Bail Applications Need To Be Disposed Of Expeditiously And Finally: Supreme Court

 

At the outset, it has to be said with a considerable degree of satisfaction that in a significant development with far reaching consequences, the Supreme Court has very strongly once again while expressing its strongest “disenchantment, displeasure and disappointment” about the pendency of bail application filed in August 2018 before the Calcutta High Court  reiterated in a latest case titled Motamarri Appanna Veerraju @ Mav Raju in Criminal Appeal Nos. 328-331 of 2020 (Arising out of SLP (Crl.) Nos. 1631-1634 of 2020) (Diary No. 43544 of 2019) that bail applications need to be dealt with expeditiously and finally. The Apex Court was particularly miffed about the irrefutable fact that the High Court of Calcutta instead of deciding the bail application filed by an accused granted interim orders. Very rightly so!

To start with, the ball is set rolling in this latest judgment delivered by Justice AM Khanwilkar and Justice Dinesh Maheshwari of the Apex Court by first and foremost observing that, “Delay condoned. Leave granted.”

In the real sense, the pitch is then queered by the Bench in this notable case by observing lucidly that, “These appeals take exception to the judgment(s) and order(s) dated 15.05.2019, 05.08.2019, 25.09.2019 and 27.11.2019 passed by the High Court of Judicature at Calcutta in C.R.M. No. 6471 of 2018 granting interim protection to the appellant during the pendency of the bail application which was filed in August, 2018 in connection with offence punishable under Sections 384/385/389/119/403/120B/411/467/468/471/409 IPC and 13 (1) (c) / 13 (1) (d)/13(1)(3) r/w 13(2) Prevention of Corruption Act, 1988.”

To say the least, the Bench then says that, “We have heard learned counsel for the parties. For the nature of order that we propose to pass, it is unnecessary to dilate on the factual matrix of the case, except to observe that the investigation in connection with F.I.R. No. 27 of 2018, Daspur Police Station has already progressed and is at an advance stage of completion, as can be discerned from the chargesheet dated 28.06.2018 and supplementary chargesheet dated 24.08.2019 qua the appellant before this court.”

Be it noted, the Bench then points out that, “The Sessions Court rejected the bail application filed by the appellant whereafter the appellant filed regular bail application before the High Court in August, 2018. Instead of finally disposing of the said bail application with promptitude, the High Court for the reasons, which are not clear to us, chose to grant interim relief to the appellant vide order dated 01.10.2018 and continued that protection until this day. The order dated 01.10.2018 reads thus:-

“…Accordingly, we direct that the petitioner shall be released on interim bail upon furnishing bond of Rs. 1,00,000/- (Rupees One Lakh only) with two sureties of like amount, one of whom shall be local, to the satisfaction of the learned Additional Chief Judicial Magistrate, Ghatul, Paschim Medinipore, on condition that he shall not leave the jurisdiction of municipal limits of city of Kolkata until further orders except with the permission of this Court and on condition that he shall provide the address where he shall presently reside to the investigating officer as well as the trial court and on further condition he shall meet the investigating agency one in a week until further orders. He shall not intimidate the witnesses and/or tamper with evidence in any manner whatsoever and he shall appear before the trial court on every date of hearing and in the event he fails to do so, his bail shall stand automatically cancelled without further reference to this Court.

Interim bail shall continue till 30th November, 2018 or until further orders, whichever is earlier. Matter will appear for further hearing on 26th November, 2018.

Urgent Photostat certified copy of this order, if applied for, be delivered to the learned advocates for the parties, upon completion of usual formalities.””

Furthermore, the Bench then observed that, “As aforesaid, the High Court for some reason kept the bail application pending from August 2018, and instead passed successive interim orders until 23.11.2019, which are referred to above.”

To be sure, the Bench then goes on to add that, “The last attempt made by the appellant was for modification of the interim order passed on 01.10.2018. That prayer, however, was answered against the appellant as a result of which the appellant rushed to this court by way of the present appeal.”

Not stopping here, the Bench then further holds explicitly and elegantly that, “In the facts of the present case, instead of deciding the limited issue about modification of interim order passed by the High Court, in the interest of justice, we deem it appropriate to dispose of the main bail application filed by the appellant, vide this order. We are conscious that such a course should be ordinarily eschewed but being convinced about the peculiar fact situation of this case, that approach would meet the ends of justice.”

        As it turned out, the Bench then minces no words to hold clearly and convincingly that, “At the outset, we record our displeasure about the manner in which the bail application filed in August, 2018 has remained pending before the High Court until this day and only interim orders have been passed thereon from time to time as referred to above. We have no hesitation in observing that adopting such a course, that too, by a constitutional Court, is wholly unfathomable and must be eschewed. For, the application for bail or anticipatory bail is a matter of moment for the accused and protracted hearing thereof may also cause prejudice to the investigation and affect the prosecution interests which cannot be comprehended in this order. Such application needs to be dealt with expeditiously and finally, one way or the other and cannot brook delay.”

While pooh-poohing the approach taken in tackling this case, the Bench while refraining from indulging in blame game then minces no words to say that, “It is not necessary for us to go into the question as to who is responsible for the situation but, at the same time, we need to deprecate the course or process followed in the present case. We say no more.”

Needless to say, the Bench then further adds clearly that, “Be that as it may, to do complete justice in the matter, we deem it appropriate to dispose of the main bail application pending before the High Court since August, 2018 in terms of this order by modifying the conditions predicated in the interim order(s) and which had enured in favour of the appellant since 01.10.2018, in the peculiar facts of the present case.”

To say the least, the Bench then concedes that, “We are conscious of the fact that co-accused, whose bail application was rejected by the High Court, had approached this court and his Special Leave Petition being SLP (Crl.) No. 10310 of 2019 has been dismissed by this court on 09.12.2019. However, that order itself makes it clear that even that accused is free to approach the concerned Court after expiry of six months’ time, for bail.”

What’s more, the Bench then opines that, “In our opinion, rejection of bail application of the co-accused ought not to come in the way of the appellant herein, who, as aforesaid, was granted interim protection by the High Court vide interim order on 01.10.2018 and which arrangement has been continued till now without any adverse report against him, including of having jumped any condition imposed by the High Court.”

Importantly, the Bench then also makes it clear that, “The only question is about the nature of conditions to be imposed to ensure that the further investigation, if any, against the appellant can be conducted in a fair manner and also the trial against the appellant is not affected either way.” Who can question this? Certainly no one!

Finally and most importantly, the Bench then goes on to hold meaningfully in the last para by waxing eloquent that, “Accordingly, after hearing both the sides, we deem it appropriate to dispose of the bail application filed by the appellant on the following terms:-

1.  The appellant shall furnish bail bond in the sum of Rs. 25,00,000/- (Rupees Twenty-Five Lakh only) with two sureties of the like amount, one of whom shall be local resident, to the satisfaction of the Additional Chief Judicial Magistrate, Ghatal, Paschim Medinipore.

2.  The appellant shall not travel outside India without prior permission of this Court.

3.  The appellant shall not enter Paschim Medinipore District except for attending the proceedings pending against him in the concerned court, with prefix and suffix of one day.

4.  The appellant shall forthwith furnish his ordinary place of residence to the Investigating Officer, if there is any change from the one already furnished by him in terms of this order.

5.  The passport of the appellant already deposited by him shall remain in the custody of CID, West Bengal.

6.  The appellant shall not intimidate the witnesses and/or tamper with the prosecution evidence in any manner whatsoever and he shall appear before the trial court on every date of hearing and in the event he fails to do so, his bail shall stand automatically cancelled without further reference to this Court, unless his presence has been expressly exempted by the Court in advance, for reasons to be recorded therefor.

7.  The appellant shall report to the Investigating Officer on first Monday of every English Calendar month between 10 a.m. to 12 noon; and on such other day and time as may be required by the Investigating Officer for the purpose of investigation, provided 48 hours advance notice is given to the appellant in that behalf.

8.  The bail application filed by the appellant in the High Court being CRM No. 6471 of 2018 stands disposed of in terms of this order.”

In essence, the sum and substance of this noteworthy judgment delivered by a Bench of Apex Court comprising of Justice AM Khanwilkar and Justice Dinesh Maheshwari is that bail applications need to be disposed of expeditiously and finally and the courts should not be satisfied by just granting interim orders. It also minced no words to express its strongest displeasure about the long pendency of bail pleas in the High Court.

All the High Courts as also the other courts in our country must always fully and firmly abide by what the top court has laid down so rightly and remarkably in this latest, landmark and extremely laudable judgment thus reiterating once again the long stated position held earlier in so many cases! There can certainly be no denying or disputing it!

Of course, we all have heard  time and again the time-tested dictum that, “Justice delayed is justice denied”. This proverbial legal maxim applies here also in bail cases and if the bail applications are not decided swiftly and finally, then it causes a great deal of inconvenience and hardships to the litigants which must be avoided at any cost and for this to happen they must be decided expeditiously as the Apex Court has laid down also in this noteworthy judgment most eloquently, explicitly and elegantly!

Sanjeev Sirohi

Arbitrary Transfers Of High Court Judges Must Stop Now.

It is most hurting, most shocking and most distressing to see that the arbitrary transfer of High Court Judges in our country is not stopping in our country at all which is hurting the smooth functioning of our judiciary immensely as some are even resigning in protest. Just recently we saw Justice Satyaranjan Dharmadhikari of Bombay High Court who was next in line to be the Chief Justice of Bombay High Court resigning in protest against his transfer as his family life would be hugely affected which he found unacceptable. Talking to reporters, Justice Dharmadhikari said that he had resigned as he had been elevated as the Chief Justice of the High Court of another state, although he did not want to leave Mumbai. He disclosed that, “I had to resign due to purely personal and family issues…I did not want to leave Mumbai and they were not ready to elevate me as the Chief Justice of Bombay High Court.”

It is high time and the arbitrary transfer of Judges must stop now immediately! Judges should be transferred only with their consent or when there is a very strong ground which can offer valid and legitimate reasons for doing the same and which must be disclosed! The aura and dignity of the Judges of the High Court must be maintained!

As it turned out, after the  proposed transfer of Justice Dr S Muralidhar of the Delhi High Court decided by the Supreme Court collegium was announced, the Executive Committee of the Delhi High Court Bar Association has resolved to observe complete abstinence from work on February 20 to protest the proposal. The resolution was passed in an emergency executive meeting held at 3 PM on February 19, after the news about the collegium proposal came out in the morning. Justice Dr S Muralidhar enjoys an unblemished and unimpeachable reputation and his several landmark judgments which he has delivered in his tenure as a High Court Judge in Delhi speaks for themselves!

Be it noted, in an urgent meeting of the Executive Committee of Delhi High Court Bar Association held at 3 pm on February 19, 2020 at the office of the Bar Association, the following resolution was unanimously passed:-

(i)                         The Delhi High Court Bar Association expresses its shock, dismay and outrage at the transfer of one of the finest judges to have adorned the Bench – Hon’ble Dr. Justice S Muralidhar – by the collegium of the Hon’ble Supreme Court.

