 17.01.2019, for which I am party, in similar circumstances, this Court has modified the death penalty to that of life imprisonment, without any remission.

37. Further, in a recent three Judge Bench Judgment of this Court, in the case of Vijay Raikwar v. State of Madhya Pradesh22, where there was an offence involving rape and murder of a girl aged about 71/2 years, while confirming the conviction of the offences under Section 376(2)(f) and Section 201 IPC and also under Sections 5(i), 5(m) and 5(r) read with Section 6 of the POCSO Act, this Court commuted the death sentence to life imprisonment.

38. In the aforesaid judgments, in a similar set of facts, this Court has modified the sentence to life imprisonment. In this case also there is no previous crime record for the appellant. The above referred judgment, supports the case of the appellant.

39. For the aforesaid reasons, these appeals are allowed in part. While confirming the conviction recorded by the Trial Court, death sentence imposed on the appellant is modified to that of life imprisonment i.e to suffer for life till his natural death, without any remission/commutation.

J [R.Subhash Reddy]

 

New Delhi;

October 03, 2019


1″Y-STR analysis for detection and objective confirmation of child sexual abuse”, authored by Frederick C. Delfin – Bernadette J. Madrid – Merle P. Tan – Maria Corazon A. De Ungria.

2″Forensic DNA Evidence: Science and the Law”, authored by Justice Ming W. Chin, Michael Chamberlain, A,y Roja, Lance Gima

3 1973(1) SCC 20

4 1980(2) SCC 684

5 1983(3) SCC 470

6 (2015) 16 SCC 492

7 (2002) 3 SCC 76

8 (2017) 4 SCC 393

9 Review Petition (Criminal) Nos. 306-307 of 2013

10 (2013) 2 SCC 479

11 (2013) 3 SCC 294

12 (2014) 4 SCC 317

13 (2003) 8 SCC 93

14 2005(3) SCC 127

15 (2007) 11 SCC 467

16 (2007)12 SCC 230

17 (2007) 12 SCC 288

18 (2014) 1 SCC 129

19 (2004) 2 SCC 338

20 Criminal Appeal No. 94 of 2019

21 Criminal Appeal No. 88-89/2019

22 (2019) 4 SCC 210


 

Smt. Kasturibai Sukharam Khandelwal Trust Vs. Indore Development Authority & Ors-03/10/2019

In the ordinary course of business, there was no justification for the authority to consider the application of the 2nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited.

SUPREME COURT OF INDIA

Smt. Kasturibai Sukharam Khandelwal Trust Vs. Indore Development Authority & Ors.

Civil Appeal Nos. 5308 of 2010

Indore Development Authority Vs. Shri Khandelwal Trust & Ors.

[Civil Appeal Nos. 5309 of 2010]

Rastogi, J.

1. Both the appellants (respondents before the High Court) being dissatisfied with the impugned judgment dated 4th November, 2008 have preferred these appeals.

2. The facts in brief relevant for the purpose are that the appellant Smt. Kasturibai Sukharam Khandelwal Trust and the 2nd respondent Shri Khandelwal Trust (writ petitioner) are registered public trusts. The 2nd respondent made an application directly to the Indore Development Authority(hereinafter referred to as “Authority”) for allotment of land for public purpose and to carry out trust activities on 30th September, 1988. In sequel thereto, another application was addressed to the then Chief Minister on 29th December, 1988 for allotment of land for the purpose of construction of a community hall to be used for public purposes.

3. The authority thereafter issued an advertisement dated 7th September, 1989 inviting applications for allotment of land to registered institutions indicating necessary requirements to be furnished by the institutions desirous for allotment of land. In response to the advertisement, the appellant Trust submitted an application on 9th October, 1989. After the applications were processed, the authority took a decision to allot 50,000 sq. ft land in scheme no. 54/75C in favour of the appellant Trust vide communication dated 2nd July, 1990 and simultaneously, the authority also communicated the decision for allotment of 30,000 sq. ft. of land in Scheme No. 54/74C to the 2nd respondent vide communication dated 2nd July, 1990.

4. Immediately after it reveals to the authority of the allotment being made to both the trusts of the same community at the same place, the authority revisited its decision and under its Resolution no. 21 dated 11th February, 1991 decided that it may not be advisable to allot land to two trusts of Khandelwal community, cancelled the application of the 2nd respondent and confirmed the allotment in favour of the appellant Trust and that became the subject matter of challenge in a writ petition filed at the instance of the 2nd respondent under Article 226 of the Constitution of India.

5. The Single Judge of the High Court, after hearing the parties, dismissed the writ petition under its order dated 1st February, 2001 which came to be challenged in letters patent appeal. The Division Bench of the High Court of Madhya Pradesh, taking note of the rival claim of the parties and noticing the fact that, in the interregnum period, the plot had also been allotted to Life Insurance Corporation(respondent no. 4) which was nowhere the subject matter but still taking note of the material on record and giving quietus to the dispute, disposed of the writ petition under its order impugned dated 4th November, 2008 with a direction to the authority to reconsider the matter of allotment of land afresh after affording opportunity of hearing to the parties and assess the comparative assessment and merit of the appellant Trust and 2nd respondent and pass speaking order in accordance with law.

6. Mr. Ranjit Kumar, learned senior counsel for the appellant Trust submits that the allotment could be made in terms of the Regulations for Disposal, 1987(hereinafter being referred to as “Disposal Regulations 1987”) which has been framed in exercise of power under Section 58 read with Section 86 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 and procedure for allotment has been provided under Chapter III and Regulation 3(A) clearly postulates that where the authority proposes to transfer any property except as provided under Regulation 3(B), 3(C) and 3(D), it may do so by (a) public auction; or (b) inviting tenders or (iii) inviting applications from eligible persons either on continuing registration basis or otherwise, as may be specified in terms of the advertisement.

7. The present appellant Trust submitted application pursuant to an advertisement inviting applications dated 7th September, 1989 and indisputably no application was submitted by the 2nd respondent, still the application was processed but, after noticing by the authority that the allotment of land to 2nd respondent being in contravention of Chapter III of Disposal Regulations, 1987, the mistake was immediately rectified by cancelling the letter of allotment in favour of the 2nd respondent and confirmed the allotment in favour of the appellant Trust under its Resolution No. 21 dated 11th February, 1991 and the decision of the Authority being in conformity with Chapter III of Disposal Regulations, 1987, interference in writ appeal was not justiciable and deserves to be interfered by this Court.

8. Learned counsel further submitted that the 2nd respondent does not appear to be interested in the instant proceedings to put forth his claim. At the same time, the present appellant had constructed a community hall which has been used for public purposes and also by the community for a sufficient long period and the Division Bench of the High Court was not justified in reopening and reverting back to square one leaving the authority to decide their respective claims at such belated stage and, therefore, impugned judgment deserves to be set aside.

9. Learned counsel for the appellant in the connected appeal filed by Indore Development Authority, while supporting the submissions, further submits that apart from the fact that 2nd respondent had not submitted any application for allotment pursuant to an advertisement dated 7th September, 1989 required under Disposal Regulations, 1987, the authority was of the view that it will not be advisable to provide adjoining plots to one community and after revisiting the factual matrix of the matter considered it appropriate to cancel the decision for allotment made in favour of the 2nd respondent and there being no error in the decision-making process held by the authority, the Division Bench of the High Court committed manifest error in directing to revisit the whole process of allotment and that needs interference by this Court.

10. Learned counsel further submits that so far as the allotment made in favour of 4th respondent(LIC) is concerned, it has nothing to do with the allotment made in reference to the trust which is impugned in the proceedings and calling upon the 4th respondent(LIC) to participate in the whole process was not justiciable.

11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.

12. Indisputably, the 2nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot admeasuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75C for community hall by letter of allotment dated 2nd July, 1990.

13. After noticing that the 2nd respondent had submitted application for allotment of land for community hall on 30th September, 1988 directly to the Indore Development Authority and to the then Chief Minister of Madhya Pradesh dated 29th December, 1988 which was erroneously processed in the office of the authority and letter of allotment of land was issued admeasuring 30,000 sq. ft. in Scheme No. 74C dated 2nd July, 1990 and later noticing the fact that two separate allotments have been made in the same scheme to two separate trusts of the same community and that being an apparent error, the decision was taken by the authority vide its Resolution No. 21 dated 11th February, 1991 to confirm the allotment of 50,000 sq. ft land in favour of the present appellant at the rate of Rs. 15/per sq. ft and application of the 2nd respondent seeking allotment of land was rejected.

14. It was not the case of either party that the appellant Trust either failed to fulfil necessary conditions as referred to under the advertisement dated 7th September, 1989 pursuant to which the applications were invited or failed to fulfil necessary requisite conditions for allotment under any statutory enactment or Disposal Regulations, 1987 or there was any error being committed by the authority in its decision making process while the allotment of land was made in favour of the appellant Trust. To the contrary, the emphasis of the 2nd respondent while approaching to the High Court in a writ petition filed under Article 226 of the Constitution of India was that vide Resolution No. 21 dated 11th February, 1991, the authority has cancelled their allotment of land without affording opportunity of hearing and has failed to comply with the principles of natural justice and that appears to be the reason prevailed upon to the Division Bench of the High Court directing the Indore Development Authority to revisit the matter of allotment of land and take a decision in accordance with law.

15. In the instant facts and circumstances, the facts remain indisputed that the 2nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2nd respondent and taking note of the peculiar fact situation, calling upon the 2nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.

16. In addition to it, the 2nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.

17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench.

18. Consequently, both the appeals succeed and are accordingly allowed. The impugned judgment of the Division Bench of the High Court dated 4th November, 2008 is hereby set aside.

No costs.

19. Pending application(s), if any, stand disposed of.

J. (N.V. RAMANA)

J. (MOHAN M. SHANTANAGOUDAR)

J. (AJAY RASTOGI)


NEW DELHI

OCTOBER 03, 2019

Union of India Vs. State of Maharashtra and Ors-01/10/2019

SUPREME COURT OF INDIA JUDGMENTS

Atrocities Act –There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. Arrest of a public servant can only be after approval of the appointing authority and of a nonpublic servant after approval by the S.S.P. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP.

ACT: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

SUPREME COURT OF INDIA

Union of India Vs. State of Maharashtra and Ors.

[Review Petition (CRL.) No.228 of 2018 in Criminal Appeal No.416 of 2018]

[Review Petition (Criminal) No.275 of 2018 in Criminal Appeal No.416 of 2018]

ARUN MISHRA, J.

1. The Union of India has filed the instant petition for review of the judgment and order dated 20.3.2018 passed by this Court in Criminal Appeal No.416 of 2018. This Court while dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph 83 of the judgment, which are extracted hereunder:”

83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a nonpublic servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

The above directions are prospective.”

2. This Court, while passing the judgment under review, has observed in paragraph 32 thus:

“32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights1. There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted2. Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute3. Power to declare law carries with it, within the limits of duty, to make law when none exists4 .

3. Question has been raised by the Union of India that when the Court does not accept the legislative and specific provisions of law passed by the legislature and only the legislature has the power to amend those provisions if the Court finds provisions are not acceptable to it, it has to be struck them down being violative of fundamental rights or in case of deficiency to point out to the legislature to correct the same.

4. The Union of India has submitted that judgment and order dated 20.3.2018 entails wide ramification and it deserves to be reviewed by this Court. It is also submitted that this Court has failed to take note of aspects which would have a significant bearing on the present case.

5. It is submitted that the Act of 1989 had been enacted to remove the disparity of the Scheduled Castes and Scheduled Tribes who remain vulnerable and denied their civil rights. The Statement of Objects and Reasons of the Act of 1989, for which it had been enacted is as under: “Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social, and economic reasons.

2. ………. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests.

Of late, there has been an increase in the disturbing trend of the commission of certain atrocities like making the Scheduled Caste persons ear inedible substances, like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by nonScheduled Castes and nonScheduled Tribes has, therefore, become necessary.”

The preamble to the Act of 1989 states as under: “An Act to prevent the Commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst members of Scheduled Castes and Scheduled Tribes. It is submitted that any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases. With a view to object apprehended misuse of the law, no such direction can be issued. In case there is no prima facie case made out under the Act of 1989, anticipatory bail can be granted. The same was granted in the case in question also.

6. It is submitted that because of the continuing atrocities against the members of the Scheduled Castes and Scheduled Tribes, a commission of offences against them indicated an increase, even the existing provisions were not considered sufficient to achieve the objective to deliver equal justice to the members of the Scheduled Castes and the Scheduled Tribes. Hence, the Act of 1989 had been amended in April 2015, enforced with effect from 26.01.2016.

7. It is further submitted that the amendments broadly related to addition of several new offences/atrocities like tonsuring of head/moustache, or similar acts which are derogatory to the dignity of the members of Scheduled Castes and Scheduled Tribes, garlanding with footwear, denying access to irrigation facilities or forest rights, dispose or carry human or animal carcasses, or to dig graves, using or permitting manual scavenging, dedicating a Scheduled Caste or a Scheduled Tribe woman as devadasi, abusing in caste name, perpetrating witchcraft atrocities, imposing social or economic boycott, preventing Scheduled Caste and Scheduled Tribe candidates from filing nomination to contest elections, insulting a Scheduled Castes/ Scheduled Tribes woman by removing her garments, forcing a member of Scheduled Caste/ Scheduled Tribe to leave house, village or residence, defiling objects sacred to members of Scheduled Castes and Scheduled Tribes, touching or using acts or gestures of a sexual nature against members of Scheduled Castes and Scheduled Tribes and addition of certain IPC offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting less than ten years of imprisonment committed against members of Scheduled Castes and Scheduled Tribes as offences punishable under the Act of 1989, beside rephrasing and expansion of some of the earlier offences.

8. It is submitted that the provisions have also been made for the establishment of exclusive Special Courts and specification of Exclusive Special Public Prosecutors to exclusively try the offences under the Act of 1989 to enable expeditious disposal of cases, Special Courts and Exclusive Special Courts to take direct cognisance of offences and completion of trial as far as possible within two months from the date of filing of the charge sheet and addition of chapter on the “Rights of Victims and Witnesses”.

9. It is also submitted on behalf of Union of India that as per the amendment Rules, 2016 the provisions have also been made with regard to relief amount of 47 offences of atrocities to victims, rationalisation of the phasing of payment of relief amount, enhancement of relief amount between Rs.85,000/to Rs.8,25,000/depending upon the nature of the offence, payment of admissible relief within seven days, on completion of investigation and filing of charge sheet within sixty days to enable timely commencement of prosecution and periodic review of the scheme for the rights and entitlements of victims and witnesses in accessing justice by the State, District and SubDivision Level Vigilance and Monitoring Committees in their respective meetings.

