In U.O.I. vs. Bal Mukund & Ors. held that
Union of India is before us aggrieved by and dissatisfied with a
judgment and order dated 13.05.2005 passed by the High Court of Madhya
Pradesh at Indore in Criminal Appeal Nos. 964 and 1108 of 2000.
2. The factual matrix involved herein is as under:
Sub-Inspector Bajrang Lal posted in the Office of the Central Bureau
of Narcotics, Ratlam purported to have obtained a secret information to the
2
effect that the respondent Nos. 1 and 2 herein Bal Mukund and Basanti Lal
would be carrying about 20 Kg. of Opium on the next day. A preventive
party allegedly was formed pursuant to or in furtherance of the said
information. At about 0430 hours on 21.06.1998, they reached Nayapura
Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were seen carrying
cement gunny bags. They were searched. 10 Kgs. of Opium packed in 5
polythene bag of 2 Kg. each from each of them were said to have been
recovered.
3. The purported confessions of the respondent Nos. 1 and 2 were
recorded on 21.06.1998, unofficial translated version whereof reads as
under:
"Statement of Respondent No. 1
...My father is debt ridden to Amritlal Anjana out
of Rs. 38000/- out of which Rs. 18000/- has been
paid now. Their balance is Rs. 20,000/-. This sum
of Rs. 38000/- were given to me by Amritlal
Anjana for motor for well and some amount was
taken in cash. Amritlal suggested that if I wishes
to liquidate my father's debt then I should away
opium and give it to suggested destination. I shall
give good wages against it. A sum of Rs. 3000/-
were decided for carrying the opium. I came from
my village Nandwell to Behpur and Basantilal
who is my relative. Both met Amritlal Anjana at
3
10-00 night at his well Amritlal Anjana by Giving
10-000 Kgs each of us with the opium and directly
to go on feet towards Nandi. He also said he
would be available nearly Nandi Phanta. He said,
he would give Rs. 3000/- to each by way of wages
when we came on foot by & carrying 10-000 Kgs
of opium and reached Nayapura Phatak then
Narcotics officers detained us and took our formal
search. He found opium in the bag mean for
cement weight 10-000 Kgs. Which was seized by
Narcotics Deptd. Raltmal and I was detained for
carrying illicit opium weight 10-000 Kg. under the
office of N.D.P.C. This statement I am giving
voluntarily and in full consciousness whether is
spoken is underwritten to which I having read and
finding it to be correct put my signature.
Statement of Respondent No. 2
...On further interrogation stated that they are
opium weighing 10 kg and 10 kg opium from my
colleague has been recovered for which on
interrogation I state truly that on 20-06-1998
Balmukund came to my village Behpur and said
that we have to go to Maukhedi at the residence of
Amritlal S/o Raghunath Anajan therefore I
alongwith Balmukund proceeded for Behpur come
to Maukhedi who Amritlal Anjana and that we
should go to his well where I shall give you opium
or reached the well Amritlal Anjana gave me in a
bag of 10 kg of opium and 10 kg to my colleague
Balmukund and we should go on foot on
unconstructed road and reached Nanda Phatak
where I will be awaiting nearly and collect the
opium, we were coming on foot towards Nandi
then Narcotics officer took our search then in the
bag. I was carrying opium weighing 10 kg. was
recovered and 10 kg. of opium was also recovered
from my colleagues Balmukund. The opium so
recovered was taken into government possession
4
under N.D.P.S. Act, 1985. The statement which I
have made is in full consciousness, voluntarily and
whatever I stated is only written to which I
hearing/ read put my signature."
4. Indisputably, they were arrested. Thereafter also they made similar
statements. However, as no reliance has been placed thereupon, it is not
necessary for us to refer thereto.
5. On a purported confession made by them that they were carrying the
said contraband at the behest of Accused No. 3 Amritlal, a search was
conducted in his house at about 1.30 p.m. No contraband, however, was
recovered.
6. Confessional statement of the respondent No. 3 was also recorded
relevant portion whereof reads as under:
"I state that the 20 Kg of opium which has been
seized by Narcotics Deptt. at Nayapura Fantak that
I had given to Balmukund & Basantilal which was
to be given on foot near Mewasa to a person
named Ranjeet who is owner of Dahba to deliver
to him about the seized opium. I further state that
my family has a licence for the said opium. I had
surreptitiously kept 7 to 8 kg of opium which I had
kept on the well about which none of my family
5
member had any knowledge to this opium by
making aboultertion. I make 20-000 Kg gave to
10-00 to Balmukund & Basantilal for dealing to
Ranjeet. I further state that I had never done
business of selling opium out of greed I did this
act. I was totally aware that there are strict
provision for keeping illicit opium under N.D.P.S.
Act, 1985 but still out of greed I have done this
deal.
This I have truly state. This I have stated in
fully consciousness voluntarily and whatever I
have spoken is orally written to which I having
read, understanding the same put my signature."
7. Respondent No. 3 was arrested at 6.30 p.m. He purported to have
made another confession before the authorities under the Act. He was
produced before the Court on 22.06.1998. The investigating officer sought
for and obtained his remand for a day which was granted. He purported to
have made another statement on 22.06.1998. On his production before the
learned Special Judge under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "the Act") on 23.06.1998, he was taken to
judicial custody.
8. Respondent No. 3 immediately thereafter sent an application to the
learned Special Judge, Ratlam retracting his confession. The said
application was sent through the Superintendent of District Jail, Ratlam on
6
24.06.1998. It was received in the Court of the Special Judge on the same
day. Respondent Nos. 1 and 2 also filed applications retracting their
confessions on or about 5.09.1998.
9. The contraband recovered from the respondent Nos. 1 and 2 were sent
for chemical analysis. The report dated 15.07.1998 of the Assistant
Chemical Examiner, Govt. Opium and Alkaloid Works shows presence of
01.68% and 02.05% of Morphine by B.P. Extraction from the first sample
and the second sample, respectively.
10. The manner in which a sample of narcotic is required to be taken has
been laid down by the Standing Instruction No. 1/88, the relevant portion
whereof reads as under:
"e) While drawing one sample in duplicate from
a particular lot, it must be ensured that
representative drug in equal quantity is taken from
each package/ container of that lot and mixed
together to make a composite whole from which
the samples are drawn for that lot."
11. Before the learned Special Judge, no independent witness was
examined. Whereas the learned Special Judge framed charges under
7
Section 8/18 of the Act against the respondent Nos. 1 and 2; the respondent
No. 3 was charged under Section 8/27 thereof
12. The learned Special Judge relying on or on the basis of the purported
confessions made by the respondents recorded a judgment of conviction and
sentence.
13. The High Court, however, reversed the said findings of the learned
Special Judge, opining:
(i) Respondent Nos. 1 and 2 could not have been convicted on the
basis of their own confessions, which had been retracted, as the
same had not been corroborated by any independent witness.
(ii) The purported confession made by the respondent Nos. 1 and 2
was not admissible against the respondent No. 3.
(iii) The purported secret information having been recorded in writing,
as is required under Section 42 of the Act, the prosecution is
vitiated in law.
(iv) A sample of narcotics having not been taken in terms of the
Standing Instruction as also in compliance of Section 55 of the
Act, the judgment of the learned Special Judge was unsustainable.
8
14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,
would contend:
(i) The High Court committed a serious error insofar as it failed to
take into consideration that the prosecution case stood amply
proved by PW-8 S.K. Khandelwal who had seized the contraband
from the respondent Nos. 1 and 2 and PW-1 Chemical Examiner
who had proved this report as also PWs. 5 and 7 being the
witnesses of seizure.
(ii) Exhibits 20 and 21 being the confessional statements having been
recorded in terms of Section 67 of the Act, prior to their arrest,
were admissible in evidence not only against themselves but also
against their co-accused the respondent No. 3.
(iii) The purported retraction of confession by the respondent Nos. 1
and 2 having not been retracted within a reasonable time and
having not been proved as to how and in what manner the same
was obtained from them, i.e., whether by intimidation or undue
influence; could not have been taken into consideration for the
purpose of recording a judgment of acquittal.
9
(iv) PW-7 having proved the sealing of the box which was in
compliance of Section 57 of the Act and the seal having been
found to be intact, the High Court committed a serious error in
passing the impugned judgment.
(v) Having regard to the provisions contained in Section 134 of the
Evidence Act, it was not necessary for the prosecution to prove its
case by examining any independent witness.
15. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the
respondent No. 3, on the other hand, would contend that the purported
confession made by the respondent No. 3 having been retracted at the
earliest possible opportunity, viz., as soon as he was placed in judicial
custody, the learned Trial judge committed a serious error in not considering
the said aspect of the matter and consequently recording a judgment of
conviction only on the basis of confession by the co-accused.
16. Mr. Santosh Kumar, learned counsel appearing on behalf of
respondent Nos. 1 and 2 would urge:
(i) The search and seizure having not been carried out in terms of
Standing Instructions No. 1/88, the same was vitiated in law.
10
(ii) The report of chemical analyzer dated 15.07.1998 prepared by the
Asstt. Chemical Examiner clearly proves that only 01.68% of the
seized articles contained heroine is a pointer to show that had the
samples been taken in a proper manner, the same would have
established their innocence.
(iii) The prosecution having committed a flagrant violation of Section
55 of the Act, the judgment of the trial court was rightly set aside
by the High Court.
(iv) PW-7 M.R. Narvale in his evidence having not identified the bags
vis-`-vis the samples taken, the complicity of the respondents had
not been proved.
(v) Statements recorded on 21.06.1998 as also 22.06.1998 by the
respondent Nos. 1 and 2 having been made while they were
admittedly in the custody of the authorities under the Act and it
having not been proved that there was any element of
voluntariness on their part to make statements confessing their
guilt, the same would be hit by Sections 25 and 26 of the Evidence
Act.
17. Respondent Nos. 1 and 2 were arrested on the basis of some secret
information received by the informant. The said purported secret
11
information revealed the exact place, time and quantity of the narcotics the
respondent Nos. 1 and 2 would be carrying. It was, however, admittedly
neither recorded in writing nor was forwarded to the superior officers.
18. Section 42 of the Act mandates compliance of the requirements
contained therein, viz., if the officer has reason to believe from personal
knowledge or information given by any person which should be taken down
in writing that any drug or psychotropic substance or controlled substance
in respect of which an offence punishable under the Act has been
committed, he is empowered to exercise his power enumerated in clauses (a)
and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to
just exceptions, thus, taking down the information in writing is, therefore,
very necessary to be complied with.
The proviso appended to Section 42(1) of the Act reads as under:
"Provided that if such officer has reason to believe
that a search warrant or authorisation cannot be
obtained without affording opportunity for the
concealment of evidence or facility for the escape
of an offender, he may enter and search such
building, conveyance or enclosed place at any time
between sunset and sunrise after recording the
grounds of his belief."
12
Sub-section (2) of Section 42 of the Act provides that such an
information reduced in writing should be communicated to his immediate
superior officers within seventy two hours.
The information was received on the previous night. The purported
recovery was made at 5 a.m. Even the Senior Superintendent of Police was
aware thereof, who had received the information first and directed PW-7 to
conduct the raid. No explanation has been offered as to why the mandatory
requirements of law could not be complied with.
19. The prosecution case principally hinges on the purported confessions
made by the respondents. The learned Special Judge failed and/ or
neglected to notice that the respondent No. 3 had retracted his confession at
the earliest possible opportunity. He could have, therefore, been convicted
only if independent corroboration thereof was available. Admittedly, no
contraband was found from his possession. He was prosecuted for entering
into a conspiracy in regard to commission of the offences under Section
8/18 of the Act with the respondent Nos. 1 and 2. Such conspiracy was not
proved by the prosecution. No evidence whatsoever was brought on record
13
in that behalf. The High Court, in our opinion, therefore, rightly accepted
the contention of the said respondent, stating:
"12. As far as appellant Amritlal is concerned, he
was apprehended only on the basis of the
statement made by the appellants Bal Mukund and
Basantilal. The only evidence available against
him is his confessional statement recorded under
Section 67 of the Act. M.R. Narvale (PW-7) has
stated in his statement that statement of Amritlal
Anjana Ex. P/24 was recorded by him. The
contents of Ex. P/24 have not been duly proved by
the prosecution. The so called confession has
been retracted by the appellant Amritlal. He
cannot be convicted only on the basis of Ex. P/24.
