Digital Evidence and the Indian Evidence Act 1872 – Rakshit Sharma

Digital Evidence and the Indian Evidence Act 1872: Exploring the Challenges and Adaptations Needed in the Indian Legal System to Handle Digital Evidence in the Context of the Indian Evidence Act

Abstract

How evidence is gathered, presented, and decided upon in court has been revolutionised by the rise of digital technology. The Indian Evidence Act of 1872 is a cornerstone of Indian law, but it is being tested in the modern era by the complexities of digital evidence. This study examines how the Indian Evidence Act interacts with digital evidence in an effort to gauge the law’s flexibility in the face of rapid technological change.

This paper provides a classification system for digital evidence and highlights its many varieties, such as emails, social media posts, and surveillance footage. The difficulties of using digital evidence are carefully examined, with a focus on proving its veracity and making sure it can be admitted in court under the Indian Evidence Act.

A close reading of the Indian Evidence Act reveals that certain passages need to be interpreted in a nuanced manner or possibly amended to make room for electronic proof. Evidence gathering and the use of expert witnesses are two topics that receive extra focus.

This study analyses the significance of digital evidence in Indian legal proceedings and provides case studies to back up their claims. It analyses how the Indian Evidence Act has been used in these cases and what that tells us about the Act’s efficacy and shortcomings.

In addition, the research provides a comparative analysis, making connections to methods used by other legal systems to properly manage digital evidence. It finds model procedures that could be incorporated into Indian law.

The paper concludes by stressing the changing nature of digital evidence and the ongoing need for reform in India’s judicial system. Possible changes and ways to incorporate new technologies into gathering and presenting evidence are outlined.

The purpose of this paper is to add to the discussion about updating India’s legal system to keep up with technological developments by examining the complementary nature of digital evidence and the Indian Evidence Act.

Definition and Classification of Digital Evidence

Definition of Digital Evidence:

The term “digital evidence” is used to describe any digital data or information that can be used as proof in a court of law. All sorts of electronic gadgets, computers, networks, and online resources all hold this evidence. It includes any digital information that could be used in an investigation or court case, such as documents, emails, images, videos, logs, metadata, and more. (Shardul Amarchand Mangaldas & CO, 2009)

Classification of Digital Evidence

Based on its origin and purpose, digital evidence can be broken down into several distinct types. Common groups are described below:

1. Documentary Evidence: Word processing files, Portable Document Format (PDF) files, spreadsheets, and presentations are all included here. Contracts, agreements, and other forms of written communication often require supporting documentation.

2. Communications Evidence: The term “digital communications” is used to describe all forms of electronic correspondence, such as emails, IMs, texts, and discussions on social media. Conversation, intent, threats, and alibi can all be proven with the help of such evidence.

3. Audio and Video Evidence: When visual or auditory evidence is relevant in a case, such as in a criminal investigation, an accident reconstruction, or a legal dispute, digital audio and video recordings, such as surveillance footage, phone call recordings, or video clips, are indispensable.

4. Log Files and Metadata: Both system actions and file attributes are recorded here. Metadata (data about data) can reveal information such as the digital document’s author, creation date, and editing history; log files provide date and a timeline of events.

5. Forensic Evidence: Information recovered from digital forensics sources, such as backups, memory dumps, and deleted files, fall under this umbrella. Investigations into cases of cybercrime, data breaches, or computer abuse often require the use of forensic evidence.

6. Internet and Social Media Evidence: Cyberbullying and other forms of online harassment can be traced back to specific websites, social media profiles, search terms, and IP addresses.

7. Location and GPS Data: Evidence of movement or location can be gathered from smartphones, navigation systems, or wearable devices equipped with global positioning system (GPS) technology.

8. Financial Records: Bank records, digital wallet balances, and cryptocurrency exchanges are all examples of digital evidence that may prove crucial in cases of fraud, money laundering, or financial disputes.

9. Device and Network Configuration Data: In the event of a network intrusion, data breach, or unauthorised access, details about the device configurations, network settings, and system access logs may be of critical importance.

10. Machine-Generated Data: Information from sensors and automated systems also fall into this category. This is something to consider in the event of an incident involving the environment, a product, or human health.

11. Artifacts of Digital Activity: These are the digital footprints left behind by the use of various applications and services. Information such as when a file was opened and by whom is an example of such data. (Gorasiya, 2021)

Analysis of relevant sections of the Indian Evidence Act that pertain to the admissibility of evidence

Evidence in Indian courts is governed by the Indian Evidence Act of 1872, a seminal piece of legislation. Different types of admissible evidence are governed by separate provisions of the Act. (Mahawar, 2020) Here is a breakdown of some key parts:

1. Section 3: Interpretation Clause

In Section 3, the Act’s most frequently used terms are defined for readers’ convenience. Accurately interpreting and applying the Act requires familiarity with these definitions.

2. Section 5: Evidence may be given of facts in issue and relevant facts.

The admissibility of evidence to prove or disprove issues and relevant facts is established in Section 5. This is a cornerstone rule for determining what evidence can be presented in court.

3. Sections 6 to 55: Relevancy of Facts

In these paragraphs, we define relevant evidence and outline guidelines for making that determination. Relevant facts from the same transaction are also discussed.

4. Sections 56 to 58: Facts that need not be proved.

These paragraphs explain the circumstances under which it is not necessary to provide proof of certain facts because they are assumed or deemed to be true. Things that happen naturally, for instance, are examples of things that are taken as read (Section 57).

5. Sections 59 to 60: Proof of Facts by Oral Evidence

What constitutes admissible oral evidence, and why it must come from the witness themselves, are covered in detail here.

6. Sections 61 to 73: Proof of Contents of Documents

Documentary evidence is addressed in these subsections. Public documents, certified copies, and the like all have rules for how their contents can be proven in court.

7. Sections 113A and 113B: Presumption as to abetment and suicide

Abetment of suicide (Section 113A) and dowry homicide (Section 113B) both carry with them certain presumptions that are established in these sections (Section 113B). They have implications for the admissibility of evidence in cases involving these violations.

8. Section 145: Cross-Examination of a witness as to previous statements in writing

A witness’s written statements that are relevant to the case may be used in cross-examination under this section. It has implications for the validity of such testimony.

9. Sections 154 to 165: Examination of Witnesses

These paragraphs lay out the ground rules for questioning witnesses, such as whether or not they are credible and how they should be interrogated. Their testimony will only be admissible if they are properly examined.

Brief overview of the importance of digital evidence in modern legal proceedings

Digital evidence holds immense importance in modern legal proceedings, (Francis, 2022) due to several key factors:

1. Ubiquity of Digital Devices: People rely heavily on their digital devices in the modern, interconnected world. The resulting flood of digital evidence includes messages sent and received, social media posts, and more. These digital footprints are often pivotal in legal proceedings.

2. Accuracy and Reliability: When data is collected and verified in a secure manner, digital evidence can be very trustworthy. Digital records are useful for establishing facts and timelines because they are hard to alter without leaving detectable traces.

3. Efficiency and Accessibility: When compared to physical evidence, digital evidence is much simpler to archive, index, and retrieve. This expediency can aid in making sure all relevant information is easily accessible to both parties during legal proceedings.

4. Global Reach: Because it is not limited by physical location, digital evidence is particularly useful when dealing with cross-border issues. The consequences of online communication and transactions may be felt in more than one legal system.

5. Complex Investigations: Cybercrime, financial fraud, and intellectual property theft are just some examples of the crimes of the digital age. It can be difficult to find and successfully prosecute these crimes without digital evidence.

Challenges faced by Indian courts in dealing with digital evidence

Indian courts face several challenges when dealing with digital evidence in legal proceedings. These challenges arise due to the unique nature of digital evidence and the rapid advancement of technology. (Jain, 2020) Here are some key challenges:

1. Authentication and Chain of Custody: It can be difficult to verify the reliability of digital evidence. The courts have an obligation to guarantee that no changes or manipulations were made to the evidence between its collection and its presentation in court. Keeping track of the physical location of digital evidence is essential, but this can be difficult because digital evidence is often intangible and easy to replicate.

2. Technical Complexity: Technology, software, and encryption are often at the heart of digital evidence’s complexity. It is possible that judges and other legal professionals lack the requisite technical expertise to properly understand and evaluate such evidence. This makes it more challenging to determine whether or not digital evidence is relevant and trustworthy.

3. Admissibility Challenges: In 1872, before the advent of computers and smartphones, Congress passed the Indian Evidence Act. The incorporation of digital evidence into its provisions can be difficult. Whether or not digital evidence is admissible in court depends on whether or not the existing legal standards can be applied to it.

4. Privacy Concerns: Information that is digitally stored may be personal or confidential. It is always tricky to strike a balance between the need for evidence and people’s right to privacy. In order to admit relevant evidence, courts must interpret and apply privacy and data protection laws.

5. Rapid Technological Advancements: Due to the rapid development of technology, digital evidence is subject to frequent shifts in its presentation and storage medium. The courts have a responsibility to keep up with these developments so that evidence can be easily discovered and admitted in court.

6. Volume of Digital Data: The amount of data created digitally every day is mind-boggling. It can take a lot of time and effort to sift through data and pick out the evidence that actually matters. Proportionality and relevance are matters for the courts to decide.

7. Digital Forensics Expertise: Experts in digital forensics are indispensable for the collection, analysis, and presentation of digital evidence. Expert witnesses, however, may be hard to come by, and their statements may be contested in court.

8. Cross-Border Implications: Collecting and admitting digital evidence in cases with international elements can be more difficult due to cross-border data transfer and jurisdictional issues. It can be difficult to achieve consensus on legal norms among different jurisdictions.

Proposed solutions or amendments to the Indian Evidence Act to address these challenges

For the Indian legal system to effectively deal with the difficulties posed by digital evidence, the Indian Evidence Act may need to be revised. Some potential adjustments or fixes to these problems are listed below.

1. Amendment for Digital Evidence Admissibility: The Indian Evidence Act needs to be updated to include provisions governing the admissibility of digital evidence. The rules for admissibility, such as authentication, chain of custody, and applicability, should be laid out here.

2. Recognize Digital Signatures: In order to be in line with current technological norms, the Act should be updated to acknowledge and regulate digital signatures and electronic authentication methods. The use of digitally signed documents as evidence would be simplified as a result.

3. Digital Forensics Certification: Make sure that only trained professionals are in charge of gathering, storing, and presenting digital evidence in court by instituting a certification process for digital forensics experts.

4. Expert Testimony Guidelines: Create standards for how digital evidence expert testimony should be presented. This would aid the judicial and legal communities in determining whether or not the testimony of digital forensic experts is credible.

5. Preservation Standards: Preserve digital evidence according to strict rules to make sure it can be used in court without being tampered with. There needs to be systems in place to archive digital evidence safely and reliably.

6. Cross-Border Data Handling: Build a legal structure to address data transfers across borders and questions of jurisdiction. To address the challenges of gathering evidence from abroad, this may involve the creation of international agreements or guidelines.

7. Privacy Protection: Put into law safeguards to ensure the privacy of individuals whose information is included in digital evidence. Protect personal information and individual rights to privacy.

8. Electronic Records Management: Boost public and private sector efforts to adopt electronic records management systems. This would make it easier to produce electronic records in court.

Case Studies

Aarushi-Hemraj Murder Case (2013)

Digital evidence, such as text messages, phone call records, and emails, played an important role in the reconstruction of the timeline of events and establishing the involvement of the accused in the high-profile case of the double murder of Aarushi Talwar and Hemraj Ban jade. This case demonstrated the value of digital evidence in determining guilt or innocence. (Margaritoff, 2023)

Digital evidence, such as text messages, phone records, and emails, was evaluated in light of the Indian Evidence Act for admissibility. Bringing this digital evidence to court was made much easier by the Act’s provisions on the admissibility and relevance of evidence.

Digital evidence and the use of forensic experts in its collection and analysis were given legal weight by invoking the Act’s provisions on expert testimony.

Nirbhaya Gang Rape Case (2012)

Nirbhaya’s (a pseudonym) brutal gang rape and murder in Delhi sparked widespread outrage. The accused’s whereabouts on the night of the crime were traced using digital evidence such as mobile phone location data and call records. Their presence at the crime scene could not have been proven without this evidence. (Neogi, 2017)

Mobile phone call records and location data were admissible as part of the investigation thanks electronic records admissibility provisions of the Act.

The court was provided with interpretation and context for the digital evidence through the testimony of experts.

Comparison with the approaches taken by other jurisdictions or legal systems in handling digital evidence

The Indian legal system’s handling of digital evidence has room for improvement, and learning from the experiences of other jurisdictions or legal systems can help. Here’s an analogy:

United States

The Federal Rules of Evidence and the Federal Rules of Criminal Procedure both outline how digital evidence must be handled in a court of law in the United States. Electronic records are more likely to be admissible and more easily authenticated thanks to these rules. (Digital Evidence and Forensics)

The United States follows rigorous standards for the preservation and chain of custody of digital evidence to guarantee its authenticity.

Efficient identification and production of relevant digital evidence is facilitated by electronic discovery (e-discovery) procedures, which are widely used in civil litigation.

United Kingdom

The use of digital evidence in both civil and criminal proceedings is governed by a set of detailed rules and guidelines in the United Kingdom. Procedures are governed by the Civil Procedure Rules (CPR) and the Criminal Procedure Rules (CrimPR). (KOH, 2021)

The Crown Prosecution Service (CPS) in the United Kingdom has issued regulations regarding the use of digital evidence in criminal proceedings.

In order to guarantee that only competent individuals handle digital evidence, the United Kingdom has established a system for the accreditation of digital forensics experts.

European Union (EU)

Personal data, including digital evidence, are subject to stringent regulations set forth by the EU’s General Data Protection Regulation (GDPR). The ability to exchange and admit certain forms of digital evidence may be affected. (Council of the EU, 2023)

There is a wide range of legal frameworks for dealing with digital evidence across EU member states, often informed by and modelled after GDPR principles. There are countries with very strict laws regarding digital evidence, such as Germany.

The European Union has stressed the need for evidence in criminal investigations while also protecting the privacy of individuals.

Best practices that can be adopted in India

Key suggestions that can be considered for adoption in India are drawn from the best practises adopted by other jurisdictions for handling digital evidence.

1. Clear Legal Framework

Legislation should be drafted and passed that specifies how digital evidence should be handled in terms of its admissibility, authentication, and preservation.

2. Authentication Standards

Create stringent authentication standards for digital evidence, stressing the importance of demonstrating the authenticity of this evidence. Put in place secure means of verifying the identity of digital records’ originators or senders.

3. Electronic Discovery (e-Discovery) Rules

Facilitate the process of locating, preserving, collecting, and producing electronic evidence in civil litigation by implementing e-discovery rules and procedures. This can be useful for managing large amounts of digital data.

4. Digital Forensics Accreditation

Create a system to accredit and certify digital forensics professionals and labs to guarantee that only qualified individuals are processing digital evidence. The chain of custody can only be maintained if these measures are taken.

5. Data Privacy Considerations

Create rules or laws that protect people’s privacy while still allowing for the use of digital evidence, especially in cases involving sensitive information. The Personal Data Protection Bill in India, for example, might be compatible with this.

6. Interdisciplinary Training

Legal professionals, judges, and law enforcement officers would benefit greatly from training and educational programmes on digital evidence, such as digital forensics, electronic signatures, and encryption.

7. Standardized Metadata Handling

In order to make sure that digital evidence is always accompanied by full information about its source, creation, and modifications, it is important to push for standardisation in the way metadata is handled.

8. Cross-Border Collaboration

When dealing with cases that involve multiple countries, it is important to create protocols and agreements for sharing information and working together. The gathering and use of digital evidence from outside entities or jurisdictions would be facilitated by this.

9. Periodic Review and Updates

Create a system to ensure that digital evidence laws and procedures are reviewed and updated on a regular basis to reflect changes in technology and the law.

By adopting these standards, India’s judicial system will be better equipped to deal with digital evidence, uphold justice principles, and meet the challenges of the modern digital era. This would further ensure efficiency and fairness, and the safeguarding of individual rights in the use of digital evidence in the court system.

Key Findings and Insights

Several major takeaways can be gleaned from a comparison of international practises and the Indian Evidence Act’s treatment of digital evidence:

1. Adaptation Is Crucial: With its foundation in the Indian Evidence Act of 1872, the Indian legal system struggles to adapt to the nuances of digital evidence. Clearly, change is necessary to keep the legal framework applicable in the information age.

2. Authentication and Chain of Custody: Verifying the integrity and provenance of digital evidence is crucial. In order to increase public confidence in electronic records, it is crucial to establish transparent authentication standards and procedures, such as the use of digital signatures.

3. Privacy vs. Admissibility: Finding a happy medium between the admissibility of digital evidence and people’s right to privacy is difficult. Just and fair legal proceedings require legislation and guidelines that achieve this middle ground.

4. Technical Expertise Matters: Specialist knowledge in digital forensics is crucial. The gathering, storage, and presentation of digital evidence all require the assistance of trained professionals. It is recommended that these professionals obtain certification and accreditation.

5. e-Discovery in Civil Cases: Streamlining the handling of electronic evidence is a major step toward decreasing litigation costs and times by adopting e-discovery rules and procedures in civil cases.

Emphasis on the evolving nature of evidence in the digital age

One of the most important aspects of contemporary legal proceedings is the changing character of evidence in the digital age. Technology development, communication shifts, and the rise of digital interactions are the primary forces behind this development. The most salient features of this change are highlighted below:

1. Ubiquity of Digital Data: People in the information age produce massive amounts of data daily. Everything from electronic mail and text messages to social media and online purchases fall under this category. Therefore, digital data is now often the most reliable evidence.

2. Complexity of Digital Records: Digital evidence can take many shapes and sizes, including but not limited to text, images, videos, and metadata. Due to their complexity, these records must be interpreted by trained professionals before being presented in court.

3. Real-Time Communication: Legal systems need to be flexible enough to incorporate evidence from real-time communication and collaboration tools like instant messaging, video conferencing, and cloud services.

4. Digital Footprints: When people use the Internet, they leave traces of their activity behind. These traces can help establish epochs, trace routes, and prove motivation.

5. Ephemeral Nature of Data: Data stored digitally is extremely vulnerable to corruption, loss, or deletion. The evolution of evidence necessitates solving problems associated with archiving and verifying evidence.

6. New Types of Evidence: Data from IoT gadgets, wearable tech, blockchain logs, and AI-generated content are just a few examples of the novel forms of evidence made possible by today’s rapidly developing technologies. These new types of evidence call for a change in how the law is applied.

7. Privacy and Data Protection: Concerns over personal data and privacy have become increasingly complex in the digital age. The use of digital evidence in the legal system must be balanced with the need to safeguard individuals’ privacy and liberties.

Final remarks on the significance of addressing digital evidence within the framework of the Indian Evidence Act

Changing the law isn’t the only option that the Indian Evidence Act be revised to accommodate digital evidence; doing so is an absolute necessity in this day and age. The importance of this effort is immense.

1. Ensuring Justice: In a time when so much of our daily lives, business, and communication takes place online, it is essential that digital evidence be handled properly to ensure justice is served. Inadequate treatment of digital evidence may lead to wrongful convictions.

2. Relevance and Accuracy: In many cases, digital evidence can replace more time-consuming and error-prone manual procedures. The most up-to-date and trustworthy evidence can be taken into account in court with the help of the Indian Evidence Act, which is now part of the legal framework.

3. Efficiency and Fairness: By updating the Act to account for digital evidence, we can speed up the judicial system, reduce wasted time, and save money. This then helps to ensure that justice is available to all who need it.

4. Protection of Rights: It is crucial to strike a balance between the use of digital evidence and the protection of personal information and privacy. Legal protection against potential abuses of individual rights is provided by including this issue within the Act.

5. Global Compatibility: As our digital lives become more and more borderless, it will be increasingly important for cross-border cases that Indian evidence laws are in line with international standards and practises.

6. Technological Advancements: The Act can be kept up-to-date and flexible in light of the ever-changing nature of digital technology and evidence.

In conclusion, it is crucial to modernise the Indian legal system to include the handling of digital evidence within the framework of the Indian Evidence Act. For the sake of equity, fairness, and respect for people’s rights in today’s increasingly digital and interconnected society are served by making sure the legal process is prepared to deal with the complexities of the digital age.

References

Council of the EU. (2023, JUNE 27). Council adopts EU laws on better access to electronic evidence. Retrieved from www.consilium.europa.eu: https://www.consilium.europa.eu/en/press/press-releases/2023/06/27/council-adopts-eu-laws-on-better-access-to-electronic-evidence/#:~:text=Council%20adopts%20EU%20laws%20on%20better%20access%20to,…%203%20Background%20…%204%20Next%20steps%20

Digital Evidence and Forensics. (n.d.). Retrieved from National Institute of Justice: https://nij.ojp.gov/digital-evidence-and-forensics

Francis, A. (2022, JUNE 9). The Impact of Digital Forensics on Legal Proceedings. Retrieved from Lawyer-Monthly: https://www.lawyer-monthly.com/2022/05/the-impact-of-digital-forensics-on-legal-proceedings/

Gorasiya, Y. (2021, June 21). Types and Sources of Digital Evidence. Retrieved from Medium: https://medium.com/cyversity/types-and-sources-of-digital-evidence-b8fb1f64060f

Jain, K. (2020). Challenges faced by Digital Forensics. Retrieved from Legaldesire: https://legaldesire.com/challenges-faced-by-digital-forensics/

KOH, E. (2021, September 16). How 4 UK Police Forces Centralized their Digital Evidence Management. Retrieved from www.fotoware.com: https://www.fotoware.com/blog/how-4-uk-police-forces-centralized-their-digital-evidence-management

Mahawar, S. (2020, MARCH 12). Admissibility of Evidence under the Indian Evidence Act, 1872. Retrieved from IPLEADERS: https://blog.ipleaders.in/admissibility-of-evidence-under-the-indian-evidence-act-1872/

Margaritoff, M. (2023, January 11). Inside The Still-Unsolved Murder Of 13-Year-Old Aarushi Talwar. Retrieved from allthatsinteresting: https://allthatsinteresting.com/aarushi-talwar

Neogi, S. (2017, February 22). Nirbhaya Gang Rape: A Case Study. Retrieved from ipleaders: https://blog.ipleaders.in/nirbhaya-gang-rape-case-study/

Shardul Amarchand Mangaldas & CO. (2009, February 10). Digital Evidence: An Indian Perspective. Retrieved from Lexology: https://www.lexology.com/commentary/litigation/india/amarchand-mangaldas-suresh-a-shroff-co/digital-evidence-an-indian-perspective


About Author

Rakshit Sharma is a student of Amity Law School, Noida, Uttar Pradesh, India. He loves cycling. He published his first article on LawGlobal Hub in September, 2022, and became a volunteer in January, 2023.

Rakshit Sharma

Exploring the Legal Framework for Drone Tech and Unmanned Aerial Vehicles (UAVs) – Rakshit Sharma

Exploring the Legal Framework for Drone Technology and Unmanned Aerial Vehicles (UAVs)

This article is particular to India

INTRODUCTION

Drones, also referred to as unmanned aerial vehicles (UAVs), have revolutionised many industries and are becoming more ubiquitous in India. Drones offer a huge amount of promise for innovation and efficiency in a variety of applications, including aerial photography and surveillance, delivery services, and infrastructure inspections. However, the quick development and widespread use of drone technology also bring up legal issues that need to be resolved in order to assure safe, responsible, and legal operations.

India, a country that is rapidly industrialising, is aware of the need for a strong legal system to regulate drone technology. A framework like this helps to establish a balance between advancing technology and preserving personal freedoms, privacy, and the rights of the general public. We can learn a lot about the laws and policies governing drone use and deployment in India by investigating the legal environment surrounding this technology.

This article explores India’s legal framework for drone technology and unmanned aerial vehicles (UAVs), looking at the regulatory environment, important legal factors, new problems, and prospective outcomes. Stakeholders, such as drone operators, government officials, and the general public, can help to the responsible evolution and use of this disruptive technology by making decisions based on an awareness of the legal ramifications.

Overview of Drone Technology and UAVs

The creation, use, and deployment of unmanned aircraft systems, also referred to as drones or UAVs, is referred to as drone technology. Drones are aircraft that can be operated remotely or autonomously, and they can carry out a variety of activities without the need for a human pilot to be present.

UAVs come in a variety of shapes and sizes, ranging from tiny portable gadgets to enormous aeroplanes. They have sensors, cameras, and other cutting-edge technologies built into them that let them collect information, take pictures or movies, and carry out specific tasks. Based on their structure, functionality, and characteristics, drones can be divided into several different types.

Key Components of Drone Technology

1. Airframe

The drone’s physical composition, including its body, wings, and propellers. Depending on the drone’s intended application, the airframe design may change, including multi-rotor drones for vertical take-off and landing or fixed-wing drones for extended flights.

2. Propulsion System

Drones create the necessary thrust for flight using a variety of propulsion systems, including electric motors, internal combustion engines, and even jet engines.

3. Flight Control System

Drones are equipped with flight control systems that enable them to stabilize, maneuver, and navigate in the air. These systems incorporate gyroscopes, accelerometers, GPS, and other sensors to maintain stability and control the drone’s movements.

4. Sensors and Payloads

Depending on what they are used for, drones have a variety of sensors and payloads. Among them are cameras, thermal imaging sensors, multispectral sensors, LiDAR sensors, and others. These sensors can gather data that can be utilised for a variety of purposes, including aerial photography, mapping, surveillance, agricultural, and infrastructure inspections.

5. Communication Systems

Drones rely on communication networks to relay data gathered by onboard sensors or to receive commands from the operator. This may involve a number of technologies, including satellite communication, radio frequency, Wi-Fi, and cellular networks.

The Significance Of An Indian Legal Framework For Drone Technology

It is crucial that India has a legal framework in place for drone technology. Here are some major arguments in favour of the necessity of a thorough and precise legal system:

1. Safety and Security

Safety issues could arise if drones and human planes operate in the same airspace. A legal framework makes ensuring that operational rules, safety laws, and standards are in place to reduce the risk of incidents and accidents. By establishing regulations to stop drones from being used without permission and to lessen possible risks, Additionally, security issues are addressed.

2. Airspace Management

Drones must live with other aircraft, such as general aviation, helicopters, and commercial aircraft. To enable safe and effective drone operations without interfering with already-existing aviation activities, a legislative framework provides principles for controlling airspace, defining flight corridors, and creating limits or no-fly zones.

3. Privacy and Data Protection

Drones with cameras and sensors have the ability to collect enormous amounts of data, which raises privacy issues. A legal framework creates guidelines and security measures to protect people’s privacy, ensuring that drone operators follow ethical data collecting, use, and storage procedures. Concerns about monitoring and the potential abuse of data collection are also addressed.

4. Licensing and Registration

The licencing and registration of drones and their pilots is established by law. This procedure makes sure that users are qualified and have the requisite training to securely operate drones and ethically. Additionally, it gives authorities the opportunity to trace drone ownership and usage, encouraging responsibility.