10. It is submitted that this Court has failed to appreciate that low rate of conviction and high rate of acquittal under the Act of 1989, related cases is attributable to several factors like delay in lodging the FIR, witnesses, and complainants becoming hostile, absence of proper scrutiny of the cases by the prosecution before filing the charge sheet in the Court, lack of proper presentation of the case by the prosecution and appreciation of evidence by the Court. There is long pendency of the trial, which makes the witness to lose their interest and lack of corroborative evidence. There are procedural delays in investigation and filing of the charge sheet.

11. It is submitted that Rule 7(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that investigating officer to complete the investigation within 30 days. Without immediate registration of FIR and arrest and by providing anticipatory bail to the accused, Rule 7 is bound to be frustrated.

12. It is further submitted that the directions issued are legislative. It would devoid the object of the Act to remove the castebased sub7 judication and discrimination. Such directions are impermissible to be issued under Article 142 of the Constitution of India.

13. It is also submitted that offences of atrocities against the members of Scheduled Castes and Scheduled Tribes have been disturbingly continuing and as per the data of National Crime Records Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases were registered in the country under the Act of 1989 in conjunction with the Indian Penal Code during the year 2016. Further, only 24.5 % of the said cases ended in conviction and 89.3% were pending in the courts at the end of the year 2016. In the circumstances, it is not proper to dilute the provisions and make it easier for the accused to get away from arrest by directing a preliminary enquiry, approval for an arrest.

14. Per contra, it is submitted that directions are proper because of misuse of the legislative provisions of the Atrocities Act, and no case for interference is made out in the review jurisdiction.

15. Before dealing with submission, we refer to the decisions. In National Campaign on Dalit Human Rights & Ors v. Union of India & Ors. (2017) 2 SCC 432, this Court has considered the report of Justice K. Punnaiah Commission and the 6th Report of the National Commission for Scheduled Castes/ Scheduled Tribes. The NHRC report also highlighted the nonregistration of cases and various other machinations resorted to by the police to discourage Dalits from registering cases under the Act of 1989. In the said case this Court had directed the strict implementation of the provisions of the Act of 1989. The relevant portion of the decision mentioned above is extracted hereunder:

“18. We have carefully examined the material on record, and we are of the opinion that there has been a failure on the part of the authorities concerned in complying with the provisions of the Act and the Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India. At the same time, the Central Government has an important role to play in ensuring the compliance with the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before Parliament every year.

The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated. We are satisfied that the Central Government and the State Governments should be directed to strictly enforce the provisions of the Act and we do so. The National Commissions are also directed to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. ….”

16. Reliance has been placed on Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, wherein a Constitution Bench of this Court has observed as under: “35. However, on the other hand, there are a number of cases which exhibit that there are instances where the power of the police to register an FIR and initiate an investigation thereto are misused where a cognizable offence is not made out from the contents of the complaint. A significant case in this context is the case of Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse of Section 498A of the Penal Code, 1860 (in short “IPC”) with respect to which a large number of frivolous reports were lodged. This Court expressed its desire that the legislature must take into consideration the informed public opinion and the pragmatic realities to make necessary changes in law.

36. The abovesaid judgment resulted in the 243rd Report of the Law Commission of India submitted on 3082012. The Law Commission, in its report, concluded that though the offence under Section 498A could be made compoundable, however, the extent of misuse was not established by empirical data, and, thus, could not be a ground to denude the provision of its efficacy. The Law Commission also observed that the law on the question whether the registration of FIR could be postponed for a reasonable time is in a state of uncertainty and can be crystallised only upon this Court putting at rest the present controversy.” ***

99. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was held as under: (SCC pp. 18384, para 20) “20. ……If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage, it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. …..The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation…..”

It is apparent from the decision in Lalita Kumari (supra) that FIR has to be registered forthwith in case it relates to the commission of the cognizable offence. There is no discretion on the Officer Incharge of the Police Station for embarking upon a preliminary inquiry before registration of FIR. Preliminary inquiry can only be held in a case where it has to be ascertained whether a cognizable offence has been committed or not. If the information discloses the commission of a cognizable offence, it is mandatory to register the FIR under Section 154 of Cr.PC, and no preliminary inquiry is permissible in such a situation. This Court in Lalita Kumar (supra) observed as under:

“54. Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word “shall” used in Section 154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction.” Concerning the question of arrest, in Lalita Kumari (supra) this Court has considered the safeguard in respect of arrest of an accused person. This Court affirmed the principle that arrest cannot be made routinely on the mere allegation of commission of an offence. The question arises as to justification to create a special dispensation applicable only to complaints under the Atrocities Act because of safeguards applicable generally.

17. In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, which has been relied upon in Lalita Kumari (supra), this Court has observed as under:

“31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.

On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.)

In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by subsection (3) of Section 154 of the Code.

32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the nonqualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information.

In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974).

An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence. 33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” The Court observed the conduct of an investigation into an offence after the registration of FIR is a procedure established by law and conforms with Article 21 of the Constitution. This Court has also considered possible misuse of the provisions of the law in Lalita Kumari (supra).

18. On behalf of Union of India, the decision in State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 has been relied on, in which this Court has upheld the validity of Section 18 of the Act of 1989 and observed in background relating to the practice of untouchability and the social attitude which lead to the commission of such offences against the Scheduled Castes/ Scheduled Tribes, there is justification of apprehension that if benefit of anticipatory bail is made available to persons who are alleged to have committed such offences, there is every possibility of their misusing that liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. This Court in Ram Krishna Balothia’s (supra) has observed:

“6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with the abolition of ‘untouchability’ and forbids its practice in any form. It also provides that enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable under the law. The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of ‘untouchability.’ It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18 which is before us.

The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment of the said Act and points to the evil which the statute sought to remedy.

In the Statement of Objects and Reasons, it is stated: “Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons 2. … When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them.

When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes, and Scheduled Tribes is resented, and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes…. A special legislation to check and deter crimes against them committed by nonScheduled Castes and nonScheduled Tribes has, therefore, become necessary.”

The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences. 9. Of course, the offences enumerated under the present case are very different from those under the Terrorist and Disruptive Activities (Prevention) Act, 1987.

However, looking to the historical background relating to the practice of “Untouchability” and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification of an apprehension that if the benefit of the anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.

10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even “minor offences” under the said Act. This grievance also cannot be justified. The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and selfrespect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code.”

19. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this Court has observed that denial of the right of anticipatory bail under section 438 would not amount to a violation of Article 21 of the Constitution of India. Thus, the provision of section 18 cannot be said to be violative of Article 21. Article 17 of the Constitution abolishes untouchability.

20. In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390, it is observed that where statutory provisions are clear and unambiguous, it cannot be read down and has observed that the statistics are to be considered by a legislature. The Court must take care not to express any opinions on sufficiency or adequacy of such figures and should confine their scrutiny to legality not a necessity of law. This Court observed:

“67. Before parting, we would like to observe that elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles and the increase in the rate of such crimes, of late. We refuse to be tempted to enter into the said arena, which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued. We would be justified to recall the observations of Justice Krishna Iyer in Murthy Match Works (1974) 4 SCC 428, as the present issues seem to be adequately taken care of by the same: (SCC p. 437, paras 1315) “

13. Right at the threshold, we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States v. Butler: 80L Ed 477: 297 US 1 (1936) thus: (L.Ed p. 495) “The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the Government is subject to judicial restraint, the only check upon our exercise of power is our own sense of selfrestraint. For the removal of unwise laws from the statute books appeal lies not to the Courts but to the ballot and to the processes of democratic Government.”

14. In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. In the present case, unconstitutionality is alleged as springing from lugging together two dissimilar categories of match manufacturers into one compartment for like treatment.

15. Certain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional.

To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps illequipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment, and ordinarily does not become a judicial question. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation.”

(emphasis supplied)

It was observed in Subramanian Swamy (supra) that where statutory provisions are clear and unambiguous, it cannot be read down. It would not be possible to carry out directions of this Court as number of Dy. S.P. Level Officers is not sufficient to make compliance of the directions.

21. Concerning the exercise of powers under Article 142 of Constitution of India, learned Attorney General has submitted that such power could not have been exercised against the spirit of statutory provisions and to nullify them and field reserved for the legislature as there was no vacuum. He has referred to the following decisions: (a) In Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, this Court has observed as under:

“47. …..It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. …..

48. …..Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.”

(b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996, the Court observed that it has no power to circumscribe fundamental rights guaranteed under Article 32 of Constitution of India.

(c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, the Court observed that the Supreme Court under Article 142 of the Constitution could not altogether disregard the substantive provisions of a statute and pass orders concerning an issue, which can be settled only through a mechanism prescribed in another statute.

(d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has been observed that though the language of article 142 is comprehensive and plenary, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute.

(e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, the Court has held that the Court exercises jurisdiction under Article 142 of the Constitution intending to do justice between the parties, but not in disregard of the relevant statutory provisions.

(f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Court has observed that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.

(g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, the Court held that even in exercising power under Article 142(1), it is more than doubtful that an order can be passed contrary to law.

(h) In Textile Labour Association v. Official Liquidator, (2004) 9 SCC 741, observation has been made that power under Article 142 is only a residuary power, supplementary and complementary to the powers expressly conferred on this Court by statutes, exercisable to do complete justice between the parties wherever it is just and equitable to do so. It is intended to prevent any obstruction to the stream of justice. (i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, it was observed that the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions.

(j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it was observed that the courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. The power under Article 142 not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.

(k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it was held that the power under Article 142 is not restricted by statutory provisions. It cannot be exercised based on sympathy and in conflict with the statute.

(l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, this Court held that Article 142 is supplementary and it cannot supplant the substantive provisions. It is a power which gives preference to equity over the law. The relevant portion is extracted hereunder:

“12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justiceoriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. “Declaration of law” as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land…..This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.” (emphasis supplied)

22. It is submitted that there was no legislative vacuum calling for the exercise of power under Article 142 of the Constitution of India and hence the reliance on Vishakha v. State of Rajasthan, (1997) 6 SCC 241 is misplaced. On the contrary, the matter was covered by the statute; namely, Section 18 of the said Atrocities Act read with Section 41 of Cr.PC.

23. We now propose to examine the law concerning field reserved for the legislature and extant of judicial interference in the field reserved for the legislature. The difference between the common law and statute law has been brought out in the following passage in the book, Salmond on Jurisprudence, 12th Edition; Sweet & Maxwell: “In the strict sense, however, legislation is the laying down of legal rules by a sovereign or subordinate legislator. Here we must distinguish lawmaking by legislators from lawmaking by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, in so far as they create law, can do so only in application to the cases before them and only in so far as is necessary for their solution. Judicial lawmaking is incidental to the solving of legal disputes; legislative lawmaking is the central function of the legislator.”

24. In various decisions, this Court has dealt with the scope of judicial review and issuance of guidelines. The directions mentioned above touch the realm of policy. In Bachan Singh v. the State of Punjab, (1980) 2 SCC 684, the Court has laid down and recognised the judicial review thus:

“67. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policymaking. “The job of a Judge is judging and not lawmaking.” In Lord Devlin’s words: “Judges are the keepers of the law, and the keepers of these boundaries cannot, also, be among outriders.”

(emphasis supplied)

It has been observed that the Court should not transgress into the legislative domain of policymaking.

25. In Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors., 1989 Supp. (2) SCC 364, this Court has observed that it is not for the Court to pronounce policy. It cannot lay down what is wise or politic. Selfrestraint is the essence of the judicial oath. The Court observed:

“17. Before adverting to the controversy directly involved in these appeals, we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein.

The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people’s will, they have all the powers, including that of finance. Judiciary has no power over sword or the purse; nonetheless, it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the selfimposed discipline of judicial restraint.

18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles, 356 US 96 observed as under: “All power is, in Madison’s phrase, “of an encroaching nature.” Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is selfrestraint… Rigorous observance of the difference between limits of power and wise exercise of power – between questions of authority and questions of prudence – requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce.

No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That selfrestraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.”

(emphasis supplied)

The Court held that it could not affect its notions of what is wise or politic. It is for the legislature to consider data and decide such aspects. The law laid down in Asif Hameed v. State of Jammu and Kashmir (supra) has been reiterated by this Court in S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279.

26. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Court observed thus: “40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant caselaw and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1 and we fully agree with the views expressed therein.”

27. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, this Court held as under: “18. Judges must` exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 and S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring judgment of M. Katju, J.).

19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.”

28. In Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of Gujarat & Anr., (2013) 12 SCC 226, it has been observed that Court should not encroach upon the legislative domain. It cannot term a particular policy as fairer than the other. The Court observed:

“12. We have given our most anxious consideration to the rival submissions, and we find substance in the submission of Mr. Divan. We are conscious of the fact that there is wide separation of powers between the different limbs of the State and, therefore, it is expected of this Court to exercise judicial restraint and not encroach upon the executive or legislative domain. What the appellants in substance are asking this Court to do is to conduct a comparative study and hold that the policy of distribution of water is bad. We are afraid; we do not have the expertise or wisdom to analyse the same.

It entails intricate economic choices and though this Court tends to believe that it is expert of experts, but this principle has inherent limitation. True it is that the Court is entitled to analyse the legal validity of the different means of distribution but it cannot and will not term a particular policy as fairer than the other. We are of the opinion that the matters affecting the policy and requiring technical expertise be better left to the decision of those who are entrusted and qualified to address the same. This Court shall step in only when it finds that the policy is inconsistent with the constitutional laws or is arbitrary or irrational.”

(emphasis supplied)

29. In Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, this Court held that no directions could be issued which are directly in conflict with the statute.

30. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, this Court has observed as under: 292. The learned AttorneyGeneral said that every provision of the Constitution is essential; otherwise, it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

31. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the following observations have been made: “129. Further, the Court in Kesavananda case not only held that Article 31B is not controlled by Article 31A but also specifically upheld the Twentyninth Constitution Amendment whereby certain Kerala Land Reform Acts were included in the Ninth Schedule after those Acts had been struck down by the Supreme Court in Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364. The only logical basis for upholding the Twentyninth Amendment is that the Court was of the opinion that the mechanism of Article 31B, by itself, is valid, though each time Parliament in exercise of its constituent power added a law in the Ninth Schedule, such exercise would have to be tested on the touchstone of the basic structure test. [See Shelat & Grover, JJ., paras 607 & 608(7); Hegde & Mukherjea, JJ., paras 73843, 744(8); Ray, J., paras 105560, 1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J., para 1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew, J., para 1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994, 1995(4) and Chandrachud, J., paras 213641 and 2142(10).] 130. As pointed out, it is a fallacy to regard that Article 31B read with the Ninth Schedule excludes judicial review in the matter of violation of fundamental rights. The effect of Article 31B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights.