(ii)                      Unequivocally and in the strongest possible terms, the Delhi High Court Bar Association condemns the said transfers. Such transfers are not only detrimental to our noble Institution but also tend to erode and dislodge the faith of the common litigant in the justice dispensation system. Such transfers also impede free and fair delivery of justice by the Hon’ble Bench.

(iii)                   The Delhi High Court Bar Association sincerely hopes that the collegium of the Hon’ble Supreme Court revisits the issue and recalls the move to transfer Hon’ble Dr. Justice S. Muralidhar from the High Court of Delhi to the Punjab and Haryana High Court.

(iv)                   The Delhi High Court Bar Association also resolves to request its members to abstain from work tomorrow, i.e. 20th February as a token of protest as the said transfer is a rarest of rare case, the majesty of our revered Institution is at stake.

A copy of this resolution to Hon’ble Chief Justice of India.”

To say the least, in an SMS message sent out to all members on morning of February 19, 2020, the Delhi High Court Bar Association (DHCBA) of which Mohit Mathur is President and Abhijat is Hony. Secretary said in simple and straight language that, “DHCBA expresses its shock and unequivocally and in the strongest possible terms condemns the transfer of Justice Dr S Muralidhar by the Collegium of the Supreme Court. The transfer will be a great loss to our institution.”

It may be recalled that Justice Dr S Muralidhar who was made a Judge of the High Court in 2006 is the third senior Judge of the High Court of Delhi. He has been part of several bold and notable decisions in his capacity as a Judge of Delhi High Court. To name a few, the decriminalization of homosexuality, application of RTI to the office of CJI, conviction of UP PAC police cops in Hashimpura massacre case, conviction of Congress leader Sajjan Kumar in the 1984 anti-Sikh riots case  which had claimed the life of more than 3000 Sikhs in Delhi alone etc.

It may also be recalled that earlier ex-Madras High Court Chief Justice Tahilramani had resigned on September 6, 2019 after being transferred to Meghalaya! Nothing on earth can be more unfortunate than this that a woman Chief Justice who by her talent and merit risen so high was compelled to resign even though she had disposed of 5040 cases throughout her tenure as the Chief Justice and was able to dispose of at least 70-80 cases per day! It was Justice Tahilramani who while holding office as Acting Chief Justice of Bombay High Court had in May 2017 upheld the conviction and life imprisonment of 11 people in the Bilkis gang rape case which was transferred to Maharashtra from Gujarat by the top court!

Needless to say, Justice Tahilramani had resigned days after the collegium had declined her request for reconsideration of her transfer to Meghalaya High Court! She deserved to be the Chief Justice of India but what an unbeatable irony that she resigned before even entering the corridors of the Supreme Court as a Judge! How can women be empowered if such a shinning example of talent, humility and politeness is compelled to resign in protest against her transfer to Meghalaya High Court?

No doubt, sources privy to the September 6 dinner told the media that almost all High Court Judges had in unison requested her to reconsider her decision to resign. But she politely refused as she was deeply hurt by her sudden transfer to a much smaller High Court! A source said to media on condition of not being named that, “However, she was resolute and refused to budge. People could feel her pain. She said, her conscience was clear and that she would be leaving the institution with the satisfaction of having performed well.”

As it turned out, a section of lawyers practicing in the Madras High Court shot off a representation to the Supreme Court stating that, “These kind of arbitrary transfers whittle away the independence of the judiciary and the confidence of Judges.” The representation had been signed by advocates NGR Prasad, G Masilamani, R Vaigai and 100 others. The memorandum read as follows: “To now transfer her to one of the smallest High Courts is nothing short of a punishment and a humiliation. It cannot be justified on the principle of administrative interests, which is an expression that can be used in every case. It is ironical that a person of her seniority is being assigned to the smallest High Court. Any transfer should meet with an element of fairness but it is noticed, of late, that there appears to be no norms in the matter of transfer of Judges.” Recalling the words of former Supreme Court Judge V Khalid that transfer could be a more dangerous weapon than dismissal, the lawyers said that, “It is a matter of concern that there are no checks and balances in matters of administration of judiciary. The style of functioning of the collegium leaves one with the impression that the High Court is subordinate to the Collegium. This affects the majesty of the High Courts and erodes their primacy of position in the Constitutional scheme of things.”

It is high time and Supreme Court must also reconsider its decision so that more Judges don’t take the route which other Judges like Tahilramani and Justice Satyaranjan Dharmadhikari had to take due to which our judicial system suffers immeasurably and irreparably! It must be reiterated yet again at the risk of repetition that arbitrary transfer of High Court Judges and Chief Justices must stop now forthwith! If Delhi High Court Bar Association has gone on a token strike against this transfer of Justice Dr S Muralidhar, it is a very serious thing and it deserves due consideration by the Supreme Court and its collegium!

Bluntly put: How long can India afford to lose such distinguished legal luminaries like former Chief Justice of Madras High Court – Tahilramani and former Justice of Bombay High Court – Satyaranjan Dharmadhikari? Such a sensitive and serious issue certainly can no longer be put on the backburner or in a cold storage! It must be addressed swiftly, seriously and systematically! It brooks no more delay anymore now!

In sum, the Judges and Chief Justices of High Courts certainly deserve much better and fair treatment from the Supreme Court collegium! If Judges with impeccable reputation like Tahilramani, Dharmadhikari and others keep resigning one after the other due to their sudden and arbitrary transfers, the very smooth functioning of judiciary especially the High Courts will come under serious question which cannot be permitted ever to happen under any circumstances! One can only fervently hope now that Justice Dr S Muralidhar does not resign too similarly as it is the Delhi High Court which will suffer the most which alone explains why the Delhi High Court Bar Association is standing solidly behind him and very rightly so!

Sanjeev Sirohi

Parental Responsibility Does Not End With Breakdown Of Marriage : Supreme Court

 While affixing responsibility of parents towards their children, the Supreme Court most recently on February 18, 2020 in a latest, landmark and extremely laudable judgment titled Soumitra Kumar Nahar Vs. Parul Nahar in Civil Appeal No(s). 1670 of 2020 (Arising out of SLP (Civil) No(s). 6201 of 2016) With Civil Appeal No(s). 1671 of 2020 (Arising out of SLP (Civil) No(s). 16032 of 2016) has very vocally and rightly observed that the parental responsibility of the couple does not end even if there is a breakdown of marriage. It is the child who always suffer immeasurably and invaluably due to the ego clashes of the couple! This alone explains that why the Apex Court has very rightly sought to affix responsibility on the parents which they owe towards the child!

To start with, the ball is set rolling in para 2 of this notable judgment authored by Justice Ajay Rastogi for himself and Justice AM Khanwilkar by first and foremost  observing after granting leave in para 1 that, “In a custody battle, no matter which parent wins but the child is always the loser and it is the children who pay the heaviest price as they are shattered when the Court by its judicial process tells them to go with the parent whom he or she deems fit. It is a kind of dispute which has arisen initially from the Family Court and reached to this Court.”

Be it noted, para 3 then elucidates that, “The husband Soumitra Kumar Nahar assailed the order of the High Court of Delhi dated 4th September, 2015 which partly allowed the appeal with the direction to the wife Parul Nahar to comply with the consent terms qua the visitation rights of the appellant-husband Soumitra Kumar Nahar to meet son Master Shravan. At the same time visitation rights to meet the daughter Sanjana were declined. It was also observed that if the daughter wishes to meet her father, she can do so at her own desire.”

To put things in perspective, it is then mentioned in para 4 that, “Pending Civil Appeal @ Special Leave Petition (Civil) No. 6201 of 2016, a miscellaneous application was filed by the respondent Parul Nahar before the High Court of Delhi of which an order came to be passed on 12th May, 2016 directing Dr. Achal Bhagat (Psychotherapist) to ascertain the background facts regarding the relationship of the children with their father Soumitra Kumar Nahar and paternal grandparents before they joined the sole custody of their mother. It is unfortunate to notice that because of a warpath of the couple, both the paternal grandparents died during pendency of the proceedings.”

To put it succinctly, it is then pointed out in para 5 that, “Since the facts arise are almost common in both the appeals, we have noticed the relevant facts for our consideration from Civil Appeal @ SLP (C) No. 6201 of 2016.”

In hindsight, we need to now recapitulate the relevant facts here as have been discussed in para 6 which states that, “Appellant Soumitra Kumar Nahar and respondent Parul Nahar married as per Hindu rites and customs on 10th December, 2001. They were blessed with a baby girl “Sanjana” born out of the wedlock on 24th May, 2005 and a baby boy “Shravan” was born on 10th October, 2008. It manifests from the record that some trivial matrimonial differences cropped up after the second child was born in October, 2008 and it was unfortunate that the parties started making personal allegations and counter allegations against each other, that forced the appellant-husband to file Guardianship Petition No. 56 of 2011 on 15th April, 2011 under Sections 7, 8, 10 & 11 of the Guardian and Wards Act, 1890. Simultaneously, appellant filed a separate Divorce Petition bearing HMA No. 821 of 2011 in September, 2011 on the grounds of cruelty and adultery.”

Making matters worse, it is then pointed out in para 7 that, “The stage reached where the father of the appellant Soumitra Kumar Nahar filed a suit CS(OS) No. 2795 of 2011 before the High Court of Delhi impleading the appellant and respondent as a party praying for mandatory injunction against the respondent wife from entering into his self-acquired property.”

Due attention must be paid to what is then stated in para 8 that, “It is pertinent to mention here that appellant was residing along with his wife Parul Nahar and parents at B-197, Greater Kailash-I, New Delhi but because of compelling reasons, the appellant-husband and respondent-wife had to leave their matrimonial home and they shifted to the rented accommodation at M-24, Greater Kailash-I, New Delhi.”

After hearing the lawyers from both sides and perusing the material on record, the Bench then minces no words to state unequivocally in para 30 that, “It is indisputed that the rights of the child need to be respected as he/she is entitled to the love of both the parents. Even if there is a breakdown of marriage, it does not signify the end of parental responsibility. It is the child who suffers the most in a matrimonial dispute.”

Importantly, the Bench then also minces no words to send a simple straight and short message in para 31 that, “It is also well settled by the catena of judgments of this Court that while deciding the matters of custody of the child, primary and paramount consideration is always the welfare of the child. If the welfare of the child so demands, then technical objections cannot come in the way. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The Courts should decide the issue of custody on a paramount consideration which is in the best interest of the child who is the victim in the custody battle.”

What’s more, it is then clarified in para 32 that, “At the outset, it may be noticed that the present dispute is nowhere related to the Divorce Petition No. HMA 821 of 2011 which has been filed at the instance of the appellant-husband pending before the competent Court of jurisdiction and indeed may be decided without being influenced by the observations made in the present proceedings independently in accordance with law.”