Even the confessional statements of co-accused
cannot form the basis of his conviction. His
conviction is not based on the evidence and cannot
be sustained."
20. For recording his conviction, confession of the respondent Nos. 1 and
2 had been taken into consideration.
21. Mr. B.B. Singh would urge that the statements made by the
respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act
were admissible against the co-accused. Strong reliance in this behalf has
been placed on Naresh J. Sukhawani v. Union of India [1995 Supp (4) SCC
663] wherein it was held:
14
"4. It must be remembered that the statement
made before the Customs officials is not a
statement recorded under Section 161 of the
Criminal Procedure Code, 1973. Therefore, it is a
material piece of evidence collected by Customs
officials under Section 108 of the Customs Act.
That material incriminates the petitioner
inculpating him in the contravention of the
provisions of the Customs Act. The material can
certainly be used to connect the petitioner in the
contravention inasmuch as Mr Dudani's statement
clearly inculpates not only himself but also the
petitioner. It can, therefore, be used as substantive
evidence connecting the petitioner with the
contravention by exporting foreign currency out of
India. Therefore, we do not think that there is any
illegality in the order of confiscation of foreign
currency and imposition of penalty. There is no
ground warranting reduction of fine."
22. No legal principle has been laid down therein. No reason has been
assigned in support of the conclusions arrived at. If a statement made by an
accused while responding to a summons issued to him for obtaining
information can be applied against a co-accused, Section 30 of the Evidence
Act being not applicable, we have not been shown as to under which other
provision thereof, such a confession would be admissible for making the
statement of a co-accused relevant against another co-accused. If an
accused makes a confession in terms of the provisions of the Code of
15
Criminal Procedure or otherwise, his confession may be held to be
admissible in evidence only in terms of Section 30 of the Evidence Act and
not otherwise. If it is merely a statement before any authority, the maker
may be bound thereby but not those who had been implicated therein. If
such a legal principle can be culled out, the logical corollary thereof would
be that the co-accused would be entitled to cross-examine the accused as
such a statement made by him would be prejudicial to his interest.
23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias
Afsan Guru [(2005) 11 SCC 600], this Court has laid down the law in the
following terms:
"38. The use of retracted confession against the
co-accused however stands on a different footing
from the use of such confession against the maker.
To come to grips with the law on the subject, we
do no more than quoting the apt observations of
Vivian Bose, J., speaking for a three-Judge Bench
in Kashmira Singh v. State of M.P. Before
clarifying the law, the learned Judge noted with
approval the observations of Sir Lawrence Jenkins
that a confession can only be used to "lend
assurance to other evidence against a co-accused".
The legal position was then stated thus: (SCR p.
530)
"Translating these observations into concrete
terms they come to this. The proper way to
approach a case of this kind is, first, to marshal the
evidence against the accused excluding the
16
confession altogether from consideration and see
whether, if it is believed, a conviction could safely
be based on it. If it is capable of belief
independently of the confession, then of course it
is not necessary to call the confession in aid. But
cases may arise where the judge is not prepared to
act on the other evidence as it stands even though,
if believed, it would be sufficient to sustain a
conviction. In such an event the judge may call in
aid the confession and use it to lend assurance to
the other evidence and thus fortify himself in
believing what without the aid of the confession
he would not be prepared to accept." (emphasis in
original)
39. The crucial expression used in Section 30 is
"the Court may take into consideration such
confession" (emphasis supplied). These words
imply that the confession of a co-accused cannot
be elevated to the status of substantive evidence
which can form the basis of conviction of the co-
accused. The import of this expression was
succinctly explained by the Privy Council in
Bhuboni Sahu v. R in the following words: (AIR
p. 260)
"[T]he court may take the confession into
consideration and thereby, no doubt, makes its
evidence on which the court may act; but the
section does not say that the confession is to
amount to proof. Clearly there must be other
evidence. The confession is only one element in
the consideration of all the facts proved in the
case; it can be put into the scale and weighed with
the other evidence."
17
24. We may, keeping in view the aforementioned backdrop, consider the
effect of the purported statements made by the respondent Nos. 1 and 2.
25. Section 67 of the Act reads as under:
"67 - Power to call for information, etc.
Any officer referred to in section 42 who is
authorised in this behalf by the Central
Government or a State Government may, during
the course of any enquiry in connection with the
contravention of any provisions of this Act,--
(a) call for information from any person for the
purpose of satisfying himself whether there has
been any contravention of the provisions of this
Act or any rule or order made thereunder;
(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;
(c) examine any person acquainted with the facts
and circumstances of the case."
26. How and at what point of time the said provision was invoked is not
known.
18
The situation in which such purported statements have been made
cannot also be lost sight of. The purported raid was conducted early in the
morning. A large number of police officers including high ranking officers
were present. Search and seizure had been effected. According to the
prosecution, each of the respondent Nos. 1 and 2 were found to be in
possession of 10 Kg. of narcotics. No information was sought for from
them. It is doubtful whether they had made such statements on the road
itself.
27. Exhibits 20 and 21 categorically show that they were interrogated. If
they were interrogated while they were in custody, it cannot be said that
they had made a voluntary statement which satisfies the conditions
precedent laid down under Section 67 of the Act. We, in the backdrop of
the aforementioned events, find it difficult to accept that such statements
had been made by them although they had not been put under arrest. As the
authorities under the Act can always show that they had not formally been
arrested before such statements were recorded, a holistic approach for the
aforementioned purpose is necessary to be taken.
19
28. This Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]
laid down the law that if a person in custody is subjected to interrogation, he
must be informed in clear and unequivocal terms as to his right to silence.
This rule was also invoked by a Constitution Bench of this Court in State of
Punjab v. Baldev Singh [(1999) 3 SCC 977], wherein it was held:
"28. This Court cannot overlook the context in
which the NDPS Act operates and particularly the
factor of widespread illiteracy among persons
subject to investigation for drug offences. It must
be borne in mind that severer the punishment,
greater has to be the care taken to see that all the
safeguards provided in a statute are scrupulously
followed. We are not able to find any reason as to
why the empowered officer should shirk from
affording a real opportunity to the suspect, by
intimating to him that he has a right "that if he
requires" to be searched in the presence of a
Gazetted Officer or a Magistrate, he shall be
searched only in that manner. As Page 2956
already observed the compliance with the
procedural safeguards contained in Section 50 are
intended to serve dual purpose - to protect a
person against false accusation and frivolous
charges as also to lend credibility to the search and
seizure conducted by the empowered officer. The
argument that keeping in view the growing drug
menace, an insistence on compliance with all the
safeguards contained in Section 50 may result in
more acquittals does not appeal to us. If the
empowered officer fails to comply with the
requirements of Section 50 and an order or
acquittal is recorded on that ground, the
prosecution must think itself for its lapses. Indeed
20
in every case the end result is important but the
means to achieve it must remain above board. The
remedy cannot be worse than the disease itself.
The legitimacy of judicial process may come
under cloud if the Court is seen to condone acts of
lawlessness conducted by the investigating agency
during search operations and may also undermine
respect for law and may have the effect of
unconscionably compromising the administration
of justice. That cannot be permitted."
[See also Noor Aga v. State of Punjab and another, [ [ 2008 (9) SCALE
681].
29. The court while weighing the evidentiary value of such a statement
cannot lose sight of ground realities. Circumstances attendant to making of
such statements should, in our considered opinion, be taken into
consideration.
30. Concededly, the Act provides for a stringent punishment. We, for the
purpose of this case, shall proceed on the assumption, as has been
contended by Mr. Singh, that the prosecution need not examine any
independent witness although requirements therefor cannot be minimized.
[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416
and Noor Aga (supra)].
21
31. Where a statute confers such drastic powers and seeks to deprive a
citizen of its liberty for not less than ten years, and making stringent
provisions for grant of bail, scrupulous compliance of the statutory
provisions must be insisted upon. While considering a case of present
nature where two persons may barely read and write Hindi, are said to have
been used as carrier containing material of only 1.68% of narcotics, a
conviction, in our opinion, should not be based merely on the basis of a
statement made under Section 67 of the Act without any independent
corroboration particularly in view of the fact that such statements have been
retracted.
32. Mr. Singh placed strong reliance upon a decision of this Court in
A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau [(2001)
10 SCC 203]. The Bench repelling the arguments that (i) the statement
made by the accused had been retracted; (ii) the appellant informed the
Magistrate that the said statement had been coaxed out from him; and (iii)
the said statement was not corroborated, opined:
"5. There is nothing to indicate that Exhibit P-8
had been elicited from A-2 by any coercion, threat
or force and, therefore, the learned Single Judge of
22
the High Court had spurned down that contention.
Regarding the complaint alleged to have been
made by the appellant Naushad on 11-3-1994, we
have perused it. His case therein was that he
offered himself to be a witness in the case and
some reward was offered for it. It was on the said
offer that he agreed to sign the said statement..."
There exists a distinction between a case where the accused himself
had stated that he had made the statement on the belief that he would be
rewarded and a case where such purported confession had been obtained
upon interrogation by High ranking police officials.
33. Yet again in M. Prabhulal v. Assistant Director, Directorate of
Revenue Intelligence [(2003) 8 SCC 449], the retraction was made only
when the accused was being examined under Section 313 of the Code of
Criminal Procedure. No credence was given to such a retraction made after
such a long time. This Court taking into consideration the entire factual
matrix involved in the case opined that the confessional statement could not
be held to be involuntary and they were voluntarily made. Such is not the
case here.
23
We have pointed out several circumstances to show that the accused
had been put under interrogation.
34. Reliance has also been placed on Kanhaiyalal v. Union of India
[(2008) 4 SCC 668]. In that case, no question was put in cross-examination
to the police officer (PW-9) whose evidence had been relied upon by the
High Court and, thus, his evidence was stated to be corroborative of the
statement made by the accused.
However, it is interesting to note that in Francis Stanly Alias Stalin v.
Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)
13 SCC 210], this Court opined:
"15. We are of the opinion that while it is true that
a confession made before an officer of the
Department of Revenue Intelligence under the
NDPS Act may not be hit by Section 25 in view of
the aforesaid decisions, yet such a confession must
be subject to closer scrutiny than a confession
made to private citizens or officials who do not
have investigating powers under the Act. Hence
the alleged confession made by the same appellant
must be subjected to closer scrutiny than would
otherwise be required.
16. We have carefully perused the facts of the
present case, and we are of the opinion that on the
evidence of this particular case it would not be
safe to maintain the conviction of the appellant,
24
and he must be given the benefit of reasonable
doubt."
35. In Mohtesham Mohd. Ismail v. Spl. Director, Enforcement
Directorate and Another [(2007) 8 SCC 254], in a case involving the
Foreign Exchange Regulation Act, this Court held:
"19. Apart therefrom the High Court was bound to
take into consideration the factum of retraction of
the confession by the appellant. It is now a well-
settled principle of law that a confession of a co-
accused person cannot be treated as substantive
evidence and can be pressed into service only
when the court is inclined to accept other evidence
and feels the necessity of seeking for an assurance
in support of the conclusion deducible
therefrom..."
36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC
410], this Court opined:
"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."
37. In Noor Aga (supra), this Court held that whether the confession was
made under duress or coercion and/ or voluntary in nature should be
25
considered having regard to the facts and circumstances of each case. It was
opined:
"102. Section 25 of the Evidence Act was enacted
in the words of Mehmood J in Queen Empress v.
Babulal ILR (1884) 6 All. 509 to put a stop to the
extortion of confession, by taking away from the
police officers as the advantage of proving such
extorted confession during the trial of accused
persons. It was, therefore, enacted to subserve a
high purpose.
113. Even otherwise Section 138B of the 1962 Act
must be read as a provision containing certain
important features, namely:
(a) There should be in the first instance statement
made and signed by a person before a competent
custom official.
(b) It must have been made during the course of
enquiry and proceedings under the Customs Act.
114. Only when these things are established, a
statement made by an accused would become
relevant in a prosecution under the Act. Only then,
it can be used for the purpose of proving the truth
of the facts contained therein. It deals with another
category of case which provides for a further
clarification. Clause (a) of Sub-section (1) of
Section 138B deals with one type of persons and
Clause (b) deals with another. The Legislature
might have in mind its experience that sometimes
witnesses do not support the prosecution case as
for example panch witnesses and only in such an
event an additional opportunity is afforded to the
26
prosecution to criticize the said witness and to
invite a finding from the court not to rely on the
assurance of the court on the basis of the statement
recorded by the Customs Department and for that
purpose it is envisaged that a person may be such
whose statement was recorded but while he was
examined before the court, it arrived at an opinion
that is statement should be admitted in evidence in
the interest of justice which was evidently to make
that situation and to confirm the witness who is the
author of such statement but does not support the
prosecution although he made a statement in terms
of Section 108 of the Customs Act. We are not
concerned with such category of witnesses.