On account of Article 31B, cause of action for violation of fundamental right is not available because the fetter placed by Part III on legislative power is removed and is nonexistent. Nonavailability of cause of action based on breach of fundamental right cannot be regarded as exclusion or ouster of judicial review. As a result of the operation of Article 31B read with the Ninth Schedule, occasion for exercise of judicial review does not arise. But there is no question of exclusion or ouster of judicial review. The two concepts are different.”

32. In Bhim Singh v. Union of India, (2010) 5 SCC 538, it was held as under:

“77. Another contention raised by the petitioners is that the Scheme violates the principle of separation of powers under the Constitution. The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government.

78. While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact, provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. 26 ***

85. Again, in the Constitution Bench judgment in A.K. Roy v. Union of India Chandrachud, C.J. speaking for the majority held at p. 295, para 23 that: “our Constitution does not follow the American pattern of a strict separation of powers.”

86. This Court has previously held that the taking away of the judicial function through legislation would be violative of separation of powers. As Chandrachud, J. noted in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: (SCC p. 261, para 689) “689. … the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our cooperative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.” This is because such legislation upsets the balance between the various organs of the State thus harming the system of accountability in the Constitution.

87. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability. It is through this test that we must analyse the present Scheme.”

33. In State of T.N. v. State of Kerala, (2014) 12 SCC 696, it was observed as under: “126. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between the legislature, executive and judiciary may, in brief, be summarised thus:

126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation, and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs-legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers.

126.2. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.

126.3. Separation of powers between three organs-the legislature, executive and judiciary-is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.

126.4. The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution.

126.5. The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.

126.6. If the legislature has the power over the subjectmatter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subjectmatter and whether in making the validation law it removes the defect which the courts had found in the existing law.

126.7. The law enacted by the legislature may apparently seem to be within its competence but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are:

(i) Does the legislative prescription or legislative direction interfere with the judicial functions?

(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?

(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality? If the answer to Questions (i) and (ii) is in the affirmative and the consideration of aspects noted in Question

(iii) sufficiently establishes that the impugned law interferes with the judicial functions, the Court may declare the law unconstitutional.”

34. The House of Lords in Stock v. Frank Jones (Tipton), 1978 (1) WLR 231 with respect to interpretation of the legislative provisions has observed thus: “It is idle to debate whether, in so acting, the court is making law. As has been cogently observed, it depends on what you mean by “make” and “law” in this context. What is incontestible is that the court is a mediating influence between the executive and the legislature, on the one hand, and the citizen on the other. Nevertheless, it is essential to the proper judicial function in the constitution to bear in mind:

(1) modern legislation is a difficult and complicated process, in which, even before a bill is introduced in a House of Parliament, successive drafts are considered and their possible repercussions on all envisageable situations are weighed by people bringing to bear a very wide range of experience: the judge cannot match such experience or envisage all such repercussions, either by training or by specific forensic aid;

(2) the bill is liable to be modified in a Parliament dominated by a House of Commons whose members are answerable to the citizens who will be affected by the legislation: an English judge is not so answerable;

(3) in a society living under the rule of law citizens are entitled to regulate their conduct according to what a statute has said, rather than by what it was meant to say or by what it would have otherwise said if a newly considered situation had been envisaged;

(4) a stark contradistinction between the letter and the spirit of the law may be very well in the sphere of ethics, but in the forensic process St. John is a safer guide than St. Paul, the logos being the informing spirit; and it should be left to peoples’ courts in totalitarian regimes to stretch the law to meet the forensic situation in response to a gut reaction;

(5) Parliament may well be prepared to tolerate some anomaly in the interest of an overriding objective;

(6) what strikes the lawyer as an injustice may well have seemed to the legislature as no more than the correction of a now unjustifiable privilege or a particular misfortune necessarily or acceptably involved in the vindication of some supervening general social benefit;

(7) the parliamentary draftsmen knows what objective the legislative promoter wishes to attain, and he will normally and desirably try to achieve that objective by using language of the appropriate register in its natural, ordinary and primary sense to reject such an approach on the grounds that it gives rise to an anomaly is liable to encourage complication and anfractuosity in drafting;

(8) Parliament is nowadays in continuous session so that an unlookedfor and unsupportable injustice or anomaly can be readily rectified by legislation: this is far preferable to judicial contortion of the law to meet apparently hard cases with the result that ordinary citizens and their advisers hardly know where they stand. All this is not to advocate judicial supineness: it is merely respectfully to commend a selfknowledge of judicial limitations, both personal and constitution…..”

35. A lecture delivered by Mr. Justice M.N. Venkatachaliah, former Chief Justice of India, at the Constitution Day on 26.2.2016 in this Court, has been relied upon in the context of judicial determination of policy. Following observations have been relied upon: “The proposition that “when there is no law the executive must stepin and when the executive also does not act the judiciary should do so” is an attractive invitations: but it is more attractive than constitutionally sound. Executive power is of course coextensive with legislative power. A field unoccupied by law is open to the executive. But there is no warrant that by virtue of those provisions the courts can come in and legislate. The argument that the larger power of the court to decide and pronounce upon the validity of law includes the power to frame schemes and issue directions in the nature of legislation may equally be open to question.

This is typically the converse case of Bills of attainder; Legislative determination of disputes/rights has been held to be illegal and impressible. Ameerunnisa, Ram Prasad Narayan Sahi and Indira Gandhi are some of the telling cases. By the same logic and converse reasoning, judicial legislation which is judicial determination of policy and law is difficult to be justified jurisprudentially. It is one of the basic constitutional principles that just as courts are not constitutionally competent to legislate under the guise of interpretation so also neither Parliament nor State Legislatures can perform an essentially judicial function. None of the three constitutionally assigned spheres or orbits of authority can encroach upon the other. This is the logical meaning of the supremacy of the Constitution. Lord Devlin’s comment comes to mind; ‘The British have no more wish to be governed by the judges than they wish to be judged by their admirations’. This is not to deny the need and the desirability of such measures. The question is one of legitimacy and propriety, Robert Bork’s profound statement comes to mind: “.. the desire to do justice whose nature seems obvious is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack develops in the American foundation. A judge has begun to rule where a legislator should”.

(THE TEMPTING OF AMERICA)

Any support or justification for judicial legislation will have to be premised on sound legal reasoning. It cannot be justified for the reason that it produces welcome and desirable results. If that is done, law will cease to be what justice Holmes named it, “the calling of thinkers and becomes the province of emotions and sensitivities”. It then becomes a process of personal choice followed by rationalisation. The major and minor premises do not lead to a result; but the result produces major and minor premises. This is a reversal of the process virtually making concept of constitutional adjudication stand on its head.

It is to law what Robert Frost called ‘free verse,’ “Tennis with the net down.” Then naturally there are no rules, only passions. Legal reasoning rooted in a concern for legitimate process rather than desired results restricts judges to their proper role in a constitutional democracy. That marks off the line between judicial power and legislative power. Legislation, contrary to some popular notions, is a very elaborate democratic process. It takes much to distil the raw amorphous public opinion into scalable legislative values through the multitiered filter of parliamentary processes & procedures…..”

36. In the light of the discussion mentioned above of legal principles, we advert to directions issued in paragraph 83. Direction Nos. (iii) and (iv) and consequential direction No. (v) are sought to be reviewed/recalled. Directions contain the following aspects:

1. That arrest of a public servant can only be after approval of the appointing authority.

2. The arrest of a nonpublic servant after approval by the Senior Superintendent of Police (SSP).

3. The arrest may be in an appropriate case if considered necessary for reasons to be recorded;

4. Reasons for arrest must be scrutinised by the Magistrate for permitting further detention;

5. Preliminary enquiry to be conducted by the Dy. S.P. level officers to find out whether the allegations make out a case and that the allegations are not frivolous or motivated.

6. Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.

37. Before we dilate upon the aforesaid directions, it is necessary to take note of certain aspects. It cannot be disputed that as the members of the Scheduled Castes and Scheduled Tribes have suffered for long; the protective discrimination has been envisaged under Article 15 of the Constitution of India and the provisions of the Act of 1989 to make them equals.

38. All the offences under the Atrocities Act are cognizable. The impugned directions put the riders on the right to arrest. An accused cannot be arrested in atrocities cases without the concurrence of the higher Authorities or appointing authority as the case may be. As per the existing provisions, the appointing authority has no power to grant or withhold sanction to arrest concerning a public servant.

39. The National Commission for Scheduled Castes Annual Report 201516, has recommended for prompt registration of FIRs thus: “The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases. The Commission, therefore, identified lacunae commonly noticed during police investigation, as also preventive/curable actions the civil administration can take. NCSC recommends the correct and timely application of SC/ST (PoA) Amendment Act, 2015 and Amendment Rules of 2016 as well as the following for improvement:

8.6.1 Registration of FIRs The Commission has observed that the police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims have to resort to seeking directions from courts for registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State / UT Governments should enforce prompt registration of FIRs.”

(emphasis supplied)

40. The learned Attorney General pointed out that the statistics considered by the Court in the judgment under review indicate that 9 to 10 percent cases under the Act were found to be false. The percentage of false cases concerning other general crimes such as forgery is comparable, namely 11.51 percent and for kidnapping and abduction, it is 8.85 percent as per NCRB data for the year 2016. The same can be taken care of by the Courts under Section 482, and in case no prima facie case is made out, the Court can always consider grant of anticipatory bail and power of quashing in appropriate cases. For the low conviction rate, he submitted that same is the reflection of the failure of the criminal justice system and not an abuse of law. The witnesses seldom come to support downtrodden class, biased mindset continues, and they are pressurised in several manners, and the complainant also hardly muster the courage.

41. As to prevailing conditions in various areas of the country, we are compelled to observe that SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable section of the society. The classes of Scheduled Castes and Scheduled Tribes have been suffering ignominy and abuse, and they have been outcast socially for the centuries. The efforts for their upliftment should have been percolated down to eradicate their sufferings.

42. Though, Article 17 of the Constitution prohibits untouchability, whether untouchability has vanished? We have to find the answer to all these pertinent questions in the present prevailing social scenario in different parts of the country. The clear answer is that untouchability though intended to be abolished, has not vanished in the last 70 years. We are still experimenting with ‘tryst with destiny.’ The plight of untouchables is that they are still denied various civil rights; the condition is worse in the villages, remote areas where fruits of development have not percolated down.

They cannot enjoy equal civil rights. So far, we have not been able to provide the modern methods of scavenging to Harijans due to lack of resources and proper planning and apathy. Whether he can shake hand with a person of higher class on equal footing? Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether false guise of cleanliness can rescue the situation, how such condition prevails and have not vanished, are we not responsible? The answer can only be found by soul searching. However, one thing is sure that we have not been able to eradicate untouchability in a real sense as envisaged and we have not been able to provide downtrodden class the fundamental civil rights and amenities, frugal comforts of life which make life worth living. More so, for Tribals who are at some places still kept in isolation as we have not been able to provide them even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for the protection, how long this would continue. Whether they have to remain in the status quo and to entertain civilized society? Whether under the guise of protection of the culture, they are deprived of fruits of development, and they face a violation of traditional rights?

43. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 SC 1295, this Court has observed that the right to life is not merely an animal’s existence. Under Article 21, the right to life includes the right to live with dignity. Basic human dignity implies that all the persons are treated as equal human in all respects and not treated as an untouchable, downtrodden, and object for exploitation. It also implies that they are not meant to be born for serving the elite class based upon the caste. The caste discrimination had been deeprooted, so the consistent effort is on to remove it, but still, we have to achieve the real goal. No doubt we have succeeded partially due to individual and collective efforts.

44. The enjoyment of quality life by the people is the essence of guaranteed right under Article 21 of the Constitution, as observed in Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with human dignity is included in the right to life as observed in Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits are instances of human rights violations as observed by this Court in People’s Union for Civil Liberties v. Union of India, (2005) 2 SCC 436:

“34. The question can also be examined from another angle. The knowledge or experience of a police officer of human rights violation represents only one facet of human rights violation and its protection, namely, arising out of crime. Human rights violations are of various forms which besides police brutality are – gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits, etc. A police officer can claim to have experience of only one facet. That is not the requirement of the section.”

(emphasis supplied)

45. There is right to live with dignity and also right to die with dignity. For violation of human rights under Article 21 grant of compensation is one of the concomitants which has found statutory expression in the provisions of compensation, to be paid in case an offence is committed under the provisions of the Act of 1989. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property. Therefore, it has been held to be an essential element of the right to life of a citizen under Article 21 as observed by this Court in Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India.

46. They do labour, bonded or forced, in agricultural fields, which is not abrogated in spite of efforts. In certain areas, women are not treated with dignity and honour and are sexually abused in various forms. We see sewer workers dying in due to poisonous gases in chambers. They are like death traps. We have not been able to provide the masks and oxygen cylinders for entering in sewer chambers, we cannot leave them to die like this and avoid tortious liability concerned with officials/machinery, and they are still discriminated within the society in the matter of enjoying their civil rights and cannot live with human dignity.

47. The Constitution of India provides equality before the law under the provisions contained in Article 14. Article 15(4) of the Constitution carves out an exception for making any special provision for the advancement of any socially and educationally backward classes of citizens or SCs. and STs. Further protection is conferred under Article 15(5) concerning their admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Historically disadvantageous groups must be given special protection and help so that they can be uplifted from their poverty and low social status as observed in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC 793.

The legislature has to attempt such incumbents be protected under Article 15(4), to deal with them with more rigorous provisions as compared to provisions of general law available to the others would create inequality which is not permissible/envisaged constitutionally. It would be an action to negate mandatory constitutional provisions not supported by the constitutional scheme; rather, it would be against the mandated constitutional protection. It is not open to the legislature to put members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position visàvis others and in particular to socalled upper castes/general category. Thus, they cannot be discriminated against more so when we have a peep into the background perspective. What legislature cannot do legitimately, cannot be done by the interpretative process by the courts.

48. The particular law, i.e., Act of 1989, has been enacted and has also been amended in 2016 to make its provisions more effective. Special prosecutors are to be provided for speedy trial of cases. The incentives are also provided for rehabilitation of victims, protection of witnesses and matters connected therewith.

49. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.

50. The data of National Crime Records Bureau, Ministry of Home Affairs, has been pointed out on behalf of Union of India which indicates that more than 47,000 cases were registered in the year 2016 under the Act of 1989. The number is alarming, and it cannot be said that it is due to the outcome of the misuse of the provisions of the Act.

51. As a matter of fact, members of the Scheduled Castes and Scheduled Tribes have suffered for long, hence, if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt. Eyewitnesses do not come up to speak in their favour. They hardly muster the courage to speak against upper caste, that is why provisions have been made by way of amendment for the protection of witnesses and rehabilitation of victims. All humans are equal including in their frailings.