Simply put, the Bench then makes it known in para 33 that, “So far as the custody of the minor children is concerned, an endeavor was made by the High Court in the first instance to resolve the inter se dispute between the parents keeping in view the paramount interest of the children as they are entitled to the love and affection of both the parents but if the parents are bent upon to lead to a separation or divorce, it is always the children who pay the heaviest price and are the sufferers. If the parents fail to enable themselves to decide their inter se disputes particularly in reference to custody of minor children, the Court, after due scrutiny of the records of the case, reaches to any conclusion that always remain a guess work.”

Most significantly, it is then made amply clear in para 34 that, “All the endeavours are to be made to resolve the matrimonial disputes in the first instance through the process of mediation which is one of the effective mode of alternative mechanism in resolving the personal disputes but if it could not make possible in resolving through the process of mediation, further endeavor must be made by the Court through its judicial process to resolve such personal disputes as expeditiously as possible. Delay in decision certainly cause a great loss to the individual and deprive him/her of their rights which are protected under the Constitution and with every passing day, the child pays heavy price of being deprived of the love and affection of their parents for which they were never at fault but are always the loser which at no stage could be compensated monetarily or otherwise. In the peculiar facts of the present case, the High Court of Delhi, in the first instance, made effort after holding a separate and joint session with the parents along with the children but nothing fruitful came forward and when the litigation came to this Court, tireless efforts were made by this Court keeping in view the paramount interest of the children. The orders passed by this Court to which a reference has been made in detail indicates that it would always remain in the interest of the parties to resolve these disputes amicably sitting across the table but unfortunately the ego of the warring parents came forward and the sufferings of the children are shadowed over it.”

Equally significant if not more is what is then stated in para 35 that, “It is an ideal situation where the grandparents remain in the company of their children and also of their grandchildren, but very few are fortunate to have this pleasure in the fag end of their life. In the instant case, the grandparents were not only deprived of love and affection of their children but also of their grand children and because of this matrimonial tussle between the parties, they have lost their lives. It is a message to the litigating parties to introspect and take stock of their deeds and find out a reasonable amicable solution of the ongoing matrimonial discord to secure peace and of their better future.”

Finally, before winding up, it is then observed in para 39 that, “To finally conclude, we would like to observe that the interim arrangement made by this Court regarding the custody/visitation rights of the parties vide order dated 7th September, 2017 and further subsequent orders shall continue until further orders with the liberty to the parties to take steps in filing of a custody/guardianship petition for the minor children before the competent Court of jurisdiction and taking note of the interest of the minor interest as a paramount consideration being the sufferers of the matrimonial discord, if such an application is filed by either of the party, that may be decided by the Court independently without being influenced/inhibited by the observations made in the instant proceedings expeditiously in accordance with law. At the same time Divorce Petition HMA No. 821 of 2011 shall be decided expeditiously as possible but in no case later than 31st December, 2020.”

Before closing, it would be in the fitness of things to once again say in simple and straight language that the essence of this extremely laudable judgment is that the interest of the child has to be accorded the paramount consideration and parental responsibility does not end with the breakdown of marriage. In other words parents cannot wash their hands off just by terming their marriage breakdown as “end of everything”! All Courts must always follow this laudable approach as laid down by the Apex Court in this noteworthy case!

Sanjeev Sirohi

Accused Cannot Be Convicted Of Rape On Basis Of Sole Testimony Of Prosecutrix Unless Her Testimony Is Of “Sterling Quality”: SC

In a latest, landmark and extremely laudable judgment titled Santosh Prasad @ Santosh Kumar Vs State of Bihar in Criminal Appeal No. 264 of 2020 (Arising out of SLP (Criminal) No. 3780/2018) delivered just recently on February 14, 2020, the Supreme Court has held in no uncertain terms that the conviction of an accused in rape cases cannot be done on the basis of sole testimony of the prosecutrix unless she passes the test of “Sterling Witness”. It has also sought to convey unambiguously that in order to convict an accused on the basis of solitary evidence of the prosecutrix, the evidence must be absolutely trustworthy. This was the crying need of the hour also because we keep hearing also many cases of false complaint being filed with a malafide intention to settle personal scores!

To start with, the ball is set rolling in para 1 of this noteworthy judgment authored by Justice MR Shah for himself and Justice Ashok Bhushan of the Apex Court Bench wherein it is first and foremost observed that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 7.2.2018 passed by the High Court of Judicature at Patna in Criminal Appeal No. 209 of 2015, by which the High Court has dismissed the said appeal preferred by the original accused and has confirmed the judgment and order of conviction passed by the learned Sessions Court convicting the accused for the offences punishable under Sections 376(1) and 450 of the IPC, the original accused has preferred the present appeal.”

To recapitulate, the Bench then observes in para 2 that, “That the appellant herein – original accused was tried by the learned Sessions Court for the offences punishable under Sections 376(1) and 450 of the IPC. A written complaint was filed by the prosecutrix – PW5 on 16.09.2011 before the local police station against the accused alleging, inter alia, that in the preceding night at about 11:00 p.m. she awaken after hearing some sound and whereupon in the light of the mobile phone she found the accused – brother of her husband whereupon she made query. Instead of giving any reply, he committed the rape upon her. According to the prosecution and as per the prosecutrix, thereafter the accused ran away and after getting an opportunity she raised alarm and the neighbours came there including one Suman Devi, her cousin Gotini as well as Shanti Devi, her cousin mother-in-law. She disclosed the event/incident to them. According to the prosecutrix, she informed her mother-in-law and father-in-law who were at Gaya. At the time of incident, her husband was away from the village. Thereafter on their arrival she came to the police station along with them and submitted written report. FIR was registered against the accused being P.S. Case No. 325/2011. Investigation was carried out by the officer in-charge of Makhdumpur Police Station. He recorded the statement of the concerned witnesses. The clothes/apparels of the prosecutrix were seized and were sent to FSL. He also collected the medical report from Dr. Renu Singh, PW7, who examined the victim. Thereafter on conclusion of the investigation, the Investigating Officer filed the chargesheet against the accused for the offences punishable under Sections 376(1) and 450 of the IPC. As the case was triable by the Court of Sessions, the learned Magistrate committed the case to the Sessions Court which was transferred to the Court of learned Additional Sessions Judge, 1st, Jehanabad, which was numbered as Sessions Trial No. 456 of 2011/90/2012. The accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the aforesaid offences.”

Furthermore, the Bench then observes in para 2.1 that, “To prove the charge, the prosecution examined in all eight witnesses including the prosecutrix (PW5) and Dr. Renu Singh – Medical Officer (PW7). Out of the eight witnesses, PW2, PW3 and PW4 did not support the case of the prosecution and therefore were declared hostile. The prosecution also brought on record the FIR, Injury Report and FSL Report. After closure of the evidence of the prosecution, further statement of the accused under Section 313, Cr.P.C. was recorded. The case of the accused was of total denial. Thereafter, on appreciation of evidence on record, the learned trial court held the accused guilty for the offences under Sections 376(1) and 450 of the IPC. The learned trial Court sentenced the accused to undergo 10 years R.I. for the offence under Section 376 of the IPC and 7 years R.I. for the offence under Section 450 of the IPC.”

As a consequence, what we then see is that it is then observed in para 2.2 that, “Feeling aggrieved and dissatisfied with the judgment and sentence passed by the learned trial Court, the accused preferred an appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the said appeal. Hence, the accused has preferred the present appeal.”

To put things in perspective, the Bench then observes in para 5 that, “We have considered in detail the impugned judgments and orders passed by the High Court as well as that of the learned trial Court convicting the accused. We have also considered in detail the evidence on record, both oral as well as documentary.”

More significantly, it is then held in para 5.1 that, “From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 – prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh – Medical Officer and PW7 – Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 – Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.”

No doubt, whatever Dr Renu Singh who is the Medical Officer has stated in her deposition cannot be dismissed lightly. She has clearly and categorically affirmed that there was no physical or pathological evidence of rape thus belying the claims made by PW5 – the prosecutrix! Not just this, she also affirmed that there was no violence marks on the body of the victim which could corroborate and confirm the claims made by the prosecutrix!

As if this was not enough, it is then further pointed out in para 5.3 that, “As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive.” Even the witnesses did not depose in favour of the prosecutrix! How can all this be dismissed lightly? All these clinching facts went a long way in influencing this judgment!

As it turned out, the Bench then concedes in this same para 5.3 while holding that, “Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.”

While referring to the case of Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133, it is then held in para 5.4.1 that, “In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:

“11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.””

For the sake of brevity, para 12 has not been mentioned here.

 

Most significantly, it is then held in para 6 that, “Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record that there was a broken compound wall. She has further stated that, in the morning at 10 O’ clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5-prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of “sterling witness”. There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix – PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt.”

Finally, it is then held in the last para 6 that, “In view of the above and for the reasons stated above, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial Court and confirmed by the High Court are hereby quashed and set aside. The appellant is acquitted from all the charges levelled against him and he be set at liberty forthwith, if not required in any other case.”

To sum up, this latest judgment sends out a simple and straight message: Accused cannot be convicted of rape on basis of sole testimony of prosecutrix unless her testimony is of “sterling” quality. What exactly constitutes “sterling” quality is elaborated in detail in Rai Sandeep alias Deepu v State (NCT of Delhi) (2012) 8 SCC 21. It is mentioned in this latest judgment also in para 5.4.2 which states that, “In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under:

“22 In our considered opinion, the “sterling witness” should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.””

On similar lines, it is then also held in next para 5.4.3 that, “In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.” The prosecutrix version could not rise up to be of sterling quality. So it was but palpably natural that it was not accepted to convict the accused just on basis of her sole testimony! Very rightly so!

Sanjeev Sirohi,

SC Directs Parties To Make Public Info On Tainted Candidates

                                  In a most welcome judgment with far reaching implications, the Supreme Court just recently while exercising its inherent jurisdiction in a noteworthy judgment titled Rambabu Singh Thakur Vs Sunil Arora & Ors. in Contempt Pet. (C) No. 2192 of 2018 in W.P. (C) No. 536 of 2011 along with others has taken serious note of the increase in the number of tainted candidates facing criminal cases entering politics. It has issued a slew of directions in this latest, landmark and extremely laudable judgment which we shall discuss later. It is heartening to note that the political parties now would be bound to give reasons for fielding tainted candidates over non tainted candidate to contest an election which is certainly a positive step forward in the right direction.

Before proceeding ahead, let us have a cursory look at the way the developments proceeded that led to this historic order. They are as follows: –

2011 November 18: NGO Public Interest Foundation approaches Supreme Court and seeks disqualification of candidates with serious criminal charges pending against them.

2013 December 16: Centre informs Apex Court that the Law Commission of India is considering de-criminalisation of politics and electoral reforms and will submit a report.

2014 February: Law Commission of India in its 244th report dealing with “Electoral Disqualifications” recommends disqualification of candidates against whom charges have been framed with respect to offences punishable with imprisonment of five years or more.