5. Operational Guidelines

A legal framework offers operational standards that specify drone operation limitations, restrictions, and best practises. These recommendations address topics including airspace limits, aircraft patterns, flight altitude and distance, and adherence to local laws. Drone operators can assure safe and legal operations by following these rules.

6. Compliance and Enforcement

Regulatory agencies can implement drone laws because of a legal foundation. It gives authorities the authority to look into occurrences, issue fines for non-compliance, and take the necessary action against illegal or dangerous drone operations. This encourages accountability and discourages people from participating in unlawful or risky behaviours.

7. Industry Growth and Innovation

An environment that is supportive of the development and innovation of the drone industry is fostered by a clear and favourable legislative framework. Manufacturers, service providers, and investors as well as other industry players are given certainty and trust. A clear legal framework can encourage investment, research and development, and the creation of brand-new drone-related products and services.

Overall, a strong legislative framework in India for drone technology supports the appropriate and secure integration of drones into numerous industries while addressing issues with safety, security, privacy, and compliance. It promotes innovation, helps the drone sector expand, and makes sure that the advantages of drone technology are realised while minimising any dangers or difficulties.

DGCA Regulations for Drones and UAVs

In India, the regulatory organisation in charge of monitoring civil aviation operations and guaranteeing adherence to aviation laws is known as the Directorate General of Civil Aviation (DGCA). For the use of drones in India, the DGCA has issued particular regulations and guidelines. Here are some important rules that the DGCA has issued:

1. Civil Aviation Requirements (CAR) Section 3, Series X, Part I

The general parameters governing the operation of drones or remotely piloted aircraft systems (RPAS) in India are provided by this regulation, also known as CAR 3.1. It addresses a number of topics, including terminology, classification of drones, eligibility standards for drone operators, and basic operating circumstances.

2. Drone Registration

According to DGCA regulations, all drones flying in India must be registered with the agency, with the exception of nano drones (weighing less than 250 grammes). Each drone must have a unique identification number (UIN), and the drone operator must also have an operator permission (OP).

3. Categories of Drones

Drones have been grouped by the DGCA according to their size, function, and capabilities. Nano, micro, tiny, medium, and large drones are among the various categories. The DGCA has established distinct operational requirements and limitations for each category.

4. No-Fly Zones and Restricted Areas

Airports, military bases, and sensitive locations have all been designated as no-fly zones or restricted areas by the DGCA. In certain places, drone operations are not allowed for security reasons. To guarantee adherence to these constraints, the DGCA collaborates with other authorities and offers instructions.

5. Operational Limitations

The maximum altitude, visual line of sight (VLOS) standards, and flying range for drone flights have all been specified by the DGCA. These restrictions are meant to ensure drone activities are safe and under control while reducing the possibility of running into manned aircraft.

6. Training and Certification

Operators of drones must go through particular training and certification procedures that have been established by the DGCA. Topics covered in the course include airspace management, safety protocols, and best practises for drone operating. To prove an operator’s competence and comprehension of the regulatory framework, certification is required.

7. Payload Restrictions

The DGCA regulations place limitations on the equipment or cargo that drones are permitted to transport. Drones are not allowed to transport some objects, such as dangerous goods or machinery that jeopardises their functioning or safety.

To make sure drone operations are legitimate and safe in India, it is crucial for drone operators to get familiar with the DGCA laws and adhere to the set norms. In order to handle the changing landscape of drone technology, the DGCA continuously updates and improves the regulations based on business developments, technological improvements, and emerging requirements.

Ministry of Home Affairs (Mha) Guidelines for Drone Operations

In India, the Directorate General of Civil Aviation’s (DGCA’s) regulations are supplemented by the Ministry of Home Affairs’ (MHA’s) recommendations for drone operation (DGCA). These rules in order to avoid any potential misuse of drones and are particularly concerned with security issues.

The following are the MHA recommendations’ main points:

1. No Permission-No Take-off (NPNT)

All drones must comply with the MHA regulations by having NPNT-compliant software installed. With the use of the software based NPNT system, drones can only fly if they have received proper authorization from the DGCA’s Digital Sky Platform. This method improves airspace security by preventing unlawful drone flights.

2. Drone Operation Zones

Based on their closeness to airports, military bases, and other critical places, the MHA standards divide airspace zones into three categories. The zones are divided into:

a. Red Zone: Drone operations are highly restricted without a specific authorization in this zone, which often includes the vicinity of airports and military installations.

b. Yellow Zone: This area includes restricted drone operation zones that are close to airports and other important facilities. Before using drones in the Yellow Zone, operators must receive the relevant clearances and approvals from the local government.

c. Green Zone: Under the condition that all DGCA and MHA rules are followed, the use of drones is typically permitted in the areas included in this zone. But depending on regional factors, some limitations and requirements can still be in place.

3. Operations in Border Areas

For drone activities close to international borders, including the Line of Control (LOC), Line of Actual Control (LAC), and other sensitive areas, the MHA guidelines emphasise particular limits and clearances. In these for drone flight locations, operators must follow strict guidelines and receive the necessary permits from the relevant authorities.

4. Monitoring and Enforcement

The MHA guidelines stress the significance of monitoring and enforcement systems to guarantee adherence to the rules. They place a strong emphasis on the part played by law enforcement in keeping an eye on drone operations, doing surveillance, and taking the necessary steps in the event of any violations or shady goings-on.

5. No-Fly List

Due to security concerns, the MHA regulations maintain a list of people or organisations that are not permitted to own or operate drones. This list is regularly updated to prevent drones from being used improperly.

To ensure legal and safe drone operations in India, drone operators must follow both DGCA rules and MHA recommendations. Following these recommendations helps to ensure the general safety, security, and responsible use of drones while reducing any possible risks related to their use.

Conclusion

India has made considerable strides in its legal framework for drone technology, with the Directorate General of Civil Aviation (DGCA) taking important measures to control the use and operation of UAVs. The thorough rules and regulations offer a strong framework for protecting people’s safety, privacy, and security while maximising the use of drones.

To keep up with future technology breakthroughs and new difficulties, it will be critical to regularly assess and modify the legal system. To balance innovation and regulation effectively, regulatory agencies, industry stakeholders, and the general public must work together.

Drone technology in India has a bright future. Sectors including agriculture, healthcare, logistics, and infrastructure development could be completely transformed by drones. The full potential of this game-changing technology will be unlocked by a clear legal framework that is reinforced by strong enforcement mechanisms.

Safety, privacy, and ethical considerations must be given top priority as India enters the drone era. India can become a global leader in ethical drone operations by building a legislative climate that promotes innovation, upholds individual rights, and solves new issues.

In conclusion, understanding India’s legal framework for drone and UAV use is essential for realising the full potential of these technologies and guaranteeing its ethical and long-term incorporation into a variety of sectors. India can utilise the advantages of drones while reducing possible risks through thorough laws, rigorous enforcement, and ongoing communication, paving the road for a secure, prosperous drone ecosystem.


About Author

Rakshit Sharma is a student of Amity Law School, Noida, Uttar Pradesh, India. He loves cycling. He published his first article on LawGlobal Hub in September, 2022, and became a volunteer in January, 2023.

Rakshit Sharma

Indian Cases on Professional Misconduct

Indian Cases on Professional Misconduct

According to Darling J. in Re A Solicitor Ex parte the Law Society, [1912] 1 KB 302, professional misconduct is infamous conduct in a professional respect. However, negligence by itself is not professional misconduct. This post contains excerpts of the decisions of the Supreme Court of India in cases relating to professional misconduct.

Institute Of Chartered Accountants vs L.K. Ratna & Others (1986)

“The Disciplinary Committee is not vested by the Act with power to render any findings. It is the Council which is empowered to find whether the member is guilty of misconduct. Both s. 21(2) and s. 21(3) are clear as to that.

If on receipt of the report the Council finds that the member is not guilty of misconduct, s. 21(2) requires it to record its finding accordingly, and to direct that the proceedings shall be filed or the complaint shall be dismissed. If, on the other hand, the Council finds that the member is guilty of misconduct, s. 21(3) requires it to record a finding accordingly, and thereafter to proceed in the manner laid down in the succeeding subsections.”

“Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council considers the report submitted by the Disciplinary Committee. The report constitutes the material to be considered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee.”

“We consider it significant that the power to find and record whether a member is guilty of misconduct has been specifically entrusted by the Act to the entire Council itself and not to a few of its members who constitute the Disciplinary Committee.”

“Upon the aforesaid considerations, we are of definite opinion that a member accused of misconduct is entitled to a hearing by the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is not guilty. The High Court is, therefore, right in the view on this point.”

“Now the Council is vested with power under s. 21 to find whether the member is guilty of misconduct. There is nothing in s. 21 of the Act, however, to indicate whether the members of the Disciplinary Committee should be excluded when the Council enters upon its task. The answer must be found from the general scheme of the Act and the fundamental principles of law.”

“Before we conclude, we may refer to a third point raised before us, the point being whether the Council is obliged to give reasons for its finding that a member is guilty of misconduct. It seems to us that it is bound to do so.”

Adi Pherozshah Gandhi vs H. M. Seervai, Advocate-General Of Maharashtra, Bombay (1970)

“The Advocates Act gives special preeminence to the Attorney General and the Advocate General in disciplinary proceedings because it is not an attempt of the Disciplinary Committee to redress the grievance of an individual complainant but to find out whether there is any breach of professional standard and conduct. The high tradition, dignity and purity of the Bar is to be maintained. The Attorney General and the Advocate General are heard because they are heads of their respective Bar and the proceedings affect discipline and dignity of the Bar and touch the professional conduct of an Advocate.”

“For these reasons I am of opinion that the Advocate General of the State of Maharashtra is competent to appeal as a person aggrieved under section 37 of the Advocates Act, 1961.”

Pandurang Dattatraya Khandekar vs Bar Council Of Maharashtra (1983)

“The question is whether there was any evidence upon which the Disciplinary Committee could reasonably find that they have been guilty of ‘professional misconduct, within the meaning of Sub-section (1) of Section 35 of the Act. The test of what constitutes “grossly improper conduct in the discharge of professional duties” has been laid down in many cases. In the case of in Re A Solicitor Ex parte the Law Society, [1912] 1 KB 302. Darling, J. adopted the definition Of “infamous conduct in a professional respect” on the part of a medical man in Allinson v. General Council of Medical Education & Registration [1894] 1 QB 750 applied to professional misconduct on the part of a Solicitor, and observed :

If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General medical Council to say that he has been guilty of ‘infamous conduct in a professional respect’, The Privy Council approved of the definition in George Frier Grahams v. Attorney General, Fiji AIR [1936] PC 224 and this Court in the matter of P.An Advocate has followed the same. The narrow question that remains for consideration now is whether the finding of the Disciplinary Committee as to professional misconduct on the part of the appellant can be legally sustained.”

“Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.’, The decision was followed by the Calcutta High Court in re An Advocate ILR [1935] 62 Cal. 158 and by the Allahabad High Court in the matter of An Advocate of Agra ILR [1940] All. 386 and by this Court in the matter of P. An Advocate.”

“The test to be applied in all such cases is whether the proved misconduct of the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted, and unfit to be entrusted with the responsible duties that an advocate is called upon to perform. The Judicial Committee of the Privy Council in A, a Pleader v. The Judges of the High Court of Madras AIR [1930] PC 144 laid down that charges of professional misconduct must be clearly proved and should not be inferred from mere ground for suspicion, however reasonable, or what may be error of judgment or indiscretion.”

D.P. Chadha vs Triyugi Narain Mishra & Ors  (2000)

“The term misconduct has not been defined in the Act. However, it is an expression with a sufficiently wide meaning. In view of the prime position which the advocates occupy in the process of administration of justice and justice delivery system, the courts justifiably expect from the lawyers a high standard of professional and moral obligation in the discharge of their duties. Any act or omission on the part of a lawyer which interrupts or misdirects the sacred flow of justice or which renders a professional unworthy of right to exercise the privilege of the profession would amount to misconduct attracting the wrath of disciplinary jurisdiction.”

“In the Bar Council of Maharashtra Vs. M.V. Dabholkar (1976 (2) SCC 291), Krishna Iyer, J. said that the vital role of the lawyer depends upon his probity and professional lifestyle. The central function of the legal profession is to promote the administration of justice. As monopoly to legal profession has been statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of confidence of community in him as a vehicle of justice __ social justice.”

“Professional misconduct is grave when it consists of betraying the confidence of a client and is gravest when it is a deliberate attempt at misleading the court or an attempt at practising deception or fraud on the court. The client places his faith and fortune in the hands of the counsel for the purpose of that case; the court places its confidence in the counsel in case after case and day after day. A client dissatisfied with his counsel may change him but the same is not with the court. And so the bondage of trust between the court and the counsel admits of no breaking.”

“We are aware that a charge of misconduct is a serious matter for a practising advocate. A verdict of guilt of professional or other misconduct may result in reprimanding the advocate, suspending the advocate from practice for such period as may be deemed fit or even removing the name of the advocate from the roll of advocates which would cost the counsel his career. Therefore, an allegation of misconduct has to be proved to the hilt.”

Krishna Kanta Majhi & Ors vs State Of West Bengal & Ors (1947) LIJR-SC

Krishna Kanta Majhi & Ors vs State Of West Bengal & Ors (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

K.S. Radhakrishnan, J.

We may point out that when the matter camp up for hearing on 03.12.2013, we were not inclined to disturb the admissions made in favour of the respondents, and passed an order on the said date directing the State of West Bengal to ascertain whether the seats are available so that the petitioners could be accommodated in the subject of their choice, without disturbing the admissions already made to the respondents.

We are informed by the State counsel that it would not be possible to accommodate the petitioners, especially, in the subject of their choice, without disturbing the admissions already made to the respondents. In such circumstances, we find no reason to interfere with the judgment of the High Court. The Special Leave Petition is dismissed accordingly.


Credit: Indian Kanoon

Deepak Bhandari vs H.P.State Industrial Development Corporation Limited (1947) LIJR-SC

Deepak Bhandari vs H.P.State Industrial Development Corporation Limited (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

A.K. SIKRI, J.

1. Leave granted.

2. Present appeal raises an interesting question of law pertaining to the starting point of limitation for filing the suit for recovery by the State Financial Corporations constituted under the State Financial Corporation Act. We make it clear at the outset itself that we are not treading a virgin path. There are two judgments of this Court touching upon this very issue. At the same time it is also necessary to point out that it has become imperative to clarify the legal position contained in two judgments and to reconcile the ratio thereof as well because of the reason that they are contradictory in nature. It necessitates wider discussion in order to avoid any confusion in the manner such cases are to be dealt with.

3. With the aforesaid preliminary introduction to the subject matter of the present appeal, we now proceed to take note of the facts which have led to the question of limitation that confronts us.

4. Respondent No. 1 viz. Himachal Pradesh State Industrial Development Corporation Limited (hereinafter to be referred as ‘the Corporation’) is a financial corporation under the State Development Corporation Act (hereinafter to be referred as the Act). It is a statutory body constituted for the purpose of carrying out the objectives of the Act. It is a company incorporated under the Companies Act, 1956, engaged in the business of providing financial aid to companies for setting up and commencing operations. Respondent No. 2 (hereinafter to be referred as the ‘Company’) is the industrial concern which defaulted in repayment of the loan disbursed by the Respondent No. 1. It is now under liquidation. Respondent No. 3 is the official liquidator, who was appointed by the High Court of Delhi for the purposes of winding up the Company. Respondent Nos. 4 & 5 were the Directors of the Company at the time of entering into the loan agreements with the Corporation.

5. The appellant who was also a director of the Company, was a Guarantor for the payment of loans taken by the Company vide loan agreements executed between Corporation and the Company. The following loan agreements were executed along with the corresponding amounts and guarantees:

|Loan Agreement Date    |Amount      |Deed of Guarantee Date  |
|5.6.1985               |20.67 lacs  |5.6.1985                |
|7.4.1986               |8.73 lacs   |7.4.1986                |
|24.11.1986             |15.38 lacs  |24.11.1986              |
|28.7.1987              |7.76 lacs   |                        |
|Total                  |52.54 lacs  |                        |


6. The Company defaulted on the repayments of the loan amount disbursed to it by the Corporation. The Corporation issued a Recall Notice bearing No. PAC 84/ 90/ 6705 dated 21.5.1990 recalling an amount of Rs. 77,35,607/-(Rupees seventy seven lakhs thirty five thousand six hundred and seven only) plus further interest to be accrued from 10.9.1990.

7. The Company failed to make the repayment and accordingly the Corporation, proceeded under Section 29 of the State Financial Corporations Act, 1951 to take over the mortgaged/ hypothecated assets of the Company. The assets of the Company were taken over by the Corporation on 10.7.1992. The mortgaged/ hypothecated assets of the Company were sold by the Corporation on 31.3.1994 for a sum of Rs. 96,00,000/- (Rupees Ninety Six Lakhs only) by inviting offers by means of publishing advertisements in the leading newspapers.

8. Since the company was also indebted to HP Financial Corporation, amount realised from the sale of the company’s assets was apportioned between these two secured creditors. After adjusting the sale proceeds against the outstanding debts of the Company, in proportion to the term loans advanced by the Corporation and Himachal Pradesh Financial Corporation; a sum of Rs. 68,96,564/- (Rupees Sixty Eight Lakhs Ninety Six Thousand Five Hundred and Sixty Four only) still remained outstanding against the Company.

9. The Corporation preferred a Civil Suit No. 85 of 1995 on 26.12.1994 titled as Himachal Pradesh State Industrial Development Corporation Limited v. M/s RKB Herbals Pvt. Ltd and Ors., for recovery of sum of Rs. 30,60,732/- (Rupees Thirty Lakhs Sixty Thousand Seven Hundred and Thirty Two only). The sum above mentioned was calculated as follows by the Corporation:

|Recoverable amount on 31.5.1994                              |
|Principal Amount (Rs./-)             |5,16,582               |
|Interest                             |63,79,982              |
|Total                                |68,96,564              |
|Less Penal Interest                  |38,35,832              |
|Net Amount for which suit was filed  |30,60,732              |


10. The Civil Suit No. 85 of 1995 was decreed in favour of the Corporation vide judgment and decree dated 6.6.2008 passed by the Single Judge of the High Court of Himachal Pradesh, granting a decree of Rs. 30,60,732/- (Rupees Thirty Lakhs Sixty Thousand Seven Hundred and Thirty Two only) along with interest at the rate of 12% from the date of filing of suit till the realization of the said amount.

11. Before the learned Single Judge of the High Court a plea was taken by the defendants, including the appellant herein, that the suit was time barred as it was filed beyond the period of 3 years from the date of commencement of limitation period. To appreciate this plea we recapitulate some relevant dates:

|Date           |Event                                     |
|21.5.1990      |Recall notice sent by the Corporation,    |
|               |recalling the outstanding amount.         |
|10.7.1992      |Mortgage/ hypothecated assets of the      |
|               |Company taken over by the Corporation.    |
|31.3.1994      |The Mortgage/ hypothecated assets of the  |
|               |Company sold by the Corporation.          |
|21.5.1994      |Notice issued to all the three Directors  |
|               |of the Company for payment of outstanding |
|               |amount.                                   |
|26.12.1994     |Suit for recovery of the balance          |
|               |outstanding filed by the Corporation.     |


12. As per the defendants cause of action for filing the recovery suit arose on 21.5.1990 when recall notice was issued by the Corporation to the Company and the Guarantors. Therefore, the suit was to be filed within a period of 3 years from the said date and calculated in this manner, last date for filing the suit was 20.5.1993. It was, thus, pleaded that the suit filed on 26.12.1994 was beyond the period of 3 years from 21.5.1990 and, therefore, the same was time barred. The Corporation, on the other hand, contended that action for selling the mortgage/ hypothecated properties of the Company was taken under the provisions of Section 29 of the Act and the sale of these assets were fructified on 21.3.1994. It is on the realization of sale proceeds only, the balance amount payable by the guarantors could be ascertained. Therefore, the starting point for counting the limitation period is 31.3.1994 and the suit filed by the Corporation on 26.12.1996 was well within the period of limitation.

13. The learned Single Judge deciding in favour of the Corporation, held the suit to be well within limitation. The suit was decreed against all the defendants including the appellant herein, holding them to be jointly and severely liable to pay the decretal amount. The appellant herein preferred an intra court appeal against the judgment and decree dated 6.6.2008. The Division Bench has also negatived the contention of the appellant affirming the finding of the single Judge and holding the suit to be within limitation.

14. We have already taken note of the stand of the parties on either side. It is apparent from the above that the main issue is as to whether the limitation for filing the suit would start on 21.5.1990, when the notice of recall was issued or the starting point would be 31.3.1994, when the assets of the Company were sold and the balance amount payable (for which suit is filed) was ascertained on that date. We have already pointed out in the beginning that there are two judgments of this Court which have dealt with the aforesaid issue. First judgment is known as Maharashtra State Financial Corporation v. Ashok K. Agarwal & Ors. 2006 (9) SCC 617. In that case the appellant Maharashtra State Financial Corporation had sanctioned Rs. 5 lakhs in favour of a Company. The Respondents were directors of the said borrower company and stood sureties for the loan. When the company failed to repay the loan, a notice dated 8.3.1983 was issued calling upon the borrower to repay its due. On 25.10.1983, an application under Ss. 31 and 32 of the State Financial Corporations Act, 1951 was filed by the Corporation. On 11.6.1990 the attached properties of the borrower company were put to sale. There was a shortfall in the amount realised and hence notices dated 27.1.1991 were sent to respondent sureties claiming Rs. 16,79,033 together with interest at the rate of 14.5.% p.a. On 2.1.1992 the appellant Corporation filed an application under Section 31(1)(aa) of the Act for recovery of the said balance amount. The respondent took various objections including that of limitation, contending that Article 137 of the Limitation Act was applicable and not Article 136. According to the respondents, Article 137 of the Limitation Act was applicable and as per that provision such an application could be made within a period of three years. Article 137 applies in cases where no period of limitation is specifically prescribed. It was submitted that as no period of limitation is prescribed for an application under Sections 31 and 32 of the Act, Article 137 would apply. The additional District Judge upheld the contention of the respondents and the application of the Corporation was dismissed as barred by limitation. The appellant Corporation filed an appeal against the said order in the High Court of Judicature at Bombay, Bench at Panaji. The appeal was dismissed by the High Court by the impugned order dated 22.7.1998. The High Court upheld the reasoning of the Additional District Judge. This Court affirmed the order of the High Court holding that Article 137 of the Limitation Act would apply and the suit was to be filed within a period of three years. Contention of the Financial Corporation predicating its case on Article 136 of the Limitation Act on the ground that application under Section 138 was in the nature of execution proceedings and, therefore, period of 12 years for execution of the decrees is available to the Financial Corporation, was repelled by the Court. The Court categorically held that Section 31 of the Act only contains a legal fiction and at best refer to the procedure to be followed, but that would not mean that there is a decree or order of a Civil Court, stricto sensu, which is to be executed, in as much as there is no decree or order of the Civil Court being executed.

15. From the reading of the aforesaid judgment, one thing is clear. The Court was concerned with the proceedings under Section 31 of the Act and the issue was as to whether limitation period would be 3 years as per Article 137 of the Limitation Act or it would be 12 years as provided under Article 136 of the Limitation Act. While dealing with that issue the Court, in the process also dealt with the nature of proceedings under Section 31 of the Act namely whether this would be in the nature of a suit or execution of decree. The Court answered by holding that for such proceedings Article 137 of the Limitation Act would apply meaning thereby, period of limitation is 3 years. From the reading of this judgment, it becomes abundantly clear that the issue to which would be the starting date for counting the period of limitation, was neither raised or dealt with. Obviously, therefore, there is no discussion or decision on this aspect in the said judgment.

16. We would like to refer to the law laid down by this Court in Oriental Insurance Co. Ltd. vs. Smt. Raj Kumari and Ors.; 2007 (13) SCALE 113. In the said case, well known proposition, namely, it is ratio of a case which is applicable and not what logically flows therefrom is enunciated in a lucid manner. We would like to quote the following observations therefrom:-

10. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates – (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct,” or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an, authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent.(See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (1970) ILLJ 662 SC and Union of India and Ors.v. Dhanwanti Devi and Ors. (1996) 6 SCC 44. A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathern (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.

11.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd.v. Horton 1951 AC 737 Lord Mac Dermot observed: The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.

The aforesaid principle was reiterated in Government of Karnataka and Ors. vs. Smt. Gowramma and Ors. 2007 (14) SCALE 613, wherein, the Court observed as under:-

“10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. vs. Horton 1951 AC 737, Lord Mac Dermot observed: The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.”

17. Other case of this Court, which is relied upon by the High Court as well, is the decision dated 18.12.2003 in C.A. No. 1971 of 1998 titled as HP Financial Corporation v. Pawana & Ors. In that case recall notice was given to the defaulting Company on 4.1.1977; possession of mortgage/ hypothecated assets of the Company was taken over on 25.10.1982 in exercise of powers under Section 29 of the Act; these assets were sold on 29.3.1984 and 14.3.1985; notice for payment of balance amount was issued to the guarantors on 22.5.1985 and suit for recovery of the balance amount was filed on 15.9.1985.

18. A single Judge of the Himachal Pradesh High Court held that the period of limitation for such a suit started after the sale and when balance was found due and, therefore, suit was within the period of limitation. However, when the suit reached hearing before another Judge of the High Court he disagreed with the earlier view and referred the matter to a larger Bench. The Division Bench of the High Court answered the question by holding that the suit for balance amount was filed as a result of the non- payment of debt by the principle debtor which was the date when cause of action arose. Therefore, the suit should have been filed within 3 years from the date of recall notice. The suit was, thus, dismissed as time barred. This Court reversed the judgment of the High Court. While doing so, it referred to clause 7 of the mortgage deed which was to the following effect:

“Without prejudice to the above rights and powers conferred on the Corporation by these presents and by Section 29 and 30 of the State Financial Corporations Act, 1951, and as amended in 1956 and 1972 and the special remedies available to the Corporation under the said Act, it is hereby further agreed and declared that if the partners of the industrial concern fail to pay the said principal sum with interest and other moneys due from him under these rpesents, to the Corporation in the manner agreed, the Corporation shall be entitled to realise tis dues by sale of the mortgaged properties, the said fixtures and fittings and other assets, and if the sale proceeds thereof are insufficient to satisfy the dues of the Corporation, to recover the balance from the partners of the industrial concern and the other properties owned by them though not included in this security.” (emphasis supplied).

19. On the basis of the aforesaid clause the Court found fault with the approach of the High Court in as much as clause 7 specifically provided that the Corporation could filed recovery proceedings against the partners of the Industrial concern if the sale proceeds of the assets of the industrial concern were insufficient to satisfy the dues of the Corporation.