To treat SCs. and STs. as persons who are prone to lodge false reports under the provisions of the Scheduled Castes and Scheduled Tribes Act for taking revenge or otherwise as monetary benefits made available to them in the case of their being subjected to such offence, would be against fundamental human equality. It cannot be presumed that a person of such class would inflict injury upon himself and would lodge a false report only to secure monetary benefits or to take revenge. If presumed so, it would mean adding insult to injury, merely by the fact that person may misuse provisions cannot be a ground to treat class with doubt. It is due to human failings, not due to the caste factor. The monetary benefits are provided in the cases of an acid attack, sexual harassment of SC/ST women, rape, murder, etc. In such cases, FIR is required to be registered promptly.

52. It is an unfortunate state of affairs that the caste system still prevails in the country and people remain in slums, more particularly, under skyscrapers, and they serve the inhabitants of such buildings.

53. To treat such incumbents with a rider that a report lodged by an SCs/STs category, would be registered only after a preliminary investigation by Dy. S.P., whereas under Cr.PC a complaint lodged relating to cognizable offence has to be registered forthwith. It would mean a report by uppercaste has to be registered immediately and arrest can be made forthwith, whereas, in case of an offence under the Act of 1989, it would be conditioned one. It would be opposed to the protective discrimination meted out to the members of the Scheduled Castes and Scheduled Tribes as envisaged under the Constitution in Articles 15, 17 and 21 and would tantamount to treating them as unequal, somewhat supportive action as per the mandate of Constitution is required to make them equals. It does not prima facie appear permissible to look them down in any manner. It would also be contrary to the procedure prescribed under the Cr.PC and contrary to the law laid down by this Court in Lalita Kumari (supra).

54. The guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221. The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above. In Kartar Singh (supra), a Constitution Bench of this Court has laid down that taking away the said right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India. Thus, prima facie it appears that in the case of misuse of provisions, adequate safeguards are provided in the decision mentioned above.

55. That apart directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

In re: sanction of the appointing authority :

56. Concerning public servants, the provisions contained in Section 197, Cr.PC provide protection by prohibiting cognizance of the offence without the sanction of the appointing authority and the provision cannot be applied at the stage of the arrest. That would run against the spirit of Section 197, Cr.PC. Section 41, Cr.PC authorises every police officer to carry out an arrest in case of a cognizable offence and the very definition of a cognizable offence in terms of Section 2(c) of Cr.PC is one for which police officer may arrest without warrant.

57. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

58. While issuing guidelines mentioned above approval of appointing authority has been made imperative for the arrest of a public servant under the provisions of the Act in case, he is an accused of having committed an offence under the Act of 1989. Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Courts.

59. The direction is discriminatory and would cause several legal complications. On what basis the appointing authority would grant permission to arrest a public servant? When the investigation is not complete, how it can determine whether public servant is to be arrested or not? Whether it would be appropriate for appointing authority to look into case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching appointing authority for approval of arrest of a public servant in every case under the Act of 1989 is likely to consume sufficient time. The appointing authority is not supposed to know the ground realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself.

Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of appointing authority, it is wholly extrastatutory. In case appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provision for grant of anticipatory bail. It would tantamount to take away functions of Court. To decide whether an accused is entitled to bail under Section 438 in case no prima facie case is made out or under Section 439 is the function of the Court. The direction of appointing authority not to arrest may create conflict with the provisions of Act of 1989 and is without statutory basis.

60. By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, maybe a public servant, it is not the provision of the general law of Cr.PC that permission of the appointing authority is necessary. No such statutory protection provided to a public servant in the matter of arrest under the IPC and the Cr.PC as such it would be discriminatory to impose such rider in the cases under the Act of 1989. Only in the case of discharge of official duties, some offence appears to have been committed, in that case, sanction to prosecute may be required and not otherwise. In case the act is outside the purview of the official discharge of duty, no such sanction is required.

61. The appointing authority cannot sit over an FIR in case of cognizable, nonbailable offense and investigation made by the Police Officer; this function cannot be conferred upon the appointing authority as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this rider cannot be imposed in respect of the cases under the Act of 1989, may be that provisions of the Act are sometimes misused, exercise of power of approval of arrest by appointing authority is wholly impermissible, impractical besides it encroaches upon the field reserved for the legislature and is repugnant to the provisions of general law as no such rider is envisaged under the general law.

62. Assuming it is permissible to obtain the permission of appointing authority to arrest accused, would be further worsening the position of the members of the Scheduled Castes and Scheduled Tribes. If they are not to be given special protection, they are not to be further put in a disadvantageous position. The implementation of the condition may discourage and desist them even to approach the Police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes which cannot be said to be constitutionally envisaged. Other castes can misuse the provisions of law; also, it cannot be said that misuse of law takes place by the provisions of Act of 1989. In case the direction is permitted to prevail, days are not far away when writ petition may have to be filed to direct the appointing authority to consider whether accused can be arrested or not and as to the reasons recorded by the appointing authority to permit or deny the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. Act of 1989 delay would be adding to the further plight of the downtrodden class.

In ref: approval of arrest by the SSP in the case of a nonpublic servant:

63. Inter alia for the reasons as mentioned earlier, we are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. Without doubting bona fides of any officer, it cannot be left at the sweet discretion of the incumbent howsoever high. The approval would mean that it can also be ordered that the person is not to be arrested then how the investigation can be completed when the arrest of an incumbent, is necessary, is not understandable. For an arrest of accused such a condition of approval of SSP could not have been made a sine qua non, it may delay the matter in the cases under the Act of 1989.

Requiring the Magistrate to scrutinise the reasons for permitting further detention:

64. As per guidelines issued by this Court, the public servant can be arrested after approval by appointing authority and that of a nonpublic servant after the approval of SSP. The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case of approval has not been granted, this exercise has not been undertaken. When the offence is registered under the Act of 1989, the law should take its course no additional fetter sare called for on arrest whether in case of a public servant or nonpublic servant. Even otherwise, as we have not approved the approval of arrest by appointing authority/S.S.P., the direction to record reasons and scrutiny by Magistrate consequently stands nullified.

65. The direction has also been issued that the Dy. S.P. should conduct a preliminary inquiry to find out whether allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognisable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari (supra) by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of Dy. S.P. The number of Dy. S.P. as per stand of Union of India required for such an exercise of preliminary inquiry is not available.

The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered in such a case how a final report has to be filed in the Court. The direction (iv) cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure visavis to the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act of 1989.

66. The creation of a casteless society is the ultimate aim. We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal.

67. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. Resultantly, we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes. The review petitions are allowed to the extent mentioned above.

68. All the pending applications regarding intervention etc. stand disposed of.

J. (Arun Mishra)

J. (M.R. Shah)

J. (B.R. Gavai)

October 01, 2019.

New Delhi;


1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13

2 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983)

2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756

3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48

4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18


 

Sudam @ Rahul Kaniram Jadhav Vs. State of Maharashtra-01/10/2019

SUPREME COURT OF INDIA JUDGMENTS

Scope of the review jurisdiction of Supreme Court in criminal proceedings

Rejection of a review petition could never be completely reconsidered in curative jurisdiction

  • The entire case of the prosecution is built upon circumstantial evidence.
  •  SC committed an error apparent on the face of the record in placing reliance upon the extra judicial confession allegedly made by the Petitioner before PW-6, by noting that such evidence had been relied upon by the Courts below, when in fact it had been rightly rejected by the Trial Court.
  • The Criminal review petitions are allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.

REVIEW OF JUDGMENT: Review proceedings pertain to Review Petition (Cri.) No. D19901 of 2012 seeking to review the final judgment and order dated 04.07.2011 passed by this Court in Criminal Appeal Nos. 185-86 of 2011 dismissing the appeal filed by the Review Petitioner (in short “the Petitioner”) and confirming his conviction under Sections 201 and 302 of the Indian Penal Code (in short, “IPC”). Vide the impugned judgment, this Court upheld the sentence under Section 201, IPC and the death sentence under Section 302, IPC imposed upon the Petitioner.

Act: Sections 201 and 302 of the Indian Penal Code

BENCH: J. N.V. Ramana, J. Mohan M. Shantanagoudar,  J. Indira Banerjee

SUPREME COURT OF INDIA

Sudam @ Rahul Kaniram Jadhav Vs. State of Maharashtra

[Review Petition (CRL.) Nos. 401-402 of 2012 in Criminal Appeal Nos. 185-186 of 2011]

MOHAN M. SHANTANAGOUDAR, J.

The instant review proceedings pertain to Review Petition (Cri.) No. D19901 of 2012 seeking to review the final judgment and order dated 04.07.2011 passed by this Court in Criminal Appeal Nos. 185-86 of 2011 dismissing the appeal filed by the Review Petitioner (in short “the Petitioner”) and confirming his conviction under Sections 201 and 302 of the Indian Penal Code (in short, “IPC”). Vide the impugned judgment, this Court upheld the sentence under Section 201, IPC and the death sentence under Section 302, IPC imposed upon the Petitioner.

2. The brief facts pertaining to this case are as follows:

2.1 On the morning of 21.08.2007, the bodies of four children were discovered floating in the village pond (known as Juna Pani talav) in the village of Rupla Naik Tanda, District Nanded, Maharashtra. A male child aged six years along with a female child aged ten years were found tied together, and a female child aged ten months along with a male child of two to four years, were found tied separately. The body of an unidentified woman with a mangalsutra on her neck was also subsequently discovered below a nearby boulder by the police. The deceased persons were eventually identified as Anita, the daughter of one Maroti Madavi, the two children born to her from her first husband and the two children born to her from the Petitioner. The Petitioner was found by the police on 24.08.2007, but is alleged to have absconded subsequently, and was arrested only on 22.09.2007.

3. The investigation revealed that the deceased Anita had been living with the Petitioner as his wife and had come to know about his marriage with PW-6 Muktabai. The deceased was opposed to this relationship, which led to a serious dispute amongst the three of them. The Petitioner allegedly divorced PW-6, and agreed to pay her a sum of Rs. 15,000/-, which the deceased Anita promised to bear. Thereafter, PW-6 went to her village, and the Petitioner, the deceased Anita and her four children came to the village of Juna Pani, where, because of the strained relationship with his wife, the Petitioner murdered her and the four children by strangulating them.

4. The principal evidence put forth by the prosecution against the Petitioner includes the motive of the accused, the evidence put forth by PW-8 Prahlad that the deceased were last seen with the Petitioner, and that of PW-6 Muktabai and PW-9 Ishwar with respect to the extra-judicial confessions made to them by the Petitioner. The Trial Court convicted the Petitioner for the offences stated supra on the basis of the last seen circumstance as deposed to by PW-8; the motive of the accused as deposed to by PW-5, the mother of the deceased Anita; the extra-judicial confession made by the Petitioner to PW-9 Ishwar; the fact that the Petitioner had absconded after the commission of the offence; and his failure to explain the circumstances leading to the homicidal deaths of the deceased. The High Court confirmed the conviction and sentence as awarded by the Trial Court, including the sentence of death, holding that the case at hand falls into the category of the rarest of rare cases warranting punishment with death. This Court, in appeal, confirmed the same.

5. Review Petition (Cri.) No. D19901 of 2012 filed by the Petitioner against the above judgment and order of this Court was dismissed by circulation vide order dated 26.07.2012. A criminal miscellaneous petition was filed by the Petitioner seeking reopening of this review petition, placing reliance on the decision of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India , (2014) 9 SCC 737, which held that in light of Article 21 of the Indian Constitution, review petitions arising out of appeals where the death sentence had been affirmed were required to be heard orally by a 3-Judge Bench, and specifically permitted the reopening of review petitions in all cases where review petitions had been dismissed by circulation. This Court subsequently recalled the order dated 26.07.2012 passed in Review Petition No. D19901/2012 and permitted the re-hearing of such petition in open Court.

6. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan, argued for the acquittal of the Petitioner, contending that there are various infirmities in how the material on record has been appreciated by the Courts, in addition to highlighting errors apparent on the face of the record. The broad thrust of her argument was that the entire case was built on circumstantial evidence, i.e. the “last seen” evidence, two purported extra-judicial confessions, and the motive of the Petitioner, all of which were erroneously relied upon.

6.1 Thus, she virtually seeks a re-appreciation of the entire evidence, submitting that it is permissible to raise any additional ground at the stage of review. To make this submission, learned Counsel relied on the permission given by this Court to the petitioner in Md. Arif @ Ashfaq v. Registrar, Supreme Court of India , vide order dated 19.01.2016 passed in Review Petition (Criminal) No. 692 of 2015 in Writ Petition (Criminal) No. 77 of 2014, to raise any additional ground as may be legally permissible in the rehearing of his review petition. The relevant observation from the said order is reproduced below: “We permit the petitioner to raise all such additional grounds in support of the said review petition as may be legally permissible to him.”

6.2 We would like to deal with this argument raised by learned Counsel for the Petitioner at this juncture itself. It has been well-settled by a catena of decisions of this Court that review proceedings cannot be treated as an appeal in disguise. Particularly, in criminal proceedings, the scope of review jurisdiction of this Court is guided by Article 137 of the Indian Constitution as well as Order XL Rule 10 of the Supreme Court Rules, 1966, which permit the Court to correct miscarriage of justice caused by an error apparent on the face of the record. In this regard, it would be fruitful to refer to the decision of this Court in Vikram Singh v. State of Punjab, (2017) 8 SCC 518, where the Court was re-hearing a review petition against the award of the death penalty to the review petitioner therein, pursuant to the decision in Md. Arif @ Ashfaq v. The Registrar, Supreme Court (supra). In this decision, after comprehensively explaining the scope of the review jurisdiction of this Court in criminal proceedings and revisiting its earlier decisions on this aspect, including P.N. Eswara Iyer v. The Supreme Court, (1980) 2 SCR 889 and Suthendraraja v. State, (1999) 9 SCC 323, this Court concluded as follows:

“23. In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.”

(emphasis supplied)

6.3 We prefer not to burden this judgment with further discussion on this issue. Suffice it to say that there can be no argument that this Court cannot re-appreciate evidence in its entirety in the exercise of its review jurisdiction. Furthermore, it is evident that the reference to “additional grounds” in the observations in the order dated 31.10.2018 in Md. Arif @ Ashfaq v. State (NCT of Delhi) (supra) reproduced above pertains to additional grounds which could have been raised by the review petitioner before this Court in the exercise of its review jurisdiction and had not been raised when the review petition had originally been filed before this Court.