2016 March 8: A three-Judge Bench of the Apex Court headed by Justice Ranjan Gogoi refers the matter to a Constitution Bench of five Judges.

2018 August 9: The Constitution Bench headed by then CJI Dipak Mishra begins hearing the matter.

2018 September 25: Constitution Bench orders that candidates contesting elections should disclose details of pending criminal cases against him/her in the form provided by the Election Commission. A political party should publish on its website information pertaining to candidates with criminal antecedents. Such details should be published in widely circulated newspapers and electronic media.

2019 March 11: Advocate and BJP national spokesperson Ashwini Kumar Upadhyay files a contempt petition in the Supreme Court, which among other things, points out that despite repeated directions, the government and Election Commission have failed to take steps for decriminalization of politics.

2020 January 24: During the hearing of the contempt petitions, the Election Commission agrees to suggestion that all parties should upload on their website details of candidates with criminal antecedents.

2020 January 31: Apex Court reserves its verdict in the contempt petition.

2020 February 13: Finally the Apex Court delivers the landmark judgment issuing further directions to curb criminalization of politics.

To start with, Justice RF Nariman who authored this commendable judgment for himself and Justice S Ravindra Bhatt of the Bench of Supreme Court sets the ball rolling right at the outset by first and foremost observing in para 1 that, “This contempt petition raises grave issues regarding the criminalisation of politics in India and brings to our attention a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation and Ors. v. Union of India and Anr. (2019) 3 SCC 224.”

While queering the pitch further, it is then eloquently and elegantly observed in para 2 that, “In this judgment, this Court was cognisant of the increasing criminalization of politics in India and the lack of information about such criminalization amongst the citizenry. In order to remedy this information gap, this Court issued the following directions:

“116. Keeping the aforesaid in view, we think it appropriate to issue the following directions which are in accord with the decisions of this Court.

116.1. Each contesting candidate shall fill up the form as provided by the Election Commission and the form must contain all the particulars as required therein.

116.2. It shall state, in bold letters, with regard to the criminal cases pending against the candidate.

116.3. If a candidate is contesting an election on the ticket of a particular party, he/she is required to inform the party about the criminal cases pending against him/her.

116.4. The political party concerned shall be obligated to put up on its website the aforesaid information pertaining to candidates having criminal antecedents.

116.5. The candidate as well as the political party concerned shall issue a declaration in the widely circulated newspapers in the locality about the antecedents of the candidate and also give wide publicity in the electronic media. When we say wide publicity, we mean that the same shall be done at least thrice after filing of the nomination papers.””

To put things in perspective, the Bench then observes in para 3 that, “On a perusal of the documents placed on record and after submissions of counsel, it appears that over the last four general elections, there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34% and in 2019 as many as 43% of MPs had criminal cases pending against them.”

While pooh-poohing the political parties for fielding tainted candidates with criminal background, the Bench then minces no words in para 4 to convey in simple and straight language that, “We have also noted that the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place. We therefore issue the following directions in exercise of our constitutional powers under Articles 129 and 142 of the Constitution of India:

1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned and not mere “winnability” at the polls.

3) This information shall also be published in:

(a)          One local vernacular newspaper and one national newspaper;

(b)         On the official social media platforms of the political party, including Facebook & Twitter.

4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.”

Lastly, it is then held in the last para 5 that, “With these directions, these Contempt Petitions are accordingly disposed of.”

No doubt, words cannot be adequate to express our profuse happiness and unstinted support to this daring and durable judgment authored by Justice RF Nariman for himself and Justice S Ravindra Bhat comprising the Bench of the Apex Court which has compelled even political parties who are worst affected by this latest, landmark and extremely laudable judgment to admire, appreciate and applaud it to the fullest! It will certainly now become difficult for political parties to field easily tainted candidates! There can be no denying or disputing it!

Having said this, it must be added that there should be no room for criminals in politics! It is politicians who are the lawmakers of this country and if rapists and dacoits and other criminals decide on what the law shall be then be rest assured as we have seen till now that no rapists will be hanged and it is only once in 16 years that a poor rapist like Dhananjay Chatterjee will be hanged and that too because he didn’t had the money to spend on lawyers and whose petition was drafted by none other than the prisoners of Tihar jail as was pointed out by senior Supreme Court advocate Colin Gonsalves which is nothing but the biggest “miscarriage of justice” and who was hanged on circumstantial evidence alone! In last more than 40 years we see only 3 rapists being hanged! Why?

It is because our law makers have ensured that the “discretion bomb” enshrined in IPC in various Sections of 376 in rape laws are never defused as many of them can be affected in future by defusing them and even for repeated offenders there is no mandatory death penalty nor for child rapists! Can on earth there be anything more unfortunate than this?

What a shame that more than 3000 Sikhs were killed in Delhi alone during anti-Sikh riots in 1984 and yet not a single offender has been hanged. Even life imprisonment to a few was handed out after more than 3 decades of that ghastly and dastardly crimes! There are many more such cases! Who ensures this? It is our lawmakers with criminal background who ensure that there are so many loopholes in our law that the offenders are rarely ever punished! It is our lawmakers who decide who will be appointed as Judges of High Court and Supreme Court! They have their share of pie in virtually everything! Then still why they alone should not be subjected to serious scrutiny? We are a democratic country and not dictator country!

It is a national tragedy that for getting even a very small job there is proper police verification and even if one case is found that debars one from getting any job! On the contrary, if that same debarred person wants to contest elections to become an MP or an MLA then even after committing dacoities, rapes, murders and what not they are still eligible as long as the case is not finally decided! Why only MP and MLAs are given a blank cheque?

Why all politicians are united that tainted politicians should not be barred as the cases can be false or frivolous but for getting other jobs there should be strictest scrutiny in all matters and even if someone just lodges a case then the person concerned must be promptly debarred from getting any job? Why Supreme Court never dares to remove this inequality between politicians and people? It is politicians and not people who rule this country and there  must be strictest rules for them which we don’t see in our country!

No prizes for guessing that this alone is the major reason why during election rallies we hear provocative slogans of the worst kind which may shame even a criminal! Why is shouting in Parliament and State Assemblies tolerated? Why are there no strict rules for MPs and MLAs? Why many of them get away even after abusing anyone or even slapping anyone or even beating anyone as we have seen many times in news channels? All this must stop by imposing on them the same rules as are imposed on a common man who after getting selected in any job is expected to behave with utmost civility! All this must end now by treating politicians on par with people and rather imposing more strict conditions on the way they conduct themselves in Parliament and Assemblies and even outside!

As per a 2019 report of the Association of Democratic Reforms (ADR) which analysed 4845 out of 4896 election affidavits of incumbent MPs and MLAs, 1765 MPs and MLAs or 36% were facing criminal trial in 3,045 cases. In Maharashtra, 62% of MLAs are facing criminal cases. 43 out of 70 MLAs who won the Delhi Assembly polls have declared criminal cases against them. The percentage of tainted MLAs in West Bengal, Uttar Pradesh and Tamil Nadu Assemblies in 37%, 36% and 34% respectively!

A report by NGO Association for Democratic Reforms said that 233 of 539 (43%) elected to Lok Sabha in 2019 had declared pending criminal cases in their affidavits. This was its break-up of cases: BJP: 116/301 (39%); Congress: 29/51 (57%); DMK: 10/23 (43%); Trinamool: 9/22 (41%); JD(U): 13/16 (81%). It is most shuddering to see that those who are themselves accused of illegal crimes like mining, violation of forest laws and even face rape and murder charges become senior Cabinet ministers in not just State Government but also in Centre! All this hogwash in the name of “innocent till proven guilty” must end once and for all just like is the case in other services and jobs!

It goes without saying that it is high time and now there must be a final and ruthless strike on the deep roots of crime in politics! The Apex Court in this notable judgment has certainly taken the first step in the right direction! As BJP spokesperson Nalin Kohli says that, “It strengthens the electoral democratic process in enabling the voters to make a choice keeping all factors in mind.” But a lot more needs to be done! A good beginning, however has been made which must be continued further! This historic order certainly paves the way for transparency in a very significant topic: Candidate selection and credentials of the political spectrum which forms the bedrock of our democracy and must be preserved in its pure form. It brooks no more delay!

Let me now conclude by finally quoting SY Quraishi who is the former Chief Election Commissioner whom I truly adore, admire and appreciate and who most elegantly and eloquently points out most rightly in his editorial titled “Verdict prioritises morals over myth of winnability” in Hindustan Times dated February 14, 2020 that, “Political parties have been at the vanguard of opposition against any attempt to cleanse the Indian political arena. The most common argument posed by them has been the misuse of vendetta politics – ironically reflecting the nature of their own political play. They conveniently miss the safeguards suggested by the Election Commission of India: (a) only heinous offences that carry at least five years imprisonment would invite a ban against contesting; (b) the case must have been filed at least six months before elections; (c) only when the charges have been framed by a court would a ban be enforced. The other argument put across by the parties is the noble principle in the criminal justice system – “innocent until proven guilty”. They have no answers when I help them recall that there are 270,000 under-trial prisoners, not yet convicted, not yet even been tried languishing in jails for years with as many as four fundamental rights (liberty, freedom of movement, freedom of occupation and right to dignity) conveniently taken away, in addition to the right to vote. At a time when civil liberties to protest peacefully, a fundamental right under the Constitution of India (Article 19), are being infringed upon by the executive of the day, with our judiciary silently watching, all in the name of national interest, why is the Court shying away from barring criminally charged candidates from contesting in wider national interest? If a fundamental right under Article 19 can be kept aside in wider national interest, why not the right to contest an election, which is not even a fundamental right? The Supreme Court once upheld the importance of the principle of institutional integrity in a case involving the Central Vigilance Commission (CVC). So where is the institutional integrity of the supreme institution of democracy, our parliament, with 43% of its honourable members tainted with criminal cases? This upsetting reality has been reflected in the Democracy Index 2019 by the Economist wherein the world’s largest democracy has recorded the sharpest fall since 2006 to find itself at 51st rank, with the tag of a flawed democracy. If the trend continues, we are not too far from the tag of hybrid democracy, the next ladder of the Index, while we continue to protect our honourable tainted politicians under the legal maxim “innocent till proven guilty.”

Sanjeev Sirohi,

HC Cannot Quash Criminal Proceedings On Basis Of Its Assessment Of Statements Recorded Under Section 161 CrPC: SC

In a latest development, we saw just recently how the Supreme Court in a recent judgment titled Rajeev Kourav Vs. Baisahab And Ors. in Criminal Appeal No. 232 of 2020 (Arising out of S.L.P. (Cri.) No. 1174 of 2017) delivered on February 11, 2020 has explicitly held that criminal proceedings cannot be quashed on the basis of statements recorded before police officials in terms of Section 161 CrPC. The judgment that was authored by Justice L Nageswara Rao for himself and Justice Deepak Gupta minces no words in making it absolutely clear that the interference by High Court’s order under Section 482 CrPC is only warranted in order to prevent abuse of process of court and to secure tends of justice. Very rightly so!