Confessional statement of an accused, therefore,
cannot be made use of in any manner under
Section 138B of the Customs Act. Even otherwise
such an evidence is considered to be of weak
nature."
It was also held that sanctity of the recovery should be ensured.
38. We, therefore, in the facts and circumstances of this case, are clearly
of the view that the purported confessions made by the respondent Nos. 1
and 2 could not in absence of other corroboration form the basis of
conviction.
39. There is another aspect of the matter which cannot also be lost sight
of. Standing Instruction No. 1/88, which had been issued under the Act,
lays down the procedure for taking samples. The High Court has noticed
27
that PW-7 had taken samples of 25 grams each from all the five bags and
then mixed them and sent to the laboratory. There is nothing to show that
adequate quantity from each bag had been taken. It was a requirement in
law.
40. There is another infirmity in the prosecution case.
Section 55 of the Act reads as under:
"55 - Police to take charge of articles seized and
delivered
An officer-in-charge of a police station shall take
charge of and keep in safe custody, pending the
orders of the Magistrate, all articles seized under
this Act within the local area of that police station
and which may be delivered to him, and shall
allow any officer who may accompany such
articles to the police station or who may be
deputed for the purpose, to affix his seal to such
articles or to take samples of and from them and
all samples so taken shall also be sealed with a
seal of the officer-in-charge of the police station."
PW-7 did not testify as to which of the bags seized had been sent for
analysis. No statement had been made by him that the bags produced were
the bags in question which were seized or the contraband was found in
them.
28
41. Furthermore, we are dealing with a judgment of acquittal. The High
Court, for good and sufficient reasons, had arrived at findings of fact both
with regard to voluntariness of the purported confessions made by the
respondents as also compliance of the mandatory statutory provisions vis-`-
vis directions issued by the Central Government in making search, seizure
as also taking of samples for the purpose of chemical examination having
been doubted, we do not see any reason why we should take a contrary view
as it is well-known that the appellate court would not interfere with a
judgment of acquittal only because another view is possible. On the other
hand, if two views are possible, it is trite, the appellate court shall not
interfere. [See Animireddy Venkata Ramana and Others v. Public
Prosecutor, High Court of Andhra Pradesh (2008) 5 SCC 368]
42. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.
...............................J.
[S.B. Sinha]
29
................................J.
[Dr. Mukundakam Sharma]
................................J.
[H.L. Dattu]
New Delhi;
March 31, 2009
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1397 OF 2007
U.O.I. ...Appellant
Versus
Bal Mukund & Ors. ...Respondents
JUDGMENT
S.B. SINHA, J :
1. Union of India is before us aggrieved by and dissatisfied with a
judgment and order dated 13.05.2005 passed by the High Court of Madhya
Pradesh at Indore in Criminal Appeal Nos. 964 and 1108 of 2000.
2. The factual matrix involved herein is as under:
Sub-Inspector Bajrang Lal posted in the Office of the Central Bureau
of Narcotics, Ratlam purported to have obtained a secret information to the
2
effect that the respondent Nos. 1 and 2 herein Bal Mukund and Basanti Lal
would be carrying about 20 Kg. of Opium on the next day. A preventive
party allegedly was formed pursuant to or in furtherance of the said
information. At about 0430 hours on 21.06.1998, they reached Nayapura
Phanta on Ratlam Jaora Road. Respondent Nos. 1 and 2 were seen carrying
cement gunny bags. They were searched. 10 Kgs. of Opium packed in 5
polythene bag of 2 Kg. each from each of them were said to have been
recovered.
3. The purported confessions of the respondent Nos. 1 and 2 were
recorded on 21.06.1998, unofficial translated version whereof reads as
under:
"Statement of Respondent No. 1
...My father is debt ridden to Amritlal Anjana out
of Rs. 38000/- out of which Rs. 18000/- has been
paid now. Their balance is Rs. 20,000/-. This sum
of Rs. 38000/- were given to me by Amritlal
Anjana for motor for well and some amount was
taken in cash. Amritlal suggested that if I wishes
to liquidate my father's debt then I should away
opium and give it to suggested destination. I shall
give good wages against it. A sum of Rs. 3000/-
were decided for carrying the opium. I came from
my village Nandwell to Behpur and Basantilal
who is my relative. Both met Amritlal Anjana at
3
10-00 night at his well Amritlal Anjana by Giving
10-000 Kgs each of us with the opium and directly
to go on feet towards Nandi. He also said he
would be available nearly Nandi Phanta. He said,
he would give Rs. 3000/- to each by way of wages
when we came on foot by & carrying 10-000 Kgs
of opium and reached Nayapura Phatak then
Narcotics officers detained us and took our formal
search. He found opium in the bag mean for
cement weight 10-000 Kgs. Which was seized by
Narcotics Deptd. Raltmal and I was detained for
carrying illicit opium weight 10-000 Kg. under the
office of N.D.P.C. This statement I am giving
voluntarily and in full consciousness whether is
spoken is underwritten to which I having read and
finding it to be correct put my signature.
Statement of Respondent No. 2
...On further interrogation stated that they are
opium weighing 10 kg and 10 kg opium from my
colleague has been recovered for which on
interrogation I state truly that on 20-06-1998
Balmukund came to my village Behpur and said
that we have to go to Maukhedi at the residence of
Amritlal S/o Raghunath Anajan therefore I
alongwith Balmukund proceeded for Behpur come
to Maukhedi who Amritlal Anjana and that we
should go to his well where I shall give you opium
or reached the well Amritlal Anjana gave me in a
bag of 10 kg of opium and 10 kg to my colleague
Balmukund and we should go on foot on
unconstructed road and reached Nanda Phatak
where I will be awaiting nearly and collect the
opium, we were coming on foot towards Nandi
then Narcotics officer took our search then in the
bag. I was carrying opium weighing 10 kg. was
recovered and 10 kg. of opium was also recovered
from my colleagues Balmukund. The opium so
recovered was taken into government possession
4
under N.D.P.S. Act, 1985. The statement which I
have made is in full consciousness, voluntarily and
whatever I stated is only written to which I
hearing/ read put my signature."
4. Indisputably, they were arrested. Thereafter also they made similar
statements. However, as no reliance has been placed thereupon, it is not
necessary for us to refer thereto.
5. On a purported confession made by them that they were carrying the
said contraband at the behest of Accused No. 3 Amritlal, a search was
conducted in his house at about 1.30 p.m. No contraband, however, was
recovered.
6. Confessional statement of the respondent No. 3 was also recorded
relevant portion whereof reads as under:
"I state that the 20 Kg of opium which has been
seized by Narcotics Deptt. at Nayapura Fantak that
I had given to Balmukund & Basantilal which was
to be given on foot near Mewasa to a person
named Ranjeet who is owner of Dahba to deliver
to him about the seized opium. I further state that
my family has a licence for the said opium. I had
surreptitiously kept 7 to 8 kg of opium which I had
kept on the well about which none of my family
5
member had any knowledge to this opium by
making aboultertion. I make 20-000 Kg gave to
10-00 to Balmukund & Basantilal for dealing to
Ranjeet. I further state that I had never done
business of selling opium out of greed I did this
act. I was totally aware that there are strict
provision for keeping illicit opium under N.D.P.S.
Act, 1985 but still out of greed I have done this
deal.
This I have truly state. This I have stated in
fully consciousness voluntarily and whatever I
have spoken is orally written to which I having
read, understanding the same put my signature."
7. Respondent No. 3 was arrested at 6.30 p.m. He purported to have
made another confession before the authorities under the Act. He was
produced before the Court on 22.06.1998. The investigating officer sought
for and obtained his remand for a day which was granted. He purported to
have made another statement on 22.06.1998. On his production before the
learned Special Judge under the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "the Act") on 23.06.1998, he was taken to
judicial custody.
8. Respondent No. 3 immediately thereafter sent an application to the
learned Special Judge, Ratlam retracting his confession. The said
application was sent through the Superintendent of District Jail, Ratlam on
6
24.06.1998. It was received in the Court of the Special Judge on the same
day. Respondent Nos. 1 and 2 also filed applications retracting their
confessions on or about 5.09.1998.
9. The contraband recovered from the respondent Nos. 1 and 2 were sent
for chemical analysis. The report dated 15.07.1998 of the Assistant
Chemical Examiner, Govt. Opium and Alkaloid Works shows presence of
01.68% and 02.05% of Morphine by B.P. Extraction from the first sample
and the second sample, respectively.
10. The manner in which a sample of narcotic is required to be taken has
been laid down by the Standing Instruction No. 1/88, the relevant portion
whereof reads as under:
"e) While drawing one sample in duplicate from
a particular lot, it must be ensured that
representative drug in equal quantity is taken from
each package/ container of that lot and mixed
together to make a composite whole from which
the samples are drawn for that lot."
11. Before the learned Special Judge, no independent witness was
examined. Whereas the learned Special Judge framed charges under
7
Section 8/18 of the Act against the respondent Nos. 1 and 2; the respondent
No. 3 was charged under Section 8/27 thereof
12. The learned Special Judge relying on or on the basis of the purported
confessions made by the respondents recorded a judgment of conviction and
sentence.
13. The High Court, however, reversed the said findings of the learned
Special Judge, opining:
(i) Respondent Nos. 1 and 2 could not have been convicted on the
basis of their own confessions, which had been retracted, as the
same had not been corroborated by any independent witness.
(ii) The purported confession made by the respondent Nos. 1 and 2
was not admissible against the respondent No. 3.
(iii) The purported secret information having been recorded in writing,
as is required under Section 42 of the Act, the prosecution is
vitiated in law.
(iv) A sample of narcotics having not been taken in terms of the
Standing Instruction as also in compliance of Section 55 of the
Act, the judgment of the learned Special Judge was unsustainable.
8
14. Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,
would contend:
(i) The High Court committed a serious error insofar as it failed to
take into consideration that the prosecution case stood amply
proved by PW-8 S.K. Khandelwal who had seized the contraband
from the respondent Nos. 1 and 2 and PW-1 Chemical Examiner
who had proved this report as also PWs. 5 and 7 being the
witnesses of seizure.
(ii) Exhibits 20 and 21 being the confessional statements having been
recorded in terms of Section 67 of the Act, prior to their arrest,
were admissible in evidence not only against themselves but also
against their co-accused the respondent No. 3.
(iii) The purported retraction of confession by the respondent Nos. 1
and 2 having not been retracted within a reasonable time and
having not been proved as to how and in what manner the same
was obtained from them, i.e., whether by intimidation or undue
influence; could not have been taken into consideration for the
purpose of recording a judgment of acquittal.
9
(iv) PW-7 having proved the sealing of the box which was in
compliance of Section 57 of the Act and the seal having been
found to be intact, the High Court committed a serious error in
passing the impugned judgment.
(v) Having regard to the provisions contained in Section 134 of the
Evidence Act, it was not necessary for the prosecution to prove its
case by examining any independent witness.
15. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the
respondent No. 3, on the other hand, would contend that the purported
confession made by the respondent No. 3 having been retracted at the
earliest possible opportunity, viz., as soon as he was placed in judicial
custody, the learned Trial judge committed a serious error in not considering
the said aspect of the matter and consequently recording a judgment of
conviction only on the basis of confession by the co-accused.
16. Mr. Santosh Kumar, learned counsel appearing on behalf of
respondent Nos. 1 and 2 would urge:
(i) The search and seizure having not been carried out in terms of
Standing Instructions No. 1/88, the same was vitiated in law.
10
(ii) The report of chemical analyzer dated 15.07.1998 prepared by the
Asstt. Chemical Examiner clearly proves that only 01.68% of the
seized articles contained heroine is a pointer to show that had the
samples been taken in a proper manner, the same would have
established their innocence.
(iii) The prosecution having committed a flagrant violation of Section
55 of the Act, the judgment of the trial court was rightly set aside
by the High Court.
(iv) PW-7 M.R. Narvale in his evidence having not identified the bags
vis-`-vis the samples taken, the complicity of the respondents had
not been proved.