6.4 In fact, a reading of the entire order reveals that the Court at that juncture was dealing with a criminal miscellaneous application seeking that the scope of the permission granted by this Court in Md. Arif @ Ashfaq v. The Registrar, Supreme Court (supra) to re-hear review petitions dismissed vide circulation be extended to also include cases where a curative petition had been dismissed vide circulation after the dismissal of review, since this category of cases had been specifically denied the relief of re-hearing by the Court. With particular regard for the fact that the petitioner therein was the only person to be denied an open Court hearing due to this limitation, and in light of the limited grounds on which a curative petition could be filed, which meant that the rejection of a review petition could never be completely reconsidered in curative jurisdiction, this Court in its order dated 31.10.2018 extended the relief of re-hearing to dismissed curative petitions as well. It was while doing so that the observations that have been relied upon by learned Counsel for the Petitioner came to be passed.

6.5 In view of the above discussion, we are constrained to reject the contention raised by learned Counsel for the Petitioner that the above observations have created a window for this Court to re-appreciate the entire evidence on record while hearing review petitions. The submissions of learned Counsel for the Petitioner have to be considered keeping the above discussion in mind.

7. With respect to the evidence for the circumstance of “last seen”, learned Counsel led us through the evidence of PW-8 Prahlad to point out the inherent improbabilities in his testimony, pointing out that he had testified that his statement was recorded by the police on 19.8.2007, whereas the bodies of the deceased were discovered only on 21.8.2007. She argued that the Trial Court had erroneously supplied possible reasons to explain this incongruity, which went to the root of the matter, since PW-8 is a timeline witness, especially in the absence of any re-examination in this regard.

7.1 With regard to the evidence of PW-9 Ishwar, one of the witnesses for the extra-judicial confessions, it was argued that since his statement was only recorded on 30.11.2007, there was a high likelihood of concoction of evidence, rendering it unreliable. She also contended that there was a complete absence of any semblance of a timeline in PW-9’s testimony, which also materially contradicted the “last seen” testimony, inasmuch as PW-9 deposed that he saw the Petitioner with his wife and children four to five days before the purported extra judicial confession was made.

7.2 Coming to the second extra judicial confession, learned Counsel pointed out that the High Court and this Court had erred in relying on the testimony of PW-6 regarding the confession made by the Petitioner to her over a mobile phone conversation, by ignoring the admission to the contrary made in the cross-examination. The testimony of PW-6 pertaining to the extra-judicial confession had been correctly discarded by the Trial Court on this basis. The Trial Court had further found such testimony unreliable due to non-corroboration by call records. It was contended that the High Court and this Court had both overlooked this aspect and wrongly relied on this extra-judicial confession, and this Court had even gone on to incorrectly note that the Trial Court had relied on the confession, which was an error apparent on the face of the record.

7.3 It was further submitted that PW-13, the Investigation Officer had deposed that he had not obtained the call records of PW-9’s mobile (to which the Petitioner had allegedly made calls and over which he had allegedly made the extra-judicial confession to PW-6) even though he deposed in the same breath that he had called for the same but could not obtain them. In such a situation, the Court was entitled to proceed on the basis that such evidence had not been adduced even though it could have been, and on that basis draw an adverse inference against the prosecution under Section 114 of the Evidence Act, 1872.

7.4 With respect to the motive, it was submitted that the motive for the commission of the offence was weak since the dispute between the Petitioner and the deceased Anita regarding the Petitioner’s relationship with PW-6 Muktabai had already been settled.

7.5 She therefore argued that there was no reliable evidence connecting the Petitioner to the crime, in the absence of direct or forensic evidence.

7.6 On the aspect of sentencing, learned Counsel argued that the Petitioner had no previous record of bad behaviour, and further that the death penalty may not be imposed for a conviction based solely on circumstantial evidence. It was further submitted that this Court, while imposing the death penalty, had travelled beyond the record to observe that the face of the deceased had been crushed with a stone, which had unfairly prejudiced the Court.

8. Learned counsel for the Respondent, i.e. the State of Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the other hand, argued in favour of the judgments rendered by the Courts. In particular, he stressed that even if part of the testimony of PW-6 had been misread by the Courts, her evidence against the Petitioner remained unshaken on other aspects, such as motive, since she had deposed that the Petitioner had admitted to her that he had been harassing Anita. He also highlighted that as per the Post Mortem Report (Exh. P-43) of the deceased Anita, as spoken to by the examining doctor PW-4, the probable cause of her death was asphyxia due to throttling, and PW-4 had specifically denied the possibility of self-strangulation.

8.1 On the aspect of sentencing, he argued that in light of the menace posed to society, even if the death penalty were to be commuted, a minimum mandatory sentence of 30 years must be imposed upon the Petitioner.

9. We have perused the record of the case after hearing the learned Counsel on either side.

10. At the outset, it is important to note that the entire case of the prosecution is built upon circumstantial evidence. As already mentioned supra, this Court, in appeal, affirmed the findings of the Courts below regarding the conviction of the Petitioner. For the reasons already noted above, we cannot delve into the submissions of either party that pertain to appreciation of evidence anew. However, we deem it appropriate to briefly refer to the evidence on record, i.e. the circumstance of the Petitioner being last seen with the deceased as deposed by PW-8, the extra judicial confessions made to PWs 6 and 9, and the motive of the Petitioner.

11. The “last seen” circumstance is spoken to by PW-8 Prahlad, who deposed that on 19.08.2007, when he was at his house, the Petitioner along with his wife and four children came to his house and asked for water, and further that though he requested the Petitioner to stay back, the Petitioner left with his family. 12. PW-9 Ishwar’s testimony pertains to an extra judicial confession, as he deposed that the Petitioner had confessed before him that he had strangulated the four children and the deceased Anita to death, and thrown their bodies in the pond, as Anita was harassing him.

13. The deposition of PW-5, Anusayabai, the mother of the deceased Anita, as well as that of PW-6 Muktabai, is pertinent with respect to the motive of the Petitioner to commit the murders. As per PW-5, her daughter bore two children with her first husband Anil Gedam, but Anita started living with the Petitioner after Anil deserted her. PW-5 deposed that the Petitioner had married PW-6 Muktabai, and that the Petitioner had committed the murder of Anita and her children on account of the dispute caused by the Petitioner’s marriage with PW-6. 13.1 PW-6 Muktabai, in her turn, deposed that a few days after her marriage with the Petitioner, while they were visiting PW-6’s parental village, Anita had visited them, claiming that the Petitioner was her husband and they had two children together, and went to the Police Station with the Petitioner. However, only Anita returned, saying that the Petitioner had run away, and subsequently stayed for a few days with PW-6. A few days after Anita had left, the Petitioner returned to PW-6, and revealed that Anita was harassing him, also admitting that he had two children with her. He later got arrested and Anita got him released. After a few days, Anita again confronted PW- 6 and the Petitioner, who offered to maintain both women, but Anita was not amenable to the offer. The Petitioner then wrote PW-6 a divorce, and Anita agreed to pay Rs. 15,000/- to PW-6.

14. We are of the considered opinion that there is no ground for interference with any finding of the Courts with respect to the appreciation of the testimony relating to the “last seen” circumstance, the extra judicial confession made to PW-9, and the motive of the Petitioner.

14.1 However, crucially, this Court, in appeal, also relied upon the deposition of PW-6 with respect to the extra-judicial confession made to her, inasmuch as she deposed in her examination-in-chief that the Petitioner had confessed to her over a telephonic call that he had murdered the deceased. However, it is clear that the Court omitted to appreciate that PW-6 had admitted in her cross-examination that the Petitioner had not told her that he had murdered the deceased, which in fact was a reason for the Trial Court to not rely on her testimony. Thus, we find substance in the submission of the learned Counsel for the Petitioner that this Court committed an error apparent on the face of the record in placing reliance upon the extra judicial confession allegedly made by the Petitioner before PW-6, by noting that such evidence had been relied upon by the Courts below, when in fact it had been rightly rejected by the Trial Court.

15. There is yet another crucial aspect of the matter that we must turn our attention to. We find strength in the submission made by the Counsel for the Petitioner that this Court, in determining the correctness of the quantum of sentence assessed by the High Court, while noting that the offence appeared to be premeditated and well-planned, erroneously observed that the Petitioner had crushed the face of the deceased Anita to avoid identification. We find that this observation is unsupported by the medical evidence on record. PW-4, the doctor who conducted the post-mortem (at Exh. P- 25) on Anita’s body, only deposed to the presence of contused lacerated wounds on her face. There is no evidence to the effect that her face was marred beyond recognition or that there appeared to be any attempt to do so. We find that this is yet another error apparent on the face of the record.

16. Having found there have been errors apparent on the face of the record in the appreciation of evidence by this Court in appeal, we must now consider the effect thereof on the conviction as well as on the sentence awarded. We find it worth repeating that we do not seek to re-appreciate the evidence on record, and merely wish to determine whether the evidence as assessed by this Court in appeal, keeping aside the extra-judicial confession to PW-6, was sufficient to affirm the finding of guilt and the award of the punishment of death to the Petitioner.

17. As noted previously, the evidence relied upon in the instant case is purely circumstantial, including the motive to commit the offence, the circumstance of the deceased being last seen with the Petitioner, and two extra-judicial confessions. Thus, keeping aside the extra-judicial confession to PW-6, it is evident that evidence as to the circumstance of motive, the “last seen” circumstance as well as one extra-judicial confession still survive. It is our considered view that the chain of circumstances establishing the guilt of the Petitioner beyond reasonable doubt is not materially affected even if we discard one of the two extra-judicial confessions. Thus, we find that this Court rightly affirmed the conviction of the Petitioner under Sections 302 and 201, IPC, and there is no cause for us to interfere with such finding of guilt in the exercise of our review jurisdiction.

18. We must now turn our attention to the question of whether the evidence on record, apart from the extra-judicial confession to PW-6 and the observation pertaining to the facial injuries of the deceased Anita, is sufficient to affirm the death sentence awarded to the Petitioner.

18.1 At this juncture, it must be noted that though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence (see Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288; Ramesh v. State of Rajasthan, (2011) 3 SCC 685).

18.2 In such a situation, it is up to the Court to determine whether the accused may be sentenced to death upon the strength of circumstantial evidence, given the peculiar facts and circumstances of each case, while assessing all the relevant aggravating circumstances of the crime, such as its brutality, enormity and premeditated nature, and mitigating circumstances of the accused, such as his socio-economic background, age, extreme emotional disturbance at the time of commission of the offence, and so on.

18.3 In this regard, it would also be pertinent to refer to the discussion in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747, where this Court elaborated upon the concept of “residual doubt”-which simply means that in spite of being convinced of the guilt of the accused beyond reasonable doubt, the Court may harbour lingering or residual doubts in its mind regarding such guilt. This Court noted that the existence of residual doubt was a ground sometimes urged before American Courts as a mitigating circumstance with respect to imposing the death sentence, and noted as follows:

“33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)] and other cases, the US courts took the view, “residual doubt” is not a fact about the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between “beyond a reasonable doubt” and “absolute certainty”. The petitioner’s “residual doubt” claim is that the States must permit capital sentencing bodies to demand proof of guilt to “an absolute certainty” before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.

34. We also, in this country, as already indicated, expect the prosecution to prove its case beyond reasonable doubt, but not with “absolute certainty”. But, in between “reasonable doubt” and “absolute certainty”, a decision-maker’s mind may wander, possibly in a given case he may go for “absolute certainty” so as to award death sentence, short of that he may go for “beyond reasonable doubt”. Suffice it to say, so far as the present case is concerned, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single-handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All the element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor.”

(emphasis added)

18.4 While the concept of “residual doubt” has undoubtedly not been given much attention in Indian capital sentencing jurisprudence, the fact remains that this Court has on several occasions held the quality of evidence to a higher standard for passing the irrevocable sentence of death than that which governs conviction, that is to say, it has found it unsafe to award the death penalty for convictions based on the nature of the circumstantial evidence on record. In fact, this question was given some attention in a recent decision by this Bench, in Md. Mannan @ Abdul Mannan v. State of Bihar, R.P. (Crl.) No. 308/2011 in Crl. A. No. 379/2009 (decision dated February 14, 2019), where we found it unsafe to affirm the death penalty awarded to the accused in light of the nature of the evidence on record, though the conviction had been affirmed on the basis of circumstantial evidence. 18.5 In Md. Mannan (supra), this Court affirmed the proposition that the quality of evidence is a relevant circumstance in the sentencing analysis, referring to the following observations of this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498:

“56. At this stage, Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th Report of the Law Commission.”

(emphasis added)

18.6 The Court also relied on Ramesh v. State of Rajasthan (supra) and Ram Deo Prasad v. State of Bihar, (2013) 7 SCC 725, which follow Bariyar (supra) in this respect, and referred to Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317, Kalu Khan v. State of Rajasthan, (2015) 16 SCC 492 and Sebastian @ Chevithiyan v. State of Kerala, (2010) 1 SCC 58, where a similar position has been adopted.

18.7 We find it pertinent to observe that the above trend only affirms the “prudence doctrine” enunciated by this Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. In this regard, we may refer to the following observations made in Bariyar (supra):

“149. Principle of prudence, enunciated by Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] is sound counsel on this count which shall stand us in good stead-whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop (sic)/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.”

18.8 The Court in Bariyar (supra) further observed that the irrevocable punishment of death must only be imposed when there is no other alternative, and asserted that in cases resting on circumstantial evidence, the doctrine of prudence should be invoked:

“167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (2), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.

168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or is dependent upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view the evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment…”

(emphasis added)

18.9 In light of the above discussion, we find it appropriate to gauge, in the exercise of our review jurisdiction, whether there is a reasonable probability that this Court, in appeal, on the strength of the evidence on record as it stands, without the errors apparent on the face of the record, would have concluded that the balance of aggravating and mitigating circumstances lies in favour of preserving the Petitioner’s life. Such probability would be sufficient to set aside the sentence of death affirmed by this Court, in light of the doctrine of prudence, which really only reflects the dictum of this Court in Bachan Singh (supra) that the Court must keep in mind while awarding the punishment of death that the alternative option, i.e. imposition of life imprisonment, must be unquestionably foreclosed.

19. We make it clear that we do not wish to re-enter into an appreciation of the aggravating and mitigating circumstances relied upon by the Courts until this stage to award the death sentence to the Petitioner. However, before proceeding further, we would like to briefly revisit the sentencing assessment already done by this Court in appeal. While arriving at the conclusion that the instant case fell into the category of the rarest of rare cases, this Court took into account the premeditated nature of the crime, and its brutal and barbaric nature, observing that the same was sufficient to shock the collective conscience of the society. The Court also opined that the Petitioner was a menace to society and could not be reformed, and that lesser punishment would expose society to peril at his hands.