To start with, the ball is set rolling in para 1 of this judgment wherein it is envisaged that, “The above Appeal is filed against the judgment of the High Court of Madhya Pradesh, Principal Seat at Jabalpur by which a criminal proceeding against Respondent Nos. 1 and 3 was quashed in exercise of its power under Section 482 of the Code of Criminal Procedure (for short “the CrPC”).”

While elaborating in detail, para 2 then further queers the pitch by stating that, “The Appellant filed a complaint before the Police Station Kareli, District Narsinghpur on which FIR No. 285 of 2014 was registered on 08.05.2014. According to the complaint, it was urged that Respondent Nos. 1 to 3 subjected Nilu, the wife of the Appellant to harassment due to which she committed suicide along with her two children. The first Respondent is the wife of elder brother of the Appellant. The second and third Respondents are the brothers of the first Respondent. The brother of the Appellant and Respondent No. 1 were living separately. Respondent No. 1 was not satisfied with the land which was given by the Appellant’s father to her husband. Respondent No. 1 along with her brothers, Respondent Nos. 2 and 3, started harassing the family of the Appellant especially Nilu. According to the FIR, Respondent Nos. 1 to 3 used to quarrel with the deceased Nilu. On 05.05.2014, Respondent No. 1 filed a false complaint against the Appellant and his parents. She also intimidated Mahendra Singh Kourav, maternal uncle of the Appellant by threatening him that she would pour kerosene oil and set herself on fire along with her children and implicate the entire family of the Appellant in a criminal case. Mahendra Singh Kourav made a complaint about the said incident of intimidation to the Police Station on 07.05.2014. The Appellant, his family members and Respondent Nos. 1 to 3 were called to the Police Station and the matter was settled for the time being. Thereafter, Respondent Nos. 1 to 3 went to the village Jhumri and assaulted the deceased Nilu. Unable to bear the torture, Nilu along with her children Harisharan aged 1 ½ years and Ramsharan aged 1 ½ years committed suicide by jumping in front of a moving train.”

Furthermore, it is then stated in para 3 that, “A final report was filed on 19.07.2014 on completion of investigation. A petition under Section 482 of the CrPC was filed for quashing the criminal proceedings. It was contended on behalf of Respondent Nos. 1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed. According to Respondent Nos. 1 to 3, the FIR and the charge sheet would only disclose that the entire family of the Appellant was being harassed. The Respondents cannot be held guilty of offence under Section 306 as there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.”

To put things in perspective, it is then divulged in para 4 that, “The High Court summoned the record of investigation and perused the statements recorded by the Appellant and his family members under Section 161 CrPC. The High Court held that statements recorded under Section 161 CrPC would show that Respondent No. 1 is a quarrelsome lady who has threatened the Appellant’s family of false implication in a criminal case. The High Court observed that none of the persons whose statements under Section 161 CrPC were recorded have mentioned about the complaint of the deceased and that she was thinking of committing suicide due to the harassment of Respondent Nos. 1 to 3. The High Court recorded a finding that Ramsharan Kourav, the uncle of the deceased, has stated in his statement under Section 161 that the deceased informed him that she is unable to bear the torture of Respondent Nos. 1 to 3 and was thinking of putting an end to her life.”

As it turned out, the Bench in para 5 then observes that, “The High Court observed that the allegations made against Respondent Nos. 1 to 3 at the most constitute an offence under Section 506 IPC for criminal intimidation. Read as a whole, the allegations made against Respondent Nos. 1 to 3 did not make out an offence under Section 306/34 IPC. The High Court further held that ingredients of Section 107 IPC are also not satisfied. In that view, the petition filed by Respondent Nos. 1-3 for quashing the criminal proceeding was allowed.”

Most significantly, the Bench then very rightly and remarkably pronounces in para 6 that, “It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.”

Be it noted, it is then pointed out in para 7 that, “Mr. Shoeb Alam, learned counsel appearing for Respondent Nos. 1 to 3 relied upon several judgments of this Court to submit that allegations only disclose a case of harassment meted out to the deceased. The ingredients of Section 306 and 107 IPC have not been made out. It is submitted that there is nothing on record to show that the Respondents have abetted the commission of suicide by the deceased. He further argued that abetment as defined under Section 107 IPC is instigation which is missing in the complaint made by the Appellant. He further argued that if the allegations against Respondent Nos. 1 to 3 are not prima facie made out, there is no reason why they should face a criminal trial.”

Bluntly put, the Bench then minces no words to convey in simple and straight language in para 8 that, “We do not agree with the submissions made on behalf of Respondent Nos. 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC (Rajendra Singh v. State of U.P. & Anr. (2007) 7 SCC 378).”

What’s more, the Bench then further adds in para 9 that, “Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos. 1 to 3 which she was not able to hear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr.P.C.”

No doubt, the Bench then very rightly clarifies in para 10 holding that, “We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos. 1 to 3 would have a fair opportunity to prove their innocence.”

Finally, it is then held in the last para 11 that, “For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed.”

It needs no rocket science to conclude what the Supreme Court wants to convey through this latest judgment! It made it amply clear as has already been reiterated above that the quashing of criminal proceedings cannot be meted out by the High Courts if a prima facie case is made out disclosing the ingredients of the alleged offence! The Bench of Apex Court also sought to make it clear that the appreciation of evidence in a petition under Section 482 CrPC was a matter of exceptional circumstance! All the High Courts ought to follow this while deciding in such cases!

Sanjeev Sirohi

SC Reiterates That Settlement Between Victim And Accused Not A Valid Ground To Quash FIR/Charge-Sheet When Offences Are Serious And Against Society

                             As usual, the Supreme Court has once again just recently on February 10, 2020 in a latest and laudable judgment titled Arun Singh & Others Vs. State of U.P. through its Secretary & Another in Criminal Appeal No. 250 of 2020 (Arising out of Special Leave Petition (CRL) No. 5224 of 2017 has once again reiterated that settlement between victim and the accused cannot be a valid ground to quash the FIR or the charge sheet when the offences alleged are against society and not private in nature. If settlement is allowed in such serious cases as that of Section 493 IPC and Section 3/4 of the Dowry Prohibition Act then it will only serve to further encourage and abet the crime which cannot be allowed to happen under any circumstances! This alone explains why the Apex Court in this latest case too has ruled like always! There can be no denying or disputing it!

To start with, the ball is set rolling in this notable judgment authored by Justice Krishna Murari for himself and Justice Navin Sinha by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal is directed against the impugned judgment and order dated 24.11.2016 passed by the High Court (High Court of Judicature at Allahabad) dismissing the petition filed by the appellants under Section 482 of the Criminal Procedure Code (in short ‘the CrPC’) challenging the charge sheet filed against them. The High Court while rejecting Section 482 CrPC petition directed the accused appellants to surrender before the Court concerned within 30 days from the date of order and in case they do so within the stipulated period and apply for bail the same was liable to be considered and decided in view of law laid down by full Bench of High Court in case of Amrawati & Another versus State of U.P. (2004 (57) ALR 290) affirmed by this court in Lal Kamlendra Pratap Singh versus State of U.P. (2009 (3) ADI 322 (SC)).”

To recapitulate, it is then illustrated in para 3 that, “Shorn of unnecessary details the brief facts which led to the filing of this appeal can be summarised as under:-

Respondent No. 2 lodged First Information Report with Police Station Izzat Nagar, District Bareilly under Section 493 I.P.C. read with Section 3/4 of the Dowry Prohibition Act against the appellants herein which was registered as case crime No. 431 of 2014. The allegations made in the F.I.R. were that Respondent No.-2 approached Appellants with the proposal of marriage of his daughter Jyoti with Appellant No.-1. On 30th June, 2013 the appellants visited the house of Respondent No.-2 and after meeting his daughter the proposal was finalised. On 21.07.2013, ring ceremony was performed and date of marriage was scheduled for 19.11.2013. Thereafter, Appellant No.-2 started visiting the house of complainant/respondent no.-2, frequently and misleading his daughter Jyoti that now since the marriage is finalised and only ceremony of ‘feras’ remains to be performed took her for outings on various occasions. On 16.08.2013 appellant No.-2 induced Jyoti to his room and established physical relationship with her. However, subsequently thereto the appellant started making demand of dowry of Rs. 5 Lakh. A complaint in this regard was made before Mahila Thana but no action was taken. On coming to know that marriage of Appellant No.-2 was settled with some other girl for a handsome amount of dowry, the First Information Report was being lodged.”

As it turned out, para 4 then reveals that, “The matter was investigated by the concerned Police Station and a charge sheet was filed against the appellants, which was challenged before the High Court by way of petition under Section 482 CrPC.”

What follows next is laid bare in para 5 which states that, “The case set up by the appellants before the High Court was that behaviour of the complainant and his family members changed after the date of marriage was fixed and they refused to share the expenses of marriage, which was settled between the parties to be shared equally. Further, a demand of Rs. 10 Lakhs was made from the appellants with a threat to implicate them in a false case in case the demand was not fulfilled. It was further pleaded that Appellant No.-2 made an application under Section 156(3) CrPC before the ACJM against the complainant and his other family members. During the pendency of proceedings under Section 156(3) CrPC a complaint was made by Respondent No. 2 in the Mahila Thana. The inspector incharge of Mahila Thana summoned both the parties where the dispute between them was compromised. In view of the compromise arrived, the appellants did not press the application under Section 156(3) CrPC. However, the Complainant-Respondent No.-2 filed the First Information Report after about 10 months of the compromise.”

Be it noted, after observing in para 10 that, “We have considered the rival submissions and perused the facts on record” the Bench then observes in para 11 that, “The offence under Section 493 is non-compoundable. Similarly, the offence under Section 3/4 of the Dowry Prohibition Act is also non-compoundable, in view of Section 8(2) of the said Act, which provides that every offence under this Act, shall be non-bailable and non-compoundable.”

More to the point, it is then very rightly mentioned in para 14 that, “In another decision in the case of Narinder Singh Vs. State of Punjab (2014) 6 SCC 466 it has been observed that in respect of offence against the society it is the duty to punish the offender. Hence, even where there is a settlement between the offender and victim the same shall not prevail since it is in interests of the society that offender should be punished which acts as deterrent for others from committing similar crime. On the other hand, there may be offences falling in the category where the correctional objective of criminal law would have to be given more weightage than the theory of deterrent punishment. In such cases, the court may be of the opinion that a settlement between the parties would lead to better relations between them and would resolve a festering private dispute and thus may exercise power under Section 482 CrPC for quashing the proceedings or the complaint or the FIR as the case may be.”

More significantly, it is then very rightly underscored in para 15 that, “Bearing in mind the above principles which have been laid down, we are of the view that offences for which the appellants have been charged are in fact offences against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. It is neither an offence arising out of commercial, financial, mercantile, partnership or such similar transactions or has any element of civil dispute thus it stands on a distinct footing. In such cases, settlement even if arrived at between the complainant and the accused, the same cannot constitute a valid ground to quash the F.I.R. or the charge sheet.”