20. Mr. Dhruv Mehta, learned Senior Counsel appearing for the appellant tried to distinguish this judgment by vehemently arguing that the aforesaid case was based on interpretation of clause 7 of the mortgage deed which was executed between the parties and in the present case such a clause is conspicuously absent. Had the judgment of this Court rested solely on clause 7 of the mortgage deed, the aforesaid argument of Mr. Dhruv Mehta would have been of some credence. However, we find that the Court also specifically discussed the issue as to when right to sue on the indemnity would arise and specific answer given to this question was that it would be only after the assets were sold of. The judgment was also rested on another pertinent aspect viz. since the mortgage deed was executed, the period of limitation would be 12 years if a mortgage suit was to be filed. Following discussion in the said judgment on this aspect squarely answers the contention of the learned Senior Counsel for the appellant:

“Whilst considering the question of limitation the Division Bench has given a very lengthy judgment running into approximately 50 pages. However they appear to have not noticed the fact that under Clause 7 an indemnity had been given. Therefore, the premise on which the judgment proceeds i.e. that the loan transaction and the mortgage deed, are one composite transaction which was inseparable is entirely erroneous. It is settled law that a contract of indemnity and/ or guarantee is an independent and separate contract from the main contract. Thus the question which they required to address themselves, which unfortunately they did not, was when does the right to sue on the indemnity arose. In our view, there can be only one answer to this question. The right to sue on the contract of indemnity arose only after the assets were sold off. It is only at that stage that the balance due became ascertained. It is at that stage only that a suit for recovery of the balance could have been filed. Merely because the Corporation acted under Section 29 of the Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that on the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient.

In this case, it is an admitted position that the sale took place on 28.1.1984 and 14.3.1985. it is only after this date that the question of right to sue on the indemnity (contained in Clause 7) arose. The suit having been filed on 15.9.1985 was well within limitation. Therefore, it was erroneous to hold that the suit was barred by the law of limitation.

Even otherwise, it must be mentioned that the Division Bench was in error in stating that the right to personally recover the balance terminates after the expiry of three years. It must be remembered that the question of recovery of balance will only arise after the remedy in respect of the mortgage deed has first been exhaustive. If a mortgage suit was to be filed, the period of limitation would be 12 years. Of course, in such a suit, a prayer can also be made for a personal decree on the sale proceeds being insufficient. Even though such prayer may be made, the suit remains a mortgage suit. Therefore, the period of limitation in such cases will remain 12 years”. [Emphasis Supplied]

21. We thus, hold that when the Corporation takes steps for recovery of the amount by resorting to the provisions of Section 29 of the Act, the limitation period for recovery of the balance amount would start only after adjusting the proceeds from the sale of assets of the industrial concern. As the Corporation would be in a position to know as to whether there is a shortfall or there is excess amount realised, only after the sale of the mortgage/ hypothecated assets. This is clear from the language of sub-Section (1) of Section 29 which makes the position abundantly clear and is quoted below:

“Where nay industrial concern, which is under a liability to the Financial Corporation under an agreement, makes any default in repayment of any loan or advance or any installment thereof or in meeting its obligations in relation to any guarantee given by the Corporation or otherwise fails to comply with the terms of its agreement with the Financial Corporation, the Financial Corporation shall have the right to take over the management or possession or both of the industrial concern, as well as the right to transfer by way of lease or sale and realise the property pledged, mortgaged, hypothecated or assigned to the Financial Corporation.”

22. It is thus clear that merely because the Corporation acted under Section 29 of the State Financial Corporation Act did not mean that the contract of indemnity came to an end. Section 29 merely enabled the Corporation to take possession and sell the assets for recovery of the dues under the main contract. It may be that only the Corporation taking action under Section 29 and on their taking possession they became deemed owners. The mortgage may have come to an end, but the contract of indemnity, which was an independent contract, did not. The right to claim for the balance arose, under the contract of indemnity, only when the sale proceeds were found to be insufficient. The right to sue on the contract of indemnity arose after the assets were sold. The present case would fall under Article 55 of the Limitation Act, 1963 which corresponds to old Articles 115 and 116 of the old Limitation Act, 1908. The right to sue on a contract of indemnity/ guarantee would arise when the contract is broken.

23. Therefore, the period of limitation is to be counted from the date when the assets of the Company were sold and not when the recall notice was given.

24. The up-shot of the aforesaid discussion is to hold that the present appeal is bereft of any merits. Upholding the judgment of the High Court, we dismiss the instant appeal, with costs.


Credit: Indian Kanoon

Biswanath Bhattacharya vs Union Of India & Ors (1947) LIJR-SC

Biswanath Bhattacharya vs Union Of India & Ors (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

Chelameswar, J.

1. Leave granted.

2. These two appeals are preferred against the final judgment dated 9th August 2007 passed by the Calcutta High Court in FMA No.206 of 2003 and order dated 30th August 2007 in Review Application bearing RVW No.2372 of 2007 dismissing the said review application filed by the appellant herein.

3. The facts leading to the instant litigation are as follows:

4. The appellant was initially detained by order dated 19.12.1974 under the provisions of the Maintenance of Internal Security Act, 1971 (since repealed) and later under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the “COFEPOSA”) on the ground that he in collaboration with his brother, who was living in London at that point of time, was indulging in activities which are prejudicial to the conservation of foreign exchange. The appellant unsuccessfully challenged the detention order. He was eventually released in 1977.

5. While he was in custody, the second respondent issued a notice dated 4th March 1977 under section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forefeiture of Property) Act, 1976 (hereinafter referred to as “the Act”) calling upon the appellant to explain the sources of his income out of which he had acquired the assets described in the schedule to the notice. Some correspondence ensued between the second respondent on one hand and the wife of the appellant and the appellant on the other hand, the details of which may not be necessary for the time being.

6. Eventually on 27th November 1989, the second respondent passed an order under section 7(1) of the Act forfeiting the properties mentioned in the schedule to the said order.

7. Aggrieved by the said order, an appeal was carried to the Appellate Tribunal constituted under section 12 of the Act. The appeal was partly allowed setting aside the forfeiture of two items of the properties.

8. Not satisfied with the Appellate Authority’s conclusion, the appellant challenged the same in writ petition No. C.O. No.10543 (W) of 1991 before the High Court of Calcutta. In the said writ petition, the appellant also prayed for two declarations – (1) that the Act is illegal and ultra vires the Constitution and (2) that the detention of the appellant under the COFEPOSA by the order dated 19th December 1974 was illegal and void – a collateral and second round of attack.

9. Learned Single Judge of the Calcutta High Court by an order dated 10th May 2002 partly allowed the writ petition holding that the forfeiture of the property by the second respondent as confirmed by the Appellate Tribunal was illegal on the ground that the notice under section 6(1) of the Act dated 4th March 1977 was not in accordance with the law as the notice did not contain the reasons which constituted the basis for the belief of the competent authority that the appellant illegally acquired the scheduled properties.

10. Aggrieved by the order of the learned Single Judge, the respondents herein carried the matter in appeal to the Division Bench. By the judgment under appeal, the appeal was allowed.

11. It appears from the judgment under appeal that though the appellant sought a declaration that the Act (SAFEMA) is unconstitutional, such a plea was not pressed before the learned Single Judge.[1]

12. Before us, the appellant made three submissions – (1) that the notice issued under Section 6 of the Act is defective and therefore illegal as the notice did not contain the reasons which made the competent authority believe that the notice scheduled properties are illegally acquired properties. In other words, the reasons were not communicated to the appellant; (2) that the forfeiture, such as the one provided under the Act, is violative of Article 20 of the Constitution of India; and (3) in the alternative, it is argued – that the High Court failed to consider the question whether the decision of the competent authority as confirmed by the appellate authority is sustainable and therefore, the matter is required to be remitted to the High Court for an appropriate consideration of the legality of order of forfeiture.

13. Regarding the non communication of the reasons, the judgment under appeal recorded as follows:

“The matter may be looked into from another angle. In 1976 he was under detention. His wife replied to the said notice without complaining of non-supply of reasoning. After his release the respondent No.1 gave a further rejoinder by adopting what had been said by his wife. The authority did not proceed against him until he was served with the reasoning in 1988. The respondent No.1 was also afforded opportunity to deal with the reasonings in his rejoinder. The competent authority after affording him opportunity of hearing passed a detailed reasoned order. He preferred an appeal. The appeal was allowed in part that too by a detailed reasoned order. Hence, we do not find any reason to hold that the fundamental right of the respondent No.1 was infringed.” It appears from the record that initially notice dated 4.3.1977 under Section 6(1) was issued at a point of time when the appellant was under preventive detention. Subsequently, by a communication dated 1st June, 1988, the recorded reasons for the belief which led to the issuance of notice under Section 6(1) of the Act was served on the appellant. The appellant not only filed a rejoinder to the said notice but he was also given a hearing before an order of forfeiture under Section 7 was passed.

It is in the background of the abovementioned facts we are required to consider the submission that the High Court erred in coming to the conclusion that notice under Section 6(1) did not vitiate[2] the subsequent proceedings.

14. In support of the submission, learned counsel for the appellant very heavily relied upon a judgment of this Court in Ajantha Industries and others v. Central Board of Direct Taxes and others, (1976) 1 SCC 1001. It was a case where this court had to consider the legality of the order under Section 127 transferring the ‘case’ of the Ajantha Industries.

15. Section 127 of the Income Tax Act, 1961 empowers the authorities (mentioned therein) to transfer “any case” (explained in the said section) from one Income Tax Officer to another. Further, the section stipulates that before such an order of transfer is made, two conditions are required to be complied with – (1) that the assessee must be given a reasonable opportunity to explain why his case should not be transferred; and (2) the authority transferring the case is required to record the reasons which led him to initiate the proceedings. It appears from the judgment that though first of the abovementioned two requirements was complied with, it was found that no reasons were recorded much less communicated. Dealing with the legality of such an order, this Court held that there is a requirement of not only recording the reasons for the decision to transfer the case but also such reasons are required to be communicated to the assessee.

16. Though section 127 expressly provided for recording of reasons it did not expressly provide communicating the same to the assessee. Still, this Court held that such a communication is mandatory. “10. The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even this Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is mala fide or arbitrary or that it is based on irrelevant and extraneous considerations. Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question.

11. We are clearly of opinion that the requirement of recording reasons under Section 127(1) is a mandatory direction under the law.”

17. In our view, such a conclusion must be understood in the light of the observation of the Court that there was no provision of appeal or revision under the Income Tax Act against an order of transfer. For the same reason, this Court distinguished and declined to follow an earlier judgment in S. Narayanappa v. The Commissioner of Income-tax AIR 1967 SC 523 where this Court on an interpretation of Section 34 of the Income Tax Act, 1922, opined to the contra. Section 34 provided for re-opening of the assessment with the prior sanction of the Commissioner, if the income tax officer has ‘reasons to believe’ that taxable income had been under-assessed. Dealing with the question whether the reasons which led the Commissioner to accord sanction for the initiation of proceedings under section 34 are required to be communicated to the assessee, this Court held – “There is no requirement in any of the provisions of the Act or any section laying down as a condition for the initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under S.34 must be communicated to the assessee.”

18. In Ajantha Industries case, Narayanappa’s case was distinguished on the ground – ”When an order under Section 34 is made the aggrieved assessee can agitate the matter in appeal against the assessment order, but an assessee against whom an order of transfer is made has no such remedy under the Act to question the order of transfer. Besides, the aggrieved assessee on receipt of the notice under Section 34 may even satisfy the Income-tax Offier that there were no reasons for reopening the assessment. Such an opportunity is not available to an assessee under Section 127(1) of the Act. The above decision is, therefore, clearly distinguishable.”

19. We reject the submission of the appellant for the following reasons. Firstly, there is no express statutory requirement to communicate the reasons which led to the issuance of notice under Section 6 of the Act. Secondly, the reasons, though not initially supplied alongwith the notice dated 4.3.1977, were subsequently supplied thereby enabling the appellant to effectively meet the case of the respondents. Thirdly, we are of the opinion that the case on hand is squarely covered by the ratio of Narayanappa case. The appellant could have effectively convinced the respondents by producing the appropriate material that further steps in furtherance to the notice under Section 6 need not be taken. Apart from that, an order of forfeiture is an appealable order where the correctness of the decision under Section 7 to forfeit the properties could be examined. We do not see anything in the ratio of Ajantha Industries case which lays down a universal principle that whenever a statute requires some reasons to be recorded before initiating action, the reasons must necessarily be communicated.

20. Now, we deal with the second submission. The Act enables the Government of India to forfeit “illegally acquired property” of any person to whom the Act is made applicable. The Act is made applicable to the persons specified in section 2(2)[3]. Five categories of persons are covered thereunder. Clause (a) – persons who have been convicted under various enactments referred to therein; clause (b) – persons in respect of whom an order of detention has been made under the COFEPOSA (subject to certain conditions/exceptions the details of which are not necessary for our purpose); clause (c) – persons who are relatives of persons referred to in clause (a) or clause (b). Expression “relative” is itself explained in explanation 2. Clause (d) – every associate of persons referred to in clause (a) or clause (b). Once again the expression “associate” is explained under explanation 3 to sub-section (2). Clause (e) – subsequent holders of property which at some point of time belonged to persons referred to either in clause (a) or clause (b).

21. Section 4 makes it unlawful (for any person to whom the Act applies) to hold any illegally acquired property and it further declares that such property shall be liable to be forfeited to the Central Government (following the procedure prescribed under the Act). The procedure is contained under sections 6 and 7 of the Act. Section 8 prescribes the special rule of evidence which shifts the burden of proving that any property specified in the notice under section 6 is not illegally acquired property of the noticee. Section 6 inter alia postulates that having regard to the value of the property held by any person (to whom the Act applies) and his known sources of income, if the “competent authority” (notified under section 5) has reason to believe that such properties are “illegally acquired properties”, the competent authority is authorized to call upon the holder of the property to ‘indicate’ the source of his income etc. which enabled the acquisition of such property along with necessary evidence. It also authorizes the competent authority to call upon the noticee to show cause as to why all or any of such properties mentioned in the notice should not be declared illegally acquired properties and be forfeited to the Central Government. Section 7 provides for a reasonable opportunity of being heard after the receipt of response to the notice under section 6 to the noticee and requires the competent authority to record a finding whether all or any of the properties in question are illegally acquired properties. Section 7 also provides for certain incidental matters the details of which are not necessary for the present purpose.

22. Expression “illegally acquired property” is defined in elaborate terms under the Act[4]. Broadly speaking the definition covers two types of properties:

      1)    acquired by the income or earnings; and
      2)    assets derived or obtained

from or attributable to any activity which is prohibited by or under a law in force. Such law must be a law with respect to which parliament has the power to make law. A complete analysis of the definition in all its facets may not be necessary for our purpose.

23. From the language and the scheme of the Act it does not appear that the application of the Act is limited to persons who either suffered a conviction under one of the acts specified in section 2(2)(a) the Act or detained under the COFEPOSA subsequent to the commencement of the Act in question. On the other hand, explanation 4 to section 2 expressly declares as follows:

“Explanation 4.—For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention which occurred or took place before the commencement of this Act).” Apart from that we have already taken note of the fact that there are other categories of persons to whom the Act applies.

24. The appellant happens to be a person to whom the Act applies. He was detained under the provisions of the COFEPOSA. However, such a detention was anterior to the commencement of the Act, which came into force on 25th January 1976, while the detention order was passed on 19th December 1974. It appears from the judgment under appeal that the appellant was eventually set at liberty in 1977.

25. Section 7(3) of the Act provides for forfeiture of the illegally acquired property of the persons to whom the Act is made applicable after an appropriate enquiry contemplated under Sections 6 and 7 of the Act. In other words, the Act provides for the deprivation of the (illegally acquired) property of the persons to whom the Act applies. The question which we were called upon to deal with is whether such a deprivation is consistent with Article 20[5] of the Constitution of India in the specific factual setting of the case coupled with the explanation 4 to section 2 which reads as follows:

“Explanation 4.—For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention which occurred or took place before the commencement of this Act).” The answer to the question depends upon whether such deprivation is a penalty within the meaning of the said expression occurring in Article 20.

26. Article 20 contains one of the most basic guarantees to the subjects of the Republic of India. The Article in so far as is relevant for our purpose stipulates two things:-

? That no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence; and ? That no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

27. It is a well settled principle of constitutional law that sovereign legislative bodies can make laws with retrospective operation; and can make laws whose operation is dependent upon facts or events anterior to the making of the law. However, criminal law is excepted from such general Rule, under another equally well settled principle of constitutional law, i.e. no ex post facto legislation is permissible with respect to criminal law. Article 20 contains such exception to the general authority of the sovereign legislature functioning under the Constitution to make retrospective or retroactive laws.

28. The submission of the appellant is that since the Act provides for a forfeiture of the property of the appellant on the ground that the appellant was detained under the COFEPOSA, the proposed forfeiture is nothing but a penalty within the meaning of the expression under Article 20 of the Constitution. Such an inference is inevitable in the light of the definition of “illegally acquired property” which by definition (under the Act) is property acquired either “out of” or by means “of any income, earnings …” “obtained from or attributable to any activity prohibited by or under any law …”. On the other hand, if the forfeiture contemplated by the Act is not treated as a penalty for the alleged violation of law on the part of the appellant, it would be plain confiscation of the property of the appellant by the State without any factual justification or the constitutional authority.

29. The learned counsel for the appellant further argued that the forfeiture contemplated under the Act whether based on proven guilt or suspicion of involvement in a certain specified activity prohibited by the Customs Act can only be a ‘penalty’ attracting the prohibition of Article 20 of the Constitution of India. It is submitted that under Section 53[6] of the Indian Penal Code, forfeiture of property is one of the prescribed punishments for some of the offences covered under the Indian Penal Code.

30. Learned counsel for the appellant placing reliance on R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Ltd. and Another, (1977) 4 SCC 98 submitted that a Constitution Bench of this Court also opined the expression “forfeiture” to mean “a penalty for breach of a prohibitory direction”.[7]

31. On the other hand, the learned Addl. Solicitor General appearing for the respondent submitted that the forfeiture contemplated under the Act is not a ‘penalty’ within the meaning of that expression occurring in Article 20 but only a deprivation of property of a legislatively identified class of persons – in the event of their inability to explain (to the satisfaction of the State) that they had legitimate sources of funds for the acquisition of such property. The learned Addl. Solicitor General further submitted that while in the case of that class of persons covered under Section 2(2)(a) of the Act, the forfeiture though has a remote connection with the commission of a crime and conviction; with reference to the other four classes of persons to whom the Act is made applicable under Section 2(2) (b) to (e), the forfeiture has nothing to do with any crime or conviction. Therefore, to say that the forfeiture under the Act is hit by the prohibition under Article 20 is without any basis in law. The learned Addl. Solicitor General also relied upon The State of West Bengal v. S.K. Ghosh, [AIR 1963 SC 255] and R.S. Joshi (supra) in support of his submission. Alternatively, the learned Addl. Solicitor General submitted that in view of the fact that the Act is included in the Ninth Schedule, the Act is immune from any attack on the ground that it violates any one of the fundamental rights contained in Part III of the Constitution of India, as was held by a Constitution Bench of this Court in Attorney General for India & Others v. Amratlal Prajivandas and others (1994) 5 SCC 54.

32. Lord Green in Bidie v. General Accident, Fire and Life Assurance Corporation [(1948) 2 All ER 995 at 998] said in the context of ascertaining the meaning of an expression in any statute that “Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context”.

33. Chief Justice Sikri in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another (1973) 4 SCC 225 dwelt on this subject referring to two English decisions and one American decision stating in substance that the meaning of a word occurring in a statute cannot be ascertained without examining the context and also the scheme of the Act in which the expression occurs.[8]

34. The regime of forfeiture of property contemplated under the Act is not new. At least from 1944 such a regime (though not identical but similar to the impugned one) is prevalent in this country. Two ordinances were made in 1943 and 1944, subsequently amended by another ordinance in 1945, all called Criminal Law Amendment Ordinances, which continued to be in force in this country by virtue of operation of Article 372 and some anterior laws – the details of which may not be necessary for the present purpose. Under the 1943 Ordinance, two special Tribunals were constituted to try cases allotted to them “in the first Schedule in respect of such charges of offence prescribed under the second Schedule etc.”. Essentially, such cases were cases either of charge of receipt of illegal gratification by a public servant or embezzlement of public money etc. The 1944 Ordinance provided for the attachment of the money or other property which is believed to have been procured by means of one of the above mentioned scheduled offences by the offender. Such attached property is required to be disposed of as provided under section 13 of the said Ordinance. Under Section 12 of the Ordinance, the Criminal Court trying a scheduled offence is obliged to ascertain the amount or value of the property procured by the accused by means of the offence. Under section 13(3), it is provided that so much of the attached property referred to earlier equivalent to the value ascertained by the Criminal Court under section 12 is required to be forfeited to the State.

35. Dealing with the question – whether such forfeiture (in the factual setting of the case) violated Article 20 of the Constitution of India?, a Constitution Bench of this Court held that the forfeiture contemplated in the Ordinance was not a penalty within the meaning of Article 20 but it is only a speedier mode of recovery of the money embezzled by the accused.[9]

36. In R.S. Joshi case, the question was whether it was permissible for the State Legislature to enact that sums collected by dealers by way of sales tax but are not exigible under the State Law – indeed prohibited by it – shall be forfeited to the exchequer.

37. The question – whether such a forfeiture was a penalty violating Article 20 did not arise in the facts of that case. The discussion revolved around the question – whether such a forfeiture is a penalty for the violation of a prohibition contained under section 46 of the relevant Sales Tax Act? The contravention of section 46 is made punishable with imprisonment and fine under section 63 of the said Act. Apart from that, section 37 of the said Act provided for a departmental proceeding against the dealers who violated the prohibition under section 46. The said departmental proceeding could result in the forfeiture of “.. any sums collected by any person by way of tax in contravention of section 46 ..”. The legal issue before this Court was – whether the State Legislature had necessary competence to provide for such forfeiture? The answer to the query depended upon whether such a forfeiture is a penalty for the violation of law made by the State for the levy and collection of sales tax. If it is not a penalty but a plain transfer of money (illegally collected by the dealer) to the State it would be incompetent for the legislature to make such a provision in the light of an earlier Constitution Bench decision of this Court in R. Abdul Quader & Co. v. STO, AIR 1964 SC 922.[10]

38. As explained above, the issue and the ratio decidendi of R.S. Joshi case is entirely different and has nothing to do with the application of Article 20 of the Constitution of India.

39. To understand the exact nature of the forfeiture contemplated under the (SAFEMA) Act it is necessary to examine the nature of the property which is sought to be forfeited and also the persons from whom such forfeiture is sought to be made. As already noticed, the Act is made applicable to five classes of persons specified under section 2. In other words, the properties of persons belonging to any one of the said five categories only could be forfeited under the Act. Even with reference to the properties held by any one falling under any of the abovementioned five categories, their entire property cannot be forfeited except the property which is determined to be illegally acquired property as defined under section 3(c) of the Act. Of all the five categories of persons to whom the Act is made applicable, only one category specified under section 2(2)(a) happens to be of persons who are found guilty of an offence under one of the enactments mentioned therein and convicted. The other four categories of persons to whom the Act is applicable are persons unconnected with any crime or conviction under any law while the category of persons falling under section 2(2)(b) are persons who are believed by the State to be violators of law. The other three categories are simply persons who are associated with either of the two categories mentioned in section 2(2)(a) and (b). At least with reference to the four categories other than the one covered by section 2(2)(a), the forfeiture/deprivation of the property is not a consequence of any conviction for an offence.

40. Therefore, with reference to these four categories, the question of violation of Article 20 does not arise. Insofar as first category mentioned above, in our opinion, Article 20 would have no application for the reason, conviction is only a factor by which the Parliament chose to identify the persons to whom the Act be made applicable. The Act does not provide for the confiscation of the properties of all the convicts falling under Section 2(2)(a) or detenues falling under Section 2(2)(b)Section 6 of the Act authorises the competent authority to initiate proceedings of forfeiture only if it has reasons to believe (such reasons for belief are required to be recorded in writing) that all or some of the properties of the persons to whom the Act is applicable are illegally acquired properties. The conviction or the preventive detention contemplated under Section 2 is not the basis or cause of the confiscation but the factual basis for a rebuttable presumption to enable the State to initiate proceedings to examine whether the properties held by such persons are illegally acquired properties. It is notorious that people carrying on activities such as smuggling to make money are very clandestine in their activity. Direct proof is difficult if not impossible. The nature of the activity and the harm it does to the community provide a sufficiently rational basis for the legislature to make such an assumption. More particularly, Section 6 specifically stipulates the parameters which should guide the competent authority in forming an opinion, they are; the value of the property and the known sources of the income, earnings etc. of the person who is sought to be proceeded against. Even in the case of such persons, the Act does not mandate such an enquiry against all the assets of such persons. An enquiry is limited to such of the assets which the competent authority believes (to start with) are beyond the financial ability of the holder having regard to his known and legitimate sources of income, earnings etc. Connection with the conviction is too remote and, therefore, in our opinion, would not be hit by the prohibition contained under Article 20 of the Constitution of India.

41. If a subject acquires property by means which are not legally approved, sovereign would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth. Such a deprivation, in our opinion, would certainly be consistent with the requirement of Article 300A and 14 of the Constitution which prevent the State from arbitrarily depriving a subject of his property.

42. Whether there is a right to hold property which is the product of crime is a question examined in many jurisdictions. To understand the substance of such examination, we can profitably extract from an article published in the Journal of Financial Crime, 2004 by Anthony Kennedy.[11] “..It has been suggested that a logical interpretation of Art. 1 of the First Protocol of the European Convention on Human Rights is:

‘Everyone is entitled to own whatever property they have (lawfully) acquired …..’ hence implying that they do not have a right under Art. 1 to own property which has been unlawfully acquired. This point was argued in the Irish High Court in Gilligan v The Criminal Assets Bureau, namely that where a defendant is in possession or control over assets which directly or indirectly constitute the proceeds of crime, he has no property rights in those assets and no valid title to them, whether protected by the Irish Constitution or by any other law. A similar view seems to have been expressed earlier in a dissenting opinion in Welch v United Kingdom : ‘in my opinion, the confiscation of property acquired by crime, even without express prior legislation is not contrary to Article 7 of the Convention, nor to Article 1 of the First Protocol.’ This principle has also been explored in US jurisprudence. In United States v. Vanhorn a defendant convicted of fraud and money laundering was not entitled to the return of the seized proceeds since they amounted to contraband which he had no right to possess. In United States v Dusenbery the court held that, because the respondent conceded that he used drug proceeds to purchase a car and other personal property, he had no ownership interest in the property and thus could not seek a remedy against the government’s decision to destroy the property without recourse to formal forfeiture proceedings. The UK government has impliedly adopted this perspective, stating that:

‘…. It is important to bear in mind the purpose of civil recovery, namely to establish as a matter of civil law that there is no right to enjoy property that derives from unlawful conduct.”

43. Non-conviction based asset forfeiture model also known as Civil Forfeiture Legislation gained currency in various countries: United States of America, Italy, Ireland, South Africa, UK, Australia and certain provinces of Canada.