20. Evidently, even the fact that the evidence was circumstantial in nature did not weigh very heavily on the Court’s mind, let alone the strength and nature of the circumstantial evidence. Be that as it may, we find that the material on record is sufficient to convince the Court of the Petitioner’s guilt beyond reasonable doubt; however, the nature of the circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the Petitioner’s favour, keeping in mind the doctrine of prudence. Moreover, it is also possible that the incorrect observations pertaining to Anita’s facial injuries further led the Court to conclude in favour of imposing the death sentence on the Petitioner. Thus, we are of the considered opinion that there was a reasonable probability that this Court would have set aside the sentence of death in appeal, since the only surviving evidence against the Petitioner herein pertains to his motive to commit the crime, the circumstance of “last seen” and a solitary extra-judicial confession. In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence.

21. We are thus compelled to conclude that the award of the death penalty in the instant case, based on the evidence on record, cannot be upheld.

22. At the same time, we conclude that a sentence of life imprisonment simpliciter would be inadequate in the instant case, given the gruesome nature of the offence, and the menace posed to society at large by the Petitioner, as evinced by the conduct of the Petitioner in jail. As per the report submitted in pursuance of the order of this Court dated 31.10.2018, it has been brought on record that the conduct of the Petitioner in jail has been unsatisfactory, and that he gets aggressive and indulges in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners. Two FIRs have also been registered against the Petitioner for abusing and threatening the Superintendent of the Nagpur Central Prison.

22.1 As this Court has already held in a catena of decisions, by way of a via media between life imprisonment simpliciter and the death sentence, it may be appropriate to impose a restriction on the Petitioner’s right to remission of the sentence of life imprisonment, which usually works out to 14 years in prison upon remission. We may fruitfully refer to the decisions in Swamy Shraddhananda (2) v. State of Karnataka, (2008) 13 SCC 767 and Union of India v. V. Sriharan, (2016) 7 SCC 1, in this regard. We therefore direct that the Petitioner shall remain in prison for the remainder of his life.

23. In light of the above discussion, the review petitions are allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.

J. (N.V. Ramana)

J. (Mohan M. Shantanagoudar)

J. (Indira Banerjee)

New Delhi;

October 01, 2019

K.H. Nazar Vs. Mathew K. Jacob & Ors -30/09/2019

SUPREME COURT OF INDIA JUDGMENTS

INTERPRETATION OF STATUTE: While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted. 9 It is settled law that exemption clauses in beneficial or social Indian Performing Rights Society v. Sanjay Dalia, (2015) 10 SCC 161 welfare legislations should be given strict construction 10. It was observed in Shivram A. Shiroor v. Radhabai Shantram Kowshik (supra) that the exclusionary provisions in a beneficial legislation should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasion on deceptive grounds. Similarly, in Minister Administering the Crown Lands Act v. NSW Aboriginal Land Council11, Kirby, J. held that the principle of providing purposive construction to beneficial legislations mandates that exceptions in such legislations should be construed narrowly.

Provisions of beneficial legislation have to be construed with a purpose-oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the Court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation.

ACTS: Section 2 (5) and Section 81 (1) (q) of the Kerala Land Reforms Act, 1963

SUPREME COURT OF INDIA

K.H. Nazar Vs. Mathew K. Jacob & Ors.

[Civil Appeal Nos. 7699-7700 of 2019 arising out of SLP (C) Nos. 7792-7793 of 2019]

L. NAGESWARA RAO, J.

Leave granted.

1. The width and amplitude of the expression ‘commercial site’ in Section 2 (5) and Section 81 (1) (q) of the Kerala Land Reforms Act, 1963 (for short, “ the Act”), falls for our consideration in these Appeals. Commercial sites are exempted from the purview of the Act. The question whether a rocky land which is used for quarrying purposes can be treated as a ‘commercial site’ and thereby excluded from the applicability of the Act was answered by a learned Single Judge of the Kerala High Court by holding that mere blasting of rocks and conversion into metals does not render the area a ‘commercial site’.1 Twenty years after the said judgment, a Division Bench of the Kerala High Court took a different view. Quarrying was held to be a commercial operation involving the process of manufacture. Hence, it was held that a quarry falls within the ambit of ‘commercial site’ and is exempted from the applicability of the Act.2

2. The Appellant requested environmental clearance for his quarry which was recommended in his favour by the District Expert Appraisal Committee (DEAC) on 25.04.2017. Respondents No.1 and 2 filed a Writ Petition aggrieved by the said recommendation to permit quarry on land which was a plantation site. It is relevant to note that the Appellant’s land was exempted from the realm of the Act as it was a plantation. The objection of Respondent No.1 and 2 was that the Appellant cannot be permitted to use the land for a purpose other than plantation, especially for quarrying operations. After examining the judgments of the High Court in K. Krishnankutty v. State of Kerala and Others (supra) and State of Kerala v. Mohammedali Haji (supra), a learned Single Judge of the High Court of Kerala doubted the correctness of the latter K. Krishnankutty v. State of Kerala and Others. CRP No.1245/1975 State of Kerala v. Mohammedali Haji. (1996) 1 KLT 584 (DB) judgment in State of Kerala v. Mohammedali Haji (supra) and referred the matter to a larger Bench.

3. The Writ Petition filed by Respondent No.1 and 2 was heard by a Full Bench of the Kerala High Court comprising three Judges. The majority opinion was in favour of Respondent No.1 and 2. It was held by the majority that the land which is used for quarrying is not covered by the expression ‘commercial site’. Therefore, there can be no exemption of such land from the applicability of the Act. The Appellant is aggrieved by the said judgment of the Full Bench of the High Court.

4. Mr. K. V. Vishwanathan, learned Senior Counsel for the Appellant took us through the provisions of the Act including Sections 2(5), 81 and 83 to argue that a quarry is a commercial site, which is exempted under Section 81 (1)

(q) of the Act. He alluded to the statement of objects and reasons to submit that the legislation was made to protect the interests of all stake-holders. He referred to the meaning of the words ‘commercial activities’ and ‘business’ to submit that the activity of quarrying is done for profit. Hence, quarrying is a commercial activity. According to him, there can be no distinction between activities done above and below the surface of land for the purpose of deciding whether land is a commercial site or not. He criticized the plurality opinion for erroneously invoking the mischief rule. He commended the judgment of the dissenting Judge for our acceptance. He emphasized that environmental issues are not germane for interpretation of Sections 2 (5) and 81 (1) (q) of the Act.

5. Mr. Pallav Shishodia, learned Senior Counsel appearing for the State of Kerala resisted the submissions made on behalf of the Appellant by submitting that the expression ‘commercial site’ is a term of art and has to be interpreted on the basis of the context in which it is used.

6. Mr. Romy Chacko, learned counsel for the Respondent No.1 and 2 asserted that the Act is a beneficial legislation. When there is a doubt about the meaning of expressions used in such a statute, literal interpretation should be avoided and Courts should adopt the principles of purposive construction. He submitted that the exemption provision should be narrowly construed.

7. Before we consider the submissions made by the learned counsel, it is necessary to examine the provisions of the Act. Section 83 of the Act provides that no person shall be entitled to own or hold or possess under a mortgage, lands in the aggregate in excess of the ceiling area with effect from the date notified by the Government of Kerala in the Gazette. The ceiling area of land is specified in Section 82 of the Act. Lands exempted under Section 81 shall be excluded from computation of the ceiling area as per Section 82 (6) of the Act. Section 81 of the Act is as follows:

81. Exemptions: – (1) the provisions of this Chapter shall not apply to-

a) Lands owned or held by the Government of Kerala or the Government of any other State in India or the Government of India or a local authority [or the Cochin Port Trust] or any other authority which the Government may, in public interest, exempt, by notification in the Gazette, from the provisions of this Chapter.

[Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.]

Explanation I. – “Lands owned by the Government of Kerala” shall, for the purposes of this clause, have the same meaning as “Government lands” under sub- section (1) of Section 2 of the Kerala Government land Assignment Act, 1960 [but lands escheated to the Government and held by tenants entitled to fixity of tenure under Section 13 shall not be deemed to be lands owned by the Government of Kerala;]

Explanation II – Lands, the right, title and interest in respect of which have vested in the Government under sub-section (9) of Section 66 or Section 72, shall not be deemed to be “lands owned by the Government of Kerala” for the purposes of this clause;]

Explanation III – For the purposes of this clause, “other authority” shall include a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India;]

b) Lands taken under the management of the Court of Wards;

Provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act;

c) Lands comprised of mills, factories or workshops and which are necessary for the use of such mills, factories or workshops;

d) Private forests;

e) Plantations;

f) x x x x

g) x x x x

h) lands mortgaged to the Government, or to a co-operative society (including a co-operative land mortgage bank) registered or deemed to be registered under the Co-operative Societies Act for the time being in force, or to the Kerala Financial Corporation, or to the Kerala Industrial Development Corporation, or to the State Small Industries Corporation, as security for any loan advanced by the Government or by such society or Corporation, so long as the mortgage subsists:

provided that the exemption under this clause shall cease to apply at the end of three years from the commencement of this Act;

i) lands purchased by the Kerala Co-operative Central Land Mortgage Bank or a Primary Mortgage Bank under Section 18 of the Kerala Co-operative Land Mortgage Banks Act, 1960 [or by the Kerala State Co- operative Bank Ltd., or by a primary agricultural credit co-operative society or by a scheduled bank as defined in the Reserve Bank of India Act, 1934] so long as such lands continue in the possession of the bank;

j) Lands purchased by the Kerala Financial Corporation or lands the management of which has been taken over by that Corporation, under Section 32 of the State Financial Corporations Act, 1951, so long as such lands remain in the ownership, or continue under the management, as the case may be, of the said Corporation:

provided that the exemption under this clause shall not apply in the case of lands the management of which has been taken over by the Corporation on or after the 1st day of April, 1964;

k) lands belonging to or held by an industrial or commercial undertaking at the commencement of this Act, and set apart for use for the industrial or commercial purpose of the undertaking: Provided that the exemption under this clause shall cease to apply if such land is not actually used for the purpose for which it has been set apart, within such time as the District Collector may, by notice to the undertaking, specify, in that behalf;
l) x x x x

m) house sites, that is to say, sites occupied by dwelling houses and lands, wells, tanks and other structures necessary for the convenient employment of the dwelling houses.

Explanation.- For the avoidance of doubt, it is hereby declared that a compound wall shall not be deemed to be a structure necessary for the convenient enjoyment of a dwelling house, if the land on which the dwelling house is situated and enclosed by the compound wall is more than the land necessary for the convenient enjoyment of the dwelling house.

n) x x x x

o) sites of temples, churches, mosques and cemeteries and burial and burning grounds:

p) sites of buildings and including warehouses;

q) commercial sites;

r) land occupied by educational institutions including land necessary for the convenient use of the institutions and playgrounds attached to such institutions;

s) lands vested in the Bhoodan Yagna Committee;

t) lands owned or held by-

i. a University establishment by law; or ii. a religious, charitable or educational institutions of a public nature; or iii. a public trust which expression shall include a wakf; Provided that-

(i) the entire income of such lands is appropriated for the University, institution or trust concerned, and

(ii) where the University, institution or trust come to hold the said lands after the commencement of this Act, the Government have certified previously that such lands are bona fide required for the purposes of the University, institution or trust, as the case may be; and u) lands granted to defence personnel for gallantry.

(2) [xxx]
(3) The Government may if they are satisfied that it is
necessary to do so in the public interest-

(a) on account of any special use to which any land is put; or

(b) on account of any land being bona fide required for the purpose of conversion into plantation or for the extension or preservation of an existing plantation or for any commercial, industrial, educational or charitable purpose, by notification in the Gazette, exempt such land from the provisions of this Chapter, subject to such restrictions and conditions as they may deem fit to impose:

Provided that the land referred to in clause (b) shall be used for the purpose for which it is intended within such time as the Government may specify in that behalf; and, where the land is not so used within the time specified, the exemption shall cease to be in force.

8. In the present case, the Appellant is claiming exemption on the ground that a quarry would fall within the sweep of ‘commercial site’ as stated in Section 81 (1)

(q). Commercial site is defined in Section 2 (5) as follows:

‘‘2(5) “commercial site” means any land (not being a kudiyiruppu or a kudikidappu or karaima) which is used principally for the purposes of any trade, commerce, industry, manufacture or business;’’

9. The Appellant contended that the definition of ‘commercial site’ is very wide and any land which is principally used for the purpose of trade, commerce, industry, manufacture or business is a commercial site. According to the Appellant, breaking of rock is a manufacturing activity. Quarrying operations involve digging land and breaking of rocks into metal pieces. It was submitted that digging of land and breaking of rock is for a commercial activity and the sale of stones is for the purpose of trade and business. We are afraid that we cannot agree.

10. The dominant legislative intent of the Act is the imposition of ceiling on land holdings and distribution of excess land among landless people.3 Large number of State of Kerala v. K. A. Gangadharan (1977) 1 SCC 208 people have no place of abode in the State of Kerala, which is known as God’s own country. To provide land to such landless people by taking it from those who possess in excess is the major objective of the Act.4

11. Provisions of a beneficial legislation have to be construed with a purpose-oriented approach. 5 The Act should receive a liberal construction to promote its objects.6 Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the Court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation7.

12. In the words of O. Chinnappa Reddy, J. 8, the principles of statutory construction of beneficial legislation are as follows:

4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights’ legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these One Earth One Life & Ors. v. State of Kerala, WP (C) No.28496 of 2016 Regional Executive, Kerala Fishermen’ Welfare Fund Board v. Fancy Food, (1995) 4 SCC 34 Bombay Anand Bhavan Restaurant v. ESI Corporation, (2009) 9 SCC 61 and Union of India v. Prabhakaran Vijay Kumar, (2008) 9 SCC 527 Bharat Singh v. Management of New Delhi Tuberculosis Centre, (1986) 2 SCC 614.

Workmen v. American Express International Banking Corpn. (1985) 4 SCC 71 legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the “colour”, the “content” and the “context” of such statutes (we have borrowed the words from Lord Wilberforce’s opinion in Prenn v. Simmonds [(1971) 3 All ER 237] ). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court [(1980) 4 SCC 443], we had occasion to say, “Semantic luxuries are misplaced in the interpretation of ‘bread and butter’ statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.

13. While interpreting a statute, the problem or mischief that the statute was designed to remedy should first be identified and then a construction that suppresses the problem and advances the remedy should be adopted. 9 It is settled law that exemption clauses in beneficial or social Indian Performing Rights Society v. Sanjay Dalia, (2015) 10 SCC 161 welfare legislations should be given strict construction 10. It was observed in Shivram A. Shiroor v. Radhabai Shantram Kowshik (supra) that the exclusionary provisions in a beneficial legislation should be construed strictly so as to give a wide amplitude to the principal object of the legislation and to prevent its evasion on deceptive grounds. Similarly, in Minister Administering the Crown Lands Act v. NSW Aboriginal Land Council11, Kirby, J. held that the principle of providing purposive construction to beneficial legislations mandates that exceptions in such legislations should be construed narrowly.