What’s more, it is then very rightly held in para 16 that, “Thus the High Court cannot be said to be unjustified in refusing to quash the charge sheet on the ground of compromise between the parties.”

On a different note, while dwelling on Section 493 of the IPC, it is then laid bare in para 18 that, “A plain reading of the Section goes to show that in order to constitute an offence under this Section, it has to be demonstrated that a man has deceitfully caused any woman, who is not lawfully married to him, to believe that she is lawfully married wife and thereby co-habit with him. In other words, the accused must induce a woman, not lawfully married to him, to believe that she is married to him and as a result of such mis-representation, woman should believe that she was lawfully married to the man and thus there should be co-habitation or sexual intercourse.”

While elaborating further, it is then held in para 20 that, “The essence of an offence under Section 493 IPC is, therefore, practice of deception by a man on a woman as a consequence of which the woman is led to believe that she is lawfully married to him although she is not and then make her cohabit with him.”

Furthermore, it is then held in para 21 that, “Deceit can be said to be a false statement of fact made by a person knowingly and recklessly with the intent that it shall be acted upon by another who on believing the same after having acted thereupon suffers an injury. It is an attempt  to deceive and includes such declaration and statement that misleads others or causes him to believe which otherwise is false and incorrect.”

Needless to say, it is then made amply clear again in para 22 that, “In other words, to constitute an offence under Section 493 I.P.C., the allegations in the FIR must demonstrate that appellant had practiced deception on the daughter of the complainant causing a false belief of existence of lawful marriage and which led her to cohabit with him.”

On the face of it, the Bench then observes in para 23 that, “From a perusal of the F.I.R., we do not find that allegations made therein can be said to constitute any offence under Section 493 IPC. There are no allegation of any inducement or any deceit to make the victim believe that she was lawfully married to the appellant, which mislead her to have sexual intercourse with the accused appellant no. 1. Only allegations in the First Information Report in this regard are that “after the marriage was settled, the appellant no. 1 started visiting the house of the complainant frequently and would mislead and instigate his daughter that relation is final and only ‘Feras’ remains to be performed. On the fateful day. i.e., 16.08.2013, the appellant no. 1 took leave and enticed and instigated his daughter took her to his room and promising that she is being his wife established physical relations.””

To put things in perspective, the Bench then while stating the obvious notes in para 24 that, “A perusal of the averments would go to show that ingredients to constitute an offence under Section 493 I.P.C. are missing from the averments. The allegations do not even prima-facie, cull out any inducement of belief in the victim that she is lawfully married to the appellant no. 1 and on account of this deceitful misstatement, the victim co-habited with the accused. Since the essential ingredients to constitute an offence under Section 493 I.P.C. are missing from the allegations made in the F.I.R., offence under the said Section cannot be said to be made out against the appellants.”

Not stopping here, the Bench then further added that, “It is also to be taken note that whatever the allegations in this regard, have been made only against the accused-appellant no. 1 which also do not constitute an offence and there are no allegations in this regard in respect of other five accused-appellants.”

As anticipated, the Bench then holds in para 26 that, “The High Court having failed to advert itself to the aforesaid aspects discussed hereinabove and to that extent, the judgment is not liable to be sustained.”

To say the least, the Bench then observes in para 29 that, “A reading of the above provisions shows that essential ingredients of the offence under Section 3/4 of the Dowry Prohibition Act are that the persons accused should have made demand directly or indirectly from the parents or other relatives or guardians of a bride or a bride groom as the case may be any dowry and/or abets the giving and taking of dowry. The allegations of the F.I.R. quoted hereinabove clearly go to show that a demand of dowry of Rs 5 Lakhs was made by the appellants from the complainants and thus it cannot be said that no offence under the Dowry Prohibition Act are made out against the appellants. There being direct allegations of demand of Dowry in the First Information Report, the allegations prima-facie constitute a commission of an offence under the Dowry Prohibition Act and thus the charges leveled against the appellants under Section 3/4 of the said Act, are not liable to be quashed.”

Most crucially, it is then observed in para 30 that, “In view of the above facts and discussions, we are of the considered view that insofar as offence under Section 493 I.P.C. is concerned, since F.I.R. does not disclose the commission of any offence under the said Section and thus continuance of the criminal prosecution under the said section would amount to abuse of process of the Court and the order of the High Court to that extent is liable to be set aside. However, insofar as offence against the appellants under Section 3/4 of the Dowry Prohibition Act is concerned, since the allegations disclose the commission of cognizable offence in the F.I.R., it is not a fit case to exercise power under Section 482 CrPC and to quash criminal proceedings against the appellants for the said offence.”

Finally, it is then held in the last para 31 that, “As a result of our aforesaid discussion, the charge sheet insofar as Section 493 is concerned stands quashed. However, in respect of charge sheet under Section 3 read with Section 4 of Dowry Prohibition Act, the appeal stands dismissed.”

To conclude, the sum and substance of this notable ruling is that settlement between victim and the accused cannot be a valid ground to quash the FIR or the charge sheet when the offences alleged are against society and not private in nature. Such offences have serious impact upon society and continuance of trial of such cases is founded on the overriding effect of public interests in punishing persons for such serious offences. We have already dealt considerably in detail while discussing about this in para 15. There is certainly now nothing more substantial to be said here!

Sanjeev Sirohi

Credibility Of Witness Can Be Established Only After Cross Examination By The Accused: Allahabad HC

                                  It has been very rightly reiterated once again like always in a latest judgment titled Rekha Vs. State of UP and Anr. in Application U/S 482 No. 43580 of 2019 With Manoj Vs. State of UP and Anr. in Application U/S 482 No. 43493 of 2019 reserved on November 28, 2019 and delivered on February 4, 2020 by the Allahabad High Court that the credibility of any witness can be established only after the said witness is put to cross-examination by the accused persons, in connection with the charged offence. Justice Ajit Singh of Allahabad High Court who has authored this notable judgment has very rightly held that the trial court had committed an error in not providing an opportunity to the petitioner-accused to cross examine the prosecution witnesses after the charges framed against them were altered. There can be no denying or disputing it!

                                      To start with, it is first and foremost pointed out in the opening para in para 1 of this noteworthy judgment which states that, “Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Mohd. Rashid Siddiqui and Abhinav Gaur, learned counsel for the applicant and Sri Swetashwa Agarwal, learned counsel for the opposite party no. 2 and learned A.G.A. for the State.”

                          Unquestionably, the ball is then set rolling in para 2 of this notable judgment which enunciates that, “The present 482 Cr.P.C. Application No. 43580 of 2019 has been filed to quash the orders dated 18.11.2019, 19.11.2019 and 20.11.2019 passed by learned Additional Sessions Judge, Baghpat in S.T. No. 26 of 2017 and S.T. 149 of 2017 (State Vs. Rekha and others), under Sections 147, 148, 149, 302, 307 and 120B IPC, arising out of Case Crime No. 271 of 2016, Police Station Binauli, District Baghpat.”

                          While continuing in the same vein, it is then postulated in para 3 that, “So far as the Application under Section 482 Cr.P.C. bearing No. 43493 of 2019 is concerned, has also been filed to quash the order dated 19.11.2019 passed by Additional Sessions Judge, IVth, Baghpat in Session Trial No. 26 of 2017 (State Vs. Satendra and others) arising out of Case Crime No. 271 of 2016, under Sections 147, 148, 149, 302, 307, 120B IPC, Police Station Binauli, District Baghpat.”

                                  Be it noted, it is then disclosed in para 4 that, “Both these applications mentioned above are being decided by a common judgment and order as the controversy involved in these two applications is same and identical.”

                        While elaborating in detail, it is then further disclosed in para 5 that, “The police investigated the matter and submitted the charge sheet against the accused persons, namely, Satendra, Smt. Rekha, Manoj, Nirbhay, Anil, Subodh along with Arjun and the trial commenced. The accused Rekha was charged under Section 120B read with Section 302 IPC and she was further charged under Section 120B read with Section 307 IPC and the accused Manoj was also charged under Section 120B read with Section 302 and 307 IPC and all other accused persons were charged under Sections 302, 147, 148, 149, 307 and 120B IPC and session trial commenced and evidence of prosecution witnesses were recorded. After recording the evidence of the prosecution witnesses, an application was given, copy whereof has been annexed on page 25 onwards under Section 216 Cr.P.C. with the prayer to amend the charges against the accused persons, namely, Rekha and Manoj, charged under Sections 147, 148, 149, 302, 307 , 120 B IPC. This application was moved on 31.7.2019 and the Court allowed this application vide order dated 18.11.2019, the order has been annexed on page 36 of the paper book and directed that the charge be amended and thereafter the charges against the accused persons, namely, Smt. Rekha and Manoj were amended on 19.11.2019. After the amendment of the charge against the accused Smt. Rekha and Manoj, an application was moved by the prosecution, which is annexed on page 53; which states that the witnesses were present in the Court and they were also ready for cross-examination, but no order was passed by the learned trial Court on the application dated 19.11.2019, moved by the prosecution. Then, again, an application was moved by accused namely Smt. Rekha praying therein that the accused persons may be given an opportunity to cross-examine the prosecution witnesses and the same was rejected. In that application the order was passed on 19.11.2019 by the learned trial Court, which is annexed on page 40 onwards.”

                  Full attention must be paid to what is then observed in para 6 that, “The order passed on the application of the accused persons is annexed to the supplementary affidavit at page 8 dated 20.11.2019, filed in this application. The learned trial Court rejected the application moved by the accused persons for re-cross-examination of the witnesses as fresh and the learned trial Court has opined that if the trial is being proceeded without affording an opportunity to cross-examine the prosecution witnesses to the accused persons, there will be no adverse effect on the accused persons and thereafter rejected the right of cross-examination of the accused persons.”

                                    Simply put, para 7 then reveals that, “Learned counsel for the applicants has submitted that the trial Court by not affording the opportunity to cross-examine the prosecution witnesses has committed manifest error and has totally bypassed the settled principles of law and by not permitting the accused to cross-examine the prosecution witnesses after amendment of the charge which has been specifically provided by the Sections 216 and 217 CrPC.”

                                         Furthermore, it is then added in para 8 that, “He further submitted that initially both the accused persons were charged under Section 120-B read with Section 302 IPC and again charged under Section 120B and 302 IPC and they were not charged with the offence under Sections 147, 148, 149, 302 IPC. He further submits that initially the charges were confined only to the conspiracy and now by way of amendment  of the charge, substantial change in the charges levelled earlier has been made and a new role has been assigned and attributed to the accused persons by amending charge and the accused persons were not able to defend themselves legally and they have not been provided and afforded an opportunity to cross-examine the prosecution witnesses in light of amended charges and their legal rights have been curtailed and slashed by the learned trial Judge.”

                              Interestingly enough, it is then conceded in para 9 that, “Sri Swetashwa Agarwal, learned counsel for the opposite party no. 2 has not disputed the fact that the charge was amended and he has accepted that the charges were already amended; and in the proper interest of justice the accused should have been provided the right to cross-examine which has never been catered.”