(v) Statements recorded on 21.06.1998 as also 22.06.1998 by the
respondent Nos. 1 and 2 having been made while they were
admittedly in the custody of the authorities under the Act and it
having not been proved that there was any element of
voluntariness on their part to make statements confessing their
guilt, the same would be hit by Sections 25 and 26 of the Evidence
Act.
17. Respondent Nos. 1 and 2 were arrested on the basis of some secret
information received by the informant. The said purported secret
11
information revealed the exact place, time and quantity of the narcotics the
respondent Nos. 1 and 2 would be carrying. It was, however, admittedly
neither recorded in writing nor was forwarded to the superior officers.
18. Section 42 of the Act mandates compliance of the requirements
contained therein, viz., if the officer has reason to believe from personal
knowledge or information given by any person which should be taken down
in writing that any drug or psychotropic substance or controlled substance
in respect of which an offence punishable under the Act has been
committed, he is empowered to exercise his power enumerated in clauses (a)
and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to
just exceptions, thus, taking down the information in writing is, therefore,
very necessary to be complied with.
The proviso appended to Section 42(1) of the Act reads as under:
"Provided that if such officer has reason to believe
that a search warrant or authorisation cannot be
obtained without affording opportunity for the
concealment of evidence or facility for the escape
of an offender, he may enter and search such
building, conveyance or enclosed place at any time
between sunset and sunrise after recording the
grounds of his belief."
12
Sub-section (2) of Section 42 of the Act provides that such an
information reduced in writing should be communicated to his immediate
superior officers within seventy two hours.
The information was received on the previous night. The purported
recovery was made at 5 a.m. Even the Senior Superintendent of Police was
aware thereof, who had received the information first and directed PW-7 to
conduct the raid. No explanation has been offered as to why the mandatory
requirements of law could not be complied with.
19. The prosecution case principally hinges on the purported confessions
made by the respondents. The learned Special Judge failed and/ or
neglected to notice that the respondent No. 3 had retracted his confession at
the earliest possible opportunity. He could have, therefore, been convicted
only if independent corroboration thereof was available. Admittedly, no
contraband was found from his possession. He was prosecuted for entering
into a conspiracy in regard to commission of the offences under Section
8/18 of the Act with the respondent Nos. 1 and 2. Such conspiracy was not
proved by the prosecution. No evidence whatsoever was brought on record
13
in that behalf. The High Court, in our opinion, therefore, rightly accepted
the contention of the said respondent, stating:
"12. As far as appellant Amritlal is concerned, he
was apprehended only on the basis of the
statement made by the appellants Bal Mukund and
Basantilal. The only evidence available against
him is his confessional statement recorded under
Section 67 of the Act. M.R. Narvale (PW-7) has
stated in his statement that statement of Amritlal
Anjana Ex. P/24 was recorded by him. The
contents of Ex. P/24 have not been duly proved by
the prosecution. The so called confession has
been retracted by the appellant Amritlal. He
cannot be convicted only on the basis of Ex. P/24.
Even the confessional statements of co-accused
cannot form the basis of his conviction. His
conviction is not based on the evidence and cannot
be sustained."
20. For recording his conviction, confession of the respondent Nos. 1 and
2 had been taken into consideration.
21. Mr. B.B. Singh would urge that the statements made by the
respondent Nos. 1 and 2 purported to be in terms of Section 67 of the Act
were admissible against the co-accused. Strong reliance in this behalf has
been placed on Naresh J. Sukhawani v. Union of India [1995 Supp (4) SCC
663] wherein it was held:
14
"4. It must be remembered that the statement
made before the Customs officials is not a
statement recorded under Section 161 of the
Criminal Procedure Code, 1973. Therefore, it is a
material piece of evidence collected by Customs
officials under Section 108 of the Customs Act.
That material incriminates the petitioner
inculpating him in the contravention of the
provisions of the Customs Act. The material can
certainly be used to connect the petitioner in the
contravention inasmuch as Mr Dudani's statement
clearly inculpates not only himself but also the
petitioner. It can, therefore, be used as substantive
evidence connecting the petitioner with the
contravention by exporting foreign currency out of
India. Therefore, we do not think that there is any
illegality in the order of confiscation of foreign
currency and imposition of penalty. There is no
ground warranting reduction of fine."
22. No legal principle has been laid down therein. No reason has been
assigned in support of the conclusions arrived at. If a statement made by an
accused while responding to a summons issued to him for obtaining
information can be applied against a co-accused, Section 30 of the Evidence
Act being not applicable, we have not been shown as to under which other
provision thereof, such a confession would be admissible for making the
statement of a co-accused relevant against another co-accused. If an
accused makes a confession in terms of the provisions of the Code of
15
Criminal Procedure or otherwise, his confession may be held to be
admissible in evidence only in terms of Section 30 of the Evidence Act and
not otherwise. If it is merely a statement before any authority, the maker
may be bound thereby but not those who had been implicated therein. If
such a legal principle can be culled out, the logical corollary thereof would
be that the co-accused would be entitled to cross-examine the accused as
such a statement made by him would be prejudicial to his interest.
23. We may notice that in State (NCT of Delhi) v. Navjot Sandhu Alias
Afsan Guru [(2005) 11 SCC 600], this Court has laid down the law in the
following terms:
"38. The use of retracted confession against the
co-accused however stands on a different footing
from the use of such confession against the maker.
To come to grips with the law on the subject, we
do no more than quoting the apt observations of
Vivian Bose, J., speaking for a three-Judge Bench
in Kashmira Singh v. State of M.P. Before
clarifying the law, the learned Judge noted with
approval the observations of Sir Lawrence Jenkins
that a confession can only be used to "lend
assurance to other evidence against a co-accused".
The legal position was then stated thus: (SCR p.
530)
"Translating these observations into concrete
terms they come to this. The proper way to
approach a case of this kind is, first, to marshal the
evidence against the accused excluding the
16
confession altogether from consideration and see
whether, if it is believed, a conviction could safely
be based on it. If it is capable of belief
independently of the confession, then of course it
is not necessary to call the confession in aid. But
cases may arise where the judge is not prepared to
act on the other evidence as it stands even though,
if believed, it would be sufficient to sustain a
conviction. In such an event the judge may call in
aid the confession and use it to lend assurance to
the other evidence and thus fortify himself in
believing what without the aid of the confession
he would not be prepared to accept." (emphasis in
original)
39. The crucial expression used in Section 30 is
"the Court may take into consideration such
confession" (emphasis supplied). These words
imply that the confession of a co-accused cannot
be elevated to the status of substantive evidence
which can form the basis of conviction of the co-
accused. The import of this expression was
succinctly explained by the Privy Council in
Bhuboni Sahu v. R in the following words: (AIR
p. 260)
"[T]he court may take the confession into
consideration and thereby, no doubt, makes its
evidence on which the court may act; but the
section does not say that the confession is to
amount to proof. Clearly there must be other
evidence. The confession is only one element in
the consideration of all the facts proved in the
case; it can be put into the scale and weighed with
the other evidence."
17
24. We may, keeping in view the aforementioned backdrop, consider the
effect of the purported statements made by the respondent Nos. 1 and 2.
25. Section 67 of the Act reads as under:
"67 - Power to call for information, etc.
Any officer referred to in section 42 who is
authorised in this behalf by the Central
Government or a State Government may, during
the course of any enquiry in connection with the
contravention of any provisions of this Act,--
(a) call for information from any person for the
purpose of satisfying himself whether there has
been any contravention of the provisions of this
Act or any rule or order made thereunder;
(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;
(c) examine any person acquainted with the facts
and circumstances of the case."
26. How and at what point of time the said provision was invoked is not
known.
18
The situation in which such purported statements have been made
cannot also be lost sight of. The purported raid was conducted early in the
morning. A large number of police officers including high ranking officers
were present. Search and seizure had been effected. According to the
prosecution, each of the respondent Nos. 1 and 2 were found to be in
possession of 10 Kg. of narcotics. No information was sought for from
them. It is doubtful whether they had made such statements on the road
itself.
27. Exhibits 20 and 21 categorically show that they were interrogated. If
they were interrogated while they were in custody, it cannot be said that
they had made a voluntary statement which satisfies the conditions
precedent laid down under Section 67 of the Act. We, in the backdrop of
the aforementioned events, find it difficult to accept that such statements
had been made by them although they had not been put under arrest. As the
authorities under the Act can always show that they had not formally been
arrested before such statements were recorded, a holistic approach for the
aforementioned purpose is necessary to be taken.
19
28. This Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]
laid down the law that if a person in custody is subjected to interrogation, he
must be informed in clear and unequivocal terms as to his right to silence.
This rule was also invoked by a Constitution Bench of this Court in State of
Punjab v. Baldev Singh [(1999) 3 SCC 977], wherein it was held:
"28. This Court cannot overlook the context in
which the NDPS Act operates and particularly the
factor of widespread illiteracy among persons
subject to investigation for drug offences. It must
be borne in mind that severer the punishment,
greater has to be the care taken to see that all the
safeguards provided in a statute are scrupulously
followed. We are not able to find any reason as to
why the empowered officer should shirk from
affording a real opportunity to the suspect, by
intimating to him that he has a right "that if he
requires" to be searched in the presence of a
Gazetted Officer or a Magistrate, he shall be
searched only in that manner. As Page 2956
already observed the compliance with the
procedural safeguards contained in Section 50 are
intended to serve dual purpose - to protect a
person against false accusation and frivolous
charges as also to lend credibility to the search and
seizure conducted by the empowered officer. The
argument that keeping in view the growing drug
menace, an insistence on compliance with all the
safeguards contained in Section 50 may result in
more acquittals does not appeal to us. If the
empowered officer fails to comply with the
requirements of Section 50 and an order or
acquittal is recorded on that ground, the
prosecution must think itself for its lapses. Indeed
20
in every case the end result is important but the
means to achieve it must remain above board. The
remedy cannot be worse than the disease itself.
The legitimacy of judicial process may come
under cloud if the Court is seen to condone acts of
lawlessness conducted by the investigating agency
during search operations and may also undermine
respect for law and may have the effect of
unconscionably compromising the administration
of justice. That cannot be permitted."
[See also Noor Aga v. State of Punjab and another, [ [ 2008 (9) SCALE
681].
29. The court while weighing the evidentiary value of such a statement
cannot lose sight of ground realities. Circumstances attendant to making of
such statements should, in our considered opinion, be taken into
consideration.
30. Concededly, the Act provides for a stringent punishment. We, for the
purpose of this case, shall proceed on the assumption, as has been
contended by Mr. Singh, that the prosecution need not examine any
independent witness although requirements therefor cannot be minimized.
[See Ritesh Chakeravarty v. State of Madhya Pradesh JT 2006 (12) SC 416
and Noor Aga (supra)].
21
31. Where a statute confers such drastic powers and seeks to deprive a
citizen of its liberty for not less than ten years, and making stringent
provisions for grant of bail, scrupulous compliance of the statutory
provisions must be insisted upon. While considering a case of present
nature where two persons may barely read and write Hindi, are said to have
been used as carrier containing material of only 1.68% of narcotics, a
conviction, in our opinion, should not be based merely on the basis of a
statement made under Section 67 of the Act without any independent
corroboration particularly in view of the fact that such statements have been
retracted.
32. Mr. Singh placed strong reliance upon a decision of this Court in
A.K. Mehaboob v. Intelligence Officer, Narcotics Control Bureau [(2001)
10 SCC 203]. The Bench repelling the arguments that (i) the statement
made by the accused had been retracted; (ii) the appellant informed the
Magistrate that the said statement had been coaxed out from him; and (iii)
the said statement was not corroborated, opined:
"5. There is nothing to indicate that Exhibit P-8
had been elicited from A-2 by any coercion, threat
or force and, therefore, the learned Single Judge of
22
the High Court had spurned down that contention.
Regarding the complaint alleged to have been
made by the appellant Naushad on 11-3-1994, we
have perused it. His case therein was that he
offered himself to be a witness in the case and
some reward was offered for it. It was on the said
offer that he agreed to sign the said statement..."
There exists a distinction between a case where the accused himself
had stated that he had made the statement on the belief that he would be
rewarded and a case where such purported confession had been obtained
upon interrogation by High ranking police officials.