14. There is no dispute that the Act is a beneficial legislation. The extent of land that can be held is fixed and any land in excess has to be surrendered to the Government, which is distributed in favour of the landless people in the State. The interpretation of the provisions of the Act should be in a manner which promote the said object.

15. Section 81 exempts among others, lands comprised of mills, factories or workshops, lands occupied by Shivram A. Shiroor v. Radhabai Shantram Kowshik, (1984) 1 SCC 588 [2008] HCA 48 educational institutions, and lands owned by Universities, religious and charitable institutions. House sites, sites of temples, churches and mosques, sites of buildings including warehouses and commercial sites are also exempted. There is a definite distinction between the expressions ‘lands’ and ‘sites’ in the context in which they have been used. Commercial sites read along with the other clauses dealing with sites clearly indicate that land occupied by structures is described as ‘site’. As stated above, the other clauses in Section 81 dealing with sites are house sites, temples, churches and mosques and buildings. As such, the expression ‘commercial site’ cannot take into its fold vacant lands, including lands used for the purpose of quarrying. It has a restrictive meaning in comparison to the other categories of ‘land’ in Section 81. Therefore, quarry cannot fit into the terms ‘commercial site’. Mr. Bechu Kurian, leaned Senior Counsel argued on behalf of the Appellant that digging the land for extracting stones is for a commercial purpose of making profit and hence quarry is a commercial site. We do not agree. A commercial site is a land on which there is a structure being utilized for an industrial or commercial purpose. Extension of the words ‘commercial site’ to quarries would result in defeating the purpose of the Act.

16. We disagree with the opinion of the dissenting Judge that the expression ‘commercial site’ should be attributed its natural and original meaning. On the basis of the statement made by the learned Additional Advocate General, the dissenting Judge held that if lands used for quarrying operations prior to the Act coming into force stood exempted under Section 81 (1) (k), a quarry should be considered as commercial site. Further, it was observed that if a quarry can be exempted under Section 81 (3) by the Government in public interest, then quarrying is a commercial activity falling within the sweep of Section 81 (1) (q) of the Act.

17. We uphold the view of the majority that exemption of quarries by the Government under Section 81 (3) would not arise if quarries are covered by Section 81 (1)

(q) of the Act. In other words, if quarries are commercial sites, the need for their exemption in public interest does not arise. Section 81(3) of the Act empowers the Government to exempt lands for commercial purposes in public interest. The overriding power conferred on the Government to exempt lands from the applicability of the Act cannot be utilized for the purpose of interpretation of Section 81 (1) (q) which exempts commercial sites from the purview of the Act. Section 81 (1) (k) exempts unused lands of industrial or commercial undertakings at the time of commencement of the Act. The provision presupposes that an industrial or commercial undertaking was existing on the date of the commencement of the Act and there was some land set apart for the use of the undertaking in future. The said land is exempted only if the land is used for the industrial or commercial purposes of the undertaking within the time to be fixed by the authority. If the land is not used for the purpose for which it was set apart, the exemption ceases to operate. It is clear from the above that Section 81(1) (k) deals with a completely different type of land belonging to an industrial or commercial undertaking set apart for use of the said undertaking. Therefore, we are not in agreement with the support sought by the dissenting Judge from Section 81 (1) (k) to interpret the expression ‘commercial site’ in Section 81 (1) (q).

18. Another submission of the Appellant that quarrying includes a manufacturing activity does not appeal to us. Breaking of rock into small pieces of stone, according to us, is not a manufacturing activity. For this view, we seek support from a judgment of this Court in Rajasthan SEB v. Associated Stone Industries 12. It was held in the said judgment that cutting and polishing stones into slabs is not a process of manufacture for the obvious and simple reason that no new and distinct commercial product came into existence as the end product still remained stone and thus its original identity continued.

19. The findings recorded in the majority opinion on the issue pertaining to the environment is not relevant for the decision of the dispute. The concern of the Court should have been restricted to the gamut of the expression ‘commercial site’. The interpretation of Section 81 which exempts certain lands and sites should be interpreted in a manner, which promotes the object of (2006) 6 SCC 141 the Act and restricts concentration of large swathes of land in favour of a few individuals. Wider construction of the words ‘commercial site’ would defeat the laudable object of the Act.

20. The upshot of the above discussion is that there is no error in the majority opinion of the Full Bench in the impugned judgment which requires to be upheld.

21. The Appeals are dismissed, accordingly.

 L. NAGESWARA RAO

HEMANT GUPTA

New Delhi,

September 30, 2019


Judgments Relied :

1 K. Krishnankutty v. State of Kerala and Others. CRP No.1245/1975

2 State of Kerala v. Mohammedali Haji. (1996) 1 KLT 584 (DB)

3 State of Kerala v. K. A. Gangadharan (1977) 1 SCC 208

4 One Earth One Life & Ors. v. State of Kerala, WP (C) No.28496 of 2016

5 Regional Executive, Kerala Fishermen’ Welfare Fund Board v. Fancy Food, (1995) 4 SCC 34

6 Bombay Anand Bhavan Restaurant v. ESI Corporation, (2009) 9 SCC 61 and Union of India v. Prabhakaran Vijay Kumar, (2008) 9 SCC 527

7 Bharat Singh v. Management of New Delhi Tuberculosis Centre, (1986) 2 SCC 614.

8 Workmen v. American Express International Banking Corpn. (1985) 4 SCC 71

9 Indian Performing Rights Society v. Sanjay Dalia, (2015) 10 SCC 161

10 Shivram A. Shiroor v. Radhabai Shantram Kowshik, (1984) 1 SCC 588

11 [2008] HCA 48

12 (2006) 6 SCC 141

Indusind Media & Communications Ltd. Vs. Commissioner of Customs, New Delhi-27/09/2019

Section 130E of the Customs Act, 1962– The basic principle of levy of customs duty, in view of the aforementioned provisions, is that the value of the imported goods has to be determined at the time and place of importation. The value to be determined for the imported goods would be the payment required to be made as a condition of sale. Assessment of customs duty must have a direct nexus with the value of goods which was payable at the time of importation.

ACTS: Section 130E of the Customs Act, 1962 .Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rule, 1988

SUPREME COURT OF INDIA

Indusind Media & Communications Ltd. Vs. Commissioner of Customs, New Delhi

[Civil Appeal No. 2498 of 2018]

Uday Umesh Lalit, J.

1. This Appeal under Section 130E of the Customs Act, 1962 (hereinafter referred to as ‘the Act’) arises out of Order No.C/A/57743/2017 dated 09.11.2017 passed by the Customs Excise and Service Tax Appellate Tribunal (for short, ‘the Tribunal’) dismissing Appeal No.C/51770 of 2016 preferred by the appellant herein.

2. The basic facts leading to the issuance of Show Cause Notice dated 27.06.2014 initiating proceedings against the appellant, as set out in the Order under appeal are as under:-

“The appellant imported certain goods at air cargo complex, New Delhi and filed Bill of Entry 2660085 dated 26.6.2003. They declared the goods as Multiplexor Satellite Receivers, test and measurement equipment etc. and attached six invoices covering 19 items imported. They indicated individual classification for the various items under Chapter 84/85 of the Customs Tariff. The Bill of Entry was assessed as per declaration and applicable customs duty was paid. Subsequently, information was received from SIIB Air Cargo Complex Mumbai, that investigation had been commenced against the appellant for import of similar goods at Mumbai. Accordingly, Provisional Assessment was been ordered under Section 18 of the Customs Act.

2. The investigation undertaken at Mumbai revealed as follows:- The importer had placed the order at UK for purchase of equipments – one set for Mumbai and another set for Delhi. Each set of equipment, taken together constituted ‘Head End’ for cable TV operations. The ‘Head End’ was an equipment at a local TV office that originates the cable TV services and cable TV modem services to subscriber though Conditional Access System (CAS). All imported equipments taken together contributes towards a clearly refined function i.e. ‘Head End’ for cable TV operations.

The complete set of equipment together merits classification under Customs Tariff Heading (CTH) 8543 8999, in the light of Note 4 to Section XVI. Thus, it appeared that individual classification indicated for 19 imported items amounts to mis-declaration. The search operation carried by SIIB, ACC, Mumbai at the premises of importer further revealed that the importer had also mis declared the value of the imported consignments at Delhi and Mumbai. They had suppressed the value of embedded software as well as value of services payable to the foreign supplier for carrying out integration of the system prior to shipment and provide complete commission and installation services at the customers premises. Further, it was noticed that the purchase order placed by the importer was revised to show as CIF instead of FOB.”

3. In the aforesaid circumstances, Show Cause Notice dated 27.06.2014 was issued by the Department stating inter alia :-

“18. In view of the above, it appears that the Importer had fabricated documents by way of splitting of value of the goods and declared lesser value to the Customs Department with the sole intention to evade payment of Customs Duties. Therefore, it appeared that the Importer had intentionally not declared the true and correct value of the goods imported to the customs for the purpose of payment of Customs Duty. Further the cost of services was to be paid separately by the Importer to their supplier. Hence, the Importer failed to make true declarations. Therefore, the goods imported vide Bill of Entry No.260085 dated 26.06.2003 filed at Air Cargo Complex, New Delhi also appear to be liable for confiscation under Section 111(m) of the Customs Act, 1962 due to their aforesaid act of omission and commission. It also appears that they have rendered themselves liable for penal action under Section 112(a) and/or Section 114AA of the Customs Act, 1962.” The appellant was thus asked to show cause why:

(a) the declared values should not be rejected under Rule 10A of the erstwhile Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 and the same should not be redetermined under Rule 9(1) (e) (adding cost of services) of the erstwhile Custom Valuation (Determination of Price of Imported Goods) Rules, 1988;

(b) the invoice value of imported goods declared in the (Bill of Entry as Rs.1,02,91,463/- should not be enhanced to Rs.1,72,03,243/- (Rupees One Crore Seventy Two Lakhs Three Thousand Two Hundred and Forty Three Only) for the purpose of assessment under Section 14 of the Customs Act, 1962 read with Rule 9(1)(e) of the erstwhile Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 and the provisional assessment made under Section 18 of Customs Act, 1962 should not be finalised accordingly.

4. According to the record, the appellant was given several opportunities but no written submissions, in response to the Show Cause Notice, were filed. The facts on record also disclose that the opportunity of personal hearing was also extended and the matter was adjourned from time to time but the appellant did not avail the opportunity of personal hearing1. After considering the facts on record, the Principal Commissioner of Customs (Import) by his order dated 29.12.2015 rejected the declaration by the appellant vide Bill of Entry No. 260085 dated 26.06.2003. It was observed that the appellant had intentionally not declared the true and correct value and correct classification of imported goods. The conclusion was drawn as under:-

“26. … …I find that in the instant case, the Noticee(s) made a declaration at the time of filing of Bill of Entry that goods imported by them vide Bill of Entry No. 260085 dated 26.06.2003 were different parts classifiable under different CTHs whereas the goods under import were the complete equipment of headend classifiable under CTH 85438999 and the goods were also declared undervalued, as discussed above. Brigadier R Deshpande (Retd.), Vice President, Technical of the importer had admitted his awareness in his statement dated 10.07.2003 that software was embedded in the machine.

He in connivance with the supplier of goods fabricated document by splitting the values between the goods imported and the other services rendered by the supplier in connection with the imported goods and as such, I find that the declaration of the Noticee(s) was false in material particular. In view of above, I hold both the Noticee(s) are liable to penalty under Section 114AA of the Customs Act, 1962.” The Principal Commissioner of Customs (Import) then redetermined the value of all the goods imported under said Bill of Entry as under:-

“(a)… …The value of all the goods imported under the said B/E taken together is redetermined under Rule 9(1)(e) of the said Rules as US $ 361633 CIF and consequently after loading 1% towards landing charges and applying the relevant exchange rate, the assessable value is determined as Rs.1,72,03,243/-(Rupees One Crore Seventy Two Lakhs Three Thousand Two Hundred and Forty Three Only) for the purpose of Section 14 of the Customs Act, 1962 read with Rule 9(1)(e) of the Customs Valuation (Determination of Price of Imported Goods), Rules, 1988.

(b) The classification of all the components imported under the B/E No.260085 dated 26.06.2003 taken together is determined under CTH 85438999 of the Customs Tariff Act, 1975.

(c) The provisional assessment made in respect of B/E No.260085 dated 26.06.2003 is finalized under Section 18 of the Customs Act, on the basis of revised assessable value and classification as ordered above. Consequently, demand for differential duty amounting to Rs.54,19,475/- is confirmed. I order that the amount of Rs.54,19,475/- deposited at the time provisional release of the goods be appropriated towards the differential duty.

(d) The goods imported under B/E No.260085 dated 26.06.2003, which were provisionally released on execution of P.O. bond for Rs.1,72,03,242/-, are confiscated under Section 111(m) of the Customs Act, 1962. Since the goods are already released to the party, they are ordered to pay redemption fine of Rs.10,00,000/- (Rupees Ten Lakhs only) under Section 125 of the Customs Act, 1962 in lieu of confiscation thereof.” The Order dated 29.12.2015 proceeded to impose penalty as under:-

“(e) I impose a penalty of Rs.15,00,000/- (Rupees Fifteen Lakhs only) on M/s. Indusind Media & Communication Ltd., Mumbai under Section 112(a) of the Customs Act, 1962.

(f) I impose penalty of Rs.15,00,000/- (Rupees Fifteen Lakhs only) on M/s. Indusind Media & Communication Ltd., Mumbai under Section 114AA of the Customs Act, 1962.

(g) I impose a penalty of Rs.3,00,000/- (Rupees Three Lakhs only) on Brigadier R. Deshpande (Retd.), Vice President, Technical of M/s. Indusind Media & Communication Ltd., Mumbai under Section 112(a) of the Customs Act, 1962.

(h) I impose a penalty of Rs.2,00,000/- (Rupees Two Lakhs only) on Brigadier R. Deshpande (Retd.), Vice President, Technical of M/s. Indusind Media & Communication Ltd., Mumbai under Section 114AA of the Customs Act, 1962.

(i) The redemption fine and penalties may be recovered by enforcing the Bank Guarantee executed at the time of provisional release of goods.”

5. The appellant, being aggrieved, filed Customs Appeal Nos.51769- 51770 of 2016 before the Tribunal. It was submitted that there was no undervaluation of the goods; that the department had incorrectly included the amount towards software and post import services; and that Note 4 to Section XVI of the First Schedule to Customs Tariff Act, 1975 (“the Act’, for short) had no application in the matter. It was alternatively submitted that the goods in question merited classification under Central Excise Tariff Heading (CETH) 8525 2019 as “transmission apparatus” and not under 8543 as contended by the Department.