                               To be sure, para 10 then envisages that, “The provisions of Sections 216 and 217 of Code of Criminal Procedure, which are relevant and necessary for just and proper decision of the controversy, are reproduced below:-

“216. Court may alter charge.

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

217. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecution and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material. B.- Joinder of charges The bare reading of Section 216 reveals that though it is permissible for any Court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section (4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.

Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge.”

                               What’s more, it is then aptly pointed out in para 11 that, “When this Court applies the aforesaid principles to the facts of this application it emerges out that initially the accused persons were charged for an offence under Section 120B read with Section 302 IPC and later on charges were amended to Sections 147, 148, 149, 302 IPC and initially the accused persons were considering that they had to defend themselves against the charge with which they were charged that is criminal conspiracy, later on they were charged with offence of murder they were charged under Sections 147, 148, 149, 302 IPC now they have to defend themselves under the amended charge and the amended charges are bound to create prejudice to the applicants. In order to take care of the said prejudice, it was incumbent upon the prosecution to recall the witnesses, examine them in the context of the charge under Section 302 IPC and other relevant sections and allow the accused persons to cross-examine the prosecution witnesses in the light of amended charge.”

                                To put things in perspective, it is then laid down in para 12 that, “In the present case, with the framing of alternative charge, testimony of those witnesses recorded prior to that date could even be taken into consideration and this Court is of the opinion that the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirements of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity of cross-examination of the witnesses.”

                       Most significantly, it is then very rightly underscored in para 13 that, “The credibility of any witness can be established only after the said witness is put to cross-examination by the accused persons in connection with the charged offence. In the instant case, no cross-examination of the prosecution witnesses has taken place insofar as concerned charge under Sections 147, 148, 149 and 302 IPC and if the accused persons are not provided an opportunity to cross-examine the prosecution witnesses then the trial will be vitiated.”

                            Equally significant if not more is what is enshrined in para 14 that, “It is principle of natural law that nobody will be condemned unheard and proper and due hearing should be provided to the accused and the cross examination is one of the facet of due hearing which ought to be provided to every accused to defend himself of the charge being levelled against him.”

                                       While citing the relevant case law, it is then stated in para 15 that, “In Bhimanna Vs. State of Karnataka reported in (2012) 9 SCC 650, it has been held:-

“19. It is a matter of great regret that the trial court did not proceed with the case in the correct manner. If the trial Court was of the view that there was sufficient evidence on record against Yenkappa (A-1) and Suganna (A-3), which would make them liable for conviction and punishment for offences, other than those under Section 447 and 504/34 IPC, the court was certainly not helpless to alter/add the requisite charges, at any stage prior to the conclusion of the trial. Section 216 of the Code of Criminal Procedure, 1973 (hereinafter called “Cr.P.C”) empowers the trial Court to alter/add charge(s), at any stage before the conclusion of the trial. However, law requires that, in case such alteration/addition of charges causes any prejudice, in any way to the accused, there must be a fresh trial on the said altered/new charges, and for this purpose, the prosecutor may also be given an opportunity to recall witnesses as required under Section 217 Cr.P.C.”

                                         No less significant is what is then stated in para 16 that, “After considering the rival submissions and considering the facts and circumstances of this case, this Court deems it proper to direct that the learned trial Court will provide an opportunity to the applicants for cross-examination of the prosecution witnesses in the interest of justice and will protect the constitutional rights of due hearing and fair trial of the accused. It is further directed that the learned trial Court will call the prosecution witness day by day and will provide an opportunity to the accused persons to cross-examine the witnesses and it is also being directed that the prosecution witnesses will present as and when required by the trial Court and the accused persons will not take any unnecessary adjournment, if the witnesses are present in the Court. After providing opportunity to the accused persons for cross-examination of the prosecution witnesses and after recording the statements of the accused persons under Section 313 Cr.P.C., the learned trial Court will pass the judgment.”

                                Before disposing of both the applications, it is then held in para 17 that, “The learned trial Court will not act in haste in deciding this session trial and the trial Court will follow and adhere to the mandatory provisions of law.”

                                         To sum up, the Allahabad High Court in this landmark judgment has very rightly reiterated and reaffirmed that credibility of witnesses can be established only after cross examination by the accused. All the trial Courts must adhere to it and not act in haste in such cases. They must follow and adhere to the mandatory provisions of law as has been mandated by the Allahabad High Court also in this noteworthy case!

Sanjeev Sirohi

Muslim Women (Protection of Rights on Divorce) Act 1986

Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.
Parliament, with its supposed omniscience in law, may, in its professed omnipotence enact legislations to undo and set at naught the effect of any judicial decision of the Supreme Court or any other Court, however good and conducive to the welfare of the people that decision may be. But to borrow from Shakespeare, while it may be good to have giant’s power, it may not at all be good to use the same as a giant.

It is now well-settled, since the celebrated decision of the Supreme Court in Olga Tellis,“ that right to life and personal liberty guaranteed under Art. 21 of the Constitution includes the right to livelihood. Before the enactment of this Muslim Women (Protection of Rights on Divorce) Act, a Muslim woman, who was divorced by or from her husband, was granted a right to livelihood from her quondam husband in the shape of maintenance under the provisions of Chapter IX of the Code of Criminal Procedure until she remarried.

It is also equally well-settled, since the decisions of the Supreme Court in Maneka Gandhi and in Olga Tellis, that no one, obviously including a Muslim divorced woman, can be deprived of the right to life or livelihood except by the procedure established by law, which must be reasonable, right, just and fair.

Would the provisions of the Muslim Women (Protection of Righs on Divorce) Act of 1986, which apparently seeks to deprive a divorced Muslim woman of such right to maintenance from her former husband, and providing for maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run after her own relatives one after the other and then ultimately to knock at the door of the Wakf Board, at all appear to be reasonable and to be a fair substitute for the provisions of Chapter IX of the Code of Criminal Procedure? To put it in other words, whether deprivation of the Muslim divorced woman of her right to maintenance under the beneficial provisions of Chapter IX of the Code of Criminal Procedure, which are otherwise available to all other women in India, has been effected by a reasonable, right, just and a fair piece of law as enacted in the Muslim Women (Protection of Rights on Divorce) Act of 1986?

And if these provisions are much less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a Muslim divorced woman has obviously been unreasonably discriminated and driven out from the protection of the benign provisions of the general law as enacted in Chapter IX of the Code of Criminal Procedure, which are available to a Hindu, Buddhist, ]ain, Parsee or Christian woman or a woman belonging to any other community.

Now except for the protection afforded by Art. 25(1) the provisions are patently violative of Art. 14 of the Constitution mandating equality

before and equal protection of laws to all persons otherwise similarly circumstanced, and also violative of Art. 15(1) of the Constitution which forbids any discrimination on the ground of religion, as the Muslim Women (Protection of Rights on Divorce) Act of 1986 would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. This criticism has been accepted (almost verbatim) by the Supreme Court in Danial Latifi v Union of India.

 

Danial Latifi v Union of India
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in Danial Latifi.

A Constitutional Bench of five judges speaking through Rajendra Babu, ] noted that the purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat, and thereby to reverse the decision in Shah Bano, but ironically the enactment actually codifies the very rationale contained in Drmial Latzfi.

At the outset the court noted that the Act in terms does not apply to a Muslim woman whose marriage is solemnised either under the Special Marriage Act 1954 or a Muslim woman whose marriage was dissolved either under the Divorce Act 1869 or the Special Marriage Act 1954 nor to the deserted and separated Muslim wives.

It was also made clear that to find out the personal law of Muslims with regard to divorced women’s rights, the starting point should be Shall Bano case and not the original texts or any other material all the more so when varying versions as to the authenticitv of the source are shown to exist.

The court held that if the provisions of the 1986 Act were read as less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, then a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law which are available to Hindu, Buddhist, ]ain, Parsi or Christian women or women belonging to any other community. The provisions would then be violative of Art. 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Art. 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion”.2° To avoid this result the court interpreted the Act by reading its provisions in a manner which would make it compatible with constitutional principles.

Sections 3 and 4 of the Muslim Women (Protection of Rights on Divorce) Act 1986 were the principal sections, under attack before the court. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled inter ailia to a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband”. Section 4 provides that as long as the divorced woman has not remarried and is unable to maintain herself after the iddat period the Magistrate may order such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and lair maintenance to her; if they do not have the means then other relatives who do have the means and failing them the State Wakf Board.

The constitutional validity of these two sections was upheld through a process of ingenious interpretation. The court found first that the wordings of s. 3 of the Act indicated that the husband has two separate and distinct obligations:
(1) to make a “reasonable and fair provision” for his divorced wife; and (2) to provide “maintenance” for her?‘ Second it was held that the word “provision” in s. 3(1)(a) of the Act incorporates “mata” as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period. Third it found that the emphasis of s. 4 is not on the nature or duration of any such “provision” or “maintenance”, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, “within the iddat period”.

Fourth, “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it”.

It would therefore ”extend to the whole life of the divorced wife unless she gets married for a second time”.3 Fifth, the court held “Section 4 of the Act refers only to payment of ‘maintenance’ and does not touch upon the ’provision’ to be made by the husband referred to in s. 3(1)(a) of the Act.”4 Consequently the right to have a fair and reasonable provision in her favour is a right enforceable against the woman’s former husband in addition to what he is obliged to pay as “maintenance” and so “there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman”. Finally it was held “what could be earlier granted by a Magistrate under 5. 125, CrPC would now be granted under the very Act itself This being the position, the Act cannot be held to be unconstitutional”.

Unfortunately, the court ignored the provisions of Art. 25 and its impact on personal laws for arriving at the same conclusion. It is arguable that the State is limited by Art. 25(2) to enact legislation to amend personal laws only for “social welfare and reform”. Further the legislation so enacted must be in compliance with fundamental rights.

Gajendragadkar, J. in Narasu Appa Mali, had said that the State Legislature can take gradual steps for social welfare and reform but cannot introduce distinctions or classifications which are unreasonable, irrational or oppressive. Since the 1986 Act is certainly neither a measure for “social welfare and reform” under Art. 25(1) nor a measure in compliance with the principle so enunciated, it is unconstitutional.

The decision although it reaffirmed Shah Bano, strangely did not cause any protest and is now the accepted as the authority for the proposition that that the powers and jurisdiction of a Magistrate under the 1986 Act are co-extensive with the those under s. 125 of the Code of Criminal
Procedure as far as a Muslim divorced woman’s right to
maintenance is concerned.

Even prior to Danial Latifi’s case the Supreme Court had already tempered the impact of s. 4 which provides for the right of a divorced woman to claim maintenance sequentially against various relatives and ultimately against the State Wakf Board, by directing that “she would instead be entitled to plead and prove such relevant facts in one proceeding, as to the inability of her relations aforementioned, maintaining her and directing her claim against the State Wakf Board in
the first instance” .