44. Anthony Kennedy conceptualised the civil forfeiture regime in the following words:-

“Civil forfeiture represents a move from a crime and punishment model of justice to a preventive model of justice. It seeks to take illegally obtained property out of the possession of organised crime figures so as to prevent them, first, from using it as working capital for future crimes and, secondly, from flaunting it in such a way as they become role models for others to follow into a lifestyle of acquisitive crime. Civil recovery is therefore not aimed at punishing behaviour but at removing the ‘trophies’ of past criminal behaviour and the means to commit future criminal behaviour. While it would clearly be more desirable if successful criminal proceedings could be instituted, the operative theory is that ‘half a loaf is better than no bread’.”

45. For all the above-mentioned reasons, we are of the opinion that the Act is not violative of Article 20 of the Constitution. Even otherwise as was rightly pointed out by the learned Addl. Solicitor General, in view of its inclusion in the IXth Schedule, the Act is immune from attack on the ground that it violates any of the rights guaranteed under Part III of the Constitution by virtue of the declaration under Article 31-B.

46. Now we are required to consider the alternative and last submission i.e., in view of the failure of the High Court to examine the tenability of the order of the forfeiture as confirmed by the appellate tribunal the matter is required to be remitted to the High Court for appropriate consideration. This submission is required to be rejected. We have carefully gone through the copy of the writ petition (a copy of which is available on record) from which the instant appeal arises.

47. Except challenging the order of forfeiture on the two legal grounds discussed earlier in this judgement, there is no other ground on which correctness of the order of forfeiture is assailed in the writ petition. For the first time in this appeal, an attempt is made to argue that the conclusions drawn by the competent authority that the properties forfeited are illegally acquired – is not justified on an appropriate appreciation of defence of the appellant. In other words, the appellant seeks reappreciation of the evidence without even an appropriate pleading in the writ petition. It is a different matter that the High Court in exercise of its writ jurisdiction does not normally reappreciate evidence. Looked at any angle, we see no reason to remit the matter to the High Court.

48. In the result, the appeals, being devoid of merit, are dismissed.

………………………………….J.

(H.L. GOKHALE) ………………………………….J.

(J. CHELAMESWAR ) New Delhi;

January 21, 2014.

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[1] On perusal of the judgment and order of the Learned Single Judge it appears that although the vires of the said Act was under challenge the respondent No.1 only asked for cancellation of the order of detention issued under Section 3 of the COFEPOSA and the orders passed by the competent authority so merged in the appellate authority under section 6(1) of the SAFEMA as well as prayed for release of the properties confiscated by the appellate authority in terms of the order impugned therein. [2] The respondent No.1 for the first time in the writ petition contended that the notice under Section 6(1) was bad due to non-supply of reasons whereas it would appear that the reasons were supplied as and when asked for. Delayed supply of reasons, in our view, did not vitiate the subsequent orders of the competent authority as well as appellate authority. Show cause notice was served in 1976. It was not proceeded with till 1988 when reasons were supplied. Order was passed by the competent authority upon affording adequate opportunity of hearing. The respondent No.1 availed the remedy of appeal where his appeal was partly allowed. With deepest regard we have for the learned single Judge, His Lordship was perhaps not right in interfering with the show cause notice at the stage when the respondent No.1 availed of the remedies in law and became partly successful before the appellate authority. [3] Section 2. Application—(1) The provisions of this Act shall apply only to the persons specified in sub-section (2).

(2) The persons referred to in sub-section(1) are the following, namely:—

(a) every person—

(i) who has been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), of an offence in relation to goods of a value exceeding one lakh of rupees; or

ii) who has been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount of value involved in which exceeds one lakh of rupees; or

iii) who have been convicted under the Sea Customs Act, 1878 (8 of 1878), or the Customs Act, 1962 (52 of 1962), has been convicted subsequently under either of those Acts; or

iv) who having been convicted under the Foreign Exchange Regulation Act, 1947 (7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), has been convicted subsequently under either of those Acts;

(b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (52 of 1974):

Provided that—

i) such order of detention being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or

ii) such order of detention being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub-section (3) of section 9 or on the report of the Advisory Board under section 8, read with sub- section (2) of section 9 of the said Act; or

iii) such order of detention, being an order to which the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub-section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub-section (6) of section 12A, of that Act; or

iv) such order of detention has not been set aside by a court of competent jurisdiction;

c) every person who is a relative of a person referred to in clause (a) or clause (b);

d) every associate of person referred to in clause (a) or clause (b);

e) any holder of any property which was at any time previously held by a person referred to in clause (a) or clause

(b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.

Explanation 1.— For the purposes of sub-clause (i) of clause

(a), the value of any goods in relation to which a person has been convicted of an offence shall be the wholesale price of the goods in the ordinary course of trade in India as on the date of the commission of the offence.

Explanation 2.— For the purpose of clause ©, “relative” in relation to a person, means—

i) spouse of the person;

       ii)       brother or sister of the person;
      iii)       brother or sister of the spouse of person;
       iv)       any lineal ascendant or descendant of the person;
        v)       any lineal ascendant or descendant of the  spouse  of  the
           person;
       vi)       spouse of a person referred  to  in  clause  (ii),  clause
           (iii), clause (iv) or clause (v);
      vii)       any lineal descendant of a person referred  to  in  clause
           (ii) or clause (iii).


Explanation 3.— For the purposes of clause (d), “associate”, in relation to a person, means—

i) any individual who had been or is residing in the residential premises (including out houses) of such person;

ii) any individual who had been or is managing the affairs or keeping the accounts of such person;

iii) any association of persons, body of individuals, partnership firms, or private company within the meaning of the Companies Act, 1956 (1 of 1956), of which such person had been or is a member, partner or director;

iv) any individual who had been or is a member, partner or director of an association of persons, body of individuals, partnership firm, or private company within the meaning of the Companies when such person had been or is a member, partner or director of such association, body, partnership firm of a private company;

v) any person who had been or is managing the affairs, or keeping the accounts, of any association of persons, body of individuals, partnership firm or private company referred to in clause (iii);

       vi)       the trustee of any trust, where,—
              a)       the trust has been created by such person; or
              b)       the value of the assets contributed  by  such  person

(including the value of the assets, if any, contributed by him earlier) to the trust amounts, on the date on which the contribution is made, to not less than twenty per cent, of the value of the assets of the trust on that date;

vii) where the competent authority, for reasons to be recorded in writing considers that any properties of such person are held on his behalf by any other person, such other person.

Explanation 4.— For the avoidance of doubt, it is hereby provided that the question whether any person is a person to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events including any conviction or detention which occurred or took place before the commencement of this Act.

[4] Section 3(c) “illegally acquired property”, in relation to any person to whom this Act applies, means,—

i) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws; or

ii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets in respect of which any such law has been contravened; or

iii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source of which cannot be proved and which cannot be shown to be attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; or

iv) any property acquired by such person, whether before or after commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in sub- clauses (i) to (ii) or the income or earnings from such property; and includes—t A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration; B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom.

[5] 20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.

[6] Section 53. Punishments.—The punishments to which offenders are liable under the provisions of this Code are— First—Death;

Secondly.—Imprisonment for life;

Thirdly.— Omitted Fourthly.—Imprisonment, which is of two descriptions, namely.— (1) Rigorous, that is, with hard labour;

(2) Simple;

Fifthly.—Forfeiture of property;

Sixthly.—Fine.

[7] 18. Coming to “forfeiture’, what is the true character of a “forfeiture’? Is it punitive in infliction, or merely another form of exaction of money by one from another? If it is penal, it falls within implied powers. If it is an act of mere transference of money from the dealer to the State, then it falls outside the legislative entry. Such is the essence of the decisions which we will presently consider. There was a contention that the expression “forfeiture” did not denote a penalty. This, perhaps, may have to be decided in the specific setting of a statute. But, speaking generally, and having in mind the object of Section 37 read with Section 46, we are inclined to the view that forfeiture has a punitive impact. Black’s Legal Dictionary states that “to forfeit” is “to lose, or lose the right to, by, some error, fault, offence or crime’, “to incur a penalty’. “Forfeiture’, as judicially annotated, is “a punishment annexed by law to some illegal act or negligence . . .’. “something imposed as a punishment for an offence or delinquency’. The word, in this sense, is frequently associated with the word “penalty’. According to Black’s Legal Dictionary, The terms “fine”, “forfeiture”, and “penalty”, are often used loosely, and even confusedly : but when a discrimination is made, the word “penalty” is found to be generic in its character, including both fine and forfeiture. A “fine” is a pecuniary penalty, and is commonly (perhaps always) to be collected by suit in some form. A “forfeiture” is a penalty by which one loses his rights and interest in his property.

More explicitly, the U.S. Supreme Court has explained the concept of “forfeiture” in the context of statutory construction. Chief Justice Taney, in the State of Maryland v. Baltimore & Ohio RR Co., 11 L.Ed. 714, 722 observed :

“And a provision, as in this case, that the party shall forfeit a particular sum, in case he does not perform an act required by law, has always, in the construction of statutes, been regarded not as a contract with the delinquent party, but as the punishment for an offence. Undoubtedly, in the case of individuals, the word forfeit is construed to be the language of contract, because contract is the only mode in which one person can become liable to pay a penalty to another for breach of duty, or the failure to perform an obligation. In legislative proceedings, however, the construction is otherwise, and a forfeiture is always to be regarded as a punishment inflicted for a violation of some duty enjoined upon the party by law ; and such, very clearly, is the meaning of the word in the act in question.”

19. The same connotation has been imparted by our Court too. A Bench has held [Bankura Municipality v.Lalji Raja & Sons, 1953 Cri LJ 1101] :

“According to the dictionary meaning of the word ‘forfeiture’ the loss or the deprivation of goods has got to be in consequence of a crime, offence or breach of engagement or has to be by way of penalty of the transgression or a punishment for an offence. Unless the loss or deprivation of the goods is by way of a penalty or punishment for a crime, offence or breach of engagement it would not come within the definition of forfeiture.” This word “forfeiture” must bear the same meaning of a penalty for breach of a prohibitory direction. The fact that there is arithmetical identity, assuming it to be so, between the figures of the illegal collections made by the dealers and the amounts forfeited to the State cannot create a conceptual confusion that what is provided is not punishment but a transference of funds. If this view be correct, and we hold so, the legislature, by inflicting the forfeiture, does not go outside the crease when it hits out against the dealer and deprives him, by the penalty of the law, of the amount illegally gathered from the customers. The Criminal Procedure Code, Customs & Excise Laws and several other penal statutes in India have used diction which accepts forfeiture as a kind of penalty. When discussing the rulings of this Court we will explore whether this true nature of “forfeiture” is contradicted by anything we can find in Sections 37(1)46 or 63. Even here we may reject the notion that a penalty or a punishment cannot be cast in the form of an absolute or no-fault liability but must be preceded by mens rea. The classical view that “no mens rea, no crime” has long ago been eroded and several laws in India and abroad, especially regarding economic crimes and departmental penalties, have created severe punishments even where the offences have been defined to exclude mens rea. Therefore, the contention that Section 37(1) fastens a heavy liability regardless of fault has no force in depriving the forfeiture of the character of penalty.

[8] 56. In construing the expression “amendment of this Constitution” I must look at the whole scheme of the Constitution. It is not right to construe words in vacuum and then insert the meaning into an article. Lord Green observed in Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995, 998.

“The first thing one has to do, I venture to think, in construing words in a Section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question : ‘In this state, in this context, relating to this subject-matter, what is the true meaning of that words’.”

57. I respectfully adopt the reasoning of Lord Green in construing the expression “the amendment of the Constitution.”

58. Lord Green is not alone in this approach. In Bourne v. Norwich Crematorium, (1967) 2 ALL ER 576, 578 it is observed:“English words derive colour from those which surround them.

Sentences are not mere collections of words to be taken out of the sentence defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.”

59. Holmes, J., in Towne v. Eisner, 245 US 418, 425 had the same thought. He observed :

“A word is not a crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.” [9] The State of West Bengal v. S.K. Ghosh, AIR 1963 SC 255 Para 15. .. We are therefore of opinion that forfeiture provided in S. 13(3) in case of offences which involve the embezzlement etc. of Government money or property is really a speedier method of realizing government money or property as compared to a suit which it is not disputed the Government could bring for realizing the money or property and is not punishment or penalty within the meaning of Article 20(1). Such a suit could ordinarily be brought without in any way affecting the right to realize the fine that may have been imposed by a criminal Court in connection with the offence.

[10] The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under Entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it was not due as a tax under the Act, shall be made over to Government. Now it is clear that the sums so collected by way of tax are not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under Entry 54 of List II when it made such a provision, for on the face of the provision, the amount, though collected by way of tax, was not exigible as tax under the law. The provision however is attempted to be justified on the ground that though it may not be open to a State legislature to make provision for the recovery of an amount which is not a tax under Entry 54 of List II in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and ancillary power to make provision for the levy and collection of such tax. Now there is no dispute that the heads of legislation in the various Lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topics mentioned therein. Even so, there is a limit to such incidental or ancillary power flowing from the legislative entries in the various Lists in the Seventh Schedule. These incidental and ancillary powers have to be exercised in aid of the main topic of legislation, which, in the present case, is a tax on sale or purchase of goods. All powers necessary for the levy and collection of the tax concerned and for seeing that the tax is not evaded are comprised within the ambit of the legislative entry as ancillary or incidental. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry. We do not think that the ambit of ancillary or incidental power goes to the extent of permitting the legislature to provide that though the amount collected — may be wrongly — by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to Government, as if it were tax. The legislature cannot under Entry 54 of List II make a provision to the effect that even though a certain amount collected is not a tax on the sale or purchase of goods as laid down by the law, it will still be collected as if it was such a tax. This is what Section 11(2) has provided. Such a provision cannot in our opinion be treated as coming within incidental or ancillary powers which the legislature has got under the relevant taxing entry to ensure that the tax is levied and collected and that its evasion becomes impossible. We are therefore of opinion that the provision contained in Section 11(2) cannot be made under Entry 54 of List II and cannot be justified even as an incidental or ancillary provision permitted under that entry.

[11] Head of Legal Casework, Northern Ireland for the Assets Recovery Agency in his Article ‘Justifying the civil recovery of criminal proceeds’ published in the Journal of Financial Crime, 2004 Vol.12, Iss.1.


Credit: Indian Kanoon

Vishal Agrawal & Anr vs Chattisgarh State Electricity Board & Anr. (1947) LIJR-SC

Vishal Agrawal & Anr vs Chattisgarh State Electricity Board & Anr. (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

A.K. SIKRI, J.

1. Leave granted.

2. A pure question of law which arises for consideration is: whether the amendment in Section 151 of the Electricity Act, 2003 (hereinafter referred to as the Act] which empowers the Court to take cognizance of an offence upon a report made by the police under Section 173 of the Code of Civil Procedure [hereinafter referred to as the Code], would be applicable to the pending complaints filed before the aforesaid amendment. To answer this question, scope and interpretation of Section 151, as it stood prior to the amendment, also needs to be considered. This issue has arisen in the following set of facts:

3. The respondent, viz. Chhattisgarh State Electricity Board (hereinafter to be referred as the ‘Board’) is the supplier of electricity in the State of Chhattisgarh. The appellants are the consumers of the Electricity and getting supply thereof through the Electricity connection provided by the Board. As per the Board, the appellants were found committing theft of the electricity which was revealed on 23.3.2006 when the Electricity meter of the appellant was inspected by the Inspection Team of the Board. It transpired that instead of the approved 55.204 KW, the appellants were using load of 59.810 KW and the meter was also tampered with. The Board made a complaint to the Station House Officer (SHO), Police Station, Civil Lines, Bilaspur. On the aforesaid allegations with request to the SHO to register a FIR against the appellants on the basis of a complaint dated 30.3.2006, the FIR was registered by the SHO on 31.3.2006 being FIR No. 227 of 2006 under Section 135/126 of the Act. After investigating into the matter, officer in-charge of the Police Station filed the challan before the Special Judge, Bilaspur who passed orders dated 30.6.2006 taking cognizance of offence under the aforesaid provisions of the Act.

4. Against this order, the appellants filed quashing petition before the High Court on the ground that the Assistant Engineer had no authority to make any written complaint and the Special Judge could not have taken cognizance of the offence without complying with the provisions of Section 151 of the Act. This petition was disposed of by the High Court with a direction to the appellants to approach and raise the said objection before the Special Judge. On that basis, the aforesaid plea was pressed before the Special Judge as well by filing an application to this effect. The contention of the appellants was found convincing by the Special Judge who passed orders dated 26.9.2006 thereupon holding that since the complaint had not been made by the officers named in Rule 9 of the Chhattisgarh State Electricity Rules, 2006, cognizance thereof could not be taken. As a sequittor, the appellants were discharged from the case. At the same time liberty was also given to the Board to take appropriate action in accordance with law.

5. The Board did not accept the aforesaid order and challenge the same before the High Court by filing Criminal Revision on 4.2.2007. Within four months thereof the Electricity Act was amended by inserting, inter alia, Sections 151(A) and 151(B) to the said Act with effect from 15.6.2007. The High Court has by impugned order dated 26.2.2008, reversed the orders of the Special Judge holding that as per Rule 12 of Chhattisgarh State Electricity Rules, the police has been authorised by the Central Government to forward the complaint received by the officers authorised under Section 151 of the Electricity Act to the concerned Court and, therefore, the complaint was validly instituted.

6. Before we take note of the contentions advanced before the High Court and the manner in which the High Court has dealt with the same, it would be apt to reproduce relevant provisions of the Electricity Act as well as Chhattisgarh Electricity Rules, interpretation whereof is involved in the present case.

7. Section 151 of the Act, as it existed before the amendment, is as follows:

“151. Cognizance of offences:- No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by appropriate government or appropriate Commissioner or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licensee or the generating company, as the case may be, for this purpose.” In exercise of powers conferred by Section 176 of the Electricity Act, 2003 the Central Government framed Electricity Rules, 2005, Rule 12 reads thus:-

“12. Cognizance of the Offence – (1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the appropriate Government or the appropriate Commission or any of their officers authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be.

2) The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the Code of Criminal Procedure, 1973.

(3) The police shall after investigation, forward the report along with the complaint filed under sub-clause (1) to the Court for trial under the Act.

(4) Notwithstanding anything contained in sub-clause (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the appropriate Government or the appropriate Commission or any of their officers authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every special court may take cognizance of an offence referred to in Sections 135 to 139 of the Act without the accused being committed to it for trial.

(6) The cognizance of the offence under the Act shall not in any way prejudice the actions under the provisions of the Indian Penal Code.” The principal Electricity Act, 2003 was further amended by the Electricity (Amendment) Act, 2007 and apart from other amendments in Section 151 of the prinicipal Act was also amended and provisions in Sections 151151(A)151 (B) were inserted. In the Statement of Objects and Reasons for amending the Act, it was stated as under:

“4. As per the provisions contained in Section 151 of the Act, the offences relating to theft of electricity, electric lines and interference with the meters are cognizable offences. Concerns have been expressed that the present formulation of Section 151 stands as a barrier to investigation of these cognizable offences by the police. It is proposed to amend Section 15 so as to clarify the position that the police would be able to investigate the cognizable offences under the Act. The expedite the trial before the Special Court, it is also proposed to provide that a Special Court shall be competent to take cognizance of an offence without the accused being committed to it for trial.

1. Short title and commencement. (1) This act may be called the Electricity (Amendment) Act, 2007.

2. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint:

“15. Amendment of Section 151. – In Section 151 of the Principal Act, the following provisos shall be inserted, namely:-

Provided that the Court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974).

Provided further that a special court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial.

16. Insertions of new Sections 151-A and 151-B – After Section 151 of the principal act, the following sections shall be inserted namely:-

“151-A. Power of police to investigate – For the purposes of investigation of an offence punishable under this Act, the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973 (2 of 1974).

151-B Certain offences to be cognizable and non-bailable. – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under Sections 135 to 140 or Sections 150 shall be cognizable and non-bailable.”

8. As per unamended Section 151 of the Act the cognizance of the offence punishable under the Electricity Act can be taken only when complaint is made in writing by:

(i) Appropriate Government, or

(ii) Appropriate Commissioner, or

(iii) Any of their officer authorized by them, or

(iv) A Chief Electrical Inspector,

(v) Electrical Inspector,

(vi) Licensee, or

(vii) The Generating Company, as the case may be.

9. It was the submission of the appellant that the complaint could be made to the Court by the appropriate Government or any of its officers so authorised (as other persons specifically named to make such complaints under Section 151 were not relevant). It was argued that the State of Chhattisgarh has framed Chhattisgarh State Electricity Rules, 2005 in exercise of powers under Section 151 of the Act. As per Rule 9 of the said Rules, the persons who are authorized to make the written complaints were either Assistant Electrical Inspector of Chief Electrical Inspectorate of the State Government or an officer not below the rank of Junior Engineer of the Board or Distribution Licensee. It was the submission of the appellant that in the present case the complaint was made by the Assistant Engineer who was below the rank of Junior Engineer and, therefore, was not authorised to lodge the complaint under Section 151. It was also argued that as per the provisions of Section 151 of the Act, the complaint was required to be made in the Court and not to the police and both these mandatory conditions contained in Section 151 of the Act were not adhered to.

10. The High Court rejected the aforesaid contention holding that Rule 12 of the Electricity Rules authorised the police to take cognizance of the offence punishable under the Act and, therefore, it was not necessary for the Board to file the complaint under Section

151. The High Court also held that by adding proviso to Section 151 along with insertion of Sections 151(A) and 151 (B) vide Electricity (Amendment) Act, 2007, this position was made abundantly clear namely cognizance of an offence punishable under the Act could be taken upon a report of police officer filed under Section 173 of the Code of Criminal Procedure. Contention of the appellants that the said amendment came into effect only from 15.6.2007 with the passing of Electricity Amendment Act, 2007 has been repelled by the High Court taking note of the Statement of Objects and Reasons for amending the Act which makes it absolutely clear that the purpose for amendment is to clarify the position already prevailed viz. the police would be able to investigate the cognizable offences under the Act. These are the reasons given by the High Court for setting aside the order of the Trial Court and allowing the Revision Petition of the Board.

11. Before us arguments of the parties remained the same. The submission of learned Counsel for the appellant was that proviso to Section 151 as well as provisions contained in Section 151(A) and 151(B) of the Electricity Act are substantive provisions which could operate only prospectively i.e. the date on which the amendment was notified and could not have retrospective operation, more particularly when the provisions are in the realm of criminal law. He also referred to certain judgments of few High Courts wherein such a view has been taken. Learned Counsel for the respondent-Board, on the other hand, extensively relied upon the reasoning of the High Court in the impugned judgment and cited certain decisions of other High Courts which have taken this very line of action.

12. We may mention at the outset that there is difference of opinion on this issue among various High Courts. Kerala and Calcutta High Court, have taken the view which goes in favour of the appellant herein, in the following cases:-

Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B. (2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. By the Inspector of Police MANU/TN/0584/2010.

13. A contrary view has been taken by High Courts of Delhi and Jharkhand in the following cases:

Bimla Gupta vs. NDPL 136(2007) DLT 521; Ashish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 Interestingly, though Calcutta High Court has taken different view in the two judgments cited above, which are of the years 2006 and 2007, different view has been taken in the case Anjan De vs. State of West Bengal (2008) 1 Cal LT 486 which is in tune with the judgments of Delhi and Jharkhand High Courts.

14. Before we embark on detailed discussion, it is pertinent to point out that this Court has already dealt with the same issue in the case of Assistant Electrial Engineer vs. Satyendra Rai & Anr. (2012) 1 PLJR 476 wherein it has accepted the proposition that FIR with the police can be registered de hors Section 151 of the Act (unamended) which provides for filing of the complaint before the Special Court. The relevant portion of the said judgment is as under:-

Though the report was made by the Assistant Electrical Engineer, it was pointed out before the High Court that even if the police had decided to file a report under Section 173 Code of Criminal Procedure. Complaining the theft, the Court could not have taken the cognizance as provided under Section 151 of the Act and only a complaint should have been filed in writing by the appropriate Government or their officers.

The High Court accepted this contention and held that the very inception of the case was not in accordance with law and, therefore, the first information report in the present case could not be sustained. This is the judgment which has fallen for our consideration.

We have heard learned Counsel appearing for the parties and gone through the appeal.

Considering the position in law, it is obvious that the High Court has completely misconstrued the relevant provision. Considering the definition of “theft” of electricity in Section 135 of the Act, there could be no difficulty that in the first information report, the theft as contemplated in Section 135 of the Act was reported. The only question is as to whether the police could have investigated on that basis and could have filed a charge sheet against the Respondent No. 1-accused, particularly in view of the language of Section 151 of the Act.

15. In that very judgment this Court also categorically pointed out that proviso to Section 151 of the Act was clarificatory in nature. This is so observed in para 9 which is as follows:

Therefore, considering the language of para 4 of the Statement of Objects and Reasons, it is clear that the amendment brought in is clarificatory in nature and as such it would take into its ambit even the pending matters and in that sense it would be a retrospective amendment.

16. Yet, there is one more reason given by the Court to hold that FIR with the police officer would be competent, as can be found from the following extracts from the said judgment:-

There is one more reason why the High Court’s order can be faulted. The High Court has clearly ignored the First Schedule of the Code of Criminal Procedure and more particularly the second part thereof, which is under the head “Classification of Offences against other laws”. The second entry reads as follows:

If punishable with imprisonment for three years, and upwards but not more than seven years, then such offences are held to be cognizable, non-bailable and triable by the Court of Magistrate of the first class.

Therefore, the High Court ought to have considered this provision which makes the first information report acceptable by the police in the sense that the police could investigate into the matter and if found guilty could have also filed a report under Section 173 Code of Criminal Procedure, before the Court on which the Court could have taken the cognizance of the offence.

17. In view of the aforesaid judgment of this Court, conclusively holding that amendment to Section 151 is clarificatory in nature and further that notwithstanding the provisions of Section 151 of the Act, a FIR could be filed with the police, the matter stands clinched in favour of the Board. However, at the same time we would like to elaborate the view taken by this Court in the aforesaid judgment.

18. It would be essential to first take note of the relevant provisions of the Electricity Act and the Code of Criminal Procedure. The five provisions of the Electricity Act which are referred to are Sections 135138151154 and 175 and these may be reproduced at this stage:

“S. 135. Theft of electricity.

(1) Whoever, dishonestly,

(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or causes or allows any of them to be damaged or destroyed as to interfere with the proper or accurate metering of electricity, so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both:

Provided that in a case where the load abstracted, consumed, or used or attempted abstraction or attempted consumption or attempted use-

i) does not exceed 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction the fine imposed shall not be less than six times the financial gain on account of such theft of electricity;

(ii) exceeds 10 kilowatt, the fine imposed on first conviction shall not be less than three times the financial gain on account of such theft of electricity and in the event of second or subsequent conviction, the sentence shall be imprisonment for a term not less than six months but which may extend to five years and with fine not less than six times the financial gain on account of such theft of electricity:

Provided further than if it is proved that any artificial means or means not authorised by the Board or licensee exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.

2) Any office authorised in this behalf by the State Government may-

(a) enter, inspect, break open and search any place or premises in which he has reason to believe that electricity [has been or is being], used unauthorisedly;

(b) search, seize and remove all such devices, instruments, wires and any other facilitator or article which [has been or is being], used for unauthorised use of electricity;

c) examine or seize any books of accounts or documents which in his opinion shall be useful for or relevant to, any proceedings in respect of the offence under Sub- section (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts there from in his presence.