In response, it was submitted on behalf of the Department that out of 19 items indicated in the Bill of Entry, only 8 items were physically presented, as several cards were already assembled in the main unit; that the appellant had not given proper description in the Bill of Entry and the goods imported were complete ‘Head End’ and not parts; that the charges covered by the relevant invoice amounting to US $ 1,00,019 were rightly included since they pertained to charges where the software covered by the invoice was already embedded in the equipment and that the goods were rightly classified under 8543.

6. After hearing rival submissions, following issues were framed by the Tribunal for consideration:-

“1. First is the classification of the imported goods – whether 8543 as ordered by the adjudicated authority or 8525 as claimed by the appellant.

2. Second issue is of valuation – whether the value of software already embedded in the equipment as well as service charges are required to be included in the assessable value.”

7. The Tribunal relied upon Note 4 to Section XVI and found that though different equipments were ordered, they were meant to be interconnected in such a way as to perform a common clearly defined function which was to be ‘Head End’. However, according to the Tribunal, the goods would actually be covered by heading 8525 and not by heading 8543. For arriving at such conclusion, reliance was placed on the decisions in SET India Pvt. Ltd. vs. Commissioner of Customs, Cochin2 and Commissioner of Customs vs. Multi Screen Media Private Limited3. While considering the issue regarding valuation, the purchase order was relied upon, according to which, apart from supply of equipment, necessary software had to be embedded in the equipment before the supply was effected. Relying on Sub-Rule (iii) of Rule 10 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 (for short, ‘the 2007 Rules’) it was observed that since the software was already incorporated in the imported goods, the value of the same was required to be added to the transaction value.

It was concluded:-

“19. In view of the mis-declaration established in respect of valuation, the imported goods will be liable for confiscation under section 111 of the Customs Act and the appellant will also be liable for penalty.” In the premises, by Order under appeal, the matter was remanded to the adjudicating authority only for the purpose of recomputing the differential duty in the light of its conclusion that the classification of imported goods was to be under heading 8525 and not under heading 8543.

8. In this appeal, it has principally been submitted:-

“A. The Imported Goods have been correctly classified by the Appellant.

a. The following major components were imported by the Appellant from Tandberg:

1. Multiplexers

2. Satellite receivers

3. Test and measurement

b. The following are the major components imported from other supplier by the Appellant:

i. CAM Modules – Aston and Nagravision

ii. Encoders

iii Power Vu receivers – Scientific Atlanta iv. Integrated receiver De-coder’s (IRD’s) – Purchased from the channels directly

v. Encryption System – Nagravision

c. The Head End is the physical location in your area where the television signal is received by the provider, stored, processed and transmitted to their local customers (subscribters).

d. Undisputedly the Appellant being a Multi System Operator (“MSO”) i.e. a cable network operator, receives encoded and scrambled signals from Network Broadcasters. The major function of a Head End is to decode and unscramble, the encoded and scrambled signals received from the Broadcasters. Such function admittedly could not be achieved without Encoders, IRD’s, Power Vu Receivers and Encryption System which were imported by the Appellant from other suppliers.

e. Without these equipments working in conjunction network, the encoded and scrambled signals from Broadcasters could not be received at the Head End (“Power Vu Receivers”) and neither can they be decoded (Encoders and IRD’s) or unscrambled (“Encryption System”) and thereafter could not be broadcasted to the recipient/subscribers. Therefore, the intended function of a Head End could not be achieved without Encoders, IRD’s, Power Vu Receivers and Encryption System. These equipments admittedly were not part of the imported consignment under dispute. Admittedly these equipment’s were imported separately from other suppliers.

f. Therefore, it can be concluded that the imported consignment does not constitute a complete Head End and that each component is to be classified under the relevant Chapter Heading.” and following principal question has been raised:- “A. Whether the CESTAT has erred in failing to consider the primary submission of the Appellant, that the 19 different items imported by the Appellant under the Bill of Entry No.2660085 dated 26.06.2003 (‘BOE’) even if taken together do not form one co posite ‘Head-end’ and that each item has an individual function, and each item is to be classified under the Chapter Heading it falls mainly CTH 85175010, CTH 85281299, CTH 85438910, CTH 84717010 and CTH 85249112.”

9. Appearing in support of the appeal, Mr. Tarun Gulati, learned Senior Advocate, also submitted:-

a) The imports and Bill of Entry in the instant case were of the year 2003 and 2007 Rules would not apply.

b) Certain activities like engaging the services for appropriate software etc. as a result of which cards were embedded in items of import, were essentially post import activities and could not be taken into account for the purposes of valuation.

10. Mr. Aman Lekhi, learned Additional Solicitor General appearing for the respondent refuted all the contentions of the appellant and submitted that:-

a) Though the invoices in the case did mention individual items, the dominant intent had to be seen whether the intended user was of individual items or they were supposed to be used collectively as part of one apparatus, in which event Note 4 to Section XVI would provide guidance.

b) Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rule, 1988 (“the 1988 Rules”, for short) being almost identical to Rule 10 of 2007 Rules, the reliance was not misplaced.

c) In any case, Rule 10 of 2007 Rules which seeks to explain certain matters is clarificatory in nature and the meaning would be consistent with Rule 9 of 1988 Rules.

d) The submission that there were post-import charges which were getting included in the valuation was incorrect and what was found as a fact was that all those software cards were embedded in various parts when the import had taken place.

11. It must be stated that the finding of the Tribunal that the imported goods would be classifiable under Tariff Item 8525 and not under 8543, has not been challenged by the respondent. Thus, insofar as issue of classification is concerned, the question is whether the items imported ought to be considered individually or whether the treatment given by the Department, with the aid of Note 4 to Section XVI was correct.

Note 4 appears in Section XVI of the First Schedule to the Act. Said Section XVI has the heading:- “Section XVI- Machinery and mechanical appliances; electrical equipment; parts thereof; sound records and reproducers, television image and sound recorders and reproducers; and parts and accessories of such articles” Note 4 of Said Section XVI is to the following effect:-

“4. Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or Chapter 85, then the whole falls to be classified in the heading appropriate to that function.” Tariff Item 8525 appearing in Chapter 85 is as under:- “Transmission apparatus for radio-telephony, radio-telegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television, cameras; still image video cameras and other video camera recorders; digital cameras.”

12. The Appellant is right in its submission that since the Bill of Entry in the present case was of the year 2003, 2007 Rules would not apply and that the appropriate Rules would be 1988 Rules. Rule 9 of 1988 Rules was set out by this Court in Commissioner of Customs (Port), Chennai v. Toyota Kirloskar Motors P. Ltd.4, while considering the issue whether technical assistance fees in terms of Article 4 of the Agreement between the parties had any direct nexus with importation of goods.

It was observed:-

“25. The Central Government in exercise of its power conferred upon it under Section 156 of the Act, made rules known as “the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988”. Rule 3 provides for determination of the method of valuation, stating:

“3. Determination of the method of valuation.- For the purpose of these Rules,- (i) the value of imported goods shall be the transaction value;

(ii) if the value cannot be determined under the provisions of clause (i) above, the value shall be determined by proceeding sequentially through Rules 5 to 8 of these Rules.”

26. How the transaction value would be determined has been laid down in Rule 4 of the Rules, stating that the same shall be the price actually paid or payable for the goods when sold for export to India adjusted in accordance with the provisions of Rule 9 of the said Rules. Rule 9 of the Rules provides for determination of transaction value, stating:

“9. Cost and services.-

(1) In determining the transaction value, there shall be added to the price actually paid or payable for the imported goods, –

(a) the following cost and services, to the extent they are incurred by the buyer but are not included in the price actually paid or payable for the imported goods, namely-

(i) commissions and brokerage, except buying commissions; (ii) the cost of containers which are treated as being one for customs purposes with the goods in question;

(iii) the cost of packing whether for labour or materials;

(b) the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of imported goods, to the extent that such value has not been included in the price actually paid or payable, namely-

(i) materials, components, parts and similar items incorporated in the imported goods;

(ii) tools, dies, moulds and similar items used in the production of the imported goods;

(iii) materials consumed in the production of the imported goods;

(iv) engineering, development, art work, design work, and plans and sketches undertaken elsewhere than in India and necessary for the production of the imported goods;

(c) royalties and licence fees related to the imported goods that the buyer is required to pay, directly or indirectly, as a condition of the sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable;

(d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues, directly or indirectly, to the seller; (e) all other payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy an obligation of the seller to the extent that such payments are not included in the price actually paid or payable.”

27. The issue before us is no longer res integra in view of the decision of this Court in Commr. of Customs (Port) v. J.K. Corpn. Ltd. wherein it is stated: (SCC para 9)

“9. The basic principle of levy of customs duty, in view of the aforementioned provisions, is that the value of the imported goods has to be determined at the time and place of importation. The value to be determined for the imported goods would be the payment required to be made as a condition of sale. Assessment of customs duty must have a direct nexus with the value of goods which was payable at the time of importation.

If any amount is to be paid after the importation of the goods is complete, inter alia, by way of transfer of licence or technical know-how for the purpose of setting up of a plant from the machinery imported or running thereof, the same would not be computed for the said purpose. Any amount paid for postimportation service or activity, would not, therefore, come within the purview of determination of assessable value of the imported goods so as to enable the authorities to levy customs duty or otherwise. The Rules have been framed for the purpose of carrying out the provisions of the Act. The wordings of Sections 14 and 14(1-A) are clear and explicit. The Rules and the Act, therefore, must be construed, having regard to the basic principles of interpretation in mind.”

28. Reliance, as noticed hereinbefore, however, has been placed by the learned Additional Solicitor General on Essar Gujarat Ltd.” Thereafter, the decision of this Court in Essar Gujarat Limited5 was considered and it was observed:

“36. Therefore, law laid down in Essar Gujarat Ltd. and J.K. Corpn. Ltd. is absolutely clear and explicit. Apart from the fact that Essar Gujarat Ltd. was determined on the peculiar facts obtaining therein and furthermore having regard to the fact that the entire plant on “as-is-where-is” basis was transferred subject to transfer of patent as also services and technical know-how needed for increase in the capacity of the plant, this Court clearly held that the post-importation service charges were not to be taken into consideration for determining the transaction value.

37. The observations made by this Court in Essar Gujarat Ltd.1 in para 18 must be understood in the factual matrix involved therein. The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. Even in Essar Gujarat Ltd.1 a clear distinction has been made between the charges required to be made for preimportation and post-importation. All charges levied before the capital goods were imported were held to be considered for the purpose of computation of transaction value and not the post-importation one. The said decision, therefore, in our opinion, is not an authority for the proposition that irrespective of nature of the contract, licence fee and charges paid for technical know-how, although the same would have nothing to do with the charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value in terms of Rule 9(1)(c) of the Rules.

38. The transaction value must be relatable to import of goods which a fortiori would mean that the amounts must be payable as a condition of import. A distinction, therefore, clearly exists between an amount payable as a condition of import and an amount payable in respect of the matters governing the manufacturing activities, which may not have anything to do with the import of the capital goods.”

13. The aforesaid decision found that the Technical Assistance Fee under Article 4 had direct nexus with post importation activities and not with importation of goods. That deduction was arrived at after considering the individual facts and the scope of Article 4 which was to the following effect:-

“4. Additional assistance (a) At the licensee’s written request, the licensor may furnish the licensee with manufacturing, engineering and other know-how and information relating to the licensed products which are not readily available in the licensor’s records but which the licensor is willing to develop especially for the licensee, and which shall be furnished through such documents and assistance as designated at the discretion of the licensor from among those stipulated in Appendix D attached hereto and any other documents and assistance from time to time designated by the licensor.

(b) In the event of the preceding para (a), the licensee shall pay the licensor all fees, and all costs and expenses incurred by the licensor in developing and furnishing such know-how, information, documents and/or assistance. (c) If the assistance rendered under para (a) hereof is technical assistance or engineering assistance concerning the licensed products, such assistance will be provided in accordance with the procedures and conditions set forth in Appendix E attached hereto.” The subsequent decisions of this Court in Commissioner of Customs, Ahmedabad vs. Essar Steel Ltd.6, and in Commissioner of Customs (Import), Mumbai vs. Hindalco Industries Ltd.7 have followed the same principle that technical agreements involved in said cases pertained to post-importation activity. To similar effect was the conclusion by this Court in an earlier decision in Commissioner of Customs, New Delhi v. Prodelin India (P) Ltd.8 that technical know how fee was in respect of post-importation activities and could not be added to the value of the imported goods.

14. It is a matter of record that after considering the purchase order in the instant case, the Tribunal found that apart from supply of equipment, necessary software had to be embedded in the equipment before the supply was effected. The facts also disclose that out of 19 items indicated in the Bill of Entry, only 8 items were physically presented while the rest were already embedded in the main unit. These facts are not only reflective that the individual components were intended to contribute together and attain a clearly defined function as dealt with in Note 4 of Section XVI as stated above, but also indicate that software that was embedded through cards in the main unit, was not any post-importation activity. The value of the software and the concerned services were therefore rightly included and taken as part of the importation.

15. The facts on record as stated above further disclose that the Department was therefore right in invoking principle under said Note 4 and considering the imported items as part of one apparatus or machine to be classifiable under the heading appropriate to the function. The submission advanced by the Appellant in that behalf therefore has to be rejected.

16. Rule 9(1)(b) of 1988 Rules as quoted above in the decision in Toyota Kirloskar4, case shows that the value in respect of “materials, components, parts and similar items incorporated in the imported goods” has to be added while determining the transaction value. Said Rule 9 is almost identical to Rule 10 of 2007 Rules. Thus, even if the governing rule is taken to be Rule 9 of 1988 Rules, there would be no difference in the ultimate analysis.

17. Consequently, we do not find any merit in the present appeal. Affirming the view taken by the Tribunal, we dismiss this appeal, without any order as to costs.

J. [Uday Umesh Lalit]

J. [Vineet Saran]

New Delhi;

September 27, 2019


1 Paras 16 and 17 of the Order dated 29.12.2015

2 2003 (152) ELT 190 (Tribunal – Mumbai)

3 2015 (322) ELT 421 (SC) = (2015) 16 SCC 263

4 2007 (213) ELT 4 (SC) = (2007) 5 SCC 371

5 (1997) 9 SCC 738

6 2015 (319) ELT 202 = (2015) 8 SCC 175

7 (2015) 320 ELT 42 (SC) = (2015) 14 SCC 750

8 2006 (202) ELT A130 = (2006) 10 SCC 280