33. Yet again in M. Prabhulal v. Assistant Director, Directorate of
Revenue Intelligence [(2003) 8 SCC 449], the retraction was made only
when the accused was being examined under Section 313 of the Code of
Criminal Procedure. No credence was given to such a retraction made after
such a long time. This Court taking into consideration the entire factual
matrix involved in the case opined that the confessional statement could not
be held to be involuntary and they were voluntarily made. Such is not the
case here.
23
We have pointed out several circumstances to show that the accused
had been put under interrogation.
34. Reliance has also been placed on Kanhaiyalal v. Union of India
[(2008) 4 SCC 668]. In that case, no question was put in cross-examination
to the police officer (PW-9) whose evidence had been relied upon by the
High Court and, thus, his evidence was stated to be corroborative of the
statement made by the accused.
However, it is interesting to note that in Francis Stanly Alias Stalin v.
Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [(2006)
13 SCC 210], this Court opined:
"15. We are of the opinion that while it is true that
a confession made before an officer of the
Department of Revenue Intelligence under the
NDPS Act may not be hit by Section 25 in view of
the aforesaid decisions, yet such a confession must
be subject to closer scrutiny than a confession
made to private citizens or officials who do not
have investigating powers under the Act. Hence
the alleged confession made by the same appellant
must be subjected to closer scrutiny than would
otherwise be required.
16. We have carefully perused the facts of the
present case, and we are of the opinion that on the
evidence of this particular case it would not be
safe to maintain the conviction of the appellant,
24
and he must be given the benefit of reasonable
doubt."
35. In Mohtesham Mohd. Ismail v. Spl. Director, Enforcement
Directorate and Another [(2007) 8 SCC 254], in a case involving the
Foreign Exchange Regulation Act, this Court held:
"19. Apart therefrom the High Court was bound to
take into consideration the factum of retraction of
the confession by the appellant. It is now a well-
settled principle of law that a confession of a co-
accused person cannot be treated as substantive
evidence and can be pressed into service only
when the court is inclined to accept other evidence
and feels the necessity of seeking for an assurance
in support of the conclusion deducible
therefrom..."
36. In Ravindran Alias John v. Superintendent of Customs [(2007) 6 SCC
410], this Court opined:
"19...The confessional statement of a co-accused
could not be used as substantive evidence against
the co-accused."
37. In Noor Aga (supra), this Court held that whether the confession was
made under duress or coercion and/ or voluntary in nature should be
25
considered having regard to the facts and circumstances of each case. It was
opined:
"102. Section 25 of the Evidence Act was enacted
in the words of Mehmood J in Queen Empress v.
Babulal ILR (1884) 6 All. 509 to put a stop to the
extortion of confession, by taking away from the
police officers as the advantage of proving such
extorted confession during the trial of accused
persons. It was, therefore, enacted to subserve a
high purpose.
113. Even otherwise Section 138B of the 1962 Act
must be read as a provision containing certain
important features, namely:
(a) There should be in the first instance statement
made and signed by a person before a competent
custom official.
(b) It must have been made during the course of
enquiry and proceedings under the Customs Act.
114. Only when these things are established, a
statement made by an accused would become
relevant in a prosecution under the Act. Only then,
it can be used for the purpose of proving the truth
of the facts contained therein. It deals with another
category of case which provides for a further
clarification. Clause (a) of Sub-section (1) of
Section 138B deals with one type of persons and
Clause (b) deals with another. The Legislature
might have in mind its experience that sometimes
witnesses do not support the prosecution case as
for example panch witnesses and only in such an
event an additional opportunity is afforded to the
26
prosecution to criticize the said witness and to
invite a finding from the court not to rely on the
assurance of the court on the basis of the statement
recorded by the Customs Department and for that
purpose it is envisaged that a person may be such
whose statement was recorded but while he was
examined before the court, it arrived at an opinion
that is statement should be admitted in evidence in
the interest of justice which was evidently to make
that situation and to confirm the witness who is the
author of such statement but does not support the
prosecution although he made a statement in terms
of Section 108 of the Customs Act. We are not
concerned with such category of witnesses.
Confessional statement of an accused, therefore,
cannot be made use of in any manner under
Section 138B of the Customs Act. Even otherwise
such an evidence is considered to be of weak
nature."
It was also held that sanctity of the recovery should be ensured.
38. We, therefore, in the facts and circumstances of this case, are clearly
of the view that the purported confessions made by the respondent Nos. 1
and 2 could not in absence of other corroboration form the basis of
conviction.
39. There is another aspect of the matter which cannot also be lost sight
of. Standing Instruction No. 1/88, which had been issued under the Act,
lays down the procedure for taking samples. The High Court has noticed
27
that PW-7 had taken samples of 25 grams each from all the five bags and
then mixed them and sent to the laboratory. There is nothing to show that
adequate quantity from each bag had been taken. It was a requirement in
law.
40. There is another infirmity in the prosecution case.
Section 55 of the Act reads as under:
"55 - Police to take charge of articles seized and
delivered
An officer-in-charge of a police station shall take
charge of and keep in safe custody, pending the
orders of the Magistrate, all articles seized under
this Act within the local area of that police station
and which may be delivered to him, and shall
allow any officer who may accompany such
articles to the police station or who may be
deputed for the purpose, to affix his seal to such
articles or to take samples of and from them and
all samples so taken shall also be sealed with a
seal of the officer-in-charge of the police station."
PW-7 did not testify as to which of the bags seized had been sent for
analysis. No statement had been made by him that the bags produced were
the bags in question which were seized or the contraband was found in
them.
28
41. Furthermore, we are dealing with a judgment of acquittal. The High
Court, for good and sufficient reasons, had arrived at findings of fact both
with regard to voluntariness of the purported confessions made by the
respondents as also compliance of the mandatory statutory provisions vis-`-
vis directions issued by the Central Government in making search, seizure
as also taking of samples for the purpose of chemical examination having
been doubted, we do not see any reason why we should take a contrary view
as it is well-known that the appellate court would not interfere with a
judgment of acquittal only because another view is possible. On the other
hand, if two views are possible, it is trite, the appellate court shall not
interfere. [See Animireddy Venkata Ramana and Others v. Public
Prosecutor, High Court of Andhra Pradesh (2008) 5 SCC 368]
42. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.
Friday, April 17, 2009
SUPREME COURT QUASHES RULE BARRING PARTNERS FROM MOVING COURTS
The Supreme Court has quashed a rule that debarred a partner of an unregistered firm in Maharashtra from filing a suit for dissolution of such firm. The apex court also held as illegal the law prohibiting the partner to sue for accounts of the dissolved firm or realize properties of such dissolved firm, unless the duration of the firm was only six months or it's capital was up to Rs 2,000.
"In our opinion sub-section 2A of Section 69 (of the Indian Partnership Act, 1932) inserted by the Maharashtra Amendment violates Articles 14, 19(1)(g) and 300A of the Constitution of India," said a bench comprising Justice Markandey Katju and Justice GS Singhvi in V. Subramaniam vs. Rajesh Raghuvandra Rao .The court said: "A partnership firm, whether registered or unregistered, is not a distinct legal entity, and hence the property of the firm really belongs to the partners of the firm. Sub-section 2A virtually deprives a partner in an unregistered firm from recovery of his share in the property of the firm or from seeking dissolution of the firm.
"Sub-section 2A virtually deprives a partner of a firm from his share in the property of the firm without any compensation. Also, it prohibits him from seeking dissolution of the firm although he may want it dissolved," the court said. The court further said the law was clearly unreasonable and arbitrary since by prohibiting suits for dissolution of an unregistered firm, for accounts and for realization of the properties of the firm, it creates a situation where businessmen will be very reluctant to enter into an unregistered partnership out of fear that they will not be able to recover the money they have invested in the firm or to get out of the firm if they wish to do so. There is no legal requirement, unlike in England, which makes registration of a firm compulsory, rather in India it is voluntary. Both registered and unregistered are legal, though of course registration and non-registration have different legal consequences, the court noted in its judgement. The bench set aside a Bombay high court order.
It said: "The high court was of the view that the object of the Maharashtra amendment was to induce partners to register and it was intended to protect third party members of the public. We cannot see how sub-section 2A of Section 69 in any way protects the third party members of the public. It makes it virtually impossible for partners in an unregistered firm to dissolve the firm or recover their share in the property of the firm. Hence it is totally arbitrary.
The apex court said that the primary object of registration of a firm is protection of third parties who were subjected to hardship and difficulties in the matter of proving as to who were the partners. Under the earlier law, a third party obtaining a decree was often put to expenses and delay in proving that a particular person was a partner of that firm. The registration of a firm provides protection to the third parties against false denials of partnership and the evasion of liability. Once a firm is registered under the Act the statements recorded in the register regarding the constitution of the firm are conclusive proof of the fact contained therein as against the partner. A partner whose name appears on the register cannot deny that he is a partner except under the circumstances provided. Even then registration of a partnership firm is not made compulsory under the Act. A partnership firm can come into existence and function without being registered.
However, the Maharashtra amendment effects such stringent disabilities on a firm that are crippling in nature. It lays down that an unregistered firm cannot enforce its claims against third parties. Similarly, a partner who is not registered is unable to enforce his claims against third parties or against his fellow partners. An exception to this disability was a suit for dissolution of a firm or a suit for accounts of a dissolved firm or a suit for recovery of property of a dissolved firm. Thus, a partnership firm can come into existence, function as long as there is no problem, and disappear from existence without being registered. This is changed by the 1984 amendment extending the bar of the proceedings to a suit for dissolution or recovery of property as well.
The apex court said the effect of the amendment is that a partnership firm is allowed to come into existence and function without registration but it cannot go out of existence (with certain exceptions). This can result into a situation where in case of disputes among partners the relationship of partnership cannot be put an end to by approaching a court.
A dishonest partner, if in control of the business, or if simply stronger, can successfully deprive the other partner of his dues from the partnership. It could result in extreme hardship and injustice, the court said. The court allowed an appeal filed by a partner of an unregistered firm seeking its dissolution. But another partner had taken the stand that in view of the prevailing law in state of Maharashtra, the legal suit was not maintainable.
Thursday, April 9, 2009
No Unsolicited Calls to Mobile Phones in India
The Delhi High Court restrained telemarketers from making unsolicited calls to mobile phone users, irrespective of the fact whether or not they are registered with the DND facility.
60 lakh register Nearly 60 lakh mobile subscribers have enrolled with the National-Do-Not-Call (NDNC) registry within just 10 days of its launch to avoid getting unsolicited sales calls from telemarketers.
A bench comprising Justice Tirath Singh Thakur and Justice Kailash Gambhir said if any telemarketer continues with such activities it would be illegal and the consumers can move against telecom companies in the consumer court. The court passed the order on a contempt petition filed by one Nivedita Sharma saying she had been getting unsolicited calls despite a consumer court order.
The High Court, had, however, earlier stayed the consumer court order, which imposed an exemplary fine of Rs 50 lakh on Airtel and the Cellular Operators Association of India (COAI) for “failure” to stop “unnerving unsolicited” calls and SMS by telemarketing and banking companies to mobile phone users.
The consumer court had also imposed a penalty of Rs 12.5 lakh each on ICICI and the American Express Bank for causing “immense nuisance” by making unsolicited communications such as SMS.
The high court said such calls should not be made to any consumer irrespective of whether one is registered with “do not disturb” (DND) registry as recommended by telecom regulator TRAI.
The DND facility has come into effect from September 1. Sharma had filed a complaint against Airtel, ICICI and American Express Bank alleging she had been receiving unsolicited calls and SMS on her mobile number.
IRDA to permit insurance company to set up of liaison offices in India
The Insurance Regulatory and Development Authority (IRDA) has been authorized to permit insurance companies registered outside India to set up liaison offices in the country.
The existing procedure for grant of permission by RBI for opening of an office by an insurance company registered outside India has been revised in consultation with the Government of India and it has been decided that hence forth such permission would be granted by IRDA.
In this context a “Liaison Office” would mean a place of business to act as a channel of communication between the Principal place of business or Head Office by whatever name called and entities in India but which does not undertake any commercial/ trading/ industrial activity, directly or indirectly, and maintains itself out of inward remittances received from abroad through normal banking channel.
Persons desirous of opening liaison offices shall apply to the Insurance Regulatory and Development Authority. The applicant company shall be required to comply with the terms and conditions of the General Permission granted by RBI under the Foreign Exchange Management Act, 1999 and any other law in force.