(3) The occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:

Provided that no inspection, search and seizure of any domestic place or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.

4) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to search and seizure shall apply, as far as may be, to searches and seizure under this act.

Xxxxx S. 138. Interference with meters or works of licensee.-(1) Whoever,

(a) unauthorisedly connects any meter, indicator or apparatus with any electric line through which electricity is supplied by a licensee or disconnects the same from any such electric line; or

(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or

(c) lays or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee; or

d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or willfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering; shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both, and, in the case of a continuing offence, with a daily fine which may extend to five hundred rupees; and if it is proved that any means exist for making such connection as is referred to in Clause (a) or such re-connection as is referred to in Clause (b), or such communication as is referred to in Clause (c), for causing such alteration or prevention as is referred to in Clause (d), and that the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not, it shall be presumed, until the contrary is proved, that such connection, reconnection, communication, alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer.

Xxxxx S. 151. Cognizance of offences.-No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.

Xxxxx S. 154. Procedure and power of Special Court.-

1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under Sections 135 to 139 shall be triable only by the Special Court within whose jurisdiction such offence has been committed.

2) Where it appears to any court in the course of any inquiry or trial that an offence punishable under Sections 135 to 139 in respect of any offence that the case is one which is triable by a Special Court constituted under this Act for the area in which such case has arisen, it shall transfer such case to such Special Court, and thereupon such case shall be tried and disposed of by such Special Court in accordance with the provisions of this Act.

Provided that it shall be lawful for such Special Court to act on the evidence, if any, recorded by any court in the case of presence of the accused before the transfer of the case of any Special Court:

Provided further that is such Special Court is of opinion that further examination, cross-examination and re- examination of any of the witnesses whose evidence has already been recorded, is in the interest of justice, it may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as it may permit, the witness shall be discharged.

3) The Special Court may, notwithstanding anything contained in Sub-section (1) of Section 260 or Section 262 of the Code of Criminal Procedure, 1973 (2 of 1974), try the offence referred to in Sections 135 to 139 in a summary way in accordance with the procedure prescribed in the said Code and the provisions of Sections 263 to 265 of the said Code shall, so far as may be, apply to such trial:

Provided that where in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try such case in summary way, the Special Court shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the said Code for the trial of such offence:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding five years.

4) A Special Court may, with a view to obtaining ;the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any offence tender pardon to such person or condition of his making a full and true disclosure of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof, and any pardon so tendered shall, for the purposes of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under Section 307 thereof.

5) The Special Court may determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of civil court.

6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment.

Explanation.-For the purposes of this section, “civil liability” means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in Sections 135 to 139.

S. 175. Provisions of this Act to be in addition to and not in derogation of other laws:- The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.”

19. As far as the scheme of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) is concerned, it is essential to point out that it demarcates the offences into two categories, namely, cognizable and non-cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a cognizable offence. Section 154 of the Code prescribes that in respect of every offence which is a cognizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section (3) of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take cognizance of the offence on police report, under Section 173 of the Code, on completion of investigation.”

20. Here, the provisions of Section 4 of the Code become relevant which provide a complete answer to the submission of the appellant. It reads:

“4. Trial of offence 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 of place of investigation, inquiring into, trying or otherwise dealing with such offences.”

21. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the Code is made applicable for the offences to be tried under the Electricity Act as well.

22. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a cognizable offence. Section 195 provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that no Court shall take cognizance of the offences specified therein except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the complaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had committed an offence under Section 195, the complainant had made a complaint to the police and police had initiated investigation thereon. The accused/respondent had contended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and not Chapter XII thereof (relating to investigation by the police). This contention was rejected in the following manner:

“8. We are unable to accept the submissions made on behalf of the respondent. Firstly, it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise, there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh; 1998 Cri LJ 1104 . In this case it has been held as follows:

We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging commission of offences under Sections 419420467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy; 1983 (3) SCR 836 on which the high Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC.

Not only are we bound by this judgment but we are also in complete agreement with the same. Section 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into place and the court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus no right of the respondent much less the right to file an appeal under Section 341, is affected.”

23. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in the Code. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondent’s Counsel is right in his submission that if the offence under the Code is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a complaint is filed, the Court would be competent to take cognizance straightway. However, that would not mean that other avenues for investigation into the offence which are available would be excluded. It is more so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure.

24. In this backdrop, the notification dated 8.6.2005 issued by the Central Government in exercise of powers under Section 176 of the Electricity Act also requires a mention. Vide this notification the Electricity Rules, 2005, have been framed and Rule 12, which is relevant, reads as under:

12 (1) The police shall take cognizance of the offence punishable under the Act on a complaint in writing made to the police by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them in this regard or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be.

2) The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint, the police shall have at the powers as available under the Code of Criminal Procedure, 1973.

(3) The police shall after investigation, forward the report along with the complaint filed under Sub-clause (1) to the Court for trial under the Act.

(4) Notwithstanding anything contained in Sub-clauses (1), (2) and (3) above, the complaint for taking cognizance of an offence punishable under the Act may also be filed by the Appropriate Government or the Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or an authorized officer of Licensee or a Generating Company, as the case may be directly in the appropriate Court.

(5) Notwithstanding anything contained in the Code of Criminal Procedure 1973, every special Court may take cognizance of an offence referred to in Section 135 to 139 of the Act without the accused being committed to it for trial.”

25. In view of the aforesaid discussion, we hold that the decisions of Kerala High Court as well as Calcutta High Court and Madras High Court in Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, K.S.E.B. (2010) 2 KLJ 569; Biswanath Patra Vs. Divisional Engineer AIR 2007 Cal 189; Ranjeet Kr. Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep. By its Managing Partner D. Thillairaj and Ors. vs. Government of Pondicherry rep. by the Inspector of Police MANU/TN/0584/2010 do not lay down correct law and the view taken by the High Court of Delhi in Abhay Tyagi v. State NCT of Delhi & Anr. and Asish Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 is hereby approved.

26. As a result this appeal fails and is hereby dismissed with costs.


Credit: Indian Kanoon

State Of Gujarat vs Kishanbhai (1947) LIJR-SC

State Of Gujarat vs Kishanbhai (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

Jagdish Singh Khehar, J.

1. A complaint was lodged at Navrangpura Police Station, Ahmedabad, alleging the kidnapping/abduction of a six year old girl child Gomi daughter of Keshabhai Mathabhai Solanki and Laliben on 27.2.2003 at around 6:00 p.m. by the accused Kishanbhai son of Velabhai Vanabhai Marwadi. It was alleged, that the accused had enticed Gomi with a “gola” (crushed ice, with sweet flavoured syrup), and thereupon had taken her to Jivi’s field, where he raped her. He had murdered her by inflicting injuries on her head and other parts of the body with bricks. In order to steal the “jhanjris” (anklets) worn by her, he had chopped off her feet just above her ankles. The aforesaid complaint was lodged, after the body of the deceased Gomi was found from Jivi’s field, at the instance of the accused Kishanbhai. On the receipt of the above complaint, the first information report came to be registered at Navrangpur Police Station, Ahmedabad.

2. The prosecution version which emerged consequent upon the completion of the investigation reveals, that the family of the deceased Gomi was distantly related to the family of the accused Kishanbhai. In this behalf it would be pertinent to mention that Baghabhai Naranbhai Solanki was a resident of Gulbai Tekra, in the Navrangpura area of Ahmedabad. He resided there, along with his family. For his livelihood, Baghabhai Naranbhai Solanki was running a shop in the name of Mahakali Pan Centre. The said shop was located near his residence. Baghabhai Naranbhai Solanki was running the business of selling “pan and bidi” in his shop. Naranbhai Manabhai Solanki, father of Baghabhai Naranbhai Solanki used to live in the peon’s quarters at Ambavadi in Ahmedabad. Modabhai Manabhai Solanki, uncle of Baghabhai Naranbhai Solanki, had expired. His son Devabhai’s daughter Laliben, was married to Keshabhai Mathabhai Solanki. Keshabhai Mathabhai Solanki and Laliben were residing at Shabamukhiwas, Gulbai Tekra in Ahmedabad. Keshabhai Mathabhai Solanki and Laliben had two children, a daughter Gomi aged six years, and a son Himat aged three years. Laliben’s sister-in-law (her husband’s, elder brother’s wife) Fuliben Valabhai was residing near the residence of Keshabhai Mathabhai Solanki and Laliben. Kishanbhai the accused, is the brother of Fuliben, and was residing with her. It is therefore, that the family of the deceased as also the accused, besides being distantly related, were acquainted with one another as they were residing close to one another.

3. Insofar as the occurrence is concerned, according to the prosecution, on 27.2.2003 Laliben, niece of Baghabhai, was confined to her residence, as she was expecting. At about 6:00 p.m. her daughter Gomi, then aged 6 years, had wandered out of her house. The accused Kishanbhai then aged 19 years, entice her by giving her a “gola”. Having enticed her he had carried Gomi to Jivi’s field. On the way to Jivi’s field, he stole a knife with an 8 inch blade from Dineshbhai Karsanbhai Thakore PW6, a “dabeli” (bread/bun, with spiced potato filling) seller. Having taken Gomi to Jivi’s field he had raped her. He had then killed her by causing injuries on her head and other parts of the body with bricks. In order to remove the “jhanjris” worn by her, he had amputated her legs with the knife stolen by him, from just above her ankles. He had then covered her body with his shirt, and had left Jivi’s field. Kishanbhai the accused, then took the anklets stolen by him to Mahavir Jewellers, a shop owned by Premchand Shankerlal. He pledged the anklets at the above shop, for a sum of Rs.1,000/-. The accused Kishanbhai was confronted by Baghabhai and others constituting the search party, whilst he was on his way back to his residence. Kishanbhai, despite stating that he had not taken her away, had informed those searching for Gomi, that she could be at Jivi’s field. On the suggestion of Kishanbhai, the search party had gone to Jivi’s farm, where they found the body of Gomi.

4. Based on the aforesaid fact situation, confirmed through the investigation carried on by the Police, a charge-sheet was framed against the accused Kishanbhai under Sections 363369376394302 and 201 of the Indian Penal Code, and Section 135(1) of the Bombay Police Act. The above charge-sheet was filed before the Metropolitan Magistrate, Ahmedabad. Since the offences involved could be tried only by a Court of Session, the Metropolitan Magistrate, committed the matter to the Court of Session. On 8.3.2004, the Sessions Court to which the matter came to be assigned, for trial, framed charges. Since the accused Kishanbhai denied his involvement in the matter, the court permitted the prosecution to lead evidence.

5. The prosecution examined 14 witnesses. The statement of the accused Kishanbhai was thereafter recorded under Section 313 of the Code of Criminal Procedure. In his above statement, the accused Kishanbhai denied his involvement. Even though an opportunity was afforded to Kishanbhai, he did not lead any evidence in his defence. After examining the evidence produced by the prosecution, the Trial Court vide its judgment dated 18.8.2004, arrived at the conclusion that prosecution had successfully proved its case beyond reasonable doubt. By a separate order dated 18.8.2004 the Trial Court sentenced Kishanbhai to death by hanging, subject to confirmation of the said sentence by the High Court of Gujarat at Ahmedabad (hereinafter referred to as the ‘High Court’) under Section 366 of the Code of Criminal Procedure.

6. In the above view of the matter, the proceedings conducted by the Court of Session, were placed before the High Court at the behest of the State of Gujarat, as Confirmation Case No. 7 of 2004. Independently of the confirmation proceedings, the accused Kishanbhai, aggrieved by the judgment and order of sentence dated 18.8.2004, in Sessions Case No. 346 of 2003, filed Criminal Appeal No. 1549 of 2004 before the High Court.

7. The criminal appeal filed by the accused Kishanbhai was accepted by the High Court. Kishanbhai was acquitted by giving him the benefit of doubt. The Confirmation Case No. 7 of 2004 was turned down in view of the judgment of acquittal rendered by the High Court while allowing Criminal Appeal no. 1549 of 2004.

8. Dissatisfied with the order passed by the High Court, the State of Gujarat approached this Court by filing Petition for Special Leave to Appeal (Crl.) No. 599 of 2006. On 11.9.2008 leave to appeal was granted. Thereupon, the matter came to be registered as Criminal Appeal No. 1485 of 2008.

9. Before this Court, learned counsel for the appellant, in order to substantiate the guilt of the accused-respondent Kishanbhai, has tried to project that the prosecution was successful in demonstrating an unbroken chain of circumstances, clearly establishing the culpability of the accused. In fact, the endeavour at the hands of the learned counsel for the appellant was to project an unbroken chain of circumstances to establish the guilt of the accused. Despite the defects in investigation and the prosecution of the case, as also, the inconsistencies highlighted by the High Court in the evidence produced by the prosecution, learned counsel for the State expressed confidence, to establish the guilt of the accused-respondent. In this behalf, it is essential to record the various heads under which submissions were advanced at the hands of the learned counsel for the appellant-State. We shall, therefore, briefly summarise all the contentions, and while doing so, refer to the evidence brought to our notice by the learned counsel for the appellant, to establish the guilt of the accused-respondent, Kishanbhai. The submissions advanced before us are accordingly being recorded hereunder :

(a) First and foremost, learned counsel for the appellant, in order to connect the accused with the crime under reference, extensively relied upon the evidence produced by the prosecution to show that the accused- respondent Kishanbhai was last seen with the victim. He was seen taking away the victim Gomi. For the above, reliance was placed on the statement of Naranbhai Manabhai Solanki PW5, who had deposed that he had seen the deceased Gomi with the accused-respondent Kishanbhai on 27.2.2003 at around 6:00 p.m. As per his deposition, he had seen Gomi eating a “gola” outside his (the witness’s) residence. At the same juncture, he had also seen the accused-respondent Kishanbhai coming from the side of Polytechnic. Kishanbhai, according to the deposition of PW5, had approached Gomi. Thereafter, as per the statement of PW5, the accused had carried away Gomi towards the side of the Polytechnic. In his testimony, Naranbhai Manabhai Solanki PW5, had also stated, that at about 9:00 pm, when he had again seen the accused-respondent Kishanbhai coming from the road leading to the Gulbai Tekra Police Chowki, he was asked, by those who were searching for Gomi, about her whereabouts. The accused was also asked about the whereabouts of Gomi, by Naranbhai Manabhai Solanki PW5 and by the son of PW 5 i.e., by Bababhai Naranbhai Solanki PW2. To the aforesaid queries, according to Naranbhai Manabhai Solanki PW5, the accused-respondent Kishanbhai had stated, that she might be sitting in Jivi’s field. In addition to the testimony of Naranbhai Manabhai Solanki PW5, reference was also made to the testimony of Dinesh Karshanbhai Thakore PW6. PW6, during his deposition, had asserted, that the accused-respondent Kishanbhai had come to his “lari” (handcart used by hawkers, to sell their products) for purchasing a “dabeli”. It was pointed out by Dinesh Karshanbhai Thakore PW6, that he had noticed the accused carrying a child aged about seven years, wearing a red frock. In his statement, he also affirmed that the accused-respondent Kishanbhai, had asked him for a knife but he had declined to give it to him. Thereupon, whilst leaving his “lari”, Kishanbhai had stolen a knife from his “lari”. It was also pointed out, that the knife recovered at the instance of the accused-respondent Kishanbhai, was identified by him as the one stolen from his “lari”. According to the learned counsel for the appellant, the last seen evidence referred to above stands duly corroborated by the deposition of Bababhai Naranbhai Solanki PW2, not only in his deposition before the Trial Court, but also in the complaint filed by him at the first instance at Navrangpur Police Station, Ahmedabad, immediately after the recovery of the dead body of Gomi from Jivi’s field.

(b) Learned counsel for the appellant also laid emphasis on the recovery of the weapon of offence, i.e., a blood stained knife, at the instance of none other than the accused-respondent Kishanbhai himself. In order to substantiate the instant aspect of the matter, learned counsel placed reliance on the testimony of Dinesh Karshanbhai Thakore PW6, who deposed that the accused had visited his “lari” on the evening of 27.2.2003 for the purchase of a “dabeli”. The accused respondent, as noticed earlier, as per the statement of Dinesh Karshanbhai Thakore PW6, was carrying a small girl aged about 7 years. He also deposed, that the accused-respondent had asked him for his knife, but upon his refusal, had stolen the same from his “lari”. Dinesh Karshanbhai Thakore PW6, had identified the knife which had been recovered at the instance of the accused, as the one stolen by the accused-respondent Kishanbhai from his “lari”. Additionally it was submitted, that the accused had led the police to Jivi’s field, from where he got recovered the murder weapon, i.e., the same knife which he had stolen from the “lari” of Dinesh Karshanbhai Thakore PW6. The above knife had a blade measuring eight inches, including a steel handle of four inches. At the time of recovery of the knife, the same had stains of blood. The above knife was recovered by the police on 1.3.2003, in the presence of an independent witness, namely, Rameshbhai Lakhabhai Bhati PW1, who in his deposition clearly narrated, that the knife in question was recovered from Jivi’s field, from under some stones at the instance of the accused-respondent Kishanbhai.

(c) Learned counsel for the appellant, then referred to the medical evidence produced by the prosecution, so as to contend that the wounds inflicted on the person of Gomi, were with the murder weapon, i.e., the knife recovered at the instance of the accused-respondent Kishanbhai. For this, learned counsel placed reliance on the statement of Dr. Saumil Premchandbhai Merchant PW8, who had conducted the post-mortem examination of the deceased Gomi on 28.2.2003. In the post-mortem report, according to learned counsel, mention was made about several incised injuries which could have been inflicted with the knife stolen by the accused-respondent Kishanbhai. In this respect, reference was made to serial No.14 of the post-mortem notes (Exhibit 29) proved by Dr. Saumil Premchandbhai Merchant PW8, clearly indicating, that the injuries caused to the victim which have been referred to at serial No.7, could have been caused with the knife (muddamal Article No.19), i.e., the same knife, which had been recovered at the instance of the accused. Even in the inquest panchnama (Exhibit 14), it was recorded that both legs of the victim Gomi were mutated from just above the ankle with a sharp weapon, with the object of removing the anklets in the feet of the victim Gomi. This document, according to the learned counsel, also indicates the use of a knife in the occurrence under reference.

(d) It was also the submission of the learned counsel for the appellant, that at the time of recovery of the body of the victim from Jivi’s field, the same was found to be covered with a shirt with stripes. It was submitted, that the aforesaid shirt was identified as the shirt worn by the accused-respondent Kishanbhai, when he was seen carrying away the victim Gomi, on 27.2.2003. In this behalf, reliance was placed by the learned counsel for the appellant, on the testimony of Naranbhai Manabhai Solanki PW5. The above witnesses had identified the shirt as a white shirt with lines. To give credence to the testimony of Naranbhai Manabhai Solanki PW5, learned counsel also pointed out, that when the accused was found coming from the direction of the police station after the commission of the crime, he was seen wearing a black T-shirt. The statement of Naranbhai Manabhai Solanki PW5, was sought to be corroborated with the statement of Dinesh Karshanbhai Thakore PW6. The accused respondent is stated to have approached the “lari” of Dinesh Karshanbhai Thakore PW6 for purchasing a “dabeli”, and at that juncture, the accused-respondent is stated to have been wearing a white lined shirt, and a green trouser. On the recovery of the shirt and trouser, they were marked as Mudammal Articles 8 and 14 respectively. Dinesh Karshanbhai Thakore PW6 had identified the shirt, as also, the trouser during the course of his deposition before the Trial Court. The green trouser worn by the accused-respondent was also identified by Bababhai Naranbhai Solanki PW2. Additionally, Bababhai Naranbhai Solanki PW2 deposed that a black colour T-shirt was worn by the accused-respondent when he was apprehended and brought to the police station. The above articles were also identified by Angha Lalabhai Marwadi PW12 and Naranbhai Lalbhai Desai PW13 who were the panch witnesses at the time of seizure of the abovementioned clothing.

(e) It was also the submission of the learned counsel for the appellant, that the report of the forensic science laboratory was sufficient to confirm, that the accused respondent was the one who was involved in the commission of the crime under reference. In this behalf, it was pointed out that the victim Gomi was shown to have blood group “B+ve”. According to the report of the Forensic Science Laboratory, the bricks recovered from the place of occurrence (which had been used in causing injuries on the head and other body parts of the victim), the panties worn by the deceased victim Gomi, the white shirt which was found on the body of the victim at the time of its recovery from Jivi’s field, the T-shirt and the green trouser worn by the accused respondent Kishanbhai (at the time he was apprehended), and even the weapon of the crime, namely, the knife recovered at the instance of the accused-respondent, were all found with blood stains. The forensic report reveals that the blood stains on all the above articles were of blood group “B+ve”. It was, therefore, the submission of the learned counsel for the appellant, that the accused-respondent was unmistakably shown to be connected with the crime under reference.

(f) In order to substantiate the motive of the accused-respondent, learned counsel for the appellant relied upon the statement of the investigating officer Ranchhodji Bhojrajji Chauhan PW14, who had stated in his deposition that the owner of Mahavir Jewellers, i.e., Premchand Shankarlal Mehta had presented himself at the police station. The abovementioned jeweler is stated to have informed the police, that the accused respondent Kishanbhai had pawned the anklets belonging to the victim Gomi with him for a sum of Rs.1,000/-. Insofar as the identification of the anklets is concerned, reference was made to the statement of Keshobhai Madanbhai Solanki PW7, i.e., father of the victim who had identified the anklets marked as Muddamal Article No.18, as belonging to his daughter Gomi, which she was wearing when she had gone missing. Reference was also made to the statement of Jagdishbhai Bhagabhai Marwadi PW11, as also, the panchnama of recovery of the silver anklets which also, according to learned counsel, connects the accused to the crime.

(g) Last but not the least, learned counsel for the appellant invited this Court’s attention to the statement tendered by the accused under Section 313 of the Code of Criminal Procedure. During the course of his above testimony, he was confronted with the evidence of the relevant witnesses depicting, that the victim Gomi was last seen in his company at 6:00 p.m. on 27.2.2003. He was also confronted with the fact, that he himself had informed the search party, that Gomi may be found at Jivi’s field. It is submitted, that the accused-respondent Kishanbhai, who had special knowledge about the whereabouts of the deceased, was bound to explain and prove when and where he had parted from the company of the victim Gomi. It was submitted that during the course of his deposition under Section 313 of the Code of Criminal Procedure, the accused could not tender any satisfactory explanation.

Based on the above evidence, it was the submission of the learned counsel for the appellant, that even in the absence of any eye witness account, the prosecution should be held to have been successful in establishing the guilt of the accused-respondent Kishanbhai through circumstantial evidence. The claim of circumstantial evidence emerging from different witnesses summarized above, according to the learned counsel, leads to one and only one conclusion, namely, that the accused-respondent Kishanbhai alone had committed the criminal acts under reference. It was submitted, that the chain of circumstantial evidence, was sufficient to establish, that none other than the accused-respondent could have committed the alleged criminal actions. It was also contended, that no link in the chain of circumstantial evidence was missing, so as to render any ambiguity in the matter.

10. We have heard the learned counsels for the parties. To determine the controversy arising out of the instant criminal appeal, we shall first endeavour to summarise the conclusions drawn by the High Court under different heads. We have decided to adopt the above procedure to understand the implications of various aspects of the evidence produced by the prosecution before the Trial Court. This procedure has been adopted by us (even though the same was neither adopted by the Trial Court, or by the High Court) so as to effectively understand, and thereupon, to adequately deal with the contentions advanced at the hands of the appellant, before this Court.

11. We would first of all, like to deal with the lapses committed by the investigating and prosecuting agencies in the process of establishing the guilt of the accused before the Trial Court. It will be relevant to mention that all these lacunae/deficiencies, during the course of investigation and prosecution, were pointed out by the High Court, in the impugned judgment. These constitute relevant aspects, which are liable to be taken into consideration while examining the evidence relied upon by the prosecution. We have summarised the aforesaid lapses, pointedly to enable us to correctly deal with the submissions advanced at the behest of the State. Since the guilt of the accused in the instant case is to be based on circumstantial evidence, it is essential for us to determine whether or not a complete chain of events stand established from the evidence produced by the prosecution. The above deficiencies and shortcomings are being summarised below:

(a) According to the prosecution story after having removed the anklets from Gomi’s feet, the accused Kishanbai had taken the anklets to Mahavir Jewellers, a shop owned by Premchand Shankerlal. He pledged aforesaid anklets with Premchand Shankerlal, for a sum of Rs. 1,000/-. The anklets under reference, were handed over by Premchand Shankerlal to the investing officer on 1.3.2003, in the presence of two panch witnesses. According to the prosecution case, the jeweller had gone to the police station with the anklets on his own, after having read newspaper reports to the effect, that a girl had been raped and murdered and her anklets had been taken away. He had approached the police station under the suspicion, that the anklets pledged with him, might have belonged to the girl mentioned in the newspaper reports. One of the panch witnesses, namely, Jagdishbhai Marwari PW15 had deposed, that above Premchand Shankerlal had identified the accused Kishanbhai, as the very person who had pledged the anklets with him. In this behalf it is relevant to mention, that Premchand Shankerlal was not produced as a prosecution witness. It is important to notice, that the anklets handed over to the Police, were successfully established by the prosecution as the ones worn by the deceased Gomi. The lapse of the prosecution on account of not producing Premchand Shankerlal as prosecution witness, according to the High Court, resulted in a missing link in the chain of events which would have established the link of the accused Kishanbhai, with the anklets, and thereby convulsively connecting him with the crime.

(b) The prosecution story further discloses, that Premchand Shankerlal the owner of Mahavir Jewellers, had executed a receipt with the accused Kishanbhai, depicting the pledging of the anklets for a sum of Rs.1,000/-. The aforesaid receipt was placed on record of the Trial Court as exhibit

52. The above receipt according to Premchand Shankerlal, was thumb marked by the accused Kishanbhai. Even though the receipt indicates the name of the person who had pledged the anklets as Rajubhai, the same could clearly be a false name given by the person who pledged the anklets. Certainly, there could be no mistake in the identity of the thumb mark affixed on the said receipt. The prosecution could have easily established the identity of the pledger, by comparing the thumb impression on the receipt (exhibit

52), with the thumb impression of the accused-respondent Kishanbhai. This was however not done. The lapse committed by the prosecution in not producing Premchand Shankerlal as a witness, could have easily been overcome by proving the identity of the person who had pledged the anklets, by identifying the thumb impression on the receipt (exhibit 52), in accordance with law. In case the thumb impression turned out to be that of the accused Kishanbhai, he would be unmistakably linked with the crime. In case it was found not to be the thumb impression of the accused Kishanbhai, his innocence could also have been inferred. According to the High Court this important lapse in proving the prosecution case before the Trial Court, had resulted in a major obstacle in establishing the guilt/innocence of the accused.