At present, as a result of the decision in Danial Latifi, according to some High Courts9 the Muslim divorced wife has higher rights than her counter parts in other religions.

Like other divorced wives under Section 125, CrPC, she can get monthly maintenance under s. 3 of the Act provided she is unable to maintain herself. Even when she is able to maintain herself and is even a millionairess, she can get the capitalised payment of amounts under s. 3 of the Act which other divorced wives cannot. Again while the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalised amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal

law (i.e. the Act) has larger and superior rights than what her counter parts of other religions have under s. 125 of the Code”.

The Act, however, does not in any way affect the rights of the Muslim children to claim maintenance from the father and the provisions of Chapter IX of the Code of Criminal Procedure can obviously be invoked by or on behalf of such children. Section 3(1)(b) of the Act, no doubt, provides that a divorced women shall be entitled to, where she herself maintains the children born to her before or after divorce a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children. But as has been held,“ and rightly too, the right under s. 3(])(b) is a right of the divorced woman hersclfand is incidental to the divorce and the said provisions can in no way affect the operation of the provisions of Chapter IX providing maintenance for minor children.

Minors As Partners of Firm

Indian Partnership Act, 1932 defines persons as a partner who have agreed to share profits of the business carried on by all are any of them acting for all.[1]

A minor is a person who hasn’t yet attainted the age of majority according to the Indian Majority Act, 1875.[2] It is stated that a person who is domiciled in India will attain majority at the age of eighteen in the Indian Majority Act.[3]

The Indian Partnership Act governs the admittance of a minor into the partnership in Section 30. This section deals with the rights and liabilities of a minor who is admitted un the partnership.[4] A deeper reading of the provision, specifically section 30(1) makes it very clear that a minor cannot be admitted in the partnership as a full-fledged partner, but with the consent of the other partners, a minor can be admitted in the partnership to the benefits of the partnership.

It is an established principle that a minor is incompetent to enter in a contract, and therefore, a contract of partnership cannot be entered with a minor.[5] The same was also assented by the apex court of the country in the Dwarkadas Case[6] and the Hardutt Ray Case[7].

Minors Admitted Only For Benefits

The general principle has been laid down by Section 11 of The Indian Contract Act, 1872, where it is discussed that who is competent to a contract and thereby stating that a minor doesn’t have the ability to contract.[8] The same was supported in the Andhra Pradesh High judgement of Addepally Nageshwar Rao[9].

The Indian Partnership Act was drafted by a special committee. Before the enactment of The Indian Partnership Act the provision in partnership was governed by The Indian Contract Act and therefore the special committee thought that there was no requirement to deviate from the principle of incapability of a minor to enter into a contract of partnership as provided by Section 11 of The Indian Contract Act.

Following this the special committee did not allow the minors to become a partner in a partnership, although they allowed a minor to be admitted to the benefits of a partnership with the consent of all the existing partners in the partnership.[10]

The same kind of principle is also pronounced in judicial pronouncements like the S. C. Mandal case.[11] It was observed that under Section 4 of The Indian Partnership Act[12], a firm means a group of people who has entered into a contract of partnership among themselves and reading it with Section 11 of the Indian Contract Act,[13] it can be interpreted that a minor cannot be a part of a partnership contract.

It was held that a minor can only be in the partnership only for the benefits of the partnership. It also stated that there should partnership between two major partners before a minor can be admitted to its benefits.

The high court of Allahabad even declared a partnership deed to be void where the rights and liabilities of a partnership firm was divided between the minor and majors in the partnership.[14] The court held that in the present situation not only the benefits of the partnership but also the liabilities of the partnership are being put on the minor which is contradictory to the Indian Partnership Act[15].

Although the various judgements in the same line was there but still there was a huge confusion regarding the question as to can a minor become a full-fledged partner in the partnership firm as there were some contrary judgement to this effect also.

Finally, the Supreme Court in the landmark judgement of Commissioner of Income Tax vs D. Khaitan and Co.[16] took a legal stand that in a situation where a minor is made a full-fledged partner in the firm in that case the partnership cannot be registered by the Income Tax Department.

In case the partnership has to be registered by the Income Tax Department then a totally new contract has to be formulated where the minor is to be admitted only to the benefits of the firm, and the old contract will be invalid with the new contract coming in force. It was also stated that the new contract has to specifically mention that the minor has been admitted in the partnership only for benefits and no the minor is not liable for any losses.

Even in the judgement of Banka Mal Lajja Ram & Co. vs. Commissioner of Income Tax, Delhi[17], it was held that even if all the other partners of the partnership consent in making the minor a full-fledged partner still that can be brought into effect.

In the Guwahati High Court judgement of Commissioner of Income Tax vs. Kedarmall Keshardeo[18] the court held that a contract deed is valid when a guardian enters into a partnership on behalf of the minor but again no liability should be imposed on the minor, even the income of a minor from the firm should not be considered for the purpose of income tax.

The courts even came to the view that when a guardian is contracting for a minor then the damages must be calculated in the basis of what damage the guardian has suffered and not the minor.[19] It is also established by the courts that if a minor is contracting through a guardian then the benefits that are being conferred that has to be accepted by the guardian[20], but the minor may do away with the agreement id it is not entered for his benefits.[21]

Rights And Liability of A Minor

Section 30(2) of the Indian Partnership Act states that a minor is entitled to share of profits and the property of the firm which may have decided at the time the minor was admitted to the benefits of the partnership.[22] Under this provision, a minor has the right to inspect the accounts of the partnership but to that fact does not have any right to inspect other documents of the partnership.

Even in Section 30(3) of the Indian Partnership Act a minor can only be liable to the extent of his share in the partnership and can’t be liable personally to the partnership for the losses of the firm.[23] Even the same notion was taken in a Calcutta High Court judgement where it was stated that the creditors can only recover the amount from a minor to the extent of his share in the firm, but they can’t sue the minor personally, this benefit is not enjoyed by the major member in the firm.[24]

The Supreme Court went a step ahead when it adjudged that a minor can’t be declared insolvent even if the major partners of the firm are declared insolvent.[25] The apex court also came out with the same view as to when can a minor sue the other full-fledged partner in the partnership.[26]

Section 30(4) of The Indian Partnership Act states that a minor can sue the other partners of the firm for his benefits in the firm but the same right is not available to the full-fledged partners of the firm. The provision also states that in the case the minor severs all ties with the firm then valuation of his share is to be done according to Section 48 of The Indian Partnership Act[27] as far as possible.

Position of Minor Attaining Majority

According to section 30(5) of The Indian Partnership Act, a minor has two option after attaining majority, either he can sever the connection with the firm or become a full-fledged partner in the firm.[28] The minor has to make dis decision within six months of his attaining majority.

The minor has to furnish a public notice specified under Section 72 on The Indian Partnership Act[29] if he chooses to become a full-fledged partner. The minor continues to enjoy the rights as a minor till he makes his final decision as to he will join the partnership as a full-fledged partner or sever the connection from the partnership.

Section 7(a) of The Indian Partnership Act also states that after a minor partner has been admitted in the partnership as a full-fledged partner then he will be liable not only for the future liabilities of the firm but also the past liability from the date of his admission in the partnership.[30]

Section 7(b) states that a the share of the minor after he attains majority will be the same which was given to him when he was a minor as because when a minor chooses to become a full-fledged member of the partnership, there is no break in the partnership and it continues as it is just that the liabilities of being a full-fledged partner are now upon him.

Section 8 of The Indian Partnership Act[31] states that if the minor declines to continue as a full-fledged member of the partnership he will be liable for all the liabilities of the partnership till he furnishes the public notice as per Section 72 of The Indian Partnership Act. After serving the ties with the partnership, the minor may file a suit as to recover the benefits he was entitled to.

Conclusion
From the above discussion, we can say that a partnership firm cannot be formed with a minor as the only other member. The relationship of the partnership arises from a contract. According to Section 11 of The Indian Contract Act[32], a minor is not competent to a contract. Even in the Dwarkadas Khetan case[33] the Supreme Court of the country declares that a minor cannot be a full-fledged partner in the firm. The apex court in Shah Mohandas Case[34] stated that a minor may be admitted in the firm only for its benefits.

End-Notes:

  1. Section 4 of The Indian Partnership Act, 1932
  2. http://admis.hp.nic.in/himpol/Citizen/LawLib/C0141.htm; (last viewed on 22/3/19 at 09:54)
  3. Section 3 of The Indian Majority Act, 1875
  4. Section 30 of The Indian Partnership Act, 1932
  5. Shriram Sardarmal Didwani vs. Gourishankar Alias Rameshwar, AIR 1961 Bom 136
  6. Commissioner of Income Tax vs R. Dwarkadas And Co., [1971] 80 ITR 283 Bom
  7. Hardutt Ray Gajadhar Ram vs. Commissioner of Income Tax, [1950] 18 ITR 106 (All)
  8. Section 11 of The Indian Contract Act, 1872
  9. Addepally Nageswara Rao vs. Commissioner of Income-Tax, [1971] 79 ITR 306 AP
  10. Section 30(1) of The Indian Partnership Act, 1932
  11. Sanyasi Charan Mandal vs. Krishnadhan Banerjee, 1922 (24) BOMLR 700
  12. Supra, Note 1
  13. Supra, Note 8
  14. Hardutt Ray Gajadhar Ram vs. Commissioner of Income Tax, [1950] 18 ITR 106 (All)
  15. Supra, Note 4
  16. Supra Note 4
  17. Banka Mal Lajja Ran and Co. vs. Commissioner of Income Tax, Delhi, AIR 1953 Punj 270 (DB)
  18. Commissioner of Income Tax vs. Kedarmall Kessardeo, AIR 1968 Gau 68
  19. Khirnji Kuverji vs Lalji Karamasi, AIR 1941 Bom 129
  20. Commissioner of Income Tax Mysore, Bangalore vs Shah Mohandas Sodhuram, AIR 1966 SC 15
  21. Duaram Vir vs Jagan Nath, AIR 1968 Punj 84
  22. Section 30(2) of The Indian Partnership Act, 1932
  23. Section 30(3) of The Indian Partnership Act, 1932
  24. Sanyasi Charan Mandal vs. Asutosh Ghose, AIR 1915 Cal 482
  25. Shivagouda Ravji Patil and Ors. vs. Chandrakant Neelkanth Sedalge and Ors, AIR 1965 SC 212
  26. S. V. Chandra Pandian and Ors. vs S. V. Sivalinga Nadar and Ors., (1993) 1 SCC 589
  27. Mode of settlement of accounts between partners
  28. Section 30(5) of The Indian Partnership Act, 1932
  29. Mode of giving public notice
  30. Section 7(a) of The Indian Partnership Act, 1932
  31. Section 8 of The Indian Partnership Act, 1932
  32. Section 11 of The Indian Contract Act, 1872
  33. Supra Note 4
  34. Commissioner of Income Tax vs. Shah Mohandas Sadhuram, AIR 1966 SC 15