The permission for opening of liaison office in India by an insurance company registered outside India are subject to the terms and conditions as may be additionally stipulated by the Authority from time to time.
High drama as Saravana Bhavan owner surrenders
Chennai: P. Rajagopal, founder of the Saravana Bhavan restaurants, surrendered before a court Monday, five days after the Madras High Court sentenced him to life imprisonment for murdering his employee eight years ago.
There was high drama at the session's court as police refused to arrest him despite judge C.S. Murugan issuing an arrest warrant after receiving a petition of surrender from Rajagopal.
The police refused to enter the court as they did not want to risk entering the premises and arrest Rajagopal after having been chastised by the high court last week for assaulting lawyers, an official said on condition of anonymity.
Finally, flanked by his defence counsels and the prosecution, Rajagopal arrived at the nearby Esplanade police station followed by TV cameras and allowed himself to be arrested and sent off to prison in a police vehicle.
Awarded a 10-year rigorous imprisonment sentence by a fast track court earlier for murdering Prince Shantakumar in 2001 by a fast track court, Rajagopal's prison time was enhanced to life by a division bench of the Madras High Court, March 19.
"I have surrendered to the court but will appeal in the Supreme Court (against the conviction)," Rajagopal told reporters.
Rajagopal was not arrested despite the lapse of almost 100 hours after his conviction and cancellation of bail last Thursday.
The March 19 verdict was announced by a division bench comprising Justices P.K. Mishra and R. Banumathi, who convicted Rajagopal and six others.
He had also been accused of sexually harassing Shantakumar's widow, Jeevajothi, and the daughter of another employee Ramaswamy.
Rajagopal, 59, founded the Saravana Bhavan chain of hotels worldwide in 1981. The hotel chain has over 25 outlets in India, and several in other countries.
There was high drama at the session's court as police refused to arrest him despite judge C.S. Murugan issuing an arrest warrant after receiving a petition of surrender from Rajagopal.
The police refused to enter the court as they did not want to risk entering the premises and arrest Rajagopal after having been chastised by the high court last week for assaulting lawyers, an official said on condition of anonymity.
Finally, flanked by his defence counsels and the prosecution, Rajagopal arrived at the nearby Esplanade police station followed by TV cameras and allowed himself to be arrested and sent off to prison in a police vehicle.
Awarded a 10-year rigorous imprisonment sentence by a fast track court earlier for murdering Prince Shantakumar in 2001 by a fast track court, Rajagopal's prison time was enhanced to life by a division bench of the Madras High Court, March 19.
"I have surrendered to the court but will appeal in the Supreme Court (against the conviction)," Rajagopal told reporters.
Rajagopal was not arrested despite the lapse of almost 100 hours after his conviction and cancellation of bail last Thursday.
The March 19 verdict was announced by a division bench comprising Justices P.K. Mishra and R. Banumathi, who convicted Rajagopal and six others.
He had also been accused of sexually harassing Shantakumar's widow, Jeevajothi, and the daughter of another employee Ramaswamy.
Rajagopal, 59, founded the Saravana Bhavan chain of hotels worldwide in 1981. The hotel chain has over 25 outlets in India, and several in other countries.
Saravana Bhavan owner's son held for visa fraud
Chennai: The family that owns South Indian fast food chain Saravana Bhavan is in trouble, again.
First it was the father who went to jail for murder. Now, his son has been charged with cheating and fraud.
R Shivakumar, son of the owner of Hotel Saravana Bhavan, one of the most popular south Indian restaurant chains, has been sent to 15 days judicial custody for allegedly attempting to obtain US visas for his employees using forged documents.
“We have applied for bail and the application comes to court on November 11. He has been remanded to 15 days of judicial custody,” Shivakumar’s defence counsel Muthukannayan said
Sivakumar was arrested on Saturday night following a complaint from the US Consulate.
He has been booked under five sections of the Indian Penal Code including Section 420 which deals with cheating and fraud.
After initial interrogation, Shivakumar was presented in court on Sunday evening.
The founder of Hotel Saravana Bhavan, Rajagopal, was charged with murder and has been out on bail for more than two years now. Now his son is going to spend the next 14 days in judicial custody.
But the counsel for Hotel Saravana Bhavan is hoping that they can bail out Sivakumar just like they succeeded in bailing out his father years ago.
Madras HC awards life term to Saravana Bhavan owner
The Bench dismissed appeals by the convicted persons seeking acquittal in the case. Rajagopal (59), founder of the Saravana Bhavan chain of hotels, was found guilty by a fast track court in connection with the murder of an em-ployee Prince Shantakumar in 2001. The court had sentenced him to ten years rigorous imprisonment in 2004.
In November 2008, Rajagopal’s son P Shiva Kumar was arrested on charges of forging documents to smuggle people into the US. The arrest also resulted in the cancellation of several lucrative contracts of the hotel chain to supply food to American diplomatic missions.
According to the hotel group’s website, it has 22 outlets in the south, three in the north and 22 outlets abroad.
Saturday, March 28, 2009
SUPREME COURT: GIVE PROTECTION TO WITNESSES, AT LEAST IN HEINOUS CRIMES
Being forced to acquit a alleged murderer due to lack of evidence, the Supreme Court has ruled that criminal justice system in the country would be at crossroads unless and until witnesses were given protection to enable them to depose freely against the mighty criminals, at least in heinous crimes.
A bench comprising Justices Arijit Pasayat and Mukundkam Sharma, while upholding the acquittal of Mangilal in the matter of State of Maharashtra vs. Mangilal decided on 6th March,2009, which was recorded by the Bombay High Court noted, "The accused persons with money and muscle power can trample any witness who dared to depose against them. The victor will be injustice and it will be a slur on the criminal justice system if it so happens''.The bench also noted 'It needs no emphasis that in case of a gruesome murder, police protection should be given to witnesses.' The accused, who had murdered a widow and her three children, was sentenced to death by the trial court.
In the Present case, the relevant portion of the case are as below:-
It is true that four people had lost their lives and the accused does not seem to be a person of high morals, but that itself would not be a ground to record his conviction in the absence of reliable material and evidence. The circumstances highlighted by the prosecution are as follows:
1. Ilicit Relations between deceased Durgabai and accused.
2. Illicit relations between accused and Durgabai's daughter Yogita (15 years old).
3. Complaint made by deceased Durgabai on 20.7.1998 against accused regarding threat to kill.
4. Complaint made by deceased Durgabai one day before the incident regarding threat by accused.
5. Statement of PW-1 Laxman recorded under Section 164 of the Code.
6. Beating up of PW-1 Laxman by Prakash Bole to dissuade him from giving evidence in support of prosecution.
7. Police dog traced the scent from the place of incident to the house of the accused thereby connecting the accused to the ghastly murders.
8. Blood stained nail clippings of accused taken upon medical examination immediately upon arrest.
9. Recovery of blood stained jersey of accused from septic tank in the house of the accused and burnt pant at his instance.
6. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063);
Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890).
The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
7. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. state of A.P. (1996) 10 SCC 193, wherein it has been observed thus:
"In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence....".
8. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt
of the accused and such evidence should not only be
consistent with the guilt of the accused but should be
inconsistent with his innocence.
9. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
10. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable
doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4)in order to justify the inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5)if there be any reasonable doubt of the guilt of the accused, he is entitled asof right to be acquitted".
11. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
12. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should
be in the first instance be fully established and all the
facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete
as not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability the
act must have been done by the accused."
13. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may
be' established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
14. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261), Kusuma Ankama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008) and Manivel and Ors. v. State of
Tami Nadu (Criminal Appeal No.473 of 2001 disposed of on 8.8.2008).
15. So far as circumstance No.4 is concerned the trial Court observed that the prosecution failed to produce any evidence about the same. The police dog traced the scent from the place of incident to the house of the accused is really no evidence in the eye of law. So far as the blood stains are concerned medical examination revealed that the ladies had `B' blood group while
boys had `O' blood group. Merely because blood stains were found on the jersey of the accused from septic tank in the house of the accused and burnt pant, that is inconsequential since as noted above his blood group is also `B'. The trial Court observed that the weapon used was stone whereas the weapon recovered from the septic tank is stated to be `Kadbatodi'.
Unfortunately, no finger printing was done.
16. It is noted that though the blood of the accused was collected the same was not sent for chemical analyzer.
17. In view of the position in law highlighted above it cannot be said to be a case where the prosecution has established a complete chain of circumstances which rules out possibility of the involvement of any other person and unerringly points fingers at the accused to be the author of the crime.
18. It needs no emphasis that in a case of gruesome murder, police protection should be given to witnesses so that they can depose freely. Unless that is done result would be that justice would be done to the victim. The accused persons with money and power can trample any witness who dares to depose against them. The victor will be injustice and it would be a
slur on the criminal justice system if it so happens. In view of the above conclusions, the appeal is dismissed.
Earlier also, similar apprehensions had been expressed by another bench comprising Justices B N Agrawal, G S Singhvi and Altamas Kabir saying that possibility of breakdown of criminal justice system in the country could not be ruled out due to the manner in which the witnesses were bought over or silenced by the accused who were rich and powerful.
Justice Pasayat, writing judgment for the bench, pronounced that unless the witnesses were provided protection, at least in heinous crimes, victims would not get justice. The Centre had earlier expressed its inability to provide protection to witnesses in all cases as in Delhi alone, 20 lakh witnesses would require protection, which was not possible.
It was conveyed by Additional Solicitor General Gopal Subramanium to a bench headed by Chief Justice K G Balakrishnan in response to a bill seeking protection to witnesses. Acquittal in criminal cases has gone up sharply due to witnesses turning hostile due to intimidation.
Friday, March 27, 2009
SUPREME COURT: GRAVITY OF OFFENCE BE CONSIDERED FOR ANTICIPATORY BAIL
The Supreme Court has pulled up Punjab and Haryana High Court for granting anticipatory bail to those involved in a criminal conspiracy and cheating without taking the gravity of the offence into account and also for imposing unwarranted conditions for grant of pre-arrest bail, in two separate cases.
The High Court had granted bail to a woman, Ramathal and her associates who had allegedly cheated a person to the tune of Rs 32.5 lakh. The accused had allegedly sold the property situated in Coimbatore on the basis of forged and bogus documents. The property had already been mortgaged with Punjab National Bank and a loan was also taken from another financial institution on it.In another case viz I. Glaskasden Grace & Ors. vs. Inspector of Police & Anr. decided on 3rd March,2009, accused persons I Glaskasden Grace and his accomplices cheated a woman and her son-in-law to the tune of Rs 62,62,000 for a property located in the same city in Tamil Nadu. The complaint was filed by one B Nagalakshmi against M Mani, a property dealer and other accused of cheating her of the amount on the basis of bogus papers and false sale deed. In this case, the High Court, while granting anticipatory bail to the accused under 438 Cr. PC, directed them to deposit the title deed of property worth Rs 20 lakhs standing either in their name or in the name of third party.
In the present case, the complaint was filed by one B. Nagalakshmi W/o
Balagovindarajulu, Complainant - Respondent No. 2 contending inter alia that she approached one M. Mani, a land broker, for the purchase of house sites bearing Nos. 9, 10, 11 and 12 in Sasi West Extension, Vilakrichi Village, Sern Nagar, Coimbatore. Mani informed that K. Sakthivel is the owner of site No. 12, and other site owners reside at Tiruppur and Selvapuram. Encumbrance Certificate issued by the Sub-Registrar and sale deed of 4 sites were shown, which reflected that the land were in the name of appellants. K. Sakthivel made assurance to the
complainant that he will arrange for the sale of the four sites to her by the site owners by making them to execute a sale deed in her favour. The total sale amount for the four sites was fixed at Rs. 62,62,000/-. As alleged when the complainant came forward to tender white money for
the entire amount, the accused Sakthivel asked her to tender white money only for Rs. 7,72,700/- and the rest in black, and represented that he would execute the sale deed in her favour only then. Accordingly, she had parted a sum of Rs. 7,72,700/- through four demand drafts and cash of Rs. 54,89,300/- to the accused, on the day of registration and got the
sale deed executed in her favour on 15.05.2007.