(c) It is also the case of the prosecution, that when the accused Kishanbhai was apprehended, a sum of Rs.940/- was recovered from his possession. According to the prosecution story the accused Kishanbhai had pledged the anklets at Mahavir Jewellers with Premchand Shankerlal for a sum of Rs. 1,000/-. In order to link the money recovered from his possession at the time of his detention, it was imperative for the prosecution to establish how and why a sum of Rs.940/- only, was recovered from the possession of the accused Kishanbhai. He ought to have been in possession of at least Rs.1,000/- i.e., the amount given to him by Premchand Shankerlal when he pledged the anklets at his shop, even if it is assumed that he had no money with him when he had pawned the anklets. This important link having not been established by the prosecution, breaks the chain of events necessary to establish the guilt of the accused Kishanbhai, and constitutes a serious lapse in the prosecution evidence.

(d) It is apparent from the prosecution story, that the victim Gomi was raped. In establishing the factum of the rape the prosecution had relied upon the note prepared at the time of conducting the post-mortem examination of the deceased Gomi. The same inter alia reveals, that dry blood was present over the labia, and deep laceration of subcutaneous tissues was present on the left margin of the vaginal opening, just above the posterior commission. The hymen was also found ruptured at 3 and 6,O’ clock. It is therefore, that the accused was deputed for being subjected to medical examination, during the course of investigation. For the above purpose he was examined by Dr. P.D. Shah. In fact Dr. P.D. Shah was a cited witness before the Trial Court. Despite the above Dr. P.D. Shah was not examined as a prosecution witness. Clearly a vital link in a chain of events, to establish the rape of the victim Gomi came to be broken consequent upon by the non-examination of Dr. P.D. Shah as a prosecution witness.

(e) The High Court has also noticed, that even the report/certificate given by the medical officer relating to the medical examination of the accused Kishanbhai was not produced by the prosecution before the Trial Court. It is apparent, that the lapse in not producing Dr. P.D. Shah as a prosecution witness, may have been overcome if the report prepared by him (after examining the accused Kishanbhai) was placed on the record of the Trial Court, after being proved in accordance with law. The action of prosecution in not producing the aforesaid report before the Trial Court, was another serious lapse in proving the case before the Trial Court. This had also resulted a missing vital link, in the chain of events which could have established, whether or not accused Kishanbhai had committed rape on victim Gomi.

(f) The High Court having noticed the injuries suffered by Gomi, a six year old girl child on her genitals, had expressed the view, that the same would have resulted in reciprocal injuries to the male organ of the person who had committed rape on her. It was pointed out, that if the accused Kishanbhai had been sent for medical examination the testimony or the report of the medical officer would have revealed the presence of smegma around the corona-glandis, which would have either established innocence or guilt of the accused, specially if the accused had been medically examined within 24 hours. In the instant case the sequence of the events reveal, that the occurrence had been committed between 6:00 p.m. to 8:00 p.m. on 27.2.2003. At the time of recovery of the body of deceased Gomi from Jivi’s field, at about 9:00 pm, it came to be believed that she had been subjected to rape. The accused Kishanbhai was shown to have been formerly arrested at 6:40 a.m. on 28.2.2003 (even if the inference drawn by the High Court, that the accused Kishanbhai was in police custody since 9:00 p.m. on 27.2.2003 itself, is ignored). The accused could have been medically examined within a period of 24 hours of the occurrence. The prosecution case does not show whether or not such action was taken. This lapse in the investigation of the case, had also resulted the omission of a vital link in the chain of events which would have unquestionably established the guilt of the accused Kishanbhai of having committed rape (or possibly his innocence).

(g) It needs to be noticed, that when the accused Kishanbhai was arrested, there were several injuries on his person. The said injuries were also depicted in his arrest panchnama. At 7:15 am on 28.2.2003, the accused Kishanbhai filed a first information report alleging, that he was beaten by some of the relatives of the victim Gomi, as also, by some unknown persons accompanying the search party, under the suspicion/belief, that he was responsible for the occurrence. In the above first information report, the accused Kishanbhai had also depicted the nature of injuries suffered by him. The statement of the investigating officer Ranchodji Bhojrajji Chauhan PW14 reveals, that the accused Kishanbhai had been sent to Civil Hospital, Ahmedabad, for his medical examination. Neither the doctor who had examined the accused was produced as a prosecution witness, nor the report/certificate given by the medical officer disclosing the details of his observations/findings was placed on record. This evidence was vital for the success of the prosecution case. According to the High Court, blood of group “B +ve” was found on the clothes of the accused Kishanbhai. The important question to be determined thereupon was, whether it was his own blood or blood of the victim Gomi. The statement of the medical officer who had examined the accused Kishabhai, when he was sent for medical examination to Civil Hospital, Ahmedabad, would have disclose whether or not accused Kishanbhai had any bleeding injuries. The importance of nature of the injuries suffered by the accused Kishanbhai emerges from the fact, that both the accused Kishanbhai and the victim Gomi had the same blood group “B +ve”. An inference could have only been drawn that the blood on his clothes was that of the victim, in case it was established that the accused-respondent Kishanbhai had not suffered any bleeding injuries, and therefore, the possibility of his own blood being on his clothes was ruled out. This important link in the chain of events is also missing from the evidence produced by the prosecution, and constitutes a serious lapse in the investigation/prosecution of the case.

In view of the above factual position, the High Court made the following observations “Looking to the advancement in the field of medical science, the investigating agency should not have stopped at this stage. Though ABO system of blood grouping is one of the most important system, which is being normally used for distinguishing blood of different persons, there are about 19 genetically determined blood grouping systems known to the present day science, and it is also known that there are about 200 different blood groups, which have been identified by the modern scientific methods (Source: Mc-Graw-Hill Encyclopedia of Science and Technology, Vol.2). Had such an effort been made by the prosecution, the outcome of the said effort would have helped a lot to the trial Court in ascertaining whether the accused had in fact visited the scene of offence.” This also constitutes a glaring lapse in the investigation of the crime under reference.

There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim Gomi was, in fact on the clothes of the accused-respondent Kishanbhai. This scientific investigation would have unquestionably determined whether or not the accused-respondent was linked with the crime. Additionally, DNA profiling of the blood found on the knife used in the commission of the crime (which the accused-respondent, Kishanbhai had allegedly stolen from Dinesh Karshanbhai Thakore PW6), would have uncontrovertibly determined, whether or not the said knife had been used for severing the legs of the victim Gomi, to remove her anklets. In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in carrying out an effective investigation to genuinely determine the culpability of the accused-respondent Kishanbhai.

(h) It is also apparent from the complaint submitted by Bababhai Naranbhai Solanki PW 2, that he had been informed by one Kalabhai Ganeshbhai, that he had seen the accused Kishanbhai taking away Gomi. In such an event, the proof of the fact of the accused-respondent having abducted Gomi could have only been substantiated, through the statement of Kalabhai Ganeshbhai who had allegedly actually seen the accused Kishanbhai taking her away. According to the High Court, for the reasons best known to it, the prosecution did not produce Kalabhai Ganeshbhai as a witness. Even though according to the High Court the above-mentioned Kalabhai Ganeshbhai was a resident in one of the peon quarters, and was also a government servant, the absence of the evidence of the above factual position, results in a deficiency in the confirmation of a factual position of substantial importance, from the chain of events necessary for establishing the last seen evidence.

(i) It is also apparent, that there is no dispute about the recovery of a green blood stained “dupatta”, from the person of the victim. The green blood stained “dupatta” (veil) was found by the medical officer while conducting the post-mortem examination on Gomi. The existence of the green “dupatta” was also duly mentioned in the post-mortem report. According to the High Court, none of the prosecution witnesses had referred to the factum of the victim having worn a green “dupatta”. According to the prosecution evidence, the deceased was wearing a red frock and panties, whereas, the accused was wearing a full sleeve white shirt and green trousers. According to the High Court, if neither the victim nor the accused had a green “dupatta”, a question would arise, as to how the green blood stained “dupatta” was found on the dead body of the victim. Even leading to the inference of the presence of a third party at the time of occurrence. The above omission in not explaining the presence of the green “dupatta”, has also been taken by the High Court, as a glaring omission at the hands of the prosecution in the process of investigation/prosecution of the charges levelled against the accused Kishanbhai.

(j) While deposing before the Trial Court, Dinesh Karshanbhai Thakore PW6, affirmed that the accused-respondent Kishanbhai had approached his “lari” for the first time to purchase a “dabeli” on 27.2.2003. It is, therefore, apparent that Dinesh Karshanbhai Thakore PW6 had not known the accused-respondent before 27.2.2003. In the above view of the matter, it was imperative for the investigating agency to hold a test identification parade in order to determine whether Dinesh Karshanbhai Thakore PW6, had correctly identified the accused-respondent, as the person who had come to his “lari” to purchase a “dabeli” on 27.2.2003. And also whether he was the same person, who had stolen a knife from his “lari” on 27.2.2003. This is also a serious deficiency in the investigation/prosecution of the case.

(k) Bababhai Naranbhai Solanki PW2, the complainant in the present case, during the course of his examination-in-chief, observed as under :

“This incident was occurred on 27/2/2003, on that day Lilaben came to my house for pregnancy. On the day of the incident at 6.00 o clock in the evening I came to know that Gomiben the daughter of Lilaben is not found. Therefore, all our relatives have started searching her. We went to the quarter of my father, and inquired about the Gomiben, my father told that I saw Gomiben with Lalis Sister in law brother Kisan, he gave ice cream to Gomi. Therefore, we have searched in the quarters and other places. At around 8.00 o clock in the night kishan was coming from police Station, we have started asking him, at that time along with me Shri Jagabhai Molabhai, Mohanbhai Molabhai, Hirabhai were present. This police Chawky means Gulbai Tekra Police Chawky. He told me that I have left her at Jivivala Field. Therefore, we went at the Jivivala Field, at around 8.00 or 9.00 o clock, we went there and we found Gomiben in dead conditions, she had a several injuries on her head and other parts of the body. She was being raped.” From the above statement, it is apparent that Gomi was found missing for the first time at 6:00 pm. The search for her began immediately thereafter. The search party met the accused-respondent Kishanbhai coming from the side of the police station at 8:00 p.m. All the prosecution witnesses have been equivocal about the fact that Gomi went missing at about 6:00 p.m., i.e., the time when she was last seen in the company of the accused-respondent Kishanbhai, and thereafter, the search party met Kishanbhai at 8:00 pm. In order to give credence to the prosecution version, it was imperative to establish that it was possible for the accused-respondent Kishanbhai, after having taken Gomi at 6:00 p.m., to have stopped at the “lari” of Dinesh Karshanbhai Thakore PW6, purchased a “dabeli” from him. Thereupon, to have had time to steal his knife, the accused-respondent proceeded on with Gomi to Jivi’s field. There ought to have been enough time for him thereafter to have raped her, then assaulted her with bricks on her head and other parts of the body leading to her death, and finally to cut her legs just above her ankles, to remove her anklets. He should thereupon have also had time to hide the knife used in the commission of the crime, under the stones. And thereafter further time, to have taken the anklets to Mahavir Jewellers so as to pawn the same with Premchand Shankarlal Mehta, as also, time to execute a receipt in token thereof. Over and above the above, he ought have had time, to visit his residence so as to able to wear a fresh shirt i.e., the shirt which he was wearing when he was detained. After all that, he should have had time to cover the area from Jivi’s field to Premchand Shankarlal Mehta’s shop and further on from the above shop to his residence and finally from his residence till the place where he was detained. It is difficult to appreciate how all the activities depicted in the prosecution story, could have been carried out from 6:00 p.m. on 27.2.2003 to 8:00 p.m. on the same day, i.e., all in all within a period of two hours. It is in the above context that the cross-examination of Naranbhai Manabhai Solanki PW5, assume significance. Relevant extract from his cross-examination is being reproduced hereunder :

“It is true that the accused was coming from police Chawky at around 8.00 or 8.30 p.m. as I was not wearing the watch I cannot say the exact time. It is true that it takes 15 to 20 minutes to go to Panjrapole from my quarters, and it will take 30 to 35 minutes to go to the field of JIVI. It is true that it will taken half an hour to come to the Office of BSNL through Jivi’s Field and C.N. Vidhayalaya. It is true that from the Jivis field towards Panjrapole and through Panjrapole main road towards BSNL office, by walking it will take 40 minutes. It is true that both the roads are public roads, and many people are passing through this road.” (emphasis is ours) Whether or not the above sequence of events could have taken place in the time referred to above, would have been easily overcome if the prosecution had placed on record a sketch map providing details with regard to the distance between different places. In that event, it would have become possible to determine whether the activities at different places, projected through the prosecution version of the incident were possible. In the absence of any knowledge about the distance between the residence of the victim Gomi as well as that of the accused from the Polytechnic or from Jivi’s field; it would be impossible to ascertain the questions which emerge from the cross-examination of Naranbhai Manabhai Solanki PW5. Had a sketch map been prepared or details with regard to the distance been given, the courts concerned would have been able to determine all that was alleged in the prosecution version of the incident. This deficiency in the prosecution evidence, must be construed as a serious infirmity in the matter.

12. We would now like to deal with the discrepancies found in the evidence produced by the prosecution before the Trial Court. We would also simultaneously summarise the effect of defences adopted on behalf of the accused-respondent Kishanbhai. These aspects of the matter are also being summerised hereunder, so as to enable us to effectively deal with the submissions advanced at the behest of the State. These aspects of the matter are liable to be taken into consideration, to determine whether or not, a complete chain of events stands proved to establish the guilt of the accused-respondent. The above considerations are summarized hereunder:

(a) The post mortem report relied upon by the prosecution leaves no room for any doubt that injuries on the genitals of Gomi were post mortem in nature. The question which arises for consideration is whether the injuries under reference had been inflicted on the victim first, and thereupon, rape was committed on the victim. It is natural to assume, that the first act of aggression by the person who had committed assault on Gomi, was by inflicting injuries on her head and other parts of the body, only thereafter the legs just above the ankles, would have been cut (with the object of removing her anklets). It is not possible for us to contemplate that the legs of the deceased were cut whilst she was in her senses, is incomprehensible and therefore, most unlikely. Now, the question to be considered is, whether it was humanly possible for even the most perverted person, to have committed rape on a child, who had been killed by causing injuries on head and other parts of body, and after her feet had been severed from her legs. We would have no hesitation by responding in the negative. The prosecution in the instant case apparently projected a version including an act of rape, which is impossible to accept on the touchstone of logic and common sense.

(b) The evidence produced by the prosecution also reveals, that pubic hair of the accused-respondent Kishanbhai, had been examined by the scientific officer of the Forensic Science Laboratory. The report submitted by the Forensic Science Laboratory (Exhibit 48) reveals, that there was neither any semen nor any blood on the pubic hair of the accused. Reference to the possibility of there being blood on the public hair of the accused-respondent Kishanbhai emerges from the fact, that the post mortem report of the deceased revealed, that there was blood on the vagina of the deceased. Whilst accusing the respondent-Kishanbhai of the offence under Section 376 of the Indian Penal Code, it was imperative for the prosecution to have kept in its mind the aforesaid aspects of the matter. Absence of semen or blood from the pubic hair of the accused-respondent, would prima facie exculpate him from the offence of rape.

(c) According to the testimony of the complainant Bababhai Naranbhai Solanki PW2, the accused-respondent Kishanbhai was wearing a white shirt at the time of occurrence. It is, therefore, when a white shirt was found covering the dead body of the victim Gomi, he had identified the same as the shirt which the accused-respondent Kishanbhai was wearing, before the offence was committed. From the prosecution story, as it emerged from the statements of different witnesses, it is apparent that Bababhai Naranbhai Solanki PW2, had had no occasion to have seen the accused-respondent Kishanbhai, wearing the said white shirt. When Bababhai Naranbhai Solanki PW2, was questioned as to how he knew that the accused-respondent was wearing a white shirt, when he first saw the shirt covering the dead body of the victim, his response was, that he had been told about that by his father Naranbhai Manabhai Solanki PW5. In the above view of the matter, the question arises whether the testimony of Bababhai, Naranbhai Solanki PW2 about the shirt referred to above was truthful. And whether his testimony can be described as fair and honest.

(d) Additionally when the accused–respondent Kishanbhai was arrested, the T-shirt worn by him, was taken from him by recording a panchnama. The said T-shirt is available on the record of the Trial Court as Exhibit-39. It is not a matter of dispute that the T-shirt (Exhibit 39), worn by the accused- respondent, Kishanbhai at the time of his arrest, is actually a white T- shirt with a trident design on it. But, as per the narration recorded by Bababhai Naranbhai PW2, contained in the complaint which constituted the basis of registering the first information, it is mentioned that the accused-respondent Kishanbhai was wearing a black T-shirt at the time of his detention. It is apparent from the factual position noticed hereinabove, that the factual position expressed by the complainant Bababhai Naranbhai Solanki PW2 was absolutely incorrect, and contrary to the factual position. In the above view of the matter, a question would arise, whether the deposition of Bababhai Naranbhai Solanki PW2 was fair and honest.

(e) According to the prosecution version of the incident, the search party met the accused-respondent Kishanbhai at about 8:00 p.m. The said party had thereupon proceeded to Jivi’s field, from where the dead body of the victim was recovered. According to Naranbhai Manabhai Solanki PW5, after finding the dead body, he had proceeded to the police station. At the police station, he had requested the police personnel to visit the site of occurrence. Simultaneously, Naranbhai Manabhai Solanki PW5 had stated, that when enquiries were being made from Kishanbhai, police personnel had taken away the accused-respondent. According to the testimony of Naranbhai Manabhai Solanki PW5, therefore, at the most, the accused-respondent must be deemed to have been taken into police custody from about 9:00 p.m. on 27.2.2003. It is apparent, that the occurrence had come to the knowledge of a large number of persons constituting the search party, when the victim’s body was found on Jivi’s field. Even before that, the accused- respondent was already in police custody. As if, the police had already concluded on the guilt of Kishanbhai, even before the recovery of Gomi’s body from Jivi’s farm. Despite the above, the arrest of the accused- respondent Kishanbhai was shown at 6.40 a.m. on 28.3.2003. The detention of the accused-respondent Kishanbhai from 9:00 pm on 27.2.2003 to 6.40 a.m. on 28.2.2003, shows that the prosecution has not presented the case in the manner the events unfolded to the investigating agencies.

(f) It also needs to be noticed, that the inquest panchnama besides mentioning the amputation of the legs of the victim above her ankles, also records, that the silver anklets worn by Gomi were missing. In this behalf, it would also be relevant to mention, that even though the inquest panchnama was drawn at 0030 a.m. on 28.2.2003, the complaint resulting in the registration of the first information report was lodged by Bababhai Naranbhai Solanki PW2 at 3:05 a.m. on 28.02.2003. It is strange, that the inquest panchnama should be drawn before the registration of the first information report. It is also strange as to how, while drawing the inquest panchnama, the panchas of the same could have recorded, that after amputation of the victim’s legs, her silver anklets had been taken away by the offender. There was no occasion for the panchas to have known, that Gomi used to wear silver anklets. Accordingly, there was no occasion for them to have recorded that the silver anklets usually worn by Gomi had been taken away by the offender.

(g) From the prosecution version (emerging from the evidence recorded before the Trial Court), it is apparent, that the search party, as also, the relatives of the victim were aware at about 8:00 p.m. on 27.2.2003 that Gomi had been murdered, with a possibility of her having been raped also, and her silver anklets had been stolen. Despite the above, no complaint whatsoever came to be filed in connection with the above occurrence at the police station on 27.2.2003, despite the close coordination between the search party and the police from 8:00 pm onwards no 27.2.2003 itself. The complaint leading to the filing of the first information was made at about 3:05 a.m. on 28.2.2003. Not only is the delay of seven hours in the registration of the complaint ununderstandable, but the same is also rendered extremely suspicious, on the account of the fact that the accused- respondent Kishanbhai is acknowledged to be in police detention since 9:00 p.m. on 27.2.2003 itself. This may be the result of fudging the time and date at which the victim Gomi went missing, as also, the time and date on which the body of the victim was discovered resulting in the discovery of the occurrence itself. The question which arises for consideration is, whether the investigation agency adopted the usual practice of padding so as to depict the occurrence in a manner different from the actual occurrence. A question also arises as to why it was necessary for the investigating agency to adopt the above practice, despite the fact that it was depicted as an open and shut case.

(h) As noticed above, that from the statements of Bababhai Naranbhai Solanki PW2 and Naranbhai Manabhai Solanki PW5, it is apparent that the accused was detained by the police informally around 9:00 p.m. on 27.2.2003. It is also essential to notice, that an acknowledgement was made to the above effect even by Sub Inspector Naranbhai Lalbhai Desai PW13, who had commenced investigation of the crime under reference. It is apparent that when Bababhai Naranbhai Solanki PW2, had contacted him with details about the offence under reference, he had not recorded any entry in the station diary before leaving the police station. This constitutes a serious lapse in itself. In his cross-examination, he had affirmed that he was taken by Bababhai Naranbhai Solanki PW2, i.e., the complainant to the scene of occurrence. Having gone to the scene of occurrence, and having made on the spot investigation, he acknowledged having returned to the police station. In his statement, he accepted, that when he had returned to the police station after visiting the site of occurrence, the accused- respondent Kishanbhai was already present at the police station. When questioned, he could not tender any explanation, as to how the accused- respondent Kishanbhai had come to the police station. In his statement as a witness, he had expressed, that for the first time he had seen the accused-respondent Kishanbhai only on 28.2.2003 at around 5:30 a.m. Whereafter, the accused-respondent was formally arrested at 6.40 a.m. The inconsistency between the statements made by the complainant (Bababhai Naranbhai Solanki PW2) and his father (Naranbhai Manabhai Solanki PW5) on the one hand, and by Sub-Inspector Naranbhai Lalbhai Desai PW13 on the other, discloses a serious contradiction with respect to the time of the detention of the accused-respondent Kishanbhai. It needs to be noticed, that it was an aberration for Naranbhai Lalbhai Desai PW13, to have left the police station without making an entry in the station diary. Why should a police officer, investigating a crime of such a heinous nature, commit such a lapse? The fact that he did so, is not a matter of dispute. The truth of the matter is, that Naranbhai Lalbhai Desai PW13, did not make any note either in the station diary or in any other register; he did not take any informal complaint from the complainant, even though he had been apprised about the commission of an offence. It is therefore clear that Naranbhai Lalbhai Desai PW13, had left the police station without making an entry depicting the purpose of his departure. All this further adds to the suspicion of the manner in which investigation of the matter was conducted.

(i) So far as the statement of Dinesh Karshanbhai Thakore PW6 is concerned, he had supported the prosecution story by deposing, that the accused had visited his “lari” with a small child, about seven years old. He had further asserted, that the accused-respondent Kishanbhai had purchased a “dabeli” from him. He had also testified that the accused –respondent had asked for a knife but he had refused to give it to him because, at the time when the accused-respondent had visited the “lari”, there were several customers waiting for purchasing “dabelis”. He further confirmed, that the accused-respondent had stolen a knife, used by him for cutting vegetables from his “lari”. Another important aspect of the matter, out of the statement of Dinesh Karshanbhai Thakore PW6 is, that he identified the shirt that the accused-respondent Kishanbhai was wearing, at the time when he had visited his “lari” for purchasing a “dabeli” on 27.2.2003. He had also identified the red frock which the victim was wearing at the said juncture. Additionally, he identified the knife which the accused-respondent Kishanbhai had stolen from his “lari”. The statement of Dinesh Karshanbhai Thakore PW6 was considered to be untrustworthy by the High Court, primarily for the reason that he could identify the shirt worn by the accused-respondent, Kishanbhai when he had approached his “lari” for the purchase of a “dabeli”, at which juncture, the accused-respondent Kishanbhai may have remained at the “lari” at the most for 10 to 15 minutes, when there was a rush of customers. As against the above, he had remained with the accused-respondent Kishanbhai at Navrangpur Police Station, Ahmedabad, for approximately four hours. During the course of his cross-examination, he could not depose about the sort of shirt which the accused respondent was wearing, at the Navrangpur Police Station, Ahmedabad. It is, therefore, apparent that Dinesh Karshanbhai Thakore PW6 was deposing far in excess of what he remembered, and/or in excess of what was actually to his knowledge. He appears to be a tutored witness. This aspect of the matter also renders the testimony of Dinesh Karshanbhai Thakore PW6, suspicious.

(j) There is yet another aspect of the controversy relating to Dinesh Karshanbhai Thakore PW6. The investigating agency became aware from the disclosure statement of the accused-respondent Kishanbhai tendered on 1.3.2003, that he had procured the weapon of offence by way of theft from the “lari” of Dinesh Karshanbhai Thakore PW6. The above knife was recovered at the instance of the accused-respondent Kishanbhai on 1.3.2003, in the presence of panch witnesses. In the above view of the matter, in the ordinary course of investigation, it would have been imperative for the investigating agency to have immediately approached Dinesh Karshanbhai Thakore PW6, to record his statement. His statement was extremely important for the simple reason, that it would have connected the accused with the weapon with which the crime had been committed, as also with the victim. Despite the above, the investigating agency recorded the statement of Dinesh Karshanbhai Thakore PW6, for the first time on 4.3.2003. No reason is forthcoming why his statement was not recorded either on 1.3.2003, or on the intervening dates before 4.3.2003. The inordinate delay by the investigating agency, in confirming the version of the accused- respondent, in respect of the weapon of the crime, renders the prosecution version suspicious. Such delay would not have taken place in the ordinary course of investigation. If there were good reasons for the delay, they ought to have been made known to the Trial Court by way of reliable evidence. This fact too raises a doubt about the correctness of the prosecution version of the incident.

The above discrepancies in the prosecution version, were duly noticed by the High Court. These constitute some of the glaring instances recorded in the impugned order. Other instances of contradiction were also noticed in the impugned order. It is not necessary for us to record all of them, since the above instances themselves are sufficient to draw some vitally important inferences. Some of the inferences drawn from the above, are being noticed below. The prosecution’s case which mainly rests on the testimony of Bababhai Naranbhai Solanki PW2, Naranbhai Manabhai Solanki PW5 and Dinesh Karshanbhai Thakore PW6, is unreliable because of the glairing inconsistencies in their statements. The testimony of the investigating officer Naranbhai Lalbhai Desai PW13 shows fudging and padding, making his deposition untrustworthy. In the absence of direct oral evidence, the prosecution case almost wholly rested on the above mentioned witnesses. It is for the above reasons, that the High Court through the impugned order, considered it just and appropriate to grant the accused-respondent Kishanbhai, the benefit of doubt.

13. Learned counsel for the appellant, in order to support the submissions advanced before this Court in the present criminal appeal (which have been recorded in paragraph 9 hereinabove), with judicial precedent, placed reliance on a number of judgments rendered by this Court. We shall now summarise hereunder, the judgment relied upon, as also, the submissions of the learned counsel on the basis thereof:

(a) Referring to the judgment rendered by this Court in Ram Prasad & Ors. v. State of UP, (1974) 1 SCR 650, it was asserted at the hands of the learned counsel for the appellant, that non-examination of some of the eye- witnesses would not introduce a fatal infirmity to the prosecution case, specially when conviction could be based on evidence produced by the prosecution.