Subsequently, on 03.06.2007 when the respondent No. 2 attempted to put up a boundary
around the land, she came to know that the said four sites originally belonged to some other person. It further transpires that accused/appellants conspired and forged encumbrance certificate and impersonated themselves as original of the house sites, prepared a false sale deed and registered the in favour of complainant and cheated the complainant to the tune of
62,62,000/-. On receipt of the aforesaid complaint, a case was registered the said complaint as the First Information Report. The appellants herein apprehending their arrest in the aforesaid
registered under Sections 120B, 466, 467, 468, 471, 419 and 420 filed a petition in the High Court under Section 438 of the Code anticipatory bail.
On perusal of the submissions made and material on record, the Court passed an order granting anticipatory bail as prayed for on condition that in the event of arrest, the appellants shall be enlarged on on their depositing the title deeds of property worth Rs. 20,00,000/- either in their name or in the name of third parties and also on executing a personal bond of Rs. 25,000/- with two sureties for the to his satisfaction. Aggrieved by the aforesaid order, the appellants approached this on the ground that the conditions imposed by the High Court while anticipatory bail are not only unreasonable and onerous but the also amounts to putting a fetter on the right of appellants being to bail, in terms of the order passed. The said petition filed by the appellants was placed before this whereupon inter alia the following order was passed on 13.8.2008.
"Issue notice.
However, it is made clear that, in the event, it is found that
the petitioners are not otherwise entitled to grant of an
order of anticipatory bail, this Court may pass an
appropriate order.
In the meantime, only that portion of the order whereby
conditions have been imposed for grant of anticipatory bail
other than those contained in Sub-section (2) of Section
438 of the Code of Criminal Procedure shall remain stayed.
.........."
10. Notice was issued to respondents and therefore, the matter was for hearing before us on which we heard the learned counsel for the parties at length.
11. Learned counsel appearing for the appellants submitted before us the conditions imposed by the High Court while granting bail to the appellants were not only onerous but also unreasonable. It was also submitted that conditions imposed by the Court for granting anticipatory bail on their deposit of title deeds of worth Rs. 20,00,000/- standing either in their name or in the name of third parties amounts to putting a fetter on the order granting bail as the appellants are unable to satisfy the conditions are beyond their means and powers.
12. Learned counsel appearing for the respondent, however, submitted the aforesaid conditions put by the Court for grant of bail to the appellants were called for and justified in the facts
circumstances of the present case. It was also pointed out that the intentionally and knowing fully well the entire position and ownership of the property misrepresented the fact and cheated the and therefore, such conditions were required to be put up for of anticipatory bail to the said persons.
13. In the light of the aforesaid submissions by the counsel appearing the parties, we have also considered the records placed before us. The facts and circumstances of the case when analysed have indicated receipt of Rs. 62,62,000/- towards sale consideration of the property alleged to be on misrepresentation of the fact by the appellants
14. It is disclosed that the said property originally belonged to some person. The allegations made are serious as it is alleged that accused/appellants conspired and forged the encumbrance certificate and themselves as original owners of the house sites and the respondent No. 2 (complainant) to the tune of Rs. 62,000/- by preparing a false sale deed and getting it registered in favour of Respondent No. 2.
15. It appears that in the aforesaid facts and circumstances, the High passed the impugned order with the intention of protecting the of the complainant in the matter. In our considered opinion
approach of the High Court was incorrect as under the impugned order a unreasonable and onerous condition has been laid down by the as a condition precedent for grant of anticipatory bail.
16. This Court in Amarjit Singh v. State of NCT of Delhi, reported in JT 2002 (1) SC 291, held as under:-
"4. Having regard to the facts and circumstances of
the present case, we have no hesitation in co
ming
to the conclusion that the imposition of condition
to deposit the sum of Rs. 15 lacks in the form of
FDR in the Trial Court is an unreasonable condi-
tion and, therefore, we set aside the said condition
as a condition precedent for granting anticipatory
bail to the accused/appellant......."
In Sandeep Jain v. National Capital Terriotry of Delhi, reported
in (2000) 2 SCC 66, this court held that:
"4. We are unable to appreciate even the first order
passed by the Metropolitan Magistrate imposing
the onerous condition that an accused at the FIR
stage should pay a huge sum of Rs. 2 lakhs to be
set at liberty. If he had paid it is a different matter.
But the fact that he was not able to pay that amount
and in default thereof he is to languish in jail for
more than 10 months now, is sufficient indication
that he was unable to make up the amount. Can he
be detained in custody endlessly for his inability to
pay the amount in the range of Rs. 2 lakhs. If the
cheques issued by his surety were dishonoured, the
Court could perhaps have taken it as a ground to
suggest to the payee of the cheques to resort to his
legal remedies provided by law. Similarly if the
court was dissatisfied with the conduct of the sure-
ty as for his failure to raise funds for honouring the
cheques issued by him, the court could have direct-
ed the appellant to substitute him with another
surety. But to keep him in prison for such a long
period, that too in a case where bail would normal-
ly be granted for the offences alleged, is not only
hard but improper. It must be remembered that the
Court has not even come to the conclusion that the
allegations made in the FIR are true. That can be
decided only when the trial concludes, if the case is
charge-sheeted by the police".
17. It is not disclosed from the record that the High Court considered the entire facts of the case in proper perspective and proceeded to dispose of the prayer for anticipatory bail oblivious of the facts of the case and contrary to correct legal position with regard to law relating to grant of
anticipatory bail. The High Court should have considered the entire facts of the case including the gravity of the offence alleged and in the light thereof should have considered the prayer for grant of anticipatory bail.
In that view of the matter, we feel that the entire order passed by the High Court is required to be set aside and the matter to be reconsidered in accordance with law and in terms of observations made herein.
18. We accordingly, set aside the impugned order and remit back the matter to the High Court to consider the prayer for anticipatory bail of the appellants afresh in accordance with law taking into consideration the facts and circumstances of the case including the gravity of the offence
alleged and analysing the prayer of the appellants whether to grant or not to grant the prayer for anticipatory bail. The High Court shall dispose of the matter in accordance with law, giving reasons for its decision, as expeditiously as possible, preferably within a period of six weeks from
the date of the communication of this order.
BIHAR ANTI-CORRUPTION BILL GIVES NEW POWERS TO GOVT
Moving swiftly to rein corruption at various levels, the Nitish Kumar government in Bihar has got the state legislature to pass the Bihar Special Court Bill, 2009, which, among other things, will enable the state government to confiscate property of the errant officials even if the matter was sub-judice.
The passage of the Bill was considered in political circles here as a major step in the direction of rooting out corruption from the state. With elections to the Lok Sabha round the corner, it is expected to enhance the ruling alliance's standing among the people. The legislation will arm the state administration with more teeth in dealing with cases of corruption involving public servants on a speedy and effective basis. The bill, approved by the state legislature, will envisage creation of special courts for ensuring disposal of corruption cases within a time-frame and, most significantly, it will enable the state government to confiscate the property in the disproportionate asset (DA) case even if the matter is not judicially decided.The bill obviously will do with away with inadequacies of existing law which accounted for the tardy disposal of the corruption cases. "What is significant, the new bill will have the provision which will enable the government to confiscate the property of the public servants in the DA case. As of now, under the existing law, the government could not confiscate the property if even a civil servant was booked in a DA case" said the minister of water resources Bijendra Yadav who piloted the bill in the state assembly. The bill seeks to amend the Prevention of Corruption Act which brings under its ambit central government employees also. The state government will therefore be required to procure the consent of the Centre on the bill which the government wants to push through at the earliest.
Incidentally, Bihar became the second state, after Orissa, to have passed such a legislation. The Naveen Patnaik government had earlier put in place a similar law with the consent of the Centre. "I don't see any reason why the Centre should have any reservation to the bill. The bill, after it becomes an act, will act as a big deterrent for the public servants who may have amassed huge property beyond their known source of income"said Sanjay Jha, the BJP MLC lauding the efforts of the chief minister Nitish Kumar for taking such an initiative which will be just the right move to rein in corruption at the government level.
According to the bill, if the government on the basis of prima facie evidence will confiscate the property of the public servant in connection with a DA case after obtaining permission from the special court.
Monday, March 23, 2009
Tatas give the world its cheapest car
Malini Bhupta Mumbai, March 23, 2009
The wait for the people's car is finally over. One year after Tata Motors unveiled its ambitious Rs 1 lakh car in New Delhi at an auto show, the company on Monday announced the commercial rollout of the Nano.
Those customers who want to have a look at the car before booking it can do so at Tata Motors showrooms and other authorised outlets, where the car will be displayed from April 1, 2009.
Says a proud Ratan Tata, chairman of Tata Sons and Tata Motors: "The Nano wasn't designed as the cheapest car. It was designed as transport at an affordable price. The Nano was born out of an emotional desire to provide transport to families who usually travel in two-wheelers and brave all kinds of weather conditions. The concept began with the question on how we could make the two-wheeler safe."
The Nano will be available to the public in three variants - Standard, CX and LX. All three variants are Bharat Stage II and III compliant. The standard model comes with three colour options, while the CX model comes with heating and air conditioning options, two-tone seats, parcel shelf, booster assisted brakes, fold down rear seat with nap rest. So those going for the base model surely cannot expect even what's given in most other cars, like a parcel shelf.
The Nano LX model is for those who want a low-cost car with bells and whistles because this one comes with all the features of the CX - body-coloured exteriors, fog lamps, electronic trip meter, cup holder, mobile charge point, front power windows and rear spoiler. The company claims that many of the features available in the Nano LX are not available in entry level small cars in the country.
Given that the Nano is a car that can easily be customised to suit any requirement, the company has launched an entire range of 'Nano' accessories ranging from mud flaps, floor mats, audio systems, steering wheel covers, mobile phones, key chains to T-shirts. Given that the wait for the car is likely to be nothing less than a year, customers can entertain themselves with Nano accessories during this wait.
Bookings will be open to consumers from April 9 to April 25. Given the car's low-cost proposition, Tata Motors has adopted a rather novel way to improve marketing and distribution of the car. The group is leveraging all its retail destinations like Westside, Tata Indicom outlets, Croma and the World of Titan showrooms to sell booking forms priced at Rs 300. These forms will be available across 30,000 locations in 1000 cities. The company has entered into an exclusive partnership with the State Bank of India to manage the booking process as it has the maximum footprint in terms of geographical locations. Customers will have the option of paying the entire booking amount or seeking finance from the preferred finance partners of Nano. For those seeking finance, the booking amount is merely Rs. 2,999 upfront.
So, will all the consumers who apply for the Nano become proud owners of the car? Not quite, says the company. Given that the production of the car at its new home in Sanand, Gujarat is unlikely to start before end-2009, currently the company is producing Nano at its Pantnagar facility in northern India, which has a capacity of 1,600 cars per month. At best, the plant cannot manufacture more than 40,000 to 50,000 cars at any given point of time. Thus, customers of Nano will have to wait at least for a year to take delivery of the car.
Given that the entire project has come about so that Tata Motors could offer affordable and yet safe transportation to Indians, the company has decided to stick to its original price of Rs 1 lakh for the first 1,00,000 customers, who will be selected randomly at the end of the booking process. Those worried whether or not Ratan Tata intends to stick to his promise of delivering the car at Rs 1 lakh needn't worry. One of the hype points of this car has been its very affordable pricing, and despite all odds Ratan Tata has stuck to his promise of delivering the people's car at Rs 1 lakh.
Last year, Ratan Tata had said that despite the dramatic rise in input costs, the car would be priced at Rs 1 lakh because a "promise is a promise".
A lot has happened between January 2008 and now, with the Nano being rendered homeless after the Singur fiasco last year. Despite the challenges, Tata Motors has given price protection to the first 1,00,000 customers of the Nano by guaranteeing them the price as quoted last year. During an interaction with the press, Tata said: "Nobody can ever commit to a price in terms of volume but we are doing that for the first 1,00,000 customers."
And those who are not among the lucky 1,00,000 can either hold on to their bookings and earn an interest of 8.5 per cent in the first year and 8.75 per cent in the second year on the booking amount or take the money back at the end of three month process. The company is using an initial public offer route to market its car in the first phase such that it gets to keep the booking amount with itself for three months and by offering competitive rates of interest, the company is also addressing its capital requirements by retaining the booking amount of customers for a longer period.
In time Tata Motors expects to produce at least a million cars per annum, going by the growing demand for automobiles in India. But from next year, Tata Motors will be able to cater to only 2,50,000 cars per annum, which can be scaled to 5,00,000 in due course of time. For now, only the lucky 1,00,000 get to drive Ratan Tata's dream car.Saturday, March 7, 2009
SUKH RAM GETS 3-YEAR JAIL IN DISPROPORTIONATE ASSETS CASE
A court of Delhi has awarded three years of imprisonment to the former union minister Sukh Ram for amassing properties amounting to Rs 4.25 crore disproportionate to his know source of income between 1991 to 1996 when he was the minister of state for communications in PV Narsimha Rao led government.
Special CBI Judge VK Maheshwari also ordered the forfeiture of Rs 4.25 crore amassed by Sukh Ram besides slapping a fine of Rs two lakh on him. "A corrupt public servant is a menace to the society. Political corruption is the worst form because its consequences are far reaching. When our leaders who are the role models of the society, whose every action should be above the board, are themselves corrupt, how can we expect honesty and virtue from public at large,"said the court in its six-page terse order. The judge further said: "If public servants are corrupt, the whole structure of the society would get upset and the policies of the government, howsoever beneficial, would be adversely affected."The need of the hour is to check the cancer of corruption�, the court stated. It further said that the welfare of the society could be ensured only through �honest and incorrupted public servants". The order said, the CBI has proved that Sukh Ram had accumulated disproportionate assets to the tune of Rs 4.25 crore beyond his known sources of income and the former minister could not satisfactorily explain how he acquired so much wealth. The court justified the forfeiture of the illegal wealth amassed by the former minister.
"Corrupt public servants should not be allowed to reap the benefit of the crop of corruption sowed by them by corrupt means", the judge said. Sukh Ram had contended that the cash with him was meant for Congress party fund but this was refuted by senior Congress leaders. Sukh Ram was holding the key communications portfolio at the time of the telecommunication revolution in the country. "I have never seen so much of cash all my life," recalled the then CBI director Joginder Singh during whose tenure the agency conducted the searches on Sukh Ram's premises.
The court, however, granted him bail on furnishing a personal bond and surity of Rs 50,000 each. Sukh Ram later said that he will appeal against the order in Delhi High Court. The court had convicted Sukh Ram under section 13(2) read with section 13(1) (e) of the Prevention of Corruption Act, 1988. CBI had charged Sukh Ram under various provisions of the act of 1988. The agency had said that the former minister had amassed assets, both movable and immovable, to the tune of Rs 5.36 crore during 1991 to 1996 misusing his capacity as a public servant. It had registered the case on August 27, 1996 following recovery of Rs 2.45 crore from his residence at 12, Safdarjung lane here and Rs 1.16 crore from another residence at Mandi in Himachal Pradesh.
Sunday, February 22, 2009
Delhi High Court: Daughter in law can't claim right to live in In-Law House
Delhi High Court has held that the old parents whose relations with their son and daughter-in law turn sour have every right to show them the door and the daughter-in law cannot claim any right to stay in their house claiming to be having a legal right to live in the matrimonial home.
Justice Shiv Narain Dhingra observed,"that the matrimonial home may not necessarily mean the house of the parents of the husband. In fact the parents can allow the children to live in the house as long as their relations are cordial and full of love and affection with them."
Matrimonial home is not merely a dwelling unit. It is a place used by husband and wife for dwelling, Justice Dhingra said.
In the present case, an old couple staying in Ashok Vihar filed a suit in the Delhi High Court stating that their daughter-in-law forcibly wants to stay in their house whereas she has her own house in Rohini. The parents of one Vikas Mittal who stay in Ashok Vihar had separated from their son. The son purchased a flat in Rohini.The daughter-in-law stated that the house in Rohini is not habitable with no cooler, fan and claimed a right to live in her parents-in-law's house at Ashok Vihar. The daughter-in-law Neetu Mittal referred to the protection of women from domestic violence act and claimed right to live in the Ashok Vihar house stating the right to live in the Matrimonial home.
The Court observed that the parents who are ill and suffering from various ailments have every right to live peacefully. Since their relations with the son and daughter-in-law are not cordial there is every likelihood of breach of peace detrimental to their mental and physical health. The Court observed that due regard has been given to the parent's rights as it is established that they cannot live together under one roof.
The Court held that once a person gains maturity, parents have no liability to sustain him. It is a different thing that out of love and affection parents can support the son but there is no legal liability on them. The Court dismissed the daughter-in-law's claim of the right to live in the matrimonial home of the parents and held the rights of the parents above her rights.
Matrimonial home is not merely a dwelling unit. It is a place used by husband and wife for dwelling, Justice Dhingra said.
In the present case, an old couple staying in Ashok Vihar filed a suit in the Delhi High Court stating that their daughter-in-law forcibly wants to stay in their house whereas she has her own house in Rohini. The parents of one Vikas Mittal who stay in Ashok Vihar had separated from their son. The son purchased a flat in Rohini.The daughter-in-law stated that the house in Rohini is not habitable with no cooler, fan and claimed a right to live in her parents-in-law's house at Ashok Vihar. The daughter-in-law Neetu Mittal referred to the protection of women from domestic violence act and claimed right to live in the Ashok Vihar house stating the right to live in the Matrimonial home.
The Court observed that the parents who are ill and suffering from various ailments have every right to live peacefully. Since their relations with the son and daughter-in-law are not cordial there is every likelihood of breach of peace detrimental to their mental and physical health. The Court observed that due regard has been given to the parent's rights as it is established that they cannot live together under one roof.
The Court held that once a person gains maturity, parents have no liability to sustain him. It is a different thing that out of love and affection parents can support the son but there is no legal liability on them. The Court dismissed the daughter-in-law's claim of the right to live in the matrimonial home of the parents and held the rights of the parents above her rights.
GRANT BAIL ONLY FOR GOOD REASON: SUPREME COURT
The Supreme Court while deciding Lokesh Singh Vs. State of U.P. & Ors. on 21st oct, 2008, has said that the bail granted to the accused is liable to be set aside if the adequate reasons for granting it are not laid out by the court.
While dealing with an application for bail, bench comprising Justice Arijit Pasayat and Justice C K Thakker said:there is a need to indicate the order, reasons for prima facie concluding why bail was being granted where an accused was charged of having committed a serious It is necessary for the courts dealing with application for bail to among other circumstances, the following factors also before bail, they are:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
While dealing with an application for bail, bench comprising Justice Arijit Pasayat and Justice C K Thakker said:there is a need to indicate the order, reasons for prima facie concluding why bail was being granted where an accused was charged of having committed a serious It is necessary for the courts dealing with application for bail to among other circumstances, the following factors also before bail, they are:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Any order de hors such reasons suffers from non-application of mind was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh Ors. [(2002) 3 SCC 598], Puran etc. v. Rambilas and Anr. Etc. [(2001) SCC 338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu & Anr. [JT 2004 (3) SC 442].
Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet reasons is different from discussing merits or demerits. As noted at the stage of granting bail a detailed examination of evidence and
documentation of the merits of the case has not to be undertaken. that does not mean that while granting bail some reasons for prima facie why bail was being granted is not required to be indicated.
documentation of the merits of the case has not to be undertaken. that does not mean that while granting bail some reasons for prima facie why bail was being granted is not required to be indicated.
The court cancelling the bail of an accused said that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated, observed court.
The apex court said that the accused released on bail shall surrender to custody forthwith.
The Lucknow bench of the Allahabad high court had granted bail to an accused facing trial for an alleged murder and Section 120 B of the Indian Penal Code.
JURISDICTION OF CIVIL COURT IN INDUSTRIAL DISPUTE NOT BARRED:SUPREME COURT
The Supreme Court has held in the case of RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. vs. BAL MUKUND BAIRWA decided on 12/02/2009 that the jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved.
The three-judge bench, comprising Justices S B Sinha, Mukundakam Sharma and Asok Kumar Ganguly, in their judgment noted, The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is a pragmatic requirement of fair play in action.
The jurisdiction of a civil court is governed by Section 9 of the of Civil Procedure, which reads as under:
"9 - Courts to try all civil suits unless barred:-The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred."
The jurisdiction of the Civil Court in terms of the aforementioned is a plenary one. The provision relating to bar to entertain a must therefore be laid down by a statute either expressly or by implication. An employee charged with grave acts of must be held to be entitled to a fair hearing in the proceeding. The common law principles of natural justice also be complied with. Rules laid down in the statutory rules should be followed.
Section 9 of the Code is in enforcement of the fundamental of law laid down in the maxim Ubi jus Ibi remedium. A thus, having a grievance of a civil nature has a right to institute a suit in a competent civil court unless its cognizance is either or impliedly barred by any statute. Ex facie, in terms of section of the Code, civil courts can try all suits, unless bared by either expressly or by necessary implication.
The civil court, furthermore, being a court of plenary jurisdiction the jurisdiction to determine its jurisdiction upon considering the made in the plaint but that would not mean that the plaintiff
circumvent the provisions of law in order to invest jurisdiction on the court although it otherwise may not possess. For the said purpose, court in given cases would be entitled to decide the question of its jurisdiction upon arriving at a finding in regard to the existence of jurisdictional fact. It is also well settled that there is a presumption a civil court will have jurisdiction and the ouster of civil court's is not to be readily inferred. A person taking a plea contra establish the same. Even in a case where jurisdiction of a civil court sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory
or Tribunal acts without jurisdiction.
In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of the service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the civil court will have no jurisdiction.
The apex court also noted, �if the infringement of Standing Order or other provisions of the industrial disputes act are alleged, the civil courts jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil courts jurisdiction may not be held to be barred.
The objection to the maintainability of the civil suit filed by Balmukund Birwa and others was raised by Rajasthan State Road Transport Corporation. The two judge bench of the Supreme Court vide order dated November 22, 2007 had referred the case to three-judge bench for deciding the issue whether the civil court is completely debarred for entertaining a suit involving a dispute between the employer and the workman.
The apex court also held that it is a settled law that if a court decides a mater without jurisdiction, the decision, or the decree passed by such court would be a nullity and the jurisdiction cannot be conferred on a court either by the court order or through the mutual consent of the parties.
CORPORATION & ANR. vs. BAL MUKUND BAIRWA decided on 12/02/2009 that the jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved.
The three-judge bench, comprising Justices S B Sinha, Mukundakam Sharma and Asok Kumar Ganguly, in their judgment noted, The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is a pragmatic requirement of fair play in action.
The jurisdiction of a civil court is governed by Section 9 of the of Civil Procedure, which reads as under:
"9 - Courts to try all civil suits unless barred:-The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred."
The jurisdiction of the Civil Court in terms of the aforementioned is a plenary one. The provision relating to bar to entertain a must therefore be laid down by a statute either expressly or by implication. An employee charged with grave acts of must be held to be entitled to a fair hearing in the proceeding. The common law principles of natural justice also be complied with. Rules laid down in the statutory rules should be followed.
Section 9 of the Code is in enforcement of the fundamental of law laid down in the maxim Ubi jus Ibi remedium. A thus, having a grievance of a civil nature has a right to institute a suit in a competent civil court unless its cognizance is either or impliedly barred by any statute. Ex facie, in terms of section of the Code, civil courts can try all suits, unless bared by either expressly or by necessary implication.
The civil court, furthermore, being a court of plenary jurisdiction the jurisdiction to determine its jurisdiction upon considering the made in the plaint but that would not mean that the plaintiff
circumvent the provisions of law in order to invest jurisdiction on the court although it otherwise may not possess. For the said purpose, court in given cases would be entitled to decide the question of its jurisdiction upon arriving at a finding in regard to the existence of jurisdictional fact. It is also well settled that there is a presumption a civil court will have jurisdiction and the ouster of civil court's is not to be readily inferred. A person taking a plea contra establish the same. Even in a case where jurisdiction of a civil court sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory
or Tribunal acts without jurisdiction.
In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of the service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the civil court will have no jurisdiction.
The apex court also noted, �if the infringement of Standing Order or other provisions of the industrial disputes act are alleged, the civil courts jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil courts jurisdiction may not be held to be barred.
The objection to the maintainability of the civil suit filed by Balmukund Birwa and others was raised by Rajasthan State Road Transport Corporation. The two judge bench of the Supreme Court vide order dated November 22, 2007 had referred the case to three-judge bench for deciding the issue whether the civil court is completely debarred for entertaining a suit involving a dispute between the employer and the workman.
The apex court also held that it is a settled law that if a court decides a mater without jurisdiction, the decision, or the decree passed by such court would be a nullity and the jurisdiction cannot be conferred on a court either by the court order or through the mutual consent of the parties.
Subscribe to:
Posts (Atom)