(b) Reference was also made to Takhaji Hiraji v. Thakore Kubersing Camansing & Ors., (2001) 6 SCC 145, and it was pointed out, that this Court has ruled that in cases where witnesses already examined were reliable, and the testimony coming from the mouth was unimpeachable, a court could safely act upon the same uninfluenced by the factum of non-examination of other witnesses. Yet again the conclusion was, that reliable evidence should be available, to determine the culpability of an accused, and in the above view of the matter it would be irrelevant whether some others who could have deposed on the facts in issue had not been examined.

(c) Based on the judgment rendered in Laxman Naik v. State of Orissa, (1994) 3 SCC 381, it was submitted, that in a case relating to a seven year old child, who had been raped and murdered by her own uncle, relying upon incriminating evidence and testimony of witnesses, it came to be held that when circumstances form a complete chain of incidents, then the same is sufficient to establish, that the accused is the perpetrator of the crime and conviction can be based on the complete chain of circumstantial evidence.

(d) Based on the judgment in State of Maharashtra v. Suresh, (2000) 1 SCC 471, where four years’ girl child was a victim of rape and murder, it was contended, that this Court had held that it was open to a court to presume that the accused knew about the incriminating material or dead body due to his involvement in the alleged offence. When he discloses the location of such incriminating material without disclosing the manner in which he came to know of the same, the Court would presume that the accused knew about the incriminating material.

(e) Relying on the judgment in Amar Singh v. Balwinder Singh, 2003 (2) SCC 518, it was contended, that where the prosecution case is fully established by the testimony of witnesses which stood corroborated by medical evidence, any failure or omission of the investigating officer could not be treated as sufficient to render the prosecution case doubtful or unworthy of belief. This determination leads to the same inference, namely, when reliable evidence to prove the guilt of an accused is available, lapses in investigation would not result in grant of the benefit of doubt to an accused.

(f) Referring to State Government of NCT Delhi v. Sunil, (2001) 1 SCC 652, it was asserted, that in a case where a child of four years was brutally raped and murdered and incriminating articles were recovered on the basis of the statement of the accused, the same could not be discarded on the technical ground that no independent witness was examined.

(g) Referring to the judgment in Joseph v. State of Kerala, (2005) 5 SCC 197, wherein, according to the learned counsel, it was held that where the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant, then the same can be the basis of the conviction of the accused. This, according to learned counsel, represents the manner of proving the guilt of an accused based on circumstantial evidence.

(h) Based on the judgment in State of UP v. Satish (2005) 3 SCC 114, it was contended that it could not be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. Therefore, the facts surrounding the delay ought to be considered in every case to determine whether or not the testimony is rendered suspicious.

(i) Relying on the judgment in Bishnu Prasad Sinha v State of Assam, (2007) 11 SCC 467, it was submitted, that in the above case where a child of 7-8 years was a victim of rape and murder, the grounds that the investigation was done in an improper manner did not render the entire prosecution case to be false. Namely, where reliable evidence is available, the same would determine the guilt of an accused.

(j) Referring to the judgment in Aftab Ahmad Anasari v. State of Uttaranchal, (2010) 2 SCC 583, it was asserted, that where a child of five years was a victim of rape and murder and the accused disclosed the location of the crime as also of the incriminating articles, the said disclosure was admissible and would constitute a complete chain in the circumstances. Further, according to the learned counsel, it was held that the inquest panchnama may not contain every detail and the absence of some details would not affect the veracity of the deposition made by witnesses. Needless to mention, that absence of vital links in the claim of circumstantial evidence would result in the exoneration of the accused.

(k) Reliance was placed on Sambhu Das v. State of Assam, (2010) 10 SCC 374, so as to contend, that any discrepancy occurring in the inquest report or the post mortem report could neither be fatal nor be termed as a suspicious circumstance as would warrant a benefit to the accused and the resultant dismissal of the prosecution case. Needless to add, that there should be sufficient independent evidence to establish the guilt of the accused.

(l) Based on the judgment in Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, it was contended, that in a case of murder and rape of a ten year old child, it was found that where the circumstances taken cumulatively led to the conclusion of guilt and no alternative explanation is given by the accused, the conviction ought to be upheld. This case reiterates that in a case based on circumstantial evidence the evidence should be such as would point to the inference of guilt of the accused alone and none others.

(m) Relying on Rajendra PrahladraoWasnik v. State of Maharashtra, (2012) 4 SCC 37, it was submitted that where a three years old child was a victim of rape and murder by the accused who lured her under the pretext of buying biscuits, circumstances showed the manner in which the trust/belief/relationship was violated resulting in affirming the death penalty imposed on the accused.

14. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the appellant, which have been duly noticed in paragraph 9 hereinabove. It is also relevant for us to record, that the learned counsel for the appellant did not advance a single submission in addition to the contentions we have noticed in paragraph 9 above. The submissions advanced at the hands of the learned counsel for the appellant, were sought to be supported by judgments rendered by this Court, all of which have been referred to in paragraph 13 above. The submissions advanced at the hands of the learned counsel for the appellant, based on each of the judgments cited, have also been recorded by us in the said paragraph. Having considered the totality of the facts and circumstances of this case, specially the glaring lapses committed in the investigation and prosecution of the case (recorded in paragraph 11 of the instant judgment), as also the inconsistencies in the evidence produced by the prosecution (summarized in paragraph 12 hereinabove), we are of the considered view, that each one of the submissions advanced at the hands of the learned counsel for the appellant is meritless. For the circumstantial evidence produced by the prosecution, primary reliance has been placed on the statements of Bababhai Naranbhai Solanki PW2, Naranbhai Manabhai Solanki PW5, and Dinesh Karshanbhai Thakore PW6. By demonstrating inconsistencies and infirmities in the statements of the above witnesses, their statements have also been rendered suspicious and accordingly unreliable. There is also a serious impression of fudging and padding at the hands of the agencies involved. As a matter of fact, the lack of truthfulness of the statements of witnesses has been demonstrated by means of simple logic emerging from the factual position expressed through different prosecution witnesses (summarized in paragraphs 11 and 12 above). The evidence produced to prove the charges, has been systematically shattered, thereby demolishing the prosecution version. More than all that, is the non production of evidence which the prosecution has unjustifiably withheld, resulting in dashing all the States efforts to the ground. It is not necessary for us to record our detailed determination on the submissions advanced at the hands of the learned counsel for the appellant, for such reasons clearly emerge from the factual position noticed in paragraphs 11 and 12 hereinabove. Recording of reasons all over again, would just be a matter of repetition. In view of the above, we find no merit in this appeal and the same is accordingly dismissed.

15. The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.

16. As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/-.

17. Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused-respondent innocent, by upholding the order of the High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources – ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.

18. Numerous petitions are filed before this Court, praying for anticipatory bail (under Section 438 of the Code of Criminal Procedure) at the behest of persons apprehending arrest, or for bail (under Section 439 of the Code of Criminal Procedure) at the behest of persons already under detention. In a large number of such petitions, the main contention is of false implication. Likewise, many petitions seeking quashing of criminal proceeding (filed under Section 482 of the Code of Criminal Procedure) come up for hearing day after day, wherein also, the main contention is of fraudulent entanglement/involvement. In matters where prayers for anticipatory bail or for bail made under Sections 438 and 439 are denied, or where a quashing petition filed under Section 482 of the Code of Criminal Procedure is declined, the person concerned may have to suffer periods of incarceration for different lengths of time. They suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.

19. The situation referred to above needs to be remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.

20. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course-content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer departmental action, for their lapses.

21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.

22. A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the concerned Home Secretaries, shall ensure compliance of the directions recorded above. The records of consideration, in compliance with the above direction, shall be maintained.

23. We hope and trust the Home Department of the State of Gujarat, will identify the erring officers in the instant case, and will take appropriate departmental action against them, as may be considered appropriate, in accordance with law.

24. The instant criminal appeal is accordingly disposed of.


Credit: Indian Kanoon

M/S.Mamta Surgical Cotton vs Asstt. Commnr. (Anti-Evasion) 1947 LIJR-SC

M/S.Mamta Surgical Cotton vs Asstt. Commnr. (Anti-Evasion) 1947

LawGlobal-Hub Indian Judgment Report – Supreme Court

O R D E R

1. These appeals are directed against the common judgment and order passed by the High Court of Rajasthan in S.B. Civil Sales Tax Revision No. 932 of 2002 and connected matters, dated 23.01.2003. By the impugned judgment and order, the High Court has opined that “surgical cotton” is a commercially different commodity from ‘cotton’ and accordingly confirmed the order passed by the Rajasthan Tax Board, Ajmer in Appeal Nos. 509 to 512 of 2001, dated 28.06.2002.

Facts:

2. The appellant is a partnership firm registered as a dealer both under the Rajasthan Sales Tax Act, 1994 (for short, “the Act”) and the Central Sales Tax Act, 1956 (for short, “the CST Act”). The appellant carries on the business of processing the cotton and transforming it into surgical cotton.

3. The assessment years in question are 1992-93 to 1998-99. The assessee purchases cotton after paying tax at the rate of 4% and thereafter process it into surgical cotton for sale.

4. For the relevant assessment years, the assessing authority had conducted a survey on the business premises of the assessee and opined that surgical cotton produced and sold by the assessee is a separate commercial commodity from cotton and thus liable to be taxed at 4% under the Act. Accordingly, a show cause notice was issued to the assessee. The assessee took the stand that cotton and surgical cotton are not distinct commodities for the purposes of levy of tax under the Act. The said stand of the assessee was rejected by the Assessing Authority which passed an order of assessment whereby the assessee was taxed at the rate of 4% and the penalty and interest thereon, dated 28.03.2000.

5. Being aggrieved by the aforesaid order of assessment, the assessee had carried the matter by way of an appeal before the Deputy Commissioner (Appeals) Commercial Tax, Ajmer. The said authority, accepted the stand of the assessee that the process adopted for making surgical cotton out of cotton purchased does not bring into existence a new commercial commodity and that surgical cotton is nothing but another form of cotton and accordingly, allowed the appeal and granted the relief to the assessee by order dated 10.10.2000.

6. Aggrieved by the aforesaid order passed by the First Appellate Authority, the Revenue had carried the matter before the Rajasthan Tax Board, Ajmer (for short, “the Board”). The Board after considering the meaning of the expression ‘manufacture’ as defined under the Act and also placing reliance on the observations made by this Court in various decisions has come to the conclusion that the surgical cotton manufactured by the assessee is a new commercial commodity exigible to tax separately at the rate of 4% under the Act and therefore, set aside the orders passed by the First Appellate Authority and restored the orders passed by the assessing authority for the assessment years in question by order dated 28.06.2002.

7. The assessee being aggrieved by the said order passed by the Board had approached the High Court in S.B. Civil Sales Tax Revision No. 932 of 2002. The High Court has noticed Entry 16 of the notification F.4 (7) FD/Gr.IV/92-70 (S.O. No. 993), dated 04.03.1992 for the assessment year 1992-93 and analysed the submissions of parties to the lis and thereafter reached the conclusion that surgical cotton is amenable to be taxed as an independent entity and accordingly, rejected the tax revision cases and confirmed the orders passed by the Tax Board by the impugned judgment and order dated 23.01.2003.

8. It is the correctness or otherwise of the said judgment and order is the subject matter of these appeals.

9. We have heard the learned counsel appearing for the parties to the lis. We have also perused the documents on record including the judgments and orders passed by the Courts below.

Submissions:

10. Shri V. Giri, learned senior counsel for the appellant submits that by the process of transformation of cotton into surgical cotton no new commercial commodity comes into existence as a result of such process, and therefore it cannot be considered as “manufacture” of surgical cotton from cotton and thus would not be liable to tax at the rate of 4% under the Act. He would place reliance on the decision of this Court in CST v. Lal Kunwa Stone Crusher (P) Ltd., (2000) 3 SCC 525, to bring home the point, that, since the purpose of sales tax is to levy tax on sale of goods of each variety and not the sale of the raw material of which they may have been made and therefore, where commercial goods are merely subjected to some processing, they may remain commercially the same goods which cannot be taxed again in a series of sales so long as they continue to retain their identity as goods of that particular variety. He would further explain the term “manufacture” in context of the Act and draw support from the decisions of this Court in, inter alia, Sterling Foods v. State of Karnataka, (1986) 3 SCC 469 and CST v. Pio Food Packers, 1980 Supp SCC 174 and submit that that the essential feature of “manufacturing” is the utilization of original commodity and its transformation into a different commodity wherein the original article stands distinguished from the end product as an entirely different commodity and since the aforesaid is not the case herein, the process of transformation of cotton into surgical cotton would not be a manufacture for the levy of tax under the Act and therefore, the High Court has erroneously dismissed the case of appellants confirming the levy of tax on surgical cotton under the Act. Alternatively, he would submit that even if surgical cotton is assumed to be a distinct commodity from cotton, the originally purchased raw cotton has already suffered taxation at the outset and therefore, a set off has to be provided in light of the scheme of the Act and the CST Act.

11. Per contra, learned counsel for the Revenue would support the judgment and order passed by the High Court.

Relevant Provisions

12. Before we advert to test the correctness or otherwise of the aforesaid submissions, it is necessary to notice that the Entry prescribing the rate of tax on cotton for the assessment years in question, i.e., from 1992-1993 till 1998-1999. The entry has been amended vide series of seven subsequent notifications issued by the State Government. The said Entry for the aforesaid relevant years reads as under:

|Assessment    |Notification           |Entry    |Entry                 |
|Year          |                       |Number   |                      |
|              |Date        |Number    |         |                      |
|1992-93       |04.03.92    |F.4 (7)   |16       |Cotton, that is to    |
|              |            |FD/Gr.    |         |say, all kinds of     |
|              |            |IV/92-70  |         |cotton (indigenous or |
|              |            |(S.O. No. |         |imported), whether    |
|              |            |993)      |         |ginned or unginned,   |
|              |            |          |         |baled, pressed or     |
|              |            |          |         |otherwise including   |
|              |            |          |         |Cotton waste.         |
|1993-94       |12.04.93    |F.4 (56)  |Amen-ded |“after the existing   |
|              |            |FD/Gr.    |only     |words “Cotton         |
|              |            |IV/82-2   |Entry 16 |waste”….the expression|
|              |            |(S.O. No. |with     |“and Absorbent Cotton |
|              |            |8)        |imme-    |wool I.P.” shall be   |
|              |            |(Amend-men|diate    |added.”               |
|              |            |t         |effect   |                      |
|              |            |notifi-cat|         |                      |
|              |            |ion)      |         |                      |
|1994-95       |07.03.94    |F.4 (8)   |20       |Cotton, that is to    |
|              |            |FD/Gr.    |         |say, all kinds of     |
|              |            |IV/94-46  |         |cotton (indigenous or |
|              |            |(S.O. No. |         |imported), kinds of   |
|              |            |176)      |         |Readymade garments,   |
|              |            |          |         |whether ginned or     |
|              |            |          |         |unginned, baled,      |
|              |            |          |         |pressed or otherwise  |
|              |            |          |         |including Absorbent   |
|              |            |          |         |cotton wool I.P. and  |
|              |            |          |         |Cotton waste.         |
|1995-96       |27.03.95    |F.4 (11)  |25       |                      |
|              |            |FD/Gr.    |         |                      |
|              |            |IV/95-49  |         |                      |
|              |            |(S.O. No. |         |                      |
|              |            |399)      |         |                      |
|              |            |          |         |Cotton as defined in  |
|              |            |          |         |clause (iv) of Section|
|              |            |          |         |14 of the Central     |
|              |            |          |         |Sales Tax Act, 1956   |
|              |            |          |         |including absorbent   |
|              |            |          |         |cotton wool I.P. &    |
|              |            |          |         |cotton waste.         |
|1996-97       |15.03.96    |F.4 (69)  |28       |                      |
|              |            |FD/Gr.    |         |                      |
|              |            |IV/95-32  |         |                      |
|              |            |(S.O. No. |         |                      |
|              |            |267)      |         |                      |
|1997-98       |12.03.97    |F.4 (1)   |27       |                      |
|              |            |FD/Gr.    |         |                      |
|              |            |IV/97-101 |         |                      |
|              |            |(S.O. No. |         |                      |
|              |            |299)      |         |                      |
|1998-99       |09.07.98    |F.4 (14)  |29       |                      |
|              |            |FD/Gr.    |         |                      |
|              |            |IV/98-16  |         |                      |
|              |            |(S.O. No. |         |                      |
|              |            |114)      |         |                      |
|1999-2000     |26.03.99    |F.4 (4)   |39       |                      |
|              |            |FD/Gr.    |         |                      |
|              |            |IV/99-126 |         |                      |
|              |            |(S.O. No. |         |                      |
|              |            |423)      |         |                      |

13. The question which arises for our consideration and decision in these appeals is whether the manufacturing process is involved in the production of surgical cotton from cotton in terms of definition mentioned in Section 2(27) of the Act and whether the same commodity in the same entry would be liable for taxation twice specially when the scheme of Act suggests that cotton is a commodity of special importance and must be taxed only once in terms of Section 15 of the CST Act. Since the relevant entry has been amended vide successive notifications for each Assessment Year, we would analyse it sequentially.

Assessment Year 1992-93

14. For the Assessment Year 1992-93, Entry 16 as reproduced above prescribes that cotton of all kinds whether indigenous or imported and whether ginned or unginned, baled, pressed or otherwise including cotton waste is covered by this entry. This is a comprehensive inclusion of all kinds of cotton for the purposes of taxing. A reading of this entry means that the commodity cotton in all its forms namely, indigenous, imported, ginned, unginned, baled, pressed, non-pressed is liable to be taxed at the rate of 4% alongwith cotton waste. Since neither does “surgical cotton” find mention in the aforesaid entry as a commodity nor does it suitably fit into the description aforesaid, it becomes relevant to delve into the question whether the commodity in question has undergone any change in its characteristics so as to acquire a new commercial identity, that is to say, whether surgical cotton remain as cotton after having undergone transformation through various processes. In other words whether the process of conversion of cotton into surgical cotton be termed as “manufacture of surgical cotton”.

15. It is therefore relevant to notice the definition of ‘manufacture’ as defined in the dictionary clause of the Act. Section 2(27) of the Act defines the expression ‘manufacture’ as under:

“27. “Manufacture” includes every processing of goods which bring into existence a commercially different and distinct commodity but shall not include such processing as may be notified by the State Government.”

The definition aforesaid is an inclusive definition and therefore would encompass all processing of goods which would produce new commodity which is commercially different and distinctly identifiable from the original goods. The definition however excludes all such mechanisms of processing of goods which have been notified by the State Government to the said effect. Admittedly, no such exclusion in respect of the process in analysis for surgical cotton has been notified by the State Government. Therefore, the process of transformation has to be tested on the anvil of proposition whether surgical cotton is processed such that it is commercially different and distinctly identifiable than cotton.

16. The essential test for determining whether a process is manufacture or not has been the analysis of the end product of such process in contradistinction with the original raw material. In 1906, Darling, J. had subtly explained the quintessence of the expression “manufacture” in McNichol and Anor v. Pinch, [1906] 2 KB 352 as under:

“…I think the essence of making or of manufacturing is that what is made shall be a different thing from that out of which it is made.”

17. In order to understand the finer connotation of the expression ‘manufacture’, it may be useful to refer to the decision of this Court in the case of Empire Industries Limited and Ors. v. Union of India and Ors.,(1985) 2 SCC 314, wherein this Court after exhaustively noticing the views of the Indian Courts, Privy Council and this Court had stated as under:

“‘Manufacture’ implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use. “

(CCE v. Osnar Chemical (P) Ltd., (2012) 2 SCC 282; Jai Bhagwan Oil & Flour Mills v. Union of India, (2009) 14 SCC 63; Crane Betel Nut Powder Works v. Commr. of Customs & Central Excise, (2007) 4 SCC 155; CIT v. Tara Agencies, (2007) 6 SCC 429; Ujagar Prints (II) v. Union of India, 1986 Supp SCC 652; Saraswati Sugar Mills v. Haryana State Board, (1992) 1 SCC 418; Gramophone Co. of India Ltd. v. Collector of Customs, (2000) 1 SCC 549; CCE v. Rajasthan State Chemical Works, (1991) 4 SCC 473; CCE v. Technoweld Industries, (2003) 11 SCC 798; Metlex (I) (P) Ltd. v. CCE, (2005) 1 SCC 271; Aman Marble Industries (P) Ltd. v. CCE, (2005) 1 SCC 279; Shyam Oil Cake Ltd. v. CCE, (2005) 1 SCC 264; South Bihar Sugar Mills Ltd. v. Union of India, (1968) 3 SCR 21; Laminated Packings (P) Ltd. v. CCE, (1990) 4 SCC 51; Dy. CST v. Coco Fibres, 1992 Supp (1) SCC 290; CST v. Jagannath Cotton Co., (1995) 5 SCC 527; Ashirwad Ispat Udyog v. State Level Committee, (1998) 8 SCC 85; State of Maharashtra v. Mahalaxmi Stores, (2003) 1 SCC 70; Aspinwall & Co. Ltd. v. CIT, (2001) 7 SCC 525; J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. STO, (1965) 1 SCR 900; CCE v. Kiran Spg. Mills, (1988) 2 SCC 348 and Park Leather Industry (P) Ltd. v. State of U.P., (2001) 3 SCC 135)

18. The following observations by the Constitution Bench of this Court in Union of India v. Delhi Cloth & General Mills Co. Ltd., 1963 Supp (1) SCR 586 where the change in the character of raw oil after being refined fell for consideration are also quite apposite:

“14. … The word ‘manufacture’ used as a verb is generally understood to mean as ‘bringing into existence a new substance’ and does not mean merely ‘to produce some change in a substance.’”

19. For determining whether a process is “manufacture” or not, this Court in Union of India v. J.G. Glass Industries Ltd., (1998) 2 SCC 32 has laid down a two-pronged test. Firstly, whether by such process a different commercial commodity comes into existence or whether the identity of the original commodity ceases to exist and secondly, whether the commodity which was already in existence would serve no purpose but for the said process. In light of the said test it was held that printing on bottles does not amount to manufacture.

20. A Constitution Bench of this Court in Devi Das Gopal Krishnan v. State of Punjab, (1967) 3 SCR 557 observed that if by a process a different identity comes into existence then it can be said to be “manufacture” and therefore, when oil is produced out of the seeds the process certainly transforms raw material into different article for use.

21. In CCE v. S.R. Tissues (P) Ltd., (2005) 6 SCC 310, the issue for consideration was whether the process of unwinding, cutting and slitting to sizes of jumbo rolls into toilet rolls, napkins and facial tissue papers amounted to manufacture. While holding that the said process did not amount to manufacture this Court inter alia, held as under:

“12. … However, the end use of the tissue paper in the jumbo rolls and the end use of the toilet rolls, the table napkins and the facial tissues remains the same, namely, for household or sanitary use. The predominant test in such a case is whether the characteristics of the tissue paper in the jumbo roll enumerated above is different from the characteristics of the tissue paper in the form of table napkin, toilet roll and facial tissue. In the present case, the Tribunal was right in holding that the characteristics of the tissue paper in the jumbo roll are not different from the characteristics of the tissue paper, after slitting and cutting, in the table napkins, in the toilet rolls and in the facial tissues.” (emphasis supplied)

22. At this stage the discussion of difference between “processing” and “manufacture” holds much relevance to well appreciate the contention canvassed by Shri Giri that the transformation of cotton into surgical cotton would be mere processing and not manufacture.

23. According to Oxford English Dictionary one of the meanings of the word “process” is “a continuous and regular action or succession of actions taking place or carried on in a definite manner and leading to the accomplishment of some result”. In Chambers 21st Century Dictionary, the term “process” has been defined as “1. a series of operations performed during manufacture, etc. 2. a series of stages which a product, etc. passes through, resulting in the development or transformation of it.”

24. In East Texas Motor Freight Lines v. Frozen Food Express, 351 US 49 the Supreme Court of United States of America has held that the processing of chicken in order to make them marketable but without changing their substantial identity did not turn chicken from agriculture commodities into manufactured commodities.

25. A three-Judge Bench of this Court in Pio Food Packers case (supra) has dealt with the distinction between “manufacture” and “processing”. Therein the appeals were filed against the order of the Kerala High Court holding that the turnover of pineapple fruits purchased for preparing pineapple slices for sale in sealed cans is not covered by Section 5- A(1)(a) of the Kerala General Sales Tax Act, 1963. This Court while deciding whether such conversion of pineapple fruit into pineapple slices for sale in sealed cans amounted to manufacture or not has observed as follows:

“5. … Commonly, manufacture is the end result of one [or] more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place. Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity.” (emphasis supplied) This Court held that when the pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans, there is no consumption of the original pineapple fruit for the purpose of manufacture.

Pineapple retains its character as fruit and whether canned or fresh, it could be put to the same use and utilized in similar fashion.

26. In Sterling Foods case (supra) this Court has observed that processed and frozen shrimps, prawns and lobsters cannot be regarded as commercially distinct commodity from raw shrimps, prawns and lobsters. The aforesaid view has further been adopted and applied by this Court in Shyam Oil Cake Ltd. case (supra) wherein the classification of refined edible oil after refining was under consideration and on similar lines it was held that the process of refining of raw edible vegetable oil did not amount to manufacture. In Aman Marble Industries case (supra), this Court has held that the cutting of marble blocks into smaller pieces would not be a process of manufacture for the reason that no new and distinct commercial product came into existence as the end product still remained the same and thus its original identity continued.

27. This Court in Crane Betel Nut Powder Works case (supra) citing the earlier decision in Brakes India Ltd. v. Supdt. of Central Excise, (1997) 10 SCC 717 wherein the process of drilling, trimming and chamfering was said to amount to “manufacture”, has reiterated that if by a process, a change is effected in a product and new characteristic is introduced which facilitates the utility of the new product for which it is meant, then the process is not a simple process, but a process incidental or ancillary to the completion of a manufactured product. In Kores India Ltd. v. CCE, (2005) 1 SCC 385 the cutting of duty-paid typewriter/telex ribbons in jumbo rolls into standard predetermined lengths was considered by this Court and it was held that such cutting brought into existence a commercial product having distinct name, character and use and amounted to “manufacture” and attracted the liability to duty. In Standard Fireworks Industries v. Collector of Central Excise, (1987) 1 SCC 600 this Court held that cutting of steel wires and the treatment of paper is a process for the manufacture of goods in question.

28. In Lal Kunwa Stone Crusher case (supra), the decision relied upon by Shri Giri, this Court has considered that whether on crushing stone boulders into gitti, stone chips and dust different commercial goods emerge so as to amount to manufacture as per the definition of “manufacture” under Section 2(e-1) of the U.P. Sales Tax Act, 1948 and observed that even if gitti, kankar, stone ballast, etc. may all be looked upon as separate in commercial character from stone boulders offered for sale in the market, “stone” as under the relevant Entry is wide enough to include the various forms such as gitti, kankar, stone ballast. It is in this light, that the Court had opined that stone gitti, chips, etc. continue to be identifiable with the stone boulders.

29. Having noticed the relevant Entries, the definition of ‘manufacture’ and judicial precedents, we would now notice, (a) the process adopted by the assessee for the purpose of converting raw cotton into surgical cotton and (b) the utility and commercial use of surgical cotton in contrast to cotton.

Process of conversion of cotton into surgical cotton

30. The Project report on Surgical Absorbent Cotton, December 2010 (pg. 3 and 4) prepared by MSME – Development Institute, Ministry of Micro, Small & Medium Enterprises, Government of India provides for the following steps in manufacture of surgical cotton:

“a) Opening and cleaning of Raw Cotton:

Raw cotton received in bale or otherwise is opened in opener where it is loosened and simultaneously dust/foreign particles are also removed. Loosened cotton is then put into a keir where chemicals such as caustic soda, soda ash, detergent, etc. are added along with adequate water and steam boiled for about 3-4 hours. By this process most of the natural waxes and oils are removed while remaining foreign matter get soften and disintegrated. The treated cotton is transferred to washing tanks where it is washed thoroughly.

b) Bleaching:

Washed cotton is bleached to remove brownish colour developed due to chemical treatment. Bleaching is done by using bleaching agent such as sodium-hypochlorite or hydrogen peroxide. The bleaching process improves whiteness, wetting properties and assists in disintegration of any remaining foreign materials.

c) Removal of Chemicals:

The bleached cotton is thoroughly washed again to remove the chemicals. A little quantity of dilute hydrochloric acid or sulphuric acid is also added to neutralize excess alkali. If required, again washed with water. The water of cotton is removed with the help of hydro-extractor. It is then sent to a wet-cotton opening machine.

d) Drying:

The cotton so obtained is dried by passing through dryer or alternatively subjected to sun drying where provision for dryer is not there.

e) Lapping:

The dried cotton is sent to blower room where it is thoroughly opened and made into laps.

f) Carding:

The laps are then fed into carding machine wherein cotton is warped around rollers in thin layers.

g) Rolling:

Cotton so obtained is compressed and rolled into suitable role size along with packaging paper.

h) Weighing and cutting:

The rolls are then weighed and cut according to required weight and sizes and labeled properly before packing in polythene sheets and heat sealed.”

31. The admitted facts are the assessee purchases raw cotton by paying tax at the rate of 4 per cent. After such purchase, after ginning the cotton is put into boiler and its roughage is separated from cotton. The clean cotton thereafter is treated with caustic soda and acid slurry. After such treatment with the aforesaid chemicals, the cotton is cut in small pieces. These pieces are transferred to a tank where bleaching process takes place. Such bleached cotton is then transferred into tanks for washing. As noticed by the High Court, the cotton passed from four stages from raw cotton upto surgical cotton. First, it is put into tanks for washing each step takes sufficient time. Second, the treated cotton is transferred to a process known as hydro process where it is dried. Third, the cotton is put in the blower for cleaning the same. Fourth, such blowed out cotton is thereafter transferred to kler where rolls are prepared and then cotton is cut into pieces with the desired level, width and size. The process does not end here. The rolled out calibrated pieces of cotton are then put in carding machine where thin layers are framed and such layers are packed in bundle for marketing. The rolled and compressed cotton is sent for trading.

Utility and Commercial use:

32. The aforesaid view is further fortified by the common parlance test. It can be said when a consumer requires surgical cotton, he would not be satisfied with cotton being provided to him and the same principle would reversibly apply that a customer of cotton would not use surgical cotton as a substitute. Further the purposes for which cotton and surgical cotton are used are diametrically opposite. While surgical cotton finds utility primarily for medical purposes in households, dispensaries, hospitals, etc, raw cotton being, inter alia, non-sterlised and riddled with organic impurities cannot be used as such at all.

33. For both these commodities operational territories are different and both have a different consumer segments. For medical and pharmaceutical purposes, use of ordinary cotton is not permissible. The fixed medical standards for the quality of surgical cotton are definite and definable such that ordinary cotton would not suffice the purpose. Surgical cotton is only used in form of medicine or pharmaceutical product, thus it cannot be said that use of commodity is interchangeable and in that view of the matter, surgical cotton is a different commodity. It is a commodity which is used with a completely distinct identity in itself. As what is used for medical purpose is perfectly sterilized disinfected purified cotton. If raw cotton is used for surgical purposes, it would be counter-productive. Surgical cotton is extensively used for making napkins, sanitary pads and filters, etc. The surgical cotton is exclusively consumed into medical field while ordinary cotton has so many uses. The main chemical properties desired in a surgical dressing are inertness and lack of irritation in use, which is provided by the surgical cotton only if manufactured as per the standards specified. Raw cotton is purified by a series of processes and rendered hydrophilic in character and free from other external organic impurities for use in surgical dressings. Surgical cotton is, thus, completely different from ordinary cotton.

34. The surgical cotton is made sterile and fit for surgical use and it is not put to the same use to which the unmanufactured cotton is put and vice versa. Therefore, when unmanufactured cotton undergoes a manufacturing process, a new product saleable into the market which is having a distinct identity, comes into existence which is known in the commercial market by a different name and use. Surgical cotton possesses higher utility than the cotton in its un-manufactured state.

35. It is trite to state that “manufacture” can be said to have taken place only when there is transformation of raw materials into a new and different article having a different identity, characteristic and use. While mere improvement in quality does not amount to manufacture, when the change or a series of changes transform the commodity such that commercially it can no longer be regarded as the original commodity but recognised as a new and distinct article. In the instant case, after going through the various steps that are carried out by the assessee for getting surgical cotton from raw cotton, we can certainly say that cotton has undergone a change into a new commercially identifiable commodity which has a different name, different character and different use. The process of transformation is not merely processing to improve quality or superficial attributes of the raw cotton. The cotton looses its original form and it marketed as a commercially different and distinct product. This aspect of the matter is rightly noticed by the High Court by relying upon the decision of this Court in Empire Industries case (supra) wherein this Court has explained the meaning of the expression ‘manufacture” as when the result of the treatment, labour and manipulation a new commercial commodity has emerged which has a distinctive new character and use.

36. Having carefully observed the process of transformation of raw cotton into surgical cotton and having noticed that there is distinctive name, character and use of the new commodity, i.e., surgical cotton, we are of the considered opinion that surgical cotton is a separately identifiable and distinct commercial commodity manufactured out of raw cotton and therefore, ceases to be cotton under Entry 16 of the said notification.

37. The second limb of Shri Giri’s contention that under the scheme of the Act and the CST Act, since tax has already been paid once on the original commodity, i.e., raw cotton, the appellants would be entitled to claim set-off for the manufactured surgical cotton fails to impress us. The High Court has noticed that the said question was not raised before the original assessing authority and consequently, the authorities below have not considered the said question and such being the case, the High Court has declined to consider the same. In our considered opinion, the said question cannot be considered by us for the first time in these appeals and thus, the conclusion of the High Court in this regard stands affirmed. However, the appellant is at liberty to raise the said question before the appropriate authorities in accordance with law.

38. In view of the above, we cannot take any exception to the impugned judgment and order passed by the High court in so far as the Assessment Year 1992-93 is concerned.

Assessment Years 1993-94 to 1998-99:

39. We would now proceed to examine the claim of the assessee for the Assessment Years 1993-94 to 1999-2000. The Entry for the relevant years is reproduced in the preceding paragraph no. 12.

40. In the year 1993, by an amendment notification F.4 (56) FD/Gr.IV/82- 2 (S.O. No. 8) dated 12.04.1993, the legislature has consciously included “absorbent cotton wool I.P.” immediately after the words “cotton waste” in Entry 16. By the notification dated 07.03.1994, for the Assessment Year 1994-95, the entry stands as “Cotton, that is to say, all kinds of cotton (indigenous or imported), kinds of readymade garments, whether ginned or unginned, baled, pressed or otherwise including Absorbent cotton wool I.P. and Cotton waste”. From the Assessment Year 1995-96, the State has amended the entry such that cotton means cotton as defined in clause (iv) of Section 14 of the Central Sales Tax Act, 1956 but has specifically included absorbent cotton wool I.P. & cotton waste in such entry. The relevant entry has remained unaltered for the succeeding assessment years 1996-97, 1997-98 and 1998-99 numbered as Entries 28, 27 and 29, respectively.

41. It is an admitted fact that the appellant herein manufactures surgical cotton from the cotton purchased by him. The assessing authority and forums below including the High Court have noticed that “cotton” and “surgical cotton” are different commercial commodities and therefore, sale of “surgical cotton” attracts sales tax under the provisions of the Act. However, during the proceedings before the High Court it was not brought to the notice of the Court that an amendment to Entry 16 was made in the year 1993 whereby the meaning of the expression “cotton” has been expanded to include “absorbent cotton wool I.P.” and thus, the High Court has only analysed Entry 16 as it stands for the Assessment Year 1992-1993.

42. Therefore, the question that falls for our consideration is whether in terms of the relevant entries for aforesaid Assessment Years “surgical cotton” is liable to tax or not.

43. It appears to us that the commodity “absorbent cotton wool I.P.” as included in the relevant entries is the same as “surgical cotton” which the assessee manufactures. The absorbent cotton wool I.P. is a technical name of the cotton which is sold in the market and commonly known as surgical cotton.

44. The Project Report on Surgical Absorbent Cotton (supra) at page 1 states that “absorbent cotton” is also known as “surgical cotton or cotton wool” and mainly used for medicinal purposes in hospitals, nursing homes, dispensaries and at home (for first aid) etc. The report thereafter uses the term “surgical absorbent cotton” uniformly to refer to the commodity in question before us.

45. The lexicographers have also expressed the same medicinal use and properties of surgical cotton in terms of definition of absorbent cotton. The Collins English Dictionary defines “cotton wool/absorbent cotton/surgical cotton” as “absorbent cotton, purified cotton, bleached and sterilized cotton form.” The Oxford Dictionary of English explains the meaning of “absorbent cotton” as cotton which is used for cleaning the skin or bathing wounds. In Encarta dictionary “absorbent cotton” is defined as under:

“Cotton that has had the natural wax removed, making it absorbent and suitable for medical and cosmetic use as dressings or swabs”.

46. In fact, the Rajasthan High Court in the case of Durga Cotton Industries Vs. State of Rajasthan and Ors., 1994 (1) WLC 696 had an occasion to look into the meaning of the expression “absorbent cotton wool I.P.” while considering notification dated 27.6.1990 which provided the rates of tax for cotton in Item No. 16 (the same as Entry 16 for Assessment Year 1992-93). The Court on consideration of the relevant literature had come to the conclusion that “absorbent cotton wool I.P.” is commercially known as surgical cotton. In our considered opinion, the view of the Rajasthan High Court appears to be correct and consonant with the common jargon by which the commodity is recognised.

47. Having noticed the commodity in question, we would now analyse the import of the expression “including” as contained in the relevant entries.

48. The expression “include” is used as a word of extension and expansion to the meaning and import of the preceding words or expressions. The following observation of Lord Watson in Dilworth v. Commr. of Stamps, (1899) AC 99 in the context of use of ‘include’ as a word of extension has guided this Court in numerous cases:

‘… But the word “include” is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to “mean and include”, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.’

49. The meaning of the said expression has been considered by a three Judge bench of this Court in the case of the South Gujarat Roofing Tiles Manufacturers Association and anr. v. State of Gujarat and anr., (1976) 4 SCC 601, wherein this Court has observed:

“Now it is true that ‘includes” is generally used as a word extension, but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation.”

50. Principles of Statutory Interpretation (12th Edn., 2010) by Justice G.P. Singh, at p. 181, has discussed in detail the connotations of the word “include” and emphasized on the exhaustive explanation of the word “inclusive” thus:

“…The word “include” is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include.”

51. In RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424 this Court has followed the observations in the Dilworth case (supra) and explained the purpose and expanse of the “inclusive definitions” as under:

“32. We do not think it necessary to launch into a discussion of either Dilworth case or any of the other cases cited. All that is necessary for us to say is this: legislatures resort to inclusive definitions (1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meanings about which there might be some dispute; or (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names. Depending on the context, in the process of enlarging, the definition may even become exhaustive.”

52. In Karnataka Power Transmission Corpn. v. Ashok Iron Works (P) Ltd., (2009) 3 SCC 240 this Court after analyzing the afore-cited decisions has observed as follows:

“17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word ‘includes’ by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word ‘includes’ may have been designed to mean ‘means’. The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word ‘includes’ for the purposes of such enactment.”

53. The word “include” is generally used to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. That is to say that when the word “includes” is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Commr. of Customs v. Caryaire Equipment India (P) Ltd., (2012) 4 SCC 645; U.P. Power Corpn. Ltd. v. NTPC Ltd.,(2014) 1 SCC 371; Associated Indem Mechanical (P) Ltd. v. W.B. Small Industries Development Corpn. Ltd., (2007) 3 SCC 607; Dadaji v. Sukhdeobabu; Mahalakshmi Oil Mills v. State of A.P.; Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union, (2007) 4 SCC 685)

54. By introducing the word “including” immediately after detailing the definition of cotton, the legislature has expanded the meaning of the expression “cotton” for the purposes of the Act. While the natural import suggests and prescribes only unmanufactured cotton in all forms, the commodities “absorbent cotton wool I.P.” and “cotton waste” manufactured out of “cotton” are intentionally and purposefully included in the relevant entries alongwith cotton in its ordinary meaning.

55. In light of the aforesaid, we are of the considered opinion that “surgical cotton/absorbent cotton wool I.P.” is also “cotton” for the purposes of the relevant entries in the notifications for assessment years 1993-94 to 1998-99 and therefore is liable to exemption from levy of tax under the Act. In light of the same, we cannot sustain the judgment and order passed by the High Court for the assessment years 1993-1994 to 1998- 1999.

56. In the result, the appeals are allowed in part and the judgment and order passed by the High Court is confirmed for the assessment year 1992-93 and the judgment and order of the High Court so far as it relates for the assessment years 1993-94 to 1998-99 is set aside. No order as to costs.

Ordered accordingly.


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Parminder @ Ladka Pola vs State Of Delhi (1947) LIJR-SC

Parminder @ Ladka Pola vs State Of Delhi (1947)

LawGlobal-Hub Indian Judgment Report – Supreme Court

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of the Constitution against the judgment dated 06.03.2003 of the Delhi High Court in Criminal Appeal No. 696 of 2002 by which the conviction of the appellant under Sections 376 and 506 of the Indian Penal Code, 1860 (for short ‘IPC’) and the sentences imposed by the trial court on the appellant have been maintained.

Facts:

2. The facts very briefly are that on 30.01.2001 at about 8.00 p.m., a young girl of about fourteen years accompanied by her parents, lodged the First Information Report (for short ‘the FIR’) in Police Station, Khajoori Khas, Delhi, in which she stated as follows: She was a student of Higher Secondary School and residing with her parents at House No.131, Gali No.12, Khajoori Khas, Delhi. Opposite to their house was the house of Sardar Jagir Singh. Babbo, daughter of Sardar Jagir Singh, was her friend and she used to visit the house of Sardar Jagir Singh to meet Babbo. On 28.01.2001 at about 8.30 p.m., the lights in the area went off and as the generator at the house of Sardar Jagir Singh was on, the prosecutrix went to meet Babbo. She enquired from the appellant, the son of Sardar Jagir Singh, as to whether Babbo was in the house and the appellant told her that Babbo was inside the room. When she entered inside the room, the appellant followed her into the room, bolted the room from inside and forcibly put her on the cot. When she raised an alarm, the appellant slapped her. He then took out her salwar and underwear and raped her. He also threatened her with death if she narrated the incident to anybody. Out of fear and shame, she did not narrate the incident to anybody, but in the evening of 30.01.2001 she narrated the incident to her mother.

3. On this statement of the girl (hereinafter referred to as ‘the prosecutrix’), a case under Sections 376 and 506IPC, was registered on 30.01.2001. The prosecutrix was medically examined on the same night. On examination of the X-rays report of the prosecutrix, the doctor opined that her age was above fourteen years but below sixteen years. Her clothes and vaginal swab were sent to the Central Forensic Science Laboratory (for short ‘CFSL’) for analysis and as per the report from CFSL, human semen and blood was detected on the underwear of the prosecutrix, but no semen was detected in the vaginal swab. After investigation, a charge-sheet was filed against the appellant under Sections 342/354/376/506IPC. Charges, however, were framed only under Sections 376 and 506IPC, and as the appellant pleaded not guilty, the trial was conducted. At the trial, as many as fifteen witnesses were examined on behalf of the prosecution including the prosecutrix. After considering the evidence on record, the trial court convicted the appellant under Sections 376 and 506IPC. For the offence under Section 376IPC, the trial court imposed the minimum sentence of seven years rigorous imprisonment and a fine of Rs.5,000/-, in default, rigorous imprisonment for one year and for the offence under Section 506IPC, the trial court imposed a sentence of two years imprisonment and a fine of Rs.5,000/- and in default, a rigorous imprisonment of six months. The trial court further directed that the sentences were to run concurrently. Aggrieved, the appellant filed Criminal Appeal No.696 of 2002 in the High Court, but by the impugned judgment the High Court has dismissed the appeal.

Contentions of the parties:

4. At the hearing of this appeal, Mr. Jana Kalyan Das, learned counsel for the appellant, submitted that at most this is a case of attempt to rape and not rape and hence the appellant should be held guilty under Sections 376/511IPC, and not under Section 376IPC. He referred to the evidence of the prosecutrix (PW-1) as well as the medical evidence to support his submission that no offence of rape as such has been committed of the prosecutrix. He cited the decision of this Court in Narender Kumar v. State (NCT of Delhi) [(2012 (7) SCC 171] for the proposition that even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts and it is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. He submitted that in the event this Court finds that the appellant is guilty of the attempt to rape and not rape, he will be liable for half the sentence provided for rape as will be clear from Section 511IPC.

5. Mr. Das next submitted that the appellant while in jail custody studied and passed Class 10 examination and has also appeared in Class 12 examination as a candidate from Central Jail, Tihar, Delhi, and has been released on bail after undergoing three years and nine months of sentence and has thereafter got married on 16.08.2007. He further submitted that on 28.06.2008, a daughter has been born to him who is studying in lower K.G. Class and on 13.06.2012, a second daughter has been born to him, who is on the lap of her mother. The appellant has filed on 12.02.2013 an affidavit stating all these facts. He submitted that as the appellant is the sole bread earner of the family and has been doing odd jobs in Delhi to earn a living for the family, his family will suffer immensely if he is to undergo imprisonment for the remaining period out of the seven years imprisonment imposed on him by the court. He submitted that under the proviso to Section 376(1)IPC, the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. He submitted that on the facts and circumstances stated above, this Court should reduce the sentence in this case imposed on the appellant to the period already undergone so that his family does not suffer. In support of this submission, he cited the decisions of this Court in State of Rajasthan vs. N.K. The Accused [(2000) 5 SCC 30], Sukhwinder Singh vs. State of Punjab [(2000) 9 SCC 204] and Baldev Singh and Others vs. State of Punjab [(2011) 13 SCC 705]

6. In reply, learned counsel for the State, Mr. Rakesh Khanna submitted that the prosecution has discharged its onus in establishing beyond reasonable doubt that the appellant has committed rape on the prosecutrix. He relied on the evidence of PW- 1 as well as the report of the CFSL to show that it was not a case of only attempt to commit rape by the appellant. He submitted that the High Court was, therefore, right in coming to the conclusion that the appellant had committed rape on the prosecutrix.

7. On the question of sentence, Mr. Khanna submitted that this is a case where an offence has been committed on a minor girl and it is evident from the statement of prosecutrix (PW-1) that on account of the rape, her parents stopped her from going to school and she had to study 8th Class privately. He submitted that considering the serious nature of the sexual offence committed by the appellant on a minor girl, this is not a fit case in which this Court should invoke the proviso to Section 376(1)IPC and reduce the minimum sentence of seven years for the offence of rape as provided in Section 376(1)IPC, to the period already undergone by the appellant. He cited the decisions of this Court in State of Madhya Pradesh vs. Bablu Natt [(2009) 2 SCC 272] and State of Rajasthan vs. Vinod Kumar [(2012) 6 SCC 770] in which this Court, after considering the language used in the proviso to Section 376(1)IPC, has set aside the orders of the High Court imposing sentences less than the minimum sentence of seven years in cases of rape under Section 376IPC.

Findings of the Court:

8. The first question that we have to decide is whether the High Court is right in coming to the conclusion that the appellant was guilty under Section 376IPC, for the offence of rape or whether the evidence on record in this case only made out an offence of attempt to rape under Section 376IPC, read with Section 511IPC. We find that the High Court while coming to the conclusion that the appellant was guilty of the offence of rape under Section 376IPC, has considered the evidence of the prosecutrix (PW-1), the medical evidence and the report of CFSL. The prosecutrix has stated that the appellant pushed her on the cot, put off her underwear and salwar and forcibly raped her. The salwar and underwear of the prosecutrix, which she was wearing at the time of incident, were sent to CFSL for analysis and after examination the CFSL had found in its report dated 30.04.2001 that there was human semen and blood on the underwear of the prosecutrix referred to in the report as Exhibit 4(B). Hence, there is corroboration of the testimony of the prosecutrix that rape was committed on her.

9. PW-15, the doctor who conducted the medical examination of the prosecutrix on 31.01.2001, however, has stated that there was no sign of injury on the prosecutrix and the hymen was found intact. The High Court has considered this evidence and has held that the non-rupture of hymen is not sufficient to dislodge the theory of rape and has relied on the following passage from Modi in Medical Jurisprudence and Toxicology (Twenty First Edition):

“Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.” Section 375IPC, defines the offence of ‘rape’ and the Explanation to Section 375IPC, states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) quoted above. In the present case, even though the hymen of the prosecutrix was not ruptured the High Court has held that there was penetration which has caused bleeding in the private parts of the prosecutrix as would be evident from the fact that the underwear of the prosecutrix was stained by blood. In our considered opinion, the High Court was right in holding the appellant guilty of the offence of rape and there is no merit in the contention of the learned counsel for the appellant that there was only an attempt to rape and not rape by the appellant.

10. The next question that we have to consider is whether the Court should invoke the proviso to Section 376(1)IPC, and impose a sentence of imprisonment for a term of less than seven years in this case. The proviso to Section 376(1)IPC, as it stood prior to its amendment in the year 2013 expressly states that the Court may impose a sentence of imprisonment for a term of less than seven years in an offence under Section 376(1)IPC, “for adequate and special reasons to be mentioned in the judgment”. We may now consider the cases cited by the learned counsel for the parties in which this Court has considered whether or not the proviso should be invoked to reduce the sentence to less than the minimum sentence in cases of rape.

11. In State of Rajasthan vs. N.K. The Accused (supra), cited by the learned counsel for the appellant, this Court found that the accused had committed rape on the prosecutrix who was a married woman. This Court found that that the incident was of the year 1993 and the accused was taken into custody by the police on 03.11.1993 and he was not allowed bail and during trial and during hearing of the appeal, he remained in jail and it was only on 11.10.1995 when the High Court acquitted him of the charge that he was released from jail. This Court held that though the accused had remained in jail for a little less than two years and taking into consideration the period of remission for which he would have been entitled as well as the time which has elapsed from the date of commission of the offence, the accused should not be sent back to jail and reduced the sentence to the period already undergone by him.

12. In Sukhwinder Singh vs. State of Punjab (supra), cited by the learned counsel for the appellant, this Court found that the prosecutrix was a consenting party to the act of sexual intercourse and that she had willingly left her parents’ house to be with the appellant but she was found to be “not more than sixteen years of age” and on that account, the High Court had upheld the conviction of the appellant. This Court held that as the prosecutrix had since got married and she did not want the matter to be carried any further and wanted to lead a happy and healthy married life with her husband and had filed a compromise petition to that effect, there were adequate and special reasons to reduce the sentence to the period already undergone by the accused.

13. In Baldev Singh and Others vs. State of Punjab (supra), cited by the learned counsel for the appellant, the accused was found guilty of gang rape under Section 376(2)(g)IPC, for which the minimum sentence was ten years rigorous imprisonment. The proviso to Section 376(2)IPC, however, stated that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. This Court held on the facts of the case that as the incident happened in the year 1997 and as the parties have themselves entered into a compromise, the sentence be reduced to the period already undergone in view of the proviso to Section 376(2)(g)IPC.

14. In State of Madhya Pradesh vs. Bablu Natt (supra), cited by the learned counsel for the State, this Court, on the other hand, did not find good and adequate reasons to reduce the sentence to less than the minimum sentence of seven years under Section 376(1)IPC, because of the fact that the prosecutrix was a minor and had been subjected to rape and was compelled to live for several days with the accused at Chhatarpur and set aside the judgment of the High Court insofar as it imposed a sentence of less than seven years.

15. In State of Rajasthan vs. Vinod Kumar (supra), cited on behalf of the State, the accused-Vinod Kumar had been convicted by the trial court under Section 376IPC, and sentenced to seven years imprisonment. The High Court, however, reduced the sentence to five years imprisonment without recording adequate and special reasons for doing so. This Court held that the High Court failed to ensure compliance with the mandatory requirement of the proviso to Section 376(1)IPC, to record adequate and special reasons. This Court, after considering the earlier decisions of this Court, held:

“23. Thus, the law on the issue can be summarised to the effect that punishment should always be proportionate/ commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the sexually assaulted victim and the gravity of the criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.

24. The power under the proviso is not to be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. The legislature introduced the imposition of minimum sentence by amendment in IPC w.e.f. 25-12-1983, therefore, the courts are bound to bear in mind the effect thereof. The court while exercising the discretion in the exception clause has to record “exceptional reasons” for resorting to the proviso. Recording of such reasons is sine qua non for granting the extraordinary relief. What is adequate and special would depend upon several factors and no straitjacket formula can be laid down.”

16. It is, therefore, clear that what is adequate and special would depend upon several factors and on the facts of each case and no straitjacket formula has been laid down by this Court. The legislature, however, requires the Court to record the adequate and special reasons in any given case where the punishment less than the minimum sentence of seven years is to be imposed. The conduct of the accused at the time of commission of the offence of rape, age of the prosecutrix and the consequences of rape on the prosecutrix are some of the relevant factors which the Court should consider while considering the question of reducing the sentence to less than the minimum sentence. In the facts of the present case, we find that the prosecutrix was a student of eighth class and was about 14 years on 28.01.2001 and she was of a tender age. She had gone to the house of the appellant looking for her friend Babbo, the sister of the appellant. When she asked the appellant as to where the sister of the accused was, he told her that she was in the room and when she went inside the room, he followed her into the room, bolted the room from inside and forcibly put her on the cot. The appellant then took out the salwar and the underwear of the prosecutrix and raped her. As a result of this incident, her parents stopped her from going to the school and asked her to study eighth class privately. Considering the age of the prosecutrix, the conduct of the appellant and the consequences of the rape on the prosecutrix, we do not think that there are adequate and special reasons in this case to reduce the sentence to less than the minimum sentence under Section 376(1)IPC.

17. In the result, we do not find any merit in this appeal and we accordingly dismiss the same